As we await Bill Barr’s ‘redactions’ of the Mueller Report, I wanted to pass on to you this note from a TPM Reader and member of the appellate bar. It may seem deep in the weeds at first. But it’s a window into Barr’s conduct so far that I was not at all aware of, or rather I knew the bare facts but hadn’t at all understood the implications. They bear directly on Barr’s subservience to the White House and current approach to executive power …
The focus on Barr and what he has done/is doing regarding the report has been fantastic.
But there is another, overlooked data point that makes clear that we should be very suspicious about how Barr approaches his responsibilities as AG – including his redactions to the Mueller report and his supervision of the ongoing Trump investigations in the Southern District of New York and elsewhere.
The Administration’s decision a few weeks ago to change its position and argue that the entire Affordable Care Act is unconstitutional didn’t get the attention it deserves. It is a shocking breach of the Justice Department’s duty to make reasonable arguments in support of the constitutionality of federal laws. There many such reasonable arguments in support of the ACA – as numerous conservative scholars have explained in blog posts and briefs since the DoJ announcement; it is the position that the Administration is now endorsing that is entirely unreasonable.
The New York Times’ reporting indicated that AG Barr opposed this change in position. But he appears perfectly willing to carry it out. That tells us a number of things, all of them disturbing.
First, AG Barr is not going to do very much to defend key Justice Department norms against assaults by the White House. Barr’s nomination was greeted with relief by many, who believed he would restore the old DoJ norms.
But his willingness to go along without a whimper with a fundamental breach of a longstanding DoJ norm shows that just isn’t true. Sometime between now and May 1 (when the DoJ brief is likely due), Barr will have to send a letter to Congress repudiating Jeff Sessions’ determination just last June that most of the ACA is constitutional; in other words, that Sessions was willing to make unreasonable arguments to defend the ACA.
The change in position is the minor part of the story. Sessions’ position was bad enough, and Barr’s willingness to compound the damage to DoJ norms and principle creates a serious threat to the rule of law, as Professor Nick Bagley explained in detail in a Times op-ed. It effectively gives the Executive Branch an extra-constitutional veto, exercisable at any time, which can be checked by the courts only if another litigant has legal standing to defend a law the administration is willing to throw overboard.
What if Barr had said he’d resign rather than carry out the White House decision to argue that the whole ACA is unconstitutional? Would that have produced a different result? We’ll never know. Former White House Counsel Don McGahn is rumored to have refused to carry out some presidential demands. Shouldn’t the AG be willing to put his job on the line to defend key principles?
Second, Barr’s decision to go along may have been based on his views of presidential power – that once the president makes a decision, everyone should fall into line. Here, because Trump concluded that the ACA was unconstitutional, the proper role of the AG is simply to carry out that decision. That would be consistent with the broad view of presidential power, reflected in Barr’s June 8, 2018 memo on obstruction. And that doesn’t bode well for disclosure of the Mueller report or non-interference by the White House in the many ongoing Trump investigations. If the President always gets what he wants, absent a clear violation of law, there isn’t much left of Justice Department independence.
Third, Barr seems to view his assurances to the Senate Judiciary Committee as irrelevant – at least when the White House orders a different approach. After all, he assured Democratic Senators that he would take another look at the Sessions decision not to defend the constitutionality of part of the ACA – implying that perhaps the entire statute should have been defended. But he apparently had no qualms about implementing a decision to go in the opposite direction, and argue that the whole statute is invalid.
What does that tell us about the value of his assurances during the confirmation hearing about disclosure of the report and other ongoing investigations?
