Over the past 19 months, we have all heard a lot about Bill Barr’s misuse of the office of attorney general and the resources of the Justice Department to do the personal bidding of President Donald Trump, to undermine the evenhanded rule of law, and to work in countless other ways to put the president in a position of nearly autocratic power. What first came to our attention as surprising accounts of specific actions out of sync with the way attorneys general are supposed to act has become a systematic torrent of actions building on one another to feed a rising crescendo of public alarm.
This unprecedented pattern of conduct by the nation’s chief law-enforcement officer has brought a question to the minds of many people: Why does Bill Barr do the things he does?
To help us find answers to that question, Barr has left an extensive paper trail that goes back more than 30 years. Or rather, he has left two paper trails that run parallel to each other. The most familiar of these concerns executive power, the other the religious and moral health of the American people. As divergent as those subjects sound, Barr’s ideas on both follow a common course and structure.
On both subjects, Barr posits a set of views that he ascribes to the Founders, and that, he believes, were absolutely essential to the success of the great experiment that is America. Those views also happen to be his own. In both cases, according to Barr, the Founders’ vision was firmly instituted, leading to the great advances and dominant role America came to play during most of two centuries. But, also in both cases, starting at around the same time—the 1960s and ’70s—the nation wandered away from the sacred path defined by its Founders. On account of that apostasy, the country now finds itself in dire straits. For Barr, the only remedy is drastic action to restore the nation to the Founders’ vision. Fortunately, he is making himself available to lead that restoration.
Barr’s better-known views relating to executive power posit that the Founders intended to create an all-powerful president, and he sees that vision as thriving until the late 20th century, when it was undermined by interference from Congress and the courts. To Barr, the role of religion in our public life has followed a similar trajectory. The Founders, according to Barr, believed that national success depended on America remaining a pious Christian nation, in which the worst inclinations of the citizenry would be constrained by obedience to God-given eternal values. That reality, he tells us, also substantially persisted until the late 20th century, when a combination of forces conspired to severely undermine it.
The best recent source for his thinking on religion is a speech he gave at the University of Notre Dame last fall. The argument he advanced then is virtually indistinguishable from ones he has been making for many years in other speeches and in an article he published in the scholarly journal The Catholic Lawyer in 1995.
The basic story, according to Barr in that article, is that we are embroiled in “a historic struggle between two fundamentally different systems of values.” One of those is the “transcendent moral order with objective standards of right and wrong that exists independent of man’s will,” which is imparted by God, through his institution, the Church. The other is the worldview, developed starting with the Renaissance and accelerating during the Enlightenment, that knowledge, and thus arguably values, are derived from experience and science. This is the movement that spawned many of the notions that gave rise to the American experiment.
But Barr does not discuss the latter worldview as an integral force behind the inspiration for and creation of the United States. Rather, he sees it simply as a force for secularism and moral relativism that has made “the tenets of Judeo-Christian tradition … sound increasingly jarring to the modern ear.”
The crucial point for Barr is his claim that the thinking of the Founders, and therefore “the American government” they created, “was predicated precisely on this Judeo-Christian system” of values handed down by God. According to Barr, “the greatest threat to free government, the Founders believed, was not governmental tyranny, but personal licentiousness—the abandonment of Judeo-Christian moral restraints in favor of the unbridled pursuit of personal appetites.”
To put it in polite terms, this is a complete misreading of the Founders’ views. Barr largely ignores many of the most central elements of the American founding—especially those concerning freedom of thought and speech, and the individual pursuit of happiness. Nor does he see as significant the fact that the members of the founding generation, although mostly self-described Christians, had also been greatly influenced by the secular and rationalist outlook of the Enlightenment, and rejected most of the supernatural elements of literal Christian doctrine.
Instead, for Barr, the important point for Americans today, as he stated in his Notre Dame speech, is that:
Over the past 50 years religion has been under increasing attack. …
We have seen the steady erosion of our traditional Judeo-Christian moral system and a comprehensive effort to drive it from the public square. … We see the growing ascendancy of secularism and the doctrine of moral relativism.
Barr then recites the “grim” consequences of “this moral upheaval,” including, starting in 1965, the steep rise in illegitimate births, “the wreckage of the family … record levels of depression and mental illness, dispirited young people, soaring suicide rates, increasing numbers of angry and alienated young males, an increase in senseless violence, and a deadly drug epidemic.”
Crucial to Barr’s point of view is his claim that our modern condition, and all of these consequences, are the result of a “campaign to destroy the traditional moral order” by “the forces of secularism,” who have “[pressed] on with even greater militancy.” According to him, this militancy of the “secular forces” is working strongly against the historical tendency toward self-correction—the “pendulum swinging back” as it has in the past at times when “the traditional moral order has been shaken.” In his view, the project to secularize America has itself become the religion of the left.
According to Barr, “another modern phenomenon that suppresses society’s self-corrective mechanisms—that makes it harder for society to restore itself" is that “we have the State in the role of alleviator of bad consequences. We call on the State to mitigate the social costs of personal misconduct and irresponsibility. … While we think we are solving problems, we are underwriting them.” And he also decried “the way law is being used as a battering ram to break down traditional moral values and to establish moral relativism as a new orthodoxy.”
Not surprisingly, Barr’s prescription for restoring America to the Founders’ supposed vision of a pious Christian nation is extensive indeed. Moreover, in many of its particulars, it comes within the reach of discretionary powers held by the attorney general. As Barr specified at Notre Dame, this means working to undo “watershed” decisions by the Supreme Court legalizing abortion and euthanasia, among others that are contrary to religious teaching. It means altering social legislation and policies by which the government relieves individuals from bearing the consequences of immoral personal choices.
It also means broadening the trend of recent Supreme Court decisions allowing people to avoid generally applicable conduct requirements—such as those related to contraception coverage in employer medical plans—based on their religious beliefs. In Barr’s mind, this would countermand the tendency of “militant secularists today … to take a delight in compelling people to violate their conscience.”
A final area involves education, where he says “the secularists are attacking on three fronts.” One is the curricula in public schools, where he says districts are adopting “LGBT” and other programs of study incompatible with traditional religious principles. Another is funding, where he says “state policies [are] designed to starve religious schools of generally-available funds and encouraging students to choose secular options.” The third involves laws limiting the freedom of religious schools to operate in accordance with their faith, for example, by foreclosing discrimination based on gender preference.
Barr’s views on these issues, which he has been nurturing for three decades, fall close to the heart of the appeal that Trump is making to evangelicals and other religious conservatives who are a central part of his political base. It is thus easy to see how Barr’s expression of them can play an important role in Trump’s efforts to secure reelection this fall.
Barr’s views on executive power are a bit better known, and that is probably because of the great many things he has done since becoming attorney general that have been aimed, in one way or another, at freeing the president from most limitations on his ability to act. For Barr’s views on this subject, as with religion, there are a number of sources over a period of more than 30 years to draw upon. We could, for example, go back and look at legal opinions he wrote as the head of the Office of Legal Counsel in 1989 and ’90. But two documents from the past two years give us more than enough to chew on. One is the 19-page memorandum that Barr submitted in June 2018, apparently auditioning for the job of attorney general by specifically arguing that Robert Mueller’s investigation was fundamentally misconceived. The other is the speech that he gave to the Federalist Society on November 15 last year, devoted to the topic of “the Constitution’s approach to executive power."
The 2018 memo sets out a breathtaking vision of the president as exercising literally all of the powers of the executive branch, with no constitutional possibility of limiting the exercise of those powers for compelling reasons. Barr writes that the president “alone is the Executive Branch,” possessing literally “all Federal law enforcement power, and hence prosecutorial discretion.” That includes, Barr is perfectly clear, “supervisory authority over [all] cases,” including the right to direct the handling of cases involving himself, his friends, or his enemies.
In his speech to the Federalist Society, Barr goes beyond this vision of total and illimitable executive power to consider the president’s authority and standing in relation to the other branches of the federal government. And here, as he did in expressing his views on religion, Barr offers up a fictional version of the Founders’ vision with regard to the place of executive power.
Barr begins by deriding “the grammar-school civics-class version” of our history, under which the Founders created a complex structure of checks and balances, to forestall the risk that any one part of government might develop tyrannical powers. Among the risks of important concern to them, most of us have thought, is the risk of tyrannical power in the president. And, indeed, the numerous checks the Constitution created to limit the president’s authority—the impeachment power, the House appropriation power, Congress’s power to override vetoes, the need for a congressional declaration of war, and the Senate power to advise and consent, for example—seem to show that unchecked presidential power was prominent among their concerns.
Barr sees it differently. Notwithstanding that the abuses of King George III were the focus of the Declaration of Independence, and that the Founders chose in the Constitution to cabin the president’s powers in significant ways, Barr argues that the Founders actually were not much concerned about an out-of-control president, as the “civics-class version” suggests. They were far more concerned, he argues, about the relative powers that Parliament had gained in the years leading up to the Revolution, and also with the chaos that had ensued under the Articles of Confederation. Notwithstanding the checks that they built into the system, the right interpretation according to Barr is that by resolving in favor of a single executive officer, they meant for the president to have extremely broad and largely unchecked authority.
Barr purports to find confirmation of this supposed Founders’ vision of a president with substantially unchecked powers in what happened next. He would have us believe that this vision of an all-powerful president that he wants to restore has in fact been a reality for most of our history. Indeed, he says, “more than any other branch, [the American presidency] has fulfilled the expectations of the Framers.” Thus, in his mind, strong and omnicompetent presidents led our government throughout the 1800s. Never mind the historical consensus that all but a few presidents before Franklin D. Roosevelt were quite weak, and that the greatest expansion of executive power came not early in our history, but in the 20th- and 21st-century era of the imperial president.
As with the decline of religion in the face of “militant secularism” starting in the 1960s, Barr says that:
Since the mid-’60s, there has been a steady grinding down of the Executive branch’s authority, that accelerated after Watergate. More and more, the President’s ability to act in areas in which he has discretion has become smothered by the encroachments of the other branches.
Like our national falling away from pious Christian religiosity, in Barr’s mind, this supposed abandonment of our Founder’s vision of an all-powerful president demands to be remedied. And once again, as we have seen in his conduct since he became attorney general, Barr believes he is the man for the job. The last half of the Federalist Society speech provides the agenda, by detailing how, “in recent years, both the legislative and judicial branches have been responsible for encroaching on the presidency’s constitutional authority.”
Targeting first the role of the legislature, Barr comes quickly to focus on alleged congressional interference with the Trump administration. Trump’s congressional opponents inaugurated “the resistance” and used “every tool and maneuver available to sabotage the functioning of his Administration.” Barr does not mention the administration’s repeated assertion of a categorical, prophylactic executive immunity to even having to appear before Congress, respond to its inquiries, or claim a specific executive privilege based on the facts. Nor does he note that the administration’s efforts to stonewall nearly all inquiries were, for many months, largely successful, even in the context of impeachment, where Congress’s constitutional power to inquire is at its apex.
Second, he turns to the issue of judicial review. From the tone of this section, comprising four of the speech’s 11 pages, it appears that, in Barr’s mind, the courts are the principal culprit in unjustifiably limiting the extraordinarily broad powers that the president is constitutionally entitled to exercise. His discussion ignores, or perhaps just disagrees with, a pillar of our legal system since almost the very beginning—Chief Justice John Marshall’s magisterial pronouncement in Marbury v. Madison that “it is emphatically the province and duty of the judicial department to say what the law is.”
Among many other points made here, Barr complains that the judiciary “has appointed itself the ultimate arbiter of separation of powers disputes between Congress and Executive.” Indeed, he says that courts should play no role whatsoever in “constitutional disputes between the other two branches,” because “the political branches can work out their constitutional differences without [resorting] to the courts.” Beyond that, regardless of the complainant, courts should refrain from second-guessing the executive whenever its conduct involves the exercise of “prudential judgment,” on claims of improper “motivation behind government action,” or indeed any time when review would not be guided by “tidy evidentiary standards and specific quantums of proof.” In sum, Barr would foreclose judicial review of executive action in pretty much any case where there is a debatable issue.
So what can we conclude from Barr’s long-held views concerning religion and executive power? And from the role that Barr has assigned himself in both respects to restore the Founders’ supposed consensus view—favoring a dominant role for Christian religiosity and an all-powerful president—that, according to him, was largely realized for nearly 200 years, but was totally undermined by the course of events that began in the 1960s?
First, Barr grossly distorts what the Founders actually believed. Moreover, the nation’s course has not been the one he outlines—that of a mostly homogeneous nation of pious doctrinal Christian believers, overseen by an all-powerful but benevolent president, until it all went to hell in a handbasket starting in the 1960s.
Second, given the course of our history and where we are today, his prescriptions for our current situation are quite literally un-American. Like it or not, America is far and away the most individualistic country on Earth, and Americans have always been deeply suspicious of excessive accumulations of power. And for most of its history, America has been a hurly-burly melting pot of varied faiths and freethinkers. All of that has brought both tremendous benefits and advances, and deep complications and challenges. But the only way the nation as a whole is going to buy into Barr’s ahistorical agenda is if it is forced to.
Third, what Barr is doing is enormously harmful. He has become a one-man wrecking crew, set on destroying the reforms that were put in place by Edward Levi after Watergate, as well as many other checks and balances inherent in our constitutional system. Public confidence that ours is a system in which no person is above the law, where rules apply to everyone equally, has been severely shaken by recurring stark evidence that during the tenure of William Barr, this simply is not true.
It has also been undermined by the unmistakable evidence that Barr regularly lies about all manner of things, in pursuit of his higher calling to restore his America that never was.
Finally, as we move toward the election, it is crucial to recognize the toxic way that Barr’s misconduct is being aggravated by the mutual dependency between him and Donald Trump. Barr’s ideas discussed here, which he has spent his adult life formulating, have made him a modern Don Quixote, on a mission to correct the apostasies that he believes have occurred in his lifetime. Trump’s election put into the White House someone who actually aspires to autocracy, and Barr was able to offer himself up to make that a reality. Ironically, Barr’s vision to restore the dominance of pious Christian religiosity is also highly resonant with the campaign narrative most appealing to the political base of the most vulgar and irreligious president in our history.
But Barr’s ticket to ride the white horse in his imagination can be rescinded at any time. As Trump said in August, Barr could be “the greatest attorney general in the history of our country,” “but if he wants to be politically correct, he’ll be just another guy.” So Barr has to dance to Trump’s tune. Also, Barr knows that his role of redeemer in chief will end unless Trump gets another term in office.
Thus the list of Barr’s misdeeds, committed to protect the president against the consequences of his actions, to advance the president’s reelection prospects, or just to scratch the president’s itch to have something done a certain way, is extraordinarily long. Most obvious are Barr’s lies about the Mueller and Horowitz reports and his interventions in the Stone and Flynn cases.
More troubling lately have been the things he has done and the falsehoods he has advanced to promote the president’s reelection prospects. He has become a full-time huckster and probably the most effective spokesperson for the president’s campaign themes. Think about his many unsupported comments on the untrustworthiness of mail-in voting, the unfairness of state and local restrictions to protect public safety, and his recent offhand falsehood, based on supposed intelligence reports, that China poses a greater threat to our election than does Russia. Think about his provocative use of law-enforcement personnel in Lafayette Square and later in Portland, Oregon, and other cities, to create videos of violence to support the campaign theme that America is under attack from subversive foreign elements. Think about his gross misuse of the Federal Tort Claims Act, to assert that the president’s alleged slander of E. Jean Carroll, who accused him of rape, is an official action of the United States, thus delaying any further court action until the election is over. And then there are the wholly unsupported comments Barr recently shared at Hillsdale College, where he said that the career staff at the DOJ have been acting as “headhunters” hungry for scalps to hang on the wall.
Hovering over the election is the question of whether Barr will serve up some sort of October surprise in the form of findings or indictments from the inquiry he and John Durham have been leading since early last year into the FBI’s 2016 investigation of Russian interference. Such concern is certainly warranted, given Barr’s very extensive and accusatory recent comments—all in direct violation of written departmental policy—reflecting outrages that the investigation has supposedly unearthed.
Barr is now fully focused on getting Trump reelected. He wants to keep Trump assured that he is acting like a Roy Cohn, without a whiff of political correctness. So, shockingly, Barr these days is regularly speaking to Trump’s base in language they will grasp. Sometimes these comments go so far into the ozone of unreality as to be almost beyond belief. And when they do, they typically echo Barr’s own unreal vision about the lost America of uniform Christian piety and autocratic leadership. That has been true in his many statements about “antifa” barbarians at the gate who must be met by force. It has also been true in statements such as the ones he delivered to Mark Levin’s Fox show in August, saying that the Democrats want to “tear down” America’s institutions so they can create a “progressive utopia,” because “power” is “their state of grace and their secular religion,” and “they want to run people’s lives so they can design utopia for all of us.”
Barr is also telling the country a very big lie—a falsehood so bold, repeated so often, that it seems almost credible—about himself. Regularly for the past 19 months, Barr has been saying that his greatest concern has always been the protection of the rule of law and the equal application of the laws. He has claimed many times to be the one working to restore evenhanded justice from the supposed political abuses of the Obama administration and now even of the career prosecutors at the DOJ. Of course, the exact opposite is true. He is telling this lie in hopes of reaching the great majority of Americans who believe in the rule of law and want assurance that it is being protected.
In this, there is a job for all Americans who care about the future. It is to tell everyone you know, in the clearest and strongest voice you can muster, that these claims are totally false, and that Barr’s devious campaign to restore his twisted vision of our history poses a grave threat to America as we know it.