Subservient Barr – Talking Points Memo

I have long been disturbed by the old school ties/beltway insider/DOJ rule of law club as a corruptible culture.  We see, for example that the Department of Justice has virtually insulated its lawyers from discipline by anyone outside the Department - not surprising because the same is true for prosecutors and cops just about everywhere.

But post nomination weak-kneed responses to Brett Kavanaugh and William Barr were particularly noticeable among prominent "responsible" commentators and academics.  As time goes on we see that Barr prostrated himself before Trump to get the job and that thee are no signs that will change.

Meanwhile dozens of misconduct complaints against Brett Kavanaugh have been swept from the table by the Chief Justice. Boys will be boys, I guess. - gwc

Subservient Barr – Talking Points Memo

by Josh Marshall

As we await Bill Barr’s ‘redactions’ of the Mueller Report, I wanted to pass on to you this note from a TPM Reader and member of the appellate bar. It may seem deep in the weeds at first. But it’s a window into Barr’s conduct so far that I was not at all aware of, or rather I knew the bare facts but hadn’t at all understood the implications. They bear directly on Barr’s subservience to the White House and current approach to executive power …

The focus on Barr and what he has done/is doing regarding the report has been fantastic.

But there is another, overlooked data point that makes clear that we should be very suspicious about how Barr approaches his responsibilities as AG – including his redactions to the Mueller report and his supervision of the ongoing Trump investigations in the Southern District of New York and elsewhere.

The Administration’s decision a few weeks ago to change its position and argue that the entire Affordable Care Act is unconstitutional didn’t get the attention it deserves. It is a shocking breach of the Justice Department’s duty to make reasonable arguments in support of the constitutionality of federal laws. There many such reasonable arguments in support of the ACA – as numerous conservative scholars have explained in blog posts and briefs since the DoJ announcement; it is the position that the Administration is now endorsing that is entirely unreasonable.

The New York Times’ reporting indicated that AG Barr opposed this change in position. But he appears perfectly willing to carry it out. That tells us a number of things, all of them disturbing.

First, AG Barr is not going to do very much to defend key Justice Department norms against assaults by the White House. Barr’s nomination was greeted with relief by many, who believed he would restore the old DoJ norms.

But his willingness to go along without a whimper with a fundamental breach of a longstanding DoJ norm shows that just isn’t true. Sometime between now and May 1 (when the DoJ brief is likely due), Barr will have to send a letter to Congress repudiating Jeff Sessions’ determination just last June that most of the ACA is constitutional; in other words, that Sessions was willing to make unreasonable arguments to defend the ACA.

The change in position is the minor part of the story. Sessions’ position was bad enough, and Barr’s willingness to compound the damage to DoJ norms and principle creates a serious threat to the rule of law, as Professor Nick Bagley explained in detail in a Times op-ed. It effectively gives the Executive Branch an extra-constitutional veto, exercisable at any time, which can be checked by the courts only if another litigant has legal standing to defend a law the administration is willing to throw overboard.