Barr claims in his memo that presidents can’t be prosecuted for obstruction of justice on a basis of acts that don’t strictly involve impairment of evidence. Only inherently “bad acts” — such as destroying evidence or tampering with witnesses — are prosecutable, he asserts.
According to Barr, when the House Judiciary Committee drafted its articles of impeachment in July 1974, “the acts of obstruction alleged against” Nixon “were all such bad acts involving impairment of evidence.”
Barr is flat-out wrong. We had numerous grounds for Nixon’s impeachment for obstructing and impeding the investigation into the Watergate break-in that did not involve evidence impairment in the narrow way Barr defines the term. I will cite just two.
One ground for impeachment was that Nixon ordered the firing of Watergate special prosecutor Archibald Cox, who was seeking White House tapes of presidential conversations. Whether the president had the power to fire Cox was irrelevant to the impeachment. Instead, the issue was that the president could not use his power to undermine, or halt, an investigation into his own possible criminal conduct or that of his aides. Although the committee explicitly was not bound by the obstruction-of-justice statute, it still viewed Cox’s firing as an effort to squelch the criminal investigation. As such, it was an abuse of power and an obstruction — and impeachable. It is worth noting that Trump’s firing of FBI Director James B. Comey — for insisting on continuing the Russia investigation — seems to fall squarely under this precedent.
Another example of Barr’s revisionist history turns on Nixon’s use of presidential pardons. One of the grounds for Nixon’s impeachment was that he authorized offers of presidential pardons to the Watergate burglars to keep them from telling prosecutors about the involvement of higher-ups in the break-in. While no one contested the president’s broad pardon powers, the committee voted to impeach Nixon for using those pardon powers to interfere with the criminal investigation. Trump seems to have similarly used those powers with regard to his campaign chairman, Paul Manafort, and is reported to have made or authorized pardon offers to other aides for purposes of gaining silence. Here again, Trump’s conduct appears to replicate the impeachable misdeeds of Nixon.
As troubling as Barr’s misguided and clumsy attempt to rewrite history is his broader effort to elevate the president into a kind of unaccountable monarch. This is part of a quiet Republican campaign over the past generation to locate in the Constitution grounds for a powerful “unitary executive” who is virtually above the law. For Barr, presidential acts such as offering pardons or firing prosecutors cannot be prosecuted even if they have the effect of interfering with an investigation of the president. The reason, according to Barr, is that the president’s underlying motives in offering the pardons or in firing the officials may not be scrutinized. Why can’t they be scrutinized? For Barr, allowing such questioning undermines the very foundation of the presidency, and the executive branch of government.
But merely to describe Barr’s position is to show its absurdity. Take the case of Nixon, who was named an unindicted co-conspirator by the Watergate grand jury during his presidency. Neither the presidency nor the country fell apart as a result. Moreover, there is nothing in the Constitution that puts the president beyond questioning or accountability. (The framers knew how to prevent questioning when they wanted to — they provided that members of Congress “shall not be questioned in any other place” for any speech or debate in the House or Senate.) The Constitution is very plain that a president may be prosecuted for crimes committed while in office. The Constitution doesn’t hem that provision of accountability at all — there is no language restricting the scope of the prosecution or of the investigation. Indeed, the framers wanted to make it crystal clear that even impeachment was not a substitute for prosecution. Barr’s theory is derived from thin air, or maybe not even that.
Barr’s memo, his apparent meal ticket to the attorney generalship, is nothing more than a transparent effort to rewrite history to create a president who is above the law. That is not what the framers intended, and for that reason he should not be confirmed.