Very Important Interview With AG Barr

Today Hugh Hewitt did a long interview with Bill Barr--Attorney General William Barr On The Crisis--and it says something about the importance of the issues they discussed that HH got a transcript up so quickly.

I've edited the transcript and am pasting in just those parts that I think will be of greatest interest. Obviously that will concern first and foremost the pandemic and Barr's views on how the measures that have been taken square with our constitutional order. There are also some excerpts that deal with the Durham investigation. As always Barr is totally straightforward. He answers questions directly or, if he prefers not to, he simply states that he's not going to address the question.

I think you'll be able to discern where the administration is headed with regard to the big issue du jour--reopening. And I think it's fair to say that certain governors are cruising for a bruising if they don't adjust their ways. Barr doesn't make threats--he simply follows up on what he says.

Regarding the Durham investigation I found it notable that Barr repeated something that Joe diGenova said the other day. DiGenova said that Durham would bring indictments whenever--even the day before the election. Hewitt pressed Barr on this issue, but Barr refused to temporize at all. He even stated in that regard that the AG Guidelines are not written in stone. If indictments are called for they will be brought--whenever.

I will say, I think Trump is very fortunate in his Attorney General.

Edited Transcript--and there's lots more at the link:


HH: ... I want to begin by talking to you about Youngstown Sheet and Tube, the case to which everyone turns when they’re talking about presidential power. I have two quotes for you. Justice Jackson begins, “That comprehensive and undefined presidential powers hold both practical advantages and grave dangers for the country will impress anyone who has served as a legal advisor to a president in a time of transition and public anxiety.” We are certainly in a time of public anxiety. You are such a legal advisor. ...

WB: [T]he reason that we give power to the executive is because frequently, that requires adapting to the circumstances. So initially, when you’re faced with a potential catastrophe, the government can deploy measures and even put temporary and reasonable restrictions on rights if really necessary to meet the danger. But ... [o]ur federal Constitutional rights don’t go away in an emergency. They constrain what the government can do. And in a circumstance like this, they put on the government the burden to make sure that whatever burdens it’s putting on our Constitutional liberties are strictly necessary to deal with the problem. They have to be targeted. They have to use less intrusive means if they are equally effective in dealing with the problem. ... We’re moving into a period where we have to do a better job of targeting the measures we’re deploying to deal with this virus.

HH: ...

WB: I think it’s important to recognize that the President has not been dictating things based on his inherent Constitutional authorities. He’s been relying mainly on statutes that give him emergency authority, and also working within our federal system by leaving the governors to execute what they think is best at the local level. That can be a messy business, but at the end of the day, the better approach than trying to dictate everything from Washington.

HH: Has the President done anything at all to give rise in you to a concern that he does not respect the Constitution or intend to abide by its separation of powers? ... [T]he rhetoric has been deeply deranged at times. We hear “dictator,” “authoritarian” beibng applied to the President. Is there anything he’s actually done that’s departed from well-worn furrows of presidential authority?

WB: No, ... when you actually look at his record, his actions have been well within the traditional rules of law and have been litigated patiently through the courts thus far. Usually, the courts have ended up siding with him.

HH: Yes, it’s a good record thus far in terms of winning. Dual sovereignty seems to confuse a lot of the press out there. I mean, they really seem to be confused as to whether the president or a governor ought to do some thing in particular. It’s usually complicated by overlapping authority. Have those authorities yet collided, in your view, Mr. Attorney General?

WB: ... obviously states have very broad police powers. When a governor acts, especially when a governor does something that intrudes upon or infringes on a fundamental right or a Constitutional right, they’re bounded by that. And those situations are emerging around the country, to some extent. And I think we have to do a better job of making sure that the measures that are being adopted are properly targeted. They also can run into the federal role under the Commerce Clause, the so-called Dormant Commerce Clause. We do have a national economy which is the responsibility of the federal government. So it is possible that governors will take measures that impair interstate commerce. And just where that line is drawn remains to be seen.

...

HH: ... How useful is an originalist approach to a crisis that is actually unprecedented?

WB: [O]riginalism is always useful, because originalism tells you what the principle was that the framers were putting into the Constitution. ... I think the government has the burden of tailoring its measures to make sure they are not unduly intruding on civil liberties. ... I think the President’s plan for getting the country back to work is really a very commonsensical approach that is based on really assessing the status of the virus in each state and each locality, and then gradually pulling back on restrictions.

HH: ... I have noticed that some local officials have been very quick to use their authority to target specifically communities of faith in a way that distinguishes the rule set for them as opposed to other organizations. ... Have you noticed that yourself? Should they be on notice that, and well, in my view, I don’t know what your view is, that that violates the Free Exercise Clause?

WB: [W]e did more than put them on notice. We filed a statement of interest in a case in Mississippi where they were discriminating against religious practice and putting restrictions on religion that they were not putting on commercial activities that had all the same features. ... You can’t single out religion for special burdens.

HH: ...

WB: ... I personally think that given the uncertainties involved at the beginning, the President’s initial approach of a period of time to bend the curve were appropriate. But I think we have made a lot of progress in bending the curve, and I think we now, as I say, have to fine tune these things. ... blunter instruments that say everyone has to shelter in place, to stay at home regardless of the situation on the ground, or you know, you shut down a business regardless of the capacity of the business to operate safely for its customers and its employees, those are very blunt instruments. ... [W]e have to adapt more to the circumstances. The President’s plan does that. ... The question really shouldn’t be some governments saying well, is this essential or not essential. The question is can this business be operated safely?

HH: ... does the President’s view trump that of the governor’s?

WB: ... It depends on all the specifics.

...

HH: Now Mr. Attorney General, I want to close with a couple of specific issues. The investigation of U.S. Attorney John Durham into the circumstances surrounding the surveillance of President Trump’s campaign, transition, and early administration, does that investigation remain on track undisturbed by the virus?

WB: Yes.

HH: There are guidelines concerning the announcement of indictments or the closing of the investigations prior to the election. When is that deadline for U.S. Attorney Durham? And do you think he will make it either to disclose indictments or to disclose that the investigation is over?

WB: As far as I’m aware, none of the key people that, whose actions are being reviewed at this point by Durham, are running for president.

HH: But would not the announcement of indictments after a time certain have an impact on an election of the sort that the U.S. Attorney’s manual recommends against?

WB: Well, what is the sort that the attorney manual recommends against?

HH: As I recall, this came up with Director Comey making his announcement, and the concerns in 2016 that he had acted improvidently during the run up to the election. I don’t recall what the exact timing is.

WB: Yeah, well, that was directly as to a candidate.

HH: And so it would not matter, in your view, if there is an investigation, and the day before the election, someone is indicted?

WB: Well, you know, I think in its core, the idea is you don’t go after candidates. You don’t indict candidates or perhaps someone that’s sufficiently close to a candidate, that it’s essentially the same, you know, within a certain number of days before an election. But I don’t think any of the people whose actions are under review by Durham fall into that category.

...

HH: [W]hen do you expect that the public will know a definitive assessment of where U.S. Attorney Durham is going?

WB: As soon as we feel we have something that we are confident in to tell the people about.

HH: Is that imminent?

WB: No, it’s not imminent. ...

HH: ...

WB: [Y]ou cite the Attorney General’s guidelines as if they are written in stone. They are prudential guidelines that call for judgement in each individual case. And I think every case is, in this respect, sui generis and has to be looked at carefully taking into the concerns that under-gird the provision.