Thursday, May 23, 2019

William Barr isn't Trump's personal attorney, he's the agent provocateur of authoritarianism

WASHINGTON, DC - MAY 1: U.S. Attorney General William Barr testifies before the Senate Judiciary Committee May 1, 2019 in Washington, DC. Barr testified on the Justice Department's investigation of Russian interference with the 2016 presidential election. (Photo by Win McNamee/Getty Images)
When Donald Trump was young, attorney Roy Cohn passed onto him the same lessons that he did to Sen. Joseph McCarthy: always attack, never apologize, never admit a mistake. Taunt. Insult. Don’t worry about the facts. Don’t worry about the law. Just “Tell them to go to hell and fight the thing in court.”

For the past two years, Trump has desperately been seeking a replacement for this father figure, and now it’s clear he has found his man in Attorney General William Barr. In just a few months on the job, Barr has demonstrated a willingness to lie to the American people, flip the truth on its head, defy Congress and the Constitution, and live out that advice from Cohn: Tell them to go to hell, let’s take it to court.

According to The Wall Street Journal, Barr is deeply upset by those people who suggest that he’s turned the office of the attorney general into that of a personal attorney for Donald Trump. He insists that’s not the case. And for once, Barr may be telling the truth. He’s not Trump’s attorney. He’s there to defend the right of any Republican despot to ignore any law ever made, and to uphold the ideal of an authoritarian executive who answers to no one, on anything.

According to Barr, Trump is doing what a president is supposed to do: “provide leadership and direction” and not become “an errand boy for Congress.” By which he means that Trump is free to ignore congressional oversight—on any subject, and at any level of remove. In fact, as Barr’s new Office of Legal Counsel made clear on Monday, the official position of the Department of Justice is now that advisers to Trump are “absolutely immune” from congressional subpoenas. And, just in case the Congress is thinking of reviving powers not used since 1935, Barr is a step ahead of them. The OLC has already ruled that every member of the executive branch is exempt from Congress’ power of inherent contempt.

Neither of these ideas is supported by case law, but Barr is happy to fight it out in court, especially when his position means that the usual route of dealing with a congressional subpoena—by routing it through an appeal to the DOJ and a U.S. attorney—can be played for laughs. 

Barr is far from the only member of the Republican Party who holds a theory of an all-powerful unitary executive—when that position is, of course, not occupied by a Democrat—but his position is certainly among the most extreme. It was exactly Barr’s fanatical position on privilege and executive authority that got him back into the chair as attorney general. Now that he’s there, he’s showing that his unsolicited “Trump can’t commit obstruction” memo was just the tip of a goose-stepping iceberg.

The position Barr has taken is one in which there is not only no obligation for the executive to cooperate with Congress on any matter, but no means for Congress to solicit information except in the case of impeachment. And even then, Barr maintains that Congress still cannot obtain testimony or documentation from any of those members of the White House who enjoy “absolute immunity.”

It’s a position on congressional authority that certainly doesn’t match the rulings handed down during Watergate. But then Barr, like many other Republicans, believes that most of the rulings around Watergate were made incorrectly. Part of the reason for the extremity of the positions the White House is currently taking is the same reason that Alabama wrote a deliberately provocative bill on abortion in absolute defiance of current law: Both of them want a chance to take their case in front of this Supreme Court so that Clarence Thomas and Brett Kavanaugh can explain how the Constitution doesn’t say what it says.

Barr isn’t there to be an attorney for Trump. He’s in place to be an agent provocateur for authoritarianism, present only to plant bombs in the system. His idea of an executive immune to review isn’t one that was intended, or even contemplated by the people who framed Article II. In fact, it’s why that role isn’t in Article I. There is nothing in the Constitution that implies members of the executive branch are immune to congressional subpoena; nothing that implies they are immune to inherent contempt; and nothing at all that suggests the kind of massive expansion of privilege supported by Barr has any basis in law.

The Office of Legal Counsel, now once again under Barr’s thumb, was where he first served in the Justice Department, and where he helped to create rulings like the one that says that a sitting executive can never face indictment, no matter the gravity of his crimes. But the man who followed Barr in that position, Walter Dellinger, has a different view on Barr’s goals. “Protecting the president who has violated his oath of office and probably the criminal code,” says Dellinger, “is not an application of a strong view of executive power. That’s just wrong.”

But now that Trump has both his new Roy Cohn and his Justice "I Like Beer," wrong isn’t a thing. He can barely wait to get to court.

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