A Republican Attorney General

A Republican Attorney General

By Joel Levin

Attorney General WIlliam Barr finally testified before Congress this week, as he had previously refused to comply with his lawful duty to provide Congress with the opportunity to conduct oversight and, since July 2019, has been in contempt of the House for that conduct. His recent testimony was the subject, not unexpectedly, of sharp cross-examination by members who were concerned with policies related to sending federal police into cities without the consent of the mayor or governor, and with keeping children in refugee camps rife with coronavirus when the federal judge had ordered them closed and that order had been disregarded. He has suggested the lack of reliability, even concern of widespread illegality, on voting by mail, offering no evidence whatsoever. Finally, he has become personally involved in the cases of Roger Stone and Michael Flynn, employing review standards neither applied elsewhere nor which can be described as anything but political. Perhaps all of that is business as usual between an embattled attorney general of one party and extremely unhappy members of Congress of the other. However, one of the most interesting things said in this session was Barr’s statement, perhaps seen as a rhetorical question, as to whether the committee members realized that he was a Republican. That is, he seemed to suggest that, as a Republican Attorney General, he was behaving in a way he thought correct for a Republican, as one would expect, in accord with others in a party that held or required his loyalty, in a way that was for that reason perfectly right and proper. It might be worth spending a moment to take a look at what Barr could possibly mean by defending himself and justifying his conduct through the guise of reminding others and even proclaiming to the world that he was a Republican Attorney General. 

It is doubtful that Barr was suggesting that he was purely a Republican Attorney General in the spirit of his predecessors, John Mitchell or Richard Kleindienst, two Republican Attorneys General from the 1970s who went to prison for felony convictions. Both of these convictions arose, more or less, out of Watergate, and out of a series of actions where the attorney general was as involved in the re-election of the president as he was in serving as chief counselor and chief law enforcement officer for the American people.  Mr. Barr said that he was, in fact, involved in discussions on the re-election issues surrounding President Trump, but it is doubtful that he would be happy with this comparison when he suggested that he is a Republican Attorney General.

Let us take a moment to look back at a very different kind of Republican who served as Attorney General, Harlan Fisk Stone, in office in the 1920s. Perhaps he might serve as the model attorney general that Mr. Barr intended when he flashed his GOP AG credentials.

It is difficult to judge a life in a few paragraphs, but we often attempt to do so by taking the measure of a person when they are faced with their most problematic and life-changing moments. Let us consider Attorney General Stone in such  situations, looking at his conduct when he was promoted from Attorney General to Justice then to Chief Justice of the Supreme Court. We might consider three measures: his ego and self-interest (how he acted when the right thing to do would potentially derail his career), his treatment of vulnerable children (an important measure of any person or society), and his  treatment of difficult outsiders who did not necessarily have his sympathy (his ability to act morally correct rather than tribally, even when his personal inclination made it distasteful to do so).

First, a quick look at Stone. Harlan Fiske Stone was the son of a struggling New Hampshire farmer, expelled from school for cold-cocking (hitting on the head and knocking the victim out) the head of the school, who eventually, through sheer force of personality, breezed through Amherst College and Columbia Law School, becoming a law professor there are 26. A stint as a partner in a Wall Street law firm,  a member of the Military Board of Inquiry during World War I, and then Dean of Columbia Law School, he was eventually appointed by his former college classmate, Calvin Coolidge, Attorney General of the United States in 1924, a Republican Attorney General at that. Stone promptly purged former President Harding’s tainted cronies and investigated the monopolistic practices of his fellow Cabinet member, Andrew Mellon of Treasury, and his company, Alcoa. Both actions by Stone were contrary to party or Republican loyalty. He did this in the eight months before he was nominated in 1925 to the Supreme Court, his lifetime dream. By every measure, he was a superb appointment and then a distinguished justice.

Then came the 1932 vacancy due to Justice Oliver Wendell Holmes’ retirement. The battle lines were different for nominees than they are today. While party and ideology mattered, they only mattered somewhat. Presidents often ignored party lines, continuing to do so at least up through Eisenhower’s pick of a Democrat, William Brennan, in 1955. In fact, the vacancy was for Justice Holmes, a man of no clearly recognised partisanship or recognisable party in any traditional sense. What did matter was state and region pedigree and there, one immutable fact was true. New York already had two members on the high court, the Chief, Charles Evans Hughes, and Stone. Even if the Chief did not  fully qualify as part of the count for purposes of state representation, appointing another and third New Yorker was politically extremely problematic. That said, President Hoover was considering the New York State judge, Benjamin Cardozo, an individual of such impeccable standing that a letter was sent to Hoover advocating the appointment signed by every single law school dean in the United States. Cardozo was well known to Stone as a fellow New Yorker, fellow prominent bar member, fellow noted graduate of Columbia Law School, and as someone worthy of profound respect.

Cardozo was hardly Stone’s only friend. He had been in the Coolidge cabinet with then Secretary of Commerce Hoover and they had become friends. Stone, listening to the political machinations around a potential appointment, did the only thing he thought morally possible: made an appointment to see Hoover in the Oval Office, marched in alone, pulled a letter out of his pocket, put it before President Hoover as a letter of resignation and said that now Hoover is free to appoint the most qualified individual in the country to the Supreme Court, without impediment or fear. Hoover read the letter, tore it up, thanked Stone, and appointed Cardozo.

Eight years later, Stone still on the court, but without Cardozo (who had died from a stroke), the case of Minersville School District v. Gobitis came before that court. It involved basically whether a school district could force the children of Jehovah’s Witnesses to salute or pledge  allegiance to the flag in public schools. There was a great deal of pre-wartime feeling  in favor of greater patriotism, a feeling that led to such laws becoming widespread throughout the country. There was also an animus toward the already unpopular Jehovah’s Witnesses in a number of states. The lower courts allowed flag-respecting requirements, with the consequence in some states of expelling the students and removing the students from the parental home so that they would then become wards of the state and put up for adoption. One such case came before the Supreme Court, which held that the flag salute as part and parcel of national unity and national security trumps all other considerations. Following the decision, ill-treatment of the Jehovah’s Witnesses became yet more widespread, from brutal beatings to burning their churches to their being tarred and feathered. The remarkable decision was 8 to 1 in favor of the school board. Stone, in an unpopular, even considered to be unpatriotic, dissent wrote: the “The guarantees of civil liberty are but guarantees of freedom of the human mind and spirit and of reasonable freedom and opportunity to express them… The very essence of the liberty which they guarantee is the freedom of the individual from compulsion as to what he shall think and what he shall say”. Two years of hard argument and persuasion, and some changes on the court, later, Stone managed to convince the majority to overrule the case and change the law. In West Virginia State Bd. of Educ. v. Barnett, that court, through its new member, Robert Jackson, later the war crimes prosecutor at Nuremberg, adopted Stone’s reasoning and held that “no official, high or petty, can prescribe which shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein”.

We have at least one Republican Attorney General clear as to where he stood for his willingness to go after corrupt colleagues, left over from the Harding administration and his monopolistic fellow Cabinet member, Andrew Mellon, despite the fact that they were his political allies. Contrast that with Attorney General Barr’s attitude toward his allies, at least the President’s, in his treatment of Michael Flynn and Roger Stone. Note Stone’s willingness to defend those who had clearly broken the law, the Jehovah’s Witnesses, but did so in the name of freedom and loyalty to a higher principle. Contrast this with A.G. Barr’s use of troops against protesters in Lafayette Park in Washington D.C. Note Republican Attorney General Stone’s willingness to defend children who had become abused pawns in a political and jingoistic game, ostracized from school and then taken from their families. Contrast this with A.G. Barr’s action of defending the policy of putting the children of asylum seekers at the border in cages and then taking them from their family. Over 69,000 such children were imprisoned last year when they did nothing wrong and their parents, lawfully requesting asylum under U.S. and International Law, did nothing wrong. Also one might note (a note brought to my attention by A. V. Levin) that Barr reversed a decision by the Board of Immigration Appeals that had previously allowed immigrants fearing persecution because of threats to others in their family to claim asylum. Finding the family not to be a group worthy of protection, Barr overruled the Board and eliminated family based protection. It is clear that being a Republican Attorney General means different things to different people, but it is hardly a promise of good conduct or even minimal moral decency.

Mr. Barr’s injecting into the congressional hearing that, after all, he is a Republican, explains nothing and yet explains everything. It explains nothing because the example of moral leadership so often typified by Harlan Fiske Stone – as a fighter of corruption, a protector of children, a defender of unpopular minorities, and with a genuine modesty about who he was – are qualities that can and have exemplified prior Republican Attorneys General. One might think more recently of Herbert Brownell, Eisenhower’s A.G., who pushed hard to integrate schools and pushed even harder to appoint federal judges in the South who would enforce civil rights for blacks, very unpopular and impolitic positions; or my former boss, Edward Levi, who restored integrity under President Ford’s Justice Department as his Attorney General after Watergate, who established the Office of Professional Responsibility to ensure ethical conduct and spoke often of “governing by discussion”. Consensus, open debate, protection of minorities, integrity: the values of these two Barr predecessors. However, back to Barr’s declaration of party affiliation. It explains everything, because it is simply the assertion of partisanship and authority rather than of democracy and humility in need of an excuse, here party loyalty, to justify the unjustifiable. It has the unintended consequences of showing the distance traveled from the days of Harlan Fiske Stone.