Viewpoint: Barr’s Election Memo Shows Perils of an AG Subordinate to the President
When the Justice Department is headed by an attorney general whose first priority is presidential piety, the independence of the position—and the department—will be questioned.
A recently released memo by Attorney General William Barr reveals that he has authorized investigations into “allegations of voting and vote tabulation irregularities … that, if true, could potentially impact the outcome of a federal election.”
This comes after Barr has previously argued that the use of mail-in ballots “opens the floodgates to fraud,” despite research suggesting that voter fraud overall is rare, and that it is even rarer by mail. Indeed after the 2016 election, even the Presidential Advisory Commission on Election Integrity that Donald Trump set up to investigate voter fraud failed to find any evidence of the “millions of people” that the president claimed “voted illegally.”
States have until December 8 to resolve all election disputes, including recounts and lawsuits. Since Election Day, the Trump campaign has filed more than a dozen legal challenges in several battleground states. With Barr’s blessing, such investigations may increase, and that December 8 deadline may become difficult to make.
Why is Barr going to such lengths to help the Trump campaign?
As I have noted previously, making the attorney general an executive officer subordinate to the president incentivizes attorneys general to prioritize protecting the president, rather than the best interests of the American people. Perhaps unsurprisingly, in my own research I have found that abuse of power is comparatively more common in countries where the president and the attorney general are political allies. As one can imagine, a president and the attorney general are more likely to be political allies when the former is in charge of hiring and firing the latter. It is for this reason that some governments choose to popularly elect their attorney general separate from that of the chief executive.
For instance, in 43 of 50 states, citizens elect the state attorney general. Consequently, rather than answering to the governor, popularly elected attorneys general answer to the people. This ends up changing the relationship between the attorney general and the head of the executive branch, as neither is subservient to the other, and instead, both are competing for the trust and favor of the electorate. On more than one occasion, state attorneys general have even butted heads with the governor, and some have gone so far as to sue the governor for allegedly overstepping his or her power.
If Barr were to disagree with the president regarding mail-in voter fraud, he would likely suffer a fate similar to Jeff Sessions and be shown out of Trump's Cabinet. The “termination” of Secretary of Defense Mark Esper demonstrates that even lame ducks can bite.
Conversely, those that wish to become attorney general can audition for the role by authoring an opinion piece in a nationwide newspaper or by sending an unsolicited memo to the Justice Department defending the president—both of which were tactics used by Barr.
Trump mistakenly believes that the Constitution gives him the right to do whatever he wants as president, which is particularly concerning given that he has consistently refused to accept election results and has also refused to commit to a peaceful transfer of power. Yet Trump is not the first president to argue that he’s above the law. Barr is also not the first attorney general to be viewed as an accomplice to presidential antics. But as long as the Justice Department is headed by an attorney general whose first priority is presidential piety, the independence of the position—and the department—will be continue to be questioned.
Joshua Holzer is an assistant professor of political science at Westminster College in Fulton, Missouri.