By Elie Honig
Dear Readers,
I want to thank all of you. My first book, “Hatchet Man: How Bill Barr Broke the Prosecutor’s Code and Corrupted the Justice Department,” published earlier this week. I have to tell you, it’s surreal to actually pick up your own book, and to see it on display in an actual bookstore (pity my poor kids who were with me when this happened).
I truly owe much to each of you here in the Cafe community for your loyal support. A good part of the inspiration for this book, and many of the ideas and concerns that drove it, came from this column and your thoughtful responses to it. And while writing a book requires an awful lot of work, it never felt like labor to me — it felt more like a passion project, a mission.
So this week, we’re bringing Cafe Brief subscribers an exclusive: the entire first chapter of my book. You’ll recognize the voice from this column, and I’m certain you’ll really enjoy and get a lot out of the book. If you haven’t done so already, order here (and, I’m signing bookplates for everyone, here). Here we go:
Read Chapter 1: “Earn Your Stripes”
Any prosecutor’s first trial is a blur of terror, self-doubt, confusion, fleeting moments of competence, worry, a bit more terror, and then, ultimately, catharsis. The second trial gets a bit easier, and things gradually smooth out from there. It’s the same basic pattern, the same grind and pressure, but eventually you build up some calluses and you learn to calm your nerves and even relish the fight. But the first trial—that’s pure, uncut panic.
When I walked into our courthouse “war room” on the first morning of my first trial as a prosecutor for the Southern District of New York, my supervisor, Rich Sullivan, took one look at me and said, “What the hell are you wearing?” I was confused. I had deliberately dressed in the standard SDNY male prosecutor’s “uniform”: conservative navy-blue suit, white dress shirt, red tie, black loafers. The problem, it seems, was with the fitted, slip-on look of my dress shoes.
“No laces? Not in front of a jury. Find different ones for tomorrow,” he snapped.
Sullivan—now a federal appellate judge—was one of the most respected prosecutors in the office, a true believer in the criminal justice process and a trial assassin who expected perfection in all things, from everyone. Sullivan had seen it all, and he knew all the rules—the ones in the books and the unwritten code of things you must do and those you just don’t. Never refer to the judge as “you”; it’s always “Your Honor” or “the Court.” Move around the courtroom a bit, but do not lay your hand on the railing of the jury box; that’s their territory, not yours. It’s okay to smile, but no laughing out loud in front of the jury, even if something funny happens. No drinking in front of the jury, except for water from a small paper cup, and only if your voice is about to crack. No laceless shoes, apparently, was one that I had not yet learned.
A few hours later, I rose to give my first opening statement. An office veteran had told me that, when introducing the defendant to the jury during an opening, you should lock eyes with him, and whoever blinks first, loses.
“This is Robert Ortiz,” I said, walking toward the defendant’s table, pointing. I stared right at him. Tough-guy showdown time. Ortiz was a few years older than I was, mid-thirties, shaved head, crooked grin. He didn’t blink. Glared right back at me, through me. I held his gaze for a few seconds and conceded the macho stare-down, turning back to the jury. “He’s here on trial before you,” I continued, “because the NYPD caught him red-handed with a loaded gun stuck in his waistband and a fake police badge hanging around his neck. His plan was to use that gun and badge to pretend to be a police officer and rob a cocaine dealer.”
The trial should have taken about a week, maybe two. It took a month and a half. Nothing went to plan. The defense attorney fell into a manhole while walking her dog one weekend, breaking her orbital socket and necessitating a few days of delay. (She’d finish the trial wearing dark wraparound sunglasses indoors and using a cane to get around the courtroom; talk about earning sympathy points from the jury.) One of our key witnesses disappeared for a week. The NYPD detective who had found the gun in Ortiz’s waistband was so sinister on the witness stand that Sullivan, who had been trying cases for over a decade, later told me, “He came off like Darth frickin’ Vader up there.” (Sullivan, unlike me and most of our SDNY colleagues, rarely cursed.)
Eventually, mercifully, the trial ended. The jury deliberated for four long days before sending out a note to the judge: “We have a verdict.” Everyone hustled back to the courtroom. This wasn’t the trial of the century or even the trial of the week at the SDNY, but I was having a full nervous system–type response; I consciously tried to slow my own breathing. Once everyone was back in place in the courtroom—judge up on the bench, Sullivan and me at the front prosecutor’s table, Ortiz and his lawyer behind us at the defense table, Ortiz’s family arrayed in the gallery—the jury filed in.
Some trial lawyers claim you can tell what the jurors have decided by watching them come back into the courtroom before the verdict, but if they were giving any clues that day, I wasn’t seeing them. Sullivan, seemingly amused at how nervous I was over a relatively small-potatoes case—he’d been through many verdicts, on far bigger matters—leaned over and whispered, “Can you believe they really do it like this?” I knew better than to laugh by this point. “Remember,” Sullivan added, growing more pointed, “whatever they decide—no reaction whatsoever.”
“Foreperson of the jury, on count one, conspiracy to commit robbery, how do you find?” the judge’s clerk asked.
“Not guilty” came the response.
Well, that’s that, I thought. I’m going to lose my first trial, after the cops found this guy with a gun in his pants and a badge around his neck. I’m terrible at this job. They should fire me. Probably will.
But, as Sullivan had instructed, I didn’t blink.
“On count two, illegal possession of a firearm by a person with a prior felony, how do you find?”
It seemed like the foreperson waited an extra half beat. “Guilty,” he said. I could sense shoulders sagging at the defense table, and one of Ortiz’s family members yelled from the gallery, “Noooo, that’s bullshit!” Again, no reaction from me—in part because I simply wasn’t quite sure how to feel.
Minutes later, after the courtroom cleared and we were in the elevator heading back to the trial war room, I asked Sullivan, “So, was that a win or a loss?”
“This isn’t the NFL,” he replied. “We don’t do ‘wins’ and ‘losses.’ The jury gave its verdict, and we respect it. That’s our justice system at work.”
***
That was my first trial at the SDNY. I’d do fourteen more, eventually trying public officials for bribery, human traffickers for buying and selling young sex workers, and Mafia bosses for racketeering, extortion, robbery, and murder. I’d argue more than twenty cases in the Second Circuit Court of Appeals, grilled by brilliant, unrelenting three-judge panels. In all, as a federal prosecutor for over eight years, I prosecuted hundreds of cases, maybe over a thousand, and later in my tenure at the SDNY, I supervised dozens of other prosecutors handling many more. I then served for five and a half years as director of the New Jersey Division of Criminal Justice, the criminal arm of the state Attorney General’s Office, where I oversaw five-hundred-plus prosecutors, detectives, and other staff who collectively prosecuted about a thousand cases per year.
The learning curve as a prosecutor is almost impossibly, exhilaratingly steep. You get thrown right into the mix, and you learn largely by failing. Every little thing Rich Sullivan taught me in that first SDNY trial stayed with me for my next fourteen years on the job and beyond. And I learned new lessons in every case that followed—from other prosecutors, of course, but also from judges, defense lawyers, law enforcement agents, victim services experts, even from certain defendants. In this profession, nothing comes easy. You have to earn your stripes as a prosecutor, and book learning alone doesn’t cut it.
William Pelham Barr has served as attorney general of the United States twice. But he has never tried a single case, in the trenches, as a prosecutor.
***
For most of his tenure as attorney general under President Donald Trump, Barr was hardly alone among Justice Department leadership in his real-world prosecutorial inexperience. Like Barr, his top brass boasted impressive legal résumés, but had never set foot in a courtroom to prosecute a criminal case.
When Barr became attorney general in early 2019, he specifically requested that Trump nominate Jeffrey Rosen to the number two position in the Justice Department, deputy attorney general. Trump obliged, even though Rosen had exactly zero prosecutorial experience of any kind. In Rosen’s official DOJ bio, seemingly aware of this glaring deficiency, he explained defensively that “[t]hough most of [his] nearly four-decade career was in the private sector,” he had held various Senate-confirmed positions. None of those public jobs involved working as a prosecutor.
Associate Attorney General Claire McCusker Murray served under Barr and Rosen in the number three position on the DOJ org chart. Murray’s résumé is impressive, but it conspicuously lacked even a day of prosecutorial trial experience before she landed the top-tier Justice Department gig.
Even Brian Benczkowski, the assistant attorney general for the Criminal Division for much of Barr’s term—the word criminal is right there in the job title—had experience within the Justice Department, but had never handled a single line-level prosecution.
If you’re keeping score, the sum total of trials prosecuted by Barr and his top three criminal-side advisors added together: zero.
It is not normal to have such a dearth of prosecutorial experience at the top of DOJ. Indeed, Barr’s four Senate-confirmed predecessors (Jeff Sessions, Loretta Lynch, Eric Holder, and Michael Mukasey) and his confirmed successor (Merrick Garland) all did years of high-stakes, hands-on criminal trial work before they became attorney general, and they surrounded themselves with deeply experienced senior staff and advisors.
But none of the top four Justice Department criminal officials during most of Barr’s watch had ever lived the experience of prosecuting and trying a case on the front line. None of them had ever had a defense lawyer break her face during trial, or a key witness vanish right at the worst possible time. They never gave a closing argument to a jury or had a judge declare to them, when they still had about thirty minutes of material left to cover, “Counsel, you’ve got five minutes to wrap this thing up.” None of them ever prepped a witness for days and then watched helplessly as he collapsed on cross-examination. Neither Barr nor any of his top brass ever had a judge unexpectedly throw a key piece of evidence out of a case the night before a trial opened. None ever sat face-to-face with a victim too scared to leave the witness room and walk onto the stand. They never had to face a room full of strangers, ask them a handful of basic questions about their lives, and try to discern which ones might make good jurors. Barr, Rosen, Murray, and Benczkowski never walked out of a courtroom while a defendant’s family hissed curses and mumbled threats at them. And they never got to eat lunch from a food truck (not the gourmet kind) in a ramshackle conference room while exchanging war stories and barbs with other prosecutors.
***
So, why does this matter? I’ll put it simply, how we might have said it during one of those lunches back at the SDNY: Bill Barr has no chops.
None of this is intended as an attack on the legal credentials of Barr or the people who helped him run the Justice Department. Together, they’ve got briefcases full of elite degrees, impressive judicial clerkships, and top-tier, highly paid private gigs. But, in my experience, you simply cannot lead the Justice Department effectively unless you’ve learned to be a prosecutor first—the hard way, by making mistakes and experiencing setbacks mixed in with the successes.
In this book, I draw largely on my fourteen-plus years of experience as a federal and state prosecutor. I was raised—some might say “indoctrinated”—in the full SDNY tradition. I started at the Southern District of New York when I was twenty-nine years old—which, in retrospect, makes me shudder at the gravity of the mistakes I could have made and thankful that I managed to avoid the big ones (mostly). As young as I was, I had the benefit of being “raised” in the SDNY system, guided by the office’s core principles and by men and women who had earned their stripes before I arrived. As one of my first supervisors told me, “We throw you in the deep end, but we won’t let you drown.”
Some of what you learn at the SDNY, or in any of the ninety-three other U.S. Attorney’s Offices across the country, is by the book. After a while, you essentially memorize the rules of evidence, the criminal statutes, the rules of criminal procedure, and the sentencing guidelines. Anyone can read the rule books, the statutes, the cases. But the most important part of the prosecutor’s education is learning the unwritten rules—those norms, ethics, and values that come only with experience, successes and failures alike.
This is the prosecutor’s code. You learn it in the dingy conference room where you scarf down lunch and shoot the breeze with other prosecutors; you learn it in the well of the courtroom during the heat of battle at trial; you learn it from supervisors and judges and defense lawyers who keep you in line when you step out. It sounds like a parody of a Springsteen lyric, but the truth is that I learned more from knocking around the hallways of the SDNY than I ever learned from any law book.
Some of those unwritten rules may seem minor, but they matter. (For example, it would be disrespectful to the jury, the judge, and the defendant to show any emotional reaction, positive or negative, upon the reading of a verdict.) A few are, I now believe, misguided. (The macho point-and-stare-down with the defendant is unnecessarily confrontational and counterproductive, and I stopped doing this eventually.) But, for the most part, the unwritten rules help prosecutors understand and carry out the highest functions of the job. I’ll never forget Sullivan’s admonition that real prosecutors do not think in terms of their “win-loss” records. Real prosecutors seek justice and respect the process and the outcome, whatever the verdict.
Throughout his tenure, Barr faltered because he never understood or respected the prosecutor’s code. He never properly appreciated what it really means to work as a prosecutor—the unimaginable stakes for all involved and the sanctity of the criminal justice process, which must stand above and apart from other governmental functions. Barr’s ignorance—laced with a heavy dose of arrogance partially masked by his hangdog demeanor and veneer of intellectualism—led him to treat the attorney general job primarily as utilitarian and to degrade the Justice Department by using it as a means to predictable political, and ultimately personal, ends.
Barr never earned his stripes. And it showed.
***
In this book, I identify three fundamental traits that infected Barr’s approach to his position as the nation’s top prosecutor. Because of these shortcomings, Barr failed as attorney general, abused his power, and did lasting damage to the Justice Department.
First, Bill Barr is a liar. I won’t mince words. In both fields where I’ve worked, law and media, there is a natural and perhaps healthy reluctance to flat-out call somebody a liar. Usually, we soften it a bit. We say somebody is “not credible,” or has “misstated the facts,” or “lacks candor.” Barr had plenty of chances to fall back into one of those softer labels. But, after nearly two years and countless exaggerations, obfuscations, and outright false statements on his part, I have no hesitation in saying it: Barr is a liar.
Throughout his tenure as attorney general, Barr misstated crucial facts, virtually always in favor of Trump or his preferred political narrative of the moment. He distorted the law to serve whatever predetermined bottom line best satisfied his and Trump’s needs. He shaded reality by selective omission, by misleading framing, by false analogy. He contradicted himself when convenient. He projected his own untruthfulness and dissembling on others. When confronted, he played dumb or pretended not to understand basic words and phrases. There’s no benefit or reason to soft-pedal it, so I won’t: as attorney general, Bill Barr lied to the American public time and again.
Second, Barr is an eager political partisan. He willingly, affirmatively, and aggressively used the Justice Department as a political tool to help Trump—until the very end, when it was clear that Trump’s days in office were numbered. People sometimes say Barr “allowed” or “permitted” the Justice Department to become politicized. But it’s more than that; that phrasing is too passive. Barr didn’t merely sit by and let DOJ get dragged into politics by Trump or others—he made it happen himself, by design and with gusto, often directly in response to Trump’s corrupt entreaties. Prosecutors hold staggering power, and ultimately nothing could be more dangerous than for the Justice Department to become an arm of political protectionism and retribution. Yet Barr dragged DOJ down that perilous path.
Third, Barr over time used the attorney general position to impose his own legal and philosophical views on how civil society ought to function. Throughout his tenure, he consistently acted upon a hard-line, Federalist Society–endorsed view of the law that exalts the executive branch and the president in particular as the primary source of legitimate governmental power. He sought to place the presidency above and beyond the reach of Congress and the judiciary, at times successfully. In the process, he (at least temporarily) upset our constitutional balance of powers, rendering the president unaccountable and untouchable.
More broadly, Barr sought to actualize his own extremist, dystopian worldview in which a small group of strong, powerful men of faith enforce social order and ward off dark forces of creeping secular chaos. Barr brought to the attorney general’s job a dangerously distorted conception of his own power to impose that social order on what he saw as the needy, dim-witted masses. Unlike many of Trump’s most eager, sycophantic enablers, Barr, by his words and actions, treated Trump not as an end unto himself, not as some charismatic figure to be slavishly uplifted and celebrated. Rather, Barr recognized in Trump a powerful and perhaps unwitting vehicle through which Barr sought to realize his own long-standing quest to root out secularism and reshape civil society.
***
I don’t claim that I somehow know more than William Barr does. I was, however, raised in the best tradition of the Justice Department before Barr corrupted it. And, unlike Barr, I proved my steel in the well of the courtroom. This professional upbringing enables me to understand and explain Barr’s malfeasance and to assess the institutional damage he has inflicted on the Justice Department. (Note: I offered repeatedly to sit down with Barr for an interview for this book. He and his representatives never responded.)
There are more great things about working as a prosecutor than I could ever list or count. The best of all is that, as one of my former bosses put it, you always do the right thing, in the right way, for the right reasons. At the SDNY, we fought hard to do justice, to charge well-supported and righteous cases, and to convict serious lawbreakers. But those goals, worthy as they are, could never come at the expense of our integrity, credibility, and independence. Without those core values, as a prosecutor, you’re lost.
