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February 13, 2020

Note From Elie: Barr Knows Where His Bread Is Buttered

Quick quiz: How long has William Barr been in office as Attorney General for the Trump Administration? 

Somehow, it has been only one year; the Senate confirmed Barr on Valentine’s Day, February 14, 2019 (friendly reminder: it’s Valentine’s Day again, today).  Seems hard to believe it’s been that short, given how much damage Barr has done to the Justice Department, and how far he has bent the rule of law to prop up Trump.  

Barr did surprise many — including, I’ll admit, me — when he stated yesterday that Trump should stop tweeting about Justice Department cases because those tweets “make it impossible for me to do my job.”  At face value, Barr’s statement is laudable; he at least asked Trump to cease the overt politicization of specific criminal cases.  But Barr’s own history — see below for more — demonstrates plainly that he knows where his bread is buttered. Barr already fully understands his marching orders, and he doesn’t need Trump to bark them out loud anymore.  There’s no need to bully a sycophant.

As we enter year two of Barr’s tenure, the clouds are gathering for Barr’s conduct to darken further, as he positions the Justice Department to protect Trump and to retaliate against Trump’s perceived enemies.

Let’s recap some of the highlights (lowlights?) of Barr’s first year in office.  All actions of the Justice Department, which Barr heads, are attributed to Barr himself — the boss is the boss, after all:

— While withholding the report of special counsel Robert Mueller from the public for nearly a month, Barr publicly distorted Mueller’s conclusions badly enough that Mueller — normally a paragon of reserve — wrote a letter excoriating Barr because he “did not fully capture the nature, context, and substance of this Office’s work and conclusions.”

Barr tried to prevent the Ukraine whistleblower’s complaint from going to Congress, hiding behind an absurd legal memo contorting around plain statutory language requiring that the Director of National intelligence “shall.. forward” to Congress any complaint found by the Inspector General to be credible and urgent.

— Barr declined to recuse himself from the Ukraine case, even though Trump mentioned Barr five times during the July 25 call with Ukrainian President Volodymyr Zelensky (any Ethics 101 student knows that an attorney should recuse from a case where he might also be a witness).  Barr kept himself on the Ukraine case apparently so he could summarily dismiss it, refusing even to open a criminal investigation.  Barr gathered no evidence, and on the basis of that no evidence, determined that there was no need to look any further.  Not exactly the approach of a dogged, independent prosecutor.


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— Barr gave legal cover to the Administration’s unprecedented blanket refusal to comply with all Congressional subpoenas relating to the Mueller investigation or Ukraine.  A federal judge forcefully rejected the Justice Department’s flimsy rationale, calling it a “fiction” that gets the Constitution “exactly backwards” (as a lawyer, let me just say: ouch).

— Barr’s Justice Department filed a brief supporting Trump’s argument that he cannot even be criminally investigated while in office (though the Justice Department qualified the absolutist position, minimally).  That position has now been dropkicked out of court by a federal district judge who called the Administration’s argument “repugnant to the nation’s governmental structure and constitutional values” (again: ouch), and by a unanimous federal court of appeals.

— Most recently, the Justice Department reversed itself on the appropriate sentence for longtime Trump associate Roger Stone (following a Trump tweet sympathizing with Stone and attacking the prosecution), publicly undermining the career prosecutors who handled the case — all of whom resigned from the case in courageous protest.

Beyond his damaging actions, Barr’s public rhetoric has ranged from political sycophancy (he has publicly parroted Trump’s non-legal, loaded catchphrases “no collusion” and “spying”) to the downright bizarre (he declared that “In fact, Judeo-Christian moral standards are the ultimate utilitarian rules for human conduct” and decried the “steady erosion of our traditional Judeo-Christian moral system”).

Now that the Mueller investigation and the Ukraine impeachment are both over, it seems fair to wonder: how much more damage control (or just plain damage) can Barr do?  Plenty. And Barr is lining up the chess pieces right now.

First, on the defensive side, Barr is taking steps to stifle anything that might even ruffle Trump’s coiffure during the run-up to the 2020 election.  The Justice Department has a longstanding informal policy against taking steps that could influence an election in the weeks or months before election day.  But now Barr has issued a new memo policy giving himself an iron grip on not just on any case that directly implicates Trump (or any other candidate), but on anything as far ranging as “illegal contributions, donations or expenditures by foreign nationals to a presidential or congressional campaign” (hmmm, sound familiar?). Barr is the first attorney general to require the FBI to consult with high-ranking Justice Department officials before even opening such an investigation.  Barr won’t even allow an investigation to get off the ground if it might reflect poorly on Trump, or his campaign, or any of its fundraising or dirt-digging activities.

Perhaps even more worrisome, Barr seems to be angling towards using the Justice Department to settle scores against Trump’s perceived political enemies.  You may remember the moment when Senator Kamala Harris asked Barr whether the President or anyone at the White House had ever asked or suggested that he open an investigation of anyone.  Barr first stammered, “Um, I wouldn’t, I wouldn’t, um…” before pretending he couldn’t hear and asking Harris to repeat the question.  She did, and Barr replied “umm, President or anybody else…” before “I’m trying to grapple with the word ‘suggest.’”

Barr was a lousy fibber even back then, and he isn’t even trying to hide his inclinations to use the Justice Department as an attack dog now.  Just this week, we learned from Senator Lindsey Graham — largely confirmed later by Barr — that “[t]he Department of Justice is receiving information coming out of the Ukraine from Rudy [Giuliani]… they’ve created a process that Rudy could give information and they would see if it’s verified.” That’s right: the Justice Department has set up a special mechanism to enable Trump’s personal counsel to mainline dirt from foreign nationals on Trump’s potential political rivals directly to Justice Department headquarters.

If you’re thinking “Wait, isn’t this what just got Trump impeached?” — well, yes.  This crew isn’t much for contrition or lesson-learning. And if you’re also thinking, “But isn’t Giuliani himself under federal criminal investigation by the Southern District of New York?” — that’s also a “yes,” accompanied by a “I have no idea how anybody could think this is a good idea.”

During his first year in office as Trump’s attorney general, Barr has shown us all what he truly is: a political partisan, a pseudo-intellectual, and, above all else, a defender at virtually any cost of Donald Trump and his criminal cronies.  As he enters year two, Barr — and a newly-emboldened, post-impeachment Trump — are positioning the Justice Department to go on the offensive and to settle Trump’s political scores (with or without explicit direction from Trump, via Twitter).  This is everything that the Justice Department is not, and never should be. 

Stay Informed, 

Elie 

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