Bill Barr’s Unconstitutional Campaign to Reelect the President

The attorney general is using official violence and intimidation to help Trump win a second term.

Getty / The Atlantic

About the author: Donald Ayer served as United States attorney and principal deputy solicitor general in the Reagan administration and as deputy attorney general under George H. W. Bush.

Throughout his first year in office, Bill Barr worked overtime to advance the personal and political interests of President Donald Trump, and to alter the structure of American government to confer virtually autocratic powers on the president, in accordance with views that Barr has held for several decades. Now, less than 100 days before the election, the attorney general’s focus has narrowed and his methods have become more transparently outrageous: Facing gross mismanagement of the coronavirus pandemic, a diminished economy, and sinking presidential poll numbers, Barr is using the most intrusive and offensive tools he can command simply to extend his and the president’s tenure in office into a second term.

Most recent and shocking are the unilateral armed invasions of Portland, Oregon; Kansas City, Missouri; Seattle, and, presumably, a number of other American cities soon. There are many reasons to believe that these counterproductive incursions are being pursued not for some legitimate purpose but as political theater, to generate an impression of the country in disorder, of dangerous people supposedly on the attack, and of the Trump administration standing firm against them. These interventions defy the traditional conservative principle of federalism: respecting the leadership of local and state government in maintaining order, with federal assistance generally limited to coordinated action by invitation. The federal actions have also involved a disregard of constitutional rights, and by all indications have been a stimulus for, rather than a solution to, violence.

These invasions echo similar events that took place in Lafayette Square in Washington, D.C., on June 1, when officials from various federal law-enforcement agencies, acting on an order given by Barr, cleared peaceful protesters from the area in the early evening. That action was followed a short time later by the president walking across the park to pose for a picture holding a Bible in front of Saint John’s Church. The episode was roundly condemned, including by former Trump-administration officials, and the chairman of the Joint Chiefs of Staff later apologized for allowing himself to be anywhere near it. Barr equivocated about what exactly happened that day, but admitted to giving the park-clearing order.

No less shocking last week was the revelation of the government’s attempt to take Michael Cohen back into custody after being released to home confinement for the purpose of minimizing spread of the coronavirus. The government’s position was that to avoid being re-incarcerated, Cohen would have to honor a condition of release giving up his First Amendment rights to criticize the president. Judge Alvin Hellerstein found the condition to have been imposed for retaliatory purposes. Although the hearing did not clarify where this condition came from, at issue is an action of the Bureau of Prisons, which operates under the attorney general. This hearing concerning Cohen followed an earlier effort to violate the First Amendment by an unsuccessful Department of Justice action to enjoin publication of former National Security Adviser John Bolton’s book, which contained facts embarrassing to the president. The obvious purpose of both efforts was to avoid publicizing information that would highlight the president’s unfitness for office.

Barr has also been vocal in advancing other highly dubious legal positions central to Trump’s reelection campaign. One of those concerns the efficacy of mail-in voting, which is used in some form in every state, and is presently the primary means of voting in a number of states. Barr, following Trump’s lead, has asserted the claim, bereft though it is of empirical support, that such voting methods are prone to fraud by foreign actors. Trump, meanwhile, relies on such assertions to reserve judgment on whether he will accept the outcome of the election if he loses.

Barr also has spoken up repeatedly, and his Department of Justice has at times intervened, concerning conduct restrictions imposed on churches in connection with the coronavirus pandemic. In service to Trump’s oft-stated desire to get the economy reopened quickly, and also perhaps appealing to religious voters, Barr’s actions here again reflect an unconservative disregard for the preeminence of state and local government in addressing public-health issues. Similar efforts to undermine such restrictions have been rejected twice by the Supreme Court.

A long-standing theme of Barr’s term—the perceived unfairness to Trump and his supporters of the  FBI investigation of Russian interference during the 2016 campaign—has this spring become for him a nearly constant public-relations effort. Starting in April, during interviews with Fox News and other outlets, and in violation of a clear departmental rule against such public discussion, Barr has offered colorful commentary about alleged outrageous things being unearthed by the largely redundant investigation that he and a team under U.S. Attorney John Durham have been conducting since May 2019.

Among many other angry characterizations, he has described the Russian-interference investigation as “one of the greatest travesties in American history,” and promised to get to the bottom of it. His recent comments indicate that developments in the Durham investigation can be expected in the next few months—perfect timing to enhance its possible impact on the election. And Barr has made clear that he will not feel constrained from acting, including bringing possible indictments, for fear of any resulting impact on the election. The department’s now-pending motion to dismiss the prosecution against Michael Flynn, for lies to which he twice pleaded guilty, has been another context in which Barr has attacked the FBI’s investigation of Russian interference.

From this incomplete list of recent, grossly improper actions—and the fact that Barr, though publicly called out repeatedly, seems hell-bent on securing Trump’s perpetuation in office—one is well justified to wonder how this can be happening in America. A partial answer is that Barr has worked hard to render ineffective the departmental norms that were put in place after Watergate, so that he now has much greater leeway to behave as he pleases.

In place of respect for an evenhanded process predominantly conducted by career professionals dedicated to fairness and impartiality, Barr has substituted ad hoc reliance on personal confidants to second-guess or take the place of career lawyers in special situations. In place of a scrupulous avoidance of political interference or personal favor, including a long-standing policy largely curtailing communications with the White House on a range of important matters, he has substituted a willingness to act in inappropriate ways at the president’s bidding. He has joined in the undermining of inspectors general, independent watchdogs created after Watergate. Five inspectors general have been fired recently, with no public objection from Barr and in one instance with his vocal support. And he has done his best to destroy the independent stature of the United States attorneys, who are required by law to be appointed by the president and confirmed by the Senate. Barr has engineered the removal of a few of them, some in key offices with cases of special interest to himself or the president, and replaced them where possible with trusted associates serving in an acting role, and thus subject to instant removal if they fail to do Barr’s bidding.

For the nation’s lead law-enforcement officer to play an overt, hands-on role in advancing a president’s campaign strategy is unheard-of in recent history. Even John Mitchell saw fit to resign as attorney general before taking over the leadership of the Committee to Re-elect the President. Barr, on the other hand, has shown no reticence to use the full force of his powers and then some, including violence and intimidation in violation of the constitutional rights of citizens, as tools in Donald Trump’s effort to secure reelection.

There is a suggestion though, in public reactions to recent events, that Barr’s use of such awesome powers to advance such an inappropriate purpose may prove a bridge too far. The man whose bullheaded persistence has won him the nicknames “Honey Badger” and “The Buffalo,” honoring their indifference to obstacles of any sort, may have persisted right into a course of action that will be his ruin. If America is to remain a free nation, Barr’s recent course of conduct had better be more than the body politic will tolerate.