Donald Trump held a videoconference with governors a couple of weeks ago and said, “You’re going to call your own shots.” What the president neglected to mention is that Attorney General Bill Barr would be monitoring those “shots” and weighing litigation against officials whose decisions he dislikes.
The first sign of trouble came in early April, when the Republican lawyer appeared on Fox News and criticized state efforts to address the pandemic as “draconian.” Barr, despite having no background in public health or epidemiology, went on to call for the end of mitigation measures at the end of April. “I think we have to allow people to adapt more than we have,” he said.
Last week, the attorney general went further, raising the possibility of federal legal action against states that impose public-safety measures the attorney general disapproves of. As NBC News’ Pete Williams reported, Barr took yet another step.
Attorney General William Barr directed the nation’s federal prosecutors Monday to watch for restrictions imposed by state and local governments during the coronavirus pandemic that may go too far, violating constitutional rights.
In his directive, Barr wrote, “Many policies that would be unthinkable in regular times have become commonplace in recent weeks, and we do not want to unduly interfere with the important efforts of state and local officials to protect the public. But the Constitution is not suspended in times of crisis.”
The attorney general added, “If a state or local ordinance crosses the line from an appropriate exercise of authority to stop the spread of COVID-19 into an overbearing infringement of constitutional and statutory protections, the Department of Justice may have an obligation to address that overreach in federal court.”
To that end, as the NBC News report explained, Barr told the assistant attorney general in charge of the Civil Rights Division, Eric Dreiband, and all of the country’s U.S. attorneys to “be on the lookout for state and local directives that could be violating the constitutional rights and civil liberties of individual citizens.”
Matthew Schneider, the top federal prosecutor in Detroit, will help lead the effort.
Donald Trump endorsed the initiative yesterday, telling reporters the attorney general “doesn’t want people to be held up when there’s no reason for doing it.”
Of course, for officials pursuing mitigation efforts, in coordination with public-health officials, there’s absolutely a reason for restrictions: the goal is to save lives and prevent the spread of a deadly virus.
Among the problems with this is the inherent challenge of ambiguity: Barr wants federal prosecutors to “be on the lookout” for pandemic restrictions that may be “overbearing” to the point of legal excess. But in practical terms, state and local officials exploring life-saving options need guidance with far more specificity: what some see as “overbearing,” others may see as limited and responsible. The subjective nature of the directive tells the relevant players very little.
The result is likely to be a chilling effect of sorts, with state and local officials viewing every alternative through an intimidating lens: “If we agree to pursue this mitigation strategy, will the Justice Department come after us?”
It’s a recipe for inaction — which I imagine is the point Bill Barr hoped to convey.
