Invoking the ghost of Richard Nixon, even if not by name, a big part of the Democrats’ impeachment strategy is to portray President Donald Trump as akin to a dictator who would run rampant if Congress wasn’t there to stop him. And that is what the Constitution is all about – a large group of elected representatives exercising a check on a chief executive whose near-monarchical power tends to corrupt.
Nixon using the powers of government to go after his domestic political enemies in the Watergate scandal is the Democrats’ perfect example. (Although House Speaker Nancy Pelosi recently said Trump’s offenses are worse than Nixon’s.)
Last Friday, Attorney General William Barr in effect said, “not so fast!” In a speech in Washington to the Federalist Society, second only to the National Rifle Association as the organization most demonized by Democrats, Barr dug into the very foundation of the legitimacy Pelosi and House Intelligence Committee Chairman Adam Schiff claim regarding scrutinizing one-on-one conversations between a U.S. president and a foreign head of state.
Lt. Col. Alexander Vindman, the senior National Security Council’s Ukraine expert in the White House, testified to Schiff’s panel on Tuesday that “it was inappropriate, it was improper for the president to request – to demand – an investigation into a political opponent, especially [from] a foreign power.”
“Demand” is a big stretch, if you look at the transcript of the call between Trump and Ukrainian President Volodymyr Zelensky. Plus, it would be impossible to combat corruption within Ukraine without running into Hunter Biden and his inexplicable hiring by the Ukrainian energy company Burisma. And official U.S. policy has been and is to fight corruption in the country.
Be that as it may, for staffers who work at the pleasure of the president to be empowered to raise – externally – their own opinionated objections to communications protected by executive privilege is a recipe for crippling any presidency. If the massive amount of all such phone calls of, say, the last 10 presidents had been handed over at the time to the opposing party, there would have been an epidemic of frivolous impeachments.
Moreover, how would Pelosi or Schiff like their private discussions in their capacity as congressional leaders made public?
Barr made all this clear in detail. He blasted “the notion that politics in a free republic is all about the legislative and judicial branches protecting liberty by imposing restrictions on the executive.” And he pointed to “a knee-jerk tendency to see the legislative and judicial branches as the good guys protecting society from a rapacious would-be autocrat.”
According to Barr, “this prejudice is wrong-headed and atavistic.” Centuries ago, as Barr pointed out, “you started out with a king who holds all the cards; he holds all the power, including legislative and judicial.” And then “legislative power gradually, over hundreds of years, reigned in the king, and extracted and established its own powers.”
The Framers Limited Excessive Legislative Power
That had already happened by the time of the framing of the U.S. Constitution, and the Framers “felt that the British constitution had achieved only an imperfect form of this model. They saw themselves as framing a more perfect version of separation of powers and a balanced constitution.”
This included “a new kind of executive,” Barr recognized. The Framers “created an office that was already the ideal Whig executive. It already had built into it the limitations that Whig doctrine aspired to. It did not have the power to tax and spend; it was constrained by habeas corpus and by due process in enforcing the law against members of the body politic; it was elected for a limited term of office; and it was elected by the nation as whole. That is a remarkable democratic institution – the only figure elected by the nation as a whole.”
As Barr argues, “with the creation of the American presidency, the Whigs’ obsessive focus on the dangers of monarchical rule lost relevance.”
It is the dangers of congressional power overreach that bears watching, he warned.
“Immediately after President Trump won election, opponents inaugurated what they called ‘The Resistance,’ and they rallied around an explicit strategy of using every tool and maneuver available to sabotage the functioning of his administration,” Barr said. “Now, ‘Resistance’ is the language used to describe insurgency against rule imposed by an occupying military power. It obviously connotes that the government is not legitimate.”
Barr points out that “this is a very dangerous – indeed incendiary – notion to import into the politics of a democratic republic. What it means is that, instead of viewing themselves as the ‘loyal opposition,’ as opposing parties have done in the past, they essentially see themselves as engaged in a war to cripple, by any means necessary, a duly elected government.”
A big part of this war “has been to drown the executive branch with ‘oversight’ demands for testimony and documents. I do not deny that Congress has some implied authority to conduct oversight as an incident to its legislative power. But the sheer volume of what we see today – the pursuit of scores of parallel ‘investigations’ through an avalanche of subpoenas – is plainly designed to incapacitate the executive branch, and indeed is touted as such.”
Apropos the Zelensky phone call, Barr notes that “we all understand that confidential communications and a private, internal deliberative process are essential for all of our branches of government to properly function … there is no FOIA [Freedom of Information Act] for Congress or the courts. Yet Congress has happily created a regime that allows the public to seek whatever documents it wants from the executive branch at the same time that individual congressional committees spend their days trying to publicize the executive’s internal decisional process.”
As Barr concludes, “that process cannot function properly if it is public … in waging a scorched earth, no-holds-barred war of ‘Resistance’ against this administration, it is the left that is engaged in the systematic shredding of norms and the undermining of the rule of law.”
Pelosi claimed to CBS on Sunday that “what the president did was so much worse than even what Richard Nixon did.” Now Trump’s attorney general has deployed the Constitution itself as a weapon against such politically motivated exaggerations.
— Written by Thomas McArdle
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