Bill Barr’s Constitution

The mismatch between the attorney general’s words and his deeds.
by Kim Wehle
November 18, 2019
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(Hannah Yoest / photos: Gettyimages)

Attorney General Bill Barr’s scathingly partisan speech before the conservative Federalist Society’s annual convention has been fairly criticized as “outrageously inappropriate” for someone who is “the head of the DOJ for all Americans[,] not just the ones in the Federalist Society.” Barr charged that “so-called progressives treat politics as their religion,” that “their holy mission is to use the coercive power of the State to remake man and society in their own image, according to an abstract ideal of perfection,” and that “whatever means they use are therefore justified because, by definition, they are a virtuous people pursing a deific end.”

This is bizarre stuff coming from an attorney general.

But let’s set aside Barr’s deeply ideological and unprofessional tone, and instead let’s look at his constitutional philosophy. He’s an elite lawyer, after all, with tremendous influence over how the federal government construes the separation of powers and federalism (meaning due regard for the individual states). Barr’s speech is full of references to the Framers of the Constitution and the theoretical bases for our system of government. In this regard, he made a number of statements that were both critically important and theoretically correct.

Unfortunately, his remarks were also riddled with instances of intellectual dishonesty. Closely looking at a few examples could help to clarify some of the constitutional confusion rife among the Trump administration and its defenders:

Barr’s words: “The American Presidency . . . has been one of the most successful features of the Constitution in protecting the liberties of the American people.”

Why these words are important: Each branch of our national government has a role in protecting liberty. And each can also harm—indeed, has sometimes harmed—liberty. The separation of powers among the branches, and the ways that the three branches check and balance one another, are intended in part to protect people from government bullying. Indeed, this is why House Democrats are upset about President Trump’s treatment of Joe and Hunter Biden. The Bidens are private citizens whom the president of the United States sought to have criminally investigated by Ukraine as part of a campaign to entrench his own power. So much for the American presidency protecting Americans’ liberties.

Barr’s words: “To be sure, Executive power includes the responsibility for carrying into effect the laws passed by the Legislature—that is, applying the general rules to a particular situation.”

Why these words are important: This statement is true—but recall that Attorney General Barr oversaw the Department of Justice’s decision to bury the whistleblower complaint about the Biden episode on a top-secret intelligence server rather than follow federal law and pass it along to the U.S. Congress. The relevant statute is not ambiguous in this regard. Yet as the chief federal law enforcement officer, Barr chose to bypass it.

Barr’s words: “To my mind, the real ‘miracle’ in Philadelphia that summer was the creation of a strong Executive, independent of, and coequal with, the other two branches of government.” The Framers thought that “jostling and jousting” among the branches “was not only natural, but salutary, and they provisioned each branch with the wherewithal to fight and to defend itself in these interbranch struggles for power.”

Why these words are important: The key word here is “coequal.” It’s true that the president’s actions are checked by the other two branches. The impeachment process is one of those checks. It’s right there in the Constitution—in black and parchment. White House counsel Pat Cipollone wrote a memo wrongly decrying the current impeachment process as unconstitutional. Barr hasn’t denounced Cipollone’s memo.

Barr’s words: “Under the Articles of Confederation, [the Framers] had been mortified at the inability of the United States to protect itself against foreign impositions or to be taken seriously on the international stage.”

Why these words are important: The investigation of Special Counsel Robert Mueller into Russian interference in the 2016 presidential election was important for this very reason—the Framers cared a lot about foreign impositions into American government. It’s also why Trump’s attempt to drag Ukraine into the 2020 election process is so troubling. Meanwhile, Barr flew to Italy in September as part of his mission to investigate the purportedly nefarious origins of the Mueller report. But as Mueller and various intelligence officials have explained, the Russians are still working to attack our system in the 2020 election. The attorney general and his boss ought to spend more time and energy investigating that.

Barr’s words: “Congress has in recent years also largely abdicated its core function of legislating on the most pressing issues facing the national government. . . . I do not deny that Congress has some implied authority to conduct oversight as an incident to its Legislative Power.”

Why these words are important: Congress has indeed substantially handed off its legislative prerogative to administrative agencies under the authority of the president, it has all but abdicated its power to declare war, and during the Trump years it has ignored its obligation to enforce the Constitution’s ban on presidential gifts from foreigners (called “emoluments”). Meanwhile, Barr went on to argue that Congress’s “pursuit of choice, particularly for the opposition party, has been to drown the Executive Branch with ‘oversight’ demands for testimony and documents.” Barr thus criticizes Congress for failing to legislate and for engaging in the kind of fact-finding work that’s a necessary part of legislating—but the two go hand-in-hand.

Barr’s words: “In a nutshell, under the Constitution, when the government is using its law enforcement powers domestically to discipline an errant member of the community for a violation of law, then protecting the liberty of the American people requires that we sharply curtail the government’s power so it does not itself threaten the liberties of the people. Thus, the Constitution in this arena deliberately sacrifices efficiency; invests the accused with rights that that essentially create a level playing field between the collective interests of community and those of the individual; and dilutes the government’s power by dividing it and turning it on itself as a check, at each stage the Judiciary is expressly empowered to serve as a check and neutral arbiter.”

Gee whiz. How wonderful it would be if these words were the guiding principle in government today, as they should be. What I wish for is intellectual honesty from the right, so we can stop fighting about the ground rules—and even fighting about the very existence of facts—and get down to the business of protecting our democracy for our children and grandchildren.

Kim Wehle

Kim Wehle is a contributor to The Bulwark. She is also a professor at the University of Baltimore School of Law and a former assistant U.S. attorney and associate independent counsel in the Whitewater investigation and author of How to Read the Constitution and Why (Harper Collins).