Our attorney general is a fanatic -- and it's even worse than you think

Attorney General Bill Barr is by far the most dangerous member of Donald Trump’s inner circle of neofascists, white supremacists, grifters, liars and enablers. Not only is Barr a hardline proponent of the “unitary executive theory,” which promotes a broad expansion of presidential power, but he is also a true believer in the virtue and necessity of establishing a Christian theocracy in America.

Both beliefs threaten the core principles of what remains of our democracy in the age of Trump.

Barr’s embrace of the unitary executive theory is well known. The theory, which has long been a favorite of the radical right, has its roots, innocently enough, in Article II, Section 1 of the Constitution, which provides: “The executive Power shall be vested in a President of the United States of America.”

Unitary acolytes frequently invoke Alexander Hamilton’s arguments in favor of a strong chief executive, set forth in Federalist Paper No. 70, as proof that the founding fathers intended to endow the president with sweeping controls.

But while the Constitution clearly establishes a single-person presidency as opposed to a committee, unitary extremists like Barr actually hold skewed and alarming views of the Constitution. As professors Karl Manheim and Allan Ides of Loyola Law School, Los Angeles, observed in an oft-quoted 2006 academic paper:

“In fact, the theory of the unitary executive is anything but an innocuous or unremarkable description of the presidency. In its stronger versions, it embraces and promotes a notion of consolidated presidential power that essentially isolates the Executive Branch from any type of congressional or judicial oversight. And it is much more than an academic theory. Rather it is an operative way of thinking about and applying Executive Branch power that has had and will continue to have real-world consequences for our republic and for the international community.”

As a philosophy of government, the unitary theory was articulated as an explicit doctrine during the presidency of Ronald Reagan. In a book-length policy analysis published in 1981, titled Mandate for Leadership, the Heritage Foundation urged Reagan to curb the independence of federal agencies and centralize policymaking in his hands.

Among the early champions of the theory was Ed Meese, who served as counselor to the president in Reagan’s first term in office and as attorney general in his second term. As he explained in his 1992 book, With Reagan: The Inside Story, Meese urged Reagan to maintain tight oversight over all executive-branch agency appointments to ensure that “our appointees… [are] the President’s ambassadors to the agencies, not the other way around.” Meese also advised Reagan to use presidential signing statements to augment his power by adding his views to the official legislative histories of statutes passed by Congress.

Meese joined the Heritage Foundation in 1988. Trump awarded him the Presidential Medal of Freedom in October 2019.

Samuel Alito was another early devotee of the unitary theory, leaving his imprint in a 1986 memorandum written while he was a deputy assistant attorney general in the Office of Legal Counsel (OLC). In the memo, Alito suggested that presidential signing statements include the president’s interpretation of the constitutionality of federal laws. He also advised that such interpretations be followed by all executive departments and agencies. In 2006, Alito was confirmed as an associate justice of the Supreme Court.

Barr made a name for himself in unitary theory discourse in 1989, at the outset of the George H.W. Bush administration. Following his appointment as an assistant attorney general for the OLC, Barr penned a 10-page analysis aimed at combating what he claimed were “the ways Congress most often intrudes or attempts to intrude into the functions and responsibilities assigned by the Constitution to the executive branch.”

Barr was especially concerned with blunting attempts by Congress to regulate the president’s power to appoint and remove federal officers and employees at will, and to oversee the conduct of foreign affairs. Such legislative meddling, he contended, “unconstitutionally infringe[d] upon the unitary executive and must, therefore, be resisted.”

Two years later, Barr advised H.W. that he had the power to send U.S. military forces into Iraq without congressional authorization. Shortly thereafter, Barr was nominated to become the nation’s 77th attorney general, a position he held for the remainder of H.W.’s tenure.

In 2017, Barr reportedly turned down an offer to join Trump’s personal legal team. But by the following June, Barr apparently sensed a need to defend the president against obstruction of justice charges that might be brought against him by special counsel Robert S. Mueller III, who was investigating alleged Russian interference in the 2016 election. In an unsolicited memo sent to the Justice Department, Barr offered a classic and unalloyed endorsement of the unitary theory, writing:

“The Constitution itself places no limit on the President’s authority to act on matters which concern him or his own conduct. On the contrary, the Constitution’s grant of law enforcement power to the President is plenary. Constitutionally, it is wrong to conceive of the President as simply the highest officer within the Executive branch hierarchy. He alone is the Executive branch. As such, he is the sole repository of all Executive powers conferred by the Constitution.” [emphasis in original]

Widely regarded as a job application in disguise, the memo earned Barr his second nomination as attorney general in December 2018. He was confirmed by the Senate the following February. Since then, as Intercept columnist James Risen has charged, Barr has “turned the Justice Department into a law firm with one client: Donald Trump.”

Barr’s views on the role of religion in public life, while less publicized than his cheerleading for the unitary executive, are equally virulent.

In a speech delivered at the University of Notre Dame Law School in October 2019, Barr revealed himself as a Christian nationalist, blaming, as commentators Katherine Stewart and Caroline Fredrickson later noted in a New York Times op-ed, “secularists” for the “moral chaos” plaguing the country.

“From the Founding Era onward,” Barr told his audience at Notre Dame, “there was strong consensus about the centrality of religious liberty in the United States. The imperative of protecting religious freedom was not just a nod in the direction of piety. It reflects the Framers’ belief that religion was indispensable to sustaining our free system of government.”

Invoking the framers of the Constitution time and again, he continued:

“The Founding generation were Christians. They believed that the Judeo-Christian moral system corresponds to the true nature of man… Modern secularists dismiss this idea of morality as other-worldly superstition imposed by a kill-joy clergy. In fact, Judeo-Christian moral standards are the ultimate utilitarian rules for human conduct. They reflect the rules that are best for man, not in the by and by, but in the here and now. They are like God’s instruction manual for the best running of man and human society.”

Today’s secularists, he lamented, were destroying the framers’ vision by using the law “as a battering ram to break down traditional moral values and to establish moral relativism as a new orthodoxy.” He pledged as the attorney general to “keep an eye out for cases or events around the country where states are misapplying the Establishment Clause in a way that discriminates against people of faith, or cases where states adopt laws that impinge upon the free exercise of religion.”

In February, Barr doubled down on his demonization of secularism in an address to the annual convention of the National Religious Broadcasters in Nashville, Tennessee, in which he declared:

“We live at a time when religion—long an essential pillar of our society—is being driven from the public square. … Experience teaches that, to be strong enough to control willful human beings, moral values must be based on authority independent of man’s will. In other words, they must flow from a transcendent Supreme Being.”

Secularists, and “progressives,” he charged, aim to impose a new form of totalitarianism, “which seeks to submerge the individual in a collectivist agenda… in favor of elite conceptions about what best serves the collective.”

The slide into secularism can be reversed, he said, “but only if we can alter our course.” Exhorting Christian journalists and broadcasters to join with him to restore the centrality of religion, he concluded, “It is not too late to stem the tide, but we need to get to work.”

Far from faithfully adhering to the wisdom of the framers, Barr’s unhinged views on religion comprise a clear and present danger to the bedrock First Amendment principle of the separation of church and state, and to modernity itself. Combined with his extremist position on executive power, Barr’s religious fundamentalism makes him the most treacherous man in America, second only to Trump himself.

Bill Blum is a retired judge and a lawyer in Los Angeles. He is a lecturer at the University of Southern California Annenberg School for Communication. He writes regularly on law and politics and is the author of three widely acclaimed legal thrillers: Prejudicial Error, The Last Appeal, and The Face of Justice.

This article was produced by the Independent Media Institute.