Academic: Independent FCC, FTC Would be Unconstitutional Under Barr Theory

Georgia State law professor Nail Kinkopf told the Senate Judiciary Committee that the independence of federal agencies including the FCC are at risk under attorney general nominee William Barr's theory of executive power.

That came in day two of Barr's confirmation hearing, which featured a lively discussion of executive power.

Kinkopf did not sugar coat his criticism of a lengthy 2018 memo on that legal issue that Barr penned, a memo Democrats have pointed to as troubling since it argued the President's "interactions" with FBI director James Comey did not constitute obstruction of Justice.

Kinkopf said Barr's "manifesto of imperial power" has troubling implications for the executive branch. He said the independence of dozens of agencies including the FCC and the Federal Trade Commission, would be unconstitutional under Barr's "unitary executive" theory that the President is essentially a one-person, all-powerful, executive branch. Kinkopf said that theory is "fundamentally inconsistent with our Constitution and deeply dangerous for our nation.

But it was a case of dueling academics. In Barr's corner was witness Professor Jonathan Turley of the George Washington University Law School (the panel on the second day of hearings comprised alternating supporters and critics of Barr).

Turley, Barr's friend and former lawyer, said he disagreed with Barr's expansive theory of executive power, being more on the side of the legislative check in the systems of governmental checks and balances. But he said Barr was a legal nerd raising an important issue and, at the end of the day, understood that the Attorney General did not represent any on person or official, but the Constitution. He called Barr one of the most knowledgeable and circumspect leaders when it comes to constitutional theory.

Turley said the memo was vintage Barr wearing his law nerd hat, which Turley also claimed to sport. While Turley said the obstruction of justice question is a real issue of debate, on which he disagrees with Barr on some points, he argues that far from suggesting a sitting President is above indictment, Barr says the President can be charged with federal crimes in office, including obstruction of justice.

Turley agreed that Barr says that the Constitution does not limit the power of the presidency, but also that if a President misuses that authority it can be an abuse of power and he or she can be prosecuted while still in office.

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.