Jurisprudence

How William Barr Misunderstands America’s Founding Fathers

William Barr speaks in front of an American flag.
Attorney General William Barr in Chicago on Sept. 9. Kamil Krzaczynski/Getty Images

On the most recent episode of Amicus, Dahlia Lithwick spoke with Donald Ayer, who served as deputy attorney general under President George H.W. Bush and as a U.S. attorney and principal deputy solicitor general in the Reagan administration, about Attorney General William Barr’s dangerous ideology and our descent into autocracy. The below partial transcript of their conversation has been edited and condensed for clarity.

Dahlia Lithwick: I want to give you a minute to comment on the DOJ stepping in on Tuesday into this state defamation case that was brought by E. Jean Carroll. The most shocking component, I think you and I agree, is the allegation that what Donald Trump said about E. Jean Carroll, when he dismissed her as not his type and said that she was making it all up to publish a book, was somehow under the course of his employment as president. I think the media described this as “surprising.” I described it as, “Wahhhh!” Where do you put this in your canon of things to be worried about?

Donald Ayer: I think it’s something to be worried about because it is so transparently invalid as an action. The idea that he was acting within the scope of his employment when he made allegedly slanderous comments about a woman who said that she’d been raped by him. I mean, that is just off the page ridiculous. One of the things that goes on in every one of these Federal Tort Claims Act cases is that you look at the facts of what went on and you say, Was this employee working within the scope of his employment? Is this part of his duties as a federal employee? Well, this obviously, obviously is not.

This is actually part and parcel in a way of William Barr’s aggrandized view of the president. He said in his 2018 memo when he was applying to be attorney general that the president is the executive branch. And apparently this is a corollary of that in his mind, which is that therefore everything the president does is within his scope of employment. So just think about that for a minute. You know, as in the famous quote, apparently, I don’t know, but maybe Barr would say if the president shot someone in the middle of Fifth Avenue, because he’s president, that would be within the scope of his employment. That’s about what this amounts to.

You’ve known Bill Barr for a long time. And I think you’ve said that he took this job because there are things he wants to get done, that he has a fully realized worldview, both in terms of his view of the unitary executive, presidential power, an unbounded presidency. That’s part of it. There is another part of his worldview, which I think is a quasi-religious worldview. And I wondered if you’d be willing to talk about that a little.

I’ve spent some time lately reading some of the things he has written. He is a strong, believing Catholic, and that’s obviously a personal thing for him. And I don’t have any comment on that obviously. But one of the things that’s apparent when you read his various writings on the subject of executive power—the narrative he tells there for the country relating to religious belief is very similar and very parallel to his sense with regard to executive power. On executive power, he concocts a very wrong view that the founders actually intended the president to be a virtual autocrat. Never mind what you learned in eighth grade or high school about separation of powers and all of these ways that the different branches check each other, the checks and balances and all of that. Bill Barr’s view is that the founders intended a very strong executive who would be essentially immune from a whole variety of things, and that that reality was the reality in our country for the first almost 200 years. Well, that’s just utter hogwash.

But the key point is that in the ‘60s, or maybe the ‘70s, as he said, accelerating after Watergate, that all just went down the drain and we started attacking the executive in various ways. This is basically backward. The power of the president has gone into its ascendancy in the past 50 years. But that’s his view on that. And his personal role that he’s assigned himself is to restore that autocratic vision of the president.

Well, the same thing, on parallel way, is true of his views on religion. He sees the founders as people who were very concerned that Americans would remain a pious country of churchgoers whose strict religious moral views would govern them. And I guess he thinks that was the dominant story in our country, even though everyone else knows that our country was essentially created as a result of the rationalism, the enlightenment, the rise of empiricism and understanding of the world as a real physical place that had rules of its own.

But Barr sees the founders as focused overwhelmingly on piety and adherence to traditional Christian morals. And again, on a parallel with his views on autocracy, gosh, golly, gee, that went to hell in a hand basket starting in the ‘60s, with all the things that happened in the ‘60s and things that have happened since. And so again, his role that he sees for himself is to restore that. And a good microcosm of that, if you want to just think of one image, is Bill Barr ordering federal law enforcement people into Lafayette Park to clear out the park, so the president, the most vulgar, irreligious national leader we have ever had, could stride across Lafayette Park with a Bible in his hand and wave it at the camera in front of St. John’s Church.

So Barr has got this role for himself as a restorer of these worlds that never were. And essentially the only way he can perform that mission is by keeping Donald Trump happy. So that’s what we’re seeing now. We’re seeing him do whatever it takes to get Trump reelected and to keep Trump thinking that Barr is the guy who he needs to help him accomplish all this.

I have a question of nomenclature for you. You keep talking about autocracy. When you talk about autocracy, what exactly do you mean? I guess I want you to unpack it and tell me when you started using that word.

I don’t know quite when I started using that word, but it was around the time that I saw that there was this systematic effort to free the president from the limitations upon his use of power that have always been sort of in the water we drank and the air we breathe. And one of the very first things that started down that road with Bill Barr was when the president, not liking the fact that Congress had declined to appropriate money for his border wall, declared an emergency, and then immediately said, This isn’t really an emergency. I just want to do it quicker. And Barr’s Justice Department went to court to defend his ability to do that. So what is that? That’s the appropriations clause. The Constitution says that the Congress appropriates money. Congress repeatedly, explicitly refused to appropriate that money. And the president says, Forget it. I’m just going to go ahead and do it anyway. So that’s one example of a power being overridden. Then, throughout 2019, there’s this vast array of acts to stonewall efforts by the Congress to do oversight, to get information, to get documents, to talk to witnesses, even in connection with the impeachment. And they basically just said, Nah, we’re not going to give it to you. Of course, another element of it is, well, we don’t like the Mueller report, so we’ll just override it.

So the list goes on and on and on. And what it amounts to is a systematic effort by this administration, under the direction of Bill Barr, to dismantle the checks and balances on the system. When you eliminate virtually all the checks and balances on the president’s power, what do you have left? You have an autocrat.

I think what you’re saying is that we have an idea about authoritarianism as something that is happening on the streets. What we saw in Lafayette Park, what we saw in Portland, people getting thrown into vans. I think what you’re saying adds another dimension, and it’s a really important dimension. You’re saying it’s not just that. Authoritarianism is cumulative. Authoritarianism is an attitude. Authoritarianism can happen in the vaulted halls of main justice as readily as on the streets. And what you’re telling me is even on that axis, it’s happening all around us.

I think one measure of it is the sense people feel. I feel it. I think you may feel it. A lot of other people feel it, that the craziness continues, one thing after another happens. And you may speak out if you can, if you have a forum and a way to do it, but ultimately you say, Well, I can’t do anything about that right now. There’s just nothing I can do about that. That’s the way it is. That’s what they do. It’s completely wrong and completely outrageous. But this administration has the power right now to do that. And as outrageous as it is, none of us can do anything about it. Well, once that’s institutionalized and we all accept that attitude, you are now living in an autocracy. And that’s what they’re working toward.

To hear the rest of their discussion, listen below, or subscribe to the show on Apple Podcasts, Overcast, Spotify, StitcherGoogle Play, or wherever you get your podcasts.