When we served in the White House Counsel’s Office, we were frequently asked about the difference between the role of the White House counsel and of the attorney general. We explained that the White House counsel defends the interests of the Office of the President whereas the attorney general and Justice Department represent the United States as a whole. People were often surprised to learn that neither office acts as the president’s personal lawyers. If the president has personal legal issues, he hires private lawyers to represent him.
Every White House and Justice Department lawyer takes an oath to uphold the Constitution, and we and the president we served knew that’s where our loyalty lay. President Obama never asked us explicitly or implicitly to place his personal interests above those laid out in our oaths of office.
Not so with President Trump, who has repeatedly made clear he expects those in his administration to serve him personally. He famously asked James Comey for loyalty, fired Jeff Sessions for not doing enough to protect him, and raged at Donald McGahn for cooperating with the special counsel’s investigation.
What those men did in various ways was to serve as restraints on a lawless president, placing their loyalty to the Constitution above any personal loyalty to the president. That’s precisely why Trump removed them. He wanted a lawyer who’d defend him no matter what. In William Barr, that’s what Trump has found.
In Barr’s testimony before the Senate Judiciary Committee on Wednesday, he acted not as America’s attorney, nor even as an attorney for the Office of the President. He acted as an attorney for Donald J. Trump.
Consider this telling exchange with Sen. Amy Klobuchar. The senator, asking about whether the president had obstructed justice, pressed Barr on Trump’s comments praising his convicted former campaign chairman, Paul Manafort, as “a brave man for refusing to break.”
Barr began his answer, “I think what the president’s lawyers would say is,” and then provided a legal defense of the president’s comments (albeit an unconvincing one). But the attorney general’s job is not to parrot what Donald Trump’s personal lawyers would say. He represents the United States, which prosecutes people for obstruction of justice based on activity like Trump’s all the time.
While that exchange offered the one candid admission by the attorney general of how he saw his role on Wednesday, the entire hearing was rife with Barr defending the president’s outrageous conduct in ways only a defense attorney would find credible. He insisted the president had “fully cooperated” with the special counsel — ignoring the fact that Trump dangled pardons to influence testimony, threatened witnesses’ family members, and refused to testify under oath, according to the report prepared by the special counsel, Robert S. Mueller III. And Barr tried to explain with legalese why the president had broken no criminal law in asking Don McGahn to create a false record to throw off investigators.
Barr might defend his bizarre performance by saying that, in looking at the case the way Trump’s lawyers might, he was merely trying to explain why his department has chosen not to prosecute the president.
That might be a plausible explanation were it not for all of Barr’s other conduct. As we learned this week, Barr’s initial four-page preview of the Mueller report was so subservient to Trump’s interests that it caused the conservative and stoic Mueller to write a letter objecting to Barr’s actions.
Historically, three mechanisms have ensured that the attorney general and the Department of Justice remain independent of a president’s personal interests. First, there are the laws against obstruction of justice. Upholding those is both why Mueller refused to exonerate Trump and why Congress must now ensure accountability for any violations. Second, in the 40 years since Watergate, every White House has observed a formal policy to prevent improper interference with Justice Department cases. We've recently proposed that Congress codify those policies. And third, the president and everyone he appoints to serve takes an oath to ensure fidelity to the law.
This oath was part of the founders’ radical vision for a country in which public service required loyalty not to a king, but to democratic ideals. Barr and Trump have violated that oath, putting the president’s personal interests above those of the country. Tellingly, when Sen. Klobuchar asked Barr whether the president’s actions as detailed in the Mueller report were “consistent with his oath of office and the requirement in the Constitution that he take care that the laws be faithfully executed,” Barr had no clear answer, saying that “the evidence in the report is conflicting.”
Both men have violated their oaths of office, and their disregard for our constitutional order remains a threat as long as they are in office.
Donald Trump ominously mused during his campaign that he could “shoot somebody” on Fifth Avenue and not lose supporters. This week, the attorney general of the United States displayed that kind of unflinching support.