Jurisprudence

William Barr Is Jeff Sessions Without the Baggage

William Barr
William Barr.
Department of Justice

It’s easy to see why Donald Trump nominated William Barr to serve as the next attorney general of the United States. Barr has spent more than a year publicly auditioning for the job, saying everything Trump plainly wants to hear: The president was right to fire FBI Director James Comey, to criticize special counsel Robert Mueller for hiring a number of Democratic prosecutors, to call for the investigation of Hillary Clinton over the Uranium One deal. Barr even told the New York Times that the Justice Department was “abdicating its responsibility” by investigating Trump’s associates but not the uranium deal, claiming, falsely, that there is more basis for scrutinizing Clinton than potential Russian collusion.

These views are both absurd and ominous given that, if confirmed, Barr will presumably oversee the Mueller probe. So, too, is Barr’s recommendation in 1992 that President George H.W. Bush pardon six key players in the Iran-Contra scandal, four of whom had already been convicted of lying to investigators. But the sad truth is that Barr is probably the least dangerous person Trump would plausibly choose to serve as America’s chief law enforcement officer. He is neither an outright hack like putative Acting Attorney General Matthew Whitaker nor a vicious but somewhat inept racist like former Attorney General Jeff Sessions. At best, Barr will competently execute Sessions’ brutal agenda. At worst, he will run interference for Trump behind the scenes in a manner that stretches the boundaries of executive authority.

Because Barr previously served as attorney general from 1991–93 under Bush, his ideology is mostly a matter of public record. It seems to align perfectly with the Trump administration’s policies and those of most Republican presidential administrations. At his confirmation hearings in 1991, Barr told the Senate that he does not believe the Constitution protects the right to abortion access. His Justice Department carried out that belief, urging the Supreme Court to overrule Roe v. Wade and uphold a law that, among other things, compelled married women to notify their husbands before terminating a pregnancy. (He lost.) There is little question that Barr will vigorously defend the Trump administration policy prohibiting unaccompanied immigrant minors from obtaining abortions, even in the case of rape.

Similarly, Barr has taken a hard-line stance against LGBTQ rights. In a 1995 law-review article, he condemned “secularists” for using “law as a weapon” to “ratify, or put on an equal plane, conduct that previously was considered immoral”—namely, homosexuality. Barr condemned a D.C. law that prohibited Georgetown University from discriminating against a gay student group by denying them equal access to services and facilities. “This kind of law dissolves any form of moral consensus in society,” Barr wrote. Sessions would agree: As Alabama attorney general, he tried to prevent LGBTQ students from meeting at a public university, alleging that they would illegally promote “sodomy.”

As Faiz Shakir, American Civil Liberties Union national political director, warned on Friday, “William Barr’s record suggests that he will follow Jeff Sessions’ legacy of hostility to civil rights and civil liberties.” His past opposition to equal treatment for gays probably means that his Justice Department will maintain Sessions’ fierce hostility toward LGBTQ rights. Over the past two years, the DOJ has argued that federal civil rights laws do not protect gay or transgender people. It has asserted that many businesses have a First Amendment right to turn away same-sex couples. And it has defended Trump’s ban on transgender military service by proclaiming that trans people are disordered deviants. There is no reason to believe that Barr will temper these extreme anti-LGBTQ positions.

Nor is Barr likely to tone down Sessions’ draconian approach to immigration and crime. During his previous tenure as attorney general, Barr proved to be a drug warrior, immigration hawk, and law-and-order stickler. Much like Sessions, he pushed funding for border barriers, targeted “criminal aliens involved in street gangs,” and tried to prevent asylum-seekers from entering the United States. In a 1992 interview, he told the Los Angeles Times that “violent crime” and “gangs” were a “high priority,” in addition to “prosecuting the war on drugs.” During a 1999 panel of attorneys general, Barr linked the growth of the carceral state to falling crime rates—a position contradicted by current research.

Notably, Barr also dismissed concerns that racism had infected the criminal justice system. Acknowledging the higher rate of incarceration among black Americans, Barr insisted that “people are treated equally” and racial disparities were not the result of discrimination. He suggested that black people receive longer sentences because they tend to use crack cocaine more frequently, but also that the stringent mandatory minimums for crack do not reflect “discriminatory intent.” (They almost certainly did.) Moreover, Barr blamed racial disparities on geography, explaining that “large cities, with a high proportion of minorities, are in states that have heavier penalties.” (He did not question whether they created these penalties to target blacks.) This defense of mandatory minimums, severe drug laws, and mass incarceration of blacks indicates that Barr will continue Sessions’ policies directing prosecutors to aggressively seek maximum sentences for offenders.

With regard to DOJ practices, then, Barr will pick up where Sessions left off. But will he do what Sessions would not, and interfere with the special counsel? Barr is already on the record disapproving of Mueller’s probe as well as his personnel. But he is not categorically opposed to special counsel investigations. Testifying before Congress in 1999, Barr said he objected to an independent counsel (over whom the executive has no control) but supported, when appropriate, a special counsel (who answers to the attorney general). “There are cases,” Barr said, when the attorney general “should bring someone in from the outside that has independent stature, experience, a broader perspective, and sort of an independent power base if you will to supervise a case.”

“The political process will dictate when that’s appropriate,” Barr continued, “and will also assure that appropriate people are appointed.” He added that the special counsel should be “still subject to the supervisory authority of the attorney general, although perhaps not removal, except for cause.”

Barr has already implied that Mueller’s investigation may not be appropriate. He may therefore feel free to exercise his “supervisory authority” to, say, limit the scope of his probe or restrict the publication of his findings. But it does seem that Barr would hesitate to fire Mueller, unless he could come up with some ostensibly legitimate reason. It’s impossible to say at this point, but the momentum of the Mueller investigation may be so great that Barr cannot get in its way. On the other hand, he declared during his 1999 testimony that one job of the attorney general is to “take the heat” for controversial decisions to shut down investigations. “If the attorney general ultimately is willing to take the heat and say, ‘You’re not going to go down that bunny trail,’ they can make that call,” Barr said.

In his 1991 confirmation hearing, Barr was commendably frank, even earning plaudits from Joe Biden. He owes the Senate the same candor today. Democratic senators should ask Barr to deliver the same promise that Attorney General Elliot L. Richardson gave in 1973: not to interfere with the special prosecutor. If Barr refuses, Democrats should not feel obliged to support him. Trump likely has enough GOP votes to place him in the Justice Department either way. If Barr wants to preserve his ability to obstruct the Mueller probe, let Republicans dirty their hands with his confirmation.