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8 Questions Senators Must Ask William Barr on Executive Power

William Barr, President Donald Trump’s nominee to succeed Acting Attorney General Michael Whitaker, previously served in two other legal positions under President George H.W. Bush: assistant attorney general for the Office of Legal Counsel and attorney general. In those capacities, Barr zealously clamored for the counter-constitutional doctrine that the president commands limitless power to initiate war or otherwise employ the armed forces offensively.  

In an oral history interview [1] with the University of Virginia’s Miller Center in April 2001, Barr related his advice to President Bush that he “had constitutional authority to launch an attack against Iraqis.” The president “did not require any authorization from Congress.” Moreover, even if Congress passed a resolution opposing the president’s use of force, “it’s irrelevant. I would say you could still do it.”    

Barr’s intellectually dishonest viewpoint contradicted the understanding of every participant in the drafting, debate, and ratification of the Constitution. They unanimously agreed that the Declare War Clause made Congress alone responsible for taking the nation to a state of war. George Washington, James Madison, Alexander Hamilton, Thomas Jefferson, Supreme Court Chief Justice John Marshall, and Associate Justices James Wilson and William Paterson famously agreed to this without a syllable of dissent.

Barr’s opinions bespeak an alarming penchant for extra-constitutional executive power at a time when our country is perpetually “at war” in an increasing number of places across the globe. It comes as Congress is finally finding its backbone and pushing against Washington’s unauthorized involvement in the war in Yemen.

Indeed, Barr would crown the president with more unchecked authority than King George III had during his tyranny over American colonists, which provoked the American Revolution. He should not be confirmed by the Senate unless he recants his extra-constitutional opinions.

As the Senate Judiciary Committee reconvenes Wednesday for confirmation hearings, members should insist that Barr answer the following questions:

  1. Does the president have constitutional authority to play prosecutor, judge, jury, and executioner to kill American citizens not engaged in hostilities whom the president secretly deems imminent national security threats? Was President Barack Obama’s killing of Anwar al-Awlaki’s teenage son [2]a United States citizen, constitutional?
  2. Was President Harry Truman’s Korean War, launched without congressional authorization in 1950, constitutional? Likewise, was Obama’s war against Libya to overthrow the Gaddafi regime, or Trump’s ongoing war in Syria, constitutional?
  3. Does Congress have constitutional authority under the War Powers Resolution to compel the president to cease hostilities against a foreign adversary by a concurrent resolution that does not require the president’s signature?
  4. Can a treaty obligate the United States to commence war on behalf of an ally notwithstanding the Declare War Clause? Does either NATO or the United Nations Charter authorize the president to initiate war without a congressional declaration?
  5. Was Obama’s Joint Comprehensive Plan of Action to restrain Iran’s nuclear ambitions a treaty requiring Senate ratification?
  6. Does the Fourth Amendment permit the president to spy on American citizens without warrants or probable cause in order to collect foreign intelligence? What are the constitutional underpinnings, if any, for Executive Order 12333, which authorizes warrantless surveillance of United States persons to collect foreign intelligence?
  7. Is the president entitled to withhold documents from Congress, or to resist testimony before congressional committees either in executive session or in a public forum based on executive privilege, state secrets, or otherwise? What is the constitutional foundation, if any, for the president’s invocation of the state secrets doctrine to frustrate judicial redress for unconstitutional government wrongdoing—for example, murder or kidnapping?
  8. Is Congress entitled to know what standards the president employs to justify cyberattacks against foreign nations or non-state actors that could risk a kinetic response?

The Constitution’s lodestar is liberty. War and unchecked executive power are its greatest enemies. These questions are thus critical to the Senate’s evaluation of Barr’s qualifications to serve as attorney general.

Bruce Fein was associate deputy attorney general and general counsel of the Federal Communications Commission under President Reagan and counsel to the Joint Congressional Committee on Covert Arms Sales to Iran. He is a partner in the law firm of Fein & DelValle PLLC.

6 Comments (Open | Close)

6 Comments To "8 Questions Senators Must Ask William Barr on Executive Power"

#1 Comment By WorkingClass On January 16, 2019 @ 5:10 am

Mueller and Barr are bosom buddies. As usual Trump hires his enemies.

#2 Comment By JeffK On January 16, 2019 @ 6:49 am

We keep hearing of a constitutional crisis. If Trump, with Barr’s help, suppresses major elements of the Mueller report, there will be a constitutional crisis. If Trump launches attacks against Iran, there will be a constitutional crisis.

Either action will get Trump impeached, for sure. Either may end up with conviction in The Senate and removal from office.

If Trump is convicted in the Senate, it will be a clear indication that he has used up all of his political capital, including with all of The Republicans (except for his staunches supporters).

At that point the destruction of The Republican Party will be complete. 2020 will be a bloodbath for the party.

The Republicans are in an extremely tough place politically. Good. 20 Years of Faux news / teaparty / evangelical insanity finally got us here. National rejection of this will be required.

What happens next will be very interesting. The true nature and character of The American People will prevail. The direction the country takes will set the course for a decade. I think Trumpism, and current reactionary Republicanism, will be repudiated.

But I have certainly been wrong before.

#3 Comment By Carollton On January 16, 2019 @ 8:56 am

“Barr related his advice to President Bush that he “had constitutional authority to launch an attack against Iraqis.” The president “did not require any authorization from Congress.” “

That turned out really well, didn’t it?

But this is interesting. I hadn’t realized it was that Barr. I should have guessed it: the nation’s top lawyer will have to bless the Israeli plan for a war against Iran, and Barr fills the bill perfectly. We should have known that something like this was in the cards.

I still don’t understand why Trump is doing this. I thought his contempt for the Bush II neocons and their disastrous blunders was real. It was one of the main reasons I voted for him.

#4 Comment By b. On January 16, 2019 @ 11:57 am

Does the President have the authority to withdraw from a treaty ratified by the US Senate without authorization from the US Senate to withdraw? Was the Bush administration withdrawal from the ABM Treaty constitutional? Does The President have the legal authority with withdraw from the INF Treaty?

#5 Comment By pogohere On January 17, 2019 @ 2:53 am

Carollton: Re “that Barr”

He was G. Bush sr’s fixer.

He was the guy who, according to Terry Reed, author of “Compromised: Clinton, Bush and
the CIA,” met with Gov Clinton–which Reed claimed to witness–to calm Clinton down and explain that if Clinton played his cards right while laundering CIA cocaine money through the Arkansas econ dev program he could be president.

Amazon review: “One of the best political books I have ever read. Could not put it down, got watery eye’s reflecting on what Terry Reed and his family went through. Sheds a lot of light on Barry Seal, gives a good insight as to why Barry may have been murdered. Fills in a lot of the pieces into Felix Rodriquez and Luis Posada; I was particularly interested in the info on Felix Rodriquez as he is connected so closely with figures from the JFK assassination, his VERY close ties to GHW Bush, just another reminder of how dirty Bush really is, a high criminal. Stunning revelations on Bill Clinton. Bought another book from reading Compromised by L.D. Brown, one of Clinton’s most important Arkansas State Police officers, (the book is called CROSSFIRE). A must read especially in light of Hillary maybe running for President.”

Barr is another fox in the hen house.

It may be that Trump has been advised to hire a deep stater to fix a fu-ked up operation. Like the guy–played by Harvey Keitel– that eliminated the dude sitting in the backseat who shot himself in the head in “Pulp Fiction” –by having him and the car taken to a junk yard where the car with the body in it was crushed into an 18″ x 18″ cube and recycled to China and might well have come back as a Toyota.

#6 Comment By Wizard On January 19, 2019 @ 11:03 am

Nothing about Trump is real, Carollton, except for the narcissism and egomania. Even if he does have any actual principles, he’s too ignorant and intellectually lazy to effectively implement them. As WorkingClass said, Trump has racked up a record of hiring people whose agenda is very different from his. Just doing a little homework should have prevented many of these mistakes. If someone is serious about avoiding “stupid wars” (And just for the record, I think avoiding stupid wars is an entirely laudable policy.), why on earth would they hire John Bolton? The man never met a war he didn’t like. (Except for Vietnam, where he graciously declined a chance to serve himself.)