Barr memo suggests: To understand the Trump administration, read Hobbes

William Barr’s hearing before the Senate Judiciary Committee is an opportunity to consider what philosophy of the law, and of the state, underlies the actions of the Trump administration. Not that the president himself is a big reader of philosophical works, but some of those who have had his ear or received important appointments have shown real interest in big-picture, fundamental issues.

To a non-lawyer, Barr’s controversial June 8 memo to Deputy Attorney General Rod Rosenstein looks like a very forceful, erudite, and heavily documented defense of executive branch prerogatives, with a narrow definition, notably, of circumstances under which a sitting president, attorney general, or other DOJ official could be charged with corrupt influence on a judicial proceeding. It comes across primarily as an effort at political advocacy, and certainly merits serious reflection and questioning at Barr’s hearing.

The Barr memo should be read in conjunction with the 2009 Minnesota Law Review article in which then-Judge Brett Kavanaugh argued that, because of the extreme demands of their position, presidents “should be excused from some of the burdens of ordinary citizenship while serving in office,” burdens such as facing civil lawsuits or “criminal investigations or prosecutions.” Although he referred only to urgent challenges facing the country at the time of writing, one might find in Kavanaugh’s article a hint that, by definition, a president is always facing something close to a state of emergency, necessitating special protection for the chief executive.