William Barr was, once upon a time, a legitimate AG. But Barr, like many others from the 1990s, like Giuliani, Dershowitz, & Clinton CIA Director James Woolsey, lost their way and lost common sense.
He disqualified himself.
@DanielJHemel & Eric Posner:
nytimes.com/2018/12/21/opi…
He disqualified himself.
@DanielJHemel & Eric Posner:
nytimes.com/2018/12/21/opi…
@DanielJHemel convincingly replied to @AndrewCMcCarthy's odd defense of Barr's memo here. McCarthy's bribery point is not a digression. It is essential to his argument, and that's why McCarthy's larger defense of Barr fails. I'll explain and add below...
3/ I've been debating this question about whether a president can be guilty of obstructing justice by a corrupt removal for almost 2 years. @AndrewCMcCarthy & others have argued that Congress cannot criminalize any official "Article II" (presidential) act like removal or pardon.
4/ The clear counterargument was bribery. A president cannot sell appointments and pardons to the highest bidder. In Fall 2017 we debated this fully.
Barr's side lost that argument.
(Here's one of my posts, but many, many people made this point.)
shugerblog.com/2017/12/12/yes…
Barr's side lost that argument.
(Here's one of my posts, but many, many people made this point.)
shugerblog.com/2017/12/12/yes…
5/ Keep in mind that the pardon power and appointment power are explicitly granted by the Constitution. The removal power is not.
If Congress's general bribery laws apply to pardons and appointments, all the more so they apply to implicit removal powers...
If Congress's general bribery laws apply to pardons and appointments, all the more so they apply to implicit removal powers...
6/ To resurrect this extreme argument for presidential-power-above-the-law, and to revive Barr's nomination (which should be DOA)... @AndrewCMcCarthy needed to address this fatal bribery problem.
And makes an argument that's bizarre on its face... and wrong to the bottom.
And makes an argument that's bizarre on its face... and wrong to the bottom.
7/ So @AndrewCMcCarthy argues that a president cannot be guilty of bribery. @DanielJHemel sufficiently rebutted.
I'd add: When McCarthy claims the president is not a "public official," he may be right that the president may not be an "officer" in formal constitutional terms...
I'd add: When McCarthy claims the president is not a "public official," he may be right that the president may not be an "officer" in formal constitutional terms...
8/ But then what does @AndrewCMcCarthy make of the fact that the Constitution refers to the "Office" of the President many times?
A president may not be an "officer," but the text still suggests he is an "official" holding a constitutional office.
A president may not be an "officer," but the text still suggests he is an "official" holding a constitutional office.
9/ I'd add @marty_lederman's point:
"At a minimum, I think it’s fair to say Congress hasn’t afforded the President any statutory authority to direct the conduct of DOJ’s criminal investigations in a way that would violate his own constitutional oath... justsecurity.org/61975/legal-ar…
"At a minimum, I think it’s fair to say Congress hasn’t afforded the President any statutory authority to direct the conduct of DOJ’s criminal investigations in a way that would violate his own constitutional oath... justsecurity.org/61975/legal-ar…
10/ "...and responsibility to take care the laws are faithfully executed. And that’s important because if Mueller (or Congress) truly were to investigate the legality and propriety of Trump’s treatment of Comey, that would be the central legal question." @marty_lederman.
11/ More on "faithful execution" here. Keep in mind that removal powers were constructed from the take care clause's implicit power, and thus they are also constrained by its "faithful execution" language. Seems like bribery wouldn't be faithful execution.
