William Barr had returned to private life after his first stint as attorney general when he sat down to write an article for The Catholic Lawyer. It was 1995, and Mr. Barr saw an urgent threat to religion generally and to Catholicism, his faith, specifically. The danger came from the rise of “moral relativism,” in Mr. Barr’s view. “There are no objective standards of right and wrong,” he wrote. “Everyone writes their own rule book.”
And so, at first, it seemed surprising that Mr. Barr, now 69, would return after 26 years to the job of attorney general, to serve Donald Trump, the moral relativist in chief, who writes and rewrites the rule book at whim.
But a close reading of his speeches and writings shows that, for decades, he has taken a maximalist, Trumpian view of presidential power that critics have called the “imperial executive.” He was a match, all along, for a president under siege. “He alone is the executive branch,” Mr. Barr wrote of whoever occupies the Oval Office, in a memo to the Justice Department in 2018, before he returned.
Now, with news reports that his review into the origins of the Russian investigation that so enraged Mr. Trump has turned into a full-blown criminal investigation, Mr. Barr is arousing fears that he is using the enormous power of the Justice Department to help the president politically, subverting the independence of the nation’s top law enforcement agency in the process.
Why is he giving the benefit of his reputation, earned over many years in Washington, to this president? His Catholic Lawyer article suggests an answer to that question. The threat of moral relativism he saw then came when “secularists used law as a weapon.” Mr. Barr cited rules that compel landlords to rent to unmarried couples or require universities to treat “homosexual activist groups like any other student group.” He reprised the theme in a speech at Notre Dame this month.
Barr uses the same language and ideas in an article and speech separated by decades.
Article in The Catholic Lawyer, “Legal Issues in a New Political Order”
Highlighted text appears in both quotations
Remarks to the Law School and the de Nicola Center for Ethics and Culture at the University of Notre Dame
In 1995 and now, Mr. Barr has voiced the fears and aspirations of the conservative legal movement. By helping Mr. Trump, he’s protecting a president who has succeeded in confirming more than 150 judges to create a newly conservative judiciary. The federal bench now seems more prepared to lower barriers between church and state and reduce access to abortion — a procedure that Mr. Barr, in his 1995 article, included on a list of societal ills that also included drug addiction, venereal diseases and psychiatric disorders.
In his unruffled and lawyerly way, Mr. Barr emerged as the president’s most effective protector in the spring, when he limited damage from the special counsel Robert Mueller’s investigation of Russian interference in the 2016 presidential election by shaping the public narrative of the Mueller report before he released any of it.
In his pursuit of investigating the investigators, he even traveled to Britain and Italy to meet with intelligence officials there to persuade them to help it along. Now it is possible the Justice Department could bring charges against its own officials and agents for decisions they made to investigate Trump campaign advisers in the fraught months around the 2016 election, when the Russian government was mounting what the Mueller report called “a sweeping and systematic” effort to interfere.
This criminal investigation seems ominous in the context of Mr. Barr’s other moves.
His Justice Department recently declined to investigate a whistle-blower’s complaint that the president was “using the power of his office to solicit interference from a foreign country in the 2020 U.S. election” and advised the acting director of national intelligence not to send the complaint to Congress. Last week, dozens of government inspectors general warned in a letter to the Justice Department that its position “could seriously undermine the critical role whistle blowers play in coming forward to report waste, fraud, abuse and misconduct across the federal government.”
So while Rudolph Giuliani is freelancing American diplomacy as the president’s personal lawyer, often leaving bedlam in his wake, and Mick Mulvaney flails as acting chief of staff, Mr. Barr has used the Justice Department, with precision, on the president’s behalf. The New York City Bar Association complained a few days ago that Mr. Barr “appears to view his primary obligation as loyalty to the president individually rather than to the nation.”
William Barr (Billy, when he was young) grew up in an apartment on Riverside Drive in Manhattan with a framed Barry Goldwater presidential campaign poster in the foyer, according to Vanity Fair. His mother, who was of Irish descent, taught at Columbia University. His father, a Jew who converted to Catholicism, taught at Columbia, too, and then became the headmaster of the elite Dalton School, leaving after 10 years amid criticism over his authoritarian approach to student discipline.
He went to high school at the equally elite Horace Mann and to college at Columbia, where he majored in government and then got a master’s degree in government and Chinese studies. Mr. Barr went to work for the C.I.A. in Washington in 1973 and attended George Washington University Law School at night.
He joined the Reagan White House in 1982, where he sought to curb regulation. After George H.W. Bush was elected president in 1988, he became director of the Office of Legal Counsel in the Justice Department, which provides legal advice to the president and all executive agencies.
It didn’t take long for Mr. Barr to express his views on executive power. He warned in one of his early opinions, in July 1989, of congressional “encroachments” on presidential authority. “Only by consistently and forcefully resisting such congressional incursions can executive branch prerogatives be preserved,” he wrote. Some of his Republican colleagues remember being taken aback.
“Bill’s view on the separation of powers was not overlapping authority keeping all branches in check, but keeping the other branches neutralized, leaving a robust executive power to rule. George III would have loved it,” said Douglas Kmiec, a law professor at Pepperdine who preceded Mr. Barr as head of the Office of Legal Counsel.
Mr. Barr also argued that the president had the “inherent authority” to order the F.B.I. to abduct people abroad, in violation of an international treaty principally written by the United States. This view reversed the position that the Office of Legal Counsel had taken nine years earlier. When Congress asked to see Mr. Barr’s opinion, he refused, even as the government defended the abduction of a man in Mexico accused of participating in the killing of a Drug Enforcement Administration agent. The charges against the man were dismissed. It took four years for his opinion to come to light.
“You have a secret opinion that violated the internal rules of the Justice Department” and “diminished America’s reputation as a country that operates by the rule of law,” said Harold Hongju Koh, a Yale law professor who worked in the Office of Legal Counsel and advised the State Department. “At the time, we thought that was as bad as it was going to get.”
After becoming deputy attorney general in 1990, he continued to push the limits on questions of presidential power. He told the first President Bush that he didn’t need congressional approval to invade Iraq. Mr. Bush asked for it anyway.
Mr. Barr, who took over the department in the fall of 1991, also urged Mr. Bush to pardon all six of the Reagan administration officials who faced criminal charges in an arms-for-hostages deal at the heart of the Iran-contra scandal. The president took his advice.
When Mr. Bush lost his bid for re-election, Mr. Barr went back into private practice before taking jobs as the general counsel first for GTE and then Verizon. He served on the boards of several religious groups, including the Catholic Information Center, a self-described “intellectual hub,” affiliated with the ultraconservative order Opus Dei.
Those groups include other conservative Washington insiders, such as Leonard Leo, the executive vice president of the Federalist Society. Mr. Leo has also served on the board of the Catholic Information Center and he came out strongly in favor of Mr. Trump’s nomination of Mr. Barr for attorney general.
In a sense, both Mr. Barr and Mr. Leo have found parallel ways to use the Trump administration as a vehicle for their causes. Mr. Leo has enormous influence from outside the government on the selection of judicial nominees. And from the inside, Mr. Barr plays a role in federal judicial appointments and has supported a Justice Department task force set up to look for cases of religious discrimination.
When Mr. Barr undercut the Mueller report, he lost some supporters. While delaying its release, he presented the conclusions as far less damning for President Trump than Mr. Mueller found them to be. (For example, Mr. Barr said that the special counsel did not find sufficient evidence of a crime when in fact Mr. Mueller had not exonerated Mr. Trump of wrongdoing.)
“Not in my memory has a sitting attorney general more diminished the credibility of his department on any subject,” wrote Benjamin Wittes, the editor in chief of Lawfare.
Despite criticism, Mr. Barr has continued to champion the presidency — and this president. But on Friday, a federal judge in Washington ruled against the Justice Department’s effort to block Congress from getting grand jury evidence obtained in the Mueller investigation. The department has also asked a federal judge to block a subpoena from the Manhattan district attorney for eight years of Mr. Trump’s personal and corporate tax returns.
“From my perspective,” Mr. Barr told Jan Crawford of CBS News in May, “the idea of resisting a democratically elected president and basically throwing everything at him and, you know, really changing the norms on the grounds that ‘we have to stop this president,’ that is where the shredding of our norms and our institutions is occurring.”
In other words, amazingly, it wasn’t President Trump, or Attorney General Barr, who was violating the norms of American governance. It was their critics.
Since Watergate, a crucial norm of Justice Department independence has prevented presidents from ordering or meddling in investigations for partisan reasons.
In 2001, Mr. Barr praised the first President Bush for leaving the Justice Department alone. Mr. Bush’s White House “appreciated the independence of Justice,” Mr. Barr said. “We didn’t lose sight of the fact that there’s a difference between being a government lawyer and representing an individual in his personal capacity in a criminal case.”
Now, Mr. Barr seems hard-pressed to maintain a semblance of those boundaries. The criminal investigation of the origins of the Russia investigation that he ordered is official government business. It’s headed by an experienced prosecutor, John H. Durham, the United States attorney for Connecticut, and it’s supposed to be on the up and up.
But when Mr. Barr told Congress in April that he thought “spying” on the Trump campaign by American intelligence agencies occurred — the F.B.I. director, Christopher Wray, told Congress that “spying” was “not the term I would use” — he echoed President Trump’s conspiracy theory of being a victim of the “deep state.” And in the last month, Mr. Barr has found his review mixed up with the machinations of Mr. Giuliani, who was directed by Mr. Trump to investigate the 2016 election and the Biden family in Ukraine.
Mr. Trump made the overlap explicit when he lumped Mr. Giuliani and Mr. Barr together in his July phone call with Ukraine’s president, Volodymyr Zelensky. “I will have Mr. Giuliani give you a call and I am also going to have Attorney General Barr call,” Mr. Trump told Mr. Zelensky, according to notes released by the White House. Mr. Barr was reportedly “surprised and angry” by the president’s reference, and a Justice Department representative has denied he had any contacts with Mr. Zelensky.
Then, Mr. Mulvaney, the acting White House chief of staff, brought up Mr. Barr’s review of the Russia investigation at his news conference on Oct. 17 in defense of Mr. Trump’s request to Mr. Zelensky for “a favor” and information. (“So you’re saying the president of the United States, the chief law enforcement person, cannot ask somebody to cooperate with an ongoing public investigation into wrongdoing?” Mr. Mulvaney asked.)
The White House’s use of the Justice Department as a shield in the Ukraine scandal risks leaving Mr. Barr’s review “hopelessly compromised,” tweeted the Harvard Law School professor Jack Goldsmith, an alumnus of the Office of Legal Counsel who has defended Mr. Barr.
And in blockbuster testimony before Congress last Tuesday, the top American diplomat in Ukraine, William Taylor, said that he and Gordon Sondland, the ambassador to the European Union, who was conveying Mr. Trump’s orders concerning Ukraine, discussed the possibility that Ukraine’s prosecutor would make a public statement about “investigations, potentially in coordination with Attorney General Barr’s probe.” Either people in the president’s circle are using Mr. Barr as a pawn, or he’s in deeper than he has said.
Either way, maybe the lesson is the same one that applies throughout the administration: The fallout from the president’s maneuvering taints the people around him. The longer Mr. Barr stays in office, the more that Mr. Trump will look for the attorney general to do for him.
When Mr. Mueller closed up shop, he left several cases pending with the Justice Department,including charges against the Trump operative Roger Stone, which could end with disclosures at trial that damage the president (Mr. Stone has pleaded not guilty). What if Mr. Trump would rather make cases like these go away, with pardons or other inducements? Will Mr. Barr go along?
During the Bush administration, in a more moderate time, Mr. Barr worked for a buttoned-down president who called for a “kinder” and “gentler” strain of Republicanism. Now he has a boss who calls the impeachment process “a lynching,” Republican critics “human scum” and the news media “the enemy of the American people.”
As the buttons fly off, Mr. Barr still seems unperturbed. He’s the perfect attorney general for President Trump. Not so much, it seems, for the country.
Bill Barr on War Powers: Insights From his 2001 Oral History Interview
In the spring of 2001, Bill Barr, the former attorney general under George H.W. Bush who has now been tapped to resume that role under Donald Trump, sat for an oral history interview sponsored by the University of Virginia’s Miller Center. The transcript is fascinating reading on many issues, such as Barr’s explanation of his reluctant support for now-Justice Sonia Sotomayor for her original district court appointment, his argument for “massive retaliation against Libyan military intelligence targets” after the bombing of Pan Am Flight 103 was attributed to the Libyans and his belief that the “issue of the role of the Department of Justice versus the national security apparatus in terrorist situations … hasn’t been thought through.” But here I’d like to focus on his account of the clash between Congress and the president over war powers.
Barr’s narrative picks up at the time when President H.W. Bush already had deployed half a million troops to Saudi Arabia (Operation Desert Shield), but prior to the invasion to evict Iraq from occupied Kuwait (Operation Desert Storm). Barr had been head of the Office of Legal Counsel previously, and now was the deputy attorney general. With Attorney General Dick Thornburgh unavailable at a particular moment in time and given Barr’s extensive experience with national security legal issues, Barr explained, he naturally became a key participant in discussions regarding whether the president should seek from Congress a formal authorization (or at least some form of endorsement) to use force against Iraq:
We knew the issue would eventually come, and the president would need some advice on the parameters of his power. First, I believed that the president did not require any authorization from Congress, and I believed that the president had constitutional authority to launch an attack against the Iraqis. … He didn’t put 500,000 troops over there for them to sit there, and there was no doubt in my mind that he was going to go on the offensive unless the Iraqis withdrew unilaterally. So I figured at some point I’d be asked my opinion on this. Then, before I knew it, I got this call that there was going to be a meeting over in the Cabinet Room to discuss the legal issues surrounding the operations in the Gulf.
…[W]hen I was leaving my office, Senator [William S.] Cohen was on the floor, a Republican purportedly, giving this speech saying that if any lawyer ever advised the president that he had the authority—because this was really being debated at the time, and there were op-ed pieces and so forth—if any lawyer told the president that he had authority to unilaterally attack the Iraqis, then that lawyer would be impeached. I was putting on my jacket listening to this going over to the meeting.
…The president said, Bill … I’ve been reading these articles. This op-ed piece the other day said I don’t have the authority to launch an attack on the Iraqis. What’s your view, what’s the Justice Department’s view on whether I have the authority? …
I said, Mr. President, there’s no doubt that you have the authority to launch an attack. I explained why I thought he did under the Constitution as commander-in-chief, and I gave him some different theories.
At this point in the narrative, things are relatively simple. Barr had made clear his view that the president’s inherent authority under Article II included the authority to initiate a large-scale, combined-arms operation involving massive ground forces, without need of congressional authorization in the form of an authorization for the use of military force or otherwise. But he also went on to express a back-up theory—one that he labeled a “bootstrap argument”—in the event that this first theory did not persuade. Here is Barr’s account of the bootstrap argument for presidential war powers:
…I gave him a secondary theory—which I was sort of proud of at the time, it was a bootstrap argument. I said, Now another reason here, Mr. President, is—even for the critics who would say that that wasn’t true—there’s no doubt that you have the authority to put 500,000 troops in the field. Congress authorized—through the approval of the U.N. whatever they are, resolutions, and through their authorization and all that stuff, Congress has definitely approved you putting 500,000 troops over there face-to-face with the Iraqi Army.
We have intelligence that they have weapons of mass destruction—chemical weapons, biological weapons—and your job as commander-in-chief is to make sure those troops are not preemptively attacked. If you feel as commander-in-chief that in order to protect your army in the field you have to launch first, you absolutely can do that. Which I thought was an ingenious argument, [redacted].
Let’s unpack that a bit. The argument proceeds in two steps. First, does the president have authority to deploy armed forces in non-combat capacities? Barr argued that Bush certainly had authority to go that far, and Barr reinforced that conclusion as to this particular instance by pointing out that there was little doubt Congress approved Operation Desert Shield. But this left open the question of whether it somehow followed that Bush also could order that deployed force, without congressional authorization, to initiate hostilities with Iraq. That brings us to the secondstep: By citing the risk that forces deployed in Saudi Arabia might be attacked preemptively by Iraq (by chemical or biological weapons no less), Barr concluded that Bush had available the option of initiating hostilities in the form of anticipatory or preemptive self-defense. Thus the bootstrap metaphor: The authority to attack the Iraqi military could be derived from the need to preemptively defend the deployed forces.
Notably, Barr paused at this point in his advice to the president in order to encourage him to obtain congressional support if possible, recognizing that this would put the president in the strongest position possible. But he also recognized that congressional debate on this subject would introduce the shadow of Justice Robert Jackson’s “tripartite framework” from Youngstown (Steel Seizure):
I said, However, Mr. President, even though you have the power to do this unilaterally, without any consultation with Congress or what have you, you certainly would be in a better position, the strongest possible position, if Congress did pass a resolution. It would not be the law. It wouldn’t be a statute authorizing you to do it, but a resolution supporting what you did.
The reason I say that is because on the Hill at that point they were actually talking about passing a resolution that said the opposite, that he could not use force unless he got their approval. There were some in the administration who were saying, Just let them do it, screw them, ignore them, and let them pass whatever they want.
I said, I think it’s better to get up there and engage, to get up there and see if we can head off that kind of resolution and, in fact, get a resolution in support of it.
President Bush, wisely, anticipated the potential Youngstown problem that might follow:
He said, Well, suppose they pass a resolution saying I cannot do it. What impact does that have?
Barr’s response was nuanced: “I said, It’s irrelevant. It’s not a statute. It’s just an expression of opinion. They can’t change the Constitution by expressing their opinion on the matter. I would say you could still do it.…”
This gets to a very important question, one that senators should explore during the confirmation hearings: Does Barr believe not only that the president has inherent authority to initiate large-scale hostilities (whether directly as in his primary argument above, or via a boostrapped-defense claim as in his fall-back argument), but also that the president can do so even when Congress purports to direct otherwise?
Critically, the answer Barr gave to Bush does not compel the conclusion that Barr believes the commander-in-chief can override a statute. He was careful to frame his answer to President Bush in terms of a hypothetical in which Congress is considering a mere concurrent resolution (that is, something passed by both houses but not presented to the president for signature and not of statutory nature). Barr seems to have been saying that a negative concurring resolution can indeed be overridden—that is, that the president in that type of lowest-ebb scenario would yet prevail on the war powers question. But it does not follow that Barr would take the same view if the congressional opposition took the form of an actual statute (including a proper joint resolution), particularly one leveraging the spending power. Indeed, it is quite possible Barr (like John Yoo) would accept the power of Congress to constrain the commander-in-chief at least via the spending power, so long as the congressional action managed to rise to the statutory level.
In the end, of course, these questions were moot as to what became Operation Desert Storm:
And [Dick] Cheney said, You’re giving him political advice, not legal advice. I said, No, I’m giving him both political and legal advice. They’re really sort of together when you get to this level. Then there was a debate as to whether he should get up on the Hill and push. I was saying he should, and Boyden Gray was saying he should. There were others who were opposed. Eventually he made the decision after that meeting that he would. The White House went full-bore on that vote and got the vote turned around, and then ultimately won the vote. That was an interesting experience. I enjoyed that.
I’ll close by noting what should be obvious from those who have followed these arguments over the past decade. The most common war powers dispute in recent years has been not the question of unilateral authority to engage in large-scale ground operations, but rather unilateral authority to engage in airstrike-focused operations that rely on allies for the ground component—giving rise to the notion, embodied by Obama’s 2011 Libya campaign, that the “war powers” debate is not actually even implicated in the first place in such cases. I think it’s safe to assume that Bill Barr would accept that reading of the president’s authority as well.
Defending Rights & Dissent Raises Troubling Issues with William Barr’s Views on War Powers
As the letter explains, Barr’s views on the first Gulf War are particularly troubling. After George H.W. Bush sent half a million US soldiers to Saudi Arabia, there was significant national debate about whether Bush would need Congressional authorization to attack Iraq. Many within the Bush administration believed a resolution to authorize military force would fail in Congress and thus Bush should attack without seeking one.
Barr, then Deputy Attorney General, was a leading advocate for the view that Bush could launch a large scale, military offensive against Iraq without Congressional approval. While Barr claimed an inherent Article II authority made such a move legal, he also developed a backup “bootstrap” theory. This theory cynically exploited concerns about Iraqi chemical and biological weapons to justify a pre-emptive strike against Iraq. Ultimately, Barr advised Bush to seek a Congressional resolution, but he stated that such a resolution would not be law.
Congress has become increasingly concerned with the President’s blank check for war. There have been efforts to repeal the overly abused post-9/11 AUMF. And the Senate recently involved the War Powers Act as an attempt to end illegal US war in Yemen. As this was in spite of Pentagon claims that Congress lacked the legal authority to do so, it seems likely that the President and Congress may soon butt heads over war powers. This makes Barr’s views on war powers especially pertinent.