Slate -In June, [Attorney Genral nominee William] Barr wrote a memo to Justice Department officials to attack the special counsel investigation, and specifically a theory of the case for potential presidential obstruction of justice based entirely on media speculation regarding Mueller’s intentions. It’s weird for a lawyer to write a 19-page single-spaced memo attacking a hypothetical theory. But the memo includes two sentences that betray both Barr’s extremism in defining the powers of the president and a deep lack of seriousness when it comes to constitutional interpretation.
Barr, a former attorney general under George H.W. Bush, writes, “Constitutionally, it is wrong to conceive of the President as simply the highest officer within the Executive branch hierarchy. He alone is the Executive branch.”
From this extraordinary premise, Barr derives an extraordinary conclusion: “Because the President alone constitutes the Executive branch, the President cannot ‘recuse’ himself” from control over any federal prosecutorial investigation, including an investigation in which he has a personal stake. In other words, he is constitutionally entitled to call off any prosecution, even if he, his family members, or close associates are likely targets. The implications for presidential power of this theory were set forth by Barr himself through a series of memorandums.
What Barr ignores is that Article II of the Constitution—the charter for the executive branch—explicitly refutes this reading. Article II refers specifically to separate “executive Departments.” So, constitutionally, it is nonsense to assert that the president “alone” is the executive branch.
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