Amid Heightened Partisanship, A War Brews Between Trump And Congress

Nov 7, 2019
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TERRY GROSS, HOST:

This is FRESH AIR. I'm Terry Gross. The House impeachment inquiry has led to a showdown between the Democratic leaders of the inquiry and the House of Representatives and the Trump White House. Congress has issued subpoenas calling members of the administration to testify, and the Trump White House has instructed them not to comply with the subpoenas.

The war between the president and Congress is the subject of the latest article by my guest Emily Bazelon, a staff writer for The New York Times Magazine. She also recently wrote about Attorney General William Barr and his maximalist interpretation of presidential power. We'll talk about Barr a little later, including ways in which he has helped and has distanced himself from Trump.

Bazelon is the Truman Capote Fellow for Creative Writing and Law at Yale Law School. She's also the author of the book "Charged: The New Movement To Transform American Prosecution And End Mass Incarceration."

Emily Bazelon, welcome back to FRESH AIR.

EMILY BAZELON: Thanks so much for having me.

GROSS: Just give us an overview. Describe the showdown between the leaders of the House impeachment inquiry and the White House over the subpoenas issued to members of the Trump administration.

BAZELON: Congress has special oversight authority over the workings of the presidency and the executive branch. And the founders designed our system in that way in the sense that the three branches of government are independent, but they're also interlocking. There are times in which they overlap. And one of them absolutely is an impeachment inquiry.

And so what we're seeing here is the power of Congress to investigate and to wrest information out of the presidency and the executive branch pitted against the president's prerogative to keep his communications confidential. We can't have a system in which everything the president says to his advisers is available to the public. So there is a tension there that's part of the design of the separation of powers. And we are watching it play out in real time.

GROSS: So White House counsel Pat Cipollone sent a letter to the four leaders of the House saying no one in the Trump administration would participate in the impeachment inquiry. What's his argument for preventing - or at least trying to prevent members of the administration from honoring the subpoena and testifying?

BAZELON: Trump's White House counsel is making this very bold argument that it's damaging to the separation of powers and to the authority of the executive branch for anyone in the entire executive branch to testify, to comply with a congressional subpoena in the context of this impeachment inquiry. It's a kind of sweeping argument that we haven't actually heard before. And there is no precedent for the president claiming this kind of absolute blanket immunity from Congress's powers to investigate.

GROSS: And he's saying that there would be lasting damage to the separation of powers if you left the president no choice but to comply with these subpoenas.

BAZELON: Right. So that's very forceful rhetoric. And you can see the political utility of that rhetoric because it makes it sound like it's not just a problem for President Trump but a problem for his office. However, it just isn't really in line with how the separation of powers has functioned before in American history. And so in that sense, I think this letter that the White House counsel sent is more of a political document than a legal document.

GROSS: So say Cipollone want - say this goes to, you know, another court or something and Cipollone wins. What would his case do to Congress's power of oversight over the president?

BAZELON: I mean, I think Cipollone's case really would eviscerate Congress's power to investigate not just the president but the executive branch. The difference is between claiming that the president has a right to keep a specific act or a specific communication confidential versus claiming this, like, absolute immunity before we even know what witnesses would say. And that's just not how it's worked before.

Congress has been issuing subpoenas, has been investigating since the founding, and we've always had a kind of negotiation. Sometimes it goes to the courts, sometimes not, but there's been a kind of effort to accommodate a back-and-forth - and sometimes a fight over specific requests for information rather than an utter rejection of the whole idea that Congress has the power to investigate.

GROSS: So what power does the White House actually have to prevent someone from testifying if they want to? If a member of the administration wants to testify, what would the consequences be?

BAZELON: To my surprise, when I started asking law professors that question, they said, actually, the president, perhaps, has no power to stop a willing witness. It's not clear that executive privilege - this idea of keeping presidential communications confidential - applies to a willing witness.

Now, we haven't seen a lot of those cases play out in court. It's possible that if a top official in the White House - for example, former White House counsel Don McGahn - he doesn't want to testify. But if he did, it's possible that Trump, in that very sensitive zone of talking to his own lawyer could - or I should say talking to the lawyer for the White House - could say, in that context, I claim executive privilege, and the courts would respect it.

But we really just don't know the answer. And for a willing witness, it's not clear that the president can stop a willing witness from testifying. And I think it will be especially difficult for Trump to stop a witness from testifying who isn't a political appointee who talks to the president by him or herself.

In other words, it's one thing to say my lawyer, the White House counsel, can't testify or my secretary of state who talks to me all the time, he can't testify. It's another thing to say that a career professional in the government who is a couple of circles outside of the inner zone of the president's communications - to try to stop that person from testifying, I think that would be quite difficult.

It would be really remarkable for the courts to step in in that kind of circumstance. And, of course, that's what we're seeing now. The witnesses who want to testify and who are showing up to testify on the Hill before Congress - those are people who are career professionals. They're, for the most part, not political appointees who Trump has chosen himself. There are people who are longtime employees of the State Department, the National Security Council, the Pentagon.

GROSS: So what powers does Congress have to enforce its subpoenas?

BAZELON: Well, that's a really interesting question that is playing out in the courts right now. And I think the issue is, here, one of timing. So the Trump administration may lose the claim that Don McGahn doesn't have to testify, but it may take so long for the case to get resolved that by the time McGahn were to show up, the political value of the information that he would give may have kind of dribbled away. That's been a real challenge for Congress in the last several decades when it tries to enforce its subpoena power. In this funny way, sometimes, even when Congress is winning in court, it takes so long that effectively, Congress loses anyway.

GROSS: Because the clock runs out and the president might not even be president anymore.

BAZELON: Exactly. That's the problem. And Congress can run out. If the session of Congress ends where the subpoena was issued, then the subpoena actually expires. It's like as if it turns into a pumpkin.

GROSS: Oh, I didn't realize that. So that's part of the reason why Congress is really rushing right now to start public testimony next week.

BAZELON: That's right. I mean, if this impeachment inquiry were to go beyond the end of Trump's first term but also this current Congress, they would have to reissue the subpoenas and basically start all over again.

GROSS: So can Congress hold somebody in contempt if they've been subpoenaed and they aren't testifying because the president told them not to?

BAZELON: Yes. Congress can hold someone in contempt based on its own powers. It's its own separate branch of government. It doesn't need a court's approval to do that. The question is what it really means to be held in contempt of Congress these days.

Before the middle of the 20th century, Congress would hold you in contempt, they'd send the sergeant at arms to come arrest you, and you could be jailed. And that happened to people. But we haven't seen Congress take that kind of aggressive enforcement action since 1935, and the courts have really discouraged Congress from doing so. There's talk of the idea that it's unseemly to imagine a kind of face-off between the sergeant-at-arms from Congress showing up and someone else in the federal law enforcement at the White House trying to block someone from complying with a subpoena.

That kind of direct conflict between the branches, the courts don't have a lot of appetite for it. So in the last couple administrations, officials have been held in contempt of Congress, and it's been really more of a symbolic act.

GROSS: So Congress is supposed to have oversight authority over the executive branch, including the president. So exactly what do you think that Trump and his administration think a congressional oversight over him and his administration actually consists of? And I ask because they keep waving away all of the oversight options that Congress is using.

BAZELON: Right. I think their vision of what Congress is allowed to do is vanishingly narrow and depends on the president basically deciding what he wants to disclose. There is an irony here because in another case in New York, Trump's personal lawyer is arguing that the president can never be criminally investigated.

And when the judges who were surprised by this said, wait a minute, you mean local authorities couldn't investigate the president if he shot someone on Fifth Avenue? - this kind of hypothetical that Trump has thrown out there before. Trump's lawyer said that's right, he could not be investigated effectively no matter what.

And this is a different position than the Justice Department has taken in the past. It's one thing to say the president couldn't be convicted of a crime or indicted. This is about whether they can even be investigated from the get-go. And so what you have here is a theory of the presidency being extremely powerful. The president would not be bound by criminal law. And, in many ways, he would also not be bound by the congressional power to investigate.

GROSS: Is there any evidence that the Constitution supports that, the total invulnerability of the president to any kind of punishment for actions he committed, whether they were criminal or whether they were, you know, a violation of his powers or ethics?

BAZELON: I don't think there's any legitimate or real support in the Constitution for that theory of the presidency. You know, the framers had lived under a king. They were very aware of the inherent danger of locating too much authority in one figure. There are people on the far-right who've argued before for, essentially, a president that is immune from most of the laws that bind people.

And I think what you're really seeing here is a political argument, an argument that the only remedy if you don't like the president is to vote him out of office. Of course, the whole idea of impeachment, which is in the Constitution, provides an alternate remedy.

GROSS: Does Attorney General William Barr support the point of view that the Trump administration is offering?

BAZELON: Yes. Attorney General William Barr has presumably signed off on the arguments that the Justice Department is making about the very narrow bounds of any kind of congressional inquiry. And we also know from Barr's own writings going back for decades that he's a supporter of this kind of maximalist vision of presidential power.

It's something he wrote about when he was in the Justice Department in the late '80s and early '90s. And he also wrote a memo in the summer of 2018 that kind of reads like a job audition - it was before he became attorney general. And in that memo, he said about the president, he is the executive branch.

When you have that kind of idea of the president being - essentially embodying a branch of government, then you can see how you could get to a place where he wouldn't be bound by the same laws that bind everybody else.

GROSS: If you're just joining us, my guest is Emily Bazelon. She's a staff writer for The New York Times Magazine. She writes about legal issues. Her latest article is called "What Happens When A President And Congress Go To War?" We'll be right back. This is FRESH AIR.

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GROSS: This is FRESH AIR. And if you're just joining us, my guest is Emily Bazelon. She's a staff writer at The New York Times Magazine, where she writes about legal issues. Her latest article is called "What Happens When A President And Congress Go To War?"

So in terms of the impeachment inquiry, right now it looks like the House is not going to take the issue of the subpoenas to the courts because the courts take so long, and because I think the leaders of the inquiry think that they have enough information even if members of the Trump administration refuse to comply with the subpoenas. Is that how it's appearing to you?

BAZELON: Yeah, I think that's right. And I think what you're seeing here is this quite brave act by a whole series of government career professionals to come forward and to testify, even though they have a direct order from the president not to do it. And that's really unprecedented. We haven't seen this kind of volume of witness testimony in the face of a presidential directive to stay silent.

What's wound up happening is this letter from the White House counsel, from Cipollone, turned out to really only seem to have influence on the political appointees who feel loyal to President Trump. And even a few of them, like Gordon Sondland, the ambassador to the European Union, they've come forward to testify as well.

There seems to be some tension here between what Trump is asking them and concern for their own reputations - and also, I think on the part of the government employees, some sense that something's really at risk here in terms of the functioning of the State Department, in terms of the kind of regular operation of diplomacy. And they feel an urgent need to speak out about it.

GROSS: So, you know, we've been talking about this fight between Congress and the executive branch. Do you think that, ultimately, this is going to reset the balance of power between the three supposedly equal branches of government?

BAZELON: So there's a couple ways that could happen. We could have the Supreme Court weigh in in a more definitive manner on either side. You could imagine the Supreme Court making a pretty sweeping decision on behalf of President Trump and the executive branch that would really change the power of Congress to conduct this impeachment inquiry and also investigations into the future.

That hasn't happened yet, but it's possible. The Supreme Court could do the opposite. They could amplify Congress's power and really affirm them. And then another way in which the balance of powers could be reset really is about imagining what happens after the Trump administration. Whether it ends in 2020 or 2024, you could imagine Congress, with the help of the next president, trying to take back some of the power that it seems to have lost over the last several decades as the executive branch has grown in size and scope.

GROSS: How? How would it do that?

BAZELON: Well, we saw precedents for this in the 1920s, after the Teapot Dome scandal and also, particularly, in the 1970s. So after Watergate, Congress started with the War Powers Resolution which set limits on the amount of time that the president can send troops abroad without congressional approval. Congress passed that law over President Nixon's veto.

Then they started limiting campaign contributions. They revised the Freedom of Information Act to expand the power of the media and the public to get information out of the executive branch. And they passed a mechanism for providing for the special counsel for investigations of the executive branch that, at the time, were partly based in the courts.

So you see Congress in the '70s really trying to reform government in a way that reins in the executive branch. And you could imagine a future Congress requiring anyone who serves as president to release their tax returns, to disclose more information about their financial interests so we know whether the president is being driven by his interests in his own business abroad as opposed to the national interest. And then there are kind of bigger reforms that are a little trickier. One might be to try to speed up litigation in the courts when there's a fight between the president's executive privilege and Congress's power to investigate. If part of the problem is that the courts drag on forever, Congress could set time limits in these cases.

Of course, that imagines courts that are sympathetic to Congress's side of the argument if you're thinking about this in terms of resetting the balance of power in favor of Congress. And we don't know whether we'll have courts like that. We have courts right now that President Trump has already heavily influenced with 150 judicial appointees and counting. So, you know, when I was talking to law professors about this, thinking about it from the side of Congress, they said, you know, you got to be careful what you wish for.

One thing to make clear when we're talking about resetting the balance of power is that Congress has a lot of power. It has the power of the purse. Everything the executive branch does depends on funding that Congress approves. And so one thing Congress could do right now is just cut off money to some office of the government - the White House counsel's office. The Justice Department. There are ways in which Congress could use that power of the purse, the power of appropriations, to do more to try to rein in the executive branch. Now, we haven't seen Congress do that, but it is something that very much lies within its authority in the Constitution.

GROSS: Of course, with the wall, Congress...

BAZELON: Tried.

GROSS: Yeah. With the wall, Congress tried to rein in the president's desire to spend, you know, as much money as he wants to on the wall. And the president went around them.

BAZELON: Yeah. That's true. That was a particular budget item that Congress said no to. And what happened was that President Trump invoked the National Emergencies Act and said that there was a national emergency at the border and that he was going to use funds that had been appropriated by Congress for other parts of the military, take that money and move it over in order to build the wall at the border. And so far, the courts have allowed that to happen. It's still in preliminary proceedings. We don't know what the ultimate answer is.

But you're right that, in that instance, because of Trump's very broad interpretation of the National Emergencies Act, that spending was allowed to go ahead with or without Congress's say so. It's certainly true, however, that Congress has other areas in which, presumably, it would be able to withdraw funding. And that would lie within its constitutional powers.

GROSS: My guest is Emily Bazelon, a staff writer for The New York Times magazine. Her latest article is titled, "What Happens When A President And Congress Go To War?" After a break, we'll talk more about the impeachment process, and we'll talk about Attorney General William Barr and ways in which he's helped and has distanced himself from President Trump. I'm Terry Gross, and this is FRESH AIR.

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GROSS: This is FRESH AIR. I'm Terry Gross. Let's get back to my interview with Emily Bazelon, a staff writer for The New York Times Magazine. Her latest article is about the war between Congress and the White House over the impeachment inquiry. She's also written recently about Attorney General William Barr and his maximalist view of executive power. Bazelon is the Truman Capote Fellow for Creative Writing and Law at Yale Law School. She's also the author of the book "Charged: The New Movement To Transform American Prosecution And End Mass Incarceration."

So let's talk about the impeachment process. If the president is impeached in the House, then it goes to the Senate for a trial, and the trial can end in the removal of the president. If the president is impeached and it goes to trial in the Senate, the trial would be presided over by the chief justice of the Supreme Court, John Roberts. Exactly what would Justice Roberts' role be in the trial?

BAZELON: Chief Justice Roberts would be the judge up there with the gavel making procedural decisions, making rulings about witnesses, about evidence, about lawyers making arguments. This would, amazingly, be the first trial that Chief Justice John Roberts would ever preside over. He was not a trial court judge before he was appointed to the Supreme Court. And so it would be a role that would be a new experience for him as well as an unusual experience for the country.

GROSS: So his powers would pertain only to what rules were followed and if they were being followed accurately?

BAZELON: Right. The Senate would set the rules of the trial and then Roberts would be implementing them. I think it's also possible that he could take it upon himself to make some decisions about how procedurally fair he thinks the Senate rules are. So he would be playing that role as well.

GROSS: And, of course, people would be judging Chief Justice Roberts about how fair he was being in presiding over these rules. And I think, you know, liberals might say he's very conservative. He might side, therefore, with a very conservative point of view or with the Trump administration. On the other hand, he and Trump have really gone head to head.

Trump called Roberts an absolute disaster after Roberts upheld the Affordable Care Act. When President Trump criticized a judge and called him an Obama judge, Chief Justice Roberts said we do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.

So do you have any sense of what Chief Justice Roberts would be like presiding over a Senate trial?

BAZELON: So there are two things that are true about Chief Justice John Roberts. He is a deeply conservative Supreme Court justice. And he also cares a great deal about the legitimacy of the Supreme Court. It's called the Roberts Court. It has his name on it.

And so there is a way in which he is invested in public approval of the court that is different from any other justice. If Chief Justice John Roberts ends up presiding over this impeachment trial, he's going to be weighing those two different impulses. And sometimes, they may be in conflict with each other. So we are going to see how all of that plays out.

I cannot imagine that Roberts will relish this role. It seems like exactly the kind of thing he would much rather avoid.

GROSS: So William Barr is the head of the Justice Department. I think he's in an unprecedented situation. There is an impeachment inquiry going on, and he is implicated in the inquiry. Would you explain how he's implicated?

BAZELON: Yeah. So William Barr announced that he was opening inquiry. At first, it was just an administrative review into the origins of the Mueller investigation. And so this is this rather remarkable notion that the Justice Department and investigators are going to investigate the investigators, review the work of intelligence officers - people in the FBI - about why they were worried about the Trump campaign and its ties with Russia before and in the months surrounding the election.

So this is a really fraught time. Intelligence agents are getting tips that Trump campaign aides are taking dirt about Hillary Clinton from Russians, and they're trying to figure out how to investigate someone who's running for the highest office in the land. They had to make a lot of very sensitive decisions around that time and now the current attorney general, Bill Barr, is going back and effectively second guessing those decisions.

Recently, Barr turned that administrative review into a criminal inquiry, which means that government officials could potentially face criminal charges for the decisions they made about investigating the Trump campaign. And because Barr is in the middle of that inquiry, has not only ordered it but actually flew to Britain and to Italy seeking evidence to support it, he is part of the facts surrounding the inquiry. And yet, at the same time, he is still overseeing the role of the Justice Department in responding to the impeachment inquiry in these various cases we've been talking about surrounding whether Trump can be criminally or civilly investigated.

GROSS: So if the criminal investigation into the Mueller investigation - and this is the criminal investigation that was initiated by Attorney General Barr - if that continues to go forward and if the results come back saying, yes, we've found criminal activity that led to the Mueller investigation, what does that mean? Does that mean that Andrew McCabe, who is the acting FBI director, is charged with a crime? Like, who...

BAZELON: I mean, that is possible, right? It means that anybody who is participating in those fraught decisions about who to investigate and how to do it when the Trump campaign was being accused of having these contacts with Russia - any of those people could face criminal charges.

GROSS: Would that be unprecedented?

BAZELON: I don't think it's unprecedented because when you go back to the Iran-Contra scandal in the Reagan administration, there were officials, including former Defense Secretary Caspar Weinberger, who were indicted for crimes based on their participation in Iran-Contra. However, George H.W. Bush pardoned those officials, so they did not serve their sentences. And the official who was in favor of those pardons and urged them on President Bush was William Barr in his first round as attorney general.

GROSS: And Attorney General Barr also declined to investigate a whistleblower complaint that the president was using the power of his office to get Ukraine to investigate Joe Biden, who is Trump's possible rival in the 2020 election. So that's another...

BAZELON: Yes.

GROSS: ...Way that he's just kind of involved in the story that he's supposed to be overseeing.

BAZELON: That's right. And that decision not to investigate the whistleblower complaint, not even to forward it to Congress - it's one of the most controversial and questionable calls that Trump's Justice Department has made. After the Justice Department made that determination, dozens of former inspectors general - people who have the authority to mount their own internal investigations of the government - they all signed a letter saying, this was a really bad decision on the part of the Justice Department.

They are very much hoping the Justice Department will change its mind. And what they're worried about is chilling future whistleblowers from coming forward because the Justice Department effectively dismissed this whistleblower and kind of shunted him aside, and so all these folks who do this work of investigating are saying, wait a second. We need to take these whistleblowers seriously. We need to protect them. We need to make sure that their complaints get the full airing that they deserve.

GROSS: William Barr has basically totally supported President Trump, and some people have even said Trump is treating Barr as if it was his personal lawyer. The Constitution calls for the separation of powers with three coequal branches, but when the president appoints the attorney general, how separate is the executive branch from the judicial branch?

BAZELON: Right. So this is a really tricky question in American governance. The attorney general serves at the pleasure of the president, just as you said, and is located firmly within the executive branch at the top of the Justice Department.

So in some sense, it's just not an independent job. On the other hand, we very much rely on the attorney general not allowing the President's whims or partisan political matters to be determining how he or she oversees or launches investigations, right? We don't want the president to call up the attorney general on the phone and say, lay off of that guy; he's my friend, or, I want to pardon this person, so, you know, forget your investigation and your indictment, and will you go along with me?

That's a line that attorneys general in United States history have crossed at their peril, and I think we're at a moment again where this tension, which is always there beneath the surface, seems very fundamental right now to the rule of law in the country. And we're seeing that play out in William Barr's relationship with President Trump.

GROSS: If you're just joining us, my guest is Emily Bazelon. She's a staff writer at The New York Times Magazine, and her latest article is called "What Happens When A President And Congress Go To War With Each Other" (ph). We'll be right back. This is FRESH AIR.

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GROSS: This is FRESH AIR, and if you're just joining us, my guest is Emily Bazelon. She's a staff writer for The New York Times Magazine, and her latest article is called "What Happens When A President And Congress Go To War?" And it's focusing on the war between Congress and the president over subpoenas for the impeachment inquiry. And Emily Bazelon is also the Truman Capote Fellow for Creative Writing and Law at Yale Law School.

So William Barr is the head of the Justice Department. He's the nation's top law enforcer. He's largely seen to have supported President Trump, but yesterday The Washington Post reported something Barr declined to do for the president. Would you explain?

BAZELON: Yeah, sure. So President Trump wanted Barr to hold a news conference saying that Trump had done nothing wrong, had broken no laws when he had what is by now this notorious phone call with the president of Ukraine in July. And this, of course, is the phone call in which Trump says, hey, will you do me a favor? - and then starts talking about asking the Ukrainians to investigate Joe Biden and his son Hunter Biden. Joe Biden, of course, could be running for president against Trump in 2020. And Trump also mentioned the military aid for Ukraine, which Congress had approved and which Trump was withholding at the time.

So this is the phone call in which the president seems to be dangling a quid pro quo, and what he wants from Barr is a kind of full exoneration. I think Trump was probably thinking back to Barr's response to the Mueller Report in which Barr adopted the language Trump had been using for months to exonerate himself and saying, no collusion, no collusion. That was a moment in which Barr was very useful to Trump. And for Barr, what is complicated about this is that he is trying to maintain a semblance of a boundary between himself and the independence of the Justice Department and Trump, but Trump doesn't respect those boundaries.

So he wants Barr to kind of do his bidding and step in here and make a very public, big statement that Trump is off the hook, and Barr doesn't want to play that kind of public role. He is trying to keep his investigation of the origins of the Mueller Report separate from whatever Rudy Giuliani is doing in the Ukraine. And Trump is making that hard for him by asking him to make this kind of public performance.

GROSS: So the Washington Post reports that according to their sources, Barr declined to hold a press conference saying that Trump did nothing wrong in this phone call with the president of Ukraine. In that same phone call, Trump apparently told the president of Ukraine, I will have Mr. Giuliani give you a call, and I'm also going to have Attorney General Barr call. So I don't know what kind of action was taken on that.

To our knowledge, Barr did not call Zelenskiy, but if Barr knew that Trump said that to Zelenskiy, the president of Ukraine, should Barr have said something? Because Giuliani is Trump's personal attorney. He has no - he is supposed to have no involvement in foreign policy. That is not a personal attorney's business. So what is Barr's responsibility, his ethical and law enforcement responsibility, in a situation like that?

BAZELON: Yeah, that's a great question. Barr has said he never talked to anyone in the Ukraine, and he kind of quietly told reporters that he was angry that he - his name is getting bandied about in the context of the shadow diplomacy or whatever you want to call it that Giuliani was conducting in the Ukraine on Trump's behalf.

The problem for Barr is that Trump and Giuliani are deliberately blurring these boundaries, right? And we saw this also with the press conference that Chief of Staff Mick Mulvaney held in which he also brought up Barr's investigation into the origins of the Mueller report as a defense of Trump's phone call, of Giuliani's work, of saying basically, like, well, if the Justice Department is investigating, quote, "corruption," then what's wrong with Trump talking about it?

This is in the just-get-over-it press conference. And what you see here is this real problem for Barr where the president and his people are basically compromising his investigation by suggesting that it's mixed up in all of this shadowy personal-attorney-Giuliani stuff that Barr wants to stay far away from.

GROSS: So does President Trump want William Barr to investigate whether it was really Ukraine that hacked the Democratic emails in the 2016 election?

BAZELON: Yes. President Trump definitely wants Bill Barr to do that. And that may be part of this investigation that Barr has put John Durham in charge of. We don't quite know the boundaries.

GROSS: The investigation - the criminal investigation into the origins of the Mueller report.

BAZELON: Yeah, exactly, 'cause the Ukrainian explanation is, like, this alternative conspiracy theory - debunked - about, you know, exactly how all of that unfolded. One question that legal experts have been asking is whether all of this means that Barr should recuse himself from all of this. Just step out of the way, put someone else in charge of overseeing the Durham inquiry and just recuse himself from the entire matter. Barr is clearly not going to do that - that's, I think, not his plan.

And I think the question here is whether or not he was actually involved, right? Like, take him at his word - he didn't talk to anyone in the Ukraine. Is the appearance here of being mixed up in this - that Trump and Mick Mulvaney and Giuliani have created - is that enough that the attorney general should just want to have clean hands and step away from this? And I think legal experts disagree about that, but it is definitely a question worth asking.

GROSS: When William Barr was appointed by Trump as attorney general, many commentators, including some liberal ones, were saying, you know, Barr's an institutionalist. He's going to do right by the office. And now, many of the people who said that are now saying, well, I guess I was wrong because many of them now perceive Barr as being on the side of Trump as opposed to independent of the president.

And so those people who think that he crossed over from institutionalist to presidential advocate are wondering why. Why would he end his career by seeming to be biased at a time when he shouldn't be? And I'm wondering - I assume that's something you've thought about. I don't know if you want to talk about that.

BAZELON: Yes, I have been thinking about this. So I think one thing Barr had going for him was that he had George H.W. Bush on his resume. And at this point, that administration stands for moderate Republican. And I think that was part of the faith that some people put in him to be an institutionalist.

Barr had also talked about - in a way that he seemed to take pride in - the idea that when he was attorney general for George H.W. Bush, Bush didn't ask him to change his mind, didn't try to intervene in specific criminal cases. And Barr seemed to think that was right, that the Justice Department is supposed to have that kind of independence from the whims of the president.

On the other hand, Barr has a long history of being deeply committed to conservative Catholic principles and has talked about seeing religious people as being at war with what he calls militant secularists. He wrote an article about that in 1995. And then recently, he gave a speech at Notre Dame which really echoed, in theme and language, this same idea of conservative religious values and people being threatened by secularist values.

And so when you think about that, then you can see Barr as being part of the conservative legal movement that has been so powerful in judicial appointees in the Trump administration. And as attorney general, Barr has an official role to play in judicial appointments. And you could see why someone who has his ideology would want to be part of an administration which is changing the courts.

There are a lot of Republican defenders of Trump who are saying, why am I a supporter of the president's - look at the judges. We are getting vast numbers of conservative judges affirmed. They have life tenure. They're going to be shaping American law for decades to come, and that's worth it. And you could imagine Barr - while he hasn't said this explicitly - seeing that same kind of advantage in serving President Trump.

GROSS: And in terms of Barr's conservative point of view and his idea that secularists were using law as a weapon, you cite in one of your articles a couple of things - one was he opposed rules that he said compelled landlords to rent to unmarried couples. And he opposed rules that required universities to, quote, "treat homosexual activist groups like any other student group."

BAZELON: That's right. He wrote those words in 1995. And in his recent speech at Notre Dame, he is talking about the same concerns with slightly different examples. So now he's talking about school districts that require students to learn about LGBT issues and saying that that is a threat to religious values. So you see the same kind of fear of secular ideas encroaching on religious freedom with a slightly different set of factual considerations based on the time.

GROSS: If you're just joining us, my guest is Emily Bazelon. She is a staff writer for The New York Times Magazine. And her latest article is about the battle between Congress and the executive branch. We'll be right back after we take a short break. This is FRESH AIR.

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GROSS: This is FRESH AIR. And if you're just joining us, my guest is Emily Bazelon, a staff writer for The New York Times Magazine. Her latest article is titled "What Happens When A President And Congress Go To War?" She's also recently written about Attorney General William Barr and his maximalist view of executive power.

We are living in such a politically divisive time now in terms of Congress and the courts and, of course, opinion about the president himself. When the founders created the separation of powers, the three coequal branches, I think they were counting on a level of, like, honesty and willingness to work together. Correct me if I'm wrong (laughter).

BAZELON: (Laughter).

GROSS: (Laughter) And I'm wondering if, like, they never - if it's possible that they never envisioned the place where we are now in terms of political divisiveness.

BAZELON: I think the founders were visionaries in terms of how much the system interlocks and overlaps, right? So they were so worried about any one branch getting too powerful and too dominant over the others that they designed a system that prefers gridlock, prefers inaction, to some kind of true dominance with impunity, to anything that could truly be authoritarian. That's, at least, what they talked about at the time and how I think they designed our separation of powers.

They didn't think, though, about political parties. There's nothing in the Constitution about parties at all. And so the kind of polarization that we have right now is something that the founders really didn't grapple with. One way to think about this is it's amazing how effective the Constitution remains even though it doesn't make any sort of provision for political parties, which are so integral to how our system works today. Another way to think about it is that the Constitution is old, and it's getting rickety. And it's not taking into account polarization sufficiently.

It can get bent out of shape by one branch of the government, in this case perhaps the president, if that person is aided and abetted by his party, if people start to put party over institutional concerns. And I think that's a real concern right now as we watch the Republican Party line up almost uniformly behind President Trump. Even though these are members of Congress who could also be thinking in terms of the institutional prerogatives of Congress, that doesn't seem to be their framework.

GROSS: Can you also argue that the Constitution gets bent out of shape if the judiciary becomes too politicized, if there are so many judicial appointees and Supreme Court appointees who are appointed for ideological reasons as opposed for, you know, judicial temperament and judicial knowledge and fairness and objectivity?

BAZELON: You could certainly argue that. The framers didn't do a whole lot to protect us from that because they gave life tenure to all the federal judges. And it's also important to remember that the Supreme Court has played a very reactionary role in American politics at moments since the founding.

So when you think about Reconstruction, which was this amazing effort after the Civil War to provide equal rights to make sure that African Americans were able to recover from slavery and become equal citizens, it was the Supreme Court that really helped gut Reconstruction. In the early 20th century, you see the Supreme Court stop state governments from passing laws that were protecting workers and making sure that there were limits to the working day and other kinds of safety regulations.

So the Supreme Court does not always come through for kind of the side of progress and the side of equal rights. And I'm not sure the framers, in giving judges lifetime tenure, really gave enough thought - I mean, I don't mean to sound like I'm telling them how they should have done their business.

But when you're thinking about the role of the courts, it's important to remember that they have been a reactionary force in the past. And we may put too much faith in them to kind of save us at moments when the other branches seem to be in conflict or not doing their jobs.

GROSS: Emily Bazelon, thank you so much for talking with us.

BAZELON: Thanks so much for having me.

GROSS: Emily Bazelon is a staff writer for The New York Times Magazine. Her latest article is titled "What Happens When A President And Congress Go To War?"

If you'd like to catch up on FRESH AIR interviews you missed, like this week's interviews with country singer Allison Moorer or poet Saeed Jones, whose new memoir is about growing up black, gay and closeted in Texas in the '90s, or with journalist David Owen about hearing and hearing loss, check out our podcast. You'll find lots of FRESH AIR interviews.

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GROSS: FRESH AIR's executive producer is Danny Miller. Our interviews and reviews are produced and edited by Amy Salit, Phyllis Myers, Sam Briger, Lauren Krenzel, Ann Marie Baldonado, Heidi Saman, Mooj Zadie, Seth Kelley and Joel Wolfram. Roberta Shorrock directs the show. I'm Terry Gross. Transcript provided by NPR, Copyright NPR.