Barr Once Contradicted Trump's Claim That Abuse of Power Is Not Impeachable

  
Via:  tessylo  •  one month ago  •  10 comments

By:   Charlie Savage, the New York Times

Barr Once Contradicted Trump's Claim That Abuse of Power Is Not Impeachable

S E E D E D   C O N T E N T


The New York Times

Barr Once Contradicted Trump's Claim That Abuse of Power Is Not Impeachable





Charlie Savage


6ac5ddf0-3256-11ea-bffd-e12ab88d1b71 January 22, 2020, 8:06 AM EST









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Attorney General William Barr at the Department of Justice in Washington, Jan. 13, 2020. (Calla Kessler/The New York Times)

WASHINGTON — Scholars have roundly rejected a central argument of President Donald Trump’s lawyers that abuse of power is not by itself an impeachable offense. But it turns out that another important legal figure has contradicted that idea: Trump’s attorney general and close ally, William Barr.

In summer 2018, when he was still in private practice, Barr wrote a confidential memo for the Justice Department and Trump’s legal team to help the president get out of a problem. The special counsel, Robert Mueller, was pressuring him to answer questions about whether he had illegally impeded the Russia investigation.

Trump should not talk to investigators about his actions as president, even under a subpoena, Barr wrote in his 19-page memo, which became public during his confirmation. Barr based his advice on a sweeping theory of executive power under which obstruction of justice laws do not apply to presidents, even if they misuse their authority over the Justice Department to block investigations into themselves or their associates for corrupt reasons.

But Barr tempered his theory with a reassurance. Even without the possibility of criminal penalties, he wrote, a check is in place on presidents who abuse their discretionary power to control the executive branch of government — impeachment.

The fact that the president “is answerable for any abuses of discretion and is ultimately subject to the judgment of Congress through the impeachment process means that the president is   not   the judge in his own cause,” he wrote.

He added, “The remedy of impeachment demonstrates that the president remains accountable under law for his misdeeds in office,” quoting from a 1982 Supreme Court case.

Barr has long embraced a maximalist philosophy of executive power. But in espousing the view that abuse of power can be an impeachable offense, he put himself squarely in the mainstream of legal thinking. Most constitutional scholars broadly agree that the constitutional term “high crimes and misdemeanors” for which an official may be impeached includes abuse of power.

But in a 110-page brief Monday, Trump’s impeachment team — led by Pat Cipollone, the White House counsel and a former aide to Barr in the first Bush administration, and Trump’s personal lawyer Jay Sekulow — portrayed the article of impeachment claiming that Trump abused his power in the Ukraine affair as unconstitutional because he was not accused of an ordinary crime.

“House Democrats’ novel conception of ‘abuse of power’ as a supposedly impeachable offense is constitutionally defective,” they wrote. “It supplants the framers’ standard of ‘high crimes and misdemeanors’ with a made-up theory that the president can be impeached and removed from office under an amorphous and undefined standard of ‘abuse of power.’ ”

Contrary to what Barr wrote 20 months ago, the Trump defense team also insisted that the framers did not want Congress to judge whether presidents abused their discretion and made decisions based on improper motives.

“House Democrats’ conception of ‘abuse of power’ is especially dangerous because it rests on the even more radical claim that a president can be impeached and removed from office solely for doing something he is allowed to do, if he did it for the ‘wrong’ subjective reasons,” the Trump team wrote.

A spokeswoman for Barr declined to comment. A spokesman for Trump’s impeachment defense team did not respond to a request for comment about the tensions.

But Barr’s view was no passing thought. His 2018 memo emphasized that presidents who misuse their authority by acting with an improper motive are politically accountable, not just in elections but also via impeachment.

Between elections, “the people’s representatives stand watch and have the tools to oversee, discipline, and, if they deem appropriate, remove the president from office,” he wrote. “Under the framers’ plan, the determination whether the president is making decisions based on ‘improper’ motives or whether he is ‘faithfully’ discharging his responsibilities is left to the people, through the election process, and the Congress, through the impeachment process.”

The result of Barr’s main argument in 2018 and the Trump team’s theory in 2020 is identical: Both posited that facts were immaterial, both in a way that was convenient to counter the threat Trump faced at that moment.

If Barr’s obstruction of justice theory is correct — and many legal scholars reject it — then Mueller had no basis to scrutinize Trump’s actions that interfered with the Russia investigation.

Similarly, if the Trump impeachment team’s theory is correct, the Senate has no basis to subpoena documents or call witnesses. The lawyers are implying that even if Trump did abuse his power to conduct foreign policy by trying to coerce Ukraine into announcing investigations that could help him in the 2020 election, the Senate should acquit Trump anyway.

Another member of Trump’s legal team, Alan Dershowitz, a professor emeritus at Harvard Law School and criminal defense lawyer, is expected to make a presentation to the Senate trial this week laying out in detail the theory that abuses of power are not impeachable without an ordinary criminal violation.

Critics of Dershowitz’s arguments have pointed to the seeming tension with comments he made in 1998, when he did not have a client facing impeachment for abuse of power: “If you have somebody who completely corrupts the office of president and who abuses trust and who poses great danger to our liberty, you don’t need a technical crime.”

In an interview this week, Dershowitz argued that his position now was not inconsistent with what he said in 1998, pointing to his use then of the phrase “technical crime” and saying that he is arguing today that impeachment requires “crimelike” conduct.

Dershowitz went further Tuesday, saying on Twitter that he had not thoroughly researched the question in 1998 but recently has done so. “To the extent therefore that my 1998 off-the-cuff interview statement suggested the opposite,” he wrote, “I retract it.”

This article originally appeared in   The New York Times .

© 2020 The New York Times Company




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Tessylo
1  seeder  Tessylo    one month ago

Scholars have roundly rejected a central argument of President Donald Trump’s lawyers that abuse of power is not by itself an impeachable offense. But it turns out that another important legal figure has contradicted that idea: Trump’s attorney general and close ally, William Barr.

In summer 2018, when he was still in private practice, Barr wrote a confidential memo for the Justice Department and Trump’s legal team to help the president get out of a problem. The special counsel, Robert Mueller, was pressuring him to answer questions about whether he had illegally impeded the Russia investigation.

Trump should not talk to investigators about his actions as president, even under a subpoena, Barr wrote in his 19-page memo, which became public during his confirmation. Barr based his advice on a sweeping theory of executive power under which obstruction of justice laws do not apply to presidents, even if they misuse their authority over the Justice Department to block investigations into themselves or their associates for corrupt reasons.

But Barr tempered his theory with a reassurance. Even without the possibility of criminal penalties, he wrote, a check is in place on presidents who abuse their discretionary power to control the executive branch of government — impeachment.

The fact that the president “is answerable for any abuses of discretion and is ultimately subject to the judgment of Congress through the impeachment process means that the president is   not   the judge in his own cause,” he wrote.

He added, “The remedy of impeachment demonstrates that the president remains accountable under law for his misdeeds in office,” quoting from a 1982 Supreme Court case.

 
 
 
JohnRussell
2  JohnRussell    one month ago

The standard for impeachable offenses is "high crimes and misdemeanors". 

Conservatives get confused by the use of the word "crime" in the phrase, thinking that it must literally mean the violation of a specific criminal statute.  But it doesn't. 

Here are the defintions of the word crime in Merriam Webster

Definition of crime

an illegal act for which someone can be punished by the government especially : a gross violation of law
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 a grave offense especially against morality
-
something reprehensible, foolish, or disgraceful.
============
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Two of these definitions do not involve, necessarily , the violation of a specific law. 
 
Trump's "crime" is using his office and authority as president of the United States to coerce a foreign government into helping him get re-elected by producing negative information about Trump's election opponent. 
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He tried to force another country to help him cheat in his effort to get re-elected.  And he forced members of his administration to be his accomplices in this crime. 
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He disgraced his country. 
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Imagine if George Washington had done this. He wouldnt need to have been impeached. He would have resigned as soon as the whistleblower report became public. 
 
 
 
Tessylo
3  seeder  Tessylo    one month ago
Politics

Trump Impeachment Lawyer Utters 'Biggest Lie Ever' Told On Senate Floor

1b7bcfa0-ffe6-11e8-abbe-535ccd54ed26 January 22, 2020, 4:32 AM EST

Twitter users mockingly accused White House counsel   Pat Cipollone   of telling the “biggest lie ever” on the Senate floor after he vouched for   Donald Trump   during the president’s impeachment trial.

Cipollone, who is leading Trump’s defense, claimed Trump “is a man of his word” during the proceedings on Tuesday night.

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JohnRussell
3.1  JohnRussell  replied to  Tessylo @3    one month ago
Cipollone, who is leading Trump’s defense, claimed Trump “is a man of his word” during the proceedings on Tuesday night.

That WAS weird.  I think millions of belly laughs over that one ensued across the land. 

 
 
 
Tacos!
3.1.1  Tacos!  replied to  JohnRussell @3.1    one month ago

I rolled my eyes at that one myself. Not just because it was so unbelievable and extreme, but it wasn’t connected to anything else he was saying.

 
 
 
Tessylo
4  seeder  Tessylo    one month ago

He was lying when he referred to tRump as a man also.  

 
 
 
WallyW
5  WallyW    one month ago

There was NO quid pro quo.

 
 
 
Tacos!
5.1  Tacos!  replied to  WallyW @5    one month ago

You just have to believe in it hard enough.

 
 
 
Tessylo
5.2  seeder  Tessylo  replied to  WallyW @5    one month ago

jrSmiley_86_smiley_image.gifjrSmiley_86_smiley_image.gif

 
 
 
lady in black
5.3  lady in black  replied to  WallyW @5    one month ago

Yes there was

 
 
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