Trump, Barr, and the Rule of Law
If there is one thing that Attorney General William Barr’s testimony in the Senate last week made abundantly clear, it’s that he is fine with acting less like the chief law-enforcement officer of the United States and more like the personal lawyer for a tantrum-prone client named Donald Trump. Barr dissembled when answering questions about his handling of the Mueller report, then mischaracterized Robert Mueller’s objections to his spin on it, saying that the special counsel had been primarily troubled by how “the media was playing this.” In fact, Mueller had written, in a letter to Barr, that he was concerned because the Attorney General’s summary “did not fully capture the context, nature, and substance” of his team’s work. Barr described that letter as “snitty” and probably written by “staff people,” thereby dismissing objections that Mueller clearly wanted in the historical record. By the end of the day, Barr had said that he would not come back and testify in the House, as he was scheduled to do. Nancy Pelosi, the House Speaker, then said that, in misrepresenting Mueller’s discontent, the Attorney General had lied to Congress, which is “a crime.”
Barr is apparently a believer in the “unitary executive” theory, an expansive reading of the powers of the Presidency that’s popular in conservative legal circles. Theory aside, though, serving as Trump’s Attorney General—and keeping the job—seems to mean signing on to the Roy Cohn approach that Trump so admires: treating anything, including the Constitution, that does not serve Trump’s interests as an urgent threat; projecting Trump’s own venal motives onto his critics and opponents; denying and stonewalling.
As a businessman, Trump was notably litigious. In 2016, when he was running for President, USA Today found that he had been involved in thirty-five hundred lawsuits, and was the plaintiff in nearly two thousand of them. That volume of litigation was extraordinary not only for a Presidential candidate but even for a real-estate mogul. As President, he is pursuing a similar strategy—stacking up lawsuits and thwarting investigations in the hope that he can run out the clock before the 2020 election. Last month, he sued the chairman of the House Oversight and Reform Committee, Representative Elijah Cummings, who had requested some of his financial records from an accounting firm. Then Trump, three of his children, and his private company sued Deutsche Bank and Capital One to prevent them from releasing information about his financial arrangements, which Democrats had subpoenaed. Trump also went to court to try to block a lawsuit brought by two hundred members of Congress, which alleges that his business dealings violate the emoluments clause of the Constitution. And Trump and his Treasury Secretary, Steven Mnuchin, have so far declined to produce the President’s tax returns for the House Ways and Means Committee, which requested them from the I.R.S. in early April. Since Richard Nixon, it has been the practice for Presidents to release their returns, but, in Mnuchin’s words, Congress is making an “unprecedented” demand—“exposure for the sake of exposure.”
Meanwhile, Commerce Secretary Wilbur Ross said no to a request from the Senate Appropriations Committee to testify about his department’s budget. Indeed, Trump has declared a near-blanket denial of all congressional requests for information and testimony from members of his Administration; after Barr’s testimony, Trump said that he would not allow the former White House counsel Don McGahn to appear before the Senate. “I don’t want people testifying to a party, because that is what they’re doing if they do this,” Trump told the Washington Post, in April. Cummings told reporters, “To date, the White House has refused to produce a single piece of paper or a single witness in any of the committee’s investigations this entire year.”
The Administration’s persistent attempts to stymie congressional oversight don’t bear much in the way of legal merit. In April, a district court in Washington, D.C., denied Trump’s motion to dismiss the emoluments lawsuit brought by the members of Congress. The clause was intended to prevent corruption, by banning federal officials from accepting financial benefits from foreign governments without first obtaining congressional approval. Trump contends that any such profits he has received—ranging from Trump trademarks being granted by the Chinese government to Saudi-funded lobbyists staying in Trump hotels—don’t count, because he didn’t come by them as a direct result of duties performed in office. The court concluded that this argument is not only “inconsistent with the text, structure, historical interpretation, adoption and purpose of the clause” but also “contrary to Executive branch practice over the course of many years.”
Democrats may be leading the House investigations, but their queries are rooted in historical practice and established understanding of the separation of powers. They are looking into matters of legitimate importance, from how the White House has handled security clearances to obstruction of justice. The purpose is not only to enforce accountability but also to establish grounds for legislation to avert future abuses. The congressional authority to investigate, which includes issuing subpoenas, has been upheld repeatedly by the Supreme Court. As a 1927 Court opinion explained, “the power of inquiry, with enforcing process,” has long been “a necessary and appropriate attribute of the power to legislate.”
What Trump denounces as “Presidential harassment” is, in fact, the means by which our government, with its coequal branches, works. But the way he talks about those branches makes them sound as divorced from the public good as he is. He refers to the Supreme Court, with his two appointees, as a venue in which he’ll get “a fair shake,” which he doesn’t seem to think the lower courts offer. In March, the Washington Post reported that federal courts had ruled against the Administration sixty-three times, “an extraordinary record of legal defeat” that Trump blamed on “Obama judges”—even though a quarter of the judges are Republican appointees, and the defeats resulted from a sloppy approach to rule-making and his own prejudicial comments on immigration and other matters.
The former F.B.I. director James Comey wrote an Op-Ed in the Times last week, in which he noted, in part about Barr’s behavior, that “accomplished people lacking inner strength can’t resist the compromises necessary to survive Mr. Trump and that adds up to something they will never recover from.” Until the next election, the scrutiny that Congress and the courts are applying to Trump may provide the best hope that our government will. ♦