The 40-Year War

Jose Luis Magana/AP Photo

Attorney General William Barr in 2019

This article is a preview of the Fall 2019 issue of The American Prospect magazine. Subscribe here.

I have Article II, where I have the right to do whatever I want as president,” Donald Trump said in a recent speech to a far-right-wing campus organization. Trump is not a constitutional scholar, and he would not care at all about “constitutional architecture” were he not president. So where did this sweeping claim to executive power come from?

Trump’s claims are largely motivated by self-interest, as all of Trump’s motivations begin with "self,” rather than any doctrinal belief. Congressional investigations may expose his venality and perhaps criminality, so Trump will fight them tooth and nail.

But for Trump’s attorney general, William Barr, and others on the right, the effort to take power for the president from the courts and especially from Congress has been a 40-year project. Barr and his comrades may find statements like I have Article II” crass and narcissistic, but in their view Trump is generally correct. Executive power maximalists argue that the “original intent” of the framers of the Constitution was to create a strong president with concentrated power and a largely advisory Congress.

The historical evidence for that argument is exceedingly thin.

Yet Trump and Barr alike will adopt any means necessary to defeat challenges to presidential power, which even includes false testimony under oath by senior administration officials in judicial proceedings, as was the case in the failed effort to justify a citizenship question on the 2020 census. The claim to presidential power that may be most dangerous to democracy is the power to ration information to Congress and the American people. Neither Congress nor the courts nor voters can effectively check power abused in secret. And Congress’s power to require information from the president may be the power most difficult to reclaim if Congress yields that power in a tactical retreat in advance of the 2020 election.

For Barr, this central confrontation with Congress over Congress’s power to investigate represents unfinished business.

 

AN ABUNDANT BODY OF LAW and democratic thought, some eloquently stated, supports the power of Congress to inform itself and the American people. Congress first demanded information from the executive branch in George Washington’s first term, after a disastrous military expedition to the nation’s far-western frontier, Ohio. Many members of Congress, such as Representative James Madison, had been delegates to the Constitutional Convention and knew the framers’ “original intent.”

“The power of inquiry has been employed by Congress throughout our history,” Supreme Court Justice John Marshall Harlan wrote in 1959, “over the whole range of the national interests concerning which Congress might legislate or decide upon due investigation not to legislate; it has similarly been utilized in determining what to appropriate from the national purse, or whether to appropriate. The scope of the power of inquiry, in short, is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution.”

A prominent American political scientist, Woodrow Wilson, said that the “informing function of Congress should be preferred even to its legislative function.” Congress’s “proper duty,” Wilson said, is “to look diligently into every affair of government and to talk much about what it sees. It is meant to be the eyes and the voice, and to embody the wisdom and will of its constituents.” If Congress is derelict in that duty, then “the country must be helpless to learn how it is being served.”

The Reagan administration upended this rough consensus, bringing in a cadre of rightist lawyers to the Justice Department and the White House with what were then seen as fringe views on presidential power. (To most legal scholars, those views are still fringe.) Barr was one of their number. Barr worked in the White House on legal policy for 16 months in Reagan’s first term.

Scott Applewhite/AP Photo

1982: William Barr was one of a group of lawyers working in the Reagan and Bush administrations who held fringe views on presidential power.

The lawyers favored a much stronger presidency. They argued that the presidency had been stripped of proper constitutional powers in the aftermath of Watergate, but their proposals went well beyond reversal of post-Watergate reforms. Edwin Meese, the attorney general and most influential lawyer in the Reagan administration, questioned the constitutionality of independent agencies and suggested that the president could disregard Supreme Court decisions with which the president disagreed.

They decided to challenge Congress’s oversight power. Two House committees began an investigation into alleged political interference in enforcement and spending by the Environmental Protection Agency under the Superfund Act. President Reagan claimed executive privilege and directed EPA not to produce subpoenaed documents. The House held the EPA director, Anne Gorsuch Burford (Supreme Court Justice Neil Gorsuch’s mother), in contempt.

DOJ’s Office of Legal Counsel (OLC) issued an opinion that DOJ need not prosecute criminal contempt of Congress charges that the House referred, despite statutory language that they must. Armed with that opinion, DOJ refused to prosecute. It apparently dawned on Burford that the lawyers in the White House and DOJ who wanted the fight with Congress did not risk jail time—but she did. Unnamed Burford aides told reporters that Burford wanted to provide subpoenaed documents to Congress, but Reagan ordered her to stand down.

Career EPA employees leaked damaging evidence of misconduct by Burford’s leadership team. Representative John Dingell, the fiercest practitioner of congressional oversight in American history, said his committee had evidence of criminal conduct at EPA. Burford fired Rita Lavelle, the head of the Superfund program. Lavelle was later convicted of perjury in the House investigation.

The fight against the congressional investigation of the Superfund program unraveled. Reagan agreed to produce all of the subpoenaed documents with minor redactions in what the House committees made public, and the House agreed to drop the contempt charge against Burford. While Reagan said publicly that Burford could stay in her job as long as she wanted it, unnamed aides told reporters that she should resign. Burford responded by resigning, so EPA could perform its important work without distraction, she said.

It would get worse for the Reaganite effort to defeat congressional oversight. The House Judiciary Committee opened an investigation into whether the DOJ had obstructed the congressional investigation into the Superfund program. The committee questioned whether DOJ should have the power both to advise the administration to disobey congressional subpoenas and to decide whether to prosecute criminal contempt of Congress.

Official Portrait

1988: Chief Justice William Rehnquist dealt a blow to the Reaganites when he upheld the constitutionality of the independent counsel law in his Morrison v. Olson opinion.

DOJ provided the committee some documents, but the committee later obtained more revealing documents that the Justice Department had not disclosed. The committee demanded the appointment of an independent counsel for possible criminal charges against Theodore Olson, the former head of OLC (and later the Republican lawyer in Bush v. Gore), for obstruction of the committee’s investigation and for perjury. Independent counsels had all of the investigative and prosecutorial powers that DOJ had, and could not be fired without good cause.

To Reaganites, every syllable of the independent counsel law was an unconstitutional encroachment on presidential power. Their overarching legal theory was the “unitary executive,” a phrase snatched from one of The Federalist Papers that explained why the Constitution did not give executive powers to a committee, as many favored. Reaganites argued that the Constitution granted all executive power to a single official, the president, and any attempt by Congress or the courts to limit that power, or to assign any executive function to anyone else, was unconstitutional.

Their legal theories were put to the test in the Olson case. The law at the time had a hair-trigger requirement to refer evidence of criminal misconduct by senior government officials to outside counsel. Meese did so, and the appointed independent counsel issued subpoenas to Olson and others. Olson filed a lawsuit to quash the subpoena and to declare the independent counsel law unconstitutional. The Reagan administration supported the lawsuit, Morrison v. Olson, which reached the Supreme Court.

Chief Justice William Rehnquist wrote the majority opinion, finding no problem with anything in the independent counsel law. The opinion stated that “the conflicts of interest that could arise in situations when the Executive Branch is called upon to investigate its own high-ranking officers” justified the procedures established by the law. But Rehnquist did not limit the decision to those circumstances. The opinion quoted accounts that the delegates to the Constitutional Convention seriously considered giving the Senate the power to appoint executive branch officials as a check on the president, a far cry from the argument that the “original intent” of the framers of the Constitution was to create a powerful “unitary executive.” Rehnquist’s opinion relied on a 1935 Supreme Court decision, Humphrey’s Executor v. United States, which approved the independence of the Federal Trade Commission, a decision that Reaganites hoped the Court would reverse.

The sole dissenter was Antonin Scalia, who described Morrison v. Olson years later as the “most wrenching” case in his time on the Court. “To take away the power to prosecute from the president and give it to somebody who’s not under his control is a terrible erosion of presidential power,” Scalia said. “And it was wrenching not only because it came out wrong—I was the sole dissenter—but because the decision was written by Rehnquist, who had been head of the Office of Legal Counsel, before me, and who I thought would realize the importance of that power of the president to prosecute.”

Rehnquist addressed Scalia’s dissent in a three-sentence footnote, saying that Scalia’s argument required a “rigid demarcation” of presidential power, “a demarcation incapable of being altered by law in the slightest degree.”

 

REAGANITES HAD THEIR ASSES handed to them in their fights with Congress, but William Barr wanted no truce.

Barr followed Rehnquist, Scalia, and Olson as head of OLC at the beginning of the George H.W. Bush presidency in 1989, less than a year after the Supreme Court decided Morrison v. Olson. OLC supposedly provides detached legal advice to the president and the executive branch, and advises when proposed policies or actions cross constitutional red lines.

But OLC can also contrive arguments that the law allows or even requires whatever the president wants to do. It is almost impossible for a later administration to prosecute an employee of the federal government, civilian or military, for illegal actions, as long as OLC advised that the actions were legal at the time. In effect, OLC can pardon acts not yet committed. OLC’s power obviously can be abused, but it’s not always possible to know when or how that occurs, because OLC opinions are often secret, as is the conduct that OLC opinions approve.

Joe Marquette/AP Photo

1992: Edwin Meese, Reagan’s attorney general, with Reagan’s defense secretary Casper Weinberger, who was indicted in the Iran-Contra scandal. In the last month of his presidency, George H.W. Bush pardoned Weinberger, at the suggestion of his attorney general, William Barr.

Barr wrote and circulated throughout the executive branch a militant memorandum entitled “Common Legislative Encroachments on Executive Branch Authority.” The memo called for aggressive challenges to Congress’s claims to authority: “Only by consistently and forcefully resisting such congressional incursions can executive branch prerogatives be preserved.”

The memo treated the decision in Morrison v. Olson as narrowly limited to prosecution of senior executive branch officials, despite Rehnquist’s broad language. “The President,” Barr said, “as the head of a unitary executive branch, has a duty to ‘take Care that the Laws be faithfully executed,’ to coordinate and supervise his subordinates, and to ensure that the executive branch speaks with one voice.”

According to Barr, the president alone decided what information Congress should have about executive functions. Statutory “dual reporting requirements” that executive branch agencies provide Congress the same budget requests and legislative proposals that agencies send within the executive branch constituted an unconstitutional “effort to insert [Congress] into the executive branch decisionmaking process.” Executive branch agencies should interpret any such statutory requirement “as applying only to ‘final’ recommendations that have been reviewed and approved by the appropriate superiors within the executive branch.”

Barr wrote that Congress’s demands for information about “the most sensitive executive branch information … should be resisted … as an unconstitutional encroachment on the President’s constitutional responsibility to protect certain information.” Furthermore, he made this broad claim of power to control information: “The President must retain the authority to withhold in the public interest information whose disclosure might significantly impair the conduct of foreign relations, the national security, the deliberative processes of the executive branch or the performance of its constitutional duties.”

The bread and butter of congressional oversight of the executive branch is to examine executive branch actions and the reasons for those actions. According to Barr, none of that is any of Congress’s business.

 

TO BARR, THE IRAN-CONTRA SCANDAL was an executive powers issue. The scandal began in the Reagan administration and consumed much of the Bush 41 administration.

The initial scandal involved the secret sale of weapons to Iran and the use of the proceeds to fund an anti-communist insurgency in Nicaragua, the Contras. Both sales of weapons to Iran and aid to the Contras were forbidden by legislation. Barr regarded the legislation as unconstitutional, describing attempts by Congress to “insert itself in the area of foreign affairs at the expense of the authority traditionally exercised by the President” as an encroachment on the president’s powers.

The House select committee that investigated the transactions issued a scathing bipartisan report. The report found that a “cabal of zealots” with “disdain for the law” violated the statutes that forbade the transactions. The Reagan administration had one important ally in Congress: Representative Dick Cheney from Wyoming. Cheney said that the participants in the Iran-Contra transactions properly ignored the statutes. “Judgments about the Iran-Contra affair ultimately must rest upon one’s views about the proper roles of Congress and the President in foreign policy,” Cheney wrote in a minority report.

The prosecutions of Iran-Contra defendants were not for violation of the statutes that forbade the transactions, but for the cover-up. Two of Reagan’s national security advisors, the assistant secretary of state, and high-ranking officials of the Central Intelligence Agency were convicted of charges that included perjury and false statements, destroying or withholding evidence, obstruction of justice, and conspiracy.

Maureen Keating/CQ Roll Call via AP Images

1992: Representative Dick Cheney argued that the Iran-Contra perticipants were right to ignore the statutes.

Shortly before the 1992 election, the grand jury indicted Caspar Weinberger, Reagan’s secretary of defense, on two counts of perjury and one count of obstruction of justice. On Christmas Eve, with less than a month of his presidency left, Bush pardoned Weinberger and five other participants already convicted in the scandal. Both Bush and Barr, who by then was attorney general, said the pardons were Barr’s idea.

“The Iran-Contra cover-up, which has continued for more than six years, has now been completed,” said the special prosecutor in the Iran-Contra case, Lawrence Walsh. Barr said that “people in this Iran-Contra matter have been prosecuted for the kind of conduct that would not have been considered criminal or prosecutable by the Justice Department.” Neither Barr nor Walsh concealed their mutual animosity.

 

BARR DID NOT SERVE IN the George W. Bush administration, but his Iran-Contra ally, Vice President Cheney, carried on the fight for expansive presidential power. The Bush administration claimed the power to ignore hundreds of laws enacted by Congress and signed by the president, in “signing statements” appended to newly enacted legislation, and in OLC opinions for laws already on the books. Congress could override a veto, but not a signing statement or an OLC opinion.

Bush claimed the power to ignore laws like those that forbade the Iran-Contra transactions. He signed an appropriation to support the government of Colombia in the fight against Marxist guerrillas, but issued a signing statement that he could ignore the provision that forbade combat operations by U.S. troops. He signed an appropriation to combat terrorism, but issued a signing statement that he could ignore the provisions that forbade the diversion of funds from authorized programs to secret programs, such as “black sites” where suspected terrorists were held.

An OLC opinion claimed the power to conduct warrantless wiretaps, despite a 1978 law, and signing statements for new legislation claimed the power to ignore limits on surveillance set by Congress. Bush claimed the power to ignore laws that forbade “enhanced interrogation” techniques, practices regarded in international law as torture.

Bush claimed the power to fire executive branch employees who leaked information to Congress, despite statutory whistleblower protections. He claimed the power to ignore requirements to provide information and reports to congressional oversight committees.

Oversight provisions of the Patriot Act required the president to inform Congress how the FBI used new powers to conduct secret searches and to seize documents held by others, to prevent abuse of the statute. “The executive branch shall construe the provisions … that call for furnishing information to entities outside the executive branch,” a signing statement said of the act’s requirement to provide information to Congress, “… in a manner consistent with the president’s constitutional authority to supervise the unitary executive branch and to withhold information.” Bush said he would withhold information if he thought disclosure would “impair foreign relations, national security, the deliberative process of the executive, or the performance of the executive’s constitutional duties,” language almost identical to Barr’s 1989 OLC memo.

The claim of presidential power to ignore laws enacted by Congress was a considered, systematic effort to expand the power of the president at the expense of the powers of Congress and of the courts. The effort was largely successful.

 

DEMOCRATS WON CONTROL OF the House in the 2006 election and I became the chairman of the House Science Committee’s Investigations and Oversight Subcommittee for the last two years of the Bush presidency. We were much more aggressive than most oversight subcommittees. But when the Bush administration used any means necessary to defeat our oversight, they succeeded.

The Government Accountability Office (GAO), an arm of Congress, issued a report on data mining programs at five federal agencies. The report found that none of the programs complied with federal legal requirements for privacy safeguards and data security. The programs were initially intended to identify noncitizens with possible ties to terrorist organizations who applied for visas to enter the United States, but they had grown.

The FBI’s program, in particular, sounded suspiciously like the Defense Department’s controversial Total Information Awareness program, for which Congress eliminated funding in 2003. Even in the immediate aftermath of 9/11, the program sounded too Orwellian for Democrats and Republicans alike. The FBI’s program would collect and correlate information to “identify relationships between individuals, locations, and events that may be indicators of terrorist or other activities of interest.” Identifying possible “sleeper cells” of terrorists would undoubtedly be helpful to law enforcement, but security experts outside of government were skeptical of “predictive” data mining. There were concerns about privacy and civil liberties, data security, and whether a flood of false positives would be more distracting to law enforcement than helpful. I was not reflexively opposed to the program, but I wanted to know more.

Jim Sensenbrenner, the ranking Republican on the subcommittee, and I wrote GAO on June 5, 2007, to ask for more information about the FBI’s program. John Tierney, the chair of the relevant subcommittee of the House Oversight and Government Reform Committee, joined our request.

We wanted to know what information would be collected. The FBI said that the program would collect approximately six billion “records,” but did not say what kinds. We asked how data would be analyzed to identify suspicious conduct, and what was considered suspicious. We asked if the information collected and analyzed would include information about American citizens, and how the program would meet privacy requirements under federal law. Since the FBI sought $12 million in appropriations for the program, to pay for 90,000 square feet of office space and a total staff of 59, our request was well within congressional oversight power. In addition, federal information technology programs had an abysmal history—an FBI computer consultant had recently hacked into the records of the FBI’s witness protection program—and the FBI’s history of surveillance of civil rights activists, among others, was worse.

Ron Edmonds/AP Photo

2003: As George W. Bush’s vice president, Dick Cheney served in an administration that continued the fight for expansive presidential power.

DOJ officials ignored repeated requests by GAO to discuss the program. When DOJ officials finally met with GAO investigators, the meeting was brief and belligerent. DOJ officials claimed that GAO’s request for information involved a national security program, which was “exempt” from GAO’s jurisdiction. That was not true. GAO’s jurisdiction is the same as Congress’s. GAO has employees with the highest security clearances and routinely reviews the most sensitive information on Congress’s behalf. GAO’s capacity to handle national security information was in fact why we asked GAO to conduct the inquiry instead of subcommittee staff. Later, DOJ said that there were no “written plans” that would answer our questions because the program was not yet operational, which was not at all credible.

The power of the purse is Congress’s foundational constitutional power. We wrote Dave Obey, chairman of the House Appropriations Committee, asking to eliminate funding for the program from DOJ’s appropriation. Obey, an inveterate civil libertarian and skeptic of the executive branch, obliged. I expected that DOJ would relent, provide the information that we wanted, and we would restore the program’s funding. Instead, the elimination of the program’s funding went through the House and the Senate without discussion and was signed into law by the president. We never heard about the program again.

Did we really kill the program? Almost certainly not. The Bush administration claimed the power to divert funds appropriated by Congress from approved programs to secret programs not approved or even forbidden by Congress. DOJ almost certainly moved the program to a “dark” part of the FBI’s budget. Executive branch agencies continue to conduct predictive data mining without congressional oversight.

The Savannah River Ecology Lab was established in 1951 to study effects on the environment from the Savannah River nuclear weapons facility, but did other internationally renowned environmental research. The lab was part of the University of Georgia, but the funding was federal. Past research showed that some shortcuts in cleanups were harmless to the environment and saved billions. In 2007, the Department of Energy abruptly eliminated the lab’s funding. The lab had recently released research that toxins in coal-fired power plant emissions contaminated soil and surface water hundreds of miles away. The rumor was that Vice President Cheney ordered the lab’s funding pulled as a favor to the coal industry.

Nick Lampson, chairman of the Science Committee’s Energy and Environment Subcommittee, and I requested that DOE produce documents regarding why they’d pulled the lab’s funding. There were no such documents, DOE responded. There were no emails, no memoranda, no notes from meetings, nothing. They talked among themselves about the funding for the lab, decided to save the money, and moved on to whatever was next. We held a hearing and DOE witnesses testified implausibly that they’d killed the lab’s funding to save money without any bureaucratic analysis of the lab’s work.

DOE’s claim that there were no documents about the decision was as false as anything Rita Lavelle or the Iran-Contra defendants told Congress, but no whistleblower leaked documents that revealed the truth. We were stymied.

 

HOUSE DEMOCRATS DID TAKE one oversight dispute with the Bush administration to court and won, after a fashion. In 2006, DOJ forced nine U.S. attorneys to resign. The circumstances strongly suggested that the administration fired the U.S. attorneys for bringing prosecutions that hurt Republicans politically and for failing to bring prosecutions that might hurt Democrats, such as for bogus voter fraud charges. It was fairly clear that the decision was made at the White House. The House Judiciary Committee subpoenaed the president’s chief of staff, Josh Bolten, and the White House counsel, Harriet Miers.

The Bush administration refused to provide subpoenaed documents or to allow Bolten or Miers to testify. The administration argued that the House had no legitimate “legislative purpose” for the investigation, and no authority, because the power to remove executive branch officials was the president’s alone. The administration added that Bolten and Miers were “absolutely immune” from congressional subpoena.

The House filed a civil lawsuit to ask the court to decide whether the House was entitled to the subpoenaed information, and if so, to order the administration to obey the congressional subpoenas. The trial judge ruled that the forced resignations were within Congress’s authority to investigate. The House investigation was “a broader inquiry into whether improper partisan considerations have influenced prosecutorial discretion … It defies both reason and precedent to say that the Committee, which is charged with oversight of DOJ generally, cannot permissibly employ its investigative resources on this subject.”

The trial judge was even less impressed by the argument that Bolten and Miers had absolute immunity from congressional subpoena. “The Executive cannot identify a single judicial opinion that recognizes absolute immunity for senior presidential advisors in this or any other context,” wrote the trial judge. The only authority the Bush administration could provide for absolute immunity was OLC opinions, a “because I said so” argument. The court said that OLC opinions are “entitled to only as much weight as the force of their reasoning will support,” which was not much at all. One OLC opinion was three pages, had no citation of legal authority, and was “hastily issued on the same day that the President instructed” a senior White House official not to testify. The administration sought to be “judge of its own privilege through the assertion of absolute immunity,” the trial judge said, an argument that “rests upon a discredited notion of executive power and privilege.”

The case languished on appeal for months, however. The public’s attention turned elsewhere, and when the new Obama administration provided subpoenaed information about the forced resignations, abuses of power by the last administration were old news.

 

BARR WAS OUT OF GOVERNMENT through the Clinton, George W. Bush, and Obama presidencies, but remained a constant presence in rightist legal circles. On June 8, 2018, Barr sent an unsolicited memo to Rod Rosenstein, the deputy attorney general to whom Robert Mueller then reported, and to Steve Engel, who headed the OLC, entitled “Re: Mueller’s ‘Obstruction’ Theory.” Trump’s firing of Jim Comey as director of the FBI could not be obstruction of justice regardless of Trump’s motives, Barr argued, because the president’s power to remove executive branch officials is “illimitable.”

Trump’s effort to persuade Comey to “let go” of the investigation of National Security Advisor Michael Flynn was “plainly within his plenary discretion over the prosecutorial function. The Constitution vests all Federal law enforcement power, and hence prosecutorial discretion, in the President” (emphasis in original). The president’s exercise of prosecutorial discretion was “absolute” and “non-reviewable,” even for investigations into the president’s own conduct. “The illimitable nature of the President’s law enforcement discretion stems not just from the Constitution’s plenary grant of those powers to the President, but also from the ‘unitary’ character of the Executive branch itself,” Barr wrote.

Alex Brandon/AP Photo

2019: As Trump’s attorney general, William Barr stonewalls congressional subpoenas with no legal authority other than the flimsy opinions of his own Office of Legal Counsel. The real strategy is to delay any disclosures until after the 2020 election.

Trump liked the sound of “illimitable” power and “plenary discretion.” Or at least, he got the message that Barr would help him do whatever he wanted. Trump appointed Barr to replace Jeff Sessions as attorney general.

Barr turned to OLC for legal authority in the fight against congressional subpoenas. OLC advised that Don McGahn, the former White House counsel, was not subject to Congress’s subpoena power. According to OLC, senior White House officials have “absolute immunity from congressional compulsion to testify about matters that occur during the course of discharging their official duties.” It was the same meager analysis from a decade earlier, still with no legal authority except OLC opinions.

OLC advised that the Treasury Department should not provide the House Ways and Means Committee with Trump’s tax returns, despite a statute that requires Treasury to do so. “The Committee’s authority under [the statute] … may not exceed the constitutional limitations on congressional power, which require that any committee investigation must serve a legitimate legislative purpose … [T]he separation of powers dictates that a congressional request cannot require the agency to close its eyes to overwhelming evidence that a congressional committee’s stated purpose is a pretext for an illegitimate one.” The OLC opinion quoted from one of Barr’s OLC opinions that Congress must “articulate its need for particular materials” before the executive branch will consider what information, if any, to provide Congress.

There is no remotely credible legal authority for OLC’s argument that the executive should decide whether Congress has sufficient legislative purpose for an investigation, and whether Congress’s stated purpose is sincere. And for good reason: Congress cannot function as an independent, co-equal branch of government with information rationed by the executive branch. The Trump administration’s real strategy is to delay any disclosures to Congress until after the 2020 election, just as the George W. Bush administration ran out the clock on the U.S. attorney scandal investigation.

OLC argues that Congress’s investigative authority is “merely the power of the Congress to inform itself of the facts needed to carry out legislative affairs,” not to inform the American people, despite many court decisions that quote Wilson on the “informing function” of Congress. The Trump administration argues that the president should decide what Americans need to know. Do House Democrats need consultants to tell them that they have the better of that political argument?

 

BARR AND OTHERS ON THE RIGHT have sought relentlessly for four decades to concentrate power in the president and strip power from Congress. Barr’s legal arguments sound haughty and scary to all but the most ardent Trump supporters. But Barr is committed to presidential power with or without legal authority and with or without public support. And he will advance presidential power by any means necessary, which includes frivolous legal arguments and dilatory tactics forbidden by court rules and canons of legal ethics, and false testimony forbidden by criminal law.

House Democrats have brought or intervened in lawsuits against Trump or the Trump administration over Trump’s tax returns, his accountant’s records, his bank loans, the refusal of subpoenaed witnesses to testify before Congress, Trump’s diversion of appropriated funds for a border wall, and more. Still, House Democrats’ enthusiasm for the fight does not match Barr’s. House Democrats worry that confrontations with the Trump administration will appear unduly partisan. Elected leaders in a democracy should consider the opinions of their constituents, but the premise of the separation of powers in our Constitution is that members of each branch act vigorously to protect against the concentration of power in the other branches. House Democrats have not acted with the necessary vigor.

Progressives are right to call for the next president to implement progressive policies without new legislation to the extent possible, given the dysfunction of Congress. But it is not that “both sides” favor strong presidential power when their party controls the presidency, and oppose strong presidential power when their party does not, although there is some of that. Progressives want to act openly under the authority of statutes duly passed by Congress. Barr’s view is that the Constitution gives the power to a unitary executive to act with or without Congress’s approval, and to keep secret the executive’s actions.

“The Framers’ idea was that, by placing all discretionary law enforcement authority in the hands of a single ‘Chief Magistrate’ elected by all the People, and by making him politically accountable for all exercises of discretion by himself or his agents, they were providing the best way of ensuring the ‘faithful exercise’ of these powers,” Barr wrote in his memo to Rosenstein and Engel. “Every four years the people as a whole make a solemn national decision as to the person whom they trust to make these prudential decisions.”

That was not the framers’ idea at all, of course. The framers feared, as Madison wrote in The Federalist Papers, that the “accumulation of powers … in the same hands … whether hereditary, self-appointed, or elected, may justly be pronounced the very definition of tyranny.” The distance is short from an executive with “illimitable” discretionary power, even if “elected by all the People,” and strongman rule. The survival of democracy requires diffusion of power, and Congress is also elected, as I vividly recall.

The special-counsel law in effect in the Reagan and Bush 41 administrations expired in 1999, and now DOJ claims the power to decide whether to prosecute contempt of Congress, perjury or false statements to Congress, or obstruction of congressional investigations. Trump administration officials subpoenaed by Congress show little fear of criminal prosecution for contempt. Barr taunted Nancy Pelosi at a public event by asking if she had brought handcuffs.

But House Democrats should aggressively pursue every means available to hold the Trump administration to account. The Supreme Court recognizes an inherent judicial power to appoint special counsel if DOJ fails to prosecute contempt of court. “If the Judiciary were completely dependent on the Executive Branch to redress direct affronts to its authority,” the Supreme Court said in a 1987 opinion, “it would be powerless to protect itself if that Branch declined prosecution.” The same is true of contempt of Congress. House Democrats should demand that the courts empower a special counsel to prosecute Trump administration officials who defy subpoenas, a special counsel appointed not by DOJ, but by Congress.

House Democrats cannot shrink from this fight.

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