The Enigma of Bill Barr

Is Bill Barr a Justice Department “company man” who is taking a final, daunting assignment in public service to protect the Department of Justice from political interference from the president, reaffirm its legitimacy in the eyes of the public, and ensure the rule of law is upheld?

Or is he a wolf in sheep’s clothing, donning the garb of traditional Attorney General paeans to independent judgment and rule of law in order to position himself to protect Trump from ballooning federal, state, and congressional investigations?

He certainly can’t be both. These are questions that loom over his confirmation hearings, and will surely continue should he become U.S. attorney general.

The Department of Justice “Company Man”

At his hearing before the Senate Judiciary Committee, Barr fluidly and comfortably took on the “company man” role, explaining his dedication to the institution as his reason for taking on what many describe as a thankless job in Trump’s administration. He espoused views of political noninterference with the Department and independent judgment of the attorney general that seemed to give comfort to his questioners, even though they would surely irritate Trump if he were watching.

Specifically, Barr described Robert Mueller — whom Trump consistently but without basis decries as “totally conflicted” and leading “13 Angry Democrats” (sometimes the number is 17) on a “witch hunt” — as a good friend and straight shooter. Indeed, in the hearing Barr explicitly rejected the characterization of the Russia investigation as a “witch hunt,” although he later defended Trump’s use of the term during a colloquy with Sen. Mazie Hirono (D-Hawaii). He also indicated he holds Deputy Attorney General Rod Rosenstein, another frequent target of Trump’s disdain, in “high esteem.” And he indicated that Jeff Sessions “probably did the right thing recusing himself” even though that recusal decision was Sessions’ unforgivable sin in Trump’s eyes.

In addition to his willingness to distance himself from Trump’s slurs against the Justice Department and its officials, Barr expressed views on some of the president’s constitutional powers and their limits that resonate within the mainstream. He said presidential interference in an investigation in which the president has a personal interest would violate the constitutional obligation that the president “take care that the laws be faithfully executed.” And in a colloquy with Sen. Chris Coons (D-Del.) on the pardon power, he acknowledged that while the president has the authority under the Constitution to pardon a family member, that power can be abused. He also acknowledged that use of the pardon power to protect himself in a criminal investigation could constitute criminal obstruction of justice by a president. At a time when the sitting President’s campaign and personal business interests are under federal and state investigation — and given Trump’s proclivity to reward those who show personal loyalty and demean those who cooperate with law enforcement — the attorney general’s views on these matters may turn out to be of great national import.

Why is Barr so confident he will be able to withstand threats to DOJ’s independence and legitimacy? He explained to Senators that at age 68 and at this stage in his career, after having served as George H. W. Bush’s attorney general from 1991-1993 and without further political aspirations, he essentially has all the gravitas he needs and nothing to lose: “I am in a position in life where I can provide the leadership necessary to protect the independence and reputation” of the Department.   

Those sentiments sound promising. The Department desperately needs a credible defender and morale booster amid the withering political maelstrom of the Trump era, now all the more important as Department employees endure furloughs and work without paychecks. Likewise, the expression of generally mainstream views on critical legal issues should reassure us about Barr’s intentions toward the Mueller investigation and likely conduct as attorney general more broadly. Or should it?

Trump’s Man at Justice

There’s reason to believe Barr may not be the staunch defender of Justice Department and rule of law norms that we saw at the outset of his confirmation hearing, or at least that he is a complex character capable of deep contradiction.

Any nominee who has previously held appointed office knows his or her audience before the Senate Judiciary Committee. So we should also look at Barr’s actions prior to the Senate hearing room’s bright lights and the public scrutiny that accompanied his nomination by President Trump. How has Barr reacted during the last three years as Trump attacked judges, prosecutors, law enforcement, and intelligence professionals that the president perceives as either an investigative threat to himself or insubordinate for doing their jobs? What was Barr’s response — as part of the small club of former attorneys general — as the president took to Twitter during Paul Manafort’s criminal proceedings in a manner that appeared to be an effort to hamper witness cooperation or dangle a pardon? Or as Trump railed against the properly executed search warrants of Manafort’s and Michael Cohen’s properties, or continued to claim that his election opponent Hillary Clinton should be investigated and locked up?

The data points on Barr’s activities during this period are troubling.

Rather than speak out about Trump’s worst transgressions, Barr seemed to add fodder to some of them. In a 2017 article in The New York Times, Barr simultaneously denigrated Mueller’s investigation and supported a baseless conspiracy theory about supposed improper involvement of Hillary Clinton in multiple federal government agencies’ unanimous approval of a uranium purchase (sometimes called the Uranium One deal). Barr wrote to Peter Baker of the Times that he had “long believed that the predicate for investigating the uranium deal… is far stronger than any basis for investigating so-called collusion.’” Barr’s commentary not only fed a discredited conspiracy theory about Trump’s political opponent, it also implies a very low regard for Mueller’s investigation from its foundations.

Equally troubling, in the same correspondence with the Times, Barr called for investigation into “various ‘national security’ activities carried out during the election” — a reference to another set of baseless allegations of law enforcement abuses during the 2016 campaign that President Trump has repeatedly emphasized in his attempts to shift public opinion against the Justice Department. Worse yet, Barr went so far as to say that if the Department of Justice is not pursuing the uranium conspiracy, the Clinton foundation, or supposed election-era abuses, it “is abdicating its responsibility.” After a written statement like this little more than a year ago, and in the context of relentless attacks by the President against the Department of Justice, can we really expect Barr to shore up the morale and credibility of the institution?

When Sen. Richard Blumenthal (D-Conn) asked Barr about this during his Senate hearing, Barr took a long pause before stumbling his way through an unsatisfactory response in which he backpedaled and finally quoted a different Republican former attorney general (Mike Mukasey) who had spoken out against investigating political opponents. On the Uranium One conspiracy theory, Barr said he had simply been “using it really as an example of the kinds of things that were floating around and some people felt had to be looked at” — a characterization that is troubling both because it fails to explain why he wrote it is more deserving of investigation than Russian collusion, and because statements about “things that were floating around” that “some people felt” should be investigated sound a lot like the type of obfuscation President Trump often uses to claim a basis for allegations when there in fact is none.

That brings us to other worrisome signs during the hearing. Barr committed to Sen. Lindsey Graham (R-S.C.), the newly installed committee chair, that, if confirmed, he would look into allegations that the FBI agents — including Peter Stzrok, Lisa Page, and Bruce Ohr — sought to derail Donald Trump’s presidential bid by investigating him and his campaign associates. Barr made that commitment notwithstanding Mueller’s removal of those associated with bias from his investigation, a completed review of the allegations regarding FBI investigations during the 2016 elections by the Department of Justice Inspector General, and numerous congressional inquiries that did not find meaningful evidence of improper investigative acts.

Barr’s strident views on executive power complicate the picture. Whatever his inclinations may be to serve as a bulwark against Trump’s interference with nonpartisan Department investigative functions, one must assess them against the backdrop of Barr’s record of extreme views of the unitary executive.

For example, Barr indicated during the hearing that he thought it appropriate for a president to refer political opponents to the Department for investigation. Barr suggested that the Department would then exercise judgment about whether there was sufficient legal justification to move forward. But it was unclear from Barr’s formulation whether the Department would exercise prudential prosecutorial discretion, or whether – in line with his views of a unitary executive – the Department’s review of a presidential referral would be limited to ethical floors (i.e., reasonable suspicion or probable cause to undertake further investigation, or sufficient admissible evidence to seek a grand jury indictment).

Similarly, Barr acknowledged in his hearing that the pardon power can be abused, but what are the limits? We may have some indication at least of his view on prudential limits to use of the pardon power, or to the lack thereof. During Barr’s previous tenure as attorney general, President H.W. Bush pardoned six Reagan administration officials involved in the Iran-Contra scandal. To the independent prosecutor who had pending cases swept away by the pardons, they meant “people with powerful allies can commit serious crimes in high office, deliberately abusing the public trust without consequences.” Barr, on the other hand, said he “favored the broadest pardon authority” and that Bush had been unfairly critiqued for his decision to pardon all six officials involved. “In for a penny, in for a pound,” Barr said. If Barr supported pardons when the crimes at issue involved senior officials lying to Congress — subverting essential checks and balances of our democracy — would he similarly favor pardons for those who would do so now to protect this president? As attorney general, where will he draw the line on accountability when the public trust is deliberately undermined?

Transparency can be another important component of accountability. And as our colleague Josh Geltzer has explained, Barr was indeterminate at best in responding to Sen. Dianne Feinstein (D-Calif.) on whether he would exercise his discretion to make Mueller’s final report available to Congress and to the public (with appropriate redactions).

So who is Bill Barr? He will have a lot to explain in questions for the record before Senators can make up their minds, and cast their votes, on that question.

IMAGE: U.S. Attorney General nominee William Barr testifies at his confirmation hearing as his image is shown on a television monitor behind him January 15, 2019 in Washington, DC. (Photo by Chip Somodevilla/Getty Images).

 

About the Author(s)

Tess Bridgeman

Senior Editor at Just Security. Former Special Assistant to the President, former Associate Counsel to the President, former Deputy Legal Adviser to the National Security Council (NSC), formerly Served at the Department of State in the Office of the Legal Adviser, in the Office of Political-Military Affairs and as Special Assistant to the Legal Adviser. Currently Senior Fellow and Visiting Scholar, Reiss Center on Law and Security at NYU School of Law. You can follow her on Twitter (@bridgewriter).

Andy Wright

Senior Fellow and Founding Editor of Just Security, Partner at K&L Gates, former Associate Counsel to the President in the White House Counsel’s Office. You can follow him on Twitter @AndyMcCanse.