The Barr memo, as it came to be known, was considered so challenging to congressional prerogatives that his Democratic successor in the Office of Legal Counsel, Walter E. Dellinger III, made it a priority six years later to replace the opinion with one he considered more measured.
“It was a very high priority to supersede the Barr memo with one that recognized the authority of Congress and took a more nuanced view of separation of powers,” Dellinger said in an interview.
“I don’t know anyone that has a more robust view of inherent presidential authority than Bill Barr,” Dellinger added. “There is nobody who is to his right on this issue.”
Embracing a theory that the Constitution grants presidents sweeping authority, Barr is part of a group of conservative intellectuals who have been leading the charge to expand the powers of the executive branch over the past four decades. The doctrine, which gained support amid a backlash against post-Watergate constraints on the presidency, is back in the fore as President Trump and Congress are locked in a bitter fight over the bounds of executive power.
During his first tour at the Justice Department, Barr issued a controversial secret opinion saying that the president could order the FBI to take people into custody in foreign countries, a ruling that paved the way for the arrest in Panama of then-leader Manuel Antonio Noriega.
Two years after that, Barr offered another far-reaching interpretation of presidential power, advising President George H.W. Bush that he did not need congressional approval to invade Iraq. Later, as attorney general, he backed Bush’s pardons of six Reagan administration officials charged in the Iran-contra investigation, a move the independent counsel described at the time as “a coverup.”
Now, back at the helm of the Justice Department under Trump, Barr is in a singular position to put his philosophy into action. In just a few months, he has made his imprint, defending the White House as it pushes a hard-line immigration policy, defies congressional subpoenas and boldly asserts the reach of executive privilege. Barr recently appointed a U.S. attorney to investigate the origins of the special counsel’s probe into Russian interference in the 2016 election, a probe for which Trump has publicly called.
Critics say Barr is providing the intellectual framework to enable Trump’s view of an imperial presidency and stonewall legitimate requests for information from Congress.
Richard Ben-Veniste, a former Watergate prosecutor, called the administration’s attempts to buck subpoenas “a serious escalation of the president’s effort to defy congressional oversight of the executive branch” and “a deep erosion of the fundamental precepts of the balance of power.”
“You can’t have a president acting as though he is the monarch,” he said.
Barr declined a request for comment.
A Justice Department official, who spoke on the condition of anonymity to describe the attorney general’s thinking, said that in his 40-year career, Barr “has been a respected and leading legal voice and his views reflect mainstream conservative legal thought.”
Barr has not been alone in advocating robust executive powers, a view articulated by Edwin Meese, attorney general under President Ronald Reagan; the late Supreme Court Justice Antonin Scalia and Watergate-era Solicitor General Robert Bork, among others.
But Barr popularized, codified and interpreted the concept, helping put the theory into practice, legal experts and colleagues said.
“Barr’s great contribution is that he tried to make this theory a regular feature in the executive branch,” said John Yoo, who worked in the Office of Legal Counsel in the George W. Bush administration and wrote memos sanctioning the use of enhanced interrogation techniques, which many consider torture, after the Sept. 11, 2001, terrorist attacks.
At times, Barr has pulled back from his role as the defender of the presidency. He was a backer of independent counsel Kenneth W. Starr when he was investigating President Bill Clinton, saying criticism by Clinton allies appeared to be an attempt to impede the investigation. He took a different stance when it came to assessing Trump’s attacks on the investigation by special counsel Robert S. Mueller III.
“There is substantial evidence to show that the president was frustrated and angered by a sincere belief that the investigation was undermining his presidency, propelled by his political opponents, and fueled by illegal leaks,” Barr said last month at a news conference before the release of the Mueller report.
'Do what you have to do'
Barr began his government service as a CIA analyst and legislative affairs officer during the 1970s, when the agency was being investigated by Congress for excesses exposed during the Nixon era. He then served in the Reagan White House, working with vice presidential adviser C. Boyden Gray on an initiative to rein in regulatory agencies.
Friends and colleagues describe him as a constitutional scholar who has long been fascinated with the presidency. His views on executive power were also shaped by a concern about the diminution of presidential authority after Watergate, and further underlined after the 2001 terrorist attacks.
Jonathan Turley, a professor of constitutional law at George Washington University and a friend of Barr’s for decades, describes him as an intense, hands-on lawyer who would think nothing of writing a 10-page legal memo to a friend, associate or top government official.
“He makes me look well-rounded,” Turley said. “I am widely viewed as a dysfunctional legal geek. Bill Barr talks about the criminal code the way other people talk about baseball. It’s the subject he finds most engrossing.”
Colleagues say Barr has been influenced by the “unitary executive” theory, rooted in Article II of the Constitution, which holds that the president controls the entire executive branch. Such views were articulated by several of the Founding Fathers, who believed that presidents have “reservoirs of power,” Yoo said, noting that Alexander Hamilton and Thomas Jefferson discussed the need for presidents to have the authority to manage crises and unanticipated events.
Some legal scholars see Barr’s interpretation of the unitary executive as an aggressive expansion of presidential power that could undermine the independence of agencies such as the Federal Reserve.
“There are principled people who share this view today but, if it became law, it would be a radical sea change from almost 100 years of U.S. government practice and Supreme Court precedent,” said Martin Lederman, who served in the Justice Department’s Office of Legal Counsel for nearly a decade.
As soon as he joined the Justice Department in 1989, Barr began arguing against attempts by Congress to interfere with the president’s appointment power and seek sensitive executive branch information, among other moves.
“Only by consistently and forcefully resisting such congressional incursions can executive branch prerogatives be preserved,” he wrote in his unsolicited memo that July.
The current Justice Department official said his opinion did not break new ground, but served as “a brief guide to allow non-specialists at other agencies [to] identify the kinds of separation-of-powers problems that often appeared in legislation.”
Dellinger said that although he agreed with many specific conclusions in Barr’s 1989 opinion, he sharply disagreed with others, calling it “a blunt instrument that did not sufficiently respect the role of Congress.”
Dawn Johnsen, a Clinton administration appointee who served as a deputy assistant attorney in the Office of Legal Counsel in the years after Barr left the department, said Barr’s view of the Constitution’s appointments clause “in some respects was extreme and in our view wrong. We disavowed it and did not follow it.”
That same summer, Barr wrote a secret opinion saying that the president had “inherent constitutional authority” to order the FBI to take people into custody in foreign countries in violation of international law. The opinion was a reversal for the office, which had concluded the opposite nine years earlier.
That December, Bush launched an invasion of Panama and seized Noriega, who was bought back to the United States to stand trial on charges of drug smuggling and money laundering.
In a 2001 interview with the University of Virginia Miller Center’s presidential oral history project, Barr recalled getting a call from the White House asking whether the president could order troops into the streets of Panama City to help insurgents, and defeat Noriega and his supporters.
“I basically said, ‘Just go out there and do what you have to do,’ ” Barr said.
When members of the House Foreign Affairs Committee sought to review Barr’s legal reasoning in the Noriega case, he declined to provide them with his official opinion, instead offering a 13-page memo describing the “principal conclusions.”
Two years later, when the full opinion became public after it was subpoenaed by Congress, Barr was criticized for not being fully transparent with lawmakers. His description of the opinion failed to note that it authorized the president to ignore the U.N. Charter, a historic change in the U.S. view of international law — and presidential power.
“That is the first instance that I know of in which any U.S. government official took the view that the president has the authority to put the U.S. in breach of the United Nations Charter, a treaty principally written and promoted by the U.S.,” Lederman said. Although this view has more adherents today, Lederman said the notion that “the president alone could put the U.S. in breach of the charter was a novel and radical proposition at the time.”
The Justice Department said that Barr’s opinion reflected a long-established view by the executive branch, adding that he provided congressional testimony about a legal question that was the subject of a confidential opinion.
To longtime friends and fellow conservatives, the opinions he wrote simply reflect Barr’s principled views.
“He is a proponent of a strong executive, and has been all of his life,” said J. Michael Luttig, a former federal appeals court judge who worked closely with Barr at the Justice Department in the Bush era.
“It is not only natural but expected that an attorney general — who after all is an officer of the executive branch, not of the Congress or the judiciary — would be a proponent of presidential power,” he added.
A legal and political adviser
On Jan. 8, 1991, Barr, then the deputy attorney general, was called to the White House to discuss a possible invasion of Iraq.
At the session in the Cabinet Room, attended by Gray, who was then White House counsel, Defense Secretary Richard B. Cheney and national security adviser Brent Scowcroft, Barr was asked by Bush whether an invasion required congressional approval, according to his oral history interview.
Barr told Bush that he did not need congressional approval to invade — and could even ignore a congressional resolution of disapproval, if one were passed.
“It’s irrelevant,” Barr recalled telling Bush about such a vote, adding: “It’s just an expression of opinion. They can’t change the Constitution by expressing their opinion on the matter. I would say you could still do it.”
Barr used the moment to school more senior government officials on the history of war powers, according to an account in Bob Woodward’s 1993 book, “The Commanders.”
The deputy attorney general said that there had been more than 200 occasions when presidents had committed military forces to act unilaterally. Of those, only five included congressional declarations of war, he said.
Barr told the group the situation they faced most closely resembled the Korean War, when President Harry Truman committed troops without a congressional resolution.
Still, Barr urged Bush to seek congressional support to strengthen his position.
He was interrupted by Cheney, who was deeply skeptical of consulting Congress before the invasion, according to Barr’s University of Virginia interview.
“You’re giving him political advice, not legal advice,” he recalled Cheney saying.
The deputy attorney general retorted: “No, I’m giving him both political and legal advice. They’re really sort of together when you get to this level.”
Although presidents of both parties have authorized military action without congressional approval during the past half a century, a vigorous debate continues about when the Constitution requires congressional consent.
Barr also played a pivotal role in the Iran-contra investigation, recommending that Bush pardon former defense secretary Caspar W. Weinberger and five other Reagan administration officials charged for their roles in the arms-for-hostages scheme.
When he did so on Christmas Eve in 1992, Bush said the pardons were merited because the men involved had long records of public service, had acted out of patriotism and had already suffered damaged careers and financial losses.
But independent counsel Lawrence Walsh said in a statement at the time that the presidential pardons were part of a “cover-up” that “undermines the principle that no man is above the law.”
In his oral history, Barr described Walsh as “a head hunter” who “had completely lost perspective.”
He declined to discuss Walsh further, saying: “I don’t know what to say in polite company.”
Barr took a different view when Starr, as independent counsel, investigated Clinton — an inquiry that began with an examination of the suicide of Deputy White House Counsel Vince Foster and Arkansas real estate investments and expanded into Clinton’s relationship with White House intern Monica Lewinsky.
In March 1998, Barr joined with three other former attorneys general in lambasting the Clinton White House for criticizing Starr, saying the president’s allies appear “to have the improper purpose of influencing and impeding an ongoing criminal investigation and intimidating possible jurors, witnesses and even investigators.”
They wrote that although they opposed the independent counsel act, anyone serving in that position “should be allowed to carry out his or her duties without harassment by government officials and members of the bar.”
The current Justice Department official said that even though Barr had concerns about the independent counsel act, he has supported such investigations in the past.
“Attorney General Barr’s statements about the Starr investigation and his support for the integrity and character of Ken Starr reflected his views on those matters, and are hardly inconsistent with his view of the independent counsel statute itself,” the official said.
For his part, Starr said in an interview that he and Barr shared concerns about the independent counsel law, which Congress declined to renew when it expired in 1999.
“We were both firmly of the view that the post-Watergate reform represented an unconstitutional intrusion into the power of the executive, a view that was advanced by attorneys general of both parties,” he said.
A powerful Trump ally
Last June, Barr — then in private practice — sent an unsolicited 19-page memo to Deputy Attorney General Rod J. Rosenstein, challenging the basis of Mueller’s investigation into possible obstruction of justice by the president.
“Constitutionally, it is wrong to conceive of the President as simply the highest office within the Executive branch hierarchy,” he wrote. “He alone is the Executive branch.”
Less than a year later, Barr — now installed at the head of the Justice Department — gave Congress his “principal conclusions” on Mueller’s findings, adding that he and Rosenstein concluded that the special counsel did not find sufficient evidence to support a charge of obstruction.
During his short tenure back as attorney general, Barr has already supported some of Trump’s most controversial policy decisions. He issued an order directing immigration judges to deny some migrants a chance to post bond, supporting Trump’s promise to end the “catch and release” of migrants crossing the border. During congressional testimony last month, he defended administration’s efforts to strike down the Affordable Care Act.
And last week, the Justice Department backed Trump as the president asserted executive privilege over Mueller’s report, his first such exercise of that executive authority.
Hours later, the House Judiciary Committee voted along party lines to hold Barr in contempt of Congress for ignoring a congressional subpoena.
Legal experts have said that the administration’s refusal to comply with congressional demands threatens to undermine Congress’s authority, embedded in the Constitution as a separate branch of government.
Dellinger, who criticized some of the opinions Barr issued at the Office of Legal Counsel during the first Bush administration, said he is even more concerned about him serving a president like Trump.
“This is a president uniquely in need of restraining forces, and I am concerned that Mr. Barr’s approach is not one of restraint,” Dellinger said.
For his part, the president seems thrilled with his new attorney general.
“He’s an outstanding man, he’s an outstanding legal mind,” Trump said of Barr after the attorney general’s day-long grilling from the Senate Judiciary Committee earlier this month, which included a defense of executive authority. “He performed incredibly well.”
Luttig, Barr’s longtime friend, said Barr did not take the job to back Trump politically but rather “to protect the rule of law and help navigate the country through this tumultuous moment,” adding that the attorney general has a deep reverence for the Justice Department and the FBI.
Barr “is disinterested in the incumbent president as a political figure,” said Luttig, and “views his responsibilities and obligations as solely to the Constitution.”
Shane Harris and Alice Crites contributed to this report.
This story has been updated to note that Barr’s 2001 oral history interview took place at the Miller Center at the University of Virginia.