Understanding the Role of Textualism and Originalism in the LGBT Title VII Cases

*Professor Eyer has written extensively on the issue of LGBT employment rights. Her most recent article on this subject, Statutory Originalism and LGBT Rights, is available here.

Update: Eyer appeared at the ACS Supreme Court Preview event in Washington, D.C. on September 25. Watch the recording of the event.

On Monday, April 22, the Supreme Court granted certiorari in three cases raising the question of whether anti-LGBT discrimination is “because of…sex,” and thus unlawful under Title VII. This issue—which has divided the lower courts—represents one of the most significant civil rights issues affecting LGBT Americans. Rates of employment discrimination against the LGBT community remain high, and no independent federal law proscribes sexual orientation or gender identity discrimination in employment. Thus, answering the question of whether anti-LGBT discrimination is also “because of…sex” will determine for many LGBT employees whether they are protected against even the most explicit and harmful forms of discrimination on the job.[1]

As I have written previously (see Sex Discrimination Law and LGBT Equality), Title VII precedent strongly supports a ruling that anti-LGBT discrimination is indeed, necessarily also sex discrimination. And for the Justices on the Court who have no competing methodological or normative commitments, it seems likely that this existing Title VIII precedent will be dispositive of their votes.

But what about for those Justices who profess commitments to textualism and/or to originalism? Despite the rule of “super-strong” stare decisis in the statutory context, textualists and originalists often have a somewhat less deferential relationship to precedent—accurately deeming it to be potentially in tension with a truly textualist or originalist approach. And textualism and originalism both are often associated in the popular imagination with conservative causes, which might suggest that in this case, LGBT plaintiffs would lose if those methodologies are applied.

So, is there any hope of attracting the vote of Justices who are self-professed textualists or originalists (most of the conservative wing of the Court)?

As set out below, the answer to this question ought to be “yes.”  Neither textualism nor originalism are inherently “conservative” approaches, in the sense of necessarily leading to politically conservative results. (Consider, for example, the work of the Constitutional Accountability Center). And here, textualist arguments strongly support LGBT advocates’ claims to inclusion—indeed so strongly that to hold otherwise would require resort to long discredited contra-textualist approaches. Even most originalist arguments—including those most commonly made in this context, relying on historical dictionary definitions of “sex”—also lead to a pro-LGBT inclusion result. It is only by relying on a narrow, largely discredited brand of “original expectations” originalism—one fundamentally inconsistent with core tenants of textualism—that a judge could reach an exclusionary result.

In order to see this, one need only, as textualists often admonish, “begin with the language of the statute.” Although there are other provisions of Title VII to which one could look in making arguments for LGBT inclusion, the most straightforward analysis arises from Title VII’s core disparate treatment provision, 42 U.S.C. § 2000e-2(a)(1).[2]  That provision states that, “It shall be an unlawful employment practice for an employer…to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s…sex.” Thus, the key question a textualist must confront in the LGBT cases before the Court is whether anti-LGBT discrimination is “because of…sex.”

As increasing numbers of judges in the lower courts have recognized, the answer to this question is clearly “yes.”  It is literally impossible to discriminate on the basis of sexual orientation or gender identity, without having it also be “because of…sex.” Consider, for example, the case of Susan the lesbian. If Susan were Mark, a cisgender man, also attracted to women, she would not have been fired. Susan’s firing is thus, quite literally, “because of such individual’s [i.e., Susan’s] …sex.”

Similarly, John, a transgender man who is fired for claiming a male identity, and having a male appearance, would not have been fired if he, like Mark, were assigned the male sex at birth. It is thus, “because of [John’s] sex” that he was terminated. As the Supreme Court has repeatedly held, prohibitions on discrimination “because of” protected class status proscribe, at a minimum, discrimination in which protected class status is a but-for cause. And in each and every case of anti-LGBT discrimination, the employee’s actual or perceived sex is a but-for cause of the adverse action.

Note that of course the outcome of this textualist analysis is no different here even if one uses the narrowest historical definition of sex—as a “biological” man or woman.[3]  As set out above, Susan’s “biological” womanhood—her status as an individual who was assigned the female sex at birth—is still a but-for cause of her termination when she is fired for being a lesbian (since she would not have been terminated if she were an individual who was assigned the male sex at birth, but who was attracted to women). So too, John’s “biological” sex—defined historically by his sex assigned at birth—is a but-for cause of his termination (since he would not have been terminated for identifying or appearing as a man, if he had been assigned the male sex at birth). Thus, on a straightforward textualist analysis, anti-LGBT discrimination is necessarily also “because of…sex.”

But what about originalism? As noted above, a textualist analysis does not change even taking an “originalist” approach to textual interpretation, and adopting a narrow, historical definition of sex. This may seem counterintuitive to those who may have heard (erroneous) claims from both the right and the left that—if originalism controls—LGBT plaintiffs must lose. Understanding the fallacy of this argument—and why the most widespread and accepted strains of originalism actually counsel in favor of LGBT inclusion, not exclusion—requires disaggregating the multiple, inconsistent, theories that are often interchangeably referred to as “originalism.”

The most accepted form of “originalism” today—and the only form that has support in modern federal statutory interpretation case law—is that which looks to the meaning of words at the time of the statute’s enactment and relies on that meaning as the starting point for textualist analysis. Though there are arguments that the relevant time of enactment should be later than 1964—for example the Civil Rights Act of 1991—most commentators have focused on Title VII’s original enactment date in 1964. Thus, an originalist argument in this vein might look to definitions of sex in 1964 and use those definitions as the starting point for their textualist analysis of whether anti-LGBT discrimination is “because of…sex.”

But as set out above, this type of originalist argument still leads to a pro-LGBT inclusion result. Even under the very narrowest historical definition of sex in 1964, discrimination against LGBT employees is still literally “because of…sex.” Susan the lesbian would still be employed, were she a “biological” man attracted to women, and John the transgender man would still be employed were he a “biological” man who presents as a man.[4]  Their termination is thus “because of” sex on a straightforward but-for account. The error of those contending otherwise is their overriding focus on the term “sex,” while utterly ignoring the phrase “because of.” But what the statute proscribes is, of course, adverse actions taken “because of…sex”—one cannot simply excise “because of” from the statutory text. Thus, statutory originalism in its accepted forms—including those embraced by the Court in recent cases like Wisconsin Central v. United States and New Prime v. Oliveira—still leads to the result that anti-LGBT discrimination is covered by Title VII.

It is only by resorting to a largely discredited form of “originalism”—one that contravenes textualism—that opponents of LGBT inclusion have been able to argue to the contrary. Specifically, judges and advocates opposed to LGBT inclusion have suggested that the “original public meaning” of Title VII must control—and that because the original public would not have imagined that LGBT people were protected by Title VII, the claims of LGBT employees today must fail. But this is a form of originalism that has been widely discredited by modern textualist statutory interpretation case law (mostly authored by no less an authority than the late Justice Scalia). As such case law makes clear, the words of broad statutes cannot be cabined by the narrow expectations of their drafters as to where they might apply. Though those making this argument have shifted their focus to the expectations of the “original public” (as opposed to Congress), they have offered no justification for why such a contra-textualist approach should be permitted simply because they are now focusing on the expectations of a different actor (the original public instead of Congress). To the extent that the Supreme Court has said that the language of the statute must control, allowing the expectations of the original public to trump that language seems facially no more legitimate.

In understanding why—as the Supreme Court has held—this “original expectations” approach is inconsistent with textualism, it is useful to unpack the variety of reasons why Congress, or the original public, might not anticipate a particular application of a textually broad statute. Contrary to the rhetoric of opponents of LGBT inclusion, it is not only changes in the meaning of a statute’s words that can explain why actors at the time of enactment might not anticipate a particular application of a textually broad statute. Those reasons might include, as the Court points out in Wisconsin Central, developments in technology that were not anticipated at the time. Or, as in the case of Oncale v. Sundowner Offshore Services, they might include a lack of imagination of foresight. Or, they might, as in the LGBT cases before the Court, include that a group was so stigmatized at the time of enactment that the original public would never have imagined that they were imbued with rights by the law (even if the literal language led to that result). Finally, they might, in some cases, arise from the fact that the meaning of the words of the statute have indeed changed. But it is only the last of these that is plausibly characterized as being consistent with textualism. To the extent exclusions based on original expectations rest on the others, it is simply an argument for allowing historical subjective beliefs to override statutory text.

This contra-textualist approach to statutory interpretation is not only inconsistent with modern textualist statutory interpretation case law, it is not even consistent with the views of most modern originalists. Though “original expectations” originalism—deeming the specific expectations of enactment-era individuals dispositive—was once the dominant originalism perspective, most modern originalists no longer give original expectations primacy. Indeed, many modern originalists make the claim that originalism and textualism are essentially the same thing, a claim that is impossible to make unless one cabins original expectations to the considerably narrower role of simply offering us evidence about what the words of the statutory (or constitutional) provision might have meant at the time. But, as detailed above, even assuming we know what sex meant at the time—and even assuming that it meant something narrow—this does not avoid the fundamental problem for opponents of LGBT inclusion: that even under the narrowest of definitions of sex, anti-LGBT discrimination is still literally “because of…sex.”

In attempts to avoid the appearance of arguing for this discredited contra-textual form of originalism, most proponents of “original public meaning” in the LGBT Title VII cases have rhetorically framed their arguments at least partially around the far more accepted approach of looking to the meaning of “sex” at the time of Title VII’s enactment. But to the extent that is their argument, it poses no genuine challenge to the arguments of advocates for LGBT-inclusion. As set out above, that form of originalism still leads to the conclusion that anti-LGBT discrimination is covered, since it is still, literally, “because of…. sex.” It is only by ignoring the plain language of the statute—and resorting to a form of subjective contra-textual originalism that has long been discredited—that opponents could successfully argue for an LGBT exclusionary result.

In conclusion, it is worth quoting in full Justice Scalia’s words in response to arguments that same-sex harassment must be excluded from Title VII’s broad proscription on discrimination “because of…sex.”  In Oncale, just as in the current LGBT cases, the centerpiece of the defendant’s arguments was that same-sex sexual harassment—which they conflated with anti-gay harassment—was not a former of discrimination that Title VII was expected to proscribe.  But as Justice Scalia wrote, for a unanimous Court:

“We see no justification in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII. As some courts have observed, male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed. Title VII prohibits “discriminat[ion] . . . because of . . . sex” in the “terms” or “conditions” of employment. Our holding that this includes sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements.”

Here, anti-LGBT discrimination “meets the statutory requirements”: it is “because of sex.” Thus, a textualist Justice (and even an originalist Justice, to the extent they adhere to a textualist approach to originalism), ought to find in favor of LGBT inclusion.

Related: Katie Eyer’s 2017 issue brief, Sex Discrimination Law and LGBT Equality

[1] There are also laws in some states and localities that protect LGBT employees against discrimination, and LGBT employees have sometimes also relied on other fact-specific theories to obtain relief. These potential avenues to relief would remain, regardless of what the outcome is of the cases pending before the Court.

[2] Title VII was amended in 1991 to include language that states that “an unlawful employment practice is established when the complaining party demonstrates that…sex.. was a motivating factor for any employment practice, even though other factors also motivated the practice.” 42 U.S.C. § 2000e-2(m). Though this language also provides an independent basis for arguing that anti-LGBT discrimination is sex discrimination, I focus my discussion herein on Title VII’s “because of…sex” provision.

[3]Opponents of LGBT inclusion have assumed that “biological sex” is a straightforward concept, despite the fact that modern medical understandings suggest that it is not. For the purposes of my discussion herein, I use the term as it is commonly used by opponents of LGBT inclusion, and as it was most commonly understood in 1964—to refer to the sex assigned an infant at birth, typically on the basis of their external genitalia.

[4] Again, here, I am using the term “biological” sex here in the way that it is commonly used by proponents of historical approaches to construing Title VII, to connote sex assigned at birth on the basis of external genitalia.

ICE Contract Facilities, Including Counties, Continue to Violate the Religious Exercise Rights of Muslim Detainees

Religious freedom is a foundational value. It is so important that the First Amendment is dedicated to protecting it and there are clear laws in place requiring all detention facilities to allow people to worship freely. But immigration authorities don’t seem that interested in living up to that promise for Muslims and other non-Christian immigrants.

There are potentially dozens of detention facilities across the country, where immigration agencies and their contractors routinely mistreat and deny basic rights to inmates. Horror stories abound of immigration authorities locking children in cages, keeping detainees in dangerous conditions, feeding them spoiled food and even dozens of women in custody having miscarriages. But the abuse doesn’t end there.

Religious discrimination against immigration detainees is also a serious and growing problem. At a federal facility in Victorville, California, prison officials blocked Muslim, Catholic and Hindu immigration detainees from worshiping in groups and from obtaining religious diets and articles. In Texas, U.S. Customs and Border Protection would only provide a pork sandwich every eight hours to a Muslim detainee.

Similarly, when five Somali Muslim immigrants arrived at Glades County Detention Center, a jail in central Florida that rents beds to U.S. Immigration and Customs Enforcement (ICE), they were denied access to a Quran, religious meals and other necessities like beads, prayer rugs and even a simple sheet of paper with a prayer schedule printed on it. When the immigrants asked why the facility wouldn’t even take minimal steps allowing them to observe their religion, they were told, “Boy, you’re in Glades County.”

Federal and Florida law protect religious liberty for all. This should mean that all people in this country, including immigrants and refugees, are guaranteed the right to observe their religion, even while incarcerated or detained. But the shocking mistreatment of the men housed at Glades and other facilities shows that we are failing to protect this fundamental right.

There is no compelling reason for Glades County—or any facility—to deny Muslims Qurans and religious meals or to interfere with their prayers. Prayer schedules are free to print out. Charitable organizations will donate Qurans. And many prisons and detention centers around the country manage to provide Muslim detainees with meals at cost and that are halal, or religiously permissible. Additionally, Glades has no trouble allowing Christians to practice their faith. But Glades has refused to provide even these minimal accommodations to Muslims. Meanwhile, taxpayers dish out more than $ 30,000 a year per detainee to facilities like Glades creating massive profits for counties and investors.

ICE “detention standards” in theory guarantee minimum humane conditions for immigration detainees housed at local jails. At Glades and at many other contract facilities, however, only the most outdated standards apply, via the facility’s contract with ICE. And, as found by an Office of the Inspector General report on all contract facilities in June 2018, ICE refuses to enforce even these weak standards: “neither [ICE] inspections nor . . .  onsite monitoring ensure consistent compliance with detention standards, nor do they promote comprehensive deficiency corrections.

The Somalis’ experience is part of a pattern at Glades, which has consistently denied Muslims access to Qurans and religious counseling and services since at least early 2017. Yet when ICE reviewed Glades for compliance with religious exercise detention standards in 2017, it found that the facility complied, despite significant evidence to the contrary.

More than a year after arriving at Glades, the five Somali men are suing Glades County Detention Center and ICE for violating both Florida and federal law. As their attorneys, we at Muslim Advocates and our co-counsel at Americans for Immigrant Justice are working to vindicate their rights and halt future violations at the Glades facility. It is time for Glades to fully accommodate all detainees’ religious practices and for ICE to hold Glades accountable by imposing financial penalties or by declining to renew the detention contract.

After being told “Boy, you’re in Glades County,” one of the Somali immigrants wondered aloud, “But isn’t Glades County in America?” Allowing detainees to practice their faith isn’t just what the law requires, it is also the right thing to do. Anything else is an insult to the Constitution and offends American values.

Yusuf Saei is a Yale Law School Arthur Liman Public Interest Fellow at Muslim Advocates. His work is focused on the religious free exercise rights of prisoners and immigration detainees.

Base Instincts: Trump's Lawyers Play to the Crowd, Not the Court

Donald Trump appeals to the base even when arguing before a court.  Filed in federal court on April 22, the president’s complaint attempting to prevent the House from subpoenaing his tax and business records reads more like a “Best Tweets of 2019” than a legal document one would hope a second year law student could produce.

Detailing the basic problems with Trump’s cause of action seems as beside the point as pointing out each of Trump’s daily fabrications. No one, not even the base, expects Trump to speak the truth or, in this case, make a conventional legal argument. The greater concern is how this complaint is inconsistent with Trump administration arguments in both the travel ban and census cases, and why Trump openly lies or, in this case, appeals to the base even when ostensibly producing a legal document.

The legal/constitutional problem with Trump’s effort to prevent Congress from obtaining his tax returns and business records is simple. Congress is constitutionally empowered under Article I of the U.S. Constitution to subpoena any document that, as the complaint acknowledges, “serves a legitimate legislative purpose.” Chairman Elijah Cummings of the House Committee on Oversight and Reform plainly met this standard when, in his “Notice of Intent to Issue Subpoena,” he pointed out that his committee has “full authority to investigate whether the President may have engaged in illegal conduct before and during his tenure in office, to determine whether he has undisclosed conflicts of interest that may impair his ability to make impartial policy decisions, to assess whether he is complying with the Emoluments Clauses of the Constitution, and to review whether he has accurately reported his finances to the Office of Government Ethics and other federal entities.”

The Mueller report settled any doubts about congressional capacity to subpoena Trump’s taxes and business records. Mueller pointed out that Congress under Article I has the “power to enact laws that protect congressional proceedings, federal investigations, the courts, and grand juries against corrupt efforts to undermine their functions.” An investigation into Trump’s finances would clearly be germane to determine whether present obstruction of justice and corrupt practices laws are adequate and what reforms might be necessary to ensure an honest legal enforcement in the future.

The Trump complaint neither mentions the Cummings “Notice of Intent” nor the Mueller Report when trying to explain why the subpoena is an unconstitutional fishing expedition that “serves no legitimate legislative purpose.” Instead, the complaint begins with such excerpts from Trump’s Twitter account as “The Democratic Party . . . has declared all-out political war against President Donald J. Trump” and “Instead of working with the President to pass bipartisan legislation that would actually benefit Americans, House Democrats are singularly obsessed with finding something they can use to damage the President politically.”

The complaint then relies almost exclusively on broad statements Democrats made when celebrating their victory in the 2018 election to demonstrate Congress has no legitimate reason to gain access to Trump’s tax and business records. Trump’s lawyers quote Nancy Pelosi, who on election night 2018 declared, the “subpoena power” is “a great arrow to have in your quiver” and a Democratic congressional aide who stated, “Congress is going to force transparency on this president.” Horrors! This is the equivalent of a defense lawyer quoting a prosecutorial comment at a press conference that “we are going to convict Smith” as proof that the prosecution has no evidence, rather than discussing the evidence the prosecutor laid out in the opening argument.

Trump’s claim that courts should rely on Democratic campaign statements rather than official documents is particularly ironic given the administration’s demand that courts not take campaign statements into account when determining the legality of Trump administration measures.  Trump’s lawyers insisted and Chief Justice John Roberts in Trump v. Hawaii (2018) agreed that “the courts will not look behind the exercise of [presidential] discretion or test it by balancing its justification” when the president gives “a facially legitimate” reason for an immigration policy the president when campaigning for office and in office repeatedly described as a “Muslim ban.”

Whether the Supreme Court allows the Trump administration to include a citizenship question on the census will likely depend on whether the justices accept the “facially legitimate” justification the Trump administration offers in court or the illegal reasons Trump administration officials give to their political base. Democrats at press conferences merely declare they plan to subpoena the president without explaining the reasons. When they give reasons, those reasons focus on impeachment and conflict of interest, matters approximate for legislative investigation. Trump when campaigning consistently gives unconstitutional justifications that require his lawyers to put lipstick on his pigs when arguing in court.

The other sections of the complaint focus on what Republicans have said about the subpoena. The complaint does not discuss the justification Cummings gave in the “Notice of Intent.” Rather, Trump’s lawyers quote Republican members of the House Oversight Committee at great length for the motives of the subpoena. On this logic, the main purpose of the post-Civil War Amendments was to mongrelize the United States because that is how Democrats described the constitutional ban on equal protection and laws denying equal protection.

Trump’s personal lawyers engage in typical Trumpian political projection when in a campaign brief masquerading as a legal document they repeatedly accuse Democrats of attempting “to score political points . . . leading up to the 2020 election.” Investigating whether a president is handicapped by numerous conflicts of interest and his motives to obstruct justice is a core function of a legislative oversight committee. President’s Trump complaint, which ignores the actual justification for the subpoena, is better designed for Fox News than the courtroom or, worse, for Trump judicial appointees who may be more concerned with Fox News reports than the texts of official documents.

The President Weaponizes the Census

Voter ID, list purges, poll closings, gerrymandering—all well-known favorites from the conservative playbook on rigging elections. But why stop there? Why not just avoid counting minorities in the first place?

That’s what the Trump administration is trying to do by seeking to add a “citizenship question” to the 2020 U.S. Census. And it’s the subject of a highly important, but little-known case making its way to the U.S. Supreme Court right now.  Oral arguments are scheduled for April 23.

In the apportionment clause of Article I of the Constitution, the framers detailed how seats in the House of Representatives would be allocated as the nation grew. Election districts for congressional, state, and local offices must be drawn to include an equal number of people, or as near as “practicable” (for congressional districts), or “substantially” equal (for state and local districts). This means that districts must be close in population size to other district in each state. The Constitution also sets a time frame for this process by requiring a count of the population every ten years—the census—which then provides the numbers for the apportionment of congressional districts among the states.

For them, patience is a virtue that pays off generously in lasting legislative and policy victories. Jeff Timmer, a Michigan Republican who has worked to craft district lines in that state, likens redistricting to Halley’s comet. “It comes around on a recurring, predicable basis. It’s great to be a Halley’s comet expert when it comes around. But in between times, no one really has any use for it. You know, one of the inside secrets of politics is how critical redistricting is.”

Last year, President Trump’s Commerce Secretary, Wilbur Ross, announced that the upcoming 2020 census would include a “citizenship question.” Opponents of this move quickly pointed out that doing so would deter immigrant households from responding and that this would result in a severe undercount. The result? Significant funding and representation disparities disproportionately affecting communities of color. The Trump administration moved ahead nonetheless.

In United States Department of Commerce v. State of New York, U.S. District Judge Jesse Furman barred the government from including the question, taking the administration to task for “’a veritable smorgasbord of classic, clear-cut’ violations of the Administrative Procedure Act, including cherry-picking evidence to support [their] choice.”

The abhorrent racism of the Trump administration has been on full display since he took the oath of office that dark January day in 2017. And other than his immigration policies, perhaps no other issue demonstrates his contempt for communities of color more than his effort to skew the U.S. Census with the addition of a “citizenship question.” It is a strike at the very heart of our democracy and an affront to the U.S. Constitution conservatives claim to hold so dear.

In addition to the new question, the Trump administration has severely underfunded and understaffed the Census Bureau. Unlike in 2010, however, there is already a group of advocates and funders focused on both political and legal responses to the Right’s shenanigans, including lawsuits to expose government wrongdoing (or maybe more accurately “non-doing”). Nonetheless, the challenge is daunting.

In 2010, Republicans dumped $30 million into state races—triple the amount of Democrats—to wrest control of the once-in-a-decade process of congressional redistricting and then, with their new statehouse majorities, draw maps that favored Republicans and pass laws that disenfranchised Democrats and people of color.  Between a newly configured census featuring a “citizenship question” designed to exclude large numbers of minorities and disfavor urban areas and its aggressive voter suppression efforts across the country, the Republican Party could rig our system so completely that the promise of “We the People” will be permanently broken.  Will the Supreme Court allow that to happen?

The Real Threat of Trump and Barr

The Mueller Report is a cornucopia of stunning revelations of corruption and abuse of power by Donald Trump, his Administration, and his campaign.  I write to discuss one important revelation that has been highlighted, but widely misunderstood:  President Trump repeatedly attempted to obstruct justice – indeed, ordered the obstruction of justice – and failed only because his staff refused to carry out his commands.  Jeff Sessions refused to “unrecuse” from the Russia investigation; Reince Priebus retrieved Sessions’ proffered resignation letter so that Trump could not use it as a “shock collar” to tame the Justice Department; Don McGahn refused to carry out Trump’s order to fire Special Counsel Mueller; Rick Dearborn refused to communicate Trump’s order that Sessions limit the Special Counsel’s jurisdiction to future elections; KT McFarland did not follow Trump’s order to draft an internal cover-up memo; and on and on.  One moral that might be drawn from this story is its happy ending:  the President’s attempts to obstruct justice were thwarted at every turn by conscientious public servants.  One commentator on NPR even went so far as to declare triumphantly that these episodes show that the system works.  This is wrong.  The system did not stop the President from obstructing justice; specific individuals did.

As many have remarked, it is chilling to know that it is a pattern and practice of this President to obstruct justice.  But what makes the realization downright frightening is the fact that not one of those conscientious public servants still serves in the Trump Administration.  Indeed, each and every one of them fell out of favor with the President precisely because they would not work his nefarious will.   Can we rely on the public servants currently serving in the Trump Administration to stand up to and check the President?

Enter William Barr.

The new Attorney General has been widely, and rightly, criticized for press conference in advance of releasing the Mueller Report.  Even on Fox News, Sheppard Smith and Chris Wallace characterized the Attorney General’s performance as indefensible and an exercise in deception.  It was all of that and worse.  It is now clear that we cannot rely on the Attorney General to restrain the President.  Rather, Attorney General Barr views it as his job to actively facilitate the President’s schemes.

In fact, this has been clear all along.  Barr is a longstanding proponent of the unitary executive theory of presidential power.  He advanced that theory as the head of the Office of Legal Counsel in the late 1980s and in his first stint as Attorney General in the 1990s.  He specifically applied that theory to the Mueller investigation in a now infamous memo he wrote last June as a private citizen (a memo that is widely regarded as the very reason President Trump selected him to replace Jeff Sessions as Attorney General).  According to Barr, “[w]hile the President has subordinates – the Attorney General and DOJ lawyers – who exercise p[ower] on his behalf, they are merely his hand – the discretion they exercise is the President’s discretion ….”  On Barr’s view, those public servants I have described as conscientious are more accurately regarded as insubordinate.  To extend Barr’s corporeal metaphor, they are the body in revolt against itself, a kind of “cancer on the presidency.”

I testified at Attorney General Barr’s confirmation hearing.  I opposed his nomination because I was familiar with his views on presidential power and, so, could see the dangers they posed for the Mueller investigation and, more broadly, for the rule of law.  Still, I am shocked at how brazenly William Barr is willing to ignore facts and law in order to promote Donald Trump.  Joseph McCarthy had Roy Cohn, Richard Nixon had John Mitchell, now Donald Trump has his man.

*Institutional affiliation is listed for identification purposes only.

Is William Barr Serving the Public Interest or the President’s?

During Attorney General William Barr’s confirmation process, ACS President Caroline Fredrickson published an op-ed in The New York Times posing the question: Will William Barr Be Trump’s Roy Cohn?

Unfortunately, the attorney general’s recent actions and yesterday’s statements underscore the very concerns Fredrickson flagged back in December. In an appearance on Capitol Hill yesterday, Barr said that he believed the FBI “spied” on the Trump presidential campaign and that he was launching an investigation into the matter.

In an interview with Politico, House Intelligence Committee Chairman Adam Schiff, D-Calif., shared his concern that Barr is doing Trump’s bidding:

“It’s very concerning when the top law enforcement officer in the country uses incendiary language like that. That’s the kind of thing you hear the president say at his rallies, when he’s advocating a deep-state coup attempt. It ought to concern all of us.”

Roy Cohn was President Trump’s personal lawyer and fixer throughout the 1970s, having previously served as a top aide to Sen. Joseph McCarthy. He had a reputation for pushing legal limits to protect his clients.

For his part, Barr has a reputation for holding an expansive view of presidential power, especially regarding legal investigations involving the president.

As Fredrickson wrote: “These are perilous times. Not since Watergate have we seen a presidency so mired in accusations of unethical and illegal behavior. And not since Watergate have we seen a president so contemptuous of the rule of law.”

If there was one thing the president needed to enable him to navigate the choppy legal waters in which he currently flounders, it was an attorney general willing to take steps to protect him. Sadly, it appears he may have found his man in William Barr.