“In recent months, we have become concerned by the conduct
of Attorney General William Barr,” the group, Checks & Balances, said in a
statement that was shared Friday with The New York Times.
Members of the group have sharply denounced what they
described as abuses of power by Mr. Trump, who is facing a fast-moving
impeachment inquiry. The speech by Mr. Barr last week, in which he argued that
the president had never overstepped his authority, so alarmed them that they
felt compelled to push back publicly.
The Justice Department declined to comment.
At a conference hosted by the Federalist Society, an influential
conservative legal group, Mr. Barr said in his speech that those who have
sought to hem in Mr. Trump were denying the will of voters, subverting the Constitution and
undermining the rule of law.
The president’s opponents “essentially see themselves as
engaged in a war to cripple by any means necessary a duly elected government,”
he said.
Checks & Balances is made up of Republican and
conservative lawyers, including some who served in recent administrations.
George T. Conway III, one of Mr. Trump’s most vocal critics and the husband of the
White House counselor, Kellyanne Conway, is one of the group’s most prominent
members.
Mr. Barr’s view on executive power is a misreading of the
unitary executive theory, said Charles Fried, a Checks & Balances member
and Harvard Law professor who endorsed the theory while he was solicitor
general during the Reagan administration. In Mr. Fried’s reading of the theory,
“the executive branch cannot be broken up into fragments.”
While that branch acts as a unified expression of a
president’s priorities, with the president firmly at the helm, “it is also
clear that the executive branch is subject to law,” Mr. Fried said. “Barr takes
that notion and eliminates the ‘under law’ part.”
While Mr. Barr did not use the word “impeachment” in his
speech, he laid out a new defense of Mr. Trump that was taken up by Republicans
on Capitol Hill. In an effort to invalidate the inquiry, lawmakers had argued
that the president did not withhold a White House meeting or military aid to
pressure President Volodymyr Zelensky of Ukraine to publicly announce
investigations that would benefit Mr. Trump politically.
After a week of damaging public hearings in which multiple
witnesses offered new details of the president’s pressure campaign and said
that he spoke openly of his desire that Ukraine publicly announce
investigations, Mr. Trump’s supporters began to argue that he had acted within
his rights.
Mr. Trump has also begun to echo Mr. Barr’s assertions. In
an interview on Fox on Friday, he said that the decision to investigate his
2016 campaign’s ties to Russia “was an overthrow attempt at the presidency.”
Now that the claim that Mr. Trump never pressured Mr.
Zelensky no longer holds, “the argument has got to be a ‘so what’ argument —
Bill Barr’s argument that the president did all these things, but this is what
a president can do,” said Stuart Gerson, a Checks & Balances member who was
a senior campaign adviser to George Bush and a Justice Department official in
his administration.
“The Republicans in the Senate and in the House think
they’re in a Parliament, and their responsibility is to a prime minister to
whom they owe party loyalty,” Mr. Gerson said. “That’s not the American
tradition. One can recognize substantial executive power, but that doesn’t mean
the legislative branch should be dead.”
Mr. Barr has argued that his view of presidential power
stems directly from the Constitution. It delineates the responsibilities of the
three branches of government, he has said, rather than allowing the legislature
and the judiciary to check the powers of the president as two of three co-equal
governing powers.
That interpretation of history “has no factual basis,”
Checks & Balances wrote in its statement, including the claim that “the
founders shared in any respect his vision of an unchecked president, and his
assertion that this view was dominant until it came under attack from courts
and Congress a few decades ago.”
The group said that the “only imaginable basis” for Mr.
Barr’s conclusion that Mr. Trump did not obstruct the Russia investigation “was
his legal view that the president is given total control over all investigations
by the Constitution.”
Mr. Fried suggested that Mr. Barr’s interpretation of the
law set a dangerous precedent. “Conservatism is respect for the rule of law. It
is respect for tradition,” he said. “The people who claim they’re conservatives
today are demanding loyalty to this completely lawless, ignorant, foul-mouthed
president.”
Mr. Gerson echoed that sentiment. “It’s important for
conservatives to speak up,” he said. “This administration is anything but
conservative.”
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