Washington now waits as Attorney General William Barr redacts Special Counsel Robert Mueller’s report about his investigation into Russian interference in the 2016 election and Congressional Democrats maneuver to extract an unredacted copy plus Mueller’s underlying evidence from the Department of Justice’s grasp. Outside of a small circle of Justice Department officials who have read the nearly 400-page report, few can say for certain how consistent the whole report is with the four page summary Barr released of its principal conclusions, how much important new information its pages contain, and how much of that information will eventually come to public light–all of which remain hotly contested subjects that evolve with nearly every breaking news report.
Despite the uncertainty, some familiar figures have stepped forward to offer their advice on how much faith we should put in the process unfolding within the Department of Justice.
“Bill Barr, our attorney general, deserves the benefit of the doubt,” former FBI Director James Comey counseled in an interview with CNN’s Christiane Amanpour on Tuesday. “Give him a chance to show us what he feels like he can’t show us. I have to imagine that… Mueller wrote the report with an eye toward it being public some day, so I can’t imagine a lot needs to be cut out of it. But let’s wait and see. The attorney general deserves that chance.”
Comey’s comments echoed the views of his friend, Lawfare editor-in-chief Benjamin Wittes, who published an article in The Atlantic on Monday entitled, “Bill Barr Has Promised Transparency. He Deserves the Chance to Deliver.” Wittes argued that the categories of information Barr has proposed to withhold are reasonable and legitimate, if “potentially abusable,” and his stated time frame for producing a redacted document is sufficiently short, so the prudent course is to assume his good faith and allow him to make good. “There will be plenty of time,” Wittes wrote, “to criticize his failures if and when they materialize.”
By Wednesday night, cracks were beginning to show in Barr’s purported commitments to transparency. Both the New York Times and the Washington Post, soon followed by NBC, published stories reporting that some on Mueller’s staff had grown frustrated with Barr’s limited disclosures, which they felt did not properly characterize the “alarming and significant” evidence they had gathered on the issue of obstruction. “There was immediate displeasure from the team when they saw how the attorney general had characterized their work instead,” one U.S. official said, according to the Washington Post. “It was much more acute than Barr suggested,” another person told the paper.
These revelations are second-hand and anonymously sourced, but they may begin to answer how Attorney General Barr rewards those who afford him the benefit of the doubt.
Nevertheless, in Comey’s and Wittes’s views, there is a larger principle at stake. By exhorting the American people to just lay off the Attorney General for a few weeks, Comey and Wittes have the issue backwards. The question is not what the country can do for Bill Barr in these difficult times; it’s what Bill Barr can do for the country. It’s Barr’s job–and every public servant’s job–to maintain the public’s confidence in the proper functioning of the government. That job extends to the point, if Barr’s impartiality is compromised, of stepping aside from this particular investigation in favor of another Department of Justice official who can inspire the public’s trust.
Any Attorney General overseeing an investigation of the President who appointed him faces a complicated task in maintaining public confidence that he is upholding the rule of law. When the chips are down, ordinarily fuzzy distinctions between the interests of the elected President and the interests of the American people may become stark dividing lines, and the people need a basis to trust that the Attorney General will serve their interests over those of his political party or his patron in the White House.
Bill Barr’s long record, unfortunately, affords little basis for trust.
Barr has been implicated in high level cover-ups before. In Barr’s first stint as Attorney General, he recommended that President George H.W. Bush grant full pardons to six former officials from the Reagan administration who were caught up in the Iran-Contra scandal, including Defense Secretary Caspar Weinberger. “There were some people arguing just for Weinberger,” Barr later recounted, “and I said, ‘No, in for a penny, in for a pound.’” President Bush’s pardons brought the long-running scandal to an end just as many observers believed it was about to reach the president’s doorstep. In response, independent counsel Lawrence Walsh bitterly remarked that “the Iran-contra cover-up, which has continued for more than six years, has now been completed.”
Barr has both a body of writings that suggest he has prejudged matters under his purview as Attorney General and significant conflicts of interest. In the Spring of 2017, Barr penned an op-ed supporting the President’s firing Comey. “Comey’s removal simply has no relevance to the integrity of the Russian investigation as it moves ahead,” he wrote. In June 2017, Barr told The Hill that the obstruction investigation was “asinine” and warned that Mueller risked “taking on the look of an entirely political operation to overthrow the president.” That same month, Barr met with Trump about becoming the president’s personal defense lawyer for the Mueller investigation, before turning down the overture for that job. In late 2017, Barr wrote to the New York Times supporting the President’s call for further investigations of his past political opponent, Hillary Clinton. “I have long believed that the predicate for investigating the uranium deal, as well as the foundation, is far stronger than any basis for investigating so-called ‘collusion,’” he wrote to the New York Times’ Peter Baker, suggesting that the Uranium One conspiracy theory (which had by that time been repeatedly debunked) had more grounding than the Mueller’s investigation (which had not). Before Trump nominated him to be attorney general, Barr also notoriously wrote an unsolicited 19-page advisory memo to Rod Rosenstein criticizing the obstruction component of Mueller’s investigation as “fatally misconceived.” The memo’s criticisms proceeded from Barr’s long-held and extreme, absolutist view of executive power, and the memo’s reasoning has been skewered by an ideologically diverse group of legal observers, including Wittes.
For any Department of Justice employee other than the Attorney General, this record would have surely constituted, among other things, “circumstances that would cause a reasonable person with knowledge of the facts to question [the] employee’s impartiality.” A standing regulation and DOJ policy would generally result in such an employee not being able to participate in the Special Counsel’s investigation. However, that policy oversight mechanism does not apply to the Attorney General, who has no supervisor within the Department of Justice and thus determines when his own recusal is required. Unlike prior occupants of the job of Attorney General, including Jeff Sessions, Barr also steadfastly refused to say in advance that he would accept the recommendation of Department ethics officials if they advised him to recuse.
Barr’s close political relationship with President Trump, his consideration of employment as Trump’s personal defender in the Mueller investigation, his media statements on the investigation, and his unsolicited memo attacking the investigation all would cause a reasonable person to question his ability to impartially oversee that investigation and–in deciding the obstruction question that Mueller left open–to make perhaps its most consequential decision. Nevertheless, Barr did not step aside. He released a statement announcing his decision not to recuse himself from oversight of the Mueller investigation that cited the advice of unnamed ethics officials, but declined to explain their reasoning.
As many observers have acknowledged, President Trump’s sustained public outrage at his first Attorney General, Jeff Sessions, on account of his recusal early in the Russia investigation made it exceptionally difficult for any of Sessions’ successors to recuse himself or herself, no matter how warranted. Successfully navigating this difficulty, using his long experience in government and his stature among Republicans, would have been an avenue for Barr to earn and maintain the broader public’s trust. Refusing both to recuse himself and to explain his reasons why recusal was not warranted, Barr chose to side-step the difficulty; his decision served the president’s preferences, but it is difficult to see how it contributed to public trust in the his oversight of the Mueller investigation.
Comey himself, not long ago, faced an Attorney General whom he thought should have recused herself from an investigation, and he did not give her the benefit of the doubt. Shortly after Loretta Lynch met Bill Clinton on her plane on the tarmac of Phoenix Sky Harbor airport during the 2016 campaign, Comey decided to hold his historic press conference usurping the Justice Department and attempting to wrap up the Clinton email investigation. “I remember [the tarmac meeting] being a factor, an important factor, in my decision to step away from the Attorney General,” Comey told Congressional investigators. “I was very concerned about the appearance of that interaction.”
Notably, the tarmac meeting with Hillary Clinton’s spouse and the other marks against Lynch that prompted Comey’s press conference (i.e. her use of the term “matter” rather than “investigation” and a classified document Comey thought to be false) objectively pale in comparison to those against Barr (i.e. the 19-page memo, numerous media statements undermining the Mueller investigation, and a meeting with Donald Trump himself to discuss employment directly related to the Mueller investigation). The demerits that made Lynch, in Wittes’ description, “a compromised figure” in 2016 were matters of suspicion and the appearance of impropriety. Bill Barr in 2019, by contrast, really had written a legally questionable memo prejudging an element of the investigation and held a meeting about the investigation with the principal subject of the investigation. It’s puzzling why, as FBI Director, Comey would use the powers of his office to push aside Lynch while, as a private citizen, urging that a more compromised Attorney General ought to be given the benefit of the doubt.
The grounds for redaction included in Barr’s summary provide additional reasons to doubt his intentions. Barr makes no effort to situate the project he’s undertaking to redact the results of an investigation into the President in terms of constitutional principle or precedent. As an example, Barr presented the potential existence of grand jury information in the Mueller report as a problem that can only be solved by identifying that information and removing it before it is transmitted to Congress. Wittes told his readers that Barr’s take on this subject was “simply correct” and effectively insurmountable. “In the short term,” Wittes wrote, “there is no way to give this material to Congress, let alone make it public; it would require substantial litigation to do so.” That’s not true. In previous investigations of the president, special or independent prosecutors easily obtained judicial authorization to share grand jury material with Congress. For Ken Starr, it required a perfunctory ex parte proceeding, and for Leon Jaworski, it required one court hearing, in each case not “substantial litigation.” Barr left any discussion of seeking a court’s permission out of his letter, and he failed to explain why he wasn’t following the precedent of past investigations. (Barr also omitted discussion of whether he could provide the grand jury information to certain members of Congress without judicial authorization, as some legal experts have posited). The balance of the information Barr claims to be redacting–classified material, ongoing investigations, and derogatory information about third persons–is routinely turned over from the Executive Branch to Congress on a confidential basis in other contexts. Indeed even in the context of the Mueller investigation, the Republican-led House Intelligence Committee received all three categories of information from the Department of Justice during the last Congress.
In summary, Barr has a record of helping another U.S. president cover up an uncomfortable investigation, he has publicly announced views undermining the Mueller investigation, his direct interactions with the president concerning the Mueller investigation present a clear conflict of interest, his consideration of whether to recuse himself was conclusory and corrosive of trust in the Justice Department, and his handling of the Mueller report to date has been misleading and reportedly frustrating to the people who conducted the investigation. The American people need an Attorney General in whom they can repose their trust, particularly when the President’s conduct is in question. Has Bill Barr earned that trust? If he hasn’t, we really can’t afford to give it to him for free.