Barr doesn’t just believe in extreme executive power. He desperately depends upon it.

My new piece in Slate:

…Barr warned, a “wrong-headed and atavistic” focus on legislative and judicial oversight has “smothered” the president’s traditional and proper authority. It is telling—and perhaps most significant—that Barr was particularly worried about subpoenas and oversight…

…When Barr argues for a maximalist, unaccountable unitary executive, he is not simply articulating a matter of theory or principle—he is defending himself from an investigation into his own work, especially his direct involvement in the Ukraine bribery-and-extortion plot.

In the July 25 call records with President Volodymyr Zelensky, Trump mentioned Barr five times, usually in tandem with Rudy Giuliani, as a key player in the president’s apparent bribery and extortion conspiracy. One particularly chilling passage: “Well, [Ambassador Marie Yovanovitch is] going to go through some things. I will have Mr. Giuliani give you a call and I am also going to have Attorney General Barr call and we will get to the bottom of it.”

Barr’s own potential criminal jeopardy deepens with each day of new testimony. The criticisms of his handling of the Mueller report—that the attorney general was acting as the president’s personal lawyer—were prelude, and mild compared to the allegations now. The powers and protections he claims for Trump, in the name of skewed history and partisan analysis, are the powers and protections he needs to justify his own actions.

To attack the speech as a speech is to grant Barr the terms he would prefer. Barr’s words and theories are intellectually dishonest and inappropriate for any federal official, but the problem isn’t merely that his political self-expression is disagreeable. It’s that his remarks are the defensive tactics of an unindicted co-conspirator desperate for attention and clinging to power.

And so, as a politician in a political struggle, he sought to rally a gathering of his allies around their shared partisan mythology, or victimology. He is a criminal suspect, Trump’s fixer and enforcer, cloaking himself as both savior and martyr. Even though he probably sincerely believes in this Manichean culture war, he seems to have chosen the time, place, and vituperative manner to provoke an attack from “the Resistance” and “secularists” on his religio-political ideas. He is not only trying to distract. He also setting a trap to shift the debate from his alleged criminal involvement to his culture war terms.

But this trap can be flipped against him by emphasizing the speech’s legal content: His extreme-executive attack on congressional subpoenas clearly lines up with his conflict of interest as a likely criminal subject of those investigations…

More here.

Additional evidence of Barr’s involvement in the Whistleblower report here and here.




Sondland Implicates Pence in Felony Conspiracy.

Slate’s Trumpcast… “Impeachers: Endgame”

My @realTrumpcast conversation Impeachment Endgame (a strategy that must include state subpoenas and *indictments*) with the awesome IronWoman Captain Marvel Virginia Heffernan was fun and cathartic.
(I did say on the recording after her kind words, “Thanks! The feeling is so mutual,” but they edited it out!)
There were shout-outs to the Nationals! And we also call out Manhattan DA Cyrus Vance and NY AG Tish James for not doing their jobs.  More links to come…
Podcast link is here.

The President’s Lawyers Are Making a Dangerous Argument for Presidential Immunity (But it’s different from the argument everyone thinks they’re making)

My piece in the Atlantic:

For those following along on many major news sites on Wednesday, President Donald Trump’s lawyer William Consovoy apparently told federal judges that if a president shot people on Fifth Avenue, not only could he not be indicted, but he could not even be investigated.

This was not, in fact, what happened: Consovoy immediately apologized for creating this impression for the judges, clarifying that state officials might investigate, but could not subpoena, a sitting president. Consovoy was raising a valid concern about a “proliferation” of partisan state prosecutions burdening a president. While his argument for total immunity from state process went too far, he was making an important argument for federal jurisdiction to review state subpoenas of a president, which should be sufficient to prevent abuses.

But it was earlier in Consovoy’s answers—overlooked by the media and the judges themselves—that his arguments backed into a more practical and immediate danger…

[Further down in the piece…]

This brings us to my surprise when I realized that Consovoy and his lawyers quoted a blog post I had written on this question in their brief, on page 7: “All you need is one prosecutor, one trial judge, the barest amount of probable cause, and a supportive local constituency, and you can shut down a presidency.” Trump’s lawyers actually cut off the end of that sentence without providing the required ellipsis. My sentence ended, “You can shut down a presidency with a criminal trial or two or two dozen.” They misleadingly left out my distinction between indictment and trial. But even so, I was wrong 18 months ago when I also suggested a sitting president “generally” could not be indicted absent a clear and present danger. It seemed like the Department of Justice was functioning under pressure. I was naive. A year ago, I retracted after more research on statutes of limitations.


The President’s Removal Powers and Faithful Execution

The DOJ has asked SCOTUS to give the president unprecedented powers to fire independent agency heads (like the heads of the Fed, the CFPB, the Federal Trade Commission, the Nuclear Regulatory Commission…).
But in the New York Times, Ethan Leib & I argue that the Constitution’s presidential duty of faithful execution empowers Congress to guard against presidential bad faith….

Quid Pro Quo: The Trump Transcript is a Felony, Not Just a High Crime

Folks, this just is not so hard. Just read the transcript.

It contains an explicit quid pro quo for felony bribery.

Zelensky: “We are ready to continue to cooperate… buy more Javelins” ⁦

Trump⁩: “I would like you to do us a favor though.”

This is linguistically the same as “If you do us a favor…” or “However, you do us a favor…” It is a conditional phrase that creates a condition of exchange.

There are two basic elements of bribery. First, quid pro quo:

A: I would like to you to do me a favor.

B: “I would like you to do us a favor though…”


Second: Under the bribery statute, 18 USC 201, the “quo” must be “corrupt… influence,” “fraud,” or “a violation of lawful duty.” On page 4 of the transcript:

Trump: “The other thing, there’s a lot of talk about Biden’s son, that Biden stopped the prosecution…”

The quid pro quo from the top p. 3 moves immediately to Trump’s next point, at the bottom of p. 3/top of page 4: Zelensky should work with Giuliani and AG Barr “to find out about” “Biden’s son” & “Biden.” This is bribery as corrupt influence 18 USC 201(b)(1)(A) and a violation of lawful duties in terms of civil or criminal campaign laws (18 USC 201(b)(1)(C).

I have been critical of those who claimed that the Trump Tower meeting in June 2016 was a criminal campaign violation, because it cannot be criminal to talk to foreign nationals about candidates. The Clinton campaign indirectly investigating by having FusionGPS/Christopher Steele talk to foreing nationals cannot be criminal. But there is a world of difference between those conversations vs. pressuring a foreign government’s prosecution force to do your opposition research for you and potentially indict the family of your opponent (especially in context of withholding $391 million in aid).

The harder question here is that of course some quid pro quo exchanges with foreign governments are lawful and valid: Ukraine should pay for the Javelin missiles, and of course Trump could say, “You need to pay for the missiles, though.” If a president thought a terrorist or spy was on American soil, a president could offer arms deals or other support to encourage cooperation. That’s not bribery.

So the key is that asking a foreign government to investigate or prosecute a rival or his family is corrupt in this context. This might be true in any corruption case against any rival (no clear and present danger. Hunter isn’t going to kill anyone). But it seems clear when the case is apparently so weak.

This is unlawful foreign solicitation/coordination. It doesn’t matter if it rises to the level of a criminal violation. It is a civil violation of campaign finance law in itself to solicit a foreign government to conduct opposition research for your campaign, especially given the record of Trump’s 2016 campaign (which I documented here as criminal by Manafort and Gates, and would at least be a civil violation by the campaign).

Key reminder: “High crimes and misdemeanors” for impeachment ARE NOT limited to felonies. The Framers purposely used the English phrase for abuse of power, not felonies. If people argue this transcript is bad but not criminal, they are missing the point and moving goalposts.

In terms of evidence of consciousness of guilt:

The call took place on July 25, with Trump saying AG Barr & Giuliani were in on this plot. A week before: Trump order Mulvaney to block $391M from Ukraine. 3 days after: Trump forces out the uncooperative DNI Coats for his hack in the House, Congressman Ratcliffe. Many officials are implicated.

Five final observations:
1) Some people say Trump’s Biden request came after the quid pro quo “though.” This is wrong, because Trump linked a first thing (CrowdStrike and “the server, they say Ukraine has it”) and “the other thing,” Biden, which came immediately after.
But let’s think about Trump’s CrowdStrike and “server” reference. What’s that about? That’s about the 2016 Russia hack of the Clinton server. Trump is trying to get Ukraine to produce evidence (propaganda) about the 2016 campaign to dispute the claim that Russia was behind the hacking, as part of a crazy conspiracy theory that Manafort’s enemies in Ukraine set him up. So even this effort by itself about CrowdStrike and the server is an effort manufacture campaign propaganda for 2020.
2) This bribery transcript is so damning and criminal, and yet the White House just released it without a fight. It’s hard not to wonder what must be in the IG whistleblower report, Trump’s tax returns, and Trump’s bank records…
3) If Trump, Barr, & Giuliani had to take such risks to press Ukraine to investigate, it suggests the DOJ and FBI resisted their corrupt pressure for a partisan prosecution of the Bidens. That says a ton about the weakness of Trump’s lies & the strength of our rule of law…
4) Impeach Barr. It is obvious Barr must recuse himself. It is equally obvious Barr will resist such calls… But impeaching Barr for such conduct either forces him to recuse or highlights his unethical behavior if he won’t. At least it scrutinizes his conduct.

5) Emoluments! It’s not just the felony quid pro quo… There is also an explicit and sad #Emoluments suck-up by Zelensky on p 4-5:

“The last time I traveled to the United States… I stayed at the Trump Tower.”

Courts: take note of this causal nexus for plaintiffs’ standing and corruption.

Bonus: is this what Giuliani and Trump meant when they said the Take Care clause gabe the president a duty to outsource prosecution to the Ukrainian government?

Two speaking events in September

September 15, 5:00 – 6:30:

League of Women Voters:

Is our Constitution working?

How is our Consitution holding up?  Is there still a balance of powers among the three branches of government? Is the Supreme Court still an independent branch of government or should structural changes be made? What about the independence of the Fed, the Attorney General, and the Department of Justice?  Are we near a constitutional crisis? See details here.

Kendrick-Durand House and Grounds

286 Waverley Avenue
Newton, MA 02458

September 24: The Future of the Supreme Court

JCC Boston Hot Buttons, Cool Conversations Series

We will examine the shift in the Supreme Court and its power to determine the direction of hot button issues including reproductive rights, gun laws, and immigration. We will look at the Court as a bellwether of this nation and examine the power as the highest court. Does the Court reflect the views of the country and where it’s headed?

With Kate Shaw, Gary Lawson, me, and moderator Robert Barnes (Washington Post)

Tuesday, September 24, 2019 at 7:30pm

Riemer-Goldstein Theater, Leventhal-Sidman Center

More info here. Tickets here.