Here’s How to Stop the Next Bill Barr From Gutting the Rule of Law

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AG Barr walking with entourage

Attorney General William Barr is escorted to the Rose Garden for an event on “Safe Policing for Safe Communities” at the White House. (Alex Wong / Getty Images)

The damage Attorney General William Barr has done to the Department of Justice is incalculable. He has surpassed every institutional metric in his quest to become the worst attorney general in US history. He’s likely responsible for shutting down the Robert Mueller investigation and is certainly responsible for misrepresenting its contents. He’s helped Donald Trump implement a truly monarchical theory of executive power. He’s ordered the teargassing of peaceful protesters so his boss could do a photo op with the Bible. And most recently, he tried to fire Geoffrey Berman, the head prosecutor for the Southern District of New York, via press release, possibly because Berman was looking into crimes committed by the Trump Organization or Trump’s cronies.
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Simply listing a few lawless highlights from Barr’s tenure, however, undersells how thoroughly he has mangled the theory of impartial justice. The attorney general is supposed to be the top lawyer for the American people, but Barr has turned the entire Department of Justice into a weapon for Trump’s reelection. It’s Barr who has flirted with investigating the president’s political rivals, Barr who has joined Trump’s attempts to scare people away from mail-in voting. Barr has placed Trump above the rule of law—from within the country’s legal department.

Unfortunately, nothing can be done about him so long as Trump is still in power. Yes, Barr can be impeached by the House of Representatives and removed from office if convicted by at least two-thirds of the Senate—but that will never happen. The Republican Party has so thoroughly committed itself to the lawlessness of the Trump regime that it does not have the moral strength to remove one of the president’s chief henchmen mere months before the election.

Then again, the GOP’s approach to injustice within the Justice Department is nothing new. This is the second time that Barr has been the US attorney general. The last time, he used his power to help Republican operatives secure pardons to escape accountability for the Iran-contra scandal.

In fact, he isn’t all that unusual among corrupt Republican attorneys general. Remember George W. Bush appointee Alberto Gonzales? Many recall him as a pro-rendition guy who supported warrantless wiretaps and all manner of post-9/11 excesses in law enforcement. But people forget that he was suspected of doing what Barr is doing now: allegedly firing US attorneys who refused to open investigations into the president’s political enemies.

Gonzales eventually resigned, but Republican presidents know they can always find somebody willing to do their bidding under the color of law. In the Saturday Night Massacre, Richard Nixon eventually fired his way to Robert Bork, who was willing to carry out the Watergate-related purges that better men like Elliot Richardson refused to do. Republicans have been politicizing the Department of Justice for decades. But every time the Democrats retake power, all they do is nominate decent people while leaving the structure in place for indecent people to do great harm when Republicans regain control.

That cycle must end. The Democrats must stop hoping that Republicans will act in good faith and start protecting the country from them when they inevitably do not. And the only way to do that is to try to make the Department of Justice truly impartial. The attorney general’s position must be placed at a remove from the regular political appointment process. Congress should pass (and the new president should sign) a law transforming the term of the attorney general into a single, six-year appointment, which cannot be revoked by the president. This office must be given protection from the president, and the responsibility for removing a rogue AG must be laid squarely at the feet of Congress through the impeachment process. The president should not be able to fire his way to a compliant attorney general, the way Nixon got to Bork—and Trump got to Barr.

The act of creating an independent Justice Department must happen with the next Democratic administration, because a lot lies ahead for the next attorney general. It will be incumbent upon the new AG to take up what Barr has refused to investigate and to hold to account those wrongdoers who have thus far gotten away with it. This includes investigating Trump and his entire crime family. It also includes prosecuting Rudolph Giuliani for his efforts to blackmail Ukraine into interfering in the upcoming election. And it might include prosecuting Barr for corruption.

An investigation into a previous presidential administration and a previous president’s criminal family is inherently political. It can be carried out only by a body that is viewed as politically independent. That’s why Elizabeth Warren, when she was running for president, proposed an independent task force, separate from her administration, that would investigate Trump. It was a good idea, but Barr has exposed the need for an even more expansive solution.

If Barack Obama had established nonrenewable six-year terms for the attorney general during his first year in office, when he had 60 votes in the Senate, 2021 would have been the end of Loretta Lynch’s term as AG. Imagine how different everything would be if we had had an independent attorney general these past four years.

Or flip the script: Imagine how much less of a danger Barr would be if we had to put up with him for only a few more years under a Democratic president, until his term expired. Barr would be reduced to mewling about Burisma while the Trump family lawyered up for the federal prosecutions inevitably coming their way from an independent Justice Department in 2023.

Bill Barr has wrecked the Department of Justice. The solution isn’t to return it to the way it was before. The solution is to remake it, better and stronger than it’s ever been. Do Democrats have the will to do what is necessary? Or will they just wait for another Republican like Barr, Gonzales, or Bork to take over the department and finally destroy the rule of law?

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