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A weekly Note from Elie is part of the CAFE Brief. An audio recording of the note is part of the CAFE Insider membership. Please enjoy Elie reading this week’s note, “Hey AG Barr, “If you don’t know, now you know.”” and read his note in your inbox every Friday.

Dear Reader, 

When I was trying cases, every once in a while a witness would be so bad — so uneven or combative or evasive — that I’d slide a post-it note over to my trial partner saying, “We need to clean this up.”  Well it’s cleanup time, only the witness isn’t some former drug trafficker or mob hitman — but the Attorney General of the United States.

William Barr was a hot mess (technical term) when he testified for his first and perhaps only time before the House Judiciary Committee.  He declared himself “independent” and not “simply the President’s factotum” — well, that settles that — and then proceeded throughout the day to parrot Trump campaign talking points.  

Barr decried the “bogus ‘Russiagate’ scandal” — yes, the same investigation that special counsel Robert Mueller, DOJ Inspector General Michael Horowitz, and the Republican-led Senate Intelligence Committee all found to be legitimate and properly predicated.  Barr blamed the Obama Administration for the current administration’s failure on Coronavirus testing (curious because (1) that’s a purely political issue, and (2) the Coronavirus didn’t even exist until years after Obama left office).  And, while under questioning about the response of a Republican governor to the Coronavirus crisis, Barr let his inner MAGA pom-pom waver burst out as he yelped, “Did Cuomo do an incredible job?”  

The Judiciary Committee Democrats who questioned Barr weren’t a whole lot better, though that was more incompetence than malevolence.  Chairman Jerry Nadler and other senior committee members were utterly unable to formulate clear, incisive questions; you could almost hear the viewing public click off their televisions in frustration.  But the Committee rallied back later when more focused, effective advocates took the mic, including Representatives Cedric Richmond, Val Demings, Eric Swalwell, David Cicilline, Ted Lieu, Pramila Jayapal, and Joe Neguse.  Nadler has been thoroughly ineffectual as Chair, but the future is bright for this group.

Throughout the hearing, Barr’s demeanor was uneven and churlish.  He gave mostly thoughtful and responsive answers to his Republican questioners, but he nitpicked semantics, grumbled, or played dumb when pressed by Democrats.  He lost his cool in a way that would be humiliating for any prosecutor, never mind the Attorney General of the United States.  You can tell this is a guy who has never done a trial; he’s got no courtroom poker face whatsoever.

But the most curious thing about Barr’s performance was what he did not know, or what he claimed not to know.  Barr’s purported blind spots reveal an Attorney General who either is woefully uninformed and unqualified — or one who was playing dumb to further a political agenda.  Let’s review.

Delaying the election.  Most worrisome, when asked whether the president holds the power to postpone the general election, Barr claimed he did not know: “I haven’t looked into that question, under the Constitution.”  Let me help you, Mr. Attorney General: No.  Not “it depends,” not “maybe,” not “we’ll see” — just straight-up “no.”  The Constitution specifically gives Congress (not the president) the power to set a uniform nationwide election date, and Congress exercised that power back in 1845 by passing a law setting the date as the Tuesday after the first Monday in November — in 2020, November 3.  Congress could pass a new law moving the date, but that would require majorities in the Republican-controlled Senate and the Democratic-controlled House.  Not gonna happen.

Maybe Barr really did not know this.  Maybe he is clueless.  But it got awfully suspicious a few days later when Trump himself tweeted, “Delay the Election until people can properly, securely and safely vote???” (three question marks, Trump’s, not mine).  Secretary of State Mike Pompeo also got in on the misinformation (or perhaps disinformation) campaign, declaring that the Justice Department would decide whether to delay the election.  President, Attorney General, Secretary of State: wrong, wrong, and wrong.  Either we’ve got grievously under-informed leaders, or there’s something brewing here.  Could be both.     

Foreign election assistance.  When Cicilline asked Barr, point-blank, whether it is ever okay for a candidate to accept foreign election assistance, Barr paused for an agonizing few seconds, put on a confused hangdog expression, and replied, “It depends what kind of assistance.”  Wrong again, sir: it is a federal crime even to solicit foreign election assistance, never mind to accept it.  Cicilline then asked his question again.  This time, Barr gathered himself and gave the right answer: “No, it’s not appropriate.”  (Young lawyers, take note of this tactic: when you ask a question and get a mush-mouthed or sarcastic response, just ask the exact same question again, verbatim.  It works.)  Half-credit for Barr here.  (Though 50% was an F, back when I was in school).

Trump tweets.  When pressed by Swalwell about Trump’s damning tweets singling out Roger Stone and praising him for having the “guts” not to testify, Barr fell back on the cheapest escape hatch: he claimed he hadn’t seen them.  Maybe Barr was playing some semantic game here (maybe he heard about the tweets but didn’t physically read them).  But nobody on this planet believes that Barr was unaware of Trump’s tweets.  Heck, Barr himself declared in February that Trump’s tweeting made his job as attorney general “impossible” and that “I cannot do my job here at the department with a constant background commentary that undercuts me.” (Since then, Trump has tweeted repeatedly about ongoing cases and Barr, shockingly, has done absolutely nothing).  Swalwell had Barr cornered, so Barr panicked and just made something up.  

Arrests.  When Lieu pressed Barr on the arrests of protesters without probable cause, Barr tried to squirm out by arguing that it might not be an “arrest” when law enforcement agents take a person into custody, search him, and question him.  (By the way: that is an arrest).  Lieu cited the Fourth Amendment and case law, which Barr countered with a rambling hypothetical about lasers and somesuch.

What’s going on here?  I’ll stipulate: William Barr is not dumb.  Not at all.  Yet he just happens to not know anything that might expose his own hypocrisy or reflect poorly on Trump.  No, Barr isn’t dumb.  But he is a sneak.  

On one level, Barr’s selective recall and cherry-picked knowledge is frustrating because it is so dishonest, and because it undermines the entire Justice Department — including the thousands of honest men and women who work there and do their jobs utterly without regard to politics.  

And on another level, Barr’s tactics are potentially dangerous.  If, for example, Trump tries to forge ahead — in defiance of the Constitution and federal law — and delay the election, then we need an attorney general who will step up and say, decisively: no way.  But Barr is making clear that he is ready and willing to facilitate Trump’s worst instincts — by turning a blind eye, by pretending not to notice, or even by contorting the law and reality and offering the Justice Department as a rubber-stamp for unimaginable abuses of power.  

So, to Attorney General Barr, as both The Notorious B.I.G. and Representative Hakeem Jeffries famously said:  “If you don’t know, now you know.”  But I suspect you really have known full well, all along.

Stay Informed, 

Elie

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Dear Reader, 

When I was trying cases, every once in a while a witness would be so bad — so uneven or combative or evasive — that I’d slide a post-it note over to my trial partner saying, “We need to clean this up.”  Well it’s cleanup time, only the witness isn’t some former drug trafficker or mob hitman — but the Attorney General of the United States.

William Barr was a hot mess (technical term) when he testified for his first and perhaps only time before the House Judiciary Committee.  He declared himself “independent” and not “simply the President’s factotum” — well, that settles that — and then proceeded throughout the day to parrot Trump campaign talking points.  

Barr decried the “bogus ‘Russiagate’ scandal” — yes, the same investigation that special counsel Robert Mueller, DOJ Inspector General Michael Horowitz, and the Republican-led Senate Intelligence Committee all found to be legitimate and properly predicated.  Barr blamed the Obama Administration for the current administration’s failure on Coronavirus testing (curious because (1) that’s a purely political issue, and (2) the Coronavirus didn’t even exist until years after Obama left office).  And, while under questioning about the response of a Republican governor to the Coronavirus crisis, Barr let his inner MAGA pom-pom waver burst out as he yelped, “Did Cuomo do an incredible job?”  

The Judiciary Committee Democrats who questioned Barr weren’t a whole lot better, though that was more incompetence than malevolence.  Chairman Jerry Nadler and other senior committee members were utterly unable to formulate clear, incisive questions; you could almost hear the viewing public click off their televisions in frustration.  But the Committee rallied back later when more focused, effective advocates took the mic, including Representatives Cedric Richmond, Val Demings, Eric Swalwell, David Cicilline, Ted Lieu, Pramila Jayapal, and Joe Neguse.  Nadler has been thoroughly ineffectual as Chair, but the future is bright for this group.

Throughout the hearing, Barr’s demeanor was uneven and churlish.  He gave mostly thoughtful and responsive answers to his Republican questioners, but he nitpicked semantics, grumbled, or played dumb when pressed by Democrats.  He lost his cool in a way that would be humiliating for any prosecutor, never mind the Attorney General of the United States.  You can tell this is a guy who has never done a trial; he’s got no courtroom poker face whatsoever.

But the most curious thing about Barr’s performance was what he did not know, or what he claimed not to know.  Barr’s purported blind spots reveal an Attorney General who either is woefully uninformed and unqualified — or one who was playing dumb to further a political agenda.  Let’s review.

Delaying the election.  Most worrisome, when asked whether the president holds the power to postpone the general election, Barr claimed he did not know: “I haven’t looked into that question, under the Constitution.”  Let me help you, Mr. Attorney General: No.  Not “it depends,” not “maybe,” not “we’ll see” — just straight-up “no.”  The Constitution specifically gives Congress (not the president) the power to set a uniform nationwide election date, and Congress exercised that power back in 1845 by passing a law setting the date as the Tuesday after the first Monday in November — in 2020, November 3.  Congress could pass a new law moving the date, but that would require majorities in the Republican-controlled Senate and the Democratic-controlled House.  Not gonna happen.

Maybe Barr really did not know this.  Maybe he is clueless.  But it got awfully suspicious a few days later when Trump himself tweeted, “Delay the Election until people can properly, securely and safely vote???” (three question marks, Trump’s, not mine).  Secretary of State Mike Pompeo also got in on the misinformation (or perhaps disinformation) campaign, declaring that the Justice Department would decide whether to delay the election.  President, Attorney General, Secretary of State: wrong, wrong, and wrong.  Either we’ve got grievously under-informed leaders, or there’s something brewing here.  Could be both.     

Foreign election assistance.  When Cicilline asked Barr, point-blank, whether it is ever okay for a candidate to accept foreign election assistance, Barr paused for an agonizing few seconds, put on a confused hangdog expression, and replied, “It depends what kind of assistance.”  Wrong again, sir: it is a federal crime even to solicit foreign election assistance, never mind to accept it.  Cicilline then asked his question again.  This time, Barr gathered himself and gave the right answer: “No, it’s not appropriate.”  (Young lawyers, take note of this tactic: when you ask a question and get a mush-mouthed or sarcastic response, just ask the exact same question again, verbatim.  It works.)  Half-credit for Barr here.  (Though 50% was an F, back when I was in school).

Trump tweets.  When pressed by Swalwell about Trump’s damning tweets singling out Roger Stone and praising him for having the “guts” not to testify, Barr fell back on the cheapest escape hatch: he claimed he hadn’t seen them.  Maybe Barr was playing some semantic game here (maybe he heard about the tweets but didn’t physically read them).  But nobody on this planet believes that Barr was unaware of Trump’s tweets.  Heck, Barr himself declared in February that Trump’s tweeting made his job as attorney general “impossible” and that “I cannot do my job here at the department with a constant background commentary that undercuts me.” (Since then, Trump has tweeted repeatedly about ongoing cases and Barr, shockingly, has done absolutely nothing).  Swalwell had Barr cornered, so Barr panicked and just made something up.  

Arrests.  When Lieu pressed Barr on the arrests of protesters without probable cause, Barr tried to squirm out by arguing that it might not be an “arrest” when law enforcement agents take a person into custody, search him, and question him.  (By the way: that is an arrest).  Lieu cited the Fourth Amendment and case law, which Barr countered with a rambling hypothetical about lasers and somesuch.

What’s going on here?  I’ll stipulate: William Barr is not dumb.  Not at all.  Yet he just happens to not know anything that might expose his own hypocrisy or reflect poorly on Trump.  No, Barr isn’t dumb.  But he is a sneak.  

On one level, Barr’s selective recall and cherry-picked knowledge is frustrating because it is so dishonest, and because it undermines the entire Justice Department — including the thousands of honest men and women who work there and do their jobs utterly without regard to politics.  

And on another level, Barr’s tactics are potentially dangerous.  If, for example, Trump tries to forge ahead — in defiance of the Constitution and federal law — and delay the election, then we need an attorney general who will step up and say, decisively: no way.  But Barr is making clear that he is ready and willing to facilitate Trump’s worst instincts — by turning a blind eye, by pretending not to notice, or even by contorting the law and reality and offering the Justice Department as a rubber-stamp for unimaginable abuses of power.  

So, to Attorney General Barr, as both The Notorious B.I.G. and Representative Hakeem Jeffries famously said:  “If you don’t know, now you know.”  But I suspect you really have known full well, all along.

Stay Informed, 

Elie