Robert F. Jakubowicz: King Donald I
PITTSFIELD — "L'etat, c'est moi," ("I am the state") is a political statement attributed to Louis XIV of France who used it to declare that as king he held all the political power in that nation. This is a statement that can also be used today to describe President Donald Trump's behavior as the nation's chief executive bent on establishing an imperial presidency.
Trump's appointment of William Barr as his attorney general was a big step in that direction. Barr's colleagues and friends in statements reported by the media have said that he is a strong believer that the framers of the Constitution intended to create a presidency with vast powers, including absolute control of the executive department. They have also said that he believes that the Mueller investigation was an attempt to curtail that power and that he has come forward to join the Trump administration to protect presidential powers and not necessarily Trump.
But with Barr at the head of the Justice Department, the Trump administration is stonewalling all congressional requests and subpoenas, launching an investigation of Mueller's investigation, misinforming the public about the Mueller report's conclusion, and touting a legal opinion by Barr about a missing element of the crime of obstruction of justice that most lawyers disagree with. This all sounds like Barr is acting more like Trump's lawyer to exonerate him than protecting presidential powers.
A group of politically high profile conservative lawyers, including President Reagan's Attorney General Edwin Meese and Robert Bork, a Watergate prosecutor, have been promoting a Constitutional opinion called "unitary executive." Under that theory, the president has the absolute power to control all the executive agencies, including the Department of Justice (DOJ) where Barr acts for the president in supporting the stonewalling of Congress and the reinvestigation of Russian interference in the last presidential election. It is a theory, that the president possesses the power to control the entire executive branch. It is based on the brief wording in Article II of that document that the "executive power shall be vested in a president." Most lawyers and I disagree with this theory because the structure of the government in the Constitution is definitely intended as a separated check and balance system between its three branches which is the antithesis of the absolute power view expressed by this theory.
The real danger in this to the nation's democracy, based on what happened during the presidency of George W. Bush, is that all it seemingly would take for Trump to establish an imperial presidency is a Justice Department lawyer's made-to-order legal opinion, no matter how flawed. John Yoo, a DOJ lawyer in its Office of Legal Counsel OLC, was requested by the Bush administration to write an opinion detailing the president's power in his war against terrorism. Yoo wrote that as commander-in-chief, the president had very broad powers and any ambiguity, constitutional or otherwise, was to be resolved in favor of full presidential power. Powers, which according to Yoo, included interrogation with torture, breaking into American homes and taking away suspected illegal combatants to be held indefinitely, spying on Americans without court orders and stifling speech by cracking down on critics. But Bush did not fully act on them.
These OLC opinions, in general, are like corporate lawyer opinions that are written at the request of corporate heads to justify a corporate decision and to protect the corporate leader. For example, the problematic opinion about not indicting a sitting president is one of these opinions. That opinion protects a president without stating a good legal reason for such a conclusion. In essence, it simply declares that the indictment and trial of a sitting president would take up too much of his time and interfere with his other presidential duties. It apparently played a role in Robert Mueller's lack of a decision as to whether Trump committed an indictable offense.
Trump and Barr are now in positions to request and obtain one of these opinions regarding the vast powers the president claims he has. Some of these opinions are flawed and clearly political as evidenced by what happened to Yoo's opinions. Just five days before former President Obama's inauguration, Bush's acting head of the OLC, Steven Bradbury, disavowed them. He said they were flawed and no longer supported by the Justice Department. The DOJ's office of Professional Responsibility also reportedly prepared a highly critical report of Yoo and his opinions.
The chilling thought is that such an opinion can be written for Trump by lawyers at the OLC, hired by the president and Barr, to confirm vast, unwritten constitutional powers for the presidency. Then if the president decides to acts on it, will the nation's democratic institutions (public and private) finally act to stop him?
Robert "Frank" Jakubowicz is a regular Eagle contributor.
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