Attorney General William Barr will deliver the Barbara K Olson Lecture at the Federalist Society’s 2019 National Lawyers Convention.
And he’s on a mission to use the “authority” of the executive branch to stop it.
Why would a seemingly respectable, semiretired lion of the Washington establishment undermine the institutions he is sworn to uphold, incinerate his own reputation, and appear to willfully misrepresent the reports of special prosecutors and inspectors general, all to defend one of the most lawless and corrupt presidents in American history? And why has this particular attorney general appeared at this pivotal moment in our Republic?
A deeper understanding of William Barr is emerging, and it reveals something profound and disturbing about the evolution of conservatism in 21st-century America.
Some people have held that Mr. Barr is simply a partisan hack — willing to do whatever it takes to advance the interests of his own political party and its leadership. This view finds ample support in Mr. Barr’s own words. In a Nov. 15 speech at the Federalist Society’s National Lawyers Convention in Washington, he accused President Trump’s political opponents of “unprecedented abuse” and said they were “engaged in the systematic shredding of norms and the undermining of the rule of law.”
It is hardly the first time Mr. Barr stepped outside of long-established norms for the behavior of attorneys general. In his earlier stint as attorney general, during the George H.W. Bush presidency, Mr. Barr took on the role of helping to disappear the case against Reagan administration officials involved in the Iran-contra affair. The situation demonstrated that “powerful people with powerful allies can commit serious crimes in high office,” according to Lawrence Walsh, the independent prosecutor in that case. According to some critics, Mr. Barr delivered the partisan goods then, as he is delivering them now.
Another view is that Mr. Barr is principally a defender of a certain interpretation of the Constitution that attributes maximum power to the executive. This view, too, finds ample support in Mr. Barr’s own words. In the speech to the Federalist Society, he said, “Since the mid-’60s, there has been a steady grinding down of the executive branch’s authority that accelerated after Watergate.” In July, when President Trump claimed, in remarks to a conservative student group, “I have an Article II where I have the right to do whatever I want as president,” it is reasonable to suppose this is his CliffsNotes version of Mr. Barr’s ideology.
Both of these views are accurate enough. But at least since Mr. Barr’s infamous speech at the University of Notre Dame Law School, in which he blamed “secularists” for “moral chaos” and “immense suffering, wreckage and misery,” it has become clear that no understanding of William Barr can be complete without taking into account his views on the role of religion in society. For that, it is illuminating to review how Mr. Barr has directed his Justice Department on matters concerning the First Amendment clause forbidding the establishment of a state religion.
In Maryland, the department rushed to defend taxpayer funding for a religious school that says same-sex marriage is wrong. In Maine, it is defending parents suing over a state law that bans religious schools from obtaining taxpayer funding to promote their own sectarian doctrines. At his Department of Justice, Mr. Barr told law students at Notre Dame, “We keep an eye out for cases or events around the country where states are misapplying the establishment clause in a way that discriminates against people of faith.”
In these and other cases, Mr. Barr has embraced wholesale the “religious liberty” rhetoric of today’s Christian nationalist movement. When religious nationalists invoke “religious freedom,” it is typically code for religious privilege. The freedom they have in mind is the freedom of people of certain conservative and authoritarian varieties of religion to discriminate against those of whom they disapprove or over whom they wish to exert power.
This form of “religious liberty” seeks to foment the sense of persecution and paranoia of a collection of conservative religious groups that see themselves as on the cusp of losing their rightful position of dominance over American culture. It always singles out groups that can be blamed for society’s ills, and that may be subject to state-sanctioned discrimination and belittlement — L.G.B.T. Americans, secularists and Muslims are the favored targets, but others are available. The purpose of this “religious liberty” rhetoric is not just to secure a place of privilege, but also to justify public funding for the right kind of religion.
Barr watchers will know that this is nothing new. In a 1995 article he wrote for The Catholic Lawyer, which, as Emily Bazelon recently pointed out, appears to be something of a blueprint for his speech at Notre Dame, he complained that “we live in an increasingly militant, secular age” and expressed his grave concern that the law might force landlords to rent to unmarried couples. He implied that the idea that universities might treat “homosexual activist groups like any other student group” was intolerable.
This form of “religious liberty” is not a mere side issue for Mr. Barr, or for the other religious nationalists who have come to dominate the Republican Party. Mr. Barr has made this clear. All the problems of modernity — “the wreckage of the family,” “record levels of depression and mental illness,” “drug addiction” and “senseless violence” — stem from the loss of a strict interpretation of the Christian religion.
The great evildoers in the Notre Dame speech are nonbelievers who are apparently out on the streets ransacking everything that is good and holy. The solutions to society’s ills, Mr. Barr declared, come from faith. “Judeo-Christian moral standards are the ultimate utilitarian rules for human conduct,” he said. “Religion helps frame moral culture within society that instills and reinforces moral discipline.” He added, “The fact is that no secular creed has emerged capable of performing the role of religion.”
Within this ideological framework, the ends justify the means. In this light, Mr. Barr’s hyperpartisanship is the symptom, not the malady. At Christian nationalist gatherings and strategy meetings, the Democratic Party and its supporters are routinely described as “demonic” and associated with “rulers of the darkness.” If you know that society is under dire existential threat from secularists, and you know that they have all found a home in the other party, every conceivable compromise with principles, every ethical breach, every back-room deal is not only justifiable but imperative. And as the vicious reaction to Christianity Today’s anti-Trump editorial demonstrates, any break with this partisan alignment will be instantly denounced as heresy.
It is equally clear that Mr. Barr’s maximalist interpretation of executive power in the Constitution is just an effect, rather than a cause, of his ideological commitments. In fact, it isn’t really an interpretation. It is simply an unfounded assertion that the president has what amount to monarchical powers. “George III would have loved it,” said Douglas Kmiec, a law professor at Pepperdine who once held Mr. Barr’s position as head of the Justice Department’s Office of Legal Counsel, of Mr. Barr’s theory. It’s almost beside the point to note, as the conservative lawyers group Checks & Balances recently wrote, that Mr. Barr’s view of history “has no factual basis.”
Mr. Barr’s constitutional interpretation is simply window dressing on his commitment to religious authoritarianism. And that, really, gets to the heart of the matter. If you know anything about America’s founders, you know they were passionately opposed to the idea of a religious monarchy. And this is the key to understanding the question, “What does Bill Barr want?”
The answer is that America’s conservative movement, having morphed into a religious nationalist movement, is on a collision course with the American constitutional system. Though conservatives have long claimed to be the true champions of the Constitution — remember all that chatter during previous Republican administrations about “originalism” and “judicial restraint” — the movement that now controls the Republican Party is committed to a suite of ideas that are fundamentally incompatible with the Constitution and the Republic that the founders created under its auspices.
Mr. Trump’s presidency was not the cause of this anti-democratic movement in American politics. It was the consequence. He is the chosen instrument, not of God, but of today’s Christian nationalists, their political allies and funders, and the movement’s legal apparatus. Mr. Barr did not emerge in order to serve this one particular leader. On the contrary, Mr. Trump serves a movement that will cynically praise the Constitution in order to destroy it, and of which Mr. Barr has made himself a hero.
The nominee to be attorney general has backed some of the president’s worst impulses on the Russia inquiry.
Not only has Mr. Barr already come perilously close to reassuring Mr. Trump that the president did not obstruct justice by trying to derail the investigation into whether his campaign conspired with Russia to corrupt the 2016 election, and that the special counsel, Robert Mueller, was overreaching, but he also has a long history of advancing an aggressive, expansive conception of presidential power.
He has made the case that a president can resist congressional oversight — a convenient position for Mr. Trump, but a concerning one for the country, now that Democrats are in charge of the House. He’s evenseen no problem with the president investigating a political opponent, saying there would be more validity in investigating Hillary Clinton for a uranium deal the government approved while she was secretary of state — which she had nothing to do with — than there was in investigating whether Mr. Trump conspired with Russia.
This theory of executive power has long been prized in conservative legal circles. But it will only empower a chief executive who has fought oversight since his first days in office and has rued the day that the special counsel was appointed after his first attorney general, Jeff Sessions, recused himself from the Russia investigation.
Mr. Barr cast further doubts about his appointment when he freelanced a memorandum to the Trump administration saying that the steps the president has continually taken to stymie a criminal probe he’s detested — firing the F.B.I. director James Comey, threatening to pardon associates who might cooperate with Mr. Mueller, or even using his “authority to start or stop a law enforcement proceeding” — were constitutionally legitimate. “Mueller’s obstruction theory,” he wrote, “would do lasting damage to the presidency.”
Given these past statements, it would be best if Mr. Barr, too, recused himself. But with the impending departure of Deputy Attorney General Rod Rosenstein, who appointed Mr. Mueller and oversaw his investigation after Mr. Sessions’s recusal, it’s not clear if the inquiry would be any better protected in other hands. There should be tremendous pressure on Mr. Barr to allow Mr. Mueller free rein, both in investigating and in writing a final report.
Lindsey Graham, the chairman of the Senate Judiciary Committee, told reporters on Wednesday that Mr. Barr assured him that he doesn’t think the special counsel is conducting a witch hunt and that he’d aim for transparency whenever Mr. Mueller delivers to him a final report on the special counsel investigation.
But is that assurance enough? And if Justice Department ethics officials conclude that Mr. Barr ought to cede supervision of the probe to avoid the “appearance” of bias, as they concluded in the case of the acting attorney general, Matthew Whitaker, will Mr. Barr simply ignore them, as did Mr. Whitaker?
Mr. Barr recommended that President George H.W. Bush pardon Reagan administration officials convicted or implicated in the Iran-contra scandal, including former Secretary of Defense Caspar Weinberger. Would he object to Mr. Trump pardoning his former national security adviser Michael Flynn or Paul Manafort, whom Mr. Mueller has accused of giving polling data to an associate connected to Russian intelligence? Mr. Trump has certainly considered it.
But it is Mr. Barr’s approach to the investigation of the president that demands the most scrutiny. Under his view that the president controls Justice Department functions and can “start or stop a law enforcement proceeding,” he may well be committed to the idea that the president can do as he wishes with the Mueller investigation. Would he be willing to resign if Mr. Trump tried to shut that investigation down, as Attorney General Elliot Richardson did when President Richard Nixon ordered him to fire the Watergate special prosecutor?
At the very least, Mr. Barr can commit to standing up for the integrity of the office he aspires to hold. Despite the partial government shutdown, Mr. Mueller’s investigators continue to move ahead. And federal prosecutors in New York, Virginia and Washington remain hard at work, bringing cases that have arisen out of Mr. Mueller’s probe or that otherwise incriminate subjects at the center of it.
This commitment to justice serves as an example to all and ought to go on unimpeded.
a survey of 2000 voters that shows public faith in 27 key democratic principles — ranging from the independence of the judiciary to constitutional limits on executive power — has declined across the board.
.. from September 2017 to January 2018, voters’ assessments of the ability of the courts, Congress and the Constitution to “effectively check executive power dropped by 7-8 percentage points.”
.. If scholars are right that erosion proceeds on a piecemeal basis, and that the first steps often entail targeting democracy’s “referees,” then our results regarding declines in judicial independence and support for a free press are especially disturbing.
.. On Monday, he charged that Democratic members of the House and Senate were treasonous in their failure to applaud him during his State of the Union address. In a speech in Blue Ash, Ohio, Trump described how he saw it:
You’re up there, you’ve got half the room going totally crazy, wild — they loved everything, they want to do something great for our country. And you have the other side, even on positive news — really positive news, like that — they were like death and un-American. Un-American. Somebody said, “treasonous.” I mean, yeah, I guess, why not? Can we call that treason? Why not?
.. Iyengar posed the following hypothetical:
Let’s assume that Mueller uncovers evidence of collusion and close associates of the Prez are implicated. Republicans are likely to deny the validity of the charges on the grounds that the investigators are biased and Republicans in Congress, as they’ve repeatedly demonstrated, will stick by Trump since the base is with him. Trump, of course, will continue with the ‘hoax’ narrative, and his surrogates in the media will be only too happy to back him up. At that point, we will have a very real threat to the rule of law.
.. Trump’s attacks on the F.B.I. are a case study in his polarization strategy. Since its founding in 1908, the F.B.I. has had substantial popular support, especially among Republicans.
.. Polarization by party identity is so powerful at the moment that most voters see the world through thick red and blue lenses. Almost everything is politicized. And, in almost every study I have run, I find that Republicans are more intense partisans than Democrats on average. We’ve seen partisanship color Republican evaluations of the FBI (negatively) and Russia and Putin (positively).
.. Trump has a negative 40-55 percent approval rating, but it’s “his best overall score in seven months.”
.. Seventy percent of voters described the economy as excellent or good, the highest since 2001
.. in politics, “what matters in the economy is real disposable income over the 6-12 months before an election.”
.. the future of democracy in America during the Trump administration depends as much or more on unemployment, take home pay, the Dow Jones industrial average, tax rates and the gross domestic product as on principled support for the rule of law.
.. as the investigation by the special counsel, Robert Mueller, continues to pursue lines of inquiry reaching deep into the White House, Trump will have plenty of opportunities in the near future to push the envelope on the rule of law.
.. I see the Democrats poised right now to make net gains of about 10 to 14 seats. They need 25 or so depending on vacancies.
.. Franklin Roosevelt’s seeking of a third (and then a fourth) term is among the most important norm violations in American political history. He hadn’t been dead for two years before both chambers of Congress proposed the 22nd amendment to limit presidents to two terms.
.. After Lincoln’s use of emergency powers to flex presidential power in ways not previously seen, Congress fought back against his successor, Andrew Johnson. More of his vetoes were overridden (15) than for any other president and Congress limited presidential influence over executive branch employment by passing the Tenure of Office Act (1867).
.. Trump won the Republican nomination and the presidency by conducting a campaign directly challenging the notion that the electorate will punish a politician for “violating accepted constitutional arrangements.”
.. If Republicans retain control of both branches of Congress in 2018 — even if by just one vote in the House and a 50-50 split (with Vice President Pence the tiebreaker) in the Senate — Trump will claim vindication. His assault on the pillars of democracy will continue unabated, with increasingly insidious effect.