Walter Shaub @waltshaub former Director of @OfficeGovEthics now with @CREWcrew personal account - views are my own May. 20, 2019 3 min read

Democracy according to Barr:
-DOJ can't prosecute POTUS
-DOJ will investigate those who investigate POTUS
-DOJ should investigate POTUS's political rivals
-Congress can't investigate POTUS
-Congress can't request the investigative record
-Congress can't subpoena POTUS's advisors

Barr's Rules (cont.)
-Congress can't conduct oversight without the executive branch's permission
-POTUS can't commit obstruction unless he's guilty of the crime being investigated (even if obstruction obscures the guilt), despite the fact that DOJ routinely brings such charges

Barr's Rules (cont.)
-The AG can ignore ethics officials whenever he disagrees with them
-presidential advisors don't waive any privilege or immunity by giving testimony to criminal investigators (even though the investigators could use their testimony against them in open court)

Barr's Rules (cont.)
-presidential advisors don't waive any privilege or immunity by making public statements on a subject (meaning that telling the entire world what the president said does not entitle Congress to question you)
-there is no crime exception to Barr's rules

Barr's Rules (cont.)
-DOJ's Office of Legal Counsel (OLC) is the arbiter of when Congress can invoke "inherent contempt"
-OLC can overrule both a House committee chairman and a federal district court
-OLC's past opinions have precedential effect, except when their about nepotism

Barr's Rules (cont.)
-past presidents failing to assert privilege or immunity have no bearing on the present, but Congress failing assert its authority in the past is relevant
-there's no irony in citing Nixon era examples
-POTUS can "direct" a former appointee not to testify

Barr's Rules (cont.)
-implicit threats are fun: "The failure to recognize the extension of the President's immunity from compelled congressional testimony to senior advisors would call into question the well-established extension of derivative immunity to congressional staffers"

Barrs Rules (cont.)
[the translation for that last item is: "If you say you can make our guy testify, maybe we'll have to reconsider the doctrine that says we can't prosecute your guys for their legislative work"]

Barr's Rules (cont.)
-there are very few relevant examples, but they happened far apart, so we can call them "longstanding"

Here's today's opinion that articulates many of Barr's rules for democracy: 

McConnell/Graham supplement to Barr's rules:
-POTUS can fire the FBI Director and Attorney General for allowing him to be investigated, and we'll be happy to confirm replacements for both of them
-the Senate should investigate those who investigate POTUS

Senate supplement (cont.)
-It's ok if the new AG auditioned for the job by writing a memo espousing a fringe theory
-We don't need to compel witnesses who provided inconsistent testimony to explain themselves in a public hearing

Senate supplement (cont.)
-No need for oversight of a norm-shattering admin that uses private email for internal communications (and message-deleting apps to secretly deal with foreign powers), but we need to investigate the emails of an official who's been out of govt for 6 yrs

Senate supplement (cont.)
-vague expressions of general concern are sufficient to offset the erosion of congressional authority
-it's appropriate for a chairman of a committee to urge the president's son to plead the Fifth if a different committee compels him to testify

Senate supplement (cont.)
-we have no objection to a president using emergency authorities to do end runs around the budget power of Congress
-we have no problem with novel legal opinions expanding executive power at the expense of the legislative branch

Even the Judicial Branch is getting in on the act. Here's a judicial supplement to these rules:
-we can freely ignore past precedent if we disagree with it, without making a compelling case for changed circumstances

If all of this doesn't scare you, wait until OLC (God forbid) issues an opinion on the Insurrection Act, the scope of emergency powers, or the conduct of the 2020 election.

But just to inject a little hope into this Pandora's box, here's some good news today:

You can follow @waltshaub.


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