Donald Trump’s nomination of William Barr to replace Jeff Sessions as attorney general drops in the midst of further revelations that Trump’s presidency was won illegitimately and is on the verge of unraveling. While senators may feel urgency to oust the unqualified acting Attorney General, Matthew Whitaker, they should not confirm Barr, whose record is disqualifying. Instead, they should recognize that this unique moment precludes this president from appointing any but the rarest of attorneys general.
As the nation’s top law enforcement officer, the attorney general leads a vast bureaucracy encompassing the FBI, Bureau of Prisons, DEA, ninety-four U.S. attorney offices around the country, policy offices, the Office of Legal Counsel, the solicitor general’s office, the litigating divisions at main DOJ that conduct or coordinate nearly all federal litigation encompassing such areas as civil rights, the environment, antitrust, tax, federal agency programs, and crime. The attorney general has the ability to affect almost everything the federal government does. Most important, the AG is the principal guardian of the rule of law, whose responsibility it is to ensure that the president and executive branch act within the bounds of the Constitution. The country has never been in greater need of a strong, independent, learned attorney general with a true moral compass and commitment to enforcement of the law with equal justice toward all.
William Barr, despite praise for his intellect and experience, is not that man. While Barr is a former attorney general and accomplished corporate lawyer, his record on issues that matter is disqualifying. Barr joined former Attorneys General Michael Mukasey and Edwin Meese III, in praising Jeff Sessions as an “outstanding” attorney general. Their op-ed endorsed Sessions’s refusal to hold police officers accountable for violating civil rights, supported his harsh criminal agenda, praised his draconian views on immigration, and touted his willingness to stand up for religious liberty (and, by extension, against LGBT rights). Barr’s record in these areas as attorney general is consistent with these views. Add to the list his hostility to women’s reproductive freedom. While he served, DOJ asked the Supreme Court to overturn Roe v. Wade in Planned Parenthood v. Casey.
The portions of Barr’s record that relate to Mueller’s investigation are even more troubling. In his first role at DOJ, he served as assistant attorney general for the Office of Legal Counsel, where he is best remembered for authoring a memo premised on a dangerously expansive view of executive power that warned of the ways Congress interferes with the president’s prerogatives.
As attorney general, he recommended to President George H.W. Bush in 1992 that he pardon six men involved in the Iran-Contra investigation conducted by Independent Counsel Lawrence Walsh. Three had already pled guilty, one had been convicted and two were awaiting trial. Those pardons, particularly that of Caspar Weinberger on the eve of his trial, provoked Walsh to state, “President Bush’s pardon of Caspar Weinberger and other Iran-Contra defendants undermines the principle that no man is above the law. It demonstrates that powerful people with powerful allies can commit serious crimes in high office — deliberately abusing the public trust without consequence.” Walsh suggested that Weinberger’s withholding of evidence may have been instrumental in preventing impeachment proceedings against Ronald Reagan. He also opined that Bush’s pardon may have protected Bush, himself. This episode is surely music to Trump’s ears; an attorney general who recommended pardons to the president that cut off an independent counsel investigation and protected the president.
Since Trump’s election, Barr has been outspokenly supportive of Trump and dismissive toward Mueller’s investigation. He praised Trump’s firing of Comey, despite Trump’s obvious and publicly admitted intention to obstruct investigation into his relationship with Russia. He also stated that there were better grounds to investigate Hillary Clinton’s role in the sale of uranium to Russia than to investigate the possibility of conspiracy between Trump’s campaign and Russia. This latter statement is doubly troubling. It suggests a willingness to accept far-right conspiracy nonsense and to reject the legitimacy of an evidence-based investigation. These are very bad qualities in an attorney general. Barr simply cannot be trusted to protect fully Mueller’s investigation and to ensure to the extent possible that – unlike in the Iran-Contra affair – all prosecutions will be completed and all essential information will be shared with Congress in a timely fashion.
Most problematic is the just-revealed, unsolicited 19-page memo Barr sent to Deputy Attorney General Rod Rosenstein and Steven Engel, assistant attorney general for the Office of Legal Counsel. The memo urges DOJ to reject the theory of obstruction of justice upon which the Mueller inquiry appears to be premised. It asserts that the president’s facially lawful executive actions cannot be overturned even if undertaken with a corrupt motive. The theory is consistent with his support of Trump’s firing of Comey. If accepted, it would result in shutting down Mueller’s obstruction of justice investigation, including any demand that Trump submit to questioning.
While the Senate traditionally gives presidents some deference in their cabinet picks, any Trump nominee for attorney general comes to the Senate with a strong presumption against confirmation. Trump, through his public torment of Jeff Sessions and repeated denunciations of and lies about the Mueller investigation, has demonstrated his disrespect for the role of attorney general and his rejection of the traditional independence of the office. Only a nominee with a sterling record of standing up for the rule of law and a history of outspoken support for equal justice under law should survive Senate scrutiny. It is hard to imagine that any such person would accept the nomination.
In addition, we have reached a point in the Trump presidency when questions about his legitimacy as president should factor into confirmation proceedings. Recent revelations suggest more strongly than ever that Trump gained election through illicit means. The SDNY investigation has identified Trump as an accessory to two campaign finance violations involving payments weeks before the 2016 election to silence women with whom he reportedly had affairs. The illegal payments were designed to affect votes. The Cohen revelation that the Trump organization continued to negotiate over a tower in Moscow at least into the summer of 2016 brings us one step closer to the possibility that Trump and Russia coordinated so that he could get his tower and they could get their president. The release of two reports commissioned by the Senate Intelligence Committee shows that the reach of the Russian social media attack on the election was far more extensive and sophisticated than previously known. Much of the focus was on suppressing black turnout, which surely hurt Clinton. Without his boost from Russia and his illicit payoffs, Trump pretty certainly would not have won an election decided by less than 80,000 votes in three states.
The unraveling of the Trump presidency is accelerating. The Senate needs to consider whether it should confirm any of Trump’s nominees until the carnage clears and we are confident that we have a legitimately elected president. It should most certainly not confirm an attorney general who will stop us from learning the truth.
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.