No Lap Dog, Just Defending His Idea of the Top Dog
Originally Published; July 6, 2020 | Republished by LIT; Aug. 5, 2020
Since becoming Attorney General, Bill Barr has been derided as a lapdog or patsy to President Donald Trump for Barr’s efforts to facilitate and defend Trump’s actions to obstruct justice and undermine rule of law. But that theory of Barr’s motivation is misplaced, and it may leave many uniformed about what truly propels Barr, why he is unlikely to ever change course, and why he is less likely to select which of the president’s orders to carry out.
The record of Barr’s threats to the rule of law in defense of Trump is long. For example, over three weeks before releasing a heavily redacted version of the Mueller Report, Barr released to the public a highly misleading summary, stating contrary to the report that the President had not committed obstruction of justice; he ordered, without articulable basis, an investigation of officials who had been involved in investigating Russian interference in the 2016 election; he overruled Justice Department career prosecutors to recommend a shorter sentence for Trump associate Roger Stone; he attempted to undercut prosecutors pursuing charges against Trump’s fixer Michael Cohen; and, most recently, Barr again overruled career prosecutors in abruptly seeking to drop the prosecution of Trump’s former National Security Advisor Michael T. Flynn.
That latest decision, in a case where Flynn had already pleaded guilty (twice), has prompted many to worry that the decision was made for political reasons. And Barr’s response when pressed about Flynn reinforced the belief that Barr is simply a shill for the President. Just as the President touts his “winning,” Barr stated, “Well, history is written by the winner. So it largely depends on who’s writing the history,” before he somewhat caveated the statement.
But there’s a deeper reason for Barr’s fierce defense of the President – and the presidency. He may appear a lapdog seeking to please his master, but the Attorney General is actually fighting to advance his own ideological hobby horse. Barr has long been a proponent of the unitary executive theory, which argues that the original intent of the Constitution puts all executive authority solely in the control of the president. Embracing a dissent written by Justice Scalia in Morrison v. Olson, Barr has insisted that the president’s control over the executive branch personnel cannot be limited by Congress. As Scalia wrote, “Article II, § 1, cl. 1, of the Constitution provides: ‘The executive Power shall be vested in a President of the United States.’ As I described at the outset of this opinion, this does not mean some of the executive power, but all of the executive power” (emphasis added). This alarming – and highly contested – theory posits that the president has the power to make all executive branch decisions, including hiring, firing, and—perhaps most chillingly—whether or not to initiate or end a criminal prosecution. This view of Article II – which, as a textual matter, does not actually contain the word “all” — has great consequences for rule of law generally and, moreover, suggests that “lock her up” is not just something Trump supporters chant at political rallies but a position Barr now relies on, as a matter of philosophy and constitutional principle, to run the Justice Department.
Barr has made his legal career in government defending this theory, including as head of the Justice Department’s Office of Legal Counsel during the administration of George H.W. Bush, when Barr drafted a memo permitting the FBI the power to detain fugitives overseas without the agreement of the foreign country where they were seized. After becoming deputy attorney general in that same administration, Barr advised the president that he needed no congressional authorization to deploy U.S. troops to Iraq. More recently, Barr sent an unsolicited memo to President Trump on June 8, 2018, seemingly in an audition to become Attorney General, making the argument that the aspects of the Mueller investigation were legally insupportable, particularly because the president per se cannot commit obstruction of law, unless he commits an actual crime such as witness tampering. According to Barr’s memo, the president’s “discretionary prosecutorial power is unreviewable.” As Marty Lederman explained in his review of the memo, this was no simple version of the unitary executive theory. As Lederman, who is not one to exaggerate, wrote, the 2018 memo advanced “a version of Barr’s notorious 1989 OLC memorandum, boosted by the proverbial ‘steroids.’… so shockingly categorical and so extreme.”
Barr is a fellow traveler in his belief of an all-powerful president with deceased Supreme Court Justice Antonin Scalia and former D.C. Circuit judge and failed Supreme Court nominee Robert Bork, who infamously fired special prosecutor Archibald Cox during the Watergate scandal’s “Saturday night massacre” when none of his Justice Department’s superiors would do so – because Bork believed it was President Nixon’s right to do so. Under President George W. Bush, DOJ lawyers relied on the same theory to advance controversial positions allowing torture and warrantless wiretapping of Americans on U.S. soil. While those are policy positions that DOJ lawyers regarded as allowed by the unitary executive theory, proponents argue that the ability to control all executive branch personnel, as well as prosecutorial decision-making, is compelled by the theory. This position undergirds opposition to the just-cause removal proposals for agency inspectors general and to the similar provision applicable to the director of the Consumer Finance Protection Bureau recently invalidated by the Supreme Court.
An extreme version of what Barr’s unitary executive theory legally demands is on vivid display in the Flynn case. Those D.C. Circuit judges who recently determined that DOJ had an unfettered right to dismiss the case against him are adherents to the unitary executive theory. Judge Neomi Rao, writing for a divided three-judge panel, held that U.S. District Judge Emmet Sullivan had no authority even to inquire into the decision by DOJ to drop its prosecution against Flynn. Rao, a recent appointee to the court by Trump, elaborated in her opinion: “Each of our three coequal branches should be encouraged to self-correct when it errs. If evidence comes to light calling into question the integrity or purpose of an underlying criminal investigation, the Executive Branch must have the authority to decide that further prosecution is not in the interest of justice … In this case, the district court’s actions will result in specific harms to the exercise of the Executive Branch’s exclusive prosecutorial power.”
As Lederman explained in his very detailed posts for Just Security on the Flynn case, Barr’s DOJ made an argument in its brief to the Court of Appeals not made before the district court that it would actually be “unconstitutional for a court to deny a motion for leave to dismiss a charge.” In particular, the brief posited that “‘neither the Judicial nor Legislative Branches may directly interfere with the prosecutorial discretion of the Executive by directing the Executive Branch to prosecute particular individuals.’” The two judges in the majority agreed with this argument, holding that “[t]he contemplated proceedings would likely require the Executive to reveal the internal deliberative process behind its exercise of prosecutorial discretion, interfering with the Article II charging authority.” DOJ and Trump appointees are showing their commitment to the unitary executive theory as articulated by Barr in a speech to the Federalist Society on November 15, 2019, in which he railed against “harassing congressional oversight” and also judicial review. In a speech that laid out his vision for DOJ and an all-powerful president, Barr lamented how courts have increasingly second-guessed the president’s “prudential” decision-making. Stated Barr, “it was once well recognized that such matters were largely unreviewable and that the courts should not be substituting their judgments for the prudential judgments reached by the accountable Executive officials.”
While Barr is always adept at cloaking his meanings in legalese, making his pronouncements sound at once both technical and commonsensical, we must take note of what he and Rao, and those supporting their views, are claiming: the president can direct prosecutorial decisions, whether or not he does so for political reasons. Scholars and others have raised the alarm that President Trump poses a threat to democracy, and indeed it is clear that those foreign leaders who have been most successful at substituting authoritarian rule for democratic practices have similarly embraced a unitary executive theory as the most effective mechanism to achieve their goals, including taking control of the critical prosecution power. It is ironic that President Trump met recently with Polish President Andrzej Duda to boost his reelection chances. Poland has been worrisomely backtracking in its commitment to democracy in part by transforming independent prosecutors into political warriors. In 2016, the Minister of Justice and the Prosecutor General ceased to be separate positions; instead, the once-independent prosecutor became part of the political apparatus. President Orban of Hungary has also been able to use prosecutions against political opponents by having them charged with corruption – with echoes of “Burisma” and “lock her up.” Indeed, Orbán’s prosecutors timed announcements about prosecutions for when they might impact elections.
By so publicly embracing an extreme and absolutist view of the presidency, Barr may well be signaling to Trump that he is a faithful lap dog, stroking his ego as so many other appointees do to stay in Trump’s good graces. Barr may wear a hangdog expression and speak softly and in legal jargon, but make no mistake: his dangerous “theory,” based on a highly contested reading of the Constitution and U.S. history (to put it mildly), is one in which he believes deeply. So, while many worry about the dangers President Trump poses to democracy, equal—or perhaps greater—attention must be paid to Attorney General Barr and his view that a power-hungry President has unfettered control over the instruments of law enforcement and prosecutorial decision-making, as well the rest of the executive branch’s powers. There could not be a more direct threat to rule of law, the foundation of a democratic system.