Saint Louis University

Confirmation of AG William Barr threatens democratic norms of judicial independence by John Barrett

The United States Senate has recently voted to confirm William Barr as Attorney General (AG) of the United States, replacing the acting AG Matthew Whitaker that has held the position since November 2018. The position was vacant after President Donald J. Trump had fired the previous AG, Jeff Sessions, for following recommended ethical standards to recuse himself from overseeing Robert Mueller’s independent investigation of the Trump campaign’s relationship with Russia’s interference in the 2016 election. President Trump has claimed that he needs an attorney general that would protect him from such investigations, which led to a rearrangement at the highest level of the Department of Justice. As President Trump has made clear, there exists a necessity to install loyalists to the Administration within top Cabinet positions, which is legitimate under the President’s executive authority. The reality is that, due to this necessity, red flags on the political outcomes of Barr’s nomination must be raised to ensure compliance with precedence of an independent judiciary. In this way, the confirmation of William Barr as the Attorney General of the United States effectively compromises the institutional capability of the judiciary to constrain the President on matters of executive power, as well as legal and ethical conduct. His appointment challenges the independence of the judiciary branch, comprising its adherence to democratic norms established within the United States that threatens to upend this crucial institutional precedence. 

Barr has notoriously been known for his broad and expansive view on executive power. In his understanding, the United States Constitution does not allow for Congress to declare corrupt executive action illegal, even if the President were to use his “complete authority to start or stop a law enforcement proceeding’ to cover up crimes by himself or his associates.” In short, Congress cannot serve as a check on compromising actions at the executive level. This is more than coincidental for the Trump administration, which is currently the source of numerous criminal and ethical investigations, as well as newly-elected House Democrats threatening to use congressional oversight to expand the scope of those investigations. Barr’s opinions, however, are not new to presidential administrations. During his time as AG under President George H.W. Bush, Barr had previously received attention for rejecting mainstream constitutional views, advising the President that he has the unilateral authority to “wield unfettered power to start a major land war on his own — not only without congressional permission, but even if Congress voted against it.” He has shown to give little interest in giving Congress the ability to constrain the executive branch, which is a troubling precedent to set. 

Barr has also made his opinions on independent investigations known to the public throughout his time at the Justice Department. Under the Bush administration, Barr appointed Frederick Lacey as the head of a supposed independent investigation into the Administration’s potential criminal wrongdoing associated with a bank providing aid to Saddam Hussein’s Iraq in the months leading up to the Persian Gulf War. As a staunch Republican and supporter of the Bush administration, Judge Lacy’s handling of the investigation was far from independent, which was arguably the logic behind his appointment to the position. More recently, Barr has been seen as a frequent critic of Robert Mueller’s team throughout the investigation, which only raises more questions on what actions may be taken at the Department of Justice during Barr’s tenure. In June 2018, Barr sent an unsolicited memo to Rod Rosenstein, the deputy attorney general, arguing that the Special Counsel investigation into obstruction of justice charges against the President was “fatally misconceived,” claiming that presidential authority supersedes these legal standards. In other words, Barr believes the President’s actions should be immune to legal challenges based on the nature of the position itself. This is a controversial – and timely – argument to make, as Mueller prepares to release his findings to the public. Whether or not those investigations find evidence of wrongdoing, the expectation has been set that potential enforcement may be nonexistent. 

Increasingly, authoritarian leaders attempt to undermine traditionally democratic institutions to limit constraints on executive action, effectively consolidating power that can be used in the future to make further deterioration of established norms. These actions maintain their legitimacy by adhering to the precedential rule of law, which cloaks their underlying motives (Varol 2015). President Trump, by his nomination and the ultimate confirmation of William Barr, is insulating himself from potential actions taken by the Department of Justice. Under Barr’s discretion, presidential authority has the ability to reach new heights that adheres to the rule of law of unconstrained action and restricted oversight. Through the appointment of loyalists to key government positions within the Trump administration, especially those whose inherent responsibility is to serve as a check on executive power, President Trump has made it clear that he will challenge any opposition to his actions (Kendall-Taylor and Frantz 2016). William Barr has now solidified that view into the judiciary branch, creating independence virtually unattainable. 

Many Americans have seemingly ignored the risks that William Barr’s appointment to Attorney General poses. In their eyes, the United States has developed robust institutional constraints that prevent sole actors from gaining enough influence to alter democratic outcomes. Levitsky and Ziblatt contend, however, that the system of checks and balances risks being subverted when partisanship trumps individual politician’s commitment to uphold the norms and precedents set by the Constitution (Levitsky and Ziblatt 2018). Under the current political climate, partisanship can provide the final factor that prevents Congress from properly enforcing its oversight responsibility. Paired with a restricted access to reliable and unbiased information and public distrust in the media, the Trump administration’s appointment of Barr challenges reliability in democratic governance. The necessary institutional constraints that judicial independence have historically promoted have been exchanged for partisan politics and extreme views of presidential authority that risks subverting the democratic process. Only time will tell how Barr’s rhetoric and past experience will factor into his decisions made as Attorney General of the United States. The expectation, however, is that he will continue to look the other way on potential illegal actions within the White House, giving President Trump a free pass to act unilaterally to achieve his political goals that challenge the separation of powers doctrine inherent to democracy in the United States.  

*Photo: Gabriella Demczuk, “Senate Confirms William Barr as Attorney General,” The New York Times

2 Comments

  1. Aliza Oppenheim

    May 7, 2019 at 4:40 pm

    Your post is quite insightful, especially now that the ramifications of Barr’s position are known. As we’ve seen since the Mueller report was refused, Barr has acted much more as a partisan defender of the president than as the Attorney General of the United States. As you astutely mentioned, partisanship can negatively affect Congress’s ability to properly enforce its responsibilities in oversight, and Barr’s refusal to show up to the Senate’s Judiciary Committee hearing epitomizes your point . You also make one point that I find interesting concerning the Barr and the nomination process, and that is the fact that Barr has always taken a wide view of executive power, which could undermine the independence of the judiciary. However, much of the judiciary, which is supposed to be independent, is nominated by the president, and therefore tend to have broad views of executive power (For example, Justice Kagan wrote an article in the 2001 Harvard Law Review called Presidential Administration that exemplifies this trend). Is there a way to make the both the judiciary and the Department of Justice less dependent on the president? Should the nomination process for law enforcement and judgement be overhauled to protect its independence?

  2. Aliza Oppenheim

    May 8, 2019 at 12:00 pm

    *(House Judiciary Committee, not Senate)

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