Speaking before an audience at Hillsdale College last night, Attorney General Bill Barr declared that the stay-at-home orders issued to protect people from Covid-19 were the grossest attacks on freedom seen in this country since slavery.
“You know,” he said, “putting a national lockdown, stay-at-home orders, is like house arrest. Other than slavery, which was a different kind of restraint, this is the greatest intrusion on civil liberties in American history.”
Yes, the lawless Christian fundamentalist was in fully unmasked form last night. He accused Black Lives Matter of using the victims of police brutality as “props” to help push a “much broader political agenda.” He didn’t mention what that agenda might be, nor did he explain why there are so many dead people lying around backstage apparently waiting to be included in next week’s performance. But I suppose part of white privilege is never having to explain why you think Black people do things you have no evidence of their doing.
Barr also said, “All this nonsense about how something is dictated by science is nonsense”—which sounds like what every inquisitor in history has said when confronted with facts they’re unwilling to understand.
But Barr directed most of his unhinged vitriol at his own colleagues. Barr’s incendiary comments about Black protesters are headline-making, but his disrespect for the entire department he now heads was the real news. Barr accused career attorneys working for the Department of Justice of “headhunting” high-profile political targets. He rejected the idea of letting those career prosecutors make charging decisions. Amazingly, he did a whole bit on the “criminalization of politics,” saying, “Now you have to call your adversary a criminal, and instead of beating them politically, you try to put them in jail.” Yet, somehow, he never mentioned that his boss and his party spent most of 2016 chanting “Lock her up!” at Hillary Clinton.
His legal point, to the extent he had one, was to argue, once again, for his fringe unitary executive theory of constitutional governance. Barr believes, and has suggested repeatedly, that every single federal employee is a mindless functionary who directly serves the president. He doesn’t think federal officials work for “the country” or “the people.” He doesn’t believe that they are allowed to take any actions other than those directly authorized by the president or his deputies—which, in the case of the Department of Justice, means Barr.
When Barr sounds lawless, it is because he literally is: His theory of government is incompatible with our system of constitutional officers constrained by law. Barr believes the president is “above the law” because he believes that the president, and the president alone, gets to decide which federal laws should be enforced. Barr believes that he himself is above the law because he acts according to the will of that president, and thus he is not constrained by any laws that don’t also constrain the president.
That’s why Barr makes facially incorrect and offensive statements about his own authority. Last night he said, “Under the law, all prosecutorial power is invested in the attorney general.” This is false. First of all, as any first-year law student could tell Barr, the Constitution explicitly reserves “police power” to the states. State and local prosecutors hold the vast majority of prosecutorial power in this country. But Barr’s statement was arguably directed at other federal prosecutors: the 93 US Attorneys out there and their many deputies. Barr believes that he, and he alone, has discretion on which cases those 93 people bring, and which ones they do not.
In fact, the only people in our government who are mere extensions of the president’s authority and serve at his pleasure are people like his staff and his generals. Most high-ranking federal officials, including US Attorneys, do not serve the president but the American people, and I can prove that because they are confirmed by the Senate, can be impeached and removed by Congress, and, if they leave their offices, are subject to statutory succession plans until another Senate-confirmed nominee can take charge (succession plans Donald Trump often ignores because he is lawless, not because those laws don’t exist).
If Barr were right, none of these aspects of constitutional democracy would be necessary. Trump could appoint whomever he wanted from his family, friends, or his long list of highest bidders. Those appointees would never have to appear before Congress to explain what they are doing. And their decisions wouldn’t be subjected to congressional oversight or judicial review.
Fortunately, the United States is not yet the totalitarian state Barr wants it to be. But the fact that he is a wrong, lawless, cheap impersonation of a 16th century monarch—or monarch’s enabler—never seems to matter. Barr is trying to undo nearly 250 years of constitutional government. He has unmasked contempt for the rule of law and does everything he can to weaponize the Department of Justice against Trump’s political enemies.
And yet, nobody ever does anything. Nobody tries to remove him or arrest him or even cuts his mic. Barr is out there dismantling the rule of law, and all anybody ever does is say, “Oh no, Barr is dismantling the rule of law.”
Right now, the people in the best position to stop Barr are those 93 US Attorneys he maligned last night. They are the ones who know best how Barr’s theories are antithetical to the notion of impartial justice and equality under the law. They are the ones who took an oath to uphold the Constitution and the law and are supposed to be agents for justice.
They are the ones who need to join together and call on Barr to resign. And if Barr will not (and he will not) they are the ones who need to strike, en masse, from the department that Barr has corrupted.
Notice, I said “strike” not “quit.” I think they should simply stop showing up for work. As the Geoffrey Berman fiasco taught us, it’s not so easy for Barr to fire a US Attorney without ending up with one of those “career prosecutors” Barr so despises in their place. Seeing as we are just a few months out from an election, it would be very hard for Barr to replace striking US attorneys with handpicked lackeys, and get them confirmed by the Senate, in time to do evil before the election.
Now, I know how US Attorneys think. I know they consider themselves super-important. I know they think that they are somehow preventing Barr from causing additional harm by dutifully staying at their posts. But I would argue that the time for such ass-covering actions has long since passed. By continuing to stay at the Department of Justice, they lend legitimacy to an institution that no longer deserves any.
If Barr truly thinks he alone is allowed to exercise prosecutorial discretion in this system, then, fine, let him do all the work. Let Barr, who has never tried a case in his life, try all the cases. Let him develop all the fact-patterns, since he thinks legal arguments are all political anyway.
It’s not enough to grumble and complain, anonymously to reporters, about Barr. The 93 US Attorneys should demand better, and stop aiding and abetting his behavior.