Law & the Courts

Bill Barr Is No Hatchet Man

Then-attorney general William Barr in the East Room of the White House in Washington, D.C., April 1, 2019. (Yuri Gripas/Reuters)
A new screed about the former AG woefully ignores reality in favor of a cherry-picked narrative of half-truths.

Turns out it was a worse week to be writing about a “hatchet man” than to be one.

Oh, it might not look that way on the surface. For Bill Barr, the alleged “hatchet man” in question, it is no doubt unpleasant to be the renewed target of strafing from Donald Trump. The former president took time out from decrying “the Big Lie” — the “massive election fraud” that never happened — to snipe at his former attorney general. Barr, in Trump’s telling, is a “spineless RINO,” a “disappointment in every sense of the word,” who failed to indict Trump political enemies, buried the promised “Durham report” on the Obama administration’s Russiagate hoax, and “helped facilitate the cover-up of the Crime of the Century, the Rigged 2020 Presidential Election.”

From the horse’s mouth, then, we learn that Barr was never the Trump political lackey of Democrat lore, never a “hatchet man” in the Roy Cohn mold that Trump craved — never even the “wingman” that former Attorney General Eric Holder professed himself to be, at President Barack Obama’s beck and call.

That ought to make it a tough time to roll out a screed such as Hatchet Man: How Bill Barr Broke the Prosecutor’s Code and Corrupted the Justice Department (Harper). But that is precisely what is being done this coming week by Elie Honig, a former federal prosecutor turned legal analyst at CNN — a hotbed of Trump Derangement Syndrome that, as night follows day, became rabidly anti-Barr in the last two years of Trump’s term.

It was then, as the media-Democrat complex geared up its 2020 campaign against the former president’s reelection, that Barr was limned as the Main Justice Machiavelli, placing the government’s awesome police powers in the service of Trump’s political fortunes. It was never true, but that’s the Left’s story and Honig is sticking to it.

Thus, Honig’s Hatchet Man delivers it, in full: the Democratic dogma that Barr lied about the Mueller report, and that Special Counsel Robert Mueller himself said so; the claims of impropriety in the Justice Department’s interventions on behalf of Trump allies Michael Flynn and Roger Stone; more such claims regarding the DOJ’s intervention against Trump sexual-assault accuser E. Jean Carroll; the charge that Barr is philosophically an executive extremist who believes the president is not accountable to other branches of government; and so on.

It’s an amalgam of cherry-picked facts and half-truths, one that, hewing to the genre’s standards, consciously avoids acknowledging the situation Barr walked into in his second stint as attorney general — after his service as President George H. W. Bush’s AG won bipartisan accolades.

When Barr took the helm, the Justice Department was neck-deep in politics because the Obama administration had recklessly put the intelligence and law-enforcement apparatus of the government in the service of the Democratic Party’s agenda, including: the CIA’s spying on a Senate committee (which the administration denied before coming clean); IRS harassment and selective enforcement against conservative organizations; Justice Department cover-up of the Fast and Furious scandal (which resulted in Holder’s being held in contempt of Congress); the clearing of Hillary Clinton for her classified-information mishandling (in which the FBI and DOJ barely noticed her misappropriation of government records, by way of a non-secure private email system); the FBI’s improper public pronouncements about the Clinton case, which ironically might have swung the 2016 election to Trump; leaks of sensitive investigative information in politically fraught cases; misuse of the government’s foreign-intelligence authorities to monitor the Trump campaign; the use of improper and misleading public statements to create the impression that Trump might be a compromised, clandestine agent of Russia; and the commencement, without adequate justification, of a special-counsel investigation, the staff of which was dominated by partisan Democrats.

Given the way the board was set up, any move Barr made was sure to be portrayed as political. His job, moreover, was complicated by a president who was heedless of, if not outright hostile to, prudential guidelines pursuant to which executive political officials, including the president, avoid public comment on pending investigations and prosecutions. Trump’s tweets, Barr would eventually grouse, made it “impossible for me to do my job.”

He did, however, do his job. Admirably so.

Barr’s objective was to restore the Justice Department’s ethos as a non-partisan law enforcement institution. The goal was in tension not only with the atmosphere of 2019, in which DOJ was engulfed in politics, but with DOJ’s innate character — a component of one political branch, created by the other political branch, which carries out enforcement policies that are part of the president’s governing agenda and are overseen by congressional committees riven by partisan infighting.

Nevertheless, Barr’s aim was, to the extent possible, to get the Justice Department out of politics and politics out of DOJ’s enforcement decisions.

It was a particularly tricky hand to play in light of the quite-rational conviction of many Republicans, particularly Trump supporters, that there is a two-tiered justice system, in which Democrats get away with all manner of misconduct while the earth is scorched to nail Republicans on trifling infractions — or to invent infractions when real ones fail to materialize. If you ask Republicans, particularly Trump supporters, if they believe law enforcement should be non-political, they are apt to agree in principle that it should be . . . but that maybe we can hold off on the principle until some score-settling occurs. Others (like the former president) are bracingly unabashed in the view that Republicans will be weak patsies until they are willing to exploit process and power to their political advantage the way Democrats do.

There is no perfect way to navigate this turbulence. What Barr tried to do, though, is (a) reestablish Justice Department norms against official public commentary about ongoing investigations and cases (particularly those that are politically charged); (b) require that prosecutors check their aggressive creativity at the door in cases that bear on politics, such that only “meat and potatoes” crimes could be charged (offenses sufficiently clear and significant so that their prosecution is not susceptible to credible claims of political motivation); (c) similarly mandate a material quantum of articulable suspicion before investigations — especially investigations that invoke foreign-intelligence powers — are opened against political campaigns and operatives; and (d) push back against ongoing abuses to counter the perception of two-tiered justice.

If you have partisan leanings (I certainly do), you are certain, at least emotionally, to find something to hate in the implementation of such an approach. It is the right mindset, but it leaves a lot of running room for politics — including the politics of the opposite side, which we’re all wired to find more corrupt and condemnable than our own.

Those who want to portray Barr as a hatchet man, therefore, rarely get around to noticing that Trump’s principal nemeses emerged unscathed from the AG’s tenure. The Clinton-emails caper was not reopened, nor was there a Clinton Foundation prosecution. Technically speaking, former FBI director Jim Comey — a voluble Trump and Barr critic — could have been prosecuted for mishandling a minor amount of less-than-earth-shattering classified information that the FBI determined was contained in memos he made of meetings with Trump; but Barr would not countenance it because it would have been an abuse of prosecutorial discretion — Comey plainly did not intend to include classified information, and he shared it, at most, with his lawyers who, in their prosecutor days, held high security clearances. There was no prosecution of Obama intelligence officials for misleading Congress. And when the Justice Department’s highly regarded inspector general, Michael Horowitz, handed prosecutors on a silver platter a false-statements case against former deputy FBI director Andy McCabe (after he made misstatements, including under oath, about his role in leaking sensitive investigative information to the press), Barr declined prosecution — the case had been immensely complicated by Trump’s vindictive public commentary and the likelihood that McCabe’s firing had skirted civil-service protections.

The claim that Barr misled the country about the Mueller report is specious, no matter how many politically minded judges parrot it. The Mueller probe was a blatantly partisan, brass-knuckles affair, in which prosecutors larded up their charging documents with pages of Trump-Russia collusion innuendo . . . then you flipped to the end to find trifling charges of alleged misstatements to investigators that had no obstructive impact on the probe. Mueller never had any evidence of a corrupt Trump-Russia arrangement; his high-profile press release of an indictment against Russian cyber-crooks collapsed when it was unexpectedly challenged in court; and the special counsel abdicated on the only question he was arguably needed for — whether Trump committed a legally cognizable obstruction offense.

It was Mueller who misled Barr regarding that last matter. Initially, he told the AG that he was not relying on DOJ guidance against indicting a sitting president in deciding not to decide the obstruction issue; then, a few days later, he delivered to Barr his report, which explicitly relied on that guidance. Who knows whether this was intentional? When Mueller finally testified before Congress months later, he was stunningly unfamiliar with the contents of the two-volume tome for which he was nominally responsible.

Honig, like Barr’s array of Democratic critics, asserts that Barr lied to the public about Mueller’s report. But Barr did not undertake to summarize Mueller’s 400-plus pages. Just days after receiving and digesting the report, he put out a short letter setting forth its bottom-line findings . . . and making the determination Mueller had failed to make.

That conclusion — namely, that Trump had not committed a cognizable obstruction offense — deftly sidestepped significant constitutional questions about whether Mueller’s legal analysis of obstruction law was sound, holding that there was no obstruction offense, even under the Mueller construct, because intent could not be proved beyond a reasonable doubt. No doubt prodded by his staff, Mueller penned a letter complaining that Barr had not faithfully communicated the tone and nuances of the report (i.e., Barr’s short letter was not as unflattering of Trump as Mueller’s handiwork). Mueller, however, conceded that Barr had not given a false account of the findings (nor of Mueller’s dereliction on the obstruction issue). The controversy, in the end, is a tempest in a teapot: Barr publicly released virtually the entire report — including every detail that painted Trump in an awful light, and holding back only a trivial amount of grand-jury information that, under the Justice Department’s then-standing interpretation of federal jurisprudence, could not be transmitted lawfully to a congressional committee.

The Mueller report brouhaha is partisan hyperbole. The Democrats’ real problem is that they invested heavily in the expectation that the special counsel would nail Trump, and he came up empty. Plainly, they would much rather tell themselves that the salient issue is how Barr handled the report, rather than that the report itself cleared Trump of the slander that he was an agent of the Kremlin — which Democrats and their allies in the intelligence community tirelessly promoted.

The same angst fuels the other major complaints about Barr: his interventions in the Flynn and Stone prosecutions. But here again, to say he intervened is to tell half the story.

The FBI and the Obama administration had no factual predicate to investigate Flynn, a decorated combat commander, on suspicion of being a Russian agent. Realizing this, the Bureau violated Justice Department and executive-branch protocols by dispatching agents to the White House to question Flynn in his first full day on the job as Trump’s national-security adviser — in the meantime, misleading Flynn about the nature of the interview and withholding advice about his rights that the FBI routinely gives suspects it interrogates. The session was a patent perjury trap — the FBI did not need Flynn to explain his communications with the Russian ambassador because it had recordings of them; and they did not play the recordings for Flynn, so they were obviously trying to induce him to say something inconsistent with the recordings, which could then be framed as a false statement.

Even so, the agents who conducted the interview did not believe Flynn lied to them. The matter was seemingly dropped, only to be revived months later by Mueller’s team, which was trying to squeeze Flynn to give them Trump . . . and, in the course of doing so, floated the possibility of prosecuting Flynn’s son if Flynn did not agree to plead guilty. The case was politicized overkill. Barr undertook to dismiss it because it should never have been brought in the first place (a decision that was lawfully his to make, but that was thwarted by a lawless judge who was determined to force Trump to pardon Flynn — which he did — rather than allow the case to be dismissed).

The sentencing of Stone, too, was overkill. He was singled out for prosecution for obstructing Congress. The case was the usual vehicle for Mueller’s staffers to write an indictment that hinted at Trump-Russian collusion they couldn’t prove, and then accuse Stone of comparatively petty process crimes (before arresting the then-66-year-old in a brandishing of force fit for a terrorist chief that CNN’s cameras were somehow on hand to capture).

Continuing this exercise in hyperbole, prosecutors wanted to recommend a nine-year sentence (which, to be fair, was justifiable on a literal, though not a practical, construction of the federal-sentencing guidelines). Barr deemed this to be extreme, but he also thought Stone was righteously convicted of serious felonies, even if they were not the crimes of the century. The trial prosecutors — Barr’s subordinates, after all — went ballistic when Barr ordered their recommendation withdrawn, supplanted by a reasonable submission pointing out that (a) the sentence to be imposed was up to the trial judge, who was intimately familiar with the case and the sentencing guidelines, and that (b) construction of the guidelines that suggested a sentence of 37 to 46 months would be fair. The judge, who praised the trial prosecutors and is no Barr fan, imposed a 40-month sentence.

Some hatchet man. Trump wanted the case dismissed and was furious when Barr declined to do that. The sentence was completely appropriate, with a judge, who knew she had undeniable authority to impose a harsher term, coming out where Barr had come out.

Naturally, Barr’s critics miss the significance of his interventions on Flynn and Stone, just as they take pains not to notice his inaction on Trump’s political foes. Extricating the Justice Department from politics, under circumstances where the deck has been stacked against one side of the partisan divide, cannot mean nothing more than refraining from tit-for-tat politicized prosecutions. It also had to involve pushing back against politicized prosecutorial excess. You needn’t be a Flynn or Stone admirer to perceive that the former’s investigation was wrong, and the latter’s prosecution was excessive. If we are going to have one standard of justice that applies to everyone, such overkill has to be moderated.

Justice Department protocols, moreover, have to be applied regardless of the political noise. Trump wanted to leverage federal law enforcement to abet his reelection bid. That shouldn’t happen, and Barr wouldn’t let it happen on his watch.

During the 2020 campaign, the Justice Department had been investigating Hunter Biden for months. DOJ never uttered a public word about it, just as it never uttered a word about an investigation that has implicated Congressman Matt Gaetz (R., Fla.), a boisterous Trump ally. The president incessantly hectored Barr not only to indict former government officials instrumental in the Russiagate fiasco, but also to force the issuance of a much-anticipated report by Connecticut U.S. attorney John Durham, whom Barr had assigned to investigate the matter. Barr demurred, drawing Trump’s ire with an early public disclosure that former President Trump and Vice President Biden were not subjects of the investigation; insisting that no one would be charged for investigative excesses in the absence of straightforward crimes that could be established by compelling evidence; and maintaining that Durham’s report would be ready when it was ready, and not a moment sooner — a determination Barr underscored, right before resigning last December, by formally appointing Durham as a special counsel.

This implies that Durham is working diligently and may have some months to go, implications bolstered by the fact that Biden Attorney General Merrick Garland has not interfered in Durham’s work (though neither has he committed that any report Durham produces will be publicly released). On that subject, for all the criticism of Barr for having the Justice Department intervene on Trump’s behalf in the E. Jean Carroll lawsuit, it is telling that the Biden Justice Department is continuing to defend Trump in the case. As I related at the time, the Barr-led DOJ was following longstanding Justice Department legal guidance in seeking to substitute the government for Trump as a defendant (and thus laying the groundwork to seek the suit’s dismissal on sovereign-immunity grounds). It was never a matter of doing Trump’s bidding; it is what the law says, no matter who the president happens to be.

That goes for election law, too. Barr took a pounding from the Left for (a) making the commonsense observation that resorting to mail-in voting on a widespread, unprecedented scale was an invitation to fraud because it is palpably not as secure as in-person voting, and (b) unleashing U.S. attorneys’ offices to probe credible allegations of voter fraud. Yet, fully aware that he was coming under intense pressure to back Trump’s claims of massive fraud and election-rigging, Barr knew that he would not be positioned to reject these claims authoritatively if the Justice Department had not exhibited awareness of the potential perils and scrutinized fraud claims.

When it came time to stand up, Attorney General Barr stood up. His public acknowledgement that there had been no fraud on a scale that could change the election outcome was a decisive moment in restoring our constitutional order. President Trump’s claims and attempted delegitimizing of his successor’s victory could not have been eviscerated with more finality.

It was not what a hatchet man does. It was what a statesman does.

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