Bill Barr is attorney general for the second time in his career. His prior service for the senior President Bush involved nothing comparable to the constitutional challenges already on his desk.
In the late 1980s and early ’90s, Barr was tasked with giving advice on taking custody of Manuel Noriega to face drug charges in the United States; on the scope of presidential authority to introduce troops into the Persian Gulf; various ethics reforms; and a host of unpredictable matters, such as the fracas surrounding the nomination of Supreme Court Justice Clarence Thomas. To be sure, none of this was routine or inconsequential, but these matters had a certain orderliness and respect for constitutional structure.
{mosads}Now Barr is legal adviser to a president who has bragged about lying to international counterparts and refused to disclose his tax returns and economic circumstances so that potential conflicts of interest might be minimized and the foreign emoluments clause observed. And, of course, Barr’s new boss exhibits a special fondness for Russian friends who flatter him, while he ignores or distorts U.S. intelligence.
Special counsel Robert Mueller has one principal task: to report whether any illegality or impeachability underlies Trump’s peculiar Russian alignments. In the late 1980s, when I handed off the Office of Legal Counsel to Barr, the seeming tranquility of the end of the Cold War gave Barr the luxury to wax eloquent about the scope of the unitary executive and the ability of the president to withhold information from Congress relating to open law enforcement investigations and matters of national security.
Well, theory is about to meet practice. Indeed, insofar as the attorney general has authority to review “for form and legality” all executive actions, Barr arguably has an immediate obligation to advise the president that he cannot utilize the National Emergencies Act (NEA) of the 1970s without a bona fide emergency. Long-term wall-building — which the President himself said he “didn’t need” to undertake and, two years into his presidency, hasn’t begun — doesn’t cut it.
The NEA was a housekeeping measure that consolidated a grab-bag of past assertions of executive power. The NEA has had procedural aspects already found unconstitutional, and its core substance as Trump desires to use it disregards the Founders’ specification in Article I, Section 7 of the Constitution that all appropriations originate in the House of Representatives.
Barr finds himself in the same uncomfortable seat as former Deputy Attorney General Sally Yates, who gave the president objective advice that his initial travel ban was unlawful. Unhappy to receive this information, Trump chalked it up to Yates being a holdover from the Obama administration. She was discharged — and a short time later the independent judiciary discharged the travel ban as she forecast.
Will Barr exhibit the same level of professional courage to disapprove the president’s specious claims of authority? As uncomfortable as that is, that is the reassurance Barr gave the Senate. Barr also has the duty to supervise — actively — special counsel Mueller. The length of Mueller’s investigation must be reaching its limit. Although there is no statutorily fixed date, nor one outlined in the Department of Justice (DOJ) special counsel regulations, no U.S. attorney would presume the investigatory time given Mueller.
Here, the president is right: A prolonged investigation, or one that now hints it may be flitting from one subject to another, does harm not just to the president’s political reputation but also to the public’s business. The longer the investigation drags on — with little more than minor perjury counts and crimes that originate not with actual subversion of the nation’s interests but in the misspeaks of investigation — the less justification there is to prolong matters.
There’s a hint the investigation may be repeating itself with the latest tell-all book, this one by former FBI Deputy Director Andrew McCabe. There would seem very little new, for example, in McCabe’s confirmation that the 25th Amendment was examined to see whether the president was “incapable” of performing his presidential functions. It would have been negligent not to observe that books by Bob Woodward, David Frum and others consistently portray the president as often impulsive in decision-making. Domestically, the lack of presidential preparation can be costly, such as in a purposeless government shutdown, but mean little beyond wasted time; internationally, where ISIS and other adversaries look for leadership weakness, there is genuine national security concern.
{mossecondads}McCabe’s claim of wiring up Deputy Attorney General Rod Rosenstein is of a different order. Right now, pre-Mueller report, it reveals less Trump wrongdoing than the anti-Trump bias by a small clique around dismissed FBI Director James Comey. It is unfortunate that McCabe and the other acolytes of Comey did not set their partisanship aside long enough to see how the questions that Trump put to Comey in those early days might have been quite innocent. At least, they should not have been prejudged as a sinister obstruction of justice.
When the president inquired whether it was possible to be lenient with former national security adviser James Flynn, that was an awkward, inappropriate inquiry. Trump also should not have inquired about his own status. And yet, for all his wealth and worldliness, Trump cannot read minds. If the former FBI director thought the questions inappropriate, he could and should have said so.
Given Comey’s mishandling of the inquiry into Hillary Clinton’s email practices, there were reasons for the president to ask him to depart — reasons that were neither self-interested nor necessarily related to a foreign adversary. Comey rushed to judgment in the Clinton matter and wrongly assumed the role of investigator, prosecutor, judge and jury. Mrs. Clinton had reason to be angry.
If there is a headline in the McCabe volume, it is that McCabe’s retelling does little to assuage the president’s concerns about Comey. Respected as a good man, Comey nevertheless exhibited far less than the necessary
Even handedness To see this high-profile matter to a fair minded conclusion. Remember when things were not moving fast enough against Trump, Comey leaked government documents to a private citizen friend and Mr. McCabe was likewise misleading the inspector general about his own contacts with The Press.
And so the nation waits. We would do well to pray, too — a prayer that the new attorney general acts courageously to restore the integrity of DOJ, perhaps by remembering the biblical instruction: “Let your yes mean yes and your no mean no.” And let the answer be guided by law, not politics.
Douglas Kmiec served as the U.S. ambassador to Malta from 2009 to 2011. He is the Caruso Family Chair in Human Rights and professor of constitutional law at Pepperdine University School of Law.