28 The New York Review
who, on matters of faith and morals,
may create doctrines that are infallible
and therefore unquestionable. These
include the bans on contraception,
divorce, abortion, homosexual sex, and
same- sex marriage. As a devout Cath-
olic with links to the powerful Opus
Dei movement, which galvanized the
successful reaction against the liberal-
izing currents within the church, Barr
holds to these principles as both arti-
cles of religious faith and bulwarks of
the social order. In this, he is a central
figure in the ever- growing influence of
right- wing Catholicism under Trump,
demonstrated yet again in his nomina-
tion of Barrett to the Supreme Court.
From the beginning of his political
career in the administration of George
H.W. Bush, in which he served as assis-
tant attorney general, deputy attorney
general, and eventually attorney gen-
eral, Barr’s biggest concern has been
to assert the rights of a quasi-papal
presidency. In a for- the- record inter-
view with the University of Virginia’s
Miller Center, Barr recalled that, hav-
ing worked on Bush’s campaign, he was
brought into the administration to lead
the Office of Legal Counsel because
the head of Bush’s transition team,
Boyden Gray, “was intent on getting
someone in that position who believed
in executive authority.”
“Believed in” is important here.
Barr’s understanding of executive
authority is no more a matter of con-
stitutional reasoning than a zealous
Catholic’s acceptance of papal infalli-
bility is a result of cool biblical analysis.
It is a matter of faith. Barr explained
in that UVA interview why he believed
that Bush had the power to go to war
against Iraq after its invasion of Ku-
wait without seeking the approval of
Congress:
First, I believed that the President
did not require any authorization
from Congress, and I believed
that the President had constitu-
tional authority to launch an at-
tack against the Iraqis. But I also
knew that it didn’t much matter
what I thought, because that’s what
he was going to do. He believed
he had the authority to do it, and
that’s ultimately more important
than what I believe.Barr’s point here is that, even if he him-
self had believed that Bush could not
declare war on his own, that would not
matter. What matters is what the presi-
dent believes. If he has faith in his own
authority, the job of his lawyers is not
to question that faith but to defend it.
This is what makes Barr the perfect
enabler of authoritarianism. The law,
in his eyes, does not constrain the pres-
ident’s will but rather serves it. This is
precisely, according to Barr’s own de-
scription, what happened in the case of
the first Iraq war. At a high- level meet-
ing, Bush asked him directly whether
he as president had unilateral author-
ity: “I’m sort of flattered that he asked
me a cold question without having dis-
cussed it with me first, because it meant
he knew what answer I was going to
give him.” Bush knew the answer be-
cause, in Barr’s world, when the presi-
dent asks if he can do what he wants to
do, the answer is always yes.
What must be understood about
Barr is that he is not a lawyer in the po-
litical arena. He is a political ideologue
and operative who happens to function
through the law. In that same meeting
with Bush, Barr went on to advise him
that, even though he had no legal re-
quirement for congressional approval,
he should, for purely tactical reasons,
seek it anyway. Dick Cheney, then de-
fe n s e s e c r et a r y, i nt e r ve n e d t o a d m o n i s h
Barr for straying into political advice.
Barr, on his own account, replied, “No,
I’m giving him both political and legal
advice. They’re really sort of together
when you get to this level.” In truth, for
Barr, they are much more than “sort of
together.” They are inextricably
entwined. His function in public
life, as he has always understood
it, is to provide legal justification
for the untrammeled exercise of
power by Republican presidents.
And for all his air of gravity,
Barr is utterly shameless in his
pursuit of this calling. He is will-
ing to lie to the American people
and to flout the very principles
he claims to uphold.
That, after all, is precisely why
Trump appointed him as attor-
ney general in February 2019.
Trump, in his rage against his
original appointee, Jeff Sessions,
insisted that the primary job of
the attorney general is to protect
the president from scrutiny by
law enforcement agencies and by
Congress. This, in effect, is what
Barr promised to do. In the long
unsolicited memo that served as
his job application, Barr wrote:Under the Constitution, the
President’s authority over law
enforcement matters is neces-
sarily all- encompassing, and
Congress may not exscind cer-
tain matters from the scope
of his responsibilities.... The
President’s law enforcement
powers extend to all matters,
including those in which he
had a personal stake.Moreover, the president’s motives in
exercising these all- encompassing pow-
ers cannot be questioned, even if they
are ostensibly corrupt and self- serving,
since to do so wouldcast a pall over a wide range of Ex-
ecutive decision- making, chill the
exercise of discretion, and expose
to intrusive and free- ranging exam-
ination... the President’s (and his
subordinate’s) subjective state of
mind in exercising that discretion.Barr’s pitch to Trump was honest
enough—if you want someone to apply
a veneer of intellectual respectability
to the unaccountable exercise of your
own desires and instincts, I’m your
man. There might be something to
admire in the consistency of Barr’s ex-
tremist position over five decades. But
even this is to give him too much credit.
The principle involved here is not a de-
votion to a particular interpretation of
the constitution. It is his far deeper de-
votion to the unaccountability of spe-
cifically Republican occupants of the
White House.
Barr is consistent only in his hypoc-
risy. As David Rohde has pointed out
in The New Yorker, Barr described as
“preposterous” the argument made
by Bill Clinton’s legal team during theWhitewater investigation that he was
not obliged to comply with a subpoena
from a Senate committee demanding
that he hand over documents. Yet Barr,
as Trump’s attorney general, refused
to appear before the House Judiciary
Committee and repeatedly refused to
hand over documents requested under
subpoena by the House Oversight and
Reform Committee.
In a 1998 interview Barr said that
he was “disturbed” that then attorney
general Janet Reno had not defended
the Whitewater independent counsel
Ken Starr from “hatchet jobs” and “adhominem attacks.” Trump’s constant at-
tacks on Mueller evoked no such distur-
bance. In a recent speech, Barr piously
proclaimed that the “criminalization of
politics is not healthy.... The political
winners ritually prosecuting the polit-
ical losers is not the stuff of a mature
democracy.” Yet he seemed completely
untroubled by Trump leading chants of
“Lock her up!” aimed at Hillary Clin-
ton. Barr says that “the essence of the
rule of law is that whatever rule you
apply in one case must be the same rule
you would apply to similar cases.” By
that standard, Barr’s commitment to the
rule of law is self- evidently negligible.
Can we rely, then, on the Catholic
conscience that he claims, quoting Fa-
ther John Courtney Murray, is “gov-
erned by the recognized imperatives
of the universal moral order”? That
universal moral order does not, appar-
ently, prohibit the telling of lies to hun-
dreds of millions of citizens. In a March
2020 opinion, senior US District Court
Judge Reggie B. Walton, an appointee
of George W. Bush, wrote that Barr
“distorted the findings in the Mueller
Report” when he issued a grossly mis-
leading “summary” before the report
itself was published, in order to “create
a one- sided narrative about the Muel-
ler Report—a narrative that is clearly in
some respects substantively at odds with
the redacted version of the Mueller Re-
port.” In Where Law Ends Weissmannrecords his shock that “Barr had spun
our findings for political gain, at best,
and lied for the president, at worst.” He
had of course done both.
How does Barr square such conduct
with his identification of “moral relativ-
ism” as the great enemy of society, the
theme of his speech at Notre Dame?
The answer illuminates the deep reli-
gious structure of Barr’s ideology. The
term is a touchstone for the conserva-
tive Catholic reaction against the liber-
alizing tendencies of Vatican II in the
1960s. It has a rhetorical advantage—
by being against “moral relativism,”
one does not have to say that one
is in favor of moral absolutism.
But its primary purpose is to
delegitimize the republican view
of democracy as an arena that is
neutral with regard to religious
identity and belief. It divides cit-
izens into the proper ones who
recognize the authority of di-
vinely inspired absolutes (prohi-
bitions on abortion or same- sex
marriage, for example) and the
improper ones who do not.
Barr’s core belief, shared by
Vice President Mike Pence and
by the wider evangelical brand
of religious authoritarianism, is
that the entire American polity
is possible only if its citizens are
not just religious believers but
believers in an absolutist “tran-
scendent moral order which
flows from God’s eternal law.”
Barr claims that the framers of
the Constitution believed thatfree government was only
suitable and sustainable for
a religious people—a people
who recognized that there
was a transcendent moral
order antecedent to both
the state and man- made law
and who had the discipline to
control themselves according
to those enduring principles.This “religious people” is, in Barr’s
explication, variously “Christian” or
“Judeo- Christian.” It does not include
members of other faiths, let alone
atheists or agnostics. Just as impor-
tantly, it does include those guilty of
what Barr openly calls in that speech
“apostasy.” Apostates include, for ex-
ample, the 77 percent of Democratic
and Democratic- leaning Catholic adults
who think abortion should be legal in
all or most cases, and who have there-
fore committed the mortal sin of moral
relativism. Among them is the man who
might become only the second Catholic
president in US history, Joe Biden, and
the voters who might make him so.
All of these people are not, in Barr’s
view, merely misguided. Their indis-
cipline condemns them to an exterior
darkness, beyond the realm of the au-
thentic citizenship of the holy elect.
Their very existence undermines the
true nature of the United States. Since
“free government” is not “suitable [or]
sustainable” for those who do not ac-
cept the divine law as interpreted by
conservative Christians like Barr, it can
exist only in their absence. The logic is
not just that their votes are outside the
rightful order of the American state
but that they are the malign means to
undermine it. To suppress those votes
would be to uphold the authority not
just of Donald Trump, but of God. Q
—October 7, 2020The British cover of Donald Barr’s 1973 novel
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