William Barr: defender of the presidency or a threat to rule of law?

Via Financial Times

In November, hundreds of lawyers from the Federalist Society, an influential conservative group which has been in the ascendancy under Donald Trump, squeezed into the grand ballroom of the Mayflower Hotel to hear William Barr speak.

Giving the keynote address, the US attorney-general delivered a partisan defence of the president, accusing “the Left” of indulging in a “systematic shredding of norms” and of conducting a “progressive holy war” against conservatives.

More striking still was the way that America’s most senior law enforcement official tried to recast the national origin story of the US.

The revolutionaries had not fought against the “monarchical tyranny” of King George III, Mr Barr argued, but instead had the House of Commons in their sights. “The patriots well understood that their prime antagonist was an overweening Parliament,” he said.

His argument served to underline one of Mr Barr’s main themes: that the threat to the constitution in the Trump era is not from the White House, but from the lawmakers and judges trying to constrain the presidency.

At the close of his remarks, Mr Barr received a standing ovation.

Since taking office in February 2019, Mr Barr has become one of the president’s most effective and controversial appointees.

Protesters hold up letters that reads ‘Huge Liar’ beside a cardboard cutout of Attorney General William Barr ahead of his appearance before the Senate Judiciary Committee, following the release of the Mueller report, in front of the White House in April
Protesters outside the White House ahead of attorney-general William Barr’s appearance before the Senate Judiciary Committee, following the release of the Mueller report in April 2019 © Clodagh Kilcoyne/Reuters

He has worked to undermine the Russia investigation that hung over the first two years of Mr Trump’s presidency and to block efforts by Democrats in Congress to investigate the administration. He even served as a sort of field commander for the president, marshalling federal forces in the capital to quell the protests and riots that followed the killing of George Floyd by police.

In doing so, Mr Barr has helped to shore up the presidency of a man whose instincts about executive authority largely align with the attorney-general’s own long-held beliefs.

But he has also triggered an extraordinary backlash, including from within his own Department of Justice.

Last week, two current serving prosecutors testified before Congress that the attorney-general had bent the DoJ to his own political and personal whims, including in cases linked to Mr Trump. Their testimony followed two open letters this year signed by thousands of former justice department lawyers calling on Mr Barr to resign.

For his many critics, Mr Barr is one of the Trump administration’s great villains, perhaps even more so than the president himself.

Donald Ayer, a former top Republican justice department official who served with Mr Barr in the George HW Bush administration, told Congress last week that the attorney-general was a danger to the country.

“I believe that William Barr poses the greatest threat in my lifetime to our rule of law and to public trust in it,” he said, explaining why he had come to testify.

“That is because he does not believe in its core principle that no person is above the law. Instead, since taking office, he has worked to advance his life-long conviction that the president should hold virtually autocratic powers.”

Former Special Counsel Robert Mueller is sworn in to testify before a House Judiciary Committee hearing on his investigation into Russian interference in the 2016 presidential election
Former Special Counsel Robert Mueller is sworn in to testify before a House Judiciary Committee hearing on his investigation into Russian interference in the 2016 presidential election © Tom Brenner/Reuters

Determined to correct ‘overreaching’

When Mr Barr was nominated in January 2019, a long-running investigation into Mr Trump’s links with Russia still hung over the White House. Several of Mr Trump’s allies had been convicted or indicted, and the question remained as to who from the president’s inner circle Robert Mueller, the special counsel leading the probe, might ensnare next.

Today, the justice department under Mr Barr’s control is preoccupied with a different question that aligns with the president’s oft-repeated declaration that he was a victim of a politically-motivated witch-hunt. Why was it, Mr Barr is asking, that Mr Trump was ever investigated in the first place?

This remarkable turnround has come in fits and starts over the past 18 months, with Mr Barr repeatedly taking personal action to shift the prevailing narrative about the 2016 election away from Russia’s interference towards what he sees as a dangerous attempt by US law enforcement to investigate an opposition political candidate.

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“The attorney-general sees much of what went on in those cases as the result of untoward overreaching by the department prior to his tenure,” said George Terwilliger, who worked as deputy attorney-general when Mr Barr was attorney-general in the George HW Bush administration. “He’s bound and determined to correct that overreaching.”

The effort began before Mr Barr took office, with a memo he sent to the department arguing that Mr Trump could not be investigated for obstruction of the Russia probe. He then had his first major opportunity to influence perceptions of the investigation when it wrapped up shortly after he was confirmed in the role.

Mr Mueller submitted his final report to Mr Barr in March 2019 having failed to establish a criminal conspiracy between Mr Trump and Moscow. But his report detailed repeated contacts between Russians and the Trump campaign, as well as a series of instances of possible obstruction.

Mr Barr issued his own letter describing Mr Mueller’s findings weeks before releasing the actual report, which Mr Mueller claimed had created confusion about the conclusions, and he subsequently defended Mr Trump at a press conference as he published the full document. A federal judge in March accused Mr Barr of “distorting the findings” of the Mueller probe.

Soon, the attorney-general would begin to try to turn the tables, appointing a US attorney to investigate the origins of the Russia investigation and personally travelling to Italy and the UK to seek co-operation from US allies to ensure the probe’s success. But it is in recent months that Mr Barr has taken his most dramatic steps.

Roger Stone, the longtime ally of Mr Trump, had been convicted at trial in November for lying to Congress about his efforts to contact WikiLeaks during the presidential campaign. On February 10, four career prosecutors in the case filed a memo recommending Mr Stone served as much as 108 months in jail. Late that night, Mr Trump denounced the filing on Twitter. The next day, all four prosecutors quit the case shortly before a new memo appeared on the court docket on Mr Barr’s orders, recommending less jail time. He was eventually sentenced to 40 months.

Prosecutors had recommended that former Trump campaign adviser Roger Stone serve as much as 108 months in jail for lying to Congress. They quit when William Barr ordered the court docket be changed to recommend less jail time
Prosecutors had recommended former Trump campaign adviser Roger Stone serve as much as 108 months in jail for lying to Congress. They quit when William Barr ordered the court docket be changed to recommend less jail time © Mary F. Calvert/Reuters

The second associate of Mr Trump to receive a helping hand from Mr Barr was Michael Flynn, the former national security adviser prosecuted by Mr Mueller for lying to the FBI about his calls with the Russian ambassador before Mr Trump took office. Mr Flynn had successfully persuaded the Russians to temper their response to sanctions imposed by the Obama administration for election meddling.

In May, after Mr Flynn had sought to withdraw his earlier guilty pleas, Mr Barr moved to dismiss the case, citing evidence that the FBI had not followed proper procedure in its investigation. The trial judge in Mr Flynn’s case, Emmet Sullivan, has resisted the move, but an appeals court last week ordered him to grant the dismissal, saying the government’s motives could not be questioned. Mr Trump praised the decision in a tweet attacking James Comey, who was director of the FBI when Mr Flynn was interviewed and who the president later fired.

“Is James Comey and his band of Dirty Cops going to apologise to General Michael Flynn (and many others) for what they have done to ruin his life?,” he tweeted.

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“Other attorneys-general in the past arguably have put thumbs on the scale a little bit,” says Harry Litman, a former US attorney appointed by Bill Clinton who initially welcomed Mr Barr’s nomination. “Barr seems to have come down like a ton of bricks in a series of cases.”

After Michael Flynn, the former national security adviser, sought to withdraw his earlier guilty pleas, William Barr ordered the DoJ to dismiss the case, citing evidence that the FBI had not followed proper procedure in its investigation
After Michael Flynn, former national security adviser, sought to withdraw his guilty pleas, Mr Barr ordered the DoJ to dismiss the case, citing evidence the FBI had not followed proper procedure in its investigation © Jonathan Ernst/Reuters

In the Stone case, Mr Barr has said he viewed the original sentencing memo as overly harsh, and acted to reverse it even before Mr Trump’s tweet. In an ABC interview in February, he rebuked the president for tweeting about justice department cases and said that he was “not going to be bullied or influenced by anybody,” including Mr Trump.

Both matters were handled out of the US attorney’s office for the District of Columbia, where Mr Barr had installed a close aide at the start of the year. And both have sparked a rebellion from within the justice department. Two serving frontline prosecutors appeared before Congress last week to criticise his leadership.

One, Aaron Zelinsky, had helped to convict Mr Stone. He told Congress his team had faced heavy internal pressure within the US attorney’s DC office to water down their sentencing recommendation because Mr Stone was an ally of the president. He said the events he witnessed were a violation of the oath every prosecutor takes to do impartial justice.

“In the United states of America we do not prosecute people based on politics and we don’t cut them a break based on politics either. but that wasn’t what happened here,” he said. “Roger Stone was treated differently because of politics.”

Prosecutor Aaron Zelinsky told Congress, via video link, his team had faced pressure within the US attorney’s DC office to water down their sentencing recommendation because Roger Stone was an ally of the president
Prosecutor Aaron Zelinsky told Congress via video link his team had faced pressure within the US attorney’s DC office to water down their sentencing recommendation because Mr Stone was an ally of the president © Anna Moneymaker/Pool/Getty

A weaponised department

Mr Trump’s first attorney-general was Jeff Sessions, a former Republican senator who the president repeatedly taunted in public for the supposed crime of recusing himself from the Russia probe because he had been a campaign adviser. His temporary replacement, Matthew Whitaker, was a relative unknown who served just three months.

Mr Barr, by contrast, had served as attorney-general before, and in several other leadership positions in the justice department, during the George HW Bush administration. He was a well-known Republican lawyer with impeccable establishment credentials.

He has portrayed his decision to take the job as an old hand coming to clean up a mess left by others, and to protect the Trump administration, if not Mr Trump personally.

“I saw the department being used as a political weapon in our system. And I thought that was injurious to the rule of law,” he said last week on the podcast of Ted Cruz, the Republican senator who ran against Mr Trump for the party’s nomination in 2016.

“I thought . . . this idea of resisting the duly elected president of the United States and using every device to impair his administration was disastrous and I thought that he needed an attorney-general.”

He has taken to the job with a sense of urgency, confidence in his own judgment and little worry for how his actions are perceived, at least in the liberal US media.

That attitude has earned him comparisons to animals known for their unyielding nature. Mr Cruz on his podcast called him a “honey badger”, referencing a popular online video about the mammal that coined the phrase “honey badger don’t care”.

Within the justice department, he is known as a micromanager, personally scrutinising cases and directing department activity. His style has earned him the nickname inside the department of “The Buffalo”. One former official says: “He just stampedes around and he’s a big powerful creature, better not get in his way.”

During the recent unrest, William Barr moved a variety of federal forces onto the streets of Washington DC and ordered that antiracism protesters be cleared from Lafayette Square
During recent unrest, Mr Barr moved federal forces on to the streets and ordered the clearance of antiracism protesters from Lafayette Square © Roberto Schmidt/AFP/Getty

His hands-on approach was clear during the recent unrest in the capital, when Mr Barr moved a variety of federal forces on to the streets of Washington DC — some of them without insignia — and ordered that antiracism protesters be cleared from Lafayette Square before Mr Trump walked through for a photo opportunity at a church near the White House.

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Mr Barr has said he did not give “tactical commands” to move the protesters, but had wanted an order he gave earlier in the day — when he was unaware of Mr Trump’s planned photo-op — to clear the area implemented. “My attitude was get it done, but I didn’t say, ‘Go do it’,” he told Associated Press.

But his influence has played out in less visible ways. The second prosecutor who testified before Congress last week, John Elias, an antitrust lawyer, said Mr Barr had pushed his division of the DoJ to conduct in-depth reviews into cannabis industry mergers.

Mr Elias claimed the investigations were ordered merely because Mr Barr had disliked the industry, and were a “gross misuse of resources” as the deals plainly did not pose any competition concerns. The DoJ has denied the claim.

“He is reaching down into department decision making in ways no previous attorney-general has done,” says Matthew Miller, a justice department spokesman in the Obama administration. “And he’s doing so in many cases for inappropriate reasons.”

More Russian revelations?

With just five months until Americans go to the polls to either re-elect or reject Mr Trump, Mr Barr has shown little sign of feeling restrained by the feverish political atmosphere.

Earlier this month, he abruptly ousted the Manhattan US attorney, Geoffrey Berman, whose office has delved into Mr Trump’s affairs and investigated his associates. Mr Barr said he was merely making room for a potential appointee, Jay Clayton, the chairman of the Securities and Exchange Commission. His critics suspected an attempt to unduly influence Trump-related matters.

More controversy is yet to come. Mr Barr has indicated that there will be “developments” before the election arising from the results of his investigation into the origins of the Russia probe.

His supporters have argued the attorney-general is motivated merely to do what is right, and to protect the institution of the justice department.

President Donald Trump arrives as attorney-general William Barr looks on during the daily coronavirus briefing at the White House
Since taking office in February 2019, Mr Barr has become one of Donald Trump’s most effective and controversial appointees © Brendan Smialowski/AFP/Getty

“I know it’s not popular, I think that when we look back in history, Bill Barr will be given far more credit for protecting the justice department,” says Jonathan Turley, a professor at George Washington University Law School and longtime friend of Mr Barr’s.

Others believe he has already damaged the credibility of the justice department. As well as hitting morale within the department, questions about political influence driving decisions in criminal cases raise scepticism in the minds of judges who are asked to take the word of prosecutors appearing before them.

“It’s essential both that the work be done on the level but also that it be perceived to be done on the level,” says Matthew Axelrod, a former prosecutor who was a senior justice department official in the Obama administration.

“We need the public to trust the credibility of the Department of Justice for it to be effective,” says Barbara McQuade, a professor at the University of Michigan Law School who was a US attorney appointed by Barack Obama. She said changing perceptions that the justice department is politicised would require significant effort, and also time. “I don’t think it’s the kind of thing you can switch on or off overnight.”

The attorney-general himself, however, has indicated little concern for the verdict of historians. When asked how future generations would view his decisions in the Flynn case, Mr Barr told CBS News in May.

“History is written by the winners, so it largely depends on who is writing the history.”