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.
Trump Attorneys Assert Immunity From Broad Sweep of Law
Over his nearly three years in office, lawyers representing President Trump have made numerous legal arguments that, taken as a whole, would give the president sweeping immunity—even if he were to commit murder.
An extensive review of correspondence, court documents, legal opinions and public statements from lawyers representing Mr. Trump shows the president’s attorneys have consistently pushed to put him beyond the reach of any other institution in federal, state or local government—immune to civil lawsuits, judicial orders, criminal investigations or congressional probes.
Those arguments have become even more aggressive as Mr. Trump faces numerous legal threats, including a possible impeachment in Congress, a New York state prosecutor who has subpoenaed his tax records as part of a criminal probe and a welter of civil lawsuits.
One lawyer for the president recently went so far as to suggest that Mr. Trump could shoot someone on Manhattan’s Fifth Avenue and not be investigated by local authorities, echoing a statement the president made during his 2016 campaign in which he said he wouldn’t lose any voters over such an action.
“This administration has articulated a view of presidential power in which the president is above the law,” said Erica Newland, who served in the Justice Department Office of Legal Counsel during both the Obama and Trump administrations.
Some positions that lawyers representing Mr. Trump, the White House or the Department of Justice have argued since January 2017 in court or in other legal documents:
- Mr. Trump is immune from criminal investigation while he remains in office, even if he were to shoot someone on the streets of Manhattan.
- Federal courts don’t have the authority to transmit grand jury material concerning presidential wrongdoing to Congress to consider impeachment.
- Close aides of the president are entitled to total immunity from testifying if subpoenaed by Congress.
- Administration officials don’t have to cooperate with an impeachment inquiry conducted by Congress even if subpoenaed.
- Many government ethics rules designed to prevent conflicts of interest, nepotism or self-dealing do not apply to Mr. Trump or other White House employees.
- Mr. Trump shouldn’t have to obey state or federal laws that could require the production of his tax returns, and he is immune from a subpoena from state prosecutors for those returns.
“If he can’t be held accountable via executive-branch law enforcement and he can’t be held accountable via congressional impeachment, then we really do have a king,” said Ms. Newland, now counsel at the bipartisan legal advocacy group Protect Democracy.
Lawyers representing the president either in his personal or institutional capacity have argued that
- law enforcement can’t investigate the president at all; that
- he can shut down investigations into himself or his associates; and that
- obstruction-of-justice laws don’t apply to the president.
At the same time, since Democrats took over Congress in January, Mr. Trump’s government and personal lawyers have fought numerous legal battles over congressional oversight—arguing that close aides don’t have to testify even if subpoenaed, that all congressional investigations must serve a “legislative purpose,” that cabinet secretaries can disobey subpoenas and that a congressional impeachment inquiry is invalid.
Further, they have argued that federal courts don’t have the authority to transmit any evidence of presidential wrongdoing obtained by a grand jury to Congress for possible consideration of impeachment. In some instances, Trump administration attorneys have contended that some executive decisions are unreviewable by the courts, or that courts have no right to issue orders stopping the president from taking official actions.
Some of the claims contradict each other: Mr. Trump’s personal attorneys have argued he can be held accountable only by Congress, while his White House lawyers fought efforts to hold him accountable in Congress.
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The White House, the Justice Department and an attorney representing Mr. Trump personally didn’t respond to multiple requests for comment.
To some extent, these positions reflect what all lawyers do: take aggressive, maximalist legal positions in the best interests of the client, and see if a court agrees. Lawyers for previous presidents—Democrats and Republicans—are no strangers to making similarly aggressive claims about powers, authority and immunities to defend the president personally or the long-term power and authority of the office.
But scholars who study the history of presidential power say what is different about the Trump administration is its unwillingness to acknowledge the legitimacy and interests of other institutions.
“Mr. Trump has taken the position that the [Constitution’s] Article II powers of the president give him absolute authority. What makes his case different is that he is not even recognizing the legitimacy of countervailing powers” such as Congress, said Mark Rozell, a dean at George Mason University who has studied presidential authority. “He is deeming them as politically motivated and not legitimate in their inquiries and therefore to be obstructed at every turn.”
The issue gets even more complicated in investigations like impeachment because overlapping legal teams are defending the president in both his capacity as an individual and his capacity as the president.
Government lawyers represent the presidency as an institution and are supposed to advance arguments to preserve the institutional powers of the president—but aren’t supposed to defend the president’s personal interests.
The Justice Department, the White House counsel and his personal legal team are all defending the president on a cornucopia of different lawsuits around the country.
John Yoo, a former Bush administration official known for his advocacy of expansive presidential power, said many of the most extreme legal positions taken by the Trump lawyers have come from his personal attorneys trying to defend him by invoking the powers of the presidency. He said that most of the positions the Justice Department, White House counsel and other government lawyers have taken are in line with previous practices.
“When it comes to where he’s making the arguments on behalf of the office of the presidency, in his official capacity, I think he’s gone just as far as other presidents have,” Mr. Yoo said. “In the areas where the president has been defending himself as an individual rather than the office, he has made arguments that have gone beyond what past presidents have set out.”
Mr. Yoo added: “I think that Trump has been under unprecedented assault—constitutionally, legally—from his critics too. I can see why his lawyers are bringing out these arguments which are usually reserved for times of real crisis.”
Mr. Trump isn’t the first to provoke a legal showdown over his powers and immunities. But rarely did the attorneys representing other presidents deny that other institutions also had legitimate interests.
Richard Nixon sparked a major legal battle over his refusal to turn over tapes of Oval Office conversations to prosecutors and Congress. But he also offered numerous compromises, such as turning over transcripts, because he and his attorneys recognized that Congress and prosecutors had legitimate interests in access to the materials as part of their inquiries.
During a yearslong independent counsel investigation and later impeachment, President Bill Clinton also fought numerous legal battles over his privileges and immunities, but frequently argued before courts that they needed to balance the interests of the presidency against the needs of Congress or law enforcement. Mr. Clinton, for instance, agreed to testify before a grand jury in exchange for independent prosecutor Ken Starr dropping a subpoena.
President George W. Bush fought back against a Democratic-led congressional investigation to keep his top aides from testifying about the firing of federal prosecutors for what critics said were political reasons, but offered a compromise by allowing voluntary interviews and turning over documents to Congress.
Few of those legal positions have ever been blessed by courts.
Last week, Mr. Trump’s personal attorney William Consovoy argued before a New York federal appeals court in the tax case that Mr. Trump couldn’t be investigated for any crime while in office. The judge asked if that included shooting someone on Fifth Avenue. “Nothing could be done?” he asked.
“That’s correct,” Mr. Consovoy said. That case is pending.
In another instance earlier this month, Justice Department lawyers argued that a court couldn’t give Congress evidence that was gathered by special counsel Robert Mueller if it was obtained using a grand jury—going so far as to say that a federal judge was wrong in 1974 to give Congress materials from the grand jury investigating the Watergate break-in.
“Wow, OK,” U.S. District Judge Beryl A. Howell said in response to that argument. “The department is taking extraordinary positions in this case.”
She ruled against the Justice Department last week, writing that her decision was motivated in part by the White House’s refusal to cooperate with congressional investigators.
The White House announced Monday it would appeal.