Under sharp questioning, a number of legal and law enforcement experts on Wednesday morning examined William Barr’s views on executive authority during the second day of his Senate Judiciary Committee confirmation hearings on Capitol Hill.
President Donald Trump nominated Barr on December 7 to become the nation’s next attorney general. But people opposing the nomination are concerned his views on executive powers may threaten an ongoing investigation against the president.
Sen. Dianne Feinstein (D-Calif.) asked a panel of experts how those views could impact the special counsel’s inquiry.
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“In any number of ways,” said law professor Neil Kinkopf (shown above left) of Georgia State University College of Law.
“Most fundamentally is his claim without limit or qualification that the president is the executive branch and that therefore all executive powers are vested in the president personally. That the president can personally exercise that power.”
The committee questioned nine legal and law enforcement experts on Wednesday. Barr himself faced questions on Tuesday, when lawmakers asked about his views on executive powers. A legal memo he wrote last year raised concerns he believes in overly expansive powers.
“Not leaving this to speculation or chance, the memo specifically says that the president can control any litigation, any prosecution or investigation, including any prosecution or investigation of the president personally and the president’s family members,” Kinkopf said. “And further, it says that the attorney general and special counsel, anyone serving under the president, is merely the president’s hands.”
Barr expressed concern in the memo at how the special counsel team might pursue obstruction of justice charges against the president. Senate Democrats have called the memo troubling. Barr said Tuesday that the memo was narrow and merely addressed a specific obstruction of justice theory under a single statute.
Kinkopf admitted it’s true the U.S. Constitution doesn’t authorize Congress to limit the president’s prosecutorial discretion.
But he said it also doesn’t give the president prosecutorial discretion. Feinstein noted the memo seemed a case for the unitary executive theory.
“This is where we [meaning he and Neil Kinkopf] do disagree and I thought the question was presented quite well because it does isolate where we depart,” said professor Jonathan Turley (above right) of George Washington University Law School. “Barr actually disagrees with the position of the Trump legal team. He expressly said they are wrong, that it doesn’t curtail the ability to prosecute a president in office. So he’s not on the extreme on this.”
Special counsel Robert Mueller has been leading an investigation into whether the president or his associates colluded with Russian interests during the election of 2016. Trump has accused the special counsel team of being a biased witch hunt against him.
“Neil [Kinkopf] is taking Barr’s statement to the constitutional footprint, the mandate of the Constitution, which does not have limitations in these areas from how they would apply,” Turley said. “[Barr] said very clearly that the president cannot do whatever he wants. There are consequences. He can even be prosecuted.”
Turley added that while he also disagrees with the unitary executive theory, many judges and lawyers do support it. There are also different viewpoints on how the theory should work in practice. The constitutional law theory holds that the president possesses the power to control the entire executive branch.
“I do happen to believe in the unitary executive theory unlike the other two folks,” former Attorney General Michael Mukasey said on Wednesday. “It’s not a question of a religious belief and it’s not a quirky attitude. The Constitution says at the beginning of Article II that the executive authority shall be vested in the president of the United States. It doesn’t say ‘all but a little bit of it.’ It doesn’t say ‘most of it.’ It says the ‘executive power.’ That means all of it.”
The special counsel team has taken down a handful of former associates of the president since launching its investigation back in May 2017 — nearly two years ago now. But it has yet to connect the president to collusion allegations; much of the charges already issued are due to unrelated crime allegations.
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Barr has previous experience in the role of attorney general, having served in that position for a few years under former President George H. W. Bush. The Democrat-controlled Senate confirmed him by voice vote just 36 days after he was nominated.
Then-Sen. Joe Biden (D-Del.) was leading the Senate Judiciary Committee at the time and advanced him by a 14-0 vote.
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