On Friday, Attorney General William P. Barr delivered a lecture to the Federalist Society’s annual convention in Washington, a major national meeting for conservative and libertarian lawyers. The speech led to immediate controversy and pushback among lawyers, politicians and pundits. In it, the attorney general said that the American presidency has been “substantially weakened … to the detriment of the nation,” and that the “deck has become stacked against the executive.” He said that since “the mid-1960s, there has been a steady grinding down of the executive branch’s authority.” Barr blames lawyers and judges for eroding executive autonomy and authority, conspiring to usurp presidential power so as to “undercut the functioning of the presidency.”
Barr’s claims sit awkwardly with the political science literature. It is well documented that presidential power and autonomy have grown over the past three decades, because of factors such as divided government and congressional gridlock, polarization and tribal partisanship, and our perpetual state of war and emergency. Indeed, there is good reason to think that the truth is more or less the opposite of what Barr claims. One key factor in the growth and maintenance of presidential power, especially after the Watergate scandal that brought down president Richard Nixon, has been the work and creativity of government lawyers. Despite Barr’s assertions to the contrary, lawyers — especially those connected with the Federalist Society for Law and Public Policy Studies — have played a critical, even indispensable role in growing what many scholars and observers refer to as the “imperial presidency.”
Lawyers protected presidential power after Watergate
Barr identifies the period just after Watergate as the time when the current “grinding down” of presidential authority began. Legislation after Watergate sought to promote transparency and combat abuses of power within the presidency in particular and the federal government in general. What happened, however, was that these efforts effectively “hyper-legalized” or, as Gordon Silverstein calls it, “juridified” presidential power. In plain language, government lawyers moved the battle from Congress to the courts, using creative legal arguments to defend and insulate the presidency from legal or constitutional attack at every turn.
The clearest example of this hyper-legalization of presidential power were the early years of the war against terrorism after the attacks of Sept. 11, 2001. Jack Goldsmith, who was assistant attorney general in the George W. Bush administration, wrote in his memoir, “The Terror Presidency, that “the President had to do what he had to do to protect the country … [a]nd the lawyers had to find some way to make what he did legal.”
As my 2011 law review article discusses, lawyers connected with the Federalist Society played a crucial role in making the war against terrorism legal. The unitary executive theory — characterized by Barr in his speech as the unfair victim of “breathless attacks” by the “modern progressive polemic” — was intellectually nurtured and developed by Federalist Society academics. The theory was then deployed by its members working within the Bush administration to insulate the president from complying with international treaties, domestic surveillance law, and a host of other obligations that the president believed infringed on his ability to most effectively wage the war against terrorism. The Torture Memo is perhaps the most famous example of such efforts, but as other scholars and I have shown, it was just one part of a larger, lawyer-driven campaign to scaffold a robust understanding of unilateral executive power.
It’s not just conservative lawyers who built the imperial presidency
Barr and his fellow Federalist Society members deserve credit for building the scaffolding for what fellow libertarian scholar Richard Epstein referred to as “Executive Power on Steroids.” However, Democratic presidents and their lawyers have also used these arguments to their advantage. Lawyers for President Bill Clinton asserted in Clinton v. Jones, against a woman who accused the president of sexual harassment, that presidential privilege should shield a sitting president from participating in a civil trial. The Supreme Court disagreed, but the same reasoning was used in the October 2000 Office of Legal Counsel memo shielding a sitting president from indictment in a criminal trial. As was reported in the context of the Mueller investigation, this memo written by government lawyers precluded special counsel Robert S. Mueller III from charging President Trump with a crime in connection with the inquiry. In 2011, government attorney Harold Koh publicly defended President Barack Obama’s unilateral bombing of Libya in the face of many of the same critiques he and his liberal law colleagues had levied at the Bush administration.
Lawyers are also on the front lines of what Barr derisively referred to in his speech as “The Resistance,” the opposition effort he claims is attempting to “sabotage the functioning of [Trump’s] administration.” Lawyers led the legal battle against the Trump administration’s travel ban against members of Muslim-majority countries. Many continue to work on human rights abuses at the U.S.-Mexico border, fighting to provide immigrants and refugees with due process. In a case that will soon test the Supreme Court’s appetite for executive privilege and secrecy, lawyers have spearheaded efforts to force the president to release his tax returns.
There is a long-standing affinity between lawyers and executive authority
Barr’s speech focuses on the post-Watergate period. However, these fundamental questions go back to the beginning of the United States. Nearly two centuries ago, the French political thinker Alexis de Tocqueville suggested, in his canonical work “Democracy in America,” that lawyers had the propensity to become “serviceable instruments” of executive authority.
“I am, in like manner, inclined to believe that a monarch will always be able to convert legal practitioners into the most serviceable instruments of his authority. There is a far greater affinity between this class of persons and the executive power than there is between them and the people …”
As the nation’s leading lawyer, Barr in his speech suggests that Tocqueville was right. Although his speech lambastes lawyers and judges for curtailing executive power, his appearance before the Federalist Society for Law and Public Policy Studies demonstrates precisely the opposite. Barr and many members of his audience have served to bolster and increase presidential authority rather than pushing back against it.