Now, if you didn’t already think Barr was failing to fulfill his oath to enforce the laws as the people’s lawyer (not Trump’s lawyer), this latest episode might do it. Remember that Barr already substituted his own “exoneration” of Trump on obstruction of justice (something the Justice Department’s guidelines specify should be a matter for Congress and not for the department), refused to use summaries that Robert S. Mueller III’s team prepared in favor of his misleading summary (which he later claimed was not a summary), has failed to turn over the report or Mueller summaries to Congress in a timely manner and has refused to make an unredacted version of the report available to Congress. All in all, it’s a shabby record of politicizing the Justice Department in a way that his predecessors avoided.
What’s Congress to do? First, see what the redactions look like. Second, go to court if need be to obtain a subpoena (after waiting to see if Barr holds out). Third, bring Mueller in to testify, asking him details about the report but also about Barr’s letter and conduct.
If — and it is a big if — Barr has misrepresented the report (including the baseless accusation of “spying”), prevented Congress from fulfilling its constitutional obligations and/or consulted with the White House to determine what to redact (i.e. assisted in a coverup), it would be a serious breach of his obligations to enforce the law. He would actually be hindering its enforcement.
At that point, lawmakers should demand Barr resign. Unless by some miracle he follows that advice, the House, if the above conditions are met, should move to impeachment hearings. The Justice Department under his leadership at that point would have lost its credibility, and the precedent would have been set for future attorneys general to obstruct (just to pick a verb) the investigation of a special counsel.
Constitutional lawyer Laurence H. Tribe tells me, “Attorney General Barr is surely among the ‘civil Officers of the United States’ subject to removal pursuant to the impeachment clause, Art. II, §4, and I don’t doubt based on his March 24 letter, his subsequent shifting and shifty pronouncements, and his disgraceful testimony yesterday and today (including his wild and unsubstantiated accusations against the Obama Justice Department) that, whatever highly redacted document he releases as Mueller’s report next week, Barr has been gravely abusing the powers of his office, possibly (although not, in my view, certainly) to the degree of committing ‘high Crimes and Misdemeanors.’”
However, Tribe and Joshua Matz argue in their book “To End a Presidency” that impeachment is a political decision. Tribe says, “The House has discretion whether to impeach someone whom it believes committed an impeachable offense and, in fact, has a constitutional responsibility to consider the consequences of doing so.” He continues, “Exercising that discretion, I don’t think the House should undertake to impeach the current attorney general, although I wouldn’t blame anyone in Congress who felt a strong temptation to do so based on how he has conducted himself in office thus far.”
Only one Cabinet member has ever been impeached: William Belknap, President Ulysses S. Grant’s secretary of war. (He was acquitted.) Nevertheless, if there are situations in which Trump compels Cabinet members to lie, manipulate Congress and thwart the law, it should be considered seriously on a case-by-case basis.
Whether or not Barr (or anyone else) is actually removed is of secondary concern. (Unlike Trump, Barr isn’t on the ballot in 2020, and most voters aren’t going to change their vote based on punishment of a Cabinet member.) It’s important for the House to educate the public on the obligations of Cabinet members and to give Cabinet members second and third thoughts about defying the law. It’s also important for voters to see if and how Republican senators defend Barr’s conduct. A gaggle of them will be up for reelection in 2020.
Consider that Treasury Secretary Steven Mnuchin so far has refused to turn over six years of Trump’s tax returns to the House Ways and Means Committee chairman as expressly required by statute. If he continues to refuse, the House can issue a subpoena. Having in its back pocket the power of impeachment might go a long way toward encouraging Mnuchin to comply.
We reach this acute crisis in constitutional governance because Trump and his third-string Cabinet members show contempt for the rule of law and a willingness to blatantly advance falsehoods. In extraordinary times, House Democrats should consider all of their powers — oversight, subpoena and, where appropriate, impeachment.
Let’s hope that Barr promptly turns over the report with a scant number of redactions. If not, the House needs do everything possible to defend the rule of law and the public’s right to know whether their president was negligent with national security and/or tried to willfully thwart a valid investigation.