'There is a real danger' Bill Barr could get the courts to make Trump totally immune from oversight: Ex-DOJ official

On Monday, The New Yorkerprofiled Attorney General William Barr, and identified him as the key figure behind the Trump administration's ideological drive to concentrate power within the executive branch — a battle that has intensified as impeachment proceedings have heated up and is gearing up to play out in federal courts.

"Barr maintains that Article II of the Constitution gives a President control of all executive-branch agencies, without restriction," wrote The New Yorker's David Rohde. "In practice, this means that Trump would be within his rights to oversee an investigation into his own misconduct."

Republican attorney Chuck Cooper argues that Barr's ideology is the culmination of a drive that began during the Reagan years. "He is building and extending on a foundation. It was popularized and very robustly advanced by the Meese Justice Department," said Cooper. Meese, a controversial attorney general who also had a broad view of executive power, was recently awarded the Presidential Medal of Freedom by Trump.

Some legal experts, like Lawfare's Benjamin Wittes, believe Barr's moves to weaken congressional oversight of executive power will be largely repudiated by the courts, particularly the administration's stance on executive privilege. "The idea that the President gets to assert executive privilege over material that has already been made public is laughable," said Wittes. "I think they are very likely to lose a lot of this."

But others, like George W. Bush's former Deputy Attorney General Donald Ayer, believe Barr has a chance of victory. "The ultimate question is what happens when these reach the Supreme Court, which has two Trump appointees," said Ayer. "There is a real danger that he succeeds ... This, I believe, was his opportunity — the opportunity of a lifetime — to make major progress on advancing his vision of an all-powerful Chief Executive."

And NYU Law professor Stephen Gillers warns that this battle is not just playing out in the courts, but in the staffing of the FBI and Justice Department itself — by creating such a hostile environment for the old guard of career public servants that they leave and make room for partisan loyalists. Gillers fears this trend will accelerate if Trump is re-elected in 2020.

"One way that Trump seeks to maximize control is minimizing the disclosure of information and undermining the credibility of information,” said Gillers. "The Congress needs information to do its job, and the President has frozen it out — especially in the impeachment investigation. Another check is the media, and the President's use of the term 'fake news' can cause people to lose faith in the media. What remains are the courts, which are slow and cumbersome."

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