Wednesday, January 16, 2019

UPDATED: If Confirmed, Barr Will Be The Attorney General In Full

That, in effect, is what Bill Barr told Chuck Schumer today in a private meeting. Schumer asked Barr three questions and got straightforward answers. This is by Schumer's own account.

There's been a fair amount of disinformation put out about Barr, claims that he has made commitments with regard to the Mueller witchhunt, etc. The fact is that Barr has clearly stated that, if confirmed, he would exercise the full powers of the office of Attorney General with no prior restraints imposed upon himself. He said he would not fire Mueller "without cause," which is to say, he reserved the power to fire Mueller for cause. He said he wants the Mueller witchhunt to run its course, because he thinks that will be best for President Trump and the American people--and that he favors transparency for the same reason. No one who has been following this tawdry attempt to hamstring an elected president or even to run him out of office for purely political reasons can possibly suppose that the Deep State desires transparency.

So, on to Schumer's three questions.

First, Schumer asked Barr whether Barr would recuse himself if the Ethics Officer at DoJ said he should. Barr said he'd make his own decision. Barr will not be another Jeff Sessions.

Second, Schumer asked Barr whether Barr would issue the full Mueller report with redactions only as recommended by the Intelligence agencies for national security reasons. Barr responded that he favored transparency. That had to send chills up Schumer's spine as well as the collective spine of the Intelligence Community. We've seen over the past two years, over and over, the way in which the FBI has used the claim of "national security concerns, the need to protect sources and methods" to stonewall legitimate Congressional oversight. Barr was forthrightly stating that he reserved to himself as Attorney General the final decision on what to disclose--regardless of the views of the Intelligence Community. Anyone think John Brennan or James Comey are sleeping more easily tonight? Or any of the many other swamp creatures?

Third, Schumer asked Barr to "unequivocally state that he would not interfere in the Mueller investigation in any way." Schumer gave Barr a laundry list of investigative actions--subpoenas, witness interviews, areas of investigation, etc.--regarding which he wanted assurances of non-interference from Barr. Barr would not make any such commitment.

What this makes clear is simply what everyone already knew. Bill Barr knows the law, and in particular he has a well developed understanding of the Constitutional demarcation of powers among the three Branches of government. Throughout his career he has been a staunch proponent of a unitary executive--the "theory of American constitutional law holding that the President possesses the power to control the entire executive branch." While he has been out of government for many years, his famous 19 page memo to Rod Rosenstein, defending the President's right to fire James Comey without threat of obstruction charges, showed that he hadn't changed his views in any material way.

Goldsmith on Barr

It's fascinating to review the reaction of another legal heavyweight in this field, Jack Goldsmith, to Barr's nomination. For anyone not familiar with Goldsmith, here's a concise bio, which should speak volumes:

Jack Goldsmith is the Henry L. Shattuck Professor at Harvard Law School, co-founder of Lawfare, and a Senior Fellow at the Hoover Institution. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.

Goldsmith was familiar with Barr's views and foresaw exactly the issues that would arise during the confirmation hearing. On December 6, 2018, Goldsmith issued a 6 part tweet:

1/ Bill Barr is undoubtedly very highly qualified to be AG.  He is also undoubtedly committed to the unitary executive.  See, e.g., … and his fierce opposition in the 1990s to the Independent Counsel Statute.
2/ The current Special Counsel regs do not implicate the unitary executive problems of the 1990s statute.  But one with a disposition toward a strong unitary executive would likely want (at least) a very tight rein on an “independent counsel” investigating the President. 

3/ He would also likely take a broad view of Article II & thus a dim view of claims that POTUS obstructed justice if the acts in question were plausibly related to the exercise of an Article II power (including supervision of prosecutions and the conduct of foreign relations ). 
4/ I am not saying that Barr actually holds these views – I have no idea what his actual views are on these matters. 
5/ If Barr is nominated, Mueller may well be done or near-done before Barr’s confirmation hearings.  But if Mueller is not done, it will be fascinating to see how Barr handles questions about the Mueller investigation and the Order and regulations under which Mueller is acting. 

6/ Recall that Congress extracted a pledge from Elliot Richardson, during his confirmation hearings, that he would not interfere with the Special Prosecutor.  Richardson honored that pledge by resigning when Nixon ordered him to fire Archibald Cox.

Barr's views on Presidential powers also extends to the Executive Branch generally. Schumer, in effect, attempted to finesse Barr into diminishing the office of Attorney General, with predictable results: Barr easily sidestepped Schumer's strategems. Barr knows the law, and while he won't be bullied by anyone, not even a president, he equally will not be cowed by Senators.

On January 4, 2019, Goldsmith followed up his tweets with what he called A Qualified Defense of the Barr Memo: Part I (so far there has been no Part II). In this article, Goldsmith confirmed what everyone already knew: Barr knows the law. Barr wasn't making anything up in his 19 page memo, he was simply stating the law concerning obstruction and concerning the President's constitutional status.

Barr’s views, far from crazy, have significant support in Supreme Court case law and executive branch precedent ...
... the law that Barr was applying is clearly settled and his argument was not in any way radical.

So, if that's the case, you might ask, how is it that Goldsmith is offering only a "qualified defense" of Barr's views? If you read the entire article you may well come to the conclusion that Goldsmith is a NeverTrumper--and you'd be right. But for a better view of where Goldsmith is actually coming from, you'll do better to go back to an article he wrote just less than a year ago: The 'deep state' is real. But are its leaks against Trump justified? Even the most severe critics of the US president should worry about this subtle form of anti-democratic abuse.

The entire article is very much worth reading. It's written in an eminently reasonable style, on the one hand, but on the other hand from a distinctly NeverTrump standpoint: We have an unprecedentedly terrible President, but has the Deep State gone too far? Here is his core concern, in his concluding paragraph:

If surveillance comes to be seen through a domestic political lens, with domestic political winners and losers, the intelligence community will have a very hard time acting with needed public credibility. 

To understand that last part, you need to go back to the beginning and ask: What might be an example of why the intelligence community needs to have public credibility when it acts? Surely if they are acting within the laws, they will have public credibility. Presumably Congress and the President that We The People elect will see to that, right?

Well, Goldsmith seems to see the Deep State as a quasi-constitutional entity, with a legitimate role to play beyond their legal mandates. Think about this:

America doesn’t have coups or tanks in the street. But a deep state of sorts exists here and it includes national security bureaucrats who use secretly collected information to shape or curb the actions of elected officials. 
Some see these American bureaucrats as a vital check on the law-breaking or authoritarian or otherwise illegitimate tendencies of democratically elected officials. 
Others decry them as a self-serving authoritarian cabal that illegally and illegitimately undermines democratically elected officials and the policies they were elected to implement.

The truth is that the deep state, which is a real phenomenon, has long been both a threat to democratic politics and a savior of it. The problem is that it is hard to maintain its savior role without also accepting its threatening role. The two go hand in hand, and are difficult to untangle.

Whoa! eh? Let's unpack that.

A Deep State exists!--and it includes national security bureaucrats. OK, but "includes" means that it's not limited to national security bureaucrats. So who else is included? Goldsmith doesn't tell us. Would it include our elected representatives? Or maybe the moneymen who get those representatives elected? Jeff Bezos, Google, Mark Zuckerberg, Jack Dorsey?

"Some" see this Deep State--and these "American bureaucrats", by which I think he's referring to the previously mentioned "national security bureaucrats" and not distinguishing them from, what? Russian bureaucrats?--as a vital check on the officials that We The People elect. "Some" is obviously not "all," but it would be interesting to take a poll on this subject. Question: Do you believe that the FBI and the CIA are a vital check on your Senator and Congressional Representative? Likely Answer: Huh? Counter question: What qualifies these jokers to be that "vital check" on, ultimately, We The People? If you're getting the impression that Goldsmith is not a populist, I think you're on to something.

"Others", among whom I number myself, see these "national security bureaucrats" or, in the alternative, "American bureaucrats" as a "self-serving authoritarian cabal." Yes, I'm definitely among the others. The notion that the Deep State selflessly pursues interests other than its own is almost too ludicrous to entertain. Has Goldsmith, the eminent constitutional scholar, never contemplated the reasoning behind our system of checks and balances?

And then Goldsmith comes out with "the truth": The Deep State "has long been both a threat to democratic politics and a savior of it."

What--you were expecting historical examples of when the Deep State saved democratic politics from itself? Goldsmith doesn't do historical examples. Instead, he continues on with a lengthy and well reasoned list of the egregious and reckless violations of law that the Deep State has engaged in in its campaign of "sabotage" against President Trump and his senior officials. And yet ...

The hard questions are whether this sabotage is virtuous or abusive, whether we can tell, and what the consequences of these actions are.

Yes, you can count Goldsmith as part of the Resistance. "Illegal sabotage" could be virtuous! But, in the end, Goldsmith seems to be warning the Deep State: Don't overdo it. But this is the voice of our legal establishment, which seems to have no really fixed commitment to constitutional government. The scary thing is, Goldsmith is probably among the most reasonable voices in that establishment.

But then there's Bill Barr, who seems quietly determined to be Attorney General and to do what is right under the laws and constitution of the United States.

UPDATE: Some of Barr's exchanges with the Democrat Senators at the hearing were absolutely priceless. Again, Barr knows the law. When he says he won't be bullied, he doesn't only mean by a president--he also means he won't be bullied by nitwit senators. Check this out, Barr responds to Democrats trying to get him to commit to surrendering some of his responsibilities, especially re recusal:

“Would it be appropriate to go against the advice of career ethics officials that have recommended recusal, and can you give an example that under what situation or scenario you would go against their recommendation that you recuse yourself?” [Kamala] Harris asked Barr. 
“There are different kinds of recusals. Some are mandated if you have a financial interest, but there are others that are judgment calls,” he responded. 
The California senator wondered what he would do if the judgment of the DOJ ethics office was he should recuse. “Under what scenario would you not follow their recommendation?” she asked. 
“If I disagreed with it,” Barr answered. 
Harris wanted to know “on what basis” he would reach such a judgment. 
“The facts,” was his terse reply. 
The rumored 2020 presidential hopeful then questioned Barr specifically if DOJ ethics officials decided he should recuse himself from overseeing the Mueller investigation under what scenario he wouldn’t follow their advice. 
“If I disagreed with them,” the nominee said. 
When Democratic Sen. Richard Blumenthal also pushed Barr on overseeing the Mueller investigation, he responded, “I am not going to surrender my responsibilities.” 
“I’m not going to make a pledge to anyone on this committee that I’m going to exercise it in a particular way or surrender it.”

And this from the WaPo re being bullied in general:

“I feel I’m in a position in life where I can do the right thing and not really care about the consequences. In the sense that I can be truly independent,” Barr said.
He added: “I had a very good life. I have a very good life. I love it. But I also want to help in this circumstance, and I am not going to do anything that I think is wrong, and I will not be bullied into doing anything I think is wrong. ... I’m going to do what I think is right.”


  1. I predict, though, that as soon as Barr takes office, the DoJ will leak that it recommended he recuse himself within the first 2 weeks.

  2. Quite possibly, Yancey. Or maybe just, perhaps. After all, they didn't actually recommend say that Whitaker should recuse, they just said he might consider it "out of an abundance of caution." Because, being a lawyer, he had legal opinions. Imagine that! But it's all absurd--the AG is not a judge adjuticating a case in which he's a neutral tryer of fact. He's a lawyer, the government's top lawyer. Having a legal opinion is not disqualifying and neither is having an opinion on matters of fact. So Barr will be like Honey Badger--he just won't care. Just like he doesn't care about Schumer's BS.

  3. Barr will likely have the only significant opportunity to redress the wrongs of the prior Administration and restore the Rule of Law in the aftermath of the failed coup by the Deep State. He can do that initially via transparency and curbing the politicization of the Mueller report, but he cannot stop there if he is to make meaningful changes. Numerous felony criminal acts were perpetrated by senior officials in a position of trust. That cannot be excused or buried. If they skate, then DOJ will never have legitimacy prosecuting anyone outside the DC bubble.

  4. Very true, Unknown. BTW, I don't know whether you noticed this or not, but one indication that Barr doesn't intend to be a mere caretaker or to merely be on the defensive has to do with anti-trust issues. He's very much aware of anti-trust matters, having lawyered in the Telecom industry for years at the highest level. He stated point blank that he wants to take a look at Silicon Valley monopolies. I think he intends to do something re the monopoly on public expression and communication, through online searching and censorship.

    I just updated the post. I hope you'll enjoy the way he toyed with Democrats. I suspect his DoJ will also be involved if House Dems start legal harassment against Trump officials.