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The Feud Between Trump and Barr Is a Grand Illusion

The sad truth is that the two men are as simpatico as ever in pursuit of their jointly held goal of executive supremacy.

President Donald Trump and Attorney General William Barr. (Photo: U.S. Department of Justice, courtesy of Wikimedia)

President Donald Trump and Attorney General William Barr. (Photo: U.S. Department of Justice, courtesy of Wikimedia)

Don’t place much stock in the purported feud between Donald Trump and Bill Barr. It’s just an illusion. 

The sad truth is that Trump and Barr are as simpatico as ever in pursuit of their jointly held goal of executive supremacy. The differences between the two men are largely a matter of demeanor, vocabulary, and erudition.

Although Barr told ABC News earlier this month that Trump’s tweets about the Roger Stone case were making it “impossible” for him to do his job, the Department of Justice has officially squelched rumors that the President’s social media proclivities have caused the Attorney General to consider resigning.

According to the Associated Press, “many close to Trump” are openly speculating that Barr’s talk of stepping aside is really just an attempt to “quell an internal uproar at the Department of Justice and bolster his own reputation.”

The sad truth is that Trump and Barr are as simpatico as ever in pursuit of their jointly held goal of executive supremacy. The differences between the two men are largely a matter of demeanor, vocabulary, and erudition.

When Trump declared over the summer that, under Article II of the Constitution, “I can do whatever I want,” and when he told reporters earlier this week that he was the nation’s chief law-enforcement officer, he was channeling Barr’s more refined belief in what legal scholars call the theory of the “unitary executive.”

The unitary executive theory has long been a favorite of the radical right. It has its roots, as Trump implied, in Article II, Section 1 of the Constitution, which states: “The executive power shall be vested in a President of the United States of America.”

Unfortunately, the unitary executive theory is not easily dismissed, as the Constitution indeed establishes a single-person executive, as opposed to a committee. Nonetheless, zealots like Barr hold distorted positions on the President’s Article II powers. As professors Karl Manheim and Allan Ides of Loyola Law School, Los Angeles, observed in an oft-quoted 2006 essay:

“[T]he theory of the unitary executive is anything but an innocuous or unremarkable description of the presidency. In its stronger versions, it embraces and promotes a notion of consolidated presidential power that essentially isolates the Executive Branch from any type of Congressional or judicial oversight. And it is much more than an academic theory. Rather it is an operative way of thinking about and applying Executive Branch power that has had and will continue to have real-world consequences for our republic . . . .”

The paper goes on to say: “At its extreme, unitarianism holds that executive power is as broad as the executive says it is. Or, simply put, [as Richard Nixon famously said,] if the President does it, it is not illegal.”

While Presidents from Washington onward have sought to expand their authority, the unitary theory was first articulated as an explicit doctrine during the presidency of Ronald Reagan, according to Manheim and Ides. Among the idea’s earliest proponents was Reagan-era Attorney General Ed Meese. Trump awarded Meese the Presidential Medal of Freedom in October.

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Barr was especially concerned about blunting Congressional efforts to regulate the President’s power to appoint and remove federal officers and employees at will, and to oversee the conduct of foreign affairs.

Barr joined the unitary theory bandwagon in 1989, at the outset of the George H.W. Bush Administration. Following his appointment as an Assistant Attorney General for the Office of Legal Counsel, Barr wrote a ten-page analysis aimed at combating what he claimed were “the ways Congress most often intrudes or attempts to intrude into the functions and responsibilities assigned by the Constitution to the executive branch.”

Barr was especially concerned about blunting Congressional efforts to regulate the President’s power to appoint and remove federal officers and employees at will, and to oversee the conduct of foreign affairs. Such legislative meddling, he contended, “unconstitutionally infringe[s] upon the unitary executive and must, therefore, be resisted.”

Barr restated his extreme views on presidential power in an unsolicited memorandum he sent to the Justice Department in July 2018, criticizing the work of Special Counsel Robert Mueller. In it, he wrote:

“The Constitution itself places no limit on the President’s authority to act on matters which concern him or his own conduct. On the contrary, the Constitution’s grant of law enforcement power to the President is plenary. Constitutionally, it is wrong to conceive of the President as simply the highest officer within the Executive branch hierarchy. He alone is the Executive branch. As such, he is the sole repository of all Executive powers conferred by the Constitution.” [Emphasis in the original.]

Whether or not Barr intended the memo to serve as a job application, as some observers have suggested, Trump selected him to replace Jeff Sessions, whom the President dismissed for failing to stand up to Mueller.  

“Where’s my Roy Cohn?” Trump reportedly lamented at the height of his dissatisfaction with Sessions in early 2018, referring to the infamous attorney who once served as a legal adviser to Senator Joseph McCarthy and later represented Trump in private practice. In Barr, Trump has had his wish fulfilled. 

Since his confirmation by the Senate in February 2019, Barr has succeeded in eroding the post-Watergate independence of the Justice Department, enabling Trump to transform the department into what former Deputy Attorney General Sally Yates called the President’s “personal grudge squad” in a recent op-ed in The Washington Post.

Trump’s interference in the sentencing of Roger Stone is merely the dark harbinger of even more sinister moves to come. With the threat of impeachment behind him and with the full might of Barr and the Department of Justice at his disposal, we can expect more pardons of the President’s cronies and supporters, ultimately including Stone himself. We can also expect more purges of non-compliant officials inside the Department of Defense, the diplomatic corps, and the intelligence community; more attacks on the judiciary; and even more resistance to Congressional oversight.

And that’s only in the run-up to the November election. What Trump will feel entitled to do in a second term will likely be worse.

So, don’t count on the “feud” between Trump and Barr to yield any positive changes in the administration of justice. Their tiff is more like a marital spat than a divorce. They are both committed to the relationship and to the task, quite literally, of ending democracy in America as we know it.

Bill Blum

Bill Blum

Bill Blum is a former administrative law judge and death penalty defense attorney. He is the author of three legal thrillers published by Penguin/Putnam and a contributing writer for California Lawyer Magazine. His non-fiction work has appeared in a wide variety of publications, ranging from The Nation and The Progressive to the Los Angeles Times, the L.A. Weekly and Los Angeles Magazine.

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