By Peter M. Shane, J.D.
Jacob E. Davis and Jacob E. Davis II Chair in Law
Moritz College of Law
The Ohio State University
Well into my seventh decade, I have enough self-awareness to know that my politics are liberal and my world-view is largely secular. These are not recent discoveries.
Thanks, however, to two remarkable speeches this fall by William G. Barr, the U.S. Attorney General and notoriously bad summarizer of prosecutorial findings, I have learned a great many other things that I (and others like me) probably did not know about liberals and secularists.
From Barr’s November 15 speech to the Federalist Society, I have learned that “progressives treat politics as [our] religion.” Our “holy mission is to use the coercive power of the State to remake man and society in [our] own image, according to an abstract ideal of perfection.” We are completely unprincipled, “willing to use any means necessary to gain momentary advantage in achieving [our] end.” In that spirit, we are engaged in “a scorched earth, no-holds-barred war of ‘Resistance’ against the [Trump] Administration.” In Barr’s account, “it is the Left that is engaged in the systematic shredding of norms and the undermining of the rule of law.” Such recklessness supposedly distinguishes us from conservatives, who “tend to have more scruple over their political tactics and rarely feel that the ends justify the means.”
Barr’s October 11 remarks to the law school and the de Nicola Center for Ethics and Culture at the University of Notre Dame are no less revelatory. Secularists are enemies of liberty, determined to “drown out and silence opposing voices, and to attack viciously and hold up to ridicule any dissenters.” Just as progressives treat politics as a religion in general, “the secular project has itself become a religion, pursued with religious fervor. It is taking on all the trappings of a religion, including inquisitions and excommunication.” Our religion, alas, is peculiar; we care only about “macro-morality.” For adherents of the secularist religion, people’s “morality is not gauged by their private conduct, but rather on their commitment to political causes and collective action to address social problems.”
What I have learned, in short, from the Attorney General’s two speeches is that he holds my beliefs—and presumably if I stick by them, then me—in contempt.
Yet among my fellow progressives and secularists, I surely have company in thinking the Attorney General’s scorn undeserved, especially the purported contrast between us—the pseudo-religionists—and Barr’s preferred actual religionists. Counterexamples leap too easily to mind. Was there a non-instrumental conservative morality behind separating asylum-seeking immigrant parents from their children? Was there a principled conservative reason for denying Merrick Garland a confirmation hearing? Do the pardoning of convicted war criminals, the blanket refusal to cooperate with a congressional impeachment investigation, the intimidation of congressional witnesses via Twitter, and presidential attacks on the integrity of our intelligence agencies, law enforcement community, and Foreign Service amount to norm shredding by the Left? By what conservative “micro-morality” is evangelical support for Donald J. Trump grounded in his private conduct as opposed to Republicans’ commitment to their political cause?
Indeed, so many examples exist of the seeming misdirection of Barr’s reproach that one can easily wonder if his truculence is anything more than the strategic deployment of a quintessential smear tactic: targeting others with accusations commonly aimed at oneself. Alternatively, perhaps his disdain for progressives and secularists manifests Barr’s sincere, but unconscious projection of the Attorney General’s fears as to his Administration’s, his party’s, and even his own personal faults. Not knowing Barr personally, I have no confident hypothesis on this score. (Jed Shugerman has suggested as another possible motivation Barr’s desire to distract attention from his own potential criminal liability in connection with the President’s Ukraine machinations.)
But, in truth, Barr’s vilification disappoints me for reasons other than my own progressivism, my secularism, and my uncertainty as to the good faith of his motivations. Two other factors are clearly in play.
One is professional pride. When Barr mocked dissenters from his vision of a largely unaccountable constitutional presidency, he was aiming at judges, but also at law professors like myself. Our thinking is “mushy.” Our attacks on “unitary executive theory” are “amusing.” Extemporizing from his prepared remarks, Barr said that judicial opinions speaking of “shared” powers among the three branches of government reminded him of a preschooler shouting, “Share!”
Yet for all his belligerence, Barr gets a lot wrong—not just “I-disagree-with-your-interpretation!” wrong, but “Did-you-even-read-the-assignment?” wrong. For example, Barr insists that an “aspect of Executive power” vested in presidents by the Constitution “is the power to address exigent circumstances that demand quick action to protect the well-being of the Nation but on which the law is either silent or inadequate—such as dealing with a plague or natural disaster.” By way of authority, he adds: “This residual power to meet contingency is essentially the federative power discussed by Locke in his Second Treatise.”
But this recollection of Locke is flat-out mistaken. The “federative power,” Locke explains, is a nation’s power in foreign relations: “This
contains the power of war and peace, leagues and alliances, and all the transactions, with all persons and communities without the common-wealth, and may be called federative, if any one pleases.” There is no connection between Locke’s federative power and domestic contingencies.
Barr also dismisses as a “grammar school civics class version of our Revolution” that the Americans of 1776 were anti-monarchical. This is, he says, a “misguided” view because “[b]y the time of the American Revolution, the patriots well understood that their prime antagonist was an overweening Parliament.”
Among the revolutionaries who would not have understood that, however, was Thomas Paine, the author of the incendiary pamphlet Common Sense, who described George III as a “hardened, sullen-tempered Pharaoh” and the “Royal Brute of Great Britain.” Americans’ lesser displeasure with the King would have likewise been news to signers of the Declaration of Independence, who therein lodged twenty-seven separate complaints about the conduct of George III, set forth in order to demonstrate that “[t]he history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States.” Far from letting King George off the hook, the Americans’ primary gripe against Parliament in 1776 was its failure to check the King’s abuses.
Barr’s view of inviolable presidential prerogative—why he finds the idea of “shared” power among the branches of government so laughable—is the supposedly categorical distinctiveness in 1787 of the executive, legislative, and judicial powers. Yet contrary to Barr, there was no founding consensus as to the precise content of each category. For example, Alexander Hamilton, no mushy thinker on executive power, wrote that an “intermixture” of constitutional powers regarding the formation of treaties was appropriate precisely because the authority to make treaties was as much legislative as executive.
Hamilton likewise would have disputed Barr’s insistence that the vesting of “executive power” in a single President implicitly authorized our chief executive to remove any executive subordinate from office. Rather, according to Hamilton, because Senate consent would be necessary for the appointment of principal officers, “[t]he consent of [the Senate] would be necessary to displace as well as to appoint.”
One could go on and on with this, challenging much of Barr’s constitutional account paragraph by paragraph. I select these several glaring instances, however, mainly to suggest that the Attorney General would have done well to lighten up on his sarcasm and tighten up on his research. Before charging others with “mushy thinking,” he might pay due respect to evidence that contradicts his initial hypothesis.
But what shapes my reaction most profoundly is my position as a former Justice Department lawyer. I served in the Office of Legal Counsel from 1978 to 1981. The Attorneys General whose work I knew best were the Jimmy Carter appointees, Griffin Bell and Benjamin Civiletti. But what drove the Department’s institutional culture in the late 1970s, even in a Democratic Administration, was still the post-Watergate ethos of balanced professionalism established by Gerald Ford’s Attorney General, Edward H. Levi.
In both word and deed, Attorney General Levi was the anti-Barr. He would have no truck with our current Attorney General’s flagrant partisanship. Speaking of his own role, Levi insisted: “There is no half-heartedness in our effort to achieve and maintain a Department of the highest professional competence and standards, free of partisan purpose.”
Barr is pugnacious towards courts and Congress. But Levi believed in accommodation, as well as competition: “The branches of government were not designed to be at war with one another. The relationship was not to be an adversary one, though to think of it that way has become fashionable.”
Levi’s view of our evolving Constitution also contrasts starkly with Barr’s procrustean “originalism.” In interpreting the Constitution, Levi said:
One must be cautious about using . . . contractual metaphors lest they make the institutions seem too sharply defined in their powers. The provisions in the Constitution were, rather, the expression of compromises that mirror the sort of adaptation and accommodation envisioned by the process the Constitution set into motion. But there is no doubt that the separation of powers was consciously intended as a confrontation with problems to be solved, and in its new form an invention for the future.
The institutional culture embodied in these remarks—and in such initiatives as Levi’s adoption of the FBI’s first counterintelligence guidelines—was an ethos of political neutrality, institutional accountability, and pragmatism in understanding the law.
Levi’s values are what Barr sacrifices as a partisan henchman. And just as Levi’s outlook permeated his Department during his tenure and beyond, Barr’s disdain for the views of so many Americans no doubt sends a message through the ranks of his Department, elevating the force of politics over the power of professionalism. We will continue to hear Trump Administration arguments to the effect of, “It doesn’t matter if the Secretary of Commerce is lying about the census,” “Immigrant children in detention may not be entitled to blankets, soap, or toothbrushes,” and, “The whistleblower’s memo flagging possible extortion of Ukraine and a White House cover-up did not convey an ‘urgent concern’ requiring notification of Congress.” Barr has made clear that Trump’s agenda, not the Constitution, is his lodestar.
Professor Shugerman has written that Barr’s speeches cast him as both “savior and martyr” in a “Manichean culture war.” But MAGA-fying his public performance cannot magnify Barr’s stature. We challengers should wear the attorney general’s contempt as a badge of honor. But it will take years to undo his damage, and the end is not yet in sight.
Originally published by Take Care, 11.22.2019, under the terms of a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International license.