Tornado Alley (PROG)

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William Barr, Trump’s Sword and Shield

"Barr Installs Outside Prosecutor to Review Case Against Michael Flynn, Ex-Trump Adviser
"This is a revolting assault on the fragile rule of law""

If you have any doubt about Barr's eagerness to be involved in a culture war you won't after reading this
profile. Also Barr obviously feels it is his right to involve the Justice Department in the political sphere.

Profiles January 20, 2020 Issue

The Attorney General’s mission to maximize executive power and protect the Presidency.

By David Rohde
January 13, 2020


For decades, Barr has argued that Congress is a menace to the Presidency. As Attorney General, he’s poised to fight back. Illustration by Zohar Lazar

Last October, Attorney General William Barr appeared at Notre Dame Law School to make a case for ideological warfare. Before an assembly of students and faculty, Barr claimed that the “organized destruction” of religion was under way in the United States. “Secularists, and their allies among the ‘progressives,’ have marshalled all the force of mass communications, popular culture, the entertainment industry, and academia in an unremitting assault on religion and traditional values,” he said. Barr, a conservative Catholic, blamed the spread of “secularism and moral relativism” for a rise in “virtually every measure of social pathology”—from the “wreckage of the family” to “record levels of depression and mental illness, dispirited young people, soaring suicide rates, increasing numbers of angry and alienated young males, an increase in senseless violence, and a deadly drug epidemic.”

The speech was less a staid legal lecture than a catalogue of grievances accumulated since the Reagan era, when Barr first enlisted in the culture wars. It included a series of contentious claims. He argued, for example, that the Founders of the United States saw religion as essential to democracy. “In the Framers’ view, free government was only suitable and sustainable for a religious people—a people who recognized that there was a transcendent moral order,” he said. Barr ended his address by urging his listeners to resist the “constant seductions of our contemporary society” and launch a “moral renaissance.”

Donald Trump does not share Barr’s long-standing concern about the role of religion in civic life. (Though he often says that the Bible is his favorite book, when he was asked which Testament he preferred, he answered, “The whole Bible is incredible.”) What the two men have in common is a sense of being surrounded by a hostile insurgency. A few days after Barr’s speech, Trump told an audience at the conservative Values Voter Summit, “Extreme left-wing radicals, both inside and outside government, are determined to shred our Constitution and eradicate the beliefs we all cherish. They are trying to hound you from the workplace, expel you from the public square, and weaken the American family, and indoctrinate our children.” As the effort to remove the President has gathered strength, Barr’s and Trump’s political interests have converged. Both men combine the pro-business instincts of traditional Republicans with a focus on culture clash and grievance. Both believe that any constraint on Presidential power weakens the United States.

Eleven months after being sworn in, Barr is the most feared, criticized, and effective member of Trump’s Cabinet. Like no Attorney General since the Watergate era, he has acted as the President’s political sword and shield. When the special counsel Robert Mueller released the findings of his inquiry into connections between Trump’s 2016 campaign and Russia, Barr presented a sanitized four-page summary before the report was made public, which the President used to declare himself cleared. At the behest of the President, Barr launched an investigation of the F.B.I.’s Trump-Russia probe and the intelligence community’s assessment that Russia intervened on Trump’s behalf in the election. Rather than seek a nonpartisan commission, Barr appointed a federal prosecutor, reinforcing the President’s claims of a “coup.” When an exhaustive review by the Justice Department’s inspector general found no evidence of political bias in the F.B.I. investigation, Barr issued a statement misrepresenting its findings and arguing that the evidence in the Russia probe was “consistently exculpatory”—leaving out the fact that five people connected to Trump’s campaign have been indicted for lying to investigators.

Barr maintains that Article II of the Constitution gives a President control of all executive-branch agencies, without restriction; in practice, this means that Trump would be within his rights to oversee an investigation into his own misconduct. (Barr declined multiple interview requests.) Throughout the House’s impeachment inquiry, Trump dismissed subpoenas for documents and testimony from Administration officials—a step taken by no other President. Barr and Pat Cipollone, a White House lawyer who once worked as Barr’s speechwriter, have also rejected subpoenas, flouting a congressional power plainly delineated in the Constitution. Donald Ayer, who served as Deputy Attorney General under George H. W. Bush, said, “They take the position that they don’t even have to show up. That’s totally outrageous. It’s denying the legitimacy of another branch of government in the name of executive supremacy.” Ayer described Barr’s ideas about Presidential power as “chilling” and “deeply disturbing.” If Trump survives a trial in the Senate, a President’s ability to resist congressional oversight will vastly expand. Laurence Tribe, a professor of constitutional law at Harvard, warned that Barr’s and Trump’s efforts could permanently alter the balance of power among the branches of American government. “If those views take hold, we will have lost what was won in the Revolution—we will have a Chief Executive who is more powerful than the king,” Tribe said. “That will be a disaster for the survival of the Republic.”

At the age of sixty-nine, Barr is grayer, heavier, wealthier, and more combative than he was when he served as George H. W. Bush’s Attorney General, twenty-eight years ago. But his ideology has not changed much, according to friends and former colleagues. “I don’t know why anyone is surprised by his views,” Jack Goldsmith, a law professor who headed the Justice Department’s Office of Legal Counsel during the George W. Bush Administration, told me. “He has always had a broad view of executive power.”

[...]

When Barr began his career in government, the idea that the Presidency was too weak might have been considered eccentric, even radical. Mostly, people were concerned that it had grown too strong. As the Watergate scandal unfolded, the former Kennedy aide Arthur Schlesinger, Jr., published an influential book called “The Imperial Presidency,” in which he enumerated the habits of potential autocrats: “The all-purpose invocation of ‘national security,’ the insistence on executive secrecy, the withholding of information from Congress, the refusal to spend funds appropriated by Congress, the attempted intimidation of the press, the use of the White House as a base for espionage and sabotage directed against the political opposition.”

Jimmy Carter took office in 1977, and embodied an image that was anything but imperial. He carried his own luggage, enrolled his daughter in public school, and shunned “Hail to the Chief” as an excessive display of pomp. More important, he enacted reforms that curtailed executive-branch power. He signed strict ethics legislation that empowered independent counsels and inspectors general to investigate waste, fraud, and abuse. Critics, including the conservative legal scholar Antonin Scalia, complained that the changes crippled the Presidency, but the new regulations had broad support from Congress and from the public.

With Ronald Reagan’s election in 1980, things began to change. The Republican Party, after three decades as a minority in Congress, took control of the Senate—part of a conservative resurgence that Reagan hailed as “morning in America.” In 1982, the White House hired Barr as a deputy assistant director for legal policy. He fell in with a like-minded group of young lawyers, who began devising a legal armature for the executive branch as it tried to restore its power.

In 1986, Reagan appointed Scalia to the Supreme Court. That same year, aides sent Attorney General Edwin Meese a report, recommending steps to widen the power of the Presidency. Reagan, they said, should veto more legislation, and decline to enforce laws that “unconstitutionally encroach upon the executive branch.” The report outlined a legal argument that the President had unrestricted control of all executive-branch functions, and also questioned the constitutionality of special counsels and inspectors general. In a speech, Meese argued that even Supreme Court rulings should not be viewed as “the supreme law of the land.” (Two years later, Meese resigned, amid accusations of helping to steer federal contracts to a friend.)

In 1987, an independent counsel was appointed to investigate whether a Justice Department official named Ted Olson had lied to Congress during testimony regarding the Environmental Protection Agency. Meese and other conservatives challenged the move as unconstitutional. In their view, independent prosecutors were nothing more than unaccountable, costly political weapons, which Democrats used to smear Republican Administrations. (In fact, according to Stephen Gillers, a professor of legal ethics at New York University’s law school, both parties have sought to use such counsels for political advantage. But, he added, they remain necessary to limit abuses: “What the special counsel does is provide a check.”)

The resulting case, Morrison v. Olson, went to the Supreme Court, which ruled that independent counsels did not interfere “unduly” or “impermissibly” with the powers of the executive branch. The sole dissent came from Scalia, who cautioned that a politically biased prosecutor could carry out “debilitating criminal investigations” for minor crimes. “Nothing is so politically effective,” he wrote, “as the ability to charge that one’s opponent and his associates are not merely wrongheaded, naive, ineffective, but, in all probability, ‘crooks.’ ” (Ultimately, prosecutors declined to charge Olson.)

For Reagan and his aides, the Supreme Court ruling was not an abstract concern. The year before, news had broken of what became known as the Iran-Contra scandal. In an extraordinary series of crimes, the C.I.A. director William Casey and several White House aides sold sophisticated weaponry to Iran and funnelled the profits to anti-Communist rebels in Central America, in defiance of a law that specifically barred support for the group. All the while, Casey and the aides brazenly lied to Congress about their actions. When the scheme was uncovered, Reagan’s poll numbers sank, but he denied knowledge of the operation and avoided impeachment.

In televised hearings, the National Security Council aide Oliver North argued that Presidents and their aides should be able to do whatever they deem necessary to protect the country from threats. Dick Cheney, then a congressman from Wyoming, argued that North and his allies had done nothing improper, because foreign policy and national security should be controlled solely by the executive branch. But Democrats and a majority of Republicans said that Congress must be able to act as a check on a wayward President. At the hearings, Daniel Inouye, a Democratic senator from Hawaii, who headed the inquiry, warned that a “cabal” of officials who believed they had a “monopoly on truth” could lead to “autocracy.” Barr was unmoved. He later told an interviewer, “I think people in the Iran-Contra matter have been treated very unfairly.”

[...]

The following year, after the Iraqi President Saddam Hussein moved his forces into Kuwait, Bush asked at a White House meeting if he needed congressional approval to mount a counterinvasion. Barr, who by then had been promoted to Deputy Attorney General, said that the mandate to defend national security gave the President the power to go to war whenever he wanted—even to launch a preëmptive attack on Iraqi forces, if he believed that they were preparing to deploy chemical weapons against American troops.

But Barr feared that lawmakers would try to block such an action, and so he urged Bush to cover himself by obtaining Congress’s support. Even the other conservatives in the room were startled; Justice Department officials were expected to maintain scrupulous impartiality. According to Barr, Cheney, at that time the Secretary of Defense, reprimanded him: “You’re giving him political advice, not legal advice.” Barr recalled that he said, “I’m giving him both political and legal advice. They’re really sort of together when you get to this level.” In January, 1991, Bush authorized military action in Kuwait, with congressional approval. Later that year, he named Barr Attorney General.

Since Barr’s days at Horace Mann, he has felt that the transformations of American society that began in the sixties have worsened its social problems. For decades, he registered unflinching disdain for criminal-justice reform, support for religion, and sympathy for big business. In a 1995 symposium on violent crime, he argued that the root cause was not poverty but immorality. “Violent crime is caused not by physical factors, such as not enough food stamps in the stamp program, but ultimately by moral factors,” he said. “Spending more money on these material social programs is not going to have an impact on crime, and, if anything, it will exacerbate the problem.” Barr also dismissed the idea of wrongful convictions. “The notion that there are sympathetic people out there who become hapless victims of the criminal-justice system and are locked away in federal prison beyond the time they deserve is simply a myth,” he wrote. “The people who have been given mandatory minimums generally deserve them—richly.”

As Attorney General, Barr increased sentences for drug-related crimes and cracked down on illegal immigration. In 1992, rioting erupted in Los Angeles following the acquittal of four police officers who had been videotaped beating the motorist Rodney King. Barr deployed two thousand federal agents on military planes to stop the unrest. He later argued that civil-rights charges should have been brought—not just against the offending officers but also against the rioters on the streets of L.A. “We could have cleaned that place up,” he lamented in 2001. “Unfortunately, we just brought the federal case against the cops and never pursued the gangsters.”

During his tenure, Barr turned down multiple requests to name prosecutors to examine potential executive-branch abuses. “The public integrity section told me that I had received more requests for independent counsel in eighteen months than all my predecessors combined,” Barr recalled. “It was a joke.” In one case, Barr opposed the appointment of a special counsel to investigate the Administration’s dealings with Iraq before the invasion of Kuwait. Even some conservatives objected; William Safire, the Times columnist, called him “cover-up general Barr.”

https://www.newyorker.com/magazine/2020/01/20/william-barr-trumps-sword-and-shield