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.