Mueller-Report Standoff Echoes 1982 Fight Involving Neil Gorsuch’s Mother

Thorny legal questions about relations between Congress and executive branch could be decided by Supreme Court

The standoff between Attorney General William Barr and Congress over access to the full, unredacted report from special counsel Robert Mueller has parallels to a 1982 fight involving the late Anne Gorsuch Burford, then administrator of the Environmental Protection Agency.

The thorny legal questions about relations between Congress and the executive branch that were in play then and today could end up being decided by a Supreme Court that now features her son, Neil Gorsuch.

Then, like now, a Democratic House of Representatives wanted access to documents that a Republican president said were privileged law-enforcement materials. As a result of the Reagan administration’s refusal to comply with a congressional subpoena, Ms. Burford was cited for contempt, sparking a legal battle that culminated in her resignation.

Mr. Barr, who was a young lawyer in the Reagan administration at the time of the showdown involving Ms. Burford, is also expected to be cited for contempt. House Democratic leaders have scheduled a vote this week on a contempt resolution that would authorize a House lawsuit for access to the full Mueller report on Russian election interference. The Trump administration has said the report is protected by executive privilege. Another House committee is considering a separate contempt effort against Mr. Barr over census documents.

If either measure passes the full House, Mr. Barr will be only the third agency head ever held in contempt of Congress. Ms. Burford was the first, and Eric Holder, who was attorney general under President Barack Obama, was the second.

The Supreme Court has never decided the question of whether a congressional demand for information can overcome an executive-privilege claim by a presidential administration.

The 1982 fight involving Ms. Burford had its roots in the belief among a number of young lawyers in the Reagan administration that the Watergate scandal had weakened the presidency as an institution. Those lawyers wanted a test case to strengthen the executive branch’s hand in fighting back against demands from Congress for information and found one in Ms. Burford.

The Burford fight “was all part of the Reagan plan to retrieve purported lost powers as a result of Watergate and to create this unitary executive theory,” said Morton Rosenberg, a longtime legal analyst for the Congressional Research Service and now a fellow at the nonpartisan Project On Government Oversight.

Ms. Burford wrote in her 1986 memoir “Are You Tough Enough?” that the Reagan administration had first sought to enlist the interior secretary and the attorney general as possible test cases on executive privilege but they refused. Ms. Burford, however, agreed to test the constitutionality of an executive-privilege claim by refusing to hand over documents to Congress.

At issue were congressional subpoenas demanding information on hazardous waste dumps from the EPA. Mr. Reagan ordered Ms. Burford not to comply with the subpoena, citing the doctrine of executive privilege—a legal theory that has been blessed by courts that allows a president to shield some documents from public scrutiny in certain circumstances. In the landmark 1974 case United States v. Nixon, a unanimous Supreme Court said that executive privilege doesn’t protect documents in a criminal inquiry—in that case, Watergate—but has never decided a matter involving Congress.

Mr. Reagan’s executive-privilege claim prompted a fight with Congress that would result in the contempt citation against Ms. Burford. The Justice Department then filed suit on behalf of Ms. Burford to try to stop the subpoenas. Ms. Burford, in her memoir, called the lawsuit “the sloppiest piece of legal work I had seen in twenty years of being a lawyer.” Ultimately, a judge dismissed the case, saying that he could only rule on the issue if Ms. Burford were being criminally prosecuted for her refusal—and encouraged both sides to reach a compromise.

.. One of Justice Gorsuch’s most controversial opinions also stems from a case that involved the EPA under Ms. Burford’s leadership, Mr. Somin noted. The legal theory of “Chevron deference” says that courts should defer to administrative agencies. It stemmed from a 1984 Supreme Court case involving the EPA’s attempts to regulate air pollution.

Though the Supreme Court upheld deference to the EPA which was led by his mother when the case was first brought, Justice Gorsuch has called the decision an “abdication of the judicial duty” and suggested he would vote to overturn the precedent if a similar case came before the Supreme Court.

People Are Trying to Figure Out William Barr. He’s Busy Stockpiling Power.

Is he the operator who spun the then-secret Mueller report? Or the straight shooter who later disclosed portions that were damaging to President Trump?

Attorney General William P. Barr is quickly emerging as the most influential figure in the second half of President Trump’s term.

WASHINGTON — Not long before Attorney General William P. Barr released the special counsel’s report on Russian interference in the 2016 election, he strategized with Senator Lindsey Graham, the Republican chairman of the Senate Judiciary Committee, about one of his next moves: investigating the investigators.

Over a dinner of steak, potatoes and carrots in a wood-paneled conference room off Mr. Barr’s Justice Department office, the two discussed their shared suspicions that the officials who initially investigated the Trump campaign’s links to Russia had abused their powers.

They strongly agreed, Mr. Graham said, that “maybe one of the most important things we’ll ever do is clean up this mess.”

Less than two months later, Mr. Barr began his cleanup with the most powerful of brooms: a presidential order commanding intelligence agencies to cooperate with his inquiry, and sweeping power to declassify and make public their secrets — even if they objected.

The move illustrates Mr. Barr’s swift rise in the pantheon of President Trump’s most prominent and loyal allies — and in the eyes of Mr. Trump himself. In a cabinet stocked with government neophytes and placeholders, the deeply experienced Mr. Barr is quickly emerging as the most influential figure in the second half of Mr. Trump’s term.

He is the closest thing we have to Dick Cheney,” said Charles J. Cooper, a former senior Justice Department official, referring to President George W. Bush’s unusually powerful vice president. “He is a strong-willed man with a forceful personality” and “well-formed, deeply studied views.”

But his rising power over the intelligence community has been accompanied by swelling disillusionment with Mr. Barr among former national security officials and ideological moderates. When he agreed late last year to take the job, many of them had cast him as a Republican straight shooter, steeped in pre-Trump mores, who would restrain an impetuous president.

Now they see in him someone who has glossed over Mr. Trump’s misdeeds, smeared his investigators and positioned himself to possibly declassify information for political gain — not the Bill Barr they thought they knew.

“It is shocking how much he has echoed the president’s own statements,” said Mary McCord, who led the Justice Department’s national security division at the end of the Obama administration and the start of the Trump era. “I thought he was an institutionalist who would protect the department from political influence. But it seems like everything he has done so far has counseled in the opposite direction.

So which is the real William P. Barr?

Is he the upright defender of the presidency who used his discretion to disclose nearly all of the 448-page Mueller report, even though it hurt Mr. Trump? Or is he a manipulator who has skewed the special counsel’s evidence in Mr. Trump’s favor and is now endorsing questionable legal arguments to fend off legitimate congressional inquiry?

An examination of his record, coupled with interviews of more than two dozen associates, suggests elements of both: He is neither as apolitical as his defenders claim, nor as partisan as his detractors fear. Instead, he is a complex figure whom the right cannot count on to be a Trumpland hero and whom the left cannot dismiss as nothing more than a political hack.

The real reason Bill Barr is defending Trump

The attorney general didn’t want to serve Donald Trump. But he did want to fight for a theory of presidential power.

After his combative news conference moments before the release of the Mueller report, one GOP operative wished aloud that Trump would drop Vice President Mike Pence from the ticket in 2020 and add Barr instead. Other prominent Republicans speak of him in almost adulatory terms. “Barr is the closest thing we have to [former Vice President Dick] Cheney,” said Chuck Cooper, a conservative litigator and Barr ally who, like the attorney general, has led the Justice Department’s Office of Legal Counsel. “He’s a man. He has a very strong sense of purpose and confidence.”

.. But people who know Barr and have tracked his career for years say the story is more complicated. Trump and Barr barely have a personal relationship, according to White House aides. Barr may have donated $2,700 to Trump in the 2016 general election, but only after he threw $55,000 to Jeb Bush in the primaries. They say that it’s not Donald Trump whom Barr is fighting for, but a vision of the presidency.

.. Advocates for the “unitary executive”

Barr’s first interaction with the Trump White House came in the spring of 2017 when he met with Pence to talk about representing him in the Mueller probe. Barr waved off the offer, instead recommending a handful of friends to do the job. About a year later, when the president’s children were unhappy with Trump’s legal representation, Barr got another phone call — and turned down another offer, this one to join the president’s personal legal team.

In late 2018, when the White House was on the hunt for a new attorney general, Barr might as well have been on speed dial. He is a longtime friend of White House counsel Pat Cipollone, who worked for him at the Department of Justice in the 1990s and who pressed him to take the job. Again, Barr begged off, urging the White House to consider his friend J. Michael Luttig, a former federal appeals court judge — or former Arizona Sen. Jon Kyl — or his Kirkland & Ellis partner Mark Filip.

Ultimately, his friends managed to talk him into it. “We had discussions over a period of time, and I encouraged him to take it,” said George Terwilliger, a conservative attorney and longtime friend of Barr’s.

Barr’s social and professional circle was critical in drawing him into Trump’s orbit. Barr pals, including Terwilliger, Cooper, Luttig and former Virginia Attorney General Richard Cullen are part of a group of elite conservative litigators who were once wunderkinds in the the Reagan and George H.W. Bush administrations. They grew up together and have fought countless political battles alongside one another.

The Trump era has been no different. Cullen represents Pence in the Russia probe. Cooper represents former Attorney General Jeff Sessions. And Luttig was the runner-up for the attorney general post when Trump tapped Barr in December, according to multiple sources.

They are united by a firm belief in a theory of robust presidential power dusted off by Reagan Attorney General Edwin Meese. Known among legal scholars as the theory of the “unitary executive,” they argue that the Constitution grants presidents broad control of the executive branch, including — to take a salient Trump-era example — the power to fire an FBI director for any reason at all.

Barr made his first imprint in this battle as head of the Justice Department’s Office of Legal Counsel in the George H.W. Bush administration, when he authored a controversial memo giving the FBI the right to seize fugitives abroad without the consent of the foreign government in question. As deputy attorney general, he told George H.W. Bush he had the power to send U.S. military forces into Iraq without congressional authorization.

.. Conservative heroes from Robert Bork to the late Justice Antonin Scalia have been advocates of this theory. Bork carried out President Richard M. Nixon’s directive, in the midst of the Watergate scandal, to fire independent special prosecutor Archibald Cox because he determined the president had the right to do so. Scalia, in a 1988 dissenting opinion, argued that the president had the power to fire any executive branch official, including an independent counsel.

A lot of The Federalist Society heroes are people who participated in or were advocates for the unitary executive,” said University of California law professor John Yoo, himself a proponent of the theory, which became a flash point in the George W. Bush administration after Yoo penned memos advising Bush that the Constitution grants the president virtually unlimited authority to use force abroad and justifies the warrantless wiretapping of American citizens.

Enter Bill Barr. Before he agreed to take the attorney general job, he drew on the unitary executive theory in the 18-page memo he sent to Deputy Attorney General Rod Rosenstein last June — a document his critics say amounted to a veiled application for his current job. In that memo, Barr argued that obstruction of justice is limited to things like witness tampering and destroying evidence and that the president has “complete authority to start or stop a law enforcement proceeding.” The implication: Trump was acting on firm constitutional ground when he fired FBI director James Comey, regardless of his motivation, and that doing so was not an effort to obstruct justice. Neither were Trump’s subsequent, but thwarted, moves to fire Mueller himself.

Described by his friends as supremely confident in his views, Barr said at his confirmation hearing that he had circulated the memo widely “so that other lawyers would have the benefit of my views.”

“This captures Bill Barr perfectly,” Luttig said. “He has stayed active in Washington his entire life, he knows everyone and everyone knows him, he reaches out regularly to tell people what he is thinking about the issues of the day — and what he thinks of what they’re doing and, yes, what they need to be doing differently! And they love it.”

A lifelong conservative raised by Roman Catholic educators — his father was a professor of English literature at Columbia University, his future alma mater — Barr, was 10 at the time of John F. Kennedy’s 1960 campaign. But he has told friends he resisted Camelot’s allure. “He claims the nuns washed his mouth out with soap,” Cullen said.

Barr’s critics argue not only that he has a fringe interpretation of the law, but that far from even-handedly applying it, he’s gone out of his way to protect the president. “You can be the President’s defense attorney or America’s Attorney General, but you can’t be both,” Rep. Eric Swalwell (D-Calif.) said in mid-April, as part of a call for Barr’s resignation. Other liberal critics have argued for his impeachment.

These critics say that presidents cannot and should not oversee, interfere with or direct investigations. “The most important function of the Department of Justice is to protect the independence of the prosecutorial function and the criminal justice system from political entanglement,” said Joyce Vance, a former federal prosecutor who worked under Barr at the Justice Department during the George H.W. Bush administration. Vance argued in a December op-ed that Barr’s memo disqualified him from serving as attorney general.

It’s easier for people who’ve never been in the Justice Department to take this unitary executive point of view,” Vance added. “But for anybody who’s been inside of the Justice Department for even five seconds, you understand that one of the most important things that you do is to protect the criminal prosecutorial power from political influence.”

Parrying with the press

Barr’s decision to convene a news conference on the Mueller report before it was released to the public and his statements during the 21-minute event turned him into a villain on the left and a subject of broad admiration on the right.

Democrats say that Barr didn’t just mischaracterize the report’s findings, using the president’s preferred word, “collusion,” rather than the more legally accurate “criminal conspiracy” but labored to explain Trump’s illicit behavior, describing him as “frustrated and angered by his sincere belief that the investigation was undermining his presidency.” Barr was acting as “as if he’s the personal attorney and publicist of the President of the United States,” declared Sen. Elizabeth Warren (D.-Mass).

“Excusing the president taking obstructive acts by saying that he was frustrated — every person who commits obstruction of justice is frustrated,” said Matt Miller, who served as spokesman for Attorney General Eric Holder. “The person that Republicans told us would be strong enough to stand up to the president is the one person who is actually behaving the way the president has always wanted his attorney general to behave.”

Republicans have seen something different unfolding. They relish Barr’s willingness and ability to thrust and parry with the news media — something other Trump Cabinet secretaries have gone out of their way to avoid for fear of overshadowing the president or taking a misstep that might sit wrong with him and cost them their job.

During his pre-Mueller report news conference Barr interrupted a reporter who questioned why Mueller wasn’t present for the release of “his” report only for Barr to interject, “No, it’s not, it’s a report that he did for me as the attorney general. … I’m here to discuss my response to that report and my decision, entirely discretionary, to make it public since these reports are not supposed to be made public.”

Pressed on whether it was inappropriate to come out and “spin” the report before it was made public, Barr offered a terse response: “No.”

Barr’s allies argue that Democrats are upset only over Barr’s decision not to prosecute the president. “The left is savaging Barr only because Barr is not savaging Trump,” Cooper said. A Wall Street Journal editorial titled “Targeting Bill Barr,” argued that Barr “will be hammered no matter what he decides. The good news is that the country finally appears to have an Attorney General who can take the heat.”

He will have to. Reports Tuesday evening indicating that Mueller wrote a letter to Barr protesting his characterization of the report’s conclusions reignited calls for Barr’s resignation or impeachment.

But many conservatives think it will take more than that to damage Trump’s improbable defender.

“Barr step down?” Sol Wisenberg, a former deputy on Kenneth Starr’s independent counsel investigation into President Bill Clinton, told POLITICO on Tuesday. “Are you fucking insane?”