Barr previously contradicted Trump’s claim that abuse of power is not impeachable
Scholars have roundly rejected a central argument of President 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: Mr. Trump’s attorney general and close ally, William P. Barr.
In summer 2018, when he was still in private practice, Mr. Barr wrote a confidential memo for the Justice Department and Mr. Trump’s legal team to help the president get out of a problem. The special counsel, Robert S. Mueller III, was pressuring him to answer questions about whether he had illegally impeded the Russia investigation.
Mr. Trump should not talk to investigators about his actions as president, even under a subpoena, Mr. Barr wrote in his 19-page memo, which became public during his confirmation. Mr. 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 Mr. 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 powers — impeachment.
The fact that the president “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.
Mr. 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. [Continue reading…]