Dis-Barr the Justice Department

William Barr must resign as Attorney General of the United States. A year ago, I testified at Barr’s Senate confirmation hearing. I urged the Senate to reject the nomination:

We live in troubled times, marked by deep political divisions. In such times, it is especially crucial that our legal institutions remain anchored to sound legal principles. Our President has declared “I have [the] absolute right to do what I want to do with the Justice Department.” Public confidence in the rule of law depends on there being an Attorney General who will not allow the President to do whatever he wants with the Justice Department. William Barr’s views of presidential power are so radically mistaken that he is simply the wrong man, at the wrong time to be Attorney General of the United States.

I would have been very pleased to have been proven wrong. Instead, I must concede that Barr’s tenure has been, without exaggeration, far worse than I predicted. In that sense, I am not saying here that I told you so. Rather, my warning was insufficiently dire.

Attorney General Barr has fed President Trump’s most outrageous visions of executive power. President Trump now declares, “I have an Article II where I have the right to do whatever I want as President.” This is an apt distillation of Barr’s extreme theory of presidential power. In the summer of 2017, while he was still a private citizen, the once and future Attorney General wrote a nineteen-page memo to Deputy Attorney General Rod Rosenstein. The memo expressed Barr’s outrage at reading reports that Special Counsel Robert Mueller was considering obstruction of justice charges against President Trump. Barr began by laying out his theory of presidential power:

Constitutionally, it is wrong to conceive of the President as simply the highest officer within the Executive branch hierarchy. He alone is the Executive branch. As such, he is the sole repository of all Executive powers conferred by the Constitution.

It is difficult to imagine a more succinct expression of an imperial executive. Lest my characterization seem overstated, note that Barr himself has fully embraced it. In a keynote address to the Federalist Society last November, Barr offered a revisionist history of the Constitution in support of his view of presidential power. According to him, the founding generation meant to model the presidency on the King of England in order to provide a check against their real concern – a too powerful legislature.

It bears emphasizing that this narrative has no support in the actual history of the Constitution. If there was any precept on which the founding generation universally agreed, it was that they did not wish to recreate the monarchy. Opponents of the Constitution objected that the presidency was a “foetus of monarchy,” while its supporters worked tirelessly to counter the charge. The point on which they agreed was the evil of monarchy. From the very beginning, political opponents of the president charged him with acting like a king. Thomas Jefferson was particularly effective in wielding this charge to unseat John Adams.

It also bears emphasizing that Barr’s error is not merely a theoretical matter. Barr’s theory has dramatic and practical consequences. It means that the president is not subject to legal constraint and that no law can prohibit him from abusing his power. Specifically, Barr argued that the president cannot (ab)use his office to commit obstruction of justice. But Barr also generalized the point: “under the Framers’ plan, the decision 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.” Yes. He actually wrote that. Now that we’ve all seen just how ineffectual the impeachment power is in this Trump Era, the only surviving restraint on presidential power is the presidential election – an institution the president seems all-to-willing to subvert and, on Barr’s theory, there can be no limit on the president’s ability to use his office to further this subversion.

President Trump has repeatedly exercised Barr’s advice that Article II gives Trump “the right to do whatever I want as President.” The highlights are well known. It is important to understand what we have witnessed in the past months is directly related to Barr’s monarchic theories of the presidency, as he now sits atop the Justice Department including the Office of Legal Counsel. The series of actions include the president’s stonewalling Congress’ legitimate constitutional oversight and investigative powers (not to mention its impeachment power) denying the peoples’ representatives access to crucial witnesses and documents (John Bolton, Mick Mulvaney, Don McGahn, OMB documents, his tax returns, etc.). The president used his Barr-invented immunity from obstruction of justice laws to engage in open witness intimidation (recall his tweets during the testimony of Ambassador Marie Yovanovitch), retaliation against whistleblowers (threatening and unleashing his army of twitter trolls on the Ukraine-call whistleblower), withholding foreign aid to extort Ukraine into announcing a corruption investigation of former Vice President Biden, and retaliation against Alexander Vindman by removing him and his brother for no offense other than testifying truthfully (ditto Gordon Sondland). More recently, the president has taken to Twitter to browbeat and intimidate Judge Amy Berman Jackson in connection with the sentencing of Roger Stone. And within the same media cycle, we learned of the president’s outrage at the intelligence community for (truthfully) briefing the House Intelligence Committee on their assessment that Putin favors Trump in the 2020 election.

That Barr would provide outrageous legal cover for these kinds of acts was clear from his record at the time he was confirmed. What was not at all clear was that Barr would cast aside the independence of the Justice Department. That independence was placed under assault during the Nixon Administration and saw Nixon’s first two attorneys general convicted of crimes relating to Watergate and its coverup. In the wake of those scandals, it took decades of sustained effort by attorneys general serving administrations of both political parties to restore the Department’s reputation for independence. By many accounts, Barr’s first stint as Attorney General (during the presidency of George H.W. Bush) fit this mold. In 1992, for example, he upheld, against White House opposition and during a presidential election, an Office of Legal Counsel opinion that the president could not order the Treasury Department to index capital gains for inflation. Later that year, however, and in a preview of coming attractions, Attorney General Barr advocated President Bush’s lame duck pardon of Caspar Weinberger and other Iran-Contra conspirators.

If the 1992 version of Attorney General Barr had conflicting instincts, today’s version seems fully committed to turning the Justice Department into a vehicle for President Trump’s partisan political schemes. This list, too, is familiar. It begins with Attorney General Barr presenting a false and misleading summary of the conclusions of the Mueller Report while withholding the actual report and its real findings for a week. What other reason can there have been than to ensure that the false narrative Barr presented would take hold and supplant the two-volume, hundreds-of-pages-long report? The Attorney General’s defenders can claim that the full report was eventually released and with only minimal redactions and that the Attorney General’s representations were simply a matter of public relations. Politics, famously, ain’t beanbag. But Attorney General Barr’s public messaging occupied the airwaves for weeks with disinformation about Mueller’s findings, and Barr did not stop there. He has launched an extensive criminal investigation of the probe into Russian interference with the 2016 presidential election. He has also launched an investigation into the prosecution of the Trump Administration’s first National Security Adviser, Michael Flynn. Here, Barr’s defenders might point out that none of this represents interference with ongoing investigations. That seems like cold comfort, however, as the cumulative effect of these investigations is so obviously to institute a profound disincentive for any investigator or prosecutor to even be involved in a matter that may not promote the president’s personal political interests. What’s more, Barr has in fact crossed that line too. He has engaged in high level talks with the governments of Australia, Britain, and Italy,  to find evidence to support the Russian intelligence service claims that it was Ukraine, not Russia, that sought to interfere in the 2016 election. More recently, Barr has set up special intake procedures for information on the matter from the president’s personal lawyer, Rudolph Giuliani. And, of course, he just last week rescinded the sentencing recommendation for Roger Stone hours after the president tweeted that it was unfairly harsh.

I had the privilege of serving in the Justice Department’s Office of Legal Counsel from 1993-1997, when the Office was headed by the legendary Walter Dellinger. We handled many sensitive and even politically charged matters (the legality of the use of military force in Haiti and the former Yugoslavia, FDA regulation of tobacco products, the government shutdowns, gun control legislation, campaign finance and lobbying reform, and affirmative action to name a few). I worked on a number of these matters and never felt any political pressure whatsoever. I only later found out that this was not because there was no political pressure on the office. It was because Walter Dellinger absorbed the political pressure himself and shielded the attorneys in the office. He did this with the backing of Attorney General Janet Reno. Indeed, this has been the tradition of the Department through Republican and Democratic administrations since the dark days of Watergate: it is the function of the Department’s political appointees – the Attorney General chief among them – to ensure that the Department of Justice is insulated from political pressure in administering the laws. Attorney General Barr has inverted this tradition and made his office a conduit for political pressure.

President Trump has not left it to Attorney General Barr to undermine the Justice Department all on his own. On Tuesday, the president issued a raft of pardons and one commutation to a host of unworthies. Prominent figures receiving the president’s rehabilitation included Edward deBartolo, who bribed the Governor of Louisiana to obtain approval for a casino; Michael Milken, whose securities fraud conviction was borne of a greed that would have shamed Crassus; Bernie Kerik, the former New York Police Commissioner and business partner of Rudy Giuliani, who helped organized crime figures secure government contracts; and notorious former Illinois Governor Rod Blagojevich, who in addition to trying to sell Barack Obama’s vacant Senate seat extorted a wide range of businesses including a children’s hospital. Blagojevich has been explicit about how he views his clemency: it is a vindication that shows he was a “political prisoner.” This is an outrage on many levels, but it is a particular affront to the Department of Justice. The department has a process for reviewing clemency and pardon petitions. The point of this process is to make sure that pardons are issued to those who are truly worthy and not just politically connected. It also allows an opportunity to be heard to the victims of the applicant’s crimes and to the prosecutors who worked so hard to secure convictions of each of these criminals. The pardons issued on Tuesday were granted outside this process. The president’s decision to proceed outside this established process, and now set up a mechanism to do so under Jared Kushner, shows his contempt for the Department and its career prosecutors.

On Wednesday, the president issued a series of tweets and retweets that, in the words of a New York Times report, “embrace the suggestion that Attorney General William P. Barr ‘clean shop’ at the Justice Department.” Barr complained just last week that the president’s tweets “make it impossible for me to do my job.” If Barr simply meant that he does not need instruction to run the Justice Department according to the president’s political agenda, then he is beyond reach and all the calls for him to restore the Department’s independence will be for naught. If, however, there is anything left of the 1992 Attorney General Barr who stood up for the rule of law, then he must stand opposed to the president’s recent subversions. The only way to do that is to resign in protest. Stand up by stepping down.

 

Images: The United States Department of Justice via Wikimedia Commons

 

About the Author(s)

Neil Kinkopf

Professor of Constitutional Law at the Georgia State University College of Law; Co-author of Separation of Powers Law: Cases and Materials (4 th ed. 2018)