There are many reasons Senate Democrats and rule-of-law Republicans should be leery of Donald Trump’s nominee (William Barr) to replace the attorney general (Jeff Sessions) Trump chiefly resented for his failure to be sufficiently loyal. The first and perhaps the most vital reason to be wary of Barr is that he looks to be sufficiently loyal to the president. The second is that Barr brings to the table a decades-long policy history on overincarceration, policing, asylum, and executive power that threatens to maintain Sessions’ crucial policies—with none of the security Sessions’ recusal afforded the Mueller probe.
There are also several reasons Senate Democrats and rule-of-law Republicans should at least consider supporting Barr. He is a seasoned professional, a respected lawyer, and a Washington insider with a working knowledge of government, the executive branch, and the legal culture and norms of the Justice Department. And then, finally, there is one singularly awful argument for his confirmation to which Senate Democrats and rule-of-law Republicans should pay no heed, one that’s been given voice this week across the political spectrum. That argument is that they should all vote to confirm Barr because the alternative is the continued presence of acting Attorney General Matt Whitaker, who was never confirmed and should never have been selected in the first instance.
Here’s Monday’s New York Times, for instance, noting that “Mr. Barr is likely to be confirmed because Republicans control the Senate and because defeating him would leave in place the acting attorney general, Matthew G. Whitaker, a Trump loyalist whose installation in that role Democrats see as illegitimate and a threat to Mueller.” In Sunday’s Washington Post, the parallel claim was raised that “among Republicans hoping to see Barr confirmed quickly, there is a belief that Democratic anger about Whitaker—both his handling of the recusal and the court challenges to his appointment’s legality—will work in Barr’s favor, with “a Republican involved in the discussions” telling the paper that the “best argument for confirming Barr is Whitaker.”
The central fallacy here is that we should all be grateful for the less-awful existential threat to checks and balances posed by Barr than the spectacularly awful existential threat currently posed by Whitaker. It’s a horrible logical premise, not unlike the claim that Democrats should fund Donald Trump’s wall because it’s not as bad as a Donald Trump government shutdown, or that Democrats should accede to Brett Kavanaugh because he isn’t James Ho. Well, no. Senate Democrats and Republicans of conscience should worry about the selection of Barr as AG, regardless of whether the acting AG is a longtime grifter and abusive prosecutor who is also on record opposing Marbury v. Madison. And while we should certainly be grateful that Barr is at least making public claims about the legitimacy of the Mueller probe, that doesn’t make him fit for office.
Indeed, if senators evaluate Barr primarily in comparison to Whitaker, they will be falling into a trap. Whitaker is one of the least qualified individuals to serve as attorney general in American history. He pursued a vindictive and possibly homophobic prosecution against Iowa’s first openly gay lawmaker. He worked for a scam patent company that was shut down by the Federal Trade Commission and that was ordered to pay a $26 million fine. He allegedly threatened a victim of the company He allegedly threatened a victim of the company as well as the founder of the website Ripoff Report.* He served as Sessions’ chief of staff before Trump elevated him as acting attorney general, a promotion that he likely earned by openly criticizing the Mueller probe, particularly on television, which is where he caught the president’s eye. His most notable decision in that capacity, so far, has been his refusal to recuse from the investigation even though a DOJ ethics official has advised him to do so.
Lurking in the background of all of this misconduct is the fact that Whitaker is not even legally permitted to serve. The Senate never confirmed him to serve at the DOJ in any capacity, let alone as the nation’s chief law enforcement officer. His presence is a likely violation of the Constitution’s Appointments Clause, which requires any “principal officer” to be confirmed “with the Advice and Consent of the Senate.” The attorney general is a principal officer, and anyone who exercises the powers of the office must first obtain Senate confirmation. There is not even an argument of necessity here: Deputy Attorney General Rod Rosenstein, just down the hall from Whitaker, has been Senate-confirmed and could easily fill the role. In fact, a federal statute explicitly assigns the deputy attorney general the “duties” of the attorney general when he leaves office. Trump violated the Constitution and ignored federal statute to install Whitaker instead and now seeks that we all solve the crisis for him.
The gravamen of the case for Barr, then, is that he is better than the constitutionally illegitimate and wildly unqualified scammer who is currently acting attorney general. Moreover, goes the claim, it’s important to hustle Barr into office in order to correct for the impropriety of Whitaker’s ongoing service. If that argument carries the day, then Democrats and rule-of-law Republicans will effectively be rewarding Trump for appointing Whitaker in the first place—Trump fails up yet again. By selecting Whitaker, the president created leverage he now gets to exert on every member of the Senate, Republican or Democrat, who says they care about the Justice Department.
It cannot be true that senators must lower their standards to remedy Whitaker’s indefensible and unconstitutional appointment. The fact that Barr has no known beef with Marbury v. Madison or record of lying about his academic honors does not automatically qualify him for the spot. Moreover, any senator who votes for Barr because he is better than Whitaker is acceding to Trump’s lawless ploy. A better solution for disgruntled senators is to support a lawsuit filed by their colleagues Richard Blumenthal, Sheldon Whitehouse, and Mazie Hirono challenging the legality of Whitaker’s appointment. The courts have a duty to enforce the Appointments Clause directly. It should not fall upon senators to enforce it indirectly by rushing to confirm an unsatisfactory replacement.
Every time Trump transforms a lawless hostage situation into a political win, he changes the rules of play. Barr represents the bare minimum a qualified attorney general brings to the table, and a confirmation hearing isn’t an extra treat to be celebrated. It’s the minimum that our constitutional order requires. Senators should evaluate Barr on his own merits, not next to the most unqualified attorney general ever imagined. Barr deserves at least that much respect. So does the rule of law.
*Correction, Jan. 17, 2019: An earlier version of this article misstated Matthew Whitaker threatened “victims” of the company World Patent Marketing. Public reports indicate Whitaker threatened a single victim of the company, plus the founder of the website Ripoff Report.
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