The Economist - USA (2020-05-16)

The EconomistMay 16th 2020 United States 23

“W

here’s my Roy Cohn?” President

Donald Trump asked in early 2017,

after Jeff Sessions, his first attorney-gen-

eral, recused himself from the probe into

Russian election-meddling. Mr Sessions

explained that, since he was involved with

the campaign, he should not be involved in

any campaign investigation.

Mr Trump had no patience for such

qualms. He wanted a man who would serve

his interests as the legendarily fierce Cohn,

a private lawyer in New York, had done—

and as he believed Robert Kennedy had

done for his brother John, and Eric Holder

had done for Barack Obama. In William

Barr (pictured behind the president), Mr

Sessions’s replacement, Mr Trump seems

to have found what he sought.

The attorney-general is America’s top

law-enforcement officer, presiding over

the Department of Justice (doj). Partly by

statute, but mostly by norm and practice,

both the doj and its boss, particularly since

Watergate, maintain a degree of indepen-

dence from the president, unlike other cab-

inet departments. This independence is

not absolute, nor could it be when the pres-

ident appoints, and can fire, the attorney-

general, his two top deputies, those leading

the department’s divisions and the prose-

cutors heading each of the 93 usattorneys’

offices around America and its territories.

To some extent, every president’s doj

reflects his policy preferences and priori-

ties. Mr Obama’s vigorously pushed to ex-

pand voting rights and civil-rights protec-

tions, for instance, and George W. Bush’s

filed more briefs favouring religious liber-

ty than Mr Obama’s.

But the department also defends settled

federal law, and its career lawyers pride

themselves on defending statutes they

may disagree with politically. Mr Obama’s

doj, for instance, backed the Defence of

Marriage Act, which defined marriage as a

union between a man and a woman, even

though Mr Obama had called for its repeal.

Mr Sessions upended this norm: his dojre-

fused to back the Affordable Care Act’s con-

stitutionality. A former department lawyer

says this reversal was “unheard of”.

Since Watergate, most attorneys-gen-

eral and the department’s civil servants

have jealously guarded their remove from

politics. As a veteran of its civil-rights divi-

sion explains, “Most of the people who

work there, and it’s true of me too, believe

in the mission of representing the United

States. We believe that justice should be

carried out even-handedly. That’s what it

means to have a democracy.” During her

confirmation hearings Loretta Lynch, Mr

Obama’s second attorney-general, repeat-

edly promised independence. Griffin Bell,

Jimmy Carter’s first—and the first truly

post-Watergate one—screened all commu-

nication from the White House “to insure

that any improper attempts to influence a

decision” did not reach senior officials.

Mr Trump brushes aside such niceties.

“I have an Article 2,” he has said, referring

to the constitution’s article which vests ex-

ecutive power in the president, “where I

have the right to do whatever I want as

president.” Norms and judicial precedent

disagree. But Mr Barr has long held a simi-

larly maximalist view of executive power.

Months before his appointment he

wrote a memo to Rod Rosenstein, then the

deputy attorney-general, explaining that

the probe into Russian meddling “cannot

provide a legitimate basis for interrogating

the president,” because, in Mr Barr’s view,

“the President alone constitutes the Execu-

tive branch,” has “all-encompassing” au-

thority over federal law enforcement and

cannot commit obstruction of justice

through the lawful exercise of his power—

such as firing an official involved in an in-

vestigation into presidential misconduct.

Since taking over, Mr Barr has stated

that the Russia probe was “one of the great-

est travesties in American history,”

launched “without any basis...to sabotage

the presidency.” The doj’s independent in-

spector-general found the investigation

justified, and executed without bias. That

did not mollify Mr Barr, who has assigned

John Durham, a federal prosecutor, to look

into its (well-established) origins.

He has intervened to press for a lighter

sentence for Roger Stone, a Trump cam-

paign adviser convicted of witness-tam-

pering and lying to Congress. On May 7th

he dropped a case against Michael Flynn,

Mr Trump’s former national security advis-

er. The dojargued that it could not “prove

its case beyond a reasonable doubt”—de-

spite the fact that Mr Flynn had pleaded

guilty and accepted responsibility in open

court for lying to federal investigators. But

his unusual move has encountered unusu-

al resistance: the sentencing judge has ap-

pointed a former prosecutor to oppose the

doj’s motion, and may even be mulling a

perjury charge against Mr Flynn.

Enemies, beware

Both of those decisions by Mr Barr

prompted dojlawyers to withdraw from

the cases they helped prosecute. Mr Trump

is now pushing an “Obamagate” theory that

Mr Obama and his vice-president, Joe Bi-

den, orchestrated the Russia investigation

to hobble him.

Many worry that the next step will be

using the dojto pursue Mr Trump’s ene-

mies. More than 2,000 former employees

have signed a letter calling on Mr Barr to re-

sign, and for Congress to censure him for

his “repeated assaults on the rule of law”.

The civil-rights-department veteran says

that morale has plummeted. “People I talk

to [at the doj] feel like the institution is be-

ing damaged...The notion that government

lawyers act in a non-partisan way to en-

force the law is being assaulted.” Such dam-

age is much easier done than undone. 7

WASHINGTON, DC

In William Barr, Donald Trump has found his Roy Cohn, alas

The rule of law

Friends with benefits