Jurisprudence

This Is Still Happening: William Barr

A roundup of Trump administration malfeasance, Part 5.

William Barr against a red background with text in the lower right that says, "This Is Still Happening."
Photo illustration by Slate. Photo by Sarah Silbiger/Getty Images.

This Is Still Happening is a feature in which Slate will attempt to offer an update on Cabinet-level corruption, what could be done to bring the officials to account, and what Democrats are doing in response (generally, nothing). The fifth installment is about the single most effective barrier between Trump and legal liability, William Barr.

The Official: Attorney General William Barr

What Is Still Happening: When William Barr was nominated to replace Jeff Sessions as attorney general, significant segments of the Washington legal establishment supported the move. The fact that Trump was changing his attorney general was not auspicious; Sessions had lost Trump’s support by recusing himself from the investigation of Russian interference in the 2016 election, which the president complained was unfair to him. But Barr had served as attorney general under the George H.W. Bush administration and, as Benjamin Wittes put it, Barr would be an attorney general “steeped in the traditions and culture of the Justice Department,” “who has run the department before and served with distinction in other senior roles,” and “with a long-standing professional reputation as a lawyer to protect.”

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That Barr could be seen as a respected member of Official Washington, however, simply demonstrated how deeply corrupt things were before Trump ever appeared on the scene. His prior career was, in fact, as a partisan enforcer, whose legal advice shaped the various abuses of the first Bush administration, including the decision to kill off the Iran-Contra investigation by pardoning everyone involved. Under Trump, he has achieved the culmination of his purpose, politicizing the Department of Justice to such a degree that it is unrecognizable as an independent institution, serving merely as the enforcement arm for the personal and political aims of Donald Trump, with Barr as the president’s faithful fixer.

Barr’s first major official act was to release his own synopsis of the summary of special counsel Robert Mueller’s then-unreleased report about Russian interference in the 2016 election, possible Trump campaign involvement, and obstruction of justice against the probe itself. In Barr’s letter, faithfully taken by major news outlets as Mueller’s own verdict, the attorney general wrote that the Department of Justice had exonerated Trump of obstruction of justice and that the investigation found no connection between the Trump campaign and Russia:

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The special counsel’s investigation did not find that the Trump campaign or anyone associated with it conspired or coordinated with Russia in its efforts to influence the 2016 U.S. presidential election. As the report states: “[T]he investigation did not establish that members of the Trump campaign conspired or coordinated with the Russian government in its election interference activities.”

A month later, when the actual report came out, it turned out that those brackets marked where Barr had deleted the previous sentence and a half:

The investigation also identified numerous links between the Russian government and the Trump campaign. Although the investigation established that the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome, and that the campaign expected it would benefit electorally from information stolen and released through Russian efforts, …

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The report also made it clear that Mueller’s investigation “does not exonerate” Trump of a crime—Mueller followed DOJ practice precluding the department from indicting a sitting president and did not reach a determination on whether he committed a crime. Instead, he wrote that his investigative team did not have “confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice.” Mueller further outlined eleven episodes that might have constituted obstruction and made a detailed legal analysis explaining how they might qualify as a crime. Barr’s summary analysis of this nearly two-year-long investigation and 181-page report on presidential obstruction, put together in two days, was to conclude that “the report identifies no actions that, in our judgment, constitute” a prosecutable case of obstruction of justice.

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Since the release of that highly misleading summary, Barr has all but given up on trying to be subtle about what he’s doing and whom he’s doing it for. The latest and most blatant action came this week when the DOJ intervened to lower its own sentencing recommendation of Trump crony Roger Stone after Trump sent out some angry tweets, causing all four career attorneys on the prosecution team to quit the case and one of them to resign from the department entirely.

Barr attempted on Thursday to tamp down criticism for the move by saying that it wasn’t done in coordination with the White House and rebuking Trump for public interferences that “make it impossible for me to do my job and to assure the courts and the prosecutors and the department that we’re doing our work with integrity.” Based on his lengthy history of serving the president’s personal interests, though, this was just a signal to Trump to stop saying the quiet part loud. On Friday, we saw further just how hollow Barr’s claims of independence were when the New York Times reported that he had assigned an outside prosecutor to scrutinize Mueller’s prosecution of confessed felon Michael Flynn, whom Trump sought to protect from FBI investigation in 2017, leading directly to Mueller’s obstruction of justice probe.

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The revised sentencing marked the beginning of a full-scale campaign by the president to delegitimize the prosecution of Stone, likely aimed at crafting a justification for a pardon of a man convicted of lying to Congress and tampering with a witness to try to protect Trump. The president’s tweetstorm included an attack on the jury that convicted Stone and the judge who is due to sentence him, and completely unfounded accusations of “prosecutorial misconduct” against the prosecutors who tried the case and of “perjury” against the special counsel who brought it. It also included plaudits for Barr for personally “taking charge of a case that […] perhaps should not have even been brought.”

This is just the latest and most dramatic move by Barr to act as the president’s own Roy Cohn and turn DOJ into a personal weapon for Donald J. Trump. A short list of past such abuses include:

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• After releasing the misleading summary of the Mueller report and holding onto the report itself for nearly a month, Barr held a press conference on the day it was finally released to say that the obstruction of justice efforts Mueller documented were caused by Trump being “frustrated and angered by a sincere belief that the investigation was undermining his presidency.” To this day, Barr’s DOJ has sought to prevent the release of the unredacted Mueller report, arguing in court that the department would be legally allowed to block evidence from Congress if Watergate happened today.

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• In his efforts to diminish the Mueller investigation, Barr lied to Congress, leading to accusations of perjury from members of Congress. During an April 9 hearing of a House Appropriations Committee—after the release of the Barr summary and prior to the release of the Mueller report itself—Barr was asked by Rep. Charlie Crist: “Reports have emerged recently, General, that members of the special counsel’s team are frustrated at some level with the limited information included in your March 24 letter, that it does not adequately or accurately, necessarily, portray the report’s findings. Do you know what they’re referencing with that?” Barr replied directly: “No, I don’t.” This was false. Barr had just two weeks earlier received a letter from Mueller stating that his summary “did not fully capture the context, nature, and substance of this office’s work and conclusions.”

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• That April 2019 committee appearance, during which he lied, was the last time Barr testified before the House. He backed out of a scheduled appearance that May, because he didn’t want to be questioned by a staff attorney. Since then, the administration—backed by legal arguments from the DOJ—has wholesale refused countless subpoenas for documents and testimony related to executive misconduct, including in the impeachment inquiry.

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• The Department of Justice has denied that Barr had anything to do with the Ukraine extortion scheme, but when Trump asked Ukrainian President Volodymyr Zelensky for investigations of Trump’s political rivals in a July 25 call, the president also explicitly encouraged Zelensky to reach out to Barr. Former National Security Adviser John Bolton reportedly writes in his book that he warned the attorney general that Barr was mentioned on the call. (The DOJ has denied this account.)

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Instead of recusing himself from this obvious conflict of interest, Barr has used the powers of the DOJ to cover up for Trump at turn after turn. First, the DOJ’s Office of Legal Counsel blocked a whistleblower complaint about the Ukraine affair from being sent to Congress, in direct contravention of the law. Then, his DOJ crafted a legal rationale for Trump soliciting election interference in that call, an apparent crime, and refused to even investigate it. Then, the DOJ crafted and offered the threadbare legal rationale for Trump’s unprecedented blockade of all congressional subpoenas in the impeachment inquiry.

Finally, after impeachment ended, Barr set up a special process for his own department to do what Trump had tried to get Ukraine to do: investigate unfounded allegations of criminality by Joe Biden, including the claims of Trump’s personal attorney Rudy Giuliani, the point person in Trump’s Ukraine solicitation scheme.

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• Perhaps nowhere has Barr been more effective and persistent than in his efforts to validate the president’s claims that the Russia investigation was a political hit job. During April testimony, Barr told a Senate committee that Trump’s campaign was spied on by the Obama administration, a position that mirrored the president’s and for which no evidence has been produced. After DOJ Inspector General Michael Horowitz found that there was no evidence that the FBI had spied on the Trump campaign, Barr publicly disagreed with that conclusion. He also claimed falsely that Horowitz never “decided the issue of improper motive” by senior Obama officials when Horowitz’s report clearly stated his investigation “did not find documentary or testimonial evidence that political bias or improper motivation influenced” the investigation.

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• In addition to the inspector general’s investigation, Barr appointed a hand-selected attorney, John Durham, to investigate the actions of top Obama officials in the Russia investigation. Top Trump allies in recent days have, along with the president, increased calls for prosecutions of top Obama officials in that case. The New York Times on Thursday reported that Durham’s investigation has recently focused on former CIA Director John O. Brennan, a regular target of Trump’s tirades. Last month, the Times also reported that former FBI Director James Comey was under criminal investigation in a case surrounding years-old leaks.

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• When Barr testified before a Senate committee in April, he suggested that the various investigations he was launching against the previous administration might not result in prosecutions but could instead result in DOJ putting “in rules or prophylaxes against” future investigations of potential wrongdoing by political campaigns. Earlier this month, he fulfilled that promise, announcing that all investigations of 2020 political campaigns must go through him. The move makes Trump’s loyal defender the sole arbiter of whether potential criminal behavior by the president or his campaign will even be investigated, and whether Trump’s political rivals might face politically motivated targeting themselves.

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How Long It Has Been Going On: Barr’s efforts to protect Trump from investigation have been going on since before he joined the administration. In fact, they were probably how he got the job. In June 2018, Barr sent the Department of Justice an unsolicited memo arguing that Mueller was wrong to investigate Trump for obstruction of justice. Six months later, Barr was Trump’s pick to replace Sessions.

More generally, Barr has been a handmaiden to power since the 1980s, when he worked his way up the George H.W. Bush DOJ to eventually become Bush’s attorney general. The Village Voice in 1992 covered much of Barr’s extensive record of apparent misconduct during that time, but none was so blatant as his crafting of the pardons for Bush associates in the Iran-Contra scandal. With Trump already laying the groundwork to pardon cronies convicted by Mueller, such as Stone and Paul Manafort, expect Barr to put his Iran-Contra experience to use at some point in the not-too-distant future.

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What Would Normally Happen: Under ordinary times, Barr likely never would have been approved by the Senate, once it came out that he had written a memo to a president under investigation for obstruction of justice telling him that there should be no such investigation. Even under norms as recent as those of the first year of Trump’s presidency, Barr certainly would have recused himself from that investigation, as Sessions had done. Many of Barr’s actions taken since—such as the Stone sentencing guideline change, the Ukraine subpoena obstruction, and blocking of the full release of the Mueller report—are unprecedented actions, beyond even the measures taken by Richard Nixon’s deeply corrupt Department of Justice. It’s worth noting here that Nixon’s attorney general, John N. Mitchell, was ultimately investigated and convicted of crimes related to his efforts to cover up Nixon’s own criminality.

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In a world where obvious official misconduct still mattered, Barr would have already been impeached and removed as attorney general. At the very least, it would be normal for the House Judiciary Committee to hold hearings into the Stone sentencing situation, calling the four prosecutors who quit the case and Jessie Liu, the former U.S. attorney who was removed from the office just in time for Stone’s sentencing and whose handling of politically significant cases reportedly angered Trump.

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What Democrats Have Done: Virtually nothing. The House voted to hold Barr in contempt of Congress last year for his refusal to turn over information related to the administration’s failed efforts to have a citizenship question added to the census. But that gesture, without a full-scale impeachment inquiry into Barr’s abuse of his position, was mainly symbolic. Democrats are currently fighting several court battles to seek the federal judiciary to enforces its various subpoenas and pry loose information around malfeasance from the Trump administration and DOJ, but that same DOJ is fighting them every step of the way.

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What Is Likely to Be Done: More nothing. On Thursday, Speaker of the House Nancy Pelosi was asked why she didn’t impeach Barr, and she dismissed the possibility, saying that Trump administration wrongdoing “doesn’t mean we’re going to spend all of our time going after every lie that the administration henchmen make to the Congress of the United States.” Pelosi further punted the question of what should happen to Barr, saying the Stone episode “should be investigated,” but pointing to Senate Minority Leader Chuck Schumer’s call for an inspector general investigation.

Sen. Elizabeth Warren has called for Barr to be impeached by the House, criticizing her presidential rivals for not doing likewise. But in calling for impeachment, Warren did not once mention Pelosi by name or seek to put any public pressure on the speaker to actually act on Warren’s request.

The House Judiciary committee, meanwhile, announced this week that Barr had agreed to testify before that committee on March 31. In May of last year, when Barr refused to appear before that committee because the format would have demanded he answer questions under oath from a staff attorney, Democrats responded by eating a bucket of KFC and holding a press conference with a ceramic chicken. If Barr pulls out of this testimony again, who knows what sort of ceramics Democrats might turn to or what fast food they might eat. Given the general inefficacy of the judiciary committee, though, he might not have anything to fear by turning up this time around.

How Impeachable This Stuff Is: Plenty of Trump officials have broken the law, but only one of them is in a position to systematically break the laws about how the law gets enforced. Barr has single-handedly dismantled the independence of the Department of Justice and destroyed any illusion that a president can be punished for outright criminality or prevented from targeting political rivals. His long professional history confirms that the entire post-Watergate theory of presidential accountability—including the notion of “impeachability” itself—has been a hollow sham, propped up by a gullible legal establishment. 10 out of 10.

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