For those to dare to venture with me down this treacherous winding path there is a prize at the end of the journey. From his words and actions we must piece together an understanding of Barr’s strategy and its goal.
There’s little doubt that like the President’s personal lawyers, Barr has punched his ticket “on the Trump Train” and like any good team their moves are well coordinated. Still it would be unfathomable to think they would operate without some legal theory, even a flawed one. For the investigating House committees understanding this theory is crucial.
Many of us think Barr’s objective is to push Congress toward impeachment, which Trump can use to consolidate this base. I think Barr and the President recognize that impeachment is inevitable so the goal is to buy time to stir the Trump base into a fever pitch. The strategy relies on reinforcing conspiracy theories, illegal coups attempts and harassment of the President all to discredit impeachment hearings before they begin. The defense is to begin impeachment now.
Even as Barr has tried to obscure the details his legal theory, his testimony before Congress reveals clues and vague instructions for Congress to follow. The surreptitiousness is necessary to hide the fact that impeachment is his idea rather than an unprovoked and impetuous move on the part of the Democrats. The defense is to give Barr the credit he so wants to avoid but so rightfully deserves. Congress should thank him for clarifying his opinion that criminal justice is the domain of the Justice Department while impeachment by Congress is the sole remedy for handling Presidential misdeeds. Congress should stop investigating criminal offenses and begin investigating impeachable offenses.
The following is solely my interpretation of William Barr’s legal theory as it relates to the office of President. The pieces are coming together so I think it’s a fair interpretation unless or until Barr himself is willing to expand on his theory. As it stands I believe Barr has given Congress the green light on impeachment; the House should believe it too!
Barr’s theory is based in part on this definition contained in the U.S. Constitution;
“The charge of high crimes and misdemeanors covers allegations of misconduct peculiar to officials, such as perjury of oath, abuse of authority, bribery, intimidation, misuse of assets, failure to supervise, dereliction of duty, unbecoming conduct, and refusal to obey a lawful order.” For clarification only they added “Offenses by officials also include ordinary crimes, but perhaps with different standards of proof and punishment than for non-officials, on the grounds that more is expected of officials by their oaths of office.”
Barr believes that;
- The prosecution of ordinary crimes by non-officials is the sole duty of the Justice Department and not that of Congress. He has conceded that Congress may interrogate ordinary citizens like Donald Trump Jr. but must refer this to the Justice Department for any prosecution.
- The prosecution of ordinary crimes by officials may be done by both. Ideally Congress should prosecute the official first but with different standards of proof
- The standard of proof in a criminal case is “beyond reasonable doubt.” I’m a numbers guy so I’m going to put that at 97%. The standard for non-criminal cases like civil actions is generally “a preponderance of the evidence”, specifically set by law at 51%. Presumably the higher standard for criminal cases is because of the possibility of physical punishment or confinement whereas other cases are limited to monetary penalties, compliance or injunction.
- According to Wikipedia, ”Conviction removes the defendant from office. Following conviction, the Senate may vote to further punish the individual by barring him or her from holding future federal office, elected or appointed. Conviction by the Senate does not bar criminal prosecution.”
- Prosecution of misconduct peculiar to officials is the sole duty of Congress. The definition gives examples of such crimes but does not limit them in any way. Any abuses of the extraordinary powers granted with the office may be scrutinized in the impeachment process.
While Barr’s strict interpretation of the separation of powers between criminal offenses and impeachable offenses defies precedent, it does make some good points. I think perhaps it is a legal theory of convenience rather than one of firm belief. But either way I would urge the House to take it at face value and proceed directly to impeachment. Barr himself will either have to own it or explain it.