Attorney General William Barr joined me this morning:

Audio:

04-21hhs-barr

Transcript:

HH: Joined now by the Attorney General of the United States, the Honorable William Barr. Mr. Attorney General, welcome, good to have you on this morning.

WB: Thank you, Hugh. Good to talk to you.

HH: Beginning, how is your health? How’s your family’s health? Everyone good?

WB: Everyone’s good. Everyone’s good.

HH: And what is the impact of the virus on the people that you lead, the lawyers and the staff at the DOJ, the FBI, the DEA, the entire vast complex that is the Justice Department?

WB: You know, we’re adapting to it, and we’re trying to keep up our work and fulfill our mission but at the same time keeping everyone safe. So we’re doing a lot of telecommuting, staggering our work. You know, the work of the courts have slowed down, and that obviously has an impact on us as well.

HH: So Mr. Attorney General, I’m glad to hear that it’s still going on. I want to begin by talking to you about Youngstown Sheet and Tube, the case to which everyone turns when they’re talking about presidential power. I have two quotes for you. Justice Jackson begins, “That comprehensive and undefined presidential powers hold both practical advantages and grave dangers for the country will impress anyone who has served as a legal advisor to a president in a time of transition and public anxiety.” We are certainly in a time of public anxiety. You are such a legal advisor. Are you impressed by those undefined presidential powers, Mr. Attorney General?

WB: Well, you know, I do think that executive glance, whether it be in the federal system or the state system, you know, one of its capacities is to respond to immediate catastrophic dangers facing the people. And the reason that we give power to the executive is because frequently, that requires adapting to the circumstances. So initially, when you’re faced with a potential catastrophe, the government can deploy measures and even put temporary and reasonable restrictions on rights if really necessary to meet the danger. But it still has the obligation to adapt to the circumstances. Whatever powers the government has, whether it be the president or the state governor, still is bounded by Constitutional rights of the individual. Our federal Constitutional rights don’t go away in an emergency. They constrain what the government can do. And in a circumstance like this, they put on the government the burden to make sure that whatever burdens it’s putting on our Constitutional liberties are strictly necessary to deal with the problem. They have to be targeted. They have to use less intrusive means if they are equally effective in dealing with the problem. And that’s the situation we’re in today. We’re moving into a period where we have to do a better job of targeting the measures we’re deploying to deal with this virus.

HH: Justice Jackson added, “Just what our forefathers did envision,” on this question of what an executive, the president’s powers are, “or would have envisioned had they foreseen modern condition must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh.” That’s the end of the quote. Of course, Joseph got every dream right. Do you feel like Joseph right now in giving advice to the President, Mr. Attorney General?

WB: Well, you know, I think it’s important to recognize that the President, you know, has not been using, you know, dictating things based on his inherent Constitutional authorities. He’s been relying mainly on statutes that give him emergency authority, and also working within our federal system by leaving the governors to execute what they think is best at the local level. That can be a messy business, but at the end of the day, the better approach than trying to dictate everything from Washington.

HH: Has the President done anything, anything at all to give rise in you to a concern that he does not respect the Constitution or intend to abide by its separation of powers?

WB: Never. Never at all.

HH: The rhetoric…go ahead, Mr. Attorney General.

WB: No, I think…

HH: Well, the rhetoric has been deeply deranged at times. We hear “dictator,” “authoritarian” beibng applied to the President. Is there anything he’s actually done that’s departed from well-worn furrows of presidential authority?

WB: No, as I said in my Federalist Society speech. And when you actually look at his record, his actions have been, you know, well within the traditional rules of law and have been litigated patiently through the courts thus far. Usually, the courts have ended up siding with him.

HH: Yes, it’s a good record thus far in terms of winning. Dual sovereignty seems to confuse a lot of the press out there. I mean, they really seem to be confused as to whether the president or a governor ought to do some thing in particular. It’s usually complicated by overlapping authority. Have those authorities yet collided, in your view, Mr. Attorney General?

WB: Well, they can be in tension, and there are potentials for collision. I think you know, when a governor acts, obviously states have very broad police powers. When a governor acts, especially when a governor does something that intrudes upon or infringes on a fundamental right or a Constitutional right, they’re bounded by that. And those situations are emerging around the country, to some extent. And I think we have to do a better job of making sure that the measures that are being adopted are properly targeted. They also can run into the federal role under the Commerce Clause, the so-called Dormant Commerce Clause. We do have a national economy which is the responsibility of the federal government. So it is possible that governors will take measures that impair interstate commerce. And just where that line is drawn, you know, remains to be seen.

HH: Justice Thomas is not much of a fan of the Dormant Commerce Clause. Have you yet seen an example that would cause the Department of Justice to go into court and seek a declaration that any particular governor’s order or edict has violated the Dormant Commerce Clause?

WB: Not yet.

HH: Now the usefulness of originalism in a period like this is up for grabs. In September of 2011, I had Justice Breyer on for a long interview, and he told me, he cautioned me, this is pretty much a direct quote, that it was limited, because “George Washington didn’t know about the internet.” How useful is an originalist approach to a crisis that is actually unprecedented?

WB: Well, no, I think originalism is always useful, because originalism tells you what the principle was that the framers were putting into the Constitution. And we do our best to take that principle and apply it to contemporary circumstances. But you know, this is unprecedented in some ways, but you know, it is similar to other crises that the country has faced in that it calls for, you know, action that can sometimes require some limitations on rights. But I think the real question today is you know, when a crisis hits, I think the government needs a little bit of latitude to adopt, you know, the means to deal with it. But those can frequently be blunt instruments, and over time, I think the government has the burden of tailoring its measures to make sure they are not unduly intruding on civil liberties. And that’s the question that’s being presented today in our country, which is the extent to which government has to tailor its approach more to the circumstances on the ground and not do undo damage or broad deprivations of civil liberties. And I think the President’s plan for getting the country back to work is really a very commonsensical approach that is based on really assessing the status of the virus in each state and each locality, and then gradually pulling back on restrictions.

HH: Now Mr. Attorney General, I have noticed that some local officials have been very quick to use their authority to target specifically communities of faith in a way that distinguishes the rule set for them as opposed to other organizations. And I think that’s one of those blunt instruments. Have you noticed that yourself? Should they be on notice that, and well, in my view, I don’t know what your view is, that that violates the Free Exercise Clause?

WB: Well, you know, we did more than put them on notice. We filed a statement of interest in a case in Mississippi where they were discriminating against religious practice and the putting restrictions on religion that they were not putting on commercial activities that had all the same features. And we filed a statement of interest, and I understand that the government has pulled back from those restrictions at least to some degree so far. And I issued a statement pointing out that whatever measures are placed against religion have to be placed against all comparable commercial and other activities. You can’t single out religion for special burdens.

HH: And…go ahead.

WB: And it’s not just religion, though. You know, I think as we go forward, you know, I personally think that given the uncertainties involved at the beginning, the President’s initial approach of a period of time to bend the curve were appropriate. But I think we have made a lot of progress in bending the curve, and I think we now, as I say, have to fine tune these things. I think we have to make a distinction between orders that tell people or principles that say you know, you have to keep your distance of 6 feet, you should be washing, you should be wearing PPE when you’re out and about. Those are fine, because I think those, you know, arrest the transmission from person to person. But blunter instruments that say everyone has to shelter in place, to stay at home regardless of the situation on the ground, or you know, you shut down a business regardless of the capacity of the business to operate safely for its customers and its employees, those are very blunt instruments. And I think you know, as I say, I think we have to adapt more to the circumstances. The President’s plan does that. You know, I also think that we have to give businesses more freedom to operate in a way that’s reasonably safe. They know their business. They have the capacity to figure out, as the Marines say, “improvise, adapt, and overcome,” how to conduct their business in a way that’s safe. I think we have to give businesses that opportunity. The question really shouldn’t be you know, some governments saying well, is this essential or not essential. The question is can this business be operated safely?

HH: Now I’m leery of hypotheticals, Attorney General Barr, but if it turns out that the President and a governor have a different view on a particular restriction on a particular business, does the President’s view trump that of the governor’s?

WB: You know, it depends on all the specifics, so I’m not going to answer a general hypothetical like that. It depends on all the specifics.

HH: All right. Let me turn to a couple of specific questions about the current crisis. We see a lot of companies cooperating. Apple and Google are definitely cooperating, for example, and Facebook may be involved. And some of them are cooperating to jointly present the hardships their industries are presented with. Are there antitrust issues raised here that should be explicitly set aside by the Department for the time being so that companies can coordinate without fear of the antitrust laws?

WB: Well, we have been, we have been doing that in issuing rulings that permit some cooperation and coordination among companies that help us, you know, meet this crisis. The Justice Department has that power, and we’re exercising it.

HH: If an industry or a group of companies have not yet heard from the Department about the exercise of that power, ought they to seek it? Or should they consider it sort of a general period of amnesty for such cooperative efforts?

WB: Well, it all depends on what the cooperation entails. Like price fixing would obviously present some problems. But we have already made it very public that we are open to giving advice on this, and most businesses know how to communicate with us and get their guidance. There isn’t amnesty, though.

HH: No, okay. The Deputy Attorney General Rosen in November at the ABA seemed to take the lead on antitrust issues. Is he in control of just the big tech antitrust issue or all of them?

WB: Well, ultimately, both the Attorney General and the deputy Attorney General have responsibility for the Department and what goes on in the Department, so we supervise the Antitrust Division. In terms of a much more direct and active role, obviously both he and I are, you know, more directly engaged than we normally might be in the tech review.

HH: I am hoping that there is no pause for the cartels, for espionage. Have you seen anything hamper the DOJ, the FBI, the DEA’s efforts to counter espionage at home, cartel activity abroad or at home?

WB: Not so far. I mean, I think we’re very, you know, engaged in trying to counteract the activities of foreign governments, particularly the Chinese, during this period who have stepped up their activities, their influence activities against the United States. And as you know in terms of the cartel, the President just took, you know, really important action deploying the military, the Navy down to increase our interdiction efforts. And we’re still working closely with Mexico to go after the Cartel. So I haven’t seen anything so far that has hurt our efforts.

HH: How have you seen the influence activities of the PRC-CCP increase, Mr. Attorney General? That’s a very serious issue.

WB: It is a serious issue, but I really can’t get into, you know, what exactly we’re seeing. I’m just saying that you know, they have increased, and you know, we as a consequence have to increase our defense against it.

HH: Senator Cotton just told me that he hopes that the WHO and organizations involved in this catastrophe are liable to United States citizens in court. Do you believe that they are?

WB: I haven’t looked at that. I haven’t looked at that issue. I think that there, I think there efforts afoot on Capitol Hill to make it easier for people to sue.

HH: The Department of Justice prosecuted FIFA back in 2015. That’s an international organization, not one like the WHO. It’s obviously for profit, not for the alleged public interest. If we found corruption in the WHO, would the DOJ pursue it in criminal courts?

WB: I’m not going to, you know, speculate about what we might, you know, what international organizations we might pursue through the criminal process.

HH: Then let me ask you whether or not at least investigations of these organizations are underway.

WB: No, we just, we generally don’t comment on what investigations we have underway or we don’t have underway.

HH: All right. Mr. Attorney General, are waivers going to be useful to businesses generally, and to their customers? When customers enter a premise, if they sign a waiver, is that going to protect the business in any way against subsequent allegations of liability for people who come down with the virus?

WB: Well, that probably depends more on state law than federal law. And you know, I’m sure as people are looking right now into how to get people back to work and encourage people back to work, and encourage businesses to open, we’re going to have to address the liability issues as a society. Part of that may involve some federal role.

HH: Deregulation – Dr. Birx and Dr. Fauci have both intimated that the superb scientists at CDC and the FDA were originally hampered by rules put in place for circumstances completely unrelated to those we face today. Do you think both those agencies have adapted now, have the necessary deregulatory steps towards new therapies, new interventions, new vaccines, have been taken, in your view?

WB: I don’t know enough about the CDC and what’s going on there to make that judgment. I think the new head of the FDA, I have a lot of respect for. And from what I can tell, you know, he’s a very reasonable guy that’s trying to adapt to the circumstances.

HH: So in light of that, is the federalism aspect of our system, the fact that we’ve got this dual sovereignty, is it working, because if you’ve got the CDC and the FDA over here as the national authorities with complete authority over drugs and technology and medical devices, and you’ve got 50 states and 50 public health systems, are they meshing?

WB: Well, it’s working, because what’s the alternative? Is the alternative to have one decision made by one person in Washington for the whole nation? That is a very high stakes way to proceed, because more frequently than not, governments get things wrong. So…

HH: Yeah.

WB: So it’s, I think it’s better, it may be a little bit messier, but it may be a little bit messier, but it’s better to allow our federal system to operate. But again, I think when states are operating in this environment, they have to be respectful of federal Constitutional rights.

HH: Well, that goes back to the almost nightly discussion between the press and the President about who does what first. And I just view it through the lens of having taught for 25 years that we have dual sovereignty in this country, and it’s never going to be clear-cut. Have you been frustrated, or are you amused by the inability of some people to grasp the essential structural messiness of our system?

WB: Well, I wouldn’t say amused right now, but I just, you know, I understand, I, like you, believe this is an integral part of our system. And there’s a lot of genius in it. And over the long run, it’s the best system. And we eventually get it right, and I think we’re generally getting it right here. I think the President’s guidance has been, as I say, superb and very common sensical, and I think a lot of the governors are following that. And you know, to the extent that governors don’t and impinge on either civil rights or on the national commerce, our common market that we have here, then we’ll have to address that.

HH: If there is a governor who is overwhelmed, Mr. Attorney General, and simply breaks down, I don’t think this has happened, I don’t think it’s happened anywhere, I haven’t seen it. But we have to consider a virus that may come back in the fall in a deadlier form. It may go on for a long time. Does the President at that point have the authority to step in where the governor has collapsed?

WB: Well, I think it depends on what the consequences are for the collapse. I mean, I’m hesitant to answer these sort of general hypotheticals. The President, you know, has executive power which part of that is the ability to head off disastrous situations that can’t otherwise be dealt with. And you know, that’s a very broad authority. But I think you know, one of the key things that I think is being missed in this whole debate that’s going on now is that we adopted these very strong measures. These are unprecedented burdens on civil liberties right now. You know, the idea that you have to stay in your house is disturbingly close to house arrest. I’m not saying it wasn’t justified. I’m not saying in some places it might still be justified. But it’s very onerous, as is shutting down your livelihood. So these are very, very burdensome impingements on liberty, and we adopted them, we have to remember, for the limited purpose of slowing down the spread, that is bending the curve. We didn’t adopt them as the comprehensive way of dealing with this disease. And we are now seeing that these are bending the curve, and now we have to come up with more targeted approaches. I, to me, this is a little bit like, you know, fighting a cancer, which is you know, sometimes cancer is spreading, and one of the treatments you can use is chemotherapy to drive it back and localize it and make it more susceptible to surgery or more targeted things like radiation or even immunotherapy. But your first thing is to drive it back to a manageable, a more manageable state. And that’s what we’re doing and have done. And the question is you can’t just keep on feeding the patient chemotherapy and say well, we’re killing the cancer, because we were getting to the point where we’re killing the patient. And now is the time that we have to start looking ahead and adjusting to more targeted therapies.

HH: To use your analogy, Mr. Attorney, General, sometimes even with the best intentioned doctors, and often with quacks and idiots, malpractice occurs. If such happens, to use your analogy at the state level, will citizens be able to use either the 5th Amendment’s prohibition on condemnation without compensation or 42USC1983 to bring actions against the governments that were obviously indifferent to that blunt instrument’s time to be put away?

WB: Hugh, you know, again, that’s such a general hypothetical bereft of any facts or you know, what exactly the consequences in the actions of the governor are. I really can’t answer that. But you know, one of the reasons we have federalism is because the people provide a much greater check over their governors and the state officials than they do over a more remote federal government. And the first line of defense for people is the political process in their states.

HH: But theoretically, we also have 42USC1983, and it has occurred to me that if someone gets out of control, the best answer is not screaming at your television. It may be to litigate against individuals who are abusing our rights. And that is a long-standing tradition in the United States. It happens.

WB: Well, if people bring those lawsuits, we’ll take a look at it at that time. And if we think it’s, you know, justified, we would take a position. That’s what we’re doing now. We, you know, we’re looking carefully at a number of these rules that are being put into place. And if we think one goes too far, we initially try to jawbone the governors into rolling them back or adjusting them. And if they’re not and people bring lawsuits, we file statement of interest and side with the plaintiffs. And at this stage, and we’re at sort of a sensitive stage where we’re really transitioning to starting a process of trying to get the nation back up and running, you know, I think that’s the best approach. As lawsuits develop, as specific cases emerge in the states, we’ll take a look at them.

HH: Now Mr. Attorney General, I want to close with a couple of specific issues. The investigation of U.S. Attorney John Durham into the circumstances surrounding the surveillance of President Trump’s campaign, transition, and early administration, does that investigation remain on track undisturbed by the virus?

WB: Yes.

HH: There are guidelines concerning the announcement of indictments or the closing of the investigations prior to the election. When is that deadline for U.S. Attorney Durham? And do you think he will make it either to disclose indictments or to disclose that the investigation is over?

WB: As far as I’m aware, none of the key people that, whose actions are being reviewed at this point by Durham, are running for president.

HH: But would not the announcement of indictments after a time certain have an impact on an election of the sort that the U.S. Attorney’s manual recommends against?

WB: Well, what is the sort that the attorney manual recommends against?

HH: As I recall, this came up with Director Comey making his announcement, and the concerns in 2016 that he had acted improvidently during the run up to the election. I don’t recall what the exact timing is.

WB: Yeah, well, that was directly as to a candidate.

HH: And so it would not matter, in your view, if there is an investigation, and the day before the election, someone is indicted?

WB: Well, you know, I think in its core, the idea is you don’t go after candidates. You don’t indict candidates or perhaps someone that’s sufficiently close to a candidate, that it’s essentially the same, you know, within a certain number of days before an election. But you know, as I say, I don’t think any of the people whose actions are under review by Durham fall into that category.

HH: That’s big news to me. I had assumed that they would be in the category of people that could not be indicted given the obvious connection to President Trump, but I’ll take the news and I’ll put it away. Let me ask you about Senator Grassley. A couple of weeks ago, he tweeted, and this is a direct quote, “We are learning FBI flubs on Carter Page spying case are just tip of iceberg. IG audited 29 other spying applications on Americans and found problems with every one of them, in caps. Constitutional rights are at stake when FBI fails to justify use of spying tools. Reforms needed to protect civil liberties.” Is Senator Grassley correct, Mr. Attorney General?

WB: Yes, well, I think as I have said, I think that the failure to follow the guidelines and the requirements in preparing FISA applications, you know, is very disturbing, especially coming as recently as it has. And you know, we shouldn’t proceed with FISA unless we have safeguards and ensure that the law is being scrupulously followed by the FBI.

HH: Are you shocked by what you have found to date or have been briefed by U.S. Attorney Durham to date about?

WB: I wouldn’t use the word shocked, right? You know, I’m very troubled by it, but you know, I think the reason that we have this investigation is because there are a lot of things that are unexplained. And I think we’re getting deeply into the situation, and we’ll be able to sort out exactly what happened.

HH: I’m not going to ask you, because you wouldn’t answer whether there will be indictments or not. But when do you expect that the public will know a definitive assessment of where the U.S. Attorney Durham is going?

WB: As soon as we feel we have something that we are confident in to tell the people about.

HH: Is that imminent?

WB: No, it’s not imminent. But I’m not sure what imminent means. I’m not sure what imminent means, but it’s not imminent.

HH: Okay. In light of the virus, in light of the circumstances under which the country finds itself, is it ever wise to set aside investigations of this kind that might have extraordinary partisan ramifications in light of exigent circumstances?

WB: Is it ever wise? I mean, I mean, I’m not sure how I could possibly answer that question.

HH: Would it be wise in these circumstances?

WB: I think generally, I think generally, you know, you cite the Attorney General’s guidelines as if they are, you know, written in stone. They are prudential guidelines that you know, call for judgement in each individual case. And I think every case is, in this respect, is sui generis and has to be looked at carefully taking into the concerns that under-gird the provision.

HH: Now you have mentioned CCP espionage, and I’m very concerned about it. It was a problem when I was at the DOJ 30 years ago, and it’s still a problem today, and it’s probably more sophisticated. At the same time, a number of Chinese-American friends of mine have said they are fearful of discrimination – the reality of it, they have seen reports about it. Is the Department of Justice amping up its vigilance on behalf of civil rights of Asian-Americans, Chinese-Americans specifically, in this period?

WB: We actually have taken a hard look at that during this period. There have been a few episodes of, you know, physical attack, very, very few, but we’re vigilant about any potential backlash.

HH: And I have two final areas, Mr. Attorney General. You’ve been very generous, and I appreciate it. Election – a lot of the press are asking the President for his opinions on mail-in ballots and all that. This is not his to decide, is it? These are matters for the states to decide and occasionally for the Congress to legislate. But does the President have any authority, or could you make explicit that he doesn’t, to in any way change the voting laws of a state?

WB: Well, I mean, you’re right that the states obviously have the dominant role, and Congress has a role. But you know, the president also has enforcement role through the Department of Justice. So if we see something that either violates the Constitution or existing law, you know, we can obviously respond to that in the Department. I am concerned from a policy standpoint that we don’t do anything that undercuts the integrity of elections and people’s confidence in the integrity of elections by adopting things that are subject to fraud, because I think we’re a very divided country, and if people start losing confidence in the outcome of elections, you know, I’m not sure where that takes us, probably to a very dark place.

HH: Amen. I wish we would use the Israeli system, but that’s for another day. Let me close by talking to you about the Supreme Court. Do you have any indication of any retirements from the Court, Mr. Attorney General?

WB: No.

HH: If one were to occur, would it be your expectation that the President would nominate and the Senate ought to undertake its confirmation process this summer?

WB: Yeah, I’m not going to get into that.

HH: All right, a technical legal question then. Can a Supreme Court justice retire contingent on a successor being confirmed by a time certain with the revocation of the retirement if such a thing does not happen?

WB: I believe historically, there have been resignations effective upon the appointment of a successor, but I haven’t looked into this issue, so I can’t really give you a definitive answer.

HH: Yeah, that has happened often, but I don’t know that it’s ever happened they say “I’ll retire if you get me a successor by December 31st of this year.” To your knowledge, has that ever happened?

WB: No. I think generally what happens is they retire effective when, upon the, you know, the ascension of their successor.

HH: Is there anything in your vast experience as Attorney General twice that would prohibit a Supreme Court justice from conditioning their retirement upon the confirmation of a successor by a time certain? In other words, a contingent retirement?

WB: Well, I’m not sure why they would do that, since there are other ways of skinning that cat, but you know, I haven’t looked at that, so I’m not going to try to give an off the top of my head opinion on it.

HH: What are the other ways of skinning that cat, Mr. Attorney General?

WB: Well, doesn’t it accomplish the same thing to say it’s effective upon the successor?

HH: Not if it’s blocked in the Senate, and it doesn’t happen, and the administration changes. A justice might not want to retire if President Trump lost and President Biden was going to nominate. They might want to stay on.

WB: Right, but it has the same effect if they don’t leave office.

HH: I’m out of time. I’m confused, but that’s not unusual for me.

WB: I’m confused, too.

HH: Very last question. Your first tenure as Attorney General and your second. The only other person who’s done this sort of thing is Don Rumsfeld, and he told me his views of the office had changed quite a lot in the first and the second go around. Has yours?

WB: No, not my views of the office. I think things have changed in the country, and the challenges presented to the Department are different, but not my view of the office.

HH: You have mentioned we’re in an era of hyper-partisanship, and we watch every night as the press duels. The President said last night he views it unfortunate that the press feels obliged to be as hostile sometimes as it is. Do you share his apprehension about what is now an inherent hostility between press and president?

WB: Absolutely. I think it has very pernicious impact on the Republic to have a media that is so concentrated and monolithic in its views, and also so you know, partisan, really. You know, de Tocqueville said that he thought a press would essentially prevent, help prevent America from becoming a despotism, but that’s only if it remains, you know, a highly-diverse set of voices. And if it ever combines into one viewpoint, then you know, then it will actually become counterproductive for the Republic. So I am very disturbed by the monolithic nature of our press.

HH: How concentrated is it? And where…

WB: I think, you know, Hugh, I’m afraid I’m running up against some other things here.

HH: All right. All right. We’ll come back to that another time.

WB: Yup. Absolutely.

HH: Mr. Attorney General, thank you so much.

WB: Yes, good to talk to you. Thank you. Bye.

HH: Bye.

End of interview.