“He lied to Congress. If anybody else did that, it would be considered a crime. Nobody is above the law — not the president of the United States, not the attorney general.”
With these words, describing Attorney General William Barr’s testimony to Congress last week, House Speaker Nancy Pelosi sent shockwaves through official Washington. It is not every day, after all, that the speaker of the House accuses the nation’s highest law enforcement official of breaking the law.
Pelosi is not wrong. When Barr testified last month, it was clear that he had actively sought to mislead Congress about the conclusions of the Mueller Report.
But that is only part of the problem with Barr. As his Senate appearance last week made clear, the attorney general holds dear to a radical, undemocratic view of presidential power — one that would place presidents (and their actions) above the law.
On Wednesday, Barr said that if a president believes a judicial investigation was “not well-founded, if it was groundless . . . and based on false allegations, the president does not have to sit there constitutionally and allow it to run its course.” According to Barr, “the president could terminate that proceeding and it would not be a corrupt intent, because he was being falsely accused and he’d be worried about the impact on his administration.” Barr further argued that “we now know that he (Trump) was being falsely accused.”
There is so much to unpack here. First is the fact that the president was not falsely accused of committing a crime. As hundreds of former prosecutors noted Monday in an open letter, if Trump was not president he would have been indicted for obstruction of justice.
But the astounding part of Barr’s statement is that it wouldn’t necessarily matter if Trump was the subject of a legitimate investigation (which he was). By the logic of the attorney general, the president can terminate a judicial proceeding if he believes that he’s been “falsely accused.”
This view of presidential power turns the entire notion of democratic accountability and the rule of law on its head.
In Barr’s ideal world, the president could put the kibosh on not just investigations that touch on the president’s actions, but also those that have an “impact on his administration.” In effect, Barr is stating a view of presidential power that places the president and his administration above the law — so long as the president makes a determination that a criminal investigation is groundless and based on false allegations. This means that Richard Nixon could have lawfully shut down the Watergate investigation. Same goes for Bill Clinton and his conduct.
Barr’s views, though extreme, are not out of the norm for Republican administrations. During the Bush administration, Department of Justice lawyers argued that the inherent authority of the president to wage war would allow him or her to station US troops on American soil, ignore congressional mandates, international treaties, and domestic laws banning the use of torture or eavesdropping on American citizens.
Barr’s argument is the logical extension of these arguments, except he would actually go a step further down the road of authoritarianism. During the Bush administration, lawyers were making arguments about the president’s authority in time of war. Barr is saying that even in peacetime, the president can act as judge and jury when it comes to criminal investigations — and he can do so simply by whim. Richard Nixon once famously said that if the president does it, it’s not illegal. Barr would operationalize that toxic view.
In recent months, Republicans have thrown around the words “extreme” and “radical” to describe Democratic policy initiatives, such as the Green New Deal or Medicare for all. During the Obama years, they regularly accused the president of undermining the Constitution and dangerous executive overreach. Not surprisingly, they’ve been notably silent when it comes to condemning the presidential power play that Barr is endorsing.
Yet, nothing in what Obama did — or what congressional Democrats are proposing — is as threatening and antidemocratic as what the attorney general is suggesting. In Barr’s conception of executive authority, the president might be democratically elected, but he or she would be allowed to rule as an authoritarian, unconstrained by the legal system or by the notion of being answerable for their actions. It’s bad enough that the attorney general is acting like the president’s personal lawyer and perverting the Department of Justice to do Trump’s bidding. Far worse is that if Barr had his way, it would make such behavior a permanent feature of the Trump presidency — and every Republican president who followed him.
Michael A. Cohen’s column appears regularly in the Globe. Follow him on Twitter @speechboy71.