Yeomans Work

Barr Puts the Politics in DOJ

April 2, 2019

Congress confirmed William Barr as attorney general despite his disqualifying record of enabling presidential conduct. Nobody should be surprised that his short tenure has already revealed his willingness to elevate the political interests of the president over the traditions of the Department of Justice and the role of Congress. His memo spinning the conclusions of the Mueller report made him a cheerleader for Trump, while his capitulation to Trump’s demand that the Department of Justice no longer defend the constitutionality of the Affordable Care Act debased the rule of law for Trump’s political gain. His behavior bodes ill for the future in which Trump, with support from Senate Judiciary Committee Chair Lindsey Graham (R-S.C.), will clamor for revenge investigations of the Mueller investigators. It will be up to Barr to stand up to political demands for investigations that lack an evidentiary predicate.

Barr’s letter summarizing the principal conclusions of the Mueller report was an overtly political act. He should have said nothing and sent the report itself to Congress. Not only did he spin the contents of the report, but he stepped in to override Mueller’s decision not to make a prosecutorial determination regarding obstruction of justice. According to Barr, Mueller’s non-decision left it to the Attorney General to make the call. Barr – whose 19-page memo contended that the president could not commit obstruction while exercising power given to him by Article II of the Constitution – was eager to oblige.

The most likely reason for Mueller’s non-call was that he knew DOJ could not prosecute the president. He had, however, found substantial evidence of obstruction that prevented exoneration of the president. He, therefore, decided to pass the information to Congress, which is the only entity with power to hold the president accountable. There was no reason for anybody at DOJ to answer the hypothetical question whether the president should be prosecuted. Barr, playing free safety for Team Trump, however, swooped in to intercept Mueller’s pass to Congress and ran it back for a score, which prompted Trump and his entire bench to empty into the end-zone for a round of celebratory taunting.

By answering the obstruction question, Barr gave Trump the talking point he craved — no collusion and no obstruction – which is far better than no collusion and no decision on obstruction. Barr, by issuing his memo well before release of any part of the actual report, gave Trump and his supporters ample time to spread the message. Despite the head start, the public isn’t buying. Polling by NBC News and The Wall Street Journal shows that only 29 percent believe that Trump has been exonerated. That number will not increase once the public sees the report, which surely contains evidence harmful to Trump.

In a second letter to Congress, Barr promised the report by mid-April or sooner. He said DOJ is scrubbing the report for classified information, grand jury material, information that could harm ongoing investigations, and material that could impinge unnecessarily on the privacy of third parties. None of these categories supports redaction of material of such extraordinary public interest. The only legal impediment to full release can be removed by an application to District Judge Howell to allow inclusion of grand jury material. Barr also said that he would not send the report to the White House prior to its release, but left open the possibility that he could assert executive privilege on the president’s behalf. That would be a mistake. The privilege will not withstand Congress’s need for information bearing on the President’s fitness.

In short, Congress is entitled to the full report. Classified information can be handled separately in any public release. The House Judiciary Committee will vote to subpoena the full report and supporting materials in anticipation of Barr’s expected failure to produce the full report.

The very bad week for Barr and the rule of law continued with a filing in the U.S. Court of Appeals for the Fifth Circuit stating that the U.S. would no longer defend the constitutionality of any portion of the Affordable Care Act. The district court struck down the entire law on the basis that the law could no longer survive as an exercise of Congress’s power to tax once Congress reduced to zero the penalty for failure to comply with the individual mandate. Rather than strike down just the mandate and closely related provisions, the court held that the entire law had to fall. DOJ had argued – disappointingly – in the lower court that the mandate and related provisions could not stand, but were severable from the rest of the law. Last Monday, it notified the appeals court that it now believes the entire statute is unconstitutional.

This filing is a gut-punch to the rule of law. A central norm of the DOJ is that it will defend the constitutionality of a federal statute unless there is no reasonable argument that can be made in support of it. Otherwise, administrations could follow political instincts to pick which laws they liked, rather than respecting that Congress passed and a president signed the law. Also, it is highly unusual for DOJ to change sides in ongoing litigation. Absent a change in the law, doing so appears to be based on politics and not law. In this case, the change is particularly problematic because DOJ’s new position – that the entire statute must fall – borders on the frivolous.

Most disturbing, reporting confirms that the instruction for the change came from Trump, at the urging of acting Chief of Staff Mulvaney. Barr opposed it. Nothing conveys disregard for the rule of law more devastatingly than litigating positions dictated from the Oval Office contrary to legal advice. Representation of the United States in court is the responsibility of the attorney general, whose positions must be based on a legitimate reading of the law. If the president, driven by his political advisors, can decide whom to sue and what to argue in court, DOJ is reduced to a political arm of the administration making political arguments urging courts (now almost 20% Trump appointees) to implement the administration’s political agenda. Barr should have resigned to protect the rule of law and the independence of DOJ rather than implement Trump’s lawless demand.

Barr’s failure raises severe concerns for the future. Trump and his congressional allies are calling for retaliatory investigations of the officials who investigated him.  Given Barr’s record as presidential enabler, the likelihood is too great that DOJ will launch politically driven investigations to appease Trump.

Sign up to get Yeomans Work in your inbox!

Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He currently serves as Lecturer in Law at Columbia Law School, and previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He also served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. For three years, Bill served as Sen. Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee, and has also held positions at AFJ and the American Constitution Society. The opinions of the writer are his own and do not necessarily represent the positions of Alliance for Justice.