The Dangerous Ideas of Bill Barr
The attorney general’s theory of executive power places presidents above the law.
One of the stranger aspects of the Donald Trump era is the open competition for the president’s affection. From Fox Business’s Lou Dobbs saying that Trump’s presidency is “the most accomplished … in modern history” to the president forcing his Cabinet secretaries to praise him on camera to his former fixer Michael Cohen once declaring that he would “take a bullet” for his former employer, it seems like each of the president’s myrmidons is daily attempting to outdo the others in employing Soviet-style hyperbole in praise of the president.
If there’s a comfort in this spectacle, it’s in the recognition that this is performance, that it’s a schtick, and that its ubiquity is a marker of the president’s deep insecurity. It is not a projection of strength, but one of weakness. The performativity of the spectacle suggests that at least some of these people recognize they are doing a bit. Others seem to have been corrupted by their proximity to Trump. Career civil servants such as Rod Rosenstein, who swore oaths to uphold the Constitution, have somehow been reduced to shuddering with fear at the thought of being fired in a tweet, begging the president for the opportunity to ensure that the law bends to his will.
It should be clear from Wednesday’s hearing before the Senate Judiciary Committee that William Barr, the attorney general of the United States, is something else entirely. Barr is no flunky. He is a hardened ideologue who believes that the president he serves is largely above the law. Barr seems genuinely committed to defending the imperial prerogatives of the office against shortsighted liberals who would weaken the presidency in a delusional quest to remove a Republican from office. As he put it in his 2017 memo attacking the special counsel’s investigation, “crediting” the belief that the president could have committed obstruction by his official acts “would have grave consequences far beyond the immediate confines of this case and would do lasting damage to the Presidency and to the administration of law within the Executive branch.”
Barr is not protecting Trump because he thinks Trump is the most accomplished president in modern history, because he fears Trump, because the real-estate mogul has some psychological hold on him, or because he has been corrupted. Barr is defending Trump because Barr is a zealot.
In March, Barr released a letter summarizing the long-awaited conclusions of Special Counsel Robert Mueller’s inquiry into Russian interference in the 2016 election. That letter mischaracterized Mueller’s conclusion that the Trump campaign took advantage of, and benefited from, Russian interference, only quoting the part of Mueller’s report that found that Trump-campaign officials’ conduct did not amount to a prosecutable crime.
Barr also misleadingly framed Mueller’s discussion of obstruction of justice in order to reach a conclusion that Trump did not obstruct—even though Mueller all but suggested that Trump would have been indicted if the Department of Justice did not have a policy against prosecuting a sitting president. Tuesday evening, the news broke that Mueller had written a letter expressing frustration with Barr’s effort to mislead the public about the conclusions of his investigation, after watching days of credulous press coverage suggesting that the president had been exonerated.
On Wednesday, before the Senate, Barr elaborated on his decision making. Barr not only defended his decision to clear the president of obstruction despite the fact that the public watched the president fire the FBI director over the Russia investigation, dangle pardons before suspects, and intimidate witnesses, but insisted that the president could not have obstructed justice simply by shutting down the investigation, because “the president does not have to sit there constitutionally and allow it to run its course. The president could terminate the proceeding and it would not be a corrupt intent because he was being falsely accused.”
The logic here is breathtaking: The president can end an investigation on the basis that he is “falsely accused.” The entire point of an investigation is to determine culpability; if the president can end an investigation into himself or any of his allies simply by asserting his own innocence, then he is effectively above the law. Under this standard, President Richard Nixon was perfectly within his rights when he attempted to end the investigation into the break-in of Democratic headquarters at the Watergate, which implicated several of his campaign operatives and ultimately led to his resignation.
Barr has previously suggested investigating the officials involved in the Trump inquiry for wrongdoing; on Wednesday, he was evasive when Senator Kamala Harris asked whether the White House had ever asked him to prosecute anyone. Should Trump demand that his attorney general prosecute the next Democratic nominee for president, there’s little evidence that Barr would be any kind of obstacle. The attorney general is sworn to uphold the Constitution, not to act like a mob enforcer against the president’s political enemies.
Nixon famously declared in 1977, in an interview with the reporter David Frost, that “when the president does it, that means that it is not illegal.” That was not mere sophistry, but ideology, and it is an ideological strain that has run through nearly every Republican administration since Nixon.
Barr’s involvement in the Iran-Contra scandal helps illuminate his conduct today. The administration of President Ronald Reagan defied federal law by selling arms to Iran in order to fund right-wing guerrillas in Central America, a scandal that led to the appointment of an independent counsel and the convictions of several high-ranking administration officials. When George H. W. Bush took office, he pardoned six officials implicated by the investigation at Barr’s urging.
The Iran-Contra scandal itself speaks to the conception of executive power to which Barr subscribes: that a president can do whatever he wants, even if Congress bars him from doing so, particularly if he is acting in what he believes to be the interests of the country—Trump is famously incapable of distinguishing between national interests and personal ones, between loyalty to him and loyalty to the nation. As Reagan’s former national security adviser Robert McFarlane put it, Reagan “just didn’t believe that it was a legitimate authority of the Congress to say that—that he, rather than the Congress, determined how he would conduct, in this case, the support of the freedom fighters.”
This has been particularly true of the expansive conservative conception of the president’s constitutional war-making powers. If Reagan openly defied Congress and the law, the first President Bush ratified his actions by pardoning those involved in the scheme. The next Republican president, George W. Bush, covertly defied the law by building a network of secret prisons across the globe, indefinitely imprisoning those suspected of terrorism, and sanctioning warrantless surveillance of American citizens, all based on dubious legal theories that amounted to little more than Nixon’s insistence that the president is above the law. Less articulate was the former George W. Bush Justice Department official John Yoo’s response to being asked whether the president could order a child’s testicles crushed: “I think it depends on why the president thinks he needs to do that.”
This theory of executive power does not apply to Democratic presidents, who become tyrannical figures the moment they take office. But that’s for the best—even if the skepticism is partisan in origin, preventing the powers of the president from growing too vast to meaningfully constrain is in the public interest. But what is at work with Barr is something more perilous than the sort of bizarre partisan overstatement that characterizes much of the Trump-era conservative discourse.
The thing about the Trump sycophants is that, at a certain point, the praise becomes so effusive that it feels, if not quite insincere, aware of its own absurdity. If someone as committed to the president as Cohen once was can flip and tell Republicans in Congress, “I’m responsible for your silliness because I did the same thing that you’re doing now for 10 years,” it suggests that when the time comes, the pageantry can be discarded, that the grift can be abandoned once it is no longer profitable.
Barr is not Cohen. He is not doing a bit. He is not grifting. He is not performing. He is not a suck-up, or an opportunist, or a lackey. He has not been compromised or corrupted. He is an ideologue who, like many of his Republican predecessors, believes that Republican presidents can do whatever they want, regardless of what Congress, the law, or the Constitution says. And that makes him far more dangerous.