Sunday, May 10, 2020

William Barr's theory of the Constitution

Many months ago, when the impeachment controversy was just getting going, I published a piece here about different kinds of grounds for impeachment.  It argued, among other things,. that we had lost sight of one of the principal grounds for impeachment as recognized by the Founding Fathers: the use of legitimate powers for corrupt purposes.  Presidents and other officials, I argued, might take actions that did not in themselves violate the criminal code, but which were designed to achieve a corrupt aim having no relation to the public interest.  That was what Donald Trump did when he asked the president of Ukraine to undertake an investigation of Joe Biden's son Hunter and of supposed Ukrainian intervention in the 2016 election.  The same issue lies behind Attorney General Barr's attempt to drop the prosecution of former National Security adviser Michael Flynn for lying to the FBI.  Here some background is in order.

On December 29, 2016, the Obama Administration announced new sanctions against Russia in retaliation against Russian interference in the recent presidential election, which may have resulted in the election of Donald Trump.  On that same day, Russian Ambassador Kislyak spoke to Flynn several times in international phone calls, since Flynn was vacationing in the Dominican Republic.  Flynn evidently encouraged  the Russian government not to retaliate in its turn against the new sanctions and promised that the Trump administration would revisit the matter as soon as it came into office.  In subsequent weeks, when Russia's role in the election was becoming more and more controversial, Vice President-elect Pence asked Flynn if he had discussed sanctions with Kislyak, and Flynn said no.  He said no again when the FBI questioned him about it a few days later, thereby violating the law.  That led to his almost immediate resignation as National Security Adviser, Trump's request to FBI Director Comey to "let Mike Flynn go," Flynn's prosecution, and his guilty plea.  The guilty plea--rather than a full trial--had another consequence. It allowed the Trump Administration not to release the evidence of Flynn's guilt, the transcript of his conversations with Kislyak.  We still don't know what he told the Ambassador the Trump administration would do.

Now the reason that AG Barr and his new team of prosecutors--who unlike the old ones are dedicated to building up the image of President Donald Trump and trying to destroy anyone who stands in their way--have asked the Judge to dismiss the case is not that they dispute that Barr lied to the FBI.  They are arguing, in the first instance, based on a released internal memo,. that the bureau agents knew that he was likely to lie because he had already lied to the Vice President, and that, in their view, constituted some form of entrapment.  This obviously makes no sense.  More importantly, however, they are arguing that the prosecution should be dropped because the investigation should never have been opened in the first place.  This is what Fox News, the White House, and the President himself have been saying for three years, arguing that it was only a false dossier written by a former British intelligence operative and financed, they say falsely, by Hillary Clinton, that led to the investigation.  The same argument, obviously, could be applied to the prosecution of all the people convicted by the Mueller investigation, and Barr and Trump are probably planning to make it when Trump, win or lose, pardons Roger Stone and perhaps Paul Manafort after the election.

A more impartial view of the investigation would go like this.  The FBI knew that the Russians had been using social media and a hack of the Democratic National Committee's computers to help Donald Trump. They also knew about some contacts between Trump campaign supporters or staffers  and operatives within the Russian effort, including Julian Assange of Wikileaks.  They had every reason to ask whether Trump operatives (nicluding Flynn) had promised the Russians anything in return.  The transcripts of Flynn's conversations with Kislyak about sanctions certainly fell within the scope of that inquiry.

A really interesting question emerging from all this, I think, is why Flynn lied to Pence.  It seems quite possible that he--like Rudy Giuliani a year or two later regarding Ukraine--was acting directly on behalf of President Trump, who didn't want other leading figures in the Administration to know about his dealings with the Russian Ambassador.  We don't even know who called whom between Pence and Kislyak, as far as I can tell, and who put them in touch.  We do know that Flynn thought he had to conceal what they had talked about from the Vice President-elect and from the FBI.  That is important.

What Barr is really suggesting, however, it seems to me, is that President Trump, even before taking office, had every right to say anything he wanted to the Russian Ambassador, just as Trump's defenders argued that he had every right to ask the President of Ukraine to investigate Biden. The theory of the "unitary executive" which Republicans have invented in recent decades, seems to hold that the President can use all his powers, including the power to communicate with foreign governments, in any way that he chooses, without any interference from the other branches of government.  Yet the impeachment clause of the Constitution proves that this was not what the framers intended, and as I showed in my earlier piece, "high crimes and misdemeanors," a term borrowed from British practice, included both the corrupt and the incompetent use of executive power.

From 1789 onward, Congress has established executive departments for specific purposes, and their appointed and permanent officers serve to carry those purposes out, not to slavishly execute the will of whoever happens to be in the White House. That is the precedent that both George W. Bush and now, Donald Trump, are trying to overturn.  Had the Republican Party earlier this year respected the original purposes of the Constitution, Trump would no longer be President.  It now rests with the American people to remove a President and an administration that do not understand or respect the Constitution that must govern their behavior.

2 comments:

Bozon said...

Professor
Interesting post.
The Constitution a slender reed in the wind.
This is all confusing of course. Here's one pasage:
"It argued, among other things,. that we had lost sight of one of the principal grounds for impeachment as recognized by the Founding Fathers: the use of legitimate powers for corrupt purposes. Presidents and other officials, I argued, might take actions that did not in themselves violate the criminal code, but which were designed to achieve a corrupt aim having no relation to the public interest. That was what Donald Trump did when he asked the president of Ukraine to undertake an investigation of Joe Biden's son Hunter and of supposed Ukrainian intervention in the 2016 election. The same issue lies behind Attorney General Barr's attempt to drop the prosecution of former National Security adviser Michael Flynn for lying to the FBI. Here some background is in order...." DK

Flynn's conversation with Kysliak was before Trump was elected (improper but not then impeachment material; maybe Logan Act weirdness), not the same issue, perhaps, as impeachment.

I fail to see how Barr arguing FBI interrogation, knowing Flynn's post inauguration lie to VEEP, cannot be seen as entrapment. Have not researched this though.

Have to reread this several times.

All the best

Down below, you mentioned Barr meaning Flynn.

Bozon said...

Professor
it seems to me that branches of government have been moving in directions against one another for a long time now, call it a separation of powers power grab. You have set out the unitary executive thesis. It has ideological and political underpinnings I am sure.

Likewise, the judiciary has also been moving, it seems to me, to take over areas of justiciable matters previously ceded or assumed, with or without objections, by other branches, quasi judicial proceedings of all kinds, administrative procedure itself perhaps, using jurisprudential and constitutional arguments, expressed in such forms and issues as the distinction between substance and procedure, and the procedural requirements, limitations, and judicial review requirements which judiciaries now increasingly seek to impose on collegial decisionmaking of both elective and appointive executive, and also legislative boards of all kinds.

Judges enjoy long or lifetime tenure, sometimes, and since at least the late 19th Century have been on the march, from an original position of limited power and relative weakness within the state and federal separation of powers constellation.

One can point also to the proliferation of legislative encroachments on the executive branch, joined at the hip in terms of funding from the beginning, described in your post, for more control and oversight by congress for which you heatedly argue, and against which the Republicans seem the most vociferous to denounce....

Legislation is hardly the only kind of sausage, usually called simply pork, that has always been made in Washington.

All the best