In a rational world, it might be reasonable to give the attorney general of the United States the benefit of the doubt that he would put the rule of law ahead of his political loyalties. But we live in this world and I’m now less willing than ever to extend that sort of trust to Bill Barr.
My Barr-skepticism admittedly runs deep. Shortly after the release of his Cliff’s Notes version of the Mueller Report, I suggested that there was ample reason to regard him as an unreliable narrator. I thought his handling of the report was odd, and said so, noting his multiple and rather egregious conflicts.
The case against blindly trusting Barr has grown more compelling in the weeks since, and especially given his testimony before the Senate on Tuesday. But let’s start from the beginning.
(1) The essential, fundamental first fact in any discussion of Bill Barr is obviously this: He is Donald Trump’s handpicked attorney general.
And we know what Trump wanted in his AG, because he told us so often. Trump thinks the attorney general’s prime directive should to protect him, Donald Trump … to be, in Trump’s words, “my Roy Cohn,” a fixer and a shield. The president fired Barr’s predecessor, Jeff Sessions, precisely because he wasn’t Roy Cohn. He never forgave Sessions for recusing himself from the Russia investigation and railed at him for opening the door to and then refusing to shut down the Mueller probe.
This brings us to the second obvious reality here: All of Trump’s efforts to obstruct this investigation played out in plain sight and in real time as Trump fired his FBI director, dangled pardons, attacked witnesses, threatened and humiliated his attorney general. These things didn’t happen in darkened alleys, or in whispered conversations picked up by wiretaps. They were broadcast on Twitter and played out under klieg lights.
There was no secret or subtlety about Trump’s endgame; no one could have been under any illusions about what was expected of a Trumpian AG, especially after he installed a hack like Matthew Whitaker in the role of acting attorney general. Whitaker’s only conceivable qualification was his servility.
And yet, Barr – who had watched all of this from close up – eagerly sought out and an accepted the appointment from Trump’s hand.
Pick me, he said. I’m your man.
2. Barr auditioned for the job by suggesting he would protect Trump from charges of obstruction of justice . . . and then did precisely that.
In June 2018, Barr wrote an unsolicited memo to Trump’s team accusing Mueller of pursuing a “fatally misconceived” legal theory of obstruction of justice. He argued that the president should not be investigated for taking actions that were within his powers, even if he used them to block an investigation. That would, of course, include firing the FBI director. Indeed, days after Trump fired James Comey, Barr defending the decision in a Washington Post op-ed.
In that June 2018 memo, Barr argued that Mueller’s investigation “is premised on a novel and legally insupportable reading of the law. Moreover, in my view, if credited by the department, it would have grave consequences far beyond the immediate confines of this case and would do lasting damage to the presidency and to the administration of law within the executive branch.”
He also forcefully defended Trump’s stonewalling of requests for an interview with the special counsel. “Mueller should not be permitted to demand that the president submit to interrogation about alleged obstruction,” Barr wrote. As it turned out, Mueller never talked with Trump.
3. As attorney general, Barr has done exactly what he suggested he would do.
Mueller concluded that he would not exonerate Trump from obstruction of justice charges. Barr could have simply passed on Mueller’s findings to Congress. Instead Barr inserted himself into the supposedly non-political process by quickly determining that the evidence gathered by Mueller “is not sufficient to establish that the president committed an obstruction of justice offense.”
That alone should have set off a fire bell. But there were others.
4. His four page letter to Congress was woefully inadequate and potentially misleading.
In retrospect, Barr’s brief letter was designed more to provide cover to Trump than it was to fairly summarize the findings of Mueller’s investigation. This ought to have been obvious from the beginning, given the paucity of quotes from the actual report. But his attempts to spin the probe was apparently too much for some of Mueller’s team, who were so irked by his sleight of hand that they broke their 22-month silence.
WASHINGTON — Some of Robert S. Mueller III’s investigators have told associates that Attorney General William P. Barr failed to adequately portray the findings of their inquiry and that they were more troubling for President Trump than Mr. Barr indicated, according to government officials and others familiar with their simmering frustrations.
Obviously, we won’t know whether or how Barr misrepresented the investigation’s findings until we see the report; but even then, skepticism about Barr’s redactions seems warranted, especially in light of his comments and evasions this week.
A point (sort of) in Barr’s defense: It’s a fair question to ask why anyone would think that Barr would be willing to sacrifice his reputation by fudging Mueller’s findings, since they will inevitably become public. The short answer is ayfkm?
If we have learned anything at all in the last few years it is that Trumpism is a bonfire of reputations. Or, as Rick Wilson puts it, Everything Trump Touches Dies. Why would Barr be the exception?
5. The overriding question about Barr’s credibility centers on whether he is acting independently of the Trump White House. His answers this week did little to allay concerns.
As CNN reported, “Barr repeatedly refused to answer a direct question as to whether the White House has seen — or will see — the full Mueller report prior to its release. “
That is a change from Barr’s past statement just 11 days ago when he said in a letter sent to the chairmen of the House and Senate Judiciary committees. “Although the President would have the right to assert privilege over certain parts of the report,” Barr wrote in that letter, “he has stated publicly that he intends to defer to me and, accordingly, there are no plans to submit the report to the White House for a privilege review.”
So as of March 29, there were “no plans to submit the report to the White House for a privilege review.” But as of today, Barr wouldn’t answer whether the White House has or would see the report prior to its release. Which suggests, at least to me, that the White House either has or could see the report before its release.
Barr later acknowledged that he advised the White House counsel before his letter went out on March 24. He said that the letter may have been read to them, but they did not get a hard copy of it.
Count me as not reassured.
6. Barr is refusing to seek a court order that would permit the release of grand jury testimony.
It is true that there are considerable legal hurdles to releasing confidential grand jury materials, but they are not insuperable. The special counsel in both the Watergate and Clinton probes sought and received permission to include such materials in their reports to Congress. As Kim Wehle noted in a recent Bulwark article:
In the investigation of President Bill Clinton, moreover, the final report prepared by Whitewater Independent Counsel Kenneth W. Starr was immediately and fully made public. It included more than 3,000 pages of grand jury material, including sexually explicit and embarrassing details on unindicted individuals such as former intern Monica Lewinsky, as well as the president’s own grand jury testimony. In a July 7, 1998, order from the D.C. Circuit, the court authorized Starr to disclose matters occurring before the grand jury “for purposes of Federal Rule of Criminal Procedure 6(e)(3)(i)”—on the rationale that Starr needed to do so in order to perform his statutory duty as independent counsel.
Barr’s refusal to take a similar step was a potentially decisive move by the attorney general. Former federal prosecutor Glenn Kirschner commented:
When AG Barr just said he will not even attempt to seek permission of the Chief Judge of the DC Federal Court to disclose to Congress the grand jury information in Mueller’s report – that was the moment transparency died.
— Glenn Kirschner (@glennkirschner2) April 9, 2019
(Wehle remains optimistic that Congress and the public will eventually get to see much of the material anyway.)
7. But perhaps the most dramatic and troubling indication of Barr’s willingness to do Trump’s bidding came Tuesday in his testimony before the Senate, in which he suggested that he was launching an investigation into “spying” on the Trump campaign.
Barr’s comments seemed to give Trump something he long wanted: a Department of Justice that would not merely protect him, but would investigate and perhaps prosecute his political opponents and critics. Even as he floated the idea – testifying at one point that “I think spying did occur” – Barr admitted he has no evidence that anything untoward had, in fact happened. “I have no specific evidence that I would cite right now, I do have questions about it.”
Barr also admitted that the most important question, is whether the alleged “spying” was “adequately predicated. I’m not saying it wasn’t adequately predicated, but I need to explore that.”
As the Washington Post’s Aaron Blake noted, this was incendiary language for the attorney general:
2 points on Barr and "spying":
1) The use of "spying" is obviously a loaded term — and one Trump favors
2) Surveillance of Carter Page came AFTER he left the Trump campaign. https://t.co/Uc3yoLNFCN
— Aaron Blake (@AaronBlake) April 10, 2019
Predictably, Barr’s comments were eagerly received by his audience of one:
Trump, speaking to reporters Wednesday morning before Barr’s testimony began, blasted Mueller’s probe, referring to it as an “attempted takedown of a president.”
“What they did was treason,” Trump added.
And now, it appears, he has an attorney general willing to do something about it.