Viewers who tuned into the White House coronavirus briefing on Monday encountered the disconcerting appearance of Attorney General William Barr behind Donald Trump in space that should have been occupied by the absent Dr. Anthony Fauci. Barr’s appearance was a reminder that he remains Attorney General despite calls for his resignation by over 2,500 former Department of Justice lawyers. And, it reminds us that he will be in charge as the nation confronts unprecedented legal challenges posed by the coronavirus.
In times of crisis, like war, natural disaster, or economic distress, the nation traditionally and understandably has ceded increased power to its chief executive. The combination of Trump’s desire to be an all-powerful, unaccountable president and Barr’s radically expansive view of executive power, however, trigger loud warning bells of a crisis to come. This is a time for extraordinary vigilance by all who care about civil liberties.
So far, Trump’s conduct has highlighted the inconsistency of his exercise of executive power. While he blusters about his absolute power, he shies from its use out of fear of personal, political consequences. For example, he often asserted the power to fire Robert Mueller and shut down the Russia investigation, but didn’t pull the trigger. In the current crisis, he took the preliminary step of activating the Defense Production Act, but has refused to employ its vast power to order production of necessary medical equipment and supplies and to bring order to their distribution. Similarly, he has declined to mobilize fully the National Guard and the vast resource of the military to combat the virus. This is not the behavior of a wartime president. The only credible explanation for these failures is that he still believes that some magical thinking (and the loss of a few older Americans) will get us past the crisis, and that taking it too seriously will jeopardize his re-election by devaluing the Dow. That kind of thinking will kill many of us.
Looking forward, here is an overview of a few of the coming challenges that will test our laws and constitution:
Voting and the Election
Election challenges are already upon us. Primaries have been canceled. At present, it seems unlikely that parties will be able to hold traditional conventions. It also seems quite likely that even if states can hold in-person balloting in the fall, turnout will be suppressed unless they act now to implement online registration, expanded early voting, and voting-by-mail procedures.
Unfortunately, the partisan implications of voting methods may determine state behavior. The general principle that large turnout helps Democrats should encourage blue states to promote innovative balloting. Unfortunately, the traditional desire of Republicans to limit the franchise through restrictive voter ID, registration, and early voting laws may make red states less accommodating. Given the expected disparities in voting practices and the availability of the franchise, massive legal challenges could ensue. Barr’s DOJ is already in court siding with those seeking to suppress voter turnout.
The uncertainty over voting will create opportunities for losing candidates to contest the legitimacy of the results. This danger is particularly grave at the presidential level. Imagine if Trump leads on election night (a real possibility if blue states more readily embrace voting by mail), but loses that lead days later as mail votes are counted.
Despite contrary speculation, the election must happen. Trump lacks authority to cancel or change the date of the election. Congress can change the date of a federal election, but the Constitution goes dark unless the election is held by January. According to the Twentieth Amendment, the terms of the president and vice-president end at noon on January 20. All those excited by the prospect of Trump and Pence ceding power to Nancy Pelosi on that date as next in the line of succession must face the sobering fact that the Twentieth Amendment decrees that the terms of House members end on January 3. In the absence of an election, come January 20 there will be no House and Nancy Pelosi will be a private citizen.
Without an election, two-thirds of the Senate will not have faced re-election and will remain in office. Presumably the Senate, which would have a Democratic majority (23 Republican-held seats and only 12 Democratic-held seats are to be filled), could elect a President pro-tem, who would be next in the presidential line of succession, but this all becomes hopelessly complex. Vox’s Ian Millhiser gamed out the entire scenario and demonstrated that the result would be “chaos.”
All of this assumes — perhaps naively — that Trump and Barr will be content to operate within existing constitutional structures. If Trump faces certain defeat, all bets are off.
Maintaining the Justice System
According to Politico, DOJ has already submitted a package of proposals to keep the justice system operating in an emergency. Some accommodations are essential, including extending statutes of limitations and amending some procedures. Others, however, are more ominous, including broad power to detain individuals indefinitely, which smacks of suspending habeas corpus. Fortunately, the House is unlikely to take up DOJ’s package, but it signals the direction of future DOJ proposals and court positions.
Meanwhile, Barr’s politicization of DOJ will continue. As the economy suffers and Trump’s desperation to win re-election grows, expect a strong push to investigate Hunter Biden. Also, expect Barr to continue his investigations of the origins of the Russia investigation, as he pursues Trump’s objective of delegitimizing the investigation.
Barr’s DOJ will continue its politically driven litigation agenda. Unconscionably, it will continue its effort during the pandemic to dismantle the Affordable Care Act in court. It will also continue to attack reproductive choice and support voter suppression in court.
Maintaining Civil Order
As unemployment spikes, scarcity spreads, and physical isolation breeds frustration and defiance, tears in society’s social fabric are likely to emerge. The weak seams in that fabric are already under pressure. Fanned by the President, himself, hostile acts toward Asian Americans have surged. That open hostility is likely to spread to other racial and ethnic minority groups. Unfortunately, Trump has built his presidency on stoking racial and ethnic grievance. He has emboldened the hate mongers on the radical right, who thrive in times of turmoil.
DOJ should lead in enforcing hate crime laws and in combatting domestic terror groups that preach hatred. Traditionally, Republican administrations have been less willing to pursue domestic — as opposed to foreign — terrorists. After the violence in Charlottesville, Trump famously insisted that some supporters of domestic hate groups are “good people.” That must change and Barr should empower the FBI and the Civil Rights Division at DOJ to prepare for and lead the way in the difficult times ahead.
All of this may be too conventional, too pre-pandemic. There is a darker vision in which conditions deteriorate so badly that civil disorder breaks out, courts and traditional law enforcement can’t keep up, and society fractures, emboldening opportunistic militia groups and vigilantes. But, for now, let’s assume less cataclysmic outcomes.
Maintaining Congress and Executive Accountability
The Senate struggled to pass emergency relief legislation. At least four Republican members have been sidelined by exposure to the virus. The disproportionate impact on Republicans may reflect — as polls show — that Republicans, following Trump’s lead and influenced by Fox News,, have been far less likely to take it seriously. The House is counting on unanimous consent to pass the Senate’s bill without reconvening. A single House member can derail it.
The House and Senate leaders have resisted allowing remote voting, turning legislating into a high-risk occupation for aging lawmakers. That needs to change immediately. Each chamber makes its own rules and must adopt emergency remote voting procedures.
Congress is also facing enormous oversight challenges. It is authorizing the expenditure of over two trillion dollars that it needs to keep an eye on. It also needs to follow through on oversight of the Trump administration. For example, Barr was scheduled to testify for the first time in a year in the House Judiciary Committee on March 31. That hearing has been postponed.
Congress cannot hold traditional hearings, but it also must not allow the virus to become the cover under which the administration escapes all accountability. Eventually, it will be able to resume some live hearings with a limited number of participants. In the interim, it must be vigorous in demanding documents and develop procedures for virtual hearings.
Throughout the looming legal challenges of the pandemic, Barr will be at Trump’s side — or behind him on stage — interpreting the expanse of executive power, pursuing Trump’s political enemies, protecting his friends, and implementing a political agenda through litigation. He should not be allowed to do so in isolation from oversight.
The months ahead will test the foundations of our governmental institutions and require both legal innovation and extraordinary vigilance. Working together, we can overcome our failed national leadership and emerge whole.
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.