William Barr

The Barr-Trump Monarchy

September 17, 2020 by Alan Bernstein 3 Comments

Unchecked power is the defining goal of Donald Trump’s presidency. When he accepted the Republican party’s nomination on July 21, 2016, he declared, “I alone” can fix “the system.” The words evoke intolerant, absolutist, political concepts, particularly monarchy. “Monarchy” means rule by one. During the twentieth century, we called this dictatorship or authoritarianism. But Trump and his allies have cloaked their view of the President’s immunity, his superiority over the law, in a religious garb that springs from deeper and more sinister roots. What support could the political evocation of such themes find in the United States of America? Two speeches by William Barr, the current Attorney General, shed light on that question.

First, there’s Barr’s exaggerated notion of presidential power. In his speech to the Federalist Society (Nov. 15, 2019), the Attorney General deplores the weakening of the presidential office. The Founders, he argues, rejected England’s notion of “an overweening Parliament” or a king limited by a royal council. Instead, the Founders established “a strong Executive, independent of, and coequal with, the other two branches of government.” Independent, yes, but not isolated from, and not superior (remember: “co-equal”) to the other branches. Having set out the problem so well, he proceeds to ignore its fundamental premise: equilibrium in conflict. Barr argues instead that, by Executive power, the Framers meant more than just “carrying into effect the laws passed by the Legislature.” Indeed, the president should have “essential sovereign functions” such as foreign relations, meeting emergency situations like a plague or a natural disaster, and, dramatically, the prosecution of war. In his haste to elevate the Executive, he omits Congress’s unique ability to declare war.

Next, he itemizes what he sees as encroachment on the Executive first by the Legislature and then by the Courts. In his opinion, the Executive should have the ability to use executive orders to bypass congress and initiate something like Donald Trump’s travel ban against primarily Muslim countries. But there are exceptions. For example, in Barr’s view, Barack Obama had no right to implement DACA, thereby “refusing to enforce broad swathes of immigration law.” The independence of the president vis-à-vis congress seems to depend on who occupies the office.

The courts also encroach on the Executive when they interfere with the debate that should take place between the President (who has veto power) and the legislature. But why would the Executive, if it is “independent” as Barr defines it, even need to debate with congress ? Besides disrupting the dialogue between the president and the congress, Barr says, the judicial branch also interferes with the President’s “prudential judgment.” The courts are mired in bothersome evidentiary standards such as the preponderance of evidence or guilt beyond a reasonable doubt. Some decisions draw on deep qualities of personal character: prudence, humility, empathy, foresight. It is therefore wrong for the courts to employ their desiccated formulae to undermine the personal judgment of the president who, alone, can make these judgment calls. Note that when Mr. Barr was making these remarks the president was Donald J. Trump. One would have to believe absolutely in rule by one to assign this much discretion to the presidential office when one of them could be a person like Trump. Barr abuses the concept of office to excuse the failures of the man who holds it.

At the same time that the Attorney General exaggerates the Executive he disparages the state. His reasons are not political but religious. In his speech to the Federalist Society, Barr contrasts “so-called progressives” to “conservatives.” Those on the left treat “politics as their religion” and “seek an earthly paradise.” In Barr’s view, progressives are deceived by a false, secular religion. “In pursuit of an abstract ideal of perfection,” their “deific end” justifies “whatever means they use.” Typically, Barr stigmatizes all liberals with the excesses of history’s worst examples: those who resort to “any means.” His description may fit Leninists or Stalinists, but not left-of-center Americans. In contrast to leftist, Machiavellian ruthlessness, conservatives, he intones, seek the “proper balance of freedom and order necessary for the healthy development of natural civil society and individual human flourishing.” For Barr, therefore, everything depends on your ultimate goal. Do you “seek an earthly paradise” or pursue a heaven properly located in the other world? So stark a dichotomy is wrong. The Attorney General deliberately ignores the large numbers who seek to improve conditions on earth (some call it “repairing the world”) such as the climate or the distribution of wealth or opportunity, nutrition or healthcare— ethical goals that religious leaders of many faiths have advanced for centuries.

The Attorney General elaborates on his contrast between secular and religious aims more explicitly in his speech to the Law School at the University of Notre Dame (October 11, 2019). Presenting what is actually a top-down argument, but pretending to build from the ground up, Mr. Barr asserts that the founders removed control over citizen behavior from the government and left it to the character of individual citizens. “If you rely on the coercive power of government to impose restraints [on individual rapacity], this will inevitably lead to a government that is too controlling, and you will end up with no liberty, just tyranny.” Still, “unless you have some effective restraint, you end up with something equally dangerous, licentiousness . . . another form of tyranny.”

To escape the tyranny of licentiousness, Barr invokes moral law which he claims is based on natural law, the visible manifestation, in his view, of divine law. This would serve as the foundation for the absoluteness of his conception. Any abandonment of the moral law, as disseminated by religion, harms society. Human freedom, then, would be subject to authoritative interpretation of divine law, not by the people or by their representatives, but by experts in religion. Consequently, he attacks what he calls “modern secularists” for their “moral relativism,” which, by definition, is not absolute. Individuals who deviate from the moral law should, in his opinion, have to suffer the consequences. Unfortunately, secularists do not allow individuals to pay the price of their wrong behavior because, he says, the state cushions them. By weakening moral restraint, the state actually enables bad behavior. Therefore, in Barr’s view, the state acts against the moral law which flows downward like grace from God, not, as the Founders saw the system they established, upwards from the sovereign people. If we did not have popular sovereignty why would the Framers have guaranteed the people the freedom to seek redress of grievances against the government and reserved to the states and the people all powers not specifically assigned to the federal government as specified in the First, Ninth, and Tenth Amendments? Barr is wrong about our constitution. His hierarchy of moral, natural, and divine law is not political philosophy, it is theology. Worse, it is also political.

When China’s Xi Jinping got himself voted president for life, Trump joked (March 3, 2018), “I think it’s great. Maybe we’ll have to give that a shot some day.” Later, on July 22, 2019, in China, and pretending to be the only president ever to tackle delicate trade issues, Trump joked “I am the Chosen One.” Following the “I alone” statement, this pattern is not random. These are not jests—especially to the Evangelical component of his base that is prone to believe in them. The President can later deny that he meant them, but receptive ears hear them with gratitude and faith. Always credit the President’s rapturous exclamations over his later efforts to walk them back. They are far closer to his actual meaning than the revisions scripted for him by a circle of advisers in charge of damage control. Nor is Trump alone in his belief that he is chosen. Caleb Parke of Fox News wrote two articles (May 13 and June 25, 2020) that identify religious leaders such as Franklin Graham, who either share the President’s delusion or helped foster it in the first place. Widespread among Evangelicals is the idea that God appointed Trump to save the country. Parke lists prominent members of the government who agree, including Secretary of State Mike Pompeo, Energy Secretary Ben Carson, and former White House Press Secretary Sarah Huckabee Sanders.

How does this relate to William Barr? The hierarchy of moral to natural to divine law did not spring from his own head. It dates from the Middle Ages and includes an element not even he dares acknowledge. Without saying so, Barr is reading royal theocracy, better known as the divine right of kings, into our constitution. Here is the theory. Just as the universe has one Creator and one providential Ruler, just as reason rules the soul, and the heart the body, so should one divinely guided power rule the world: the emperor (in the early days) or the king. Less scholastically, there was this maxim: “The law of the land is in the breast of the king.” This unitary principle does belong to our constitution when applied to the carefully defined Executive, but not when carried any farther, as Barr does. When blended with Trump’s so-called jests about being unique and ruling for life and exploiting the religious overtones of being the chosen one, the threat of a supposedly divinely guided monarchy gets way too loud for this American’s ears. If you want to know what spirit animates our country, let’s go back to Thomas Paine: “In America, the law is king.”

Has this monarchist infection gone beyond the inner circles of Trump’s cabinet or the very committed Evangelical base? Consider what happened in July, 2020, when the Republicans abdicated their responsibility to define a program for the coming administration, should their candidate win the election. The pandemic prevented the Platform Committee from meeting in person, but not from deliberating. Instead, like faithful serfs to a lord or like good subjects of a sovereign, they said that if had they met, the RNC “would have undoubtedly unanimously agreed to reassert the Party’s strong support for President Donald Trump and his Administration.” Really? “Undoubtedly unanimously?” This is intellectual bullying. It allows no room for dissent or even doubt. The party assimilates its goals to the notions of its head, like the limbs of a body. This is monarchy, especially when the president is assumed to be an instrument of God or, as Barr puts it, a defense against godless, secular, moral relativism.

Since we, the people, have the power, we should employ it against this monarchical threat to our republic and vote these deluded people out of office.

Substantive Wrongs

June 7, 2020 by Alan Bernstein 12 Comments

June 6, 2020

76^th Anniversary of Normandy Invasion, 1944.

A conservative person I deeply respect recently gave me this challenge. “Put aside Donald Trump’s vicious character and objectionable personality and tell me what he has actually done wrong.” So let’s ignore his psychology and focus on his behavior. Headings will make this easier, though some items will overlap.

A. Isolates the country internationally.

In a 2017 conversation with Russian ambassador Segei Kislyak and foreign minister Sergei Lavrov, the President unwittingly revealed Israel as the source of highly classified intelligence about plans for terrorist attacks by ISIS.
Kowtowed to dictators: Putin (Helsinki), Kim (Singapore), Xi (G20 in Osaka), Erdogan (Dec. 4, 2019, the White House), thus undermining our democratic traditions.
Diminishes support for NATO, our bulwark against Russia, and co-defender of our democratic ideals.
Withdrew from international accords limiting Iran’s nuclear development (the Iran Deal).
Abandoned the Kurds in Syria, our allies against Saddam Hussein, Al-Qaeda, and ISIS, to curry favor with Recep Tayyip Erdogan, who opposes them in Turkey.
Weakened U. S. support of Ukraine against Russia.
Mercantilism (economic nationalism). Trade wars. Tariffs on all goods from China, on steel, aluminum from Canada and Mexico.
His exaggerated emphasis on a Southern border wall weakens ties with our neighbor, Mexico.
One good thing: opposes China’s theft of intellectual property.

B. Weakens environmental safeguards:

Removes many environmental checks on industries — unwise given global climate change.
Supports coal and petroleum industries, which emit carcinogens and carbon dioxide, thereby causing disease and warming the planet.
Withdrew from the Paris Climate Agreement, the beginning of an effort to attack a global problem on a global scale.
Cuts budget of Environmental Protection Agency.

C. Exacerbates hatred.

After the “Unite the Right” Rally in Charlottesville, August 11-12, 2017, Trump, in a misguided effort to please everyone, declared “There were very fine people on both sides.” Note that one of the organizers of the rally took the internet alias, Crystal Knight, a punning allusion to the first, nationwide action against Jews in Nazi Germany, Kristallnacht, 9-10 Nov, 1938. Prior to the march that killed a counter-protester, the demonstrators prepared in neo-Nazi, White Supremacist, and Klan meetings and, online, declared their despicable loyalties. As they marched, they chanted, “Jews will not replace us.”
Stigmatizes categories of people with pejorative language: Muslims (“terrorists”), Mexicans (“animals, rapists, drug dealers”). Uses criminal or terrorist fringe, like MS-13, hardly a typical group, to characterize whole populations. Stigmatizes women, “who will let you do anything if you’re famous.”
Fostered cruelty against immigrants as a deterrent, thus undercutting U. S. reputation as a refuge for the persecuted (like many of my professors in graduate school).

D. Oppresses the needy.

Although I cannot find the actual source, Ronald Reagan is frequently credited with expressing this sentiment: “Protecting the rights of even the least individual among us is basically the only excuse the government has for even existing.” Donald Trump fails to meet this deliberately minimized standard.
Oppresses women worldwide by eliminating reference to sex education, contraception, and abortion from international aid programs. He applies this “gag rule” at home and abroad.
His tax cut of Dec. 22, 2017 increased the national debt although it distributed its benefits inequitably. It (1) reduced corporate tax rate from an average in 2012 of 29% to a 22% stipulated rate (not counting deductions) and (2) limited deductions for state taxes, which impacts states that tax more heavily. Upshot: makes it more expensive for liberal states to offer social services.
Restructured Affordable Care Act. (1) Removed the individual mandate, which thereby reduced the size of the insurance market and increased premiums for sicker individuals. (2) Encouraged states to restrict Medicaid expansion (a benefit for the poor) by, among other things, adding work requirements. (3) Allowed states to essentially substitute their own Medicaid programs. Because many states are required to balance their budgets, the removal of federal aid reduces medical help to the poor.

E. Exaggerates Presidential Authority.

Banishes note takers from his summit meetings. Without notes, we cannot hold our leaders accountable. We cannot “trust but verify” (Ronald Reagan’s advice) whatever the foreign leader might have agreed to, so the arrangements cannot be enforced. This violates the first of Woodrow Wilson’s 14 Points. “Open covenants of peace, openly arrived at. . . . Diplomacy [should] proceed always frankly and in the public view.”
Appointed Brett Cavanaugh to the Supreme Court because he wrote an essay exaggerating the powers of the executive branch and despite fact he was beneath inclusion on a list of 25 recommended by the conservative Federalist Society.
Appointed William Barr who, as an AG hopeful, wrote a brief (probably much like this speech) designed to augment the unitary executive, which misrepresents the president’s power to act alone.
Circumvented congressional power over the budget and declared an emergency, Feb. 15, 2019, where none existed, to obtain funding for a border wall.
Preference for acting heads of federal agencies, thus avoiding need for congressional advice and consent — a fundamental aspect of constitutionally mandated checks and balances.
Demanded loyalty from FBI Director James Comey even though Comey’s revival, in October, 2016, of the case against Hillary Clinton over her private email server was instrumental to his election. As the FBI is, in principle, an independent agency, a demand of loyalty is not appropriate. Loyalty pertains more to feudal lords than to constitutionally limited presidents.
The Mueller investigation into the possible collusion of the Trump campaign with Russian interference in the 2016 election, “does not exonerate” Donald Trump on 10 counts of obstructing justice. Because the president cannot be exonerated of obstructing the investigation into his collusion with the Russians, his participation in the collusion remains unresolved. Our president should be above suspicion of collusion with a foreign power to secure his own election.
In Helsinki, on July 16, 2018, he naively, publicly, embarrassingly, accepted Vladimir Putin’s guarantee that the Russian president had not meddled in our 2016 election despite evidence to the contrary, which, at that time, was growing. At the very least, he should have declared it an open question and thanked Putin for his opinion.

F. Errors of omission. Our president fails to solicit, engage, or heed information from experts in science, medicine, policing, diplomacy, international law, and military affairs. He ignored early signs of the danger from the Coronavirus, redrew the path of Hurricane Dorian contrary to expert projections, advised police not to shield heads of arrestees being put into cars, advised ingesting bleach to treat Covid-19, denies the status of refugees despite the international standing of the right to sanctuary, claims noise from wind turbines causes cancer, ignored CIA station chief in Iraq prior to abandoning the Kurds in that country. “Once again, we’ve turned our back on a loyal ally, an ally that not just shared our ideology and our goals, but actually bled for the United States on the battlefield. . . . The Turkish military was poised and immediately filled the vacuum,” said veteran Doug Wise.

G. Tells lies: This heading violates the rules of this exercise because the president’s mendacity is part of his character. Still, it harms the country when a president makes untrue statements — especially if he does so often. A Republican supports this observation here. And here is a link to the fact-checkers of the Washington Post.

In conclusion: It’s not true that character and personality don’t matter. Presidents should exemplify a leadership that emanates from probity, courage, service, patriotism, and statesmanship.

Static Action

April 15, 2020 by Alan Bernstein 9 Comments

I wrote this essay in early April, 2020, just as physical distancing was emerging as a way to combat the spread of the novel coronavirus. The nation’s fate in this pandemic must be understood in the context of Donald Trump’s administration. The personal reality he has constructed undercuts the country’s medical experts’ efforts at fact-gathering and analysis. President Trump and key members of his administration have suppressed the rule of law, the balance of powers, and open debate. The President and his supporters consistently deny the scientific evidence of global warming. (By the way, I don’t call it “climate change.” If the temperature of the oceans rises, that’s a global phenomenon, not a variation in climate.) They deny the intelligence community’s evidence of Russian interference in the 2016 election. Attorney General William Barr (March 24, 2019) gave a misleading summation of the Mueller Report, and Mueller himself wrote a “conclusion” far weaker than what his own team’s evidence required (April 18, 2019).

In early January, 2020, President Trump’s Deputy National Security Adviser Matthew Pottinger, a former intelligence officer in the Marines, and a former Wall Street Journal correspondent in Hong Kong, learned from an epidemiologist there that the novel coronavirus, “which originated in the city of Wuhan, was being transmitted by people who were showing no symptoms.” (NYTimes, April 12, A1, 13-15 at p. 14 B). For Matthew Pottinger’s impressive career, see this link.) Thus, a Hong Kong doctor, during months of anti-China demonstrations in that city, revealed that China was covering up a more rapid spread of the disease than merely tracking the symptoms would indicate. The President did not wish to alarm the American people. At the same time, he was trying to conclude a trade deal with China, so he did not wish to upset the Chinese government. He was enduring the Senate’s impeachment trial. Even though his acquittal was a foregone conclusion, surely this was a difficult time for him. These are understandable distractions, but this sympathy can go too far. He is president of a republic, first among equals, not an isolated individual. The President’s premise is that nothing goes wrong in Trump’s America, and when it does, the fault lies elsewhere. The threat of an invisible pandemic should override the president’s ambitions on trade, his political fate, or his popularity ratings. As this article in the Wall Street Journal shows, President Trump’s priorities have hampered the doctors and scientists working to protect the public and to devise measures effective against COVID-19.

Nonetheless, following the advice of medical experts, a vast proportion of the U. S. population now cooperates by “sheltering-in-place” to avoid catching or spreading the coronavirus. There is naturally some resentment of those who violate the quarantine. Critics of those who, without good reason, refuse to shelter in place contrast our peers to the generation that fought WWII by saying “My grandparents went to war all around the world to make our country safe yet we refuse to help by staying home.” Right. Still, the coronavirus is a new threat that arrives in the midst of this broader, Trumpian crisis — less life-threatening in the short term, but more dangerous to the freedom we Americans cherish. So “just staying home” even though helpful in fighting the coronavirus, is not enough for the overall situation.

We must not let the fight for physical health become a moral decline. We’re in a weird situation: active cooperation by sheltering in place can become a sin of omission. We can’t just shrug and say, “that was something I couldn’t change.” The question remains: If culpable complacency is suicide, what is to be done? I asked that question once to my skeptics’ discussion group, and two folks roared back, “Ring doorbells. Get the hell out there.” Electoral politics. That may not be enough. We can bring change. With intellect, resilience, creativity, and resolve; with facts, and reason, and a clear view of the world as it is, we can devise constructive actions. Until the virus is somewhat tamed and it’s safe to go out, we must convert our physical isolation into action. We can donate online to worthy causes and candidates whose priorities we share. Even more important: we can write. They say “the pen is mightier than the sword,” but it might not be mightier than the lie. What we can do is expose the lie. Speak, write, and tweet the truth — often. Write the truth (very concisely) on a picket sign and, when the time comes, march.

In defense of science, UC Berkeley, 4/22/2017

I hope these lines encourage many to act along with me, but there’s a proviso. We must convince others. Self-congratulatory circles have some benefit, but they risk being no more than collective isolation. I found an important clue in a New York Times opinion piece by Viet Thanh Nguyen. “What this crisis has revealed is that, while almost all of us can become vulnerable — even corporations and the wealthy — our government prioritizes the protection of the least vulnerable.” That formulation is too cryptic to use in exactly those words, but it is at the core of our troubles. Expound that truth as far as possible and we will burst from this confinement with new drive. We will strengthen our empathy and acknowledge that those who sheltered in place and those who bring them their food and hook up their oxygen have bonded, recognized the mutual responsibility their relationship demands, and will negotiate a far more equitable social contract.