Jurisprudence

The Barr Presidency

The attorney general calls for unchecked executive power as congressional oversight closes in on him.

William Barr on Oct. 2 in Topeka, Kansas.
William Barr on Oct. 2 in Topeka, Kansas.
Ed Zurga/Getty Images

Attorney General William Barr spoke Friday night at the Federalist Society’s National Lawyers Convention, delivering a provocative attack on “the Left,” “progressives,” and “the opposition party,” paired with an aggressive and ahistorical argument for extreme executive power.
The notion that the American Revolution was against the tyranny of a monarch, Barr said, was a “grammar school civics class version” and “misguided.” Instead, he argued, the founders, having been both oppressed by British Parliament and hampered by their first, ineffectual government, built the Constitution around “the creation of a strong executive.”

But in the present day, Barr warned, a “wrong-headed and atavistic” focus on legislative and judicial oversight has “smothered” the president’s traditional and proper authority. It is telling—and perhaps most significant—that Barr was particularly worried about subpoenas and oversight.

The Federalist Society has enjoyed a direct pipeline to the federal bench under the Trump administration. On Friday, its gathering of conservative activists, lawyers, scholars, and judges gave Barr standing ovations before and after his remarks. The legal community outside the room, meanwhile, spent the weekend expressing horror at the flagrantly partisan, error-filled, and hypocritical commentary coming from the nation’s chief law enforcement officer. Barr accused Donald Trump’s political opponents of “sabotage”; simply by adopting the label “resistance,” he said, they “see themselves as engaged in a war to cripple, by any means necessary, a duly elected government.”

“[I]n waging a scorched earth, no-holds-barred war of ‘Resistance’ against this administration,” Barr said, “it is the Left that is engaged in the systematic shredding of norms and the undermining of the rule of law.”

Barr’s account of current-day political dynamics, with principled conservatives under attack by power-crazed nihilists on the left, was as unreal and indefensible as his version of American history. Taken together, they outlined the unprecedented and untenable position the attorney general occupies at this moment: When Barr argues for a maximalist, unaccountable unitary executive, he is not simply articulating a matter of theory or principle—he is defending himself from an investigation into his own work, especially his direct involvement in the Ukraine bribery-and-extortion plot.

In the July 25 call records with President Volodymyr Zelensky, Trump mentioned Barr five times, usually in tandem with Rudy Giuliani, as a key player in the president’s apparent bribery and extortion conspiracy. One particularly chilling passage: “Well, [Ambassador Marie Yovanovitch is] going to go through some things. I will have Mr. Giuliani give you a call and I am also going to have Attorney General Barr call and we will get to the bottom of it.” Some Barr defenders have suggested that Trump may have been baselessly bragging, freelancing, or free-associating about Barr on the phone, and that Barr had no involvement or contact with Giuliani. The original whistleblower complaint stated its introductory paragraph, “Attorney General Barr appears to be involved as well.”

In addition to the July 25 phone call, the whistleblower also cited a series of public comments and reports from April, May, July, and August by Ukrainian officials and by Giuliani himself indicating Giuliani was working with Barr or with Barr’s designated investigator, John Durham. The report acknowledged, “I do not know the extent to which, if at all, Mr. Giuliani is directly coordinating his efforts on Ukraine with Attorney General Barr or Mr. Durham.”

Barr’s own potential criminal jeopardy deepens with each day of new testimony. The criticisms of his handling of the Mueller report—that the attorney general was acting as the president’s personal lawyer—were prelude, and mild compared to the allegations now. The powers and protections he claims for Trump, in the name of skewed history and partisan analysis, are the powers and protections he needs to justify his own actions.

To attack the speech as a speech is to grant Barr the terms he would prefer. Barr’s words and theories are intellectually dishonest and inappropriate for any federal official, but the problem isn’t merely that his political self-expression is disagreeable. It’s that his remarks are the defensive tactics of an unindicted co-conspirator desperate for attention and clinging to power.

And so, as a politician in a political struggle, he sought to rally a gathering of his allies around their shared partisan mythology, or victimology. He is a criminal suspect, Trump’s fixer and enforcer, cloaking himself as both savior and martyr. Even though he probably sincerely believes in this Manichean culture war, he seems to have chosen the time, place, and vituperative manner to provoke an attack from “the Resistance” and “secularists” on his religio-political ideas. He is not only trying to distract. He also setting a trap to shift the debate from his alleged criminal involvement to his culture war terms.

But this trap can be flipped against him by emphasizing the speech’s legal content: His extreme-executive attack on congressional subpoenas clearly lines up with his conflict of interest as a likely criminal subject of those investigations.

The greatest hits from his speech were so ludicrous they amounted to a test of solidarity with the audience against the facts. Here he was on the behavior of the Senate’s Democratic minority, against the will of the president:

A prime example of this is the Senate’s unprecedented abuse of the advice-and-consent process. The Senate is free to exercise that power to reject unqualified nominees, but that power was never intended to allow the Senate to systematically oppose and draw out the approval process for every appointee so as to prevent the president from building a functional government.

Judge Merrick Garland (and many other nominees from the Clinton and Obama years) might have some questions for Barr. Meanwhile, other speakers at the Federalist Society’s weekend event included Supreme Court Justice Neil Gorsuch, who was appointed after Senate Majority Leader Mitch McConnell refused to hold confirmation hearings for a year.

Barr went on:

In any age, the so-called progressives treat politics as their religion. Their holy mission is to use the coercive power of the state. … Whatever means they use are therefore justified because, by definition, they are a virtuous people pursuing a deific end. They are willing to use any means necessary to gain momentary advantage in achieving their end, regardless of collateral consequences and the systemic implications. They never ask whether the actions they take could be justified as a general rule of conduct, equally applicable to all sides. Conservatives, on the other hand, do not seek an earthly paradise.

Yes, he really said that too. Vice President Mike Pence, any comment?

Barr had, in fact, already revealed his hypocrisy last month in remarks at Notre Dame, when he proclaimed his own far-right “holy mission” and “deific end” of promoting religion. He warned that the “pendulum” might not swing back to Judeo-Christian religion in America because of “the force, fervor, and comprehensiveness of the assault on religion we are experiencing today”:

This is not decay. This is organized destruction. Secularists and their allies have marshaled all the forces of mass communication, popular culture, the entertainment industry, and academia in an unremitting assault on religion and traditional values. Virtually every measure of social pathology continues to gain ground. Along with the wreckage of the family, we are seeing record levels of depression and mental illness, dispirited young people, soaring suicide rates, increasing numbers of alienated young males, an increase in senseless violence and the deadly drug epidemic.

(Barr also asserted in his Notre Dame speech that state governments were blocking parents from “passing on of the faith … a monstrous invasion of religious liberty.” Barr served on the board of the Catholic Information Center, affiliated with the reactionary order Opus Dei, which aggressively mixes politics and religion.)

In his Federalist Society remarks, Barr joked and invoked a different kind of creed: “The theme for this year’s Annual Convention is ‘Originalism,’ which is a fitting choice—though, dare I say, a somewhat ‘unoriginal’ one for the Federalist Society.” Ironically, his account of the creation of the Constitution was itself an unoriginalism, a presentist political agenda built on a specious account of the past.

His internally inconsistent story is that the British had “neutered” the monarchy in the 17th century, long before the American colonies cast off King George III. “[T]he patriots well understood that their prime antagonist was an overweening Parliament,” Barr said. In the same paragraph, after declaring that the revolutionaries knew legislative power to be the real enemy, he acknowledged that they had designed their first government, the Articles of Confederation, as a system of legislative supremacy with “no Executive separate from Congress.” That’s odd, if liberation from legislative government had been their core goal.

Barr was right that the Articles failed partly because of the lack of an independent executive branch. “The consensus for a strong, independent executive arose from the Framers’ experience in the Revolution and under the Articles of Confederation,” he said. Indeed, critics of executive power too often diminish the influence of the Articles’ failure and the failure in early states with weak executives.

But like many who argue for maximal executive power, Barr overemphasizes this one aspect of the Articles’ failure, conveniently ignoring other factors inconsistent with conservative ideology. For example, this conservative myth dismisses how the Articles gave too much power to the states, and not enough centralized power for the national government and its legislature.

Historical research confirms the anti-royalism of the Revolution and of the Constitutional Convention itself. The grammar school version is taught in grammar school because it is basically correct: The Framers rejected king-like power and chose a middle ground, framed by “faithful execution” language for mid-level executive officers, a single executive in a system of checks and balances.

Barr’s partisan agenda also led him to get other parts of his history wrong. He falsely claimed that independent agencies—an “abdication” of Congress’ responsibilities—“first arose in the wake of the Great Depression.” He invents this account in order to blame Democrats. But as all experts on the executive branch know, the first independent agency, the Interstate Commerce Commission, was passed a half-century earlier in 1887 as the vision of a Republican Senate, followed by the Federal Reserve System in 1913 and the Federal Trade Commission in 1914.

Barr also makes other characteristic exaggerations. Like other advocates of extreme executive power, he relies heavily on the fact that the Constitution vests executive power in a single president as a reason to maximize that one person’s powers. But the “unitary executive” label is a facile truism; no one suggests that there is more than one president. The fact that the executive power is vested in a single president does not mean that this “unitary” president has unlimited power to be above checks and balances, to act for corrupt motives, or to be above the law. It also doesn’t address the scope of executive power.

But the details of this history are a debate for another day. More urgent here is that Barr relied on ahistorical unitary executive extremism to condemn the Democrats’ subpoenas—his speech avoided the word “Democrat” in favor of “opposition party”—as an abuse of Congress’ oversight role. Curiously, he did not include Congress’ abuse of subpoenas during the Obama administration. He seemed especially worried only about the recent wave of subpoenas. “The costs of this constant harassment are real,” he complained.

Indeed, the potential costs to Bill Barr are even more real. Barr has a conflict of interest as an alleged co-conspirator in a presidential extortion plot. The Department of Justice regulations require recusal when one has a “personal or political relationship with … any person or organization substantially involved in the conduct that is the subject of the investigation or prosecution; or any person or organization which he knows has a specific and substantial interest that would be directly affected by the outcome of the investigation or prosecution.”

An alleged co-conspirator obviously has this conflict. Barr also has a remarkable number of financial investments with links to Russia that raise questions of the appearance of bias, and perhaps real bias. Like Barr, Jeff Sessions was also an embarrassment to the DOJ, but at least he had the good sense to understand the appearance of bias, given the reasonable allegations of perjury and false statement about Russian contacts. And many defenders of the Mueller investigation (including me) called for Rod Rosenstein’s recusal for even less egregious conflicts, even when our calls were inconvenient for the investigation (as he was a witness who participated in the firing of FBI Director James Comey, an act of obstruction).

Barr should have recused as soon as his name came up five times in the phone transcript as a participant. Barr’s speech denouncing subpoenas highlights his ongoing conflict of interest. If Barr does not recuse, he should be impeached and investigated for criminal obstruction of justice, on top of his role in the Ukraine conspiracy.

Facing criminal scrutiny, Barr knew where to find his base, to find those who would embrace him despite his lawless abuse of power and likely crimes: the Federalist Society. I was once proud to support the Federalist Society from the left. But the ovations before and after his speech show that it is hard to distinguish it today from a far-right Trump MAGA rally. And it is hard to find much left from a once-proud society’s founding vision of the rule of law and limited government, nor a trace of its original originalist principles.

Update, Nov. 19, 2019: This piece was updated to include references to Attorney General William Barr in the whistleblower’s complaint.