Reagan's Solicitor General Says 'All Honorable People' Have Left Trump's Cabinet: 'He is Capable of Doing Serious Damage'

Charles Fried was a fervent, superior officer on the frontlines of the Reagan Revolution. As solicitor general of the United States from 1985 to 1989, he urged the U.S. Supreme Court to overturn the reigning liberal orthodoxies of his day—on abortion, civil rights, executive power and constitutional interpretation.

But the Trump Revolution has proven a bridge too far. As he reveals in a scorching interview with Newsweek's Roger Parloff below, Fried has broken ranks. He denounces a president who is "perhaps the most dishonest person to ever sit in the White House." As disgusted as he is by President Donald Trump, Fried is, if possible, even more dismayed by William Barr, Trump's current attorney general, for having stepped up as Trump's chief apologist. Fried says of Barr. "His reputation is gone."

Fried was born in Czechoslovakia in 1935, a country soon overrun by fascists and, later, by communists. His family escaped to England in 1939 and came to the United States in 1941. Fried became a U.S. citizen in 1948, got his B.A. from Princeton in 1956, two jurisprudence degrees from Oxford, and then a law degree from Columbia in 1960. He took a faculty position at Harvard Law School in 1961, and has been affiliated there, on and off, ever since, authoring nine books on law and moral philosophy. He has argued more than two dozen cases in the U.S. Supreme Court, and served as an associate justice of the Massachusetts Supreme Judicial Court from 1995 to 1999.

Charles Fried in 2011. Brendan Smialowski/Getty

At the outset of this interview, at his office at Harvard on January 14 (pre-Senate trial), Fried asked if he could make a few prefatory observations about the fundamental errors in Trump's understanding of presidential power that have led to his impeachment. He provided Newsweek with a copy of the landmark U.S. Supreme Court ruling in the Steel Seizure Case of 1952 (Youngstown Sheet & Tube Co. v. Sawyer), which he'd marked up with a yellow highlighter pen.

That case arose during the Korean War, when a labor strike threatened to hobble the nation's production of steel, which was indispensable to the war effort. President Harry Truman, "to avert a national catastrophe" and meet a "grave emergency," his lawyers argued at the time, issued an executive order commanding the secretary of commerce to seize control of the nation's steel production. The steel mills sued, claiming the president had exceeded his powers. Truman's solicitor general defended the president's order in the Supreme Court by arguing that Article 2 of the Constitution gave him "a grant of all executive powers of which the Government is capable." The Court rejected Truman's arguments, 6-3.

Fried then read to Newsweek key excerpts from the celebrated concurring opinion of Justice Robert Jackson. Though the Constitution did make the president the "Commander in Chief of the Army and Navy," Jackson wrote, it did not make him "Commander in Chief of the country, its industries and its inhabitants."

The Q&A then commenced, with Fried completing his introductory remarks about Trump's basic misunderstandings of presidential power. Edited excerpts:

Charles Fried: The first thing, which sets the context, is the rhetoric of the president, both when he was running and ever since. The famous statement that he could shoot somebody on Fifth Avenue and get away with it. The assumption he makes is that by virtue of the November election of 2016, he has a mandate to be the leader of the country. The commander in chief of the country. The German word is fuhrer. The Italian word is duce.

He talks about loyalty. He asks for loyalty. To what? To him personally. Not to the law, which he is supposed to be faithfully executing. This comes up over and over again. Where an official—for instance, the whistleblower—following the law, performing a legally defined duty, following a chain of command, does something that undermines Trump's personal situation, he defines it as espionage, as sabotage. He looks back to the days when people could get shot for doing that.

Now, maybe if you think of a few occasions in our history—for instance, [President Franklin] Roosevelt's landslide in 1936—there would have been some color for this view. Unnecessary, in that instance, because Congress and he were absolutely of one mind. But Trump's opponent got 2.8 million more votes than he did. So there is no remarkable popular mandate to this man. He was constitutionally elected. Fine. What that means is, he has such powers as the Constitution gives him. And those are the executive powers.

As Justice Jackson said in the Steel Seizure Case, that term is not a "grant in bulk of all conceivable executive power." It is only such executive powers as are specified.

The principal one is "to take care that the laws be faithfully executed." The laws made by Congress. And to do so faithfully. Not trickily. Not underhandedly. Not by transferring [money from one budget to another] and calling emergencies—as with the building of the wall.

Now there are a number of other powers. The power of nomination, with advice and consent. The pardon power. And the commander in chief power. Commander in chief means that he is the superior officer of all the officers in the military. But it doesn't mean he can do things which no general or colonel could do. And as Justice Jackson said in the Steel Seizure Case, he is the commander in chief of the Army and Navy. But not of the nation, its industries and its people.

This fantasy, which obsesses this president, completely misunderstands that.

Supreme Court Justice Robert H. Jackson in the fall of 1941—his first term on the Court. Bettmann/Getty

Newsweek: Attorney General Barr talks about the unitary executive—

Charles Fried: Yes, that's fine. What that means is very clear. The framers were concerned about the powers of the royal governors. And what the various colonies had done was to have councils which sit with the governor. As to some of the powers of the governor, they had to approve. That was rejected [in the U.S. Constitution]. The idea is that in the federal executive department there is one structure, and the president sits at the top of it. But he sits at the top of it to do that which the Constitution commands him to do: namely, to execute the laws. It doesn't mean that the unitary executive is somehow above the law. He is the unitary executive to execute faithfully the laws as written by Congress.

In Barr's view, since the president is head of the Justice Department, certain sorts of obstruction of justice aren't possible. If he's removing [FBI Director James] Comey, even for bad reasons, or if he's asking Comey to drop the investigation of former National Security Advisor Michael Flynn, even to protect himself, those actions are beyond scrutiny. They can't be obstruction of justice.

And that's a difficult question. It's obviously not been adjudicated. What is clear is that, whether or not that is criminal obstruction of justice—and that's an open question—surely it is an abuse of power such that impeachment would be warranted.

What about the following? Amazon Web Services alleges in a recent lawsuit that it lost a $10 billion defense contract because the president interfered with the impartial bidding process. It alleges he did that to punish Amazon's CEO, Jeff Bezos, who owns The Washington Post, whose political coverage he hasn't liked. The government denies the allegations, but assuming for the sake of argument that Trump really did that, would Trump, as the unitary executive, be beyond sanction, because he's the head of the Department of Defense and Department of Justice.

There are laws about this. The laws are meant to prevent what happens in Third World countries and in gangster regimes, where contracts are given to your friends and denied to your enemies. That's what competitive bidding is for. Interference with that is unlawful. In any case, to do that for political punishment is, again, corruption and, again, impeachable.

Do you know Bill Barr?

No, I think I met him in the corridor once.

Did you support him for attorney general this time?

No, I did not.


Because I'd heard things that led me to believe his principal concern is power.

Executive power or personal power?

Both. But to read this—[pointing to the text, lying on his desk, of the keynote speech Barr gave before the Federalist Society in November]—is shocking. Let me just give you a few examples. He says that "immediately after President Trump won election, [opponents] inaugurated what they called 'The Resistance,'" instead of the "loyal opposition, as opposing parties have done in the past." [Barr said this was "very dangerous—indeed incendiary. ... They essentially see themselves as engaged in a war to cripple, by any means necessary, a duly elected government. ... In waging a scorched earth, no-holds-barred war of 'Resistance' against this Administration, it is the Left that is engaged in the systematic shredding of norms and the undermining of the rule of law."]

He seems to have forgotten that it's [Senate Majority Leader] Mitch McConnell who said [in 2010] "the single most important thing we want to achieve is for President [Barack] Obama to be a one-term President." At another point in this speech he said that, yes, the Senate has the power of advice and consent [on presidential nominees], but they shouldn't be obstructing the process. But look at what McConnell did with [Supreme Court nominee] Merrick Garland.

Barr knows all of this. And he's supposed to be a very moral man, and so on and so forth. But to be the apologist for perhaps the most dishonest person to ever sit in the White House? I mean, dishonest in the sense that he lies the way other people breathe. You would think that the project of protecting presidential powers would provide a worthier subject than that, particularly for a supposedly honorable man. But the fact is, all the honorable people in the Cabinet have left. And what you have left is people who are willing to say anything, as Barr is. And you saw the way he treated the Mueller Report, which he misrepresented, because that is what his boss would have wanted.

You lie down with dogs, you get up with fleas. His reputation is gone.

U.S. Attorney General William Barr in January. Win McNamee/Getty

Barr argued in his Federalist Society speech that courts have been encroaching on executive powers. He asserted that courts should not even be reviewing the president's refusals to comply with Congressional subpoenas. "How is a court supposed to decide," he said, "whether Congress's power to collect information in pursuit of its legislative function overrides the president's power to receive confidential advice in pursuit of his executive function? Nothing in the Constitution provides a manageable standard for resolving such a question."

Does that mean the president is supposed to say what the law is? In Marbury v. Madison [in 1803], Chief Justice [John] Marshall said, "It is emphatically the duty of the Judicial Department to say what the law is." This is a rant. This is not a reasoned statement. And Barr knows all this. He's a very intelligent man, who's willing to say anything.

One remaining question about Barr. It's been reported that federal prosecutors in the Southern District of New York are criminally investigating Rudolph Giuliani, the president's personal lawyer. Almost any scrutiny of Giuliani will draw into scrutiny of Trump's conduct, too. Are you confident in Barr's willingness to let the prosecutors go wherever the facts lead them?

I don't think he would dare to interfere. I'm sure he would dearly love to. But I don't think he would dare to. He's a smart man.

Were you at Barr's Federalist Society speech in November?

No, I wasn't.

Are you a member?

I have been a faculty adviser of the Federalist Society at Harvard [since the Society's formation in the early 1980s]. It has always been a group of the most admirable students here. At almost all of their presentations, they studiously seek to get people on the other side, to have a fair debate. And they are good people. My tutor in conservatism is the justice for whom I clerked, John Marshall Harlan, who I think is the greatest conservative justice of the latter half of the 20th century. But it's unimaginable to think of him speaking the way that this hoodlum speaks.

Referring to—

Trump. This is not conservatism. And neither is William Barr's speech. That is a rant.

From the reporting, it seems that Barr's speech was very warmly received. It seemed like he got an enormous ovation.

I wasn't there.

You've joined the group Checks & Balances. (Co-founded by George Conway in November 2018, it is a group of prominent conservative and libertarian attorneys devoted to the rule of law and—though the mission statement doesn't say it—opposed to Trump.) Why did you join?

As the hymn goes:

"Once to every man and nation comes the moment to decide,
In the strife of Truth with Falsehood, for the good or evil side."

The man shames the office and the nation: he is a man of low character and repellent personality. I joined as soon as it came into being.

The group now has 21 signatories—all very prominent. But the Federalist Society has close to 70,000 lawyer members. Checks & Balances is tiny. Have conservative lawyers rallied around Trump the way the rest of the Republican Party has?

I don't know.

Do the Harvard students you see in the Federalist Society support Trump?

I have no idea, and I wouldn't ask.

I assume you think it was right to impeach Trump.


And that he should be removed?


The House clerk and impeachment managers bring the articles of impeachment of President Donald Trump from the House to the Senate on January 15, 2020. Brendan Smialowski/AFP/Getty

Some people argue that we're near an election. Maybe we should let the electoral process take its course.

First of all, every day that a corrupt president sits, he is capable of doing serious damage. The other thing is: now that the House has issued—to my mind—correctly formulated articles of impeachment, the Senate's duty is to try that. Trial means fair consideration of whether the charges are justified and, if so, so to state. Whether it's January 2020, or November 2020, or, indeed, December 2020.

Some argue that the current impeachment articles against Trump are insufficient because they don't specifically allege a crime. What would your response be?

The [Constitutional] text is too general and the precedents too few to permit a confident answer. I don't believe the Constitution requires the charge of a specified federal crime, of which, at the time of the framing there were very few. What Trump is charged with is analogous to bribery—extortion, if not technically so. Here again is Jackson in the Steel Seizure Case: "Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh. A century and a half of partisan debate and scholarly speculation yields no net result, but only supplies more or less apt quotations from respected sources on each side of any question. They largely cancel each other."

Some argue that the current impeachment allegations against Trump don't "rise to the level" of an impeachable offense. Your view?

I don't agree. They argue a serious, concerted and corrupt use of presidential power for personal political gain.

Some argue the allegations haven't been adequately proven.

I don't understand how much more proof you want. But, in any event, additional proof is available. It's just that the president will not supply it. That is an additional grounds for impeachment. He has issued blanket orders not to cooperate in any respect by anyone. Now there are all kinds of valid privileges. And those could be invoked. But a blanket privilege because this is an "illegitimate process"? Well, he doesn't get to say that. That blanket order is itself an impeachable abuse of power.