Attorney General William Barr argued in a 2018 memo that impeachment served as a check on any president who abused his power, seemingly contradicting the argument offered by President Trump’s legal team ahead of the impeachment trial.
Barr, who was still in private practice at the time of the memo’s writing, made the assessment while offering legal advice to the Justice Department and Trump’s legal team. The memo, which was initially confidential and highlighted in a report by The New York Times on Tuesday, attempted to help Trump as he faced pressure to cooperate with former special counsel Robert Mueller’s Russia investigation. The documents were later disclosed publicly during Barr’s confirmation hearings.
The 19-page memo featured Barr’s theory of executive power and his belief that obstruction of justice laws did not apply to president, even if they were under subpoena, according to the Times. But he added that a constitutional check on the president’s conduct still existed.
“The fact that President is answerable for any abuses of discretion and is ultimately subject to the judgment of Congress through the impeachment process means that the President is not the judge in his own cause,” he wrote.
He added that “under the Framers’ plan, the determination whether the president is making decisions based on ‘improper’ motives or whether he is ‘faithfully’ discharging his responsibilities is left to the People, through the election process, and the Congress, through the Impeachment process.”
In contrast, Trump’s impeachment defense team has posed the argument that one of the impeachment articles against Trump is illegitimate because abuse of power is not recognized as a crime.
“By limiting impeachment to cases of ‘Treason, Bribery, or other high Crimes and Misdemeanors,’ the Framers restricted impeachment to specific offenses against ‘already known and established law,’” Trump’s team wrote in its 110-page trial brief on Monday. “House Democrats’ novel conception of ‘abuse of power’ as a supposedly impeachable offense is constitutionally defective.”
Alan Dershowitz, an attorney who is serving as legal counsel for Trump‘s defense team in the Senate impeachment trial, has repeatedly leveled the argument, telling CNN on Sunday that “if the House charges do not include impeachable offenses, that’s really the end of the matter.”
The House voted to impeach Trump for abuse of power and obstruction of Congress in December, making Trump just the third sitting president to face Senate removal. The trial began in earnest on Tuesday afternoon.