Barr criticized by conservative lawyers for stance on executive power

George Conway, the husband of White House counselor Kellyanne Conway, was one of a group of conservative lawyers and former senior level government officials to criticize Attorney General William Barr for remarks he made in a recent speech saying President Trump has not abused his executive power.

In a statement first provided to The New York Times on Friday, the group, known as Checks and Balances, wrote: “In recent months, we have become concerned by the conduct of Attorney General William Barr.”

The group took issue with a speech Barr gave earlier this month in which he spoke about what he described as the “Constitution’s approach to executive power.”

“Unfortunately over the past several decades we have seen the steady encroachment on executive authority by the other branches of government,” he said in the speech to the conservative Federalist Society. “This process, I think, has substantially weakened the function of the presidency to the detriment of the nation.”

“I’m concerned that the deck has become stacked against the executive and that since the mid-’60s there’s been a steady grinding down of the executive branch’s authority that accelerated after Watergate,” he added. “More and more the president’s ability to act in areas in which he has discretion has become smothered by the encroachments of the other branches.”

In the speech, Barr also discussed what’s known as the unitary executive theory, telling the audience to laughs, “Some of you may recall when I was up for confirmation all these Democratic senators saying how concerned they were about my adherence to the unitary executive fear.”

“In reality, the idea of the unitary executive does not go so much to the breadth of presidential power; rather, the idea is that whatever the executive power may be, those powers must be exercised under the president’s supervision. This is not new and it’s not a theory, it’s a description of what the framers did in Article II,” he said.

Charles Fried, a member of Checks and Balances who teaches at Harvard Law, pushed back on Barr’s views of the limits of executive power afforded under the theory.

Fried, who served as solicitor general during the Reagan administration, told the Times “the executive branch cannot be broken up into fragments.”

He added that it’s “clear that the executive branch is subject to law” and that “Barr takes that notion and eliminates the ‘under law’ part.”

“Conservatism is respect for the rule of law. It is respect for tradition,” Fried said. “The people who claim they’re conservatives today are demanding loyalty to this completely lawless, ignorant, foul-mouthed president.”

Another member of Checks and Balances, Stuart Gerson, told the newspaper that “Republicans in the Senate and in the House think they’re in a Parliament, and their responsibility is to a prime minister to whom they owe party loyalty.”

“That’s not the American tradition,” said Gerson, who served in the Justice Department under the George H.W. Bush administration. “One can recognize substantial executive power, but that doesn’t mean the legislative branch should be dead.”

The group also pushed back on Barr’s conclusion that Trump did not obstruct the Russia probe, saying “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.”

“Subsequent review of the redacted report made clear that there was actually extensive evidence of obstruction by the president,” they wrote.

The Justice Department declined to comment.

Updated at 11:30 a.m.