Trump’s AG pick has argued presidents have robust powers

Eric Tucker Associated Press
Tuesday, January 8, 2019

WASHINGTON — President Donald Trump's nominee for attorney general, William Barr, once advised that a president didn't need Congress' permission to attack Iraq, that the U.S. could arrest a foreign dictator and capture suspects abroad without that country's permission.

It's an expansive view of presidential power and an unsettling one for Democrats as the Senate holds a confirmation hearing next week for Barr, who served in the 90s as AG for President George H.W. Bush.

Democrats already fear that Barr, if confirmed, would be overly deferential to Trump in a position where legal decisions aren't supposed to be guided by political considerations. Trump has made clear he demands loyalty from an attorney general, repeatedly haranguing and ultimately forcing out his first one, Jeff Sessions, for not protecting the president from the Russia investigation.

Barr's philosophy on presidential power adds to those concerns. As attorney general and in the years since, Barr has expressed his belief that presidents have broad authority, limiting the power of Congress and courts to hold them in check.

Those views were evident in an unsolicited memo Barr sent the Justice Department last year arguing Trump could not have obstructed justice by firing ex-FBI Director James Comey. Barr contended presidents cannot be investigated for actions like firing subordinates that they're lawfully permitted to take, arguments similar to those of Trump's lawyers. That document raised Democratic alarms that Barr could influence special counsel Robert Mueller's investigation in ways that protect Trump.

"This view that anything the president does pursuant to his constitutional authority can never be a crime, I think, is very troubling, very alarming and very disconcerting," said Notre Dame law professor Jimmy Gurule, a former Justice Department colleague.

If confirmed, Barr would be positioned to oversee the Mueller investigation as pivotal decisions await that could test the scope of presidential authorities and land in court. Those include whether Trump can be subpoenaed if he won't answer additional questions, and whether to disclose to Congress whatever report Mueller produces. Barr hasn't publicly discussed those questions, but his memo criticized Mueller's theory of obstruction as "fatally misconceived."

"Bill is a learned man and is a capable lawyer, and he knows how to make the arguments in the trenches for the construction of a statute in favor of the president's authority," said Pepperdine law professor Douglas Kmiec, who preceded Barr as head of the Justice Department's legal counsel office. Barr, he said, exhibited a demeanor of, "'The president must be right, let's find a way to make it so.'"

Barr has rejected any suggestion of being a rubber stamp for presidential powers, citing instances in which he said the White House lacked authorities for a line-item veto or to index the capital gains text to inflation. He noted in one 1992 speech the president's responsibility to "advance responsible positions of law," saying the government will lose ground through unreasonable stances.

"Our view has been that if we go into court with untenable positions and lose, we ultimately weaken the office of the President," he said.

It was in the legal counsel office he once led that Barr provided some of his most meaningful guidance: opinions that empowered FBI agents to kidnap fugitives overseas and that justified the invasion of Panama and arrest of dictator Manuel Noriega. The night President George H.W. Bush gave the invasion order, Barr was playing bagpipes at Attorney General Richard Thornburgh's Christmas party, then scurried to the White House.

As attorney general between 1991 and 1993, Barr blessed Bush's desire to pardon Reagan administration officials in the Iran-Contra scandal as within the president's authority.