Statement in Response to Attorney General Barr’s Address at Federalist Society

November 22, 2019

Statement from co-founders and additional members of Checks & Balances:

As lawyers, many of whom have served in upper level positions in prior Republican administrations, we consider ourselves duty-bound to uphold the Constitution as a document of liberty. In recent months, we have become concerned by the conduct of Attorney General William Barr.

We were troubled by his handling of the Mueller Investigation Report, including his release two days after he received the report of a short letter purporting to summarize its findings, and concluding with no factual discussion that there was no sufficient evidence of obstruction on the part of the President.  Subsequent review of the redacted Report made clear that there was actually extensive evidence of obstruction by the President, and that the only imaginable basis for Barr’s conclusion was his legal view that the President is given total control over all investigations by the Constitution, and thus cannot possibly be guilty of obstructing any criminal investigation by the Department of Justice.

We were also disturbed to read, when it became available for public review, the memorandum that Barr had submitted on June 8, 2018 to the Trump administration, before his appointment, laying out his views on the overall impropriety of the Mueller investigation as a whole, and explaining in detail Barr’s extremely expansive view of the character of Presidential powers.  It is clear to us that Barr’s views as enunciated in this memo are incongruous with settled notions of American government as one of checks and balances and shared powers among the three branches.

And we are now concerned by Attorney General Barr’s November 15, 2019 address to the Federalist Society at its annual convention, in which he issued a call to reform our government in order to “restore” the autocratic vision of executive power that he previously articulated.  In that speech, Barr rewrote history with the unsupported claim that his view of presidential power was shared by the Founders, and has been the dominant one throughout most of our history, only to come under attack during the past several decades.  His assertion, enunciated in bold face in the text of his speech, is that “both the Legislative and the Judicial branches have been responsible for encroaching on the Presidency’s constitutional authority.”

Barr’s view of history, including his claim that the Founders shared in any respect his vision of an unchecked president, and his assertion that this view was dominant until it came under attack from courts and congress a few decades ago, has no factual basis.  Actually, the Founders deliberately created a government of checks and balances, and the effectiveness of different presidents in exercising power within that framework has varied widely.  Indeed, the greatest assertions of presidential power have come in the last half century.  That our system has met those assertions with balanced responses of the other two co-equal branches is hardly a reason to abandon now the system that has served us well for so long.

Donald B. Ayer
George T. Conway III
Carrie F. Cordero
Charles Fried
Stuart M. Gerson
Orin S. Kerr
Trevor Potter
Jonathan C. Rose
Paul Rosenzweig
Andrew Sagor
Jaime D. Sneider
Ilya Somin
J.W. Verret

Each of us speaks and acts solely in our individual capacities, and our views should not be attributed to any organization with which we may be affiliated.

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