It was William P. Barr’s confirmation hearing. But it was Robert S. Mueller III’s affirmation hearing.
President Trump had nominated Barr to be his new attorney general to shield him from Mueller’s hoax of a rigged witch hunt. But Barr spent much of his seven-hour confirmation hearing before the Senate Judiciary Committee on Tuesday lavishing praise on his future boss’s tormentor. And Republicans, for the most part, didn’t defend Trump — and occasionally joined in the Mueller veneration.
None of this guarantees that Mueller will be able to complete his work unhindered, or that Americans will ever know what work he did. Ominously, Barr, while promising “as much transparency as I can consistent with the law,” suggested he might try to bury the special counsel’s report by treating it as confidential and releasing only “certain information” himself.
.. Still, Mueller’s de facto affirmation hearing should be of concern to Trump as the president tries to discredit whatever the special prosecutor comes up with in the coming weeks or months. Just about everybody but Trump regards Mueller as an upstanding man doing honest work. Even Trump’s potential new attorney general.
Barr described declining an earlier request to join Trump’s legal defense team, saying, “I didn’t want to stick my head into that meat grinder.” He recalled telling Trump at the time that “Bob is a straight shooter and should be dealt with as such.”
Regarding his “good friend” of three decades, Barr vowed unequivocally: “On my watch, Bob will be allowed to finish his work.” If ordered to fire Mueller without cause, he said, “I would not carry out that instruction.”
.. And what if Trump’s lawyers attempt to edit the Mueller report, as has been threatened? “That will not happen.” Barr warned that the president’s interference in cases involving himself and his associates could be unconstitutional or criminal. He even qualified his earlier memo criticizing parts of the Mueller investigation, saying, “I had no facts.”
Barr’s appearance seemed to have a calming effect on the panel so recently shredded by the Brett M. Kavanaugh Supreme Court confirmation. It was as though the appearance of the 68-year-old Barr, confirmed by the same committee 27 years ago to serve the same role in President George H.W. Bush’s administration, had transported the lawmakers to a kinder, gentler time. Instead of trading barbs, Democrats and Republicans took turns talking about the nominee’s grandson. (The 8-year-old’s “Dear Grandpa” note to the nominee mid-hearing was a hit.)
Maybe the bombshell reports over the weekend about Trump’s Russia ties had cowed the Republicans. Whatever the cause, they were disinclined to defend Trump. Sen. Charles E. Grassley (R-Iowa) joined Democrats in pushing Barr for an expansive release of the Mueller report, saying, “The taxpayers ought to know what their money was spent for.”
And the chairman, Sen. Lindsey O. Graham (R-S.C.), usually a Trump loyalist, seemed to be trolling the president.
“Do you believe Mr. Mueller would be involved in a witch hunt against anybody?” Graham asked, invoking the president’s favorite phrase.
“I don’t believe Mr. Mueller would be involved in a witch hunt,” the nominee replied.
.. Asked whether then-Attorney General Jeff Sessions was right to recuse himself from the Russia investigation — a source of Trump’s fury — Barr replied: “I think he probably did the right thing recusing himself.”
“I agree,” Graham added, before poking fun at Trump’s lack of intellectual curiosity. “President Trump is a one-pager kind of guy,” he said.
“I suspect he is,” Barr concurred.
There was laughter in the hearing room at Trump’s expense.
Trump, no doubt encouraged by Barr’s earlier Mueller memo, hopes to be protected by his new attorney general. And it is possible Barr wasn’t being honest in his professed respect for Mueller and for transparency.
.. But why would Barr come out of retirement, instead of spending “cherished time” with grandchildren, to take a job he already had — only to become a villain for covering up Mueller’s findings?
“You seem like a rational person,” Sen. Richard J. Durbin (D-Ill.) told Barr. “Why do you want this job?”
Indeed, he’s joining a president famous for chewing up once-respected figures and sending them packing in disgrace and humiliation. Trump reportedly referred to Sessions as “Mr. Magoo” and “mentally retarded” and demeaned him publicly.
Barr’s answer to Durbin should have sent chills down the presidential spine as he munched on leftover Big Macs at the White House.
The rule of law, Barr said, “is the heartbeat of this country,” and he vowed to “protect the independence and the reputation of the department.” Trump’s treatment of subordinates “might give me pause if I was 45 or 50 years old, but it doesn’t give me pause right now,” Barr continued. He added, “I will not be bullied into doing anything I think is wrong.”
Barr spent decades building his reputation. Why would he throw it away now by becoming the guy who buried the Mueller report?
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.
No, Trump Cannot Declare an ‘Emergency’ to Build His Wall
If he did, and used soldiers to build it, they would all be committing a federal crime.
President Trump on Friday said that he was considering the declaration of a “national emergency” along the border with Mexico, which he apparently believes would allow him to divert funds from the military budget to pay for a wall, and to use military personnel to build it.
While it is hard to know exactly what the president has in mind, or whether he has any conception about what it would entail, one thing is clear: Not only would such an action be illegal, but if members of the armed forces obeyed his command, they would be committing a federal crime.
Begin with the basics. From the founding onward, the American constitutional tradition has profoundly opposed the president’s use of the military to enforce domestic law. A key provision, rooted in an 1878 statute and added to the law in 1956, declares that whoever “willfully uses any part of the Army or the Air Force” to execute a law domestically “shall be fined under this title or imprisoned not more than two years” — except when “expressly authorized by the Constitution or Act of Congress.”
Another provision, grounded in a statute from 1807 and added to the law in 1981, requires the secretary of defense to “ensure that any activity (including the provision of any equipment or facility or the assignment or detail of any personnel)” must “not include or permit direct participation by a member of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other similar activity unless participation in such activity by such member is otherwise authorized by law.”
In response to the Hurricane Katrina disaster in New Orleans, Congress created an express exception to the rules, and authorized the military to play a backup role in “major public emergencies.” But in 2008 Congress and President Bush repealed this sweeping exception. Is President Trump aware of this express repudiation of the power which he is threatening to invoke?
The statute books do contain a series of carefully crafted exceptions to the general rule. Most relevantly, Congress has granted the Coast Guard broad powers to enforce the law within the domestic waters of the United States. But there is no similar provision granting the other military services a comparable power to “search, seize and arrest” along the Mexican border. Given Congress’s decision of 2008, this silence speaks louder than words. Similarly, the current military appropriations bill fails to exempt military professionals from criminal punishment for violating the law in their use of available funds.
It is, I suppose, possible to imagine a situation in which the president might take advantage of the most recent exception, enacted in 2011, which authorized the military detention of suspected terrorists associated with Al Qaeda or the Taliban. But despite President Trump’s unsupported claims about “terrorists” trying to cross the border, it is an unconscionable stretch to use this proviso to support using the military for operations against the desperate refugees from Central America seeking asylum in our country.
It is even less plausible for the president to suspend these restrictions under the National Emergencies Act of 1976. From the Great Depression through the Cold War, presidents systematically abused emergency powers granted them by Congress in some 470 statutes, culminating in the Watergate fiasco. In response, the first section of the 1976 act terminated all existing emergencies and created a framework of checks and balances on the president’s arbitrary will.
If President Trump declared an emergency, Section Five of the act gives the House of Representatives the right to repudiate it immediately, then pass their resolution to the Senate — which is explicitly required to conduct a floor vote within 15 days. Since President Trump’s “emergency” declaration would be a direct response to his failure to convince Congress that national security requires his wall, it is hard to believe that a majority of the Senate, if forced to vote, would accept his show of contempt for their authority.
The Supreme Court’s 1953 decision in Youngstown v. Sawyer would be critical in Congressional consideration of such a decision. In a canonical opinion by Justice Robert Jackson, the court invalidated President Truman’s attempt in 1952 to use his powers as commander in chief to nationalize steel mills in the face of labor strikes. The decision imposed fundamental constitutional limits on the president’s power to claim that a national emergency — in this case, the Korean War — allowed him to override express provisions preventing him from using those powers domestically.
2019: The Year of the Wolves
Can the Constitution withstand the partisans?
.. 2019, because this looks to be the year of the wolves — the year when savage and previously unimaginable things might happen. It will be a year of
- divided government and unprecedented partisan conflict. It will be a year in which
- Donald Trump is isolated and unrestrained as never before. And it will be in this atmosphere that
- indictments will fall, provoking not just a political crisis but a constitutional one.
There are now over a dozen investigations into Trump’s various scandals. If we lived in a healthy society, the ensuing indictments would be handled in a serious way — somber congressional hearings, dispassionate court proceedings. Everybody would step back and be sobered by the fact that our very system of law is at stake.
We know the language he’ll use. It will be the anti-establishment, anti-institutional language that has been coursing through the left and right for the past few decades: The establishment is corrupt, the game is rigged, the elites are out to get you.
At that point congressional leaders will face the defining choice of their careers: Where does their ultimate loyalty lie, to the Constitution or to their party?
If their loyalty is to the Constitution, they will step back and figure out, in a bipartisan way, how to hold the sort of hearings that Congress held during the Watergate scandal — hearings that inspired trust in the system. They will step back and find men and women of integrity — the modern versions of Archibald Cox, Elliot Richardson and Judge John Sirica — who would work to restore decency amid the moral rot.
On the other hand, if they put party above nation, they will see this crisis as just another episode in our long-running political circus. They’ll fall back in partisan lines. They’ll hurl abuse. Their primary concern will be: How can this help me in 2020?
If that happens, then the roughly 40 percent of Americans who support Trump will see serious evidence that he committed felonies, but they won’t care! They’ll conclude that this is not about law or integrity. It’s just a political show trial. They’ll see there is no higher authority that all Americans are accountable to. It’s just power and popularity straight through.
If that happens, we’ll have to face the fact that our Constitution and system of law were not strong enough to withstand the partisan furies that now define our politics. We’ll have to face the fact that America has become another fragile state — a kakistocracy, where laws are passed and broken without consequence, where good people lay low and where wolves are left free to prey on the weak.