Barr’s Memo Backing Trump’s Power Isn’t Crazy, Just Wrong

(Bloomberg Opinion) -- William Barr, President Donald Trump’s nominee for U.S. attorney general, has a worrisome theory of executive power. He’s wrong to say that part of the federal obstruction of justice statute isn’t applicable to the president.

But on the eve of Barr’s Senate confirmation hearings, it’s also important to recognize that Barr’s view of executive power is not extreme, or at least not outside the range of opinions commonly held by lawyers who have worked for presidents.

That may not be a popular view among liberals right now, and it may not be what Democratic senators say when they press Barr, as indeed they should. Senator Dianne Feinstein, the ranking member on the Judiciary Committee, has said a memo he wrote this past June, revealed in December in the Wall Street Journal, raises “concerns about his independence.”

Nevertheless, Democrats should keep in the back of their minds that executive power isn’t a purely partisan issue. Plenty of Democratic presidents have taken strong views of presidential power. And it isn’t necessarily disqualifying that an attorney general nominee thinks the president should be entitled to the full powers delineated in Article II of the Constitution.

The main conversation about Barr’s views focuses on the apparently unsolicited memo he sent six months ago to the Department of Justice about potential criminal charges against Trump for obstruction of justice.

In the memo, Barr lays out a legally sophisticated version of the theory publicly espoused by Trump himself and by other supporters. The idea is that the president can’t be guilty of the crime of obstructing justice for firing the FBI Director James Comey or for pressuring Comey to drop charges against former national security adviser Michael Flynn.

Others who have expressed this view have said, essentially, that the president can’t be guilty of a crime for taking actions that fall within the scope of his power. Because the president can fire executive officers like Comey, and can order prosecutions to be ended, he can’t have committed a crime by taking or suggesting such actions.

This crude form of the theory is certainly incorrect. The fact that the president has the constitutional or legal authority to do something doesn’t protect him if he does it corruptly and in violation of a law. Thus, the president has the legal power to order documents destroyed. But if he ordered the destruction of documents that were under subpoena, that would be a crime.

Barr is too good a lawyer to embrace the crude version of the argument. Before serving as deputy attorney general and attorney general under George H.W. Bush, Barr ran the Office of Legal Counsel in the Bush Department of Justice. That office has the job of advising the president on the legality and constitutionality of proposed executive action. To compose his memo, Barr relied on the skills he developed in that office — and on the kind of logic the office uses.

Barr’s memo expressly acknowledges that if the president sabotages an investigation or other legal proceeding, he can be found guilty of obstructing justice. He addresses his argument to broader forms of obstruction that are prohibited by the federal statute that says anyone who “otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so” has committed a crime.

When it comes to this broader definition of obstruction, Barr offers a highly lawyerly argument. It’s that, when a statute doesn’t specifically say that it applies the president, and when applying that statute to the president might “involve a possible conflict with the President’s constitutional prerogatives,” it shouldn’t be applied to the president when his actions are “facially lawful” — that is, when on their face the actions don’t violate the law.

That’s a mouthful, and it is about as legally technical as it’s possible for an argument to be. There are two separate premises, and they are followed by a case-specific caveat. Barr’s argument, even on its own terms, applies only if the two premises are true and the caveat fits the facts.

My Harvard Law colleague Jack Goldsmith has written a detailed analysis of Barr’s claim at Lawfare. Goldsmith is himself a former head of the Office of Legal Counsel, and I highly recommend his essay for anyone interested in the nitty-gritty.

In brief, it’s enough to say that the premises aren’t crazy. According to Goldsmith, the Office of Legal Counsel has in the past taken the position that a statute that might create a conflict with the president’s constitutional authority shouldn’t be applied to the president unless it specifically says that it does.

To be clear, I don’t think Barr is correct. The presumption that the statute doesn’t apply shouldn’t be deployed when there is just a possibility that it might conflict with the president’s authority. There are just too many statutes that could potentially conflict — and which ought to apply to the president. An actual conflict with presidential authority should be required before we should consider the possibility that a criminal statute doesn’t apply to the president.

Furthermore, the president shouldn’t be able to hide behind the fact that his actions appear lawful on their face if they are actually motivated by a corrupt intent. Otherwise, a president could order charges dismissed against a mob boss to whom he owed a favor and claim that his order was facially neutral and therefore not covered by the statute.

My point is, however, that Barr’s argument is well within the norm of executive power theory as espoused by the Office of Legal Counsel. On its own, it shouldn’t disqualify him from becoming attorney general.

In our partisan moment, we may have forgotten that people we disagree with aren’t always crazy. But in the long run, democracy depends on both sides believing exactly that.

In law, as in life, it’s possible to be reasonable but wrong. That’s what Barr’s executive power views are.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

©2019 Bloomberg L.P.