Magazine August 24, 2020, Issue

Barr’s Dilemma: How to Get Politics Out of the Justice Department

Attorney General Barr testifies before the House Judiciary Committee, July 28. (Matt McClain/Pool/Getty Images)
The Democrats’ case against the attorney general is wildly distorted

Attorney General William P. Barr has a dilemma: how to purge federal law enforcement of the politicization that has left its reputation in tatters, while simultaneously ensuring accountability in one of modern history’s most politically combustible criminal probes.

That probe, conducted at Barr’s direction by John Durham, the United States Attorney for Connecticut, is scrutinizing the origins and predication of what even the attorney general has taken to calling “Russiagate.” This is the “investigation of the investigators,” focusing on the Obama administration’s — in particular, the FBI’s — counterintelligence and criminal investigations into claimed suspicions of Trump “collusion” with Russia. Based on rank hearsay and speculation, much of it sourced to the Hillary Clinton campaign and since discredited, Obama officials developed a theory that Donald Trump had been complicit in the Kremlin’s hacking of Democratic Party emails. The Kremlin’s supposed goal was to snatch the 2016 presidential election from the heavily favored Hillary Clinton and force Trump, under threat of blackmail, to do Vladimir Putin’s bidding in the Oval Office.

Durham’s probe has drawn the rapt attention of our mercurial president, who, in familiar Trumpian understatement, describes the Obama gambit as “treason.” Ditto for the restive Trump base, which longs for the Democrats’ comeuppance after a three-year “witch hunt,” first by the FBI and then by Special Counsel Robert Mueller. With Election Day less than three months away, Barr has indicated that decisions about whether criminal charges should be filed are imminent.

That prospect, of course, infuriates Trump antagonists, though they welcomed prosecutorial zeal when their nemesis was in the crosshairs of Mueller’s team, which was heavily laden with activist Democrats, many drawn from the Obama Justice Department. But that was then, in the midterm-election cycle, when Democrats were retaking the House, with the attendant control of its subpoena and impeachment powers.

Hence Barr’s dilemma. Now 70, he was enticed in 2019 to return to the Justice Department, 27 years after his first stint as the nation’s top law-enforcement officer. This was not by any personal connection to the president, whom he barely knew; Barr acted out of reverence for the institution. The Justice Department is foundational to the rule of law, and over the last decade, it had veered from its essential commitment to non-political decision-making.

Plainly, the best way to get politics out of the Justice Department is to keep the Justice Department out of politics. Unfortunately, it has been hopelessly, haplessly mired in politics since early 2015, when former secretary of state Clinton’s email scandal broke, just as she was embarking on her ill-fated White House bid. Indicting officials of the last administration for alleged abuses of power against the succeeding administration would be antithetical to the depoliticization objective, even if an indictment were justified.

That is not lost on the attorney general. In his confirmation hearing, he touted the wisdom of Michael B. Mukasey, who took the helm at Main Justice in 2007, with the department reeling from Democratic claims of politicization. Barr recalled his esteemed predecessor’s admonition against an American degeneration into “a banana republic, putting political opponents in jail for offenses committed in a political setting. Even if they are criminal offenses, it’s something we just don’t do here.” That is why, Barr explained, “I don’t subscribe to that ‘lock her up’ stuff” — recalling the taunt Trump’s most fervent supporters delighted in squealing Mrs. Clinton’s way.

When it comes to the Justice Department, Barr is an institutionalist — and coming from this former federal prosecutor, that’s no pejorative. Before succeeding Richard Thornburgh as President George H. W. Bush’s attorney general, Barr had been the deputy AG, and before that the assistant attorney general in charge of the Office of Legal Counsel — the “lawyers’ lawyer” post at Justice, formerly held by such luminaries as Supreme Court justices Antonin Scalia and William Rehnquist.

Barr had first navigated the crossroads of law and politics as a domestic-policy staffer in the Reagan White House. Yet it was foreign relations, in all its intrigue, that drew him to government, as an analyst in the CIA’s intelligence directorate. Raised on Manhattan’s Upper West Side, Barr initially envisioned a career as a China expert while completing bachelor’s and master’s degrees at Columbia University. Even as he worked at the CIA, though, he excelled as a student at George Washington University’s law school, earning a prestigious clerkship on the U.S. Court of Appeals for the D.C. Circuit. With such credentials, and in that bygone time, Barr was confirmed in 1991 by a voice vote of the full Senate. In stark contrast, as Trump’s AG nominee in 2019, Barr was confirmed over the nay votes of some 45 Democrats.

This unmovable wall of opposition was unsurprising, notwithstanding Barr’s repeated testimonial assurances that “the attorney general must ensure that the administration of justice, the enforcement of the law, is above and away from politics,” that “any toleration of political interference” would be uniquely “destructive” of the Justice Department as an institution and, in turn, of the rule of law and our system of government.

He took the job as the Mueller probe was winding toward its conclusion, with Democrats, Never Trumpers, and their media allies still expecting the boom to be lowered on the president — if not felony charges (seemingly foreclosed by longstanding Justice Department guidance against indicting a sitting president), then at least a roadmap to impeachment.

They were sorely disappointed. On March 22, the special counsel submitted “his” 448-page final report . . . though the senescent Mueller proved painfully unacquainted with the two-volume epic in eventual congressional testimony. The report was an exercise in political gamesmanship. By regulation, it was compiled for the attorney general, who was then to decide what, if any, disclosure should be made. But Barr had publicly committed to maximize transparency. Mueller’s staff thus wrote the report, which alleged no crimes, for the consumption of Congress, which does not need an indictable crime for impeachment purposes.

Mueller cleared Trump of any criminal conspiracy with Russia. He declined, however, to make a finding on obstruction. That was a dereliction; the prosecutor’s job is to decide whether a crime has been committed. But before being nominated, Barr had written a memo, grounded in Office of Legal Counsel guidance, that rejected what he correctly believed to be Mueller’s grandiose theory of obstruction — to wit, that acts within the chief executive’s constitutional discretion (such as firing a shifty FBI director) could be deemed actionable if a prosecutor (i.e., an inferior executive officer) suspected they were corruptly motivated.

Once Barr was at the helm, then, Mueller’s staffers realized that if they recommended obstruction charges on shaky evidence and a wayward theory, an internal Justice Department brawl would ensue, delaying the report’s transmission to congressional Democrats. At the same time, if they abdicated on the obstruction question, Mueller’s team could contend that they hadn’t “exonerated” Trump either — enabling Democrats to argue that Mueller intentionally left the determination to be sorted out in the political process of impeachment. Mueller’s staffers undoubtedly calculated that this sleight-of-hand would box Barr in: If he accepted their dereliction, Democrats would demand an inquiry on impeaching Trump for obstruction; if he took it upon himself to decide that there had been no obstruction, Democrats would demand an impeachment inquiry on the ground that Barr was shielding Trump and politicizing the Justice Department.

Grasping that Mueller’s team was trying to roll him, Barr responded adroitly. Within two days, he and his aides plowed through the Mueller report and put out a short letter to Congress — not summarizing the report but relating its bottom-line conclusions, along with Barr’s assessment that the evidence outlined did not establish obstruction. Shrewdly, Barr did not rest the latter conclusion solely on his own assessment. Instead, he explained that he’d reached it jointly with Deputy Attorney General Rod Rosenstein, who had appointed Mueller and nominally supervised him, and that they had weighed the evidence under Mueller’s dubious theory of obstruction but nonetheless found it too weak to justify criminal charges.

The public reaction, predictably, was that the years-long anti-Trump “collusion” campaign to portray the president as a Kremlin mole had been a charade, and that Mueller had inexplicably failed to do the one thing he was needed to do: decide the obstruction issue. Naturally, Mueller’s staffers cried foul, accusing Barr of creating a false public impression of their report by failing to couch his succinct letter in their report’s narrative tone (which, like Mueller’s indictments, was long on innuendo but short on incrimination).

Again, though, Barr had deftly covered his bases. It turned out that he had invited Mueller to review his letter before it was sent to Congress (weirdly, Mueller had declined). Mueller further conceded that Barr had accurately stated the report’s findings. And regardless of the staffers’ whining that their tone had been muffled, Barr persuasively maintained that it would be better to release the actual report than endeavor to summarize it. That would take a few weeks, because the report needed to be redacted to block out various categories of information (grand jury, classified, active investigation, and personal privacy). On cue, Democrats caviled that Barr must be delaying disclosure and purging the gory details to protect Trump. The attorney general easily refuted these charges: Mueller’s own staff was collaborating in the redactions, and the delay was caused by Mueller — in playing things close to the vest, he’d failed to give Main Justice an early draft of the tome so the editing could be done ahead of time.

Though baseless, the Trump-Russia investigation got three years of traction because it was effectively unsupervised. Obama holdovers and such Swamp technocrats as Rosenstein let the anti-Trump zealots at the FBI and Team Mueller run rampant. President Trump, a non-lawyer with no government experience, was overmatched and fearful that if he tried to rein in Mueller or FBI director James Comey, he’d be accused of obstruction (which he was, in any event). Barr, by contrast, is deeply versed in the criminal law and exudes confidence in directing subordinates. Only when the new attorney general was in place did the freewheeling plot to straitjacket and potentially remove the president run into a brick wall.

Democrats fully comprehend this. Their philippics against the attorney general have thus become just as unhinged as their denunciations of the president. Representative Steve Cohen (D., Tenn.), a buffoonish character who last year gobbled a bucket of chicken at a House Judiciary Committee hearing to, er, subtly convey Barr’s purported cowardice in snubbing the committee’s invitation to testify, has recently called for the AG’s impeachment. When Barr finally relented, appearing before the committee in late July, Cohen and his colleagues spent hours subjecting Barr to manic soliloquies, accusing him of corruption, perjury, violating his oath, betraying the Constitution, and, at one point, of killing thousands of COVID-19 victims (apparently, by being Trump’s attorney general during a pandemic). Barr easily refuted these calumnies when he was permitted to speak; in the main, though, the session devolved into burlesque, with Democrats shouting the attorney general down and comically “reclaiming their time” each time he started to answer their loaded questions.

Their bill of particulars is gossamer stuff. Barr is slammed for withholding from Congress the grand-jury material from Mueller’s investigation, but that material is secret under a procedural rule that does not permit disclosure to Congress, a rule lawmakers enacted and could amend. Democrats have made no effort to do so, preferring to posture that the report (well over 90 percent of which is public, including portions that cast Trump in a highly unsavory light) is being concealed. The Supreme Court will hear the dispute next term.

Democrats rail that Barr removed Manhattan U.S. attorney Geoffrey Berman, whose office has pending investigations involving Trump associates (including an indictment of Ukrainian associates of Trump’s personal lawyer, Rudy Giuliani). But contrary to Berman’s posturing, his presence was not necessary to protect the investigations; his dismissal leaves those investigations in the capable hands of Berman’s chosen deputy. Barr simply wanted to swap out Berman (whom Trump never nominated) for a lawyer the administration prefers, Securities and Exchange Commission chairman Jay Clayton. Berman was not kicked to the curb; Barr offered him other high-ranking administration posts, but he preferred to play high-profile martyr.

Trump detractors also castigate Barr over the administration’s responses to rioting and spikes in violent crime in the wake of George Floyd’s death in the custody of Minneapolis police in late May. The complaints are frivolous. The administration beefed up the federal presence in Portland, Ore., because anarchists were firebombing the federal courthouse. The president has a constitutional and statutory duty to safeguard federal property, and the administration fulfilled it by sending law-enforcement agents — not military force or “storm troopers,” as House speaker Nancy Pelosi disgracefully called them. Splenetic claims that Barr ordered the forcible expulsion of “peaceful protesters” from an area of Lafayette Park so that Trump could walk from the White House for a Bible-toting photo-op at nearby St. John’s Church ignore the preceding days of rioting and church burning, and that the “demonstrators” launched projectiles at police as they were moved. And contrary to Democratic tirades, Barr is not sending Trump posses to suppress the urban crime wave. Rather, to address murderous gang violence in such hot spots as Chicago, Albuquerque, and Kansas City, the attorney general is surging FBI, DEA, and other law-enforcement agents to existing anti-crime task forces in which the feds partner with state and city police. That way, more cases can be brought, and there is the option of bringing them in federal court, where prosecution tends to be surer and sentences stiffer.

As one would expect, Democrats are most ballistic over Barr’s “interference” in cases against Trump associates Roger Stone and Michael Flynn. But Barr supported Stone’s prosecution, believed he was rightly convicted, and opposed Trump’s commutation of Stone’s 40-month sentence (announced by the White House in July). An internal Justice Department feud was triggered when the trial prosecutors, including a Mueller veteran, quit after Barr ordered the withdrawal of their recommendation that Stone receive a far harsher nine-year sentence. The trial judge, no Trump fan, ended up agreeing with Barr that a sentence about one-third as long for the 67-year-old nonviolent first offender was the just result.

Flynn’s case is a hot potato. FBI agents did not believe he lied to them when, in a January 2017 White House interview (on Flynn’s second day as Trump’s national-security adviser), they questioned him about his conversations during the Trump transition with Russian ambassador Sergey Kislyak. Months later, however, Mueller’s staffers pressured Flynn into a false-statements guilty plea, intimating that they would otherwise prosecute his son for alleged work (in Flynn’s private intelligence firm) as an unregistered agent of Turkey. Flynn later had second thoughts and hired new counsel to fight the case, claiming investigative and prosecutorial misconduct.

Barr appointed St. Louis U.S. attorney Jeffrey Jensen, a career prosecutor and former FBI agent, to review the case. Jensen determined that there had been no predication to investigate Flynn, much less grill him. The Obama administration’s claimed suspicion that General Flynn, a decorated 30-year combat commander, might be a clandestine asset of Russia was a baseless smear. There had been no misconduct in Flynn’s conversations with Kislyak (during which he’d urged the Russian regime not to escalate in response to punitive measures imposed by Obama for the Kremlin’s election interference). Comey, lacking a valid reason to direct an interview of the national-security adviser, violated protocols by sending two agents to conduct it without Justice Department and White House approval — and later bragged about doing so. In preparation, top Bureau officials schemed to deceive Flynn into believing he was not a suspect. In the event, they discouraged him from retaining a lawyer or alerting the White House counsel; they willfully failed to inform him of his rights and the real purpose of the interview (as they would do for a common criminal); and they refrained from playing him a recording or showing him a transcript of the conversation.

Barr and his advisers concluded that the case should never have been indicted. A false-statement charge requires proof that the alleged misstatement was material to an investigation. Since there was no predicate for an investigation, Barr reasoned that materiality could not be established, even assuming, for argument’s sake, that intent to deceive could be proved beyond a reasonable doubt.

The case remains mired in litigation, with federal district judge Emmet Sullivan refusing to grant the Justice Department’s motion to dismiss, even though, under the Constitution, it is an executive-branch call.

Disclosures in the Flynn case, along with the recent declassification of other Russiagate documents and congressional testimony, show that the “collusion” confabulation was a political narrative crafted by Trump’s political rivals — those still pulling the bureaucratic levers or nestled in media sinecures where former officials shape the news. One needn’t be a Trump lackey to perceive a two-tiered justice system, in which Washington insiders such as Hillary Clinton are immune despite significant evidence of wrongdoing, while the earth is scorched to make cases against Trump and his associates — resulting in little that merits prosecution, but a punitive process that bankrupts its targets while the president’s capacity to govern is stymied by clouds of suspicion.

Barr’s professed goal is a single tier — one system of justice for all. His disparagers scoff at this, pointing to Flynn and Stone, ignoring the attendant injustices, and condemning his assignment of Durham to examine the Russia investigation as a Trump-campaign ploy, or an attempt to delegitimize intelligence findings that Russia meddled in the 2016 election.

This caricature is ludicrous. Unlike his boss, Barr has been unequivocal in casting Russia as a bad actor that routinely interferes in our politics, did so in 2016, and is bound to do so again in 2020. Nor is Russia the only one: China, in particular, is a growing cyber threat that, as Barr observes, has proved adept at penetrating supposedly secure U.S. government systems. Thus is the Justice Department spearheading an administration-wide effort, stepping up prosecutions of Beijing’s covert operatives.

Also conveniently elided in the Democrats’ case against the attorney general is Barr’s declination of prosecution against two top Trump nemeses, Comey and Andrew McCabe. Though they remain under Durham’s microscope, there were two other investigations. Comey made memoranda of his encounters with Trump, famously leaking one of them in an effort — successful, as it turned out — to force the appointment of a special counsel. But he mishandled these memos, some of which were later deemed to contain classified information. To the president’s chagrin, however, Barr determined that Comey’s improper dissemination of the material was neither knowing nor worthy of prosecution.

While that evenhanded exercise of discretion was unassailable, the non-prosecution of McCabe was a much closer call. The former deputy FBI director was terminated for repeatedly lying to agents, including under oath, to cover up his orchestration of a leak to the media of investigative information. He was lambasted for doing so in a thorough report by the Obama-appointed Justice Department inspector general, Michael Horowitz. The case seemed ripe for a false-statements indictment. Yet Barr demurred, sending the president into orbit.

To summarize, for all the Democratic distortions of Barr as Trump’s hatchet man, the AG has not only declined to file indictments craved by the president; he has also condemned unseemly presidential tweets about pending cases, which “make it impossible for me to do my job.” This jarring public complaint has not stopped Trump’s tweeting about Justice Department business — probably nothing can. But the president respects Barr enough to concede that his outbursts cause legal problems, and to accede to Barr’s stated determination not to be “bullied or influenced” in making prosecutorial decisions.

Barr will need that independence in the coming weeks. But how will he exercise it?

The attorney general has been adamant in public statements that “what happened to the president in the 2016 election, and throughout the first two years of his administration, was . . . a grave injustice and it was unprecedented in American history.” Barr has publicly concluded that the president’s campaign was “spied” upon — and he steadfastly declines to be moved off the word, notwithstanding (indeed, quite aware of) its Watergate and Church Committee connotations.

That said, Barr has taken pains in testimony and speeches to distinguish abuses of power, which our system is designed to address politically, from crimes, which are the subject of court prosecution. Specifically with respect to spying that chills political activity and dissent, he notes that “it doesn’t necessarily have to result in a criminal investigation or a finding of a crime”; but it is critical to have accountability so that “safeguards [can be] built in” to protect civil liberties in the future.

Barr has signaled that his approach to addressing this abuse may be a narrative report. In lieu of criminal charges, the Justice Department would detail the Russiagate abuses chapter-and-verse. The report would be comprehensive because the investigative authority of prosecutors is more robust than that of an inspector general, and more focused than that of Congress.

Will the attorney general take this path? It may not satisfy the president’s lust for retribution. And with Election Day fast approaching, the media-Democrat complex is apt to deride it as a Trump campaign stunt, even if Durham’s brief is airtight. At this stage of his life, though, Bill Barr might just tune out the squawking combatants. Semi-retired after a brilliant career in government and the private sector, he did not need this gig. His second tour of duty is not about appeasing the political gladiators. It is about keeping his cherished Justice Department out of their blood sport.

This article appears as “Barr’s Goal” in the August 24, 2020, print edition of National Review.

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