How Bill Barr and Trump triggered an insurrection in the Justice Department
Ever since taking over at the Department of Justice, Attorney General William Barr has placed himself at the center of multiple Trump-era controversies that have revealed him to be nothing short of a fringe partisan actor torching the agency's ability to serve as the nation's ultimate arbiter of justice. Most notably, Barr intervened multiple times in the rollout of Robert Mueller's two-year-long investigation into the Trump campaign's Russia ties in order to bias the American public in favor of Trump and bastardize the report's findings about Trump's malfeasance and criminal wrongdoing. Barr also indefensibly adopted Trump terminology such as "spying" and "witch hunt," helping to publicly smear the findings in the report. And finally, Barr appointed a special prosecutor to look into Trump's repeatedly debunked assertions that the FBI somehow behaved improperly when the agency launched a counterintelligence investigation into Russia interference back in 2016.
But Barr has also wielded the entire Justice Department as a bulwark against any and all congressional oversight of the executive branch. Using dodgy reasoning to underpin his fringe legal theory about ultimate executive power, Barr has repeatedly asked Trump to exert blanket executive immunity over key documents and the testimony of witnesses critical to the investigations being undertaken by House Democrats.
Finally, Barr has repeatedly presided over legally indefensible strategies in the courts, always to Trump's benefit. Barr's Justice Department, for instance, changed course in March on a GOP-led lawsuit designed to kill the entire Affordable Care Act that is presently being heard in the Fifth Circuit Court of Appeals. Although the Justice Department is charged with defending laws duly enacted by Congress and only in rare cases declines to do so, Barr's Justice Department suddenly dropped its defense of the ACA in the Texas case and filed a brief arguing that the Obama-era law should be struck down. Barr has taken a similarly unprecedented tack in the census case, calling on Justice Department lawyers to fabricate an entirely new rationale for adding a citizenship question to the 2020 census after the Supreme Court said the administration's initial argument was too "contrived" to pass muster.
This entire most recent episode, unfolding publicly in real time last week, revealed the agency attorneys assigned to the case struggling to manage Trump's abrupt turnaround on adding the question even after losing in court and being told that printing of the census without the question had begun. In some ways, it was the reverse twin of the ACA case, in which the Justice Department had completely abandoned defending a law that was perfectly legally defensible. In the census case, Trump and Barr were demanding that Justice Department lawyers concoct a defense for taking an action they clearly considered legally indefensible.
“In both, Barr directed his lawyers to make bad-faith arguments, just because Trump said so,” University of Michigan law professor Nicholas Bagley told The Washington Post's Greg Sargent. “That’s a blow to the integrity of the Justice Department and a threat to the rule of law.”
Bagley, a former Justice Department lawyer himself, made that observation just as it was becoming clear how thoroughly the department's career lawyers wanted off the case. As former acting Solicitor General Neal Katyal noted Monday night, every single trial-level expert on the case at the Justice Department pulled out of it.
"This is the canary in the coal mine," Katyal wrote. "Trump is stuck defending the census shenanigans [with] people from consumer protection division," who, he added, do important work. But they simply don't have the same expertise in defending administration policies in court that the line attorneys in the Federal Programs Branch do.
The insurrection was actually quite dramatic and spectacular. First, an initial round of career attorneys withdrew from the citizenship cases in California and Maryland. Thentwo more attorneys also wanted a public record of their exit from the Maryland case. And then they all wanted off the case in New York, too.
"Never seen anything like this," Katyal added.
Surely, the career attorneys at the Justice Department never have either. Although most of them have been called upon to make different arguments for administrations with varying legal views, they clearly had never felt they had been asked to act in such bad faith that they wondered how they could get up and look in the mirror in the morning. It probably didn't hurt that the public just recently got a glimpse of the morally reprehensible stances this Justice Department is taking when video leaked of an immigration attorney arguing that migrant kids in U.S. custody don't need toothbrushes, soap, or beds. Lawyers working on the census cases who watched one of their own defend gulag-type conditions these helpless kids are being subjected to as "safe and sanitary" likely had a chance to reflect on just what exactly they are being asked to do in the name of “justice.” And they said, No, no way. Not in my name.