Not the President’s Lawyer

[With events happening so quickly in the Ukraine affair and the impending impeachment hearings of the President, it’s important to recognize the failure of Attorney General William Barr to fulfill his duty to defend United States law.  My next post will begin examining the Ukraine affair.]

 At his 1989 confirmation hearings to become assistant attorney general, William Barr asserted that the attorney general (AG) is the “president’s lawyer.”  This is a gross over-simplification of a complicated issue.  While there is some lack of clarity under the Unitary Executive Theory, most legal scholars believe that the responsibility of the United States Attorney General is to act primarily in the country’s interests not the president’s. 

 Barr has been consistent, however, in acting for the President and ignoring his duty to defend the laws of the country.

•  One of the central goals of Trump’s presidency has been to reverse the Affordable Care Act (ACA).  The ACA, however, has been the law of the land, and the Justice Department (DOJ) had previously determined that it should be defended.  But Barr reversed that decision, “ignoring decades of precedent for DOJ to defend laws passed by Congress, regardless of political or policy critiques.”  
• When Robert Mueller gave the Department of Justice his report, Attorney General Barr initially withheld it.  Several days later, Barr released his own four-page summary of the 300-plus page report, opining that the President did not break the law, even though Mueller’s report presented clear evidence of Trump’s obstruction of justice.  Republicans in power seized on Barr’s premature and misleading statements to defend Trump.  Barr did not release the full report until almost a month later, during which time enough of the public had accepted Barr’s interpretation so that the impact of the full report was marginal.  Barr’s intervention was, to say the least, highly unusual and is strong evidence of his desire to use his position primarily to protect the president.
• President Trump has announced that he will resist all documents Congress demands or even subpoenas, which the AG has defended.  The laws governing executive privilege, however, require "sufficient showing" that the "presidential material" is "essential to the justice of the case.”

These examples and others make clear that Barr is, indeed, acting as the President’s lawyer, even protecting him from the consequences of his actions against the interests of the country.  While there can be debates about the exact relationship between the AG and the president, almost all objective legal scholars believe that Barr is abusing his power. 

It is true that Barr’s actions may be both legal and constitutional.  As I have written before, however, the law is only the last word.  The Constitution and Supreme Court decisions define what is legal and what is not.  But no state—or indeed any other organization—can exist only according to defined laws.  Rather, there must be clear norms developed over many years which allow the organization to function as intended.  The norm of the AG’s independence from a president, for example, has been ironclad from the time of President Nixon’s abuse of power until the Trump Administration. 

Case in point: the first time President Obama met with US attorneys, he is reported to have said:

I appointed you but you don’t serve me.  You serve the American people.  And I expect you to act with independence & integrity.

It is illegal, of course, to participate in bribing the leader of a foreign country to interfere in American elections, and I will include Barr’s history of supporting the President as we look closely at the Ukraine affair and impeachment hearings in the next post. 

With the responsibility to prosecute any crime against the country, the Attorney General is one of most important enforcers of the country’s laws, essentially deciding which rules count and which don’t.  In How Democracies Die, the authors write that an essential step in the death of democracy occurs when the aspiring autocrat “captures the rule makers.”  We have become so accustomed to Trump’s trampling on our norms that we have hardly noticed how easily Attorney General Barr has surrendered to the President. 

Postscript to Presidet'sDorian/Sharpie Affair

Two or three days after I last posted, I realized the Dorian/Sharpie affair was much simpler and even more damning than I wrote in last week’s post.  In my recounting of events, I could have stopped on September 1:

• The President warns the people of Alabama that they are endangered by Hurricane Dorian’s projected course;
• Twenty minutes later, the Birmingham Weather Service (BWS) tweets that “Alabama will NOT see any impacts from #Dorian;”
• Three hours later, the National Oceanic and Atmospheric Administration (NOAA) sends a confidential memo to the agencies it administers (including BWS) that they should “only stick with official National Hurricane Center forecasts if questions arise from some national level social media posts which hit the news this afternoon.”  In other words, the Birmingham office should have kept their mouths shut and not contradicted President Trump’s warning even though he was wrong.

Weather predictions must be as accurate as possible so that civilians, businesses, the military, official government agencies, and others can make appropriate, sometimes-life-altering decisions.  In this case, however, NOAA is telling its government agencies they should not tell the truth if it means contradicting the President, even when he is clearly wrong.

In other words, even without any direct intervention or pressure from the higher-ups, a government administration is forgoing the truth to protect the President’s reputation.

NOAA’s decision is not an attack on democracy itself; it is almost worse: a demonstration of how far we have fallen.

The President’s Dorian/Sharpie Affair

 Follow the Twists If You Can

On September 1, 2019, during Hurricane Dorian, President Trump tweeted that “Florida … South Carolina, North Carolina, Georgia, and Alabama, will most likely be hit (much) harder than anticipated” by Hurricane Dorian.  Although the National Weather Service (NWS) station in Birmingham was unaware of Trump’s tweet at the time, it received so many calls from anxious citizens that, twenty minutes later, NWS responded:

Alabama will NOT see any impacts from #Dorian…We repeat, no impacts from Hurricane #Dorian will be felt across Alabama. The system will remain too far east.

Several hours later a top-level official from the National Oceanic and Atmospheric Administration (NOAA), the parent organization of the NWS, warned the NOAA staff against contradicting the president.  An agency-wide, confidential directive told them to “only stick with official National Hurricane Center forecasts if questions arise from some national level social media posts which hit the news this afternoon.”

Then, four days later, after many defenses of his statement, the President defended his position by showing a map of the hurricane’s projected course.  A crude, obviously hand-drawn-with-a-Sharpie semi-circle, had been added to the map that included Alabama in the projected path.

We all rolled our eyes.  What bizarre trick would President Trump try next?  Did he really think no one would notice?  Why didn’t he just acknowledge immediately or ignore the understandable mistake in his first tweet, and we would all have moved on? 

A day later, September 6th, NOAA moved in again, issuing a carefully-worded, unsigned statement that criticized the objective data on which the Birmingham report was based thus supporting President Trump. 

Reporters wrote that this second NOAA statement contradicting the Birmingham office was the result of heavy pressure from the Trump Administration, especially the Commerce Department’s head Wilbur Ross and presumably the President. 

Then three days later (Sep 9th) at a routine conference, the director of the National Weather Service, Louis Uccellini, objected to NOAA’s statement and praised the work of the Birmingham office, saying its staff members had acted “with one thing in mind, public safety” when they contradicted Mr. Trump’s claim that Alabama was at risk.

During the following week, Trump returned to the issue frequently, all along insisting that his initial statement that predictions showed the storm would hit Alabama was correct. 

The above is a long and complicated retelling, but it is important.  To recap:

June 1:

• Trump tweets that Alabama is at risk from Hurricane Dorian.
• Twenty minutes later, the Birmingham weather service contradicts the president.
• Several hours later, a confidential NOAA directive tells its agencies not to contradict the President.

June 5th: President shows a national audience his Sharpie-doctored weather map.
June 6th: NOAA issues statement critiquing Birmingham’s interpretation of statistics.

• Newspaper reports indicate that NOAA’s attacks on Birmingham were politically motivated.

June 9: the head of NWS praises Birmingham’s staff for its defense of public safety.

True, a few NOAH maps had included part of Alabama.  But those maps just showed increased winds up to 10 mph, hardly a danger.   As a neophyte weather forecaster, Trump could have misinterpreted the maps. This is the kind of error, however, that anyone not familiar with the intricacies of interpreting raw weather data could make.  But he kept at it long after news reports correcting him had appeared.  Had the President simply acknowledged or ignored his error, it would have immediately dropped from the news.  But acknowledging error is not something that this President does. 

So, why am I making such a big deal of this?  What’s new here?  How does this series of events endanger democracy any more than President Trump’s other lies and disparagements of government? 

Washington Post columnist Catherine Rampell writes,

Sure, Trump’s attacks on objective statistics, scientists or really any independent source of accountability are nothing new.  On the contrary, such attacks have become ubiquitous.  Anyone who dares to produce or even accurately report on politically inconvenient metrics is allegedly participating in a vast anti-Trump conspiracy or is somehow rooting for America to fail.

And, at this point, media corrections of Trump’s false claims about stock performance, or air purity, or the strength of the manufacturing sector, can feel tedious, pedantic and exhausting.  Trump’s just being Trump, pundits scold.  We should all move on to “real” concerns rather than these distractions from whatever other horrible (or, depending on your viewpoint, wonderful) things the Administration is doing.

But these are real concerns.  Trump’s attempted manipulations of official metrics — and the aspersions he casts upon metrics he cannot manipulate — degrade our democracy, economy and public safety.

Distrust in official data (my italics) is deadly to voters’ ability to evaluate public policies, as well as the records of the officials crafting or overseeing those policies.

The difference is that President Trump has enlisted a government agency to participate in protecting him by deliberately falsifying objective data.  If we cannot trust even government numbers, what can we trust?

Even before Sharpi-gate (as it has been named), 40% of Americans already said they either completely or somewhat distrust data about the economy reported by the federal government. 

Even before NOAA’s caving to pressure from the Trump administration, the willful ignoring of data had become common, eg the studies showing no significant voter fraud.  But that’s different from distrusting the falsified raw numbers.  I have always considered mistrust of raw government numbers themselves a little paranoid.  What official government agency would stoop to giving us the wrong numbers for political reasons? 

But here we are.  Democracy has taken another hit.  George Orwell’s 1984 — with the bureau that goes back and “corrects” previously published statistics — seems closer than ever.