US Politics
More convenience than Principle

Ralph Nader: Democrats may be surrendering the rule of law

Burgess COMMENTARY

Peter Burgess

Ralph Nader: Democrats may be surrendering the rule of law



Many Senate Democrats are throwing in the towel on the nomination of William Barr for Trump’s attorney general (a prospect assured by Senate minority leader, Chuck Schumer, declaring his personal vote against Barr). Let’s ask why?

One would think that Senate Democrats would be appalled at Barr’s long-time unyielding conduct and writings asserting that the President can start any wars he wants even if Congress votes against it! An example of this is the constitutionally undeclared criminal invasion of Iraq by George W. Bush. Barr was also George H.W. Bush’s Attorney General and has been a long-time defender of executive branch lawlessness.

One would think that Barr’s insupportable drive for more corporate prisons and more mass incarceration would upset these Senators.

One would think that Barr’s view of the separation of powers, which has meant separating Congress from its constitutional powers and handing them over to the “unitary presidency,” would alarm these Senators. (Didn’t James Madison believe that Congress would jealously guard its authority vis-à-vis any new emergence of a modern King George III?)

One would think that Barr’s inflexible position giving Presidents—including the embattled Donald Trump—effective immunities for obstructing justice and from blocking ongoing investigations, including limitless pardons even of himself and his family, would infuriate the Democrats.

One would think that this champion of corporate immunities—otherwise known as the deregulation of EPA, FDA, FTC, and OSHA—would anger Senate Democrats who tell their voters that such agencies are protecting our health and safety.

Needless to say, Barr’s legal positions are distinctly minority ones among legal scholars and practitioners, especially his fanatical argument, The New York Times points out, that “Congress has no authority in the area of foreign affairs.”

Barr’s view of the President as King ignores the clear meaning of article II, section 3 of the Constitution that obliges the president to “take care that the laws be faithfully executed.” Barr and other right-wing ideologues defend the actions of Trump’s outspoken deregulators, exercising complete discretion to shut down law enforcement, not to mention the present government shut-down. The Democrats on the Senate Judiciary Committee spent much time on what Barr would do regarding the Mueller investigation. Barr tried to disarm them by saying that Mueller was a great friend going back many years in the federal government and that he would certainly let Mueller complete his investigation and report. Big deal!

Would he make the report public, as supported by the overwhelming majority of Americans, and as urged by Republican Senator Chuck Grassley of Iowa? Would he censor parts of it? Backed into a corner by Senator Mazie Hirono (D-HI), Barr admitted the Mueller report would be treated like any other “prosecutive memo” with its full text kept secret. Really?

There is no broad presidential power of executive privilege to withhold information from Congressional Committees—subject to conditions of confidentiality—according to many constitutional law scholars who differ from Barr.

Keeping the Mueller report secret cannot stop a Congressional Committee from issuing a subpoena to Barr and Mueller to testify and leave the entire report in the Committee’s hands. If Mueller resists Barr’s opposition and appears as a witness, this conflict may end up in federal courts.

There is much more in Barr’s secretive, corporatist, anti-consumer, labor, and environmental record to get the Senate Democrats’ dander up and throw down the gauntlet. But, no, they prefer to be polite and in so doing let the American people down. Please note the comment from the ranking Democrat on the Committee, California Senator Dianne Feinstein, during a break in the hearing: She said the hearing was “going very well” and expected Barr to be easily confirmed by the full Senate.

See why I’ve called the Republican and Democratic parties an inbred duopoly? Expect the further decay of a Department of Injustice, shielding a chronically lawless President and turning the rule of law on its head.