With Barr, Will Justice Be Done?

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.

Trump’s Tool Kit Does Not Include the Constitution

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.

Limbaugh: ‘The Swamp Has Got Trump Playing the Swamp’s Game’ — ‘That’s Not What Trump Was Elected to Do’

Limbaugh argued although he was playing “the swamp’s game,” he had other tools at his disposal that he has yet to use.

.. He could fire Rosenstein, and he could fire Mueller. There’s nothing stopping him from doing it, nothing legally. He could go to Rosenstein right now. He would be perfectly within his bounds to go to Rosenstein and say, “Look, this investigation can’t be wide open for anything. You’ve gotta limit what these people can look for. You’ve gotta limit it to actual felonious crimes. You can’t have them subpoenaing anybody they want financial records, text records, tax records. There has to be a limit.”

.. If he wants to fire these people, he can. And if he wants to endure the excrement show that happens, he can. If he wants to drain the swamp, he could keep doing it.

.. Republicans have no desire to cede their power to Trump. They’re holding onto it so Trump’s in a battle with his own party for power, and of course the DOJ is not equally powerful as the executive branch

.. It’s not constitutional or legal prohibitions stopping him. It’s pure politics. And it’s the politics of the swamp, folks.

.. I think the effort to get health care passed in the House was Trump playing the swamp game. And by swamp game, I mean the traditional way to get legislation passed.

.. Now, you might say, “Well, I mean, Rush, the swamp’s the swamp. There’s no other way to get a bill passed. The president’s not a dictator.” I understand that. But Trump has many more tools at his disposal than he is aware of. I shouldn’t say that. He’s got more tools at his disposal than he is using. The power vested in the president by the Constitution in the executive branch is awesome.

Now, there are limits to it. Separation of powers. But he hasn’t gotten close to utilizing it.

.. If Trump thought the investigation was needlessly harming the country and derailing us at a time we needed to be focused on real dangers and enemies, he could do it. There would be hell to pay in the media, don’t misunderstand. I mean, it would dwarf what’s happening. But he could do it, is the point. Now, he won’t probably choose to do it because of the political ramifications of it.

 

College Classmate: Neil Gorsuch Attacked Anti-Apartheid & Civil Rights Protesters & Defended Contras

I think what stands out about Neil Gorsuch was that his views were completely formed as soon as he entered college as a freshman, which I think is unusual, and he had very solid right-wing reactionary views from the beginning. He was also, on a personal level, very polished and affable. And I think this is part of a consistent pattern, where he has a real commitment to reactionary politics and is able to put an appealing face on it.

.. He did attack South African divestment, after the university had already decided to divest. And he put out a real divisive argument that it was going to hurt student aid. He attacked a protest led by black students against racism on campus, not based on the substance of the issue, but saying that people involved were revolutionaries. He did stick up for Ronald Reagan in the Iran-Contra affair, Iran-Contra scandal, which was an extreme position even for conservatives at the time.

.. he said that it was within Ronald Reagan’s executive power to engage in these covert operations

.. he put in a real strong defense of the Contras and said it was really urgent that they succeed.

.. And I think the other aspect of him that’s really consistent here is that he—whenever he attacked, attacked these left—these progressive positions and attacked progressive activists, which he did a lot of, it was never based on the merits of the issue. It was always based on some other reason. So, the—again, so South African divestment, it’s not an issue of apartheid being wrong, it’s an issue of having student aid, or that these protests aren’t bad, but the protesters are bad because they’re revolutionaries or they’re superficial. He made a lot of claims that they didn’t really know what they were doing, and they just enjoyed protesting. And that seems consistent with a lot of what he does as a judge, where he doesn’t really address the merits of the issue, but comes up with legal reasons for making unjust decisions.

.. a case involving a truck driver who got fired because his truck broke down on the side of the road at nighttime in the winter, and he thought he was freezing to death

.. Judge Gorsuch dissented, saying that the plain language of the law didn’t protect him from being fired. So here’s a case where you have an extremely, extremely inhumane treatment of the worker, and Judge Gorsuch decides that he has to just stick with what he sees as the plain language of the statute, which is something that other people disagree with. So he’s willing to interpret laws in a way that comes up—comes out to really unjust results.

.. even though he was a polished, affable person, the positions he took were really ruthless.

.. divestment was a done deal on campus by two years by the time he wrote that column. And he was—I mean, the university had already decided to divest