On November 15 of last year, Attorney General Bill Barr gave a speech before the Federalist Society’s National Lawyers Convention, in which he addressed, among other things, respect for norms in our polarized times. “One of the ironies of today is that those who oppose this president constantly accuse this administration of ‘shredding’ constitutional norms and waging a war on the rule of law,” he said. “When I ask my friends on the other side, what exactly are you referring to? I get vacuous stares, followed by sputtering about the travel ban or some such thing.”
“The fact of the matter,” Barr went on, “is that, in waging a scorched-earth, no-holds-barred war of ‘resistance’ against this administration, it is the left that is engaged in the systematic shredding of norms and the undermining of the rule of law.”
From this observation, Barr extrapolated a more general theory across time of the confrontation between the children of light and the children of darkness, a theory that pits the zeal of the Jacobins against the restraint of the Burkeans. “In any age,” he argued, “the so-called progressives treat politics as their religion … Whatever means they use are therefore justified because, by definition, they are a virtuous people pursuing a deific end. They are willing to use any means necessary to gain momentary advantage in achieving their end.” Compare this, said Barr, to conservatives, who “do not seek an earthly paradise” and are instead more circumspect in their approach to politics, asking instead, “Would it be good for society over the long haul if [a given action] was done in all like circumstances?” Barr’s conclusion? “For these reasons, conservatives tend to have more scruple over their political tactics and rarely feel that the ends justify the means. And this is as it should be, but there is no getting around the fact that this puts conservatives at a disadvantage when facing progressive holy war, especially when doing so under the weight of a hyper-partisan media.”
Perhaps the notion that it is the other side that is “shredding norms” is comforting to Barr as he manages the Justice Department in a fashion distinctly devoid of scruple over his political tactics, unconcerned about either the collateral consequences or the systemic implications of his behavior, and uninterested in whether the actions he is taking can be justified as a general rule of conduct, equally applicable to all sides.
That projection lies somewhere close to the heart of Trumpism is not a new observation. But Barr’s Federalist Society speech is a particularly astonishing read after the past week, during which news broke that Barr had pushed Justice Department attorneys prosecuting Trump’s associate Roger Stone to reduce their recommendation for Stone’s prison time in the aftermath of a presidential tweet; that he had earlier intervened in the case of former Trump National Security Adviser Michael Flynn to reduce the department’s sentencing recommendation for Flynn; that he had tasked a U.S. attorney with “reviewing” the Flynn case; and that he had set up a process by which the Justice Department would examine information provided by Trump’s personal lawyer, Rudy Giuliani, concerning alleged wrongdoing by Democratic presidential candidate Joe Biden and his son, Hunter.
Indeed, it is hard to fathom that, faced with a progressive attorney general behaving as he has been behaving, Barr would see no trampled norms, that he would regard such a person as circumspect and showing the kind of scruples that risk putting his or her side at a disadvantage in a long-running struggle.
But let’s try.
Imagine, for a moment, that it is February of 2022. Bernie Sanders has been president for just over a year, and his attorney general—say, Elizabeth Warren—has been in office for that time as well, having been confirmed by a narrow Senate majority after a bruising confirmation fight. Let’s imagine Barr, as a private citizen, watching with equanimity as President Sanders publicly announces who should be prosecuted and for what crimes, which investigations are legitimate and what their results should be, and which investigations that he is personally invested in are, by contrast, “WITCH HUNTS!” Let’s imagine him playing golf and sipping a martini while explaining to conservative friends that President Sanders has a perfect right to do these things, and that the problem only arises if Attorney General Warren follows his instructions. Let us imagine him explaining to those friends that Warren and Sanders are not violating any norms; it is those who are objecting to their conduct who are shredding norms.
More particularly, let’s picture the scenario in which Warren personally intervenes to overturn the sentencing recommendation that career prosecutors had advanced to a court in the case of a friend and associate of Sanders—a case Sanders had discussed publicly countless times. Imagine that four prosecutors withdrew from the case in response. And imagine one of them resigned from the Justice Department entirely. One can just see Barr watching without concern, knowing that he had established general rules of conduct that it was fair for both sides to play under.
Indeed, picture Attorney General Warren setting up a special intake “process” to receive disparaging information from Sanders’s personal attorney about the business activities abroad of Donald Trump Jr. and Ivanka Trump. Imagine, too, that she did so in the midst of campaigns for national political office launched by both Trump children. Imagine that she also publicly leveled unsubstantiated conspiracy theories about “spying” by law-enforcement officials under the Trump administration on Sanders’s campaign. And imagine that she refused to accept the results of an inspector general’s investigation as to how a major federal probe involving that campaign began, personally sought assistance from foreign intelligence partners to substantiate her own theories, and tasked U.S. attorneys around the country with reviewing the prosecutions of various Sanders campaign aides charged during the course of that federal probe.
Presumably, in the comfort of his retirement, Barr would watch Warren do these things, satisfied with the precedents he had set on these matters too. After all, as Barr said concerning the special intake process for information about Democratic presidential candidate Biden and his family, the Justice Department has an “obligation to have an open door to anybody who wishes to provide us information that they think is relevant.” And as he told the Senate, “spying” is a “good English word” with no negative connotations. And, as Barr announced when dismissing the Justice Department inspector general’s failure to discover any political motive behind the investigation into Russian election interference in coordination with Trump’s campaign, “Nothing is more important than the credibility and integrity of the FBI and the Department of Justice.” Presumably these, too, are neutral principles.
And, of course, Barr would presumably see no evil if Attorney General Warren gave a blisteringly partisan speech describing a Manichaean confrontation between progressives and conservatives and outlined the disadvantage progressives face in that struggle, hampered as they are by scruples while the conservatives wage a crusade that knows no time or space.
Barr’s aggressive interventions in normal Justice Department proceedings in favor of the president constitute “constitutional hardball”—an idea coined by the legal scholar Mark Tushnet in 2004 to denote political action that is “within the bounds of existing constitutional doctrine and practice but … nonetheless in some tension with existing pre-constitutional understandings.” According to Joseph Fishkin and David Pozen, hardball is characterized by behavior that pushes the constitutional limits in a particularly partisan or self-serving way. Trump likes to say that he has the “absolute right” to interfere in the business of the Justice Department and to encourage his attorney general to do so for him—but that doesn’t mean such actions are in keeping with the way we have commonly understood acceptable presidential behavior.
It is a feature of constitutional hardball that both sides in a fast-polarizing political environment see themselves as playing defense. As Fishkin and Pozen write, “The more illegitimate the other side’s constitutional usurpations, the more legitimate are the measures taken to counter them.” Each side can see its own escalations in the struggle as merely responsive to those of the other side—or even preemptive of what the other side would do if it had the chance.
Sometimes, these points are even correct. Both major political parties, for example, played significant roles in escalating the battles over judicial confirmations throughout a decades-long tit-for-tat cycle of retaliation, in which both sides also insisted they had a minimal role in making things worse.
Yet that is not what is happening here. Here the hardball is wholly asymmetric. Yes, there were incidents during the Obama and Bush and Clinton administrations that gave rise to concerns about the politicization of the Justice Department. Some of them were even serious. But there was no cycle of escalation. The rules were pretty well understood and generally pretty well observed.
No post-Watergate administration until Trump’s has seen a sustained effort by the president to publicly demand specific investigative outcomes—specific indictments, leniency for favored individuals, investigations of others—from the Justice Department. And no prior administration has seen an attorney general publicly defend such statements and (at least appear to) implement aspects of them internally. Barr may genuinely believe he is acting defensively, that the progressive forces arrayed against the administration are so without scruple, and that he and his tribe are so restrained and careful, that whatever they are doing must reflect that reality. But he’s wrong. Objectively, he is on the most aggressive form of offense.
And there will be consequences. Already, Trump is normalizing the campaign promise to prosecute political enemies. Kamala Harris, when she was still in the race, promised that her Justice Department would bring criminal charges against Trump for obstruction of justice. And more recently, Warren herself has proposed an independent Justice Department “task force to investigate crimes by Trump administration officials.” These ideas are a long way from Trump’s campaign-trail chants of “Lock her up!” or his demands that former FBI Director Andrew McCabe be prosecuted for lying to investigators; Harris was speaking on the basis of a record established by the Mueller report, and Warren’s plan calls for investigations generally, rather than into any specific individual on a specific charge. But they are nevertheless incursions on Justice Department independence that would have obviously crossed the line of political interference in a pre-Trump era. The fact that many Democratic politicians and voters see nothing wrong with these ideas is itself a sign that Barr has started an escalating cycle of hardball.
Barr can tell himself, as he did in his Federalist Society speech, that it is those on the other side who “never ask whether the actions they take could be justified as a general rule of conduct, equally applicable to all sides.” But it is a delusion. Barr is the enabler who is making acceptable presidential and Justice Department behavior that virtually nobody accepted only a few years ago—and that he is most unlikely to accept in his actual retirement if a Democratic administration behaves remotely similarly.
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