Attorney General Barr has provoked a constitutional crisis
The Trump administration is claiming total immunity from congressional oversight as well as the right to obstruct any investigations into the executive branch. It must be stopped.
Attorney General William Barr testified before Congress today amidst a burgeoning scandal about his deliberate, late March mischaracterization of the Mueller report. To be blunt, Barr's appalling testimony today is further evidence of the Trump administration's intent to create something like an executive branch crime syndicate — a lawless, hegemonic branch of government that is above the law, beyond scrutiny, and beneath contempt. The Trump administration has triggered the most serious constitutional crisis since the Civil War, and if Democrats don't take urgent action, they will have capitulated to the permanent marginalization of Congress and helped usher in a new era of unaccountable presidential supremacy.
Barr is certainly playing his part in that drama. His prepared remarks were layered with absurdities. He claimed that the summary letter was drafted because "I did not believe that it was in the public interest to release additional portions of the report in piecemeal fashion, leading to public debate over incomplete information." But precisely that public debate unfolded in the grim aftermath of Barr's letter, as the Trump administration exploited its informational asymmetry with the public to claim "total exoneration" of the president and his campaign of any wrongdoing before or after the election. Knowing that the report would cause a cacophonous uproar, Barr used his authority to tip the scales in favor of the president.
The attorney general's testimony took place during the immediate fallout from the Tuesday release of Robert Mueller's March 27th letter expressing deep concern that Barr's four-page summary of the Special Counsel's report "did not fully capture the context, nature, and substance of this office's work and conclusions." In unflinching language for the reserved former FBI director, Mueller argued that Barr's distortion of the report's contents "threatens to undermine a central purpose for which the department appointed the special counsel: to assure full public confidence in the outcome of the investigations." Mueller, who has remained mostly silent during the unfolding scandal of the DOJ cover-up, is now set to testify before the House this month.
Barr faced extensive grilling from Senate Democrats about Mueller's letter, while Republicans mostly focused on their clownish Deep State conspiracy theory about the origins of the special counsel probe. Asked by Patrick Leahy (D-Vt.) why Barr testified earlier before Congress that Mueller had no concerns about the summary letter, Barr said he "was not aware of any challenge to the accuracy of the findings." That claim is prima facie preposterous, as "challenging the accuracy" was exactly what Mueller's letter did. Barr again claimed that Mueller did not dispute his findings, even though Mueller's riposte explicitly says that "There is now public confusion about critical aspects of the results of our investigation" as a direct result of Barr's dubious characterizations.
Pressed further by Leahy about why Barr claimed that President Trump cooperated fully with the investigation despite the report's finding that he tried to have then-Attorney General Jeff Sessions shut it down, Barr replied that "I don't see any conflict between that and fully cooperating with the investigation." He told Dianne Feinstein (D-Calif.) that Trump's efforts to have White House counsel Don McGahn fire Mueller based on fictional "conflicts of interest" did not constitute obstruction. "There is a distinction between saying to someone, ‘Go fire him, go fire Mueller,' and saying, ‘Have him removed based on conflict," Barr claimed, absurdly. Shockingly, when asked by Sen. Kamala Harris (D-Calif.) if he "personally reviewed all of the underlying evidence" in the Mueller report before making decisions about Trump’s culpability, Barr said no, that he and Deputy Attorney General Rod Rosenstein "accepted the statements in the report as the factual record."
Today's testimony must not be considered in isolation, but rather in concert with the DOJ's handling of the Mueller report, President Trump's determination to resist all subpoenas of his financial and business history, and his intent to coordinate the refusal of all current and former administration officials to testify about any of these matters. Together these maneuvers amount to a frontal assault on the rule of law in America. The Trump administration, in effect, is claiming total immunity from any Congressional oversight, as well as the right to obstruct any investigations into the executive branch as long as that obstruction is not undertaken with "corrupt intent."
The president and his subservient attorney general, of course, now have complete discretion in determining what constitutes "corrupt intent." And because Congress has rolled over for the corrupt firing of the FBI director as well as the corrupt intimidation and firing of the previous attorney general, the new rules of D.C. are clear: the attorney general is the president's puppet and the executive branch his exclusive playground. In a presidency that has been marked by sustained and shocking breaches of the Constitution, this is the most dangerous moment yet.
Here again we are witnessing merely the latest in a long line of Republican-led escalations of normative warfare, taking advantage of the Constitution's lack of guidance and specificity vis-à-vis oversight. The word "oversight" in fact does not appear in the Constitution at all. Yet the Supreme Court has ruled repeatedly that oversight is one of the "implied powers" granted to Congress, a position affirmed by existing DOJ policy. So while America's founding document does not give Congress the clear right to subpoena witnesses or documents from the executive branch, there is a dynamic and long-established understanding that the branches will cooperate to find a resolution when Congress exercises its power to oversee the workings of the executive branch.
Trump and Barr may very well succeed in running their absurd arguments up the chain through the Trump-stacked federal judiciary and all the way through the newly compliant, partisan Republican-dominated Supreme Court. But it is truly remarkable that the Republican Party is willing to cause a constitutional crisis and permanently strip Congress of its oversight powers for nothing other than protecting a crook from his day in court. Of all the hills to die on, it's still shocking that Republicans have chosen the president's.
There are no policy stakes here. The worst outcome for the GOP has always been the removal of President Trump from office and his replacement by the like-minded quisling Mike Pence. To prevent this — which they could do anyway by acquitting him in the Senate — Republicans are willing to allow this and all future presidents to completely stonewall congressional investigations. It is a strikingly obvious violation of Congress' clearly stated constitutional power to conduct impeachment hearings and then a trial in the Senate. If the president can commit statutory crimes while in office, and the Congress may not see the evidence or call the witnesses it needs to determine the president's guilt or innocence, then the whole idea of Congress as a co-equal branch of American government is made into a total sham.
This crisis now goes well beyond Russia's interference in the 2016 election and the administration's efforts to cover it up and obstruct the Mueller probe. The people can no longer trust that the president and his cabinet can be investigated or held accountable for any wrongdoing. They can no longer trust that the nation's chief law enforcement officer serves the people rather than the president.
Taken to its logical conclusion, Barr's stance is that investigations can be obstructed so long as the president believes the inquiry is illegitimate. In essence, in order for the president or his team to obstruct any probe of the executive branch under the Barr Doctrine, investigators must know in advance that their target is guilty. And because the attorney general can now use whatever circular logic he wants to determine that guilt, Barr has twisted the separation of powers into an ouroboros, with the executive branch as the snake's head devouring all evidence of misconduct and all attempts to deliver that information to the public.
Democrats in Congress need to get aggressive, and fast, lest they give the impression that they consider getting their hands on this newly imperialized presidency next year more important than taking a stand for the rule of law. If the president refuses to cooperate with House investigations, Congress must not only draw up articles of impeachment for both President Trump and Attorney General Barr at the earliest possible moment — they must also use Congress's power to compel testimony from individuals and institutions who are in contempt of Congress, up to and including, as Robert Reich argued today, ordering the sergeant-at-arms of the House to arrest Barr and any other individual who refuses to comply and throw them in jail until they produce the information that was requested.
Democrats need to set aside, for the moment, any concerns about how these events will affect the 2020 elections. They need to get radical. They need to do it fast, while they still can. And if they don't, they really do deserve to lose.