Bill Barr: One Man Judiciary
“I told you so” is not something anyone ever likes to hear. But in the time sandwiched between the eventful day that the redacted Mueller report dropped and Attorney General William Barr’s four-page preview of it, it was predicted that Barr would face severe scrutiny for issuing a bottom-line summary. Four pages of highlights could not possibly capture the depth and complexity of the special counsel investigation into Russian interference in the 2016 election and possible obstruction of justice by President Donald Trump.
During Wednesday’s Senate hearing, the wreckage from Barr’s decision was laid bare.
Barr struggled with the inherent contradiction in his decision to first make public his brief takeaways, but not release Mueller’s own, more detailed summaries of the evidence until later.
Worse, when Barr was asked why he chose to release his micro-summary instead of Mueller’s longer, but still digestible, executive summary, he had no good answer to why a short summary was unacceptable but an even shorter one was. And this admission was made worse by another admission: That when he wrote his four-page summary, Barr had yet to review the warehouse of data that underlies the report. (And he still hasn’t reviewed it.)
Why would Barr decline to release Mueller’s mini-assessment in favor of his own, when Mueller had a more granular and global view of the case, the findings, and the evidence? Why did Barr seek to substitute his legal and factual conclusions for Mueller’s while the report was still being redacted?
Barr’s answer, remarkably, was that it was Mueller’s fault. Barr claimed that Mueller didn’t deliver a report with the promised redactions for grand jury information already in place, which forced him to come up with his own, publicly releasable, summary.
But in Mueller’s March 27, 2019 letter expressing concern with Barr’s four-pager (released two days prior), Mueller stated that his summaries were in fact redacted to account for grand jury material. By Mueller’s account, that part of the report was all-but tied up in a bow for Barr, publication-ready.
Let’s be clear, however: Nobody but Barr or Mueller or outgoing Deputy Attorney General Rod Rosenstein has the first-hand knowledge to say, for sure, whether the correct decisions were made about releasing the Mueller report and its summary. But one thing is for certain. Barr’s decision to veer away from Mueller and reach his own conclusion on obstruction without simultaneously making public Mueller’s carefully-rendered work created yet another national political rift.
Why would he choose to do that?
Barr declared at the hearing that the report was “his baby” once Mueller handed it off, without reckoning with the benefits of staying on the same page as Mueller. Mueller knew this was a mistake. It’s why he sent the March 27 letter chiding Barr about the four-pager.
The entire point of appointing a special counsel is independence. Because a special counsel is apolitical, his ultimate conclusions are more likely to get public buy-in across the political spectrum than an attorney general’s. An independent prosecutor is not biased towards or against any political party—only toward the rule of law and the institution of the DoJ. Nor is he worried that his boss will fire him for political reasons. This is why Congress passed a statute post-Watergate that insulated the special counsel (then called an “independent” counsel) from unfettered presidential power to hire and fire. That statute expired, and here we are.
Think of it this way: Parents know that it’s best to confront a child’s wrongdoing as a team. Given the chance, kids know how to play mom off of dad or vice versa, and when they do, the parents lose power and influence. By choosing to speak with a fractured voice, Barr weakened the authority and integrity of the DoJ. That decision came at a price. A high one.
A final take-away from day one of Barr’s testimony has to do with obstruction of justice. Barr’s answers regarding why he decided that a jury could not find beyond a reasonable doubt that Trump obstructed justice were highly lawyered, nuanced, and complex. Some have called his responses misleading. But there are longstanding, legitimate divides amongst constitutional scholars over the scope of presidential power. Barr dove right into that debate. The thing is, unless you are a constitutional scholar yourself, you might have missed it.
Barr’s view goes like this: Obstruction requires knowing and deliberate efforts to impede an investigation. The president is the boss of all federal criminal investigations. So if he impedes an investigation for reasons that would justify firing someone—like, say, a concern that the special prosecutor was acting pursuant to a conflict of interest—an obstruction case against the president necessarily falls apart.
Barr used the word “normal” to justify his decision to follow DoJ protocol on some topics—like making an up or down decision on whether there is sufficient evidence to prosecute a crime. But it’s not “normal” to be in a posture to fire the prosecutor that is investigating you. Most of us don’t have that power or luxury. So “normal” is not a word that fairly applies to a criminal investigation of the president.
At the end of the day, Barr played multiple roles at his hearing: that of Trump’s lawyer, a one-man Supreme Court of the United States, a criminal jury, and an attorney general.
He played the role of Trump’s lawyer by making the best possible case for his “client” as to why the evidence of a crime was insufficient.
He played the role of the Supreme Court by making a highly sophisticated call regarding the intersection between the president’s power of appointment and the implied power of removal of officers under Article II of the Constitution on one hand, and the criminal obstruction of justice law on the other. (A different “Court” might find, for example, that the president can obstruct justice even if he makes up a potentially pretextual excuse for what amounts to ending a criminal investigation into himself).
He played the role of criminal jury because, although he was—rightly—careful to frame his conclusion on obstruction as not exoneration but a lack of sufficient proof to convict Trump beyond a reasonable doubt at trial, he did make the ultimate conclusion on a key question of fact: Did the president take steps to fire Mueller in order to stop the investigation? Or for some other legitimate reason?
Barr added to this question a follow-up, which is not found anywhere in the law: If it’s the latter, was Trump planning to replace Mueller with a legitimately qualified and unbiased alternative? Barr argued that, because Trump had the power to appoint Mueller’s replacement, the exercise of his power to remove was virtually above the criminal laws.
But buyer beware: This is the very argument Barr made in his June 2018 letter to Trump, which some construed as a job application. It should come as no surprise. A Republican Senate confirmed him nonetheless, so congressional calls for his resignation fall short. He is the attorney general, after all, and that role is ill-defined under the law.
Barr might be right, at least partially, about the scope of presidential power. But that complicated call is one that’s best left for scholars, historians, and federal judges—not a president’s political appointee who is not electorally accountable.
For today, the fate of this presidency is where it should be: in the hands of Congress—and ultimately, the American voters.