Barr memo suggests: To understand the Trump administration, read Hobbes

William Barr’s hearing before the Senate Judiciary Committee is an opportunity to consider what philosophy of the law, and of the state, underlies the actions of the Trump administration. Not that the president himself is a big reader of philosophical works, but some of those who have had his ear or received important appointments have shown real interest in big-picture, fundamental issues.

To a non-lawyer, Barr’s controversial June 8 memo to Deputy Attorney General Rod Rosenstein looks like a very forceful, erudite, and heavily documented defense of executive branch prerogatives, with a narrow definition, notably, of circumstances under which a sitting president, attorney general, or other DOJ official could be charged with corrupt influence on a judicial proceeding. It comes across primarily as an effort at political advocacy, and certainly merits serious reflection and questioning at Barr’s hearing.

The Barr memo should be read in conjunction with the 2009 Minnesota Law Review article in which then-Judge Brett Kavanaugh argued that, because of the extreme demands of their position, presidents “should be excused from some of the burdens of ordinary citizenship while serving in office,” burdens such as facing civil lawsuits or “criminal investigations or prosecutions.” Although he referred only to urgent challenges facing the country at the time of writing, one might find in Kavanaugh’s article a hint that, by definition, a president is always facing something close to a state of emergency, necessitating special protection for the chief executive.

To the extent that there is a Trump administration philosophy of the state, the Kavanaugh article and Barr memo are foundational documents.{mosads}

I am struck by how these arguments, and much of the political language coming from the White House, remind me of Thomas Hobbes, the great English thinker. Hobbes published his masterpiece “Leviathan, or the Matter, Forme, and Power of a Common-Wealth Ecclesiasticall and Civil“ in 1651, drawing inspiration from the protracted state of emergency known as the English Civil War, a power struggle between the Crown and the Parliament, whose “highlights” included the beheading of King Charles I in January 1649.

Hobbes is perhaps best-known today for his description of human life in the state of nature, i.e., without the protection of the state: “solitary, poor, nasty, brutish, and short.”

Born in 1588, just as the Spanish Armada was preparing to invade England, Hobbes maintained, throughout his 91 years, a strong sense of precariousness, of the ever-imminent risk of carnage, even when there was not a hot war going on. No surprise then, that in Hobbes’s contractual, perhaps even transactional, view of the state, citizens willingly ceded their freedom to the state in exchange for security, for protection.

In Hobbes’s world, the states are preferably monarchical, with their embodiment, for example, in the Sovereign King, represented in the famous frontispiece to the first edition of “Leviathan,” with sword in hand and a body composed of small images of numerous citizens, the signers of the social contract, all with their faces turned toward the sovereign. Once the contract is in place, any challenge to the sovereign’s authority is inconceivable. Hobbes was an opponent of divided or limited government, which would be inefficient and not truly sovereign. No checks and balances here.

It is not my intention, though, to speak ill of Hobbes. He justifiably was among the most influential English and European minds of his day, and his ideas still figure in day-to-day parlance. He was not only a political thinker, but also, by the standards of the time, a believer in and practitioner of science.{mossecondads}

Students of international relations like myself continue to read his gloomy yet influential description of the international system as the reign of anarchy, i.e., the absence of world government, in which states, all fundamentally alike except in their resources, compete to preserve their security and make relative gains in power, in a never-ending zero-sum game. (This view is, arguably, helpful in analyzing the foreign policy of the Trump administration.)

But Hobbes was ultimately a man of the 17th century. He died in 1679, some 110 years before entry into force of the U.S. Constitution, according to which the people made a contract not with a protecting sovereign, but among themselves, notably to “secure the blessings of liberty” to themselves and their successors.

It is significant that Article I of the Constitution deals with the powers of the legislative branch, not the executive branch. It’s hard to imagine that Hobbes would have supported the rebels in Britain’s North American colonies in their fight against the Crown. Perhaps his ideas are, in a sense, un-American, but one could hardly expect otherwise.

Among other thinkers that recent events bring to mind, Hobbes is far from the worst. Talk of declaring a national emergency brings to mind the conservative German juridical and political theorist Carl Schmitt, who sided with Hitler after the dictator’s rise to power in 1933 and is having a revival as the darling of anti-liberal politicians around the world. Schmitt was the leading theorist of the “state of emergency,” in which the sovereign power declares an exception to normality and suspends the rule of law.

I suspect that the Hobbesian (or perhaps “neo-Hobbesian”) supporters of the Trump administration are not intentional or self-aware followers of the author of “Leviathan.” But we nonetheless should be attentive to, and guard ourselves from, what might be called the “Hobbesian temptation.” 

Hobbes’s view of international politics, if perhaps elegantly simple, now looks simplistic, after decades of admittedly imperfect but still oft-times successful international cooperation. And, on the domestic front, Americans across the political spectrum have good reason to worry about the emphasis on untrammeled sovereign power that is part of the Hobbesian worldview.

Eric R. Terzuolo was a foreign service officer from 1982 to 2003, and since 2010 has been on contract to the Foreign Service Institute, the professional development unit of the Department of State, with responsibility for West European area studies. He is currently teaching at American University’s School of International Service. The views expressed here are entirely his own.