Saturday, August 17, 2019

What Bill Barr Is Fighting For

Earlier today I did a post on Bill Barr--why we should trust him to be doing the right thing in investigating and prosecuting the Russia Hoax plot as well as combatting the impeachment related legal ploys of the Dems. That elicited a number of pointed, but measured, comments. First I'll paste in those comments, and my responses, and then I'll provide some fairly extensive excerpts from a Politico article that came out at the beginning of May, 2019. I think readers here will find the article quite fascinating. It shows that the Trump White House was courting Barr almost from the first days of the new administration. It also includes revealing details about Barr's personality and the reason he finally agreed to come on board with Trump. And I think you'll see from it why I wrote: 

Barr's perspective on his current service as AG is that he took the job primarily to defend the institution of the presidency.

That said, while I agree broadly with the concept of the unitary executive, I'm not sure I would take it to the lengths that Barr has done in the past. On the other hand, the issues involved, especially with regard to the president's powers as commander in chief, can be exceptionally sticky.

So, first, here are the comments--bolding is mine:

August 17, 2019 at 7:00 PM 
I think it's pretty obvious that Barr is the best choice for AG that could have been approved by the Senate. And he has many attributes and experience that are well suited to the challenges that he faces. And he is doing things the "old school" way, which is a refreshing change from the cronyism and corruption of Holder and Lynch. 
However, I stand by my previous comments that Barr still views this fight in primarily legal terms and is not properly anticipating the extreme acts of desperation that may impact this nation when the Deep State escalates it's attacks. They have, and will continue, to come from many venues other than legal because Barr is too formidable in that arena. In the process, a lot of innocents have been, and likely will continue to be, harmed. This is because they are playing for keeps. And Barr is fighting with one hand tied behind his back because Wray is a Deep State Fifth Columnist, not an honorable or professional leader of the FBI. I sincerely wish Barr would bring in an aide with a combat background and no nonsense tough guy attitude.

mark wauck: 
August 17, 2019 at 7:09 PM 
"Barr is the best choice for AG that could have been approved by the Senate." 
I think he was the best choice for the job, period. 
"Barr still views this fight in primarily legal terms" 
In what terms should an AG view it? Military [terms]? 
"I sincerely wish Barr would bring in an aide with a combat background and no nonsense tough guy attitude."

“Bill was just an attack dog that was loosed on us”
Barr is of the speak softly but carry a big stick school. He doesn't raise his voice, but his opponents know an attack dog when they see one:
“He isn’t going to wilt in the face of heavy fire,” said Theodore Olson, a prominent Washington attorney who has known Mr. Barr since they worked together in the Reagan administration.
“The telecommunications industry had really never seen anyone like Bill Barr,” said former Time Warner general counsel Paul Cappuccio.
One former competitor said he couldn’t fault Mr. Barr for his aggressive tactics. “Bill was just an attack dog that [was] loosed on us,” the former rival said.

August 17, 2019 at 7:44 PM 
Mark --
You have often stated that you believe Barr's loyalty is to the Executive and, I think, that Barr believes in the unitary Executive. I assume you mean that Barr's loyalty is to the legitimate powers of the Executive Branch as enumerated in the Constitution and as determined by the Supreme Court in cases where it has construed the power of the Executive branch. And that the ultimate authority of the Executive branch is held by the President and not the other officers of the Executive branch.
Perhaps its a bit of a rhetorical question but if you are of a mind to, would you elaborate on what 'loyalty to the Executive' and the unitary Executive means to you and how this loyalty is implicated in the extraordinary current political situation Barr finds himself in...and, in fact, we find ourselves in.  
Then, the rest of us can pile on... 

mark wauck:
August 17, 2019 at 8:09 PM
What I mean is that Barr is loyal to the Executive in the sense that he took an oath to uphold the Constitution. Since he regards the unitary Executive as part of our Constitution, he regards it as his duty to defend the prerogatives of a unitary Executive, just as he would defend the other fundamental elements of the Constitution. His interpretation, especially with regard to obstruction, seems reasonable to me: 
Barr to Rosey, esp. pp. 1-3. 
I haven't thought it through beyond that. 
However, here's an article that you and others might find very interesting--I will frankly state that there are aspects of it that I found somewhat dismaying: The real reason Bill Barr is defending Trump.

OK, now here are excerpts from the Politico article:

The real reason Bill Barr is defending Trump

The attorney general didn't want to serve Donald Trump. But he did want to fight for a theory of presidential power.

By ELIANA JOHNSON 05/01/2019

Bill Barr didn’t want to work for President Donald Trump. 
At age 68 and semi-retired for a decade, the attorney general resisted three efforts over two years to recruit him into Trump’s fold. When approached in late 2018 for his current job, Barr recommended other candidates instead. Anybody but him. Only when the White House came back yet again did he relent.
Now that Barr has provided him with political cover from Mueller’s report, Trump is lavishing him with praise. ...
Other Republicans are just as exuberant about Barr, who they believe embodies the ruthless competence of previous Republican administrations that has often been sorely lacking in the current one. After his combative news conference moments before the release of the Mueller report, one GOP operative wished aloud that Trump would drop Vice President Mike Pence from the ticket in 2020 and add Barr instead. Other prominent Republicans speak of him in almost adulatory terms. “Barr is the closest thing we have to [former Vice President Dick] Cheney,” said Chuck Cooper, a conservative litigator and Barr ally who, like the attorney general, has led the Justice Department’s Office of Legal Counsel. “He’s a man. He has a very strong sense of purpose and confidence.” 
But people who know Barr and have tracked his career for years say the story is more complicated. Trump and Barr barely have a personal relationship, according to White House aides. Barr may have donated $2,700 to Trump in the 2016 general election, but only after he threw $55,000 to Jeb Bush in the primaries. They say that it’s not Donald Trump whom Barr is fighting for, but a vision of the presidency.  
Barr’s first interaction with the Trump White House came in the spring of 2017 when he met with Pence to talk about representing him in the Mueller probe. Barr waved off the offer, instead recommending a handful of friends to do the job. About a year later, when the president’s children were unhappy with Trump’s legal representation, Barr got another phone call — and turned down another offer, this one to join the president’s personal legal team. 
In late 2018, when the White House was on the hunt for a new attorney general, Barr might as well have been on speed dial. He is a longtime friend of White House counsel Pat Cipollone, who worked for him at the Department of Justice in the 1990s and who pressed him to take the job. Again, Barr begged off, urging the White House to consider his friend J. Michael Luttig, a former federal appeals court judge — or former Arizona Sen. Jon Kyl — or his Kirkland & Ellis partner Mark Filip. 
Ultimately, his friends managed to talk him into it. “We had discussions over a period of time, and I encouraged him to take it,” said George Terwilliger, a conservative attorney and longtime friend of Barr’s. 
Barr’s social and professional circle was critical in drawing him into Trump’s orbit. Barr pals, including Terwilliger, Cooper, Luttig and former Virginia Attorney General Richard Cullen are part of a group of elite conservative litigators who were once wunderkinds in the the Reagan and George H.W. Bush administrations. They grew up together and have fought countless political battles alongside one another. 
They are united by a firm belief in a theory of robust presidential power dusted off by Reagan Attorney General Edwin Meese. Known among legal scholars as the theory of the “unitary executive,” they argue that the Constitution grants presidents broad control of the executive branch, including — to take a salient Trump-era example — the power to fire an FBI director for any reason at all.
Barr made his first imprint in this battle as head of the Justice Department’s Office of Legal Counsel in the George H.W. Bush administration, when he authored a controversial memo giving the FBI the right to seize fugitives abroad without the consent of the foreign government in question. As deputy attorney general, he told George H.W. Bush he had the power to send U.S. military forces into Iraq without congressional authorization.
[I probably don't agree with either of those positions. Or not without caveats. Whether Barr has reconsidered, I don't know.]
Conservative heroes from Robert Bork to the late Justice Antonin Scalia have been advocates of this theory. ...
Enter Bill Barr. Before he agreed to take the attorney general job, he drew on the unitary executive theory in the 18-page memo he sent to Deputy Attorney General Rod Rosenstein last June — a document his critics say amounted to a veiled application for his current job. In that memo, Barr argued that obstruction of justice is limited to things like witness tampering and destroying evidence and that the president has “complete authority to start or stop a law enforcement proceeding.” The implication: Trump was acting on firm constitutional ground when he fired FBI director James Comey, regardless of his motivation, and that doing so was not an effort to obstruct justice. Neither were Trump’s subsequent, but thwarted, moves to fire Mueller himself. 
Described by his friends as supremely confident in his views, Barr said at his confirmation hearing that he had circulated the memo widely “so that other lawyers would have the benefit of my views.” 
“This captures Bill Barr perfectly,” Luttig said. “He has stayed active in Washington his entire life, he knows everyone and everyone knows him, he reaches out regularly to tell people what he is thinking about the issues of the day — and what he thinks of what they’re doing and, yes, what they need to be doing differently! And they love it.” 
[And you could see those qualities in the way Barr dealt with the Dem senators at his confirmation hearings.]
Republicans have seen something different unfolding. They relish Barr’s willingness and ability to thrust and parry with the news media — something other Trump Cabinet secretaries have gone out of their way to avoid for fear of overshadowing the president or taking a misstep that might sit wrong with him and cost them their job.
During his pre-Mueller report news conference Barr interrupted a reporter who questioned why Mueller wasn’t present for the release of “his [Mueller's]” report only for Barr to interject, “No, it’s not, it’s a report that he did for me as the attorney general. ... I’m here to discuss my response to that report and my decision, entirely discretionary, to make it public since these reports are not supposed to be made public.”
Pressed on whether it was inappropriate to come out and “spin” the report before it was made public, Barr offered a terse response: “No.”
Barr’s allies argue that Democrats are upset only over Barr’s decision not to prosecute the president. “The left is savaging Barr only because Barr is not savaging Trump,” Cooper said. A Wall Street Journal editorial titled “Targeting Bill Barr,” argued that Barr “will be hammered no matter what he decides. The good news is that the country finally appears to have an Attorney General who can take the heat.”
“Barr step down?” Sol Wisenberg, a former deputy on Kenneth Starr’s independent counsel investigation into President Bill Clinton, told POLITICO on Tuesday. “Are you f*cking insane?”


  1. As critical as it is for any president to have enough authority to be able to hold his own against the other two Branches AND the Administrative State in trying to carry out the People's business, it seems the other side of this coin - accountability - is an aspect equally vital to successful self-government and yet one that generally gets overlooked.

    Setting aside for argument's sake the other two Branches, if we deviate too far from a unitary executive so that a president is substantially hamstrung by his own bureaucracy, how on earth do voters - the casual voters especially, who are a majority - know how to apportion blame and therefore how to vote every two or four years?

    The way the executive ought to work is for there to be maximum transparency in all things (with the obvious caveats, of course) combined with a chief executive who has enough power and authority to force the entire branch to act as one. That way most voters know much better who to credit or blame and can do, at a minimum, a much less poor job of voting as compared to the job they do when presidents are tied down by the bureaucratic Lilliputians.

    Making mincemeat of the unitary executive clearly written into our basic law not only keeps presidents from doing what we elect them to do, it also totally muddies the waters for voters trying to figure out what kind of a job a given president is actually doing. For unabashed lovers of citizen-government like me, it’s not at all a small problem.

    1. I believe it was the Progressive movement with its idealization of a supposedly meritocratic professional Civil Service that has led to the current situation in which the President is largely hamstrung by his own Executive Branch subordinates.

      Imagine how bad it would be if not for the Hatch Act, under which civil servants are not allowed to engage in political activities while performing their duties. Oh, wait, ...

    2. Ha! Good one ;^>

      (And re the "meritocracy," only a good Progressive could believe the way to get the best performance from your workforce is to all but guarantee its members can't be fired no matter how bad a job they do. Sheesh.)

  2. Nice summary, Mark

    For my 2¢, for the moment, I would suggest the thought that Barr's views regarding Trump's right to remove Comey are correct, but if Trump had done so and it had materially interfered with the DoJ investigation, he would certainly have been skating on to the very thin ice of impeachment, unitary Executive or not.

    I might also mention that the large majority of reader comments to the Politico article are unbelievable. What we see as Barr's legitimate and appropriate management of his office many (most?) Politico readers see as total malfeasance.

    We are today dangerously split apart in this country. This doesn't mean I would concede anything as a matter of principle to the Left. But I certainly see the incendiary atmosphere (contributed to by many) as a real risk.

    1. "he would certainly have been skating on to the very thin ice of impeachment, unitary Executive or not."

      No doubt. I think NeverTrump GOPers would have gone with the Dems and might have convicted Trump.

      "the large majority of reader comments to the Politico article are unbelievable."

      The authoress, the daughter of Scott Johnson at Powerline, threw a lot of red meat into the article in the form of quotes from some of the crazier liberals in Congress, like Eric Swalwell. However, there are plenty of law professors out there vilifying Barr. That's why I earlier did some posts quoting Jack Goldsmith. I don't agree with Goldsmith on a lot, but he's at least willing to be fair in discussing Barr's views--and to call BS on some of his legal colleagues at Lawfare.

    2. For right now, at least, it seems that the threat of impeachment is over.

      Regarding Cassander's and your comments about the President being impeached had he impeded the investigation, it's my view that conviction could of only happened if the People supported it.

      Lily-livered NeverTrump GOPers would never risk their own reelections if their constituents called or wrote demanding that they stand with the President.

      Very few politicians have demonstrated to me that they have the courage of their convictions. They are like reeds who blow with the wind.

      Whether DJT is reelected, I can't guarantee. But his huge crowd sizes are real. His supporters are enthusiastic. If they don't constitute a majority, they at least constitute a bloc that can't be ignored.

    3. My guess is that the impeachment talk that we're hearing is mostly for show. I believe the Dems know what they're facing, what's going to come out, and they're last desperate hope is to somehow tarnish Trump and thereby mitigate the damage. Won't work.

  3. Here is what I mean by Barr's apparent legal tunnel vision as regards current events. Neither he, nor anyone on his staff, appears to have anticipated the Epstein debacle and taken appropriate precautions. This certainly looks naive in hindsight, but at the time of Epstein's arrest, there was widespread prognostication that Epstein would be killed (suicided) by virtue of his criminal history and risk to very powerful people.

    A real attack dog, particularly one that has been bitten before, would not have been so lax in the aftermath of the first attack on Epstein. To be fair, Barr cannot do everything, but he can hire people that are skilled at this type of warfare. How many times does he have to get bit before he realizes that this is not patty-cake.

    1. "Neither he, nor anyone on his staff, appears to have anticipated the Epstein debacle and taken appropriate precautions."

      Barr traveled personally to NY to speak to the warden after Epstein's arrest. As the source said--AG's don't do that! But Barr did.

      "To be fair, Barr cannot do everything"

      Correct. And one of the things that Barr can't do is to establish a new DoJ, a new FBI, and a new Bureau of Prisons. Only Congress can give him the authority to do that.

    2. I think this goes back to the original sin of Trump, I'm speaking of his early appointments. I think Trump is a "True Believer" American, this is why he is and will always be an outsider for the Overseer Caste. As such he really wants to believe a certain level of honesty, integrity and good will from the other side. Some will call it naiveté but it really is a hope (centered in the American sense of fair play) that there are some "better angels" hidden somewhere within the people who swore an oath of duty and honor. It is hard to conceive otherwise for a traditionally brought up American. The trouble is Trump's generation was the last to be brought up in that milieu. Progressivism has attained the status of High Religion among a significant portion of the population and the preachers rail hellfire against the heathen backsliders (Deplorables) on every street corner. That these Prog believers have created, and so thoroughly saturate, the Overseer Caste is on one hand shocking (eliciting first of all denial/disbelieve) and second of all confounding. So the question is who do you trust and how far? There is no reliable method of determining, and few legal methods of sorting, the Rams from the sheep. All that is left is trial and error (attack dogs are great until they decide you are the threat). President Trump (and by extension we Deplorables) was extremely lucky to have found a William Barr. My opinion is that there are very few such in gov't at any level and even fewer that would risk taking on the Church or outing themselves as Trad-Americans (read Nazi, racist, homophobe, Islamophobe, demon de jour).

      The huge question is, "Is it too little, too late."
      Despite the "approved history" there has never been a civil war in the U.S. The nearest thing that might qualify as such is western Missouri/eastern Kansas circa 1855 - 1865, and that will seem mild/organized compared to the place certain groups seem determined to go. Despite what the Church of Prog teaches Americans are, historically, definitely exceptional. We tend to do things, all things, "with both hands," as the Bible says. Is this the last opportunity to avoid the decision box of fighting or watching my progeny sink into perpetual serfdom to the worlds Celestial Caste, managed by the Overseer and Gatekeeper (academia) Castes, until A.I. renders their existence superfluous? Is it possible to overcome the inertia that Progressivism has imparted to the system; and if not is the only answer left "burn it down"?
      Tom S.

    3. I agree. I think Trump assumed that the career employees would fall in line, pull together as professionals. He also failed to understand just how dangerous the wrong appointments could turn out to be--Sessions and Rosenstein preeminently.

    4. @Tom S.

      Do you think we are on the verge of violence?

    5. Politically inspired violence has already occurred and continues. Som is random, but much is directly inspired by politics. You could say that it started under Obama, esp. at Ferguson. San Jose and other venues, the inauguration, Steve Scalise, Rand Paul, Portland, shootings at ICE facilities, Philly--that was encouraged by the Soros DA. The question is will it increase or not? IMO, DoJ needs to step in, but it appears Wray is resisting, claiming Antifa isn't even an org. If action isn't taken, I think the violence will increase. And then there's the violence against the 1st Amendment being perpetrated by Big Tech.

    6. @Tom S.

      "Despite the 'approved history' there has never been a civil war in the U.S."

      While there may have never been a bona fide civil war in the U.S. there have certainly been periods of deep division among segments of the population, which included (more than one) outbursts of violence. One such situation which comes to mind (which I lived through and I know Mark lived through because we are contemporaries) was the period of the protests over the Vietnam War. I just scanned the timeline ( and was struck by the depth and breadth of organized, public protest against the Government. Conditions are very different today, but is the degree of divided public opinion and potential for violence in some way similar?

    7. Cassander,

      The Left is unhinged and, as Mr. Wauck stated, violence has already occurred. I think that more and more Americans have had enough of this.

      Most Americans seem to hover around the center of the political spectrum. When they saw that the President was innocent, the starch was taken out of impeachment.

      We've also seen that CNN and MSNBC have experienced a drop in their ratings. I think that the President is winning. The extreme hatred by the Dems and media tell you all that you need to know.

      I haven't been in a fight for close to 50 years but if push comes to shove, I am ready. And everyday Americans are heavily armed.

      That ought to tell you something.

  4. Unknown: "To be fair, Barr cannot do everything"

    Mark: "Correct"

    Cassander: Swamp is deep.

    1. Reports are that the prison guards aren't cooperating with the investigation. Apparently the early reports that they were being forced to work OT were incorrect. They volunteered for OT and used the OT to sleep. Seems like a problem. Failure to cooperate should mean firing.

      But this only happens when the SHTF. Lots of obstruction going on even after 2 years.

    2. Barr is serious + prison guards are obstructing the investigation = prison guards will be charged with some crime (obstruction?). Correct?

    3. "will be charged with some crime"

      It depends on what can be proven beyond a reasonable doubt. Sleeping on the job may be a firing offense, but not necessarily a crime. Lying about it, OTOH, would be a crime.

  5. I don't mean to beat a dead dog, but the Deep State is proactively ignoring, defying, and breaking laws left and right. That is what criminals do, and it only gets worse as their desperation increases.

    Prior to Barr, they owned the DOJ and FBI. That's how they got away with a decade of unfettered criminality. Now they just own FBI, and Wray is boldly arrogant in defiance of Barr. Worst of all, they interpret continuing inaction (re no indictments as yet) as weakness to be exploited.

    If Barr's not planning to fire Wray any time soon, then hire a tough guy to go have a little chat with him. Wray is a coward, he will fold like a cheap suit.

    1. Wray is a presidential appointee. My understanding is that Trump is the one who has to fire him--same as Comey. My expectation is that this will all be in the timing. Trump has a lot on his plate right now. I don't expect Wray to serve out his term. Once again, this is something that Barr has no real control over, although I have no doubt that he and Trump have discussed Wray in detail.