People in the news

David Barron

Deputy Assistant Attorney General, Office of Legal Counsel

(Phil Farnsworth/
Harvard Law School)

Why He Matters

Barron got more responsibility than he bargained for when he became deputy assistant attorney general at the Obama Office of Legal Counsel (OLC). That's because his expected future boss, Dawn Johnsen, was stuck in confirmation purgatory, awaiting a Senate vote for over year.

While Johnsen sat on the sidelines, Barron headed the key office. Then, in April 2010, Johnsen withdrew her name from consideration for the post because of controversy over her views, leaving Barron as acting assistant secretary OLC for the foreseeable future.

Read more

Background

At a Glance

Career History: Professor at Harvard Law School (2004 to 2009); Assistant Professor at Harvard Law School (1999 to 2004); Attorney Adviser at the Office of Legal Counsel (1996 to 1999); Clerk for Justice John Paul Stevens (1995 to 1996); Clerk for Judge Stephen Reinhardt (1994 to 1995)
Hometown: Washington, D.C.
Alma Mater: Harvard College, A.B. (history), 1989; Harvard University, J.D., 1994

Spouse: Juliet Kayyem
DC Office: U.S. Department of Justice 950 Pennsylvania Avenue, NW, Washington, DC 20530
Web site

Path to Power

Barron grew up in Washington, D.C., where his father Jerome was dean of George Washington University Law School and his mother Myra was a Rockville, Md., attorney who was an expert in affordable housing and community-development law.

Barron graduated from Harvard University with a degree in history. After working for two years as a newspaper reporter for the Raleigh News & Observer, he returned to Cambridge, Mass., for law school, graduating in 1994. He clerked for Judge Stephen Reinhardt on the Ninth Circuit and then for U.S. Supreme Court Justice John Paul Stevens.

Read more

The Issues

In his decade-long career in academia, Barron has written extensively on local government and administrative law, co-authoring an article on the latter with U.S. Supreme Court nominee Elena Kagan while they were both professors at Harvard.

But Barron received much more attention for the article he wrote criticizing the Bush administration's expansive view on executive power during the "war on terror." Barron and other former OLC officials signed a statement, written by Dawn Johnsen, comparing the advice of President Bush's OLC attorneys to that of "a mob lawyer to a mafia don on how to skirt the law and stay out of prison."

Read more

Executive Power

"They have alarmingly narrow views of executive power," an anonymous former Bush official told Politico, talking about Johnsen, Barron and fellow Clinton Deputy Assistant Attorney General Martin Lederman.

One thing is for certain: Barron's view of executive power is certainly more narrow than that of the people who held the office before him.

In 2008, Barron teamed with Lederman, then a Georgetown law professor, to try to reframe the discussion of executive power in the context of the "war on terror."

Since the Korean War, executive power has been divided by constitutional scholars into three categories: when Congress supports presidential action, when Congress is silent and when Congress opposes presidential action. During President George W. Bush's administration, lawyers at OLC argued either that congressional authorization of the war put the president in the first category; or that Congress couldn't interfere with the president's authority as commander-in-chief to conduct a war, forcing the analysis into the second category.

Barron and Lederman argued that the president's power is actually at its "lowest ebb." They said the president's authority for actions such as interrogations is actually limited by other congressional statutes, such as the Uniform Code of Military Justice and a section of the U.S. Code that bans torture. "The Bush Administration has claimed the constitutional power to defy a number of extant statutory restrictions on executive war powers that would otherwise cabin the Commander in Chief's discretion," they wrote.

Limits on executive power was a hot issue during the Bush administration because of fights over detention at Guantanamo Bay, torture and unauthorized wiretapping, and it will likely remain an important constitutional question as the wars continue.

In the spring of 2010, The New York Times described a scene at OLC where Barron was forced to mediate a discussion about the constitutionality of detaining al- Qaeda supporters who were picked up off the battlefields. After a heated debate between State Department and Pentagon lawyers, Barron hedged, finding another reason to detain the suspect.

Local Government

A large chunk of Barron's academic work has focused on improving local government, an area in which his mother was an expert. He has largely argued that increased local power can be used to combat issues such as urban sprawl.

In a Harvard Law Review article titled "Retaking Home Rule," Barron contends that anti-sprawl reformers wrongly blame home rule (when states give autonomy to cities and suburbs to regulate their areas) for escalating the issues associated with sprawl, such as racial and economic segregation and traffic.

Somewhat counterintuitively, Barron calls for more home rule, arguing that some limits on home rule "preclude[s] local governments from...enacting regulatory measures - ranging from inclusionary zoning ordinances to creative antidiscrimination laws - that would help overcome the development pattern characteristic of sprawl."

Similarly, in a 2006 article in The Yale Law Journal, Barron argues that cities should challenge the constitutionality or refuse to enforce state laws in situations when doing so would expand local decision-making - as opposed to when it would bind other municipalities to a singular interpretation.

Throughout much of his scholarly work, Barron argues that increased local control is important in certain situations. He wrote a comprehensive book on local government titled "City Bound" in which he and his co-author, Harvard Law School professor Gerald Frug, "aim to move conceptions of local power away from a stale dichotomy between plenary state authority over [municipalities] and the equally unrealistic image of absolute local autonomy."

And in 2005, when many legislatures were criticizing the Supreme Court decision in Kelo v. New London that allowed cities to use eminent domain to seize private property to further economic development, Barron was a vocal supporter of the benefits of eminent domain.

He criticized those legislatures that tried to limit cities' power. "Go around Lincoln Center area, it's not all government owned," he told NPR. "Go around the Inner Harbor when you enjoy the crabs that you eat there or the bowl of clam chowder that you have there and you're looking out the over boats and you're enjoying yourself strolling through those stores. That is a public-private partnership and it came about through an exercise of eminent domain."

ACORN

At the end of 2009, Barron took some heat from conservatives when the Justice Department released an opinion he wrote saying the government should pay the community organizing group ACORN for contracts made with the group before Congress passed a law banning it from receiving federal money.

Though Barron has no connection to ACORN, conservatives seized on the memo. Rep. Darrell Issa (R-Calif.) described the memo as "political cronyism."

The Network

Barron is married to Juliet Kayyem, a former Harvard professor and terrorism expert who is assistant secretary for intergovernmental programs at the Homeland Security Department.

He worked with Dawn Johnsen and deputy assistant attorney general Martin Lederman at the Office of Legal Counsel under Bill Clinton, and the three stayed close as they became professors. Barron and Lederman wrote a law review article together about executive power in 2008. He is also familiar with many members of Harvard academia that moved from Cambridge to Washington after Obama became president such as Elena Kagan, Dan Meltzer and Cass Sunstein.

Campaign Contributions

Barron first donated $250 to Hillary Rodham Clinton in 2007 but eventually contributed $1,500 to Barack Obama. He has also donated to Howard Dean, Sen. John F. Kerry and the DNC.

Additional Resources