William Barr does not seem concerned that people know he is unethical, but he treasures his reputation as a ruthlessly effective fixer for Donald Trump. As the events of recent weeks have made plain, however, that reputation is undeserved.
When Trump nominated Barr to serve as attorney general in 2018, many expressed hope that this “old Washington hand” would return respect for the rule of law to the Department of Justice. Barr swiftly burst that balloon by baldly lying about Special Counsel Robert Mueller’s findings, even as he hid them for weeks. Since then, Barr has thoroughly trashed his reputation for probity and fidelity to the law, as he's successfully manipulated the justice system to serve Trump’s corrupt purposes.
But much like his boss, Barr wildly overestimates his own judgement and intelligence, and hence his ability to effectively employ governmental institutions to serve illicit ends. And while Barr has had some success in manipulating the justice system to protect Trump, he’s also had more than his own share of failures that placed Trump at needless risk or embarrassment, and even impeachment.
Barr Helps Get Trump Impeached
Barr’s unforced errors played a critical, but largely unrecognized, role in setting the stage for Trump’s impeachment.
Barr’s minions tried to prevent the Intelligence Community inspector general from sharing the whistleblower report recounting Trump’s effort to extort Ukraine’s president into announcing an investigation of Joe Biden with Congress, in accordance with the express command of a governing statute. Barr’s DOJ went so far as to issue a frivolously reasoned legal opinion asserting that the IG did not have to comply with the plain language of the law, and that only the DOJ had the authority to investigate the whistleblower’s claim. Then the department’s criminal division dutifully concluded that the president’s conduct was legal, without even conducting an investigation, and closed its file.
Barr plainly expected these tactics would bottle up the report, and prevent Congress from learning about, let alone investigating, the whistleblower’s allegations. But his calculation depended on successfully intimidating and bullying the IG to go along with his patently illegal cover-up scheme. The IG did not, and instead made Congress aware of the whistleblower’s report. As a result Trump was not only forced to release the report, but also the underlying memo of his call with the Ukrainian leader. Furthermore, because the DOJ had declined to pursue any criminal investigation, a step that can—as occurred during the pendency of the Mueller inquiry—effectively preclude the Congress from pursuing a parallel investigation, Barr ended up opening the door to the full-blown investigation of Representative Adam Schiff and his House Intelligence Committee that ultimately culminated in Trump’s impeachment.
Barr’s Flynn and Stone Fiascos
Barr’s audacious efforts to protect two of Trump’s felonious cronies, Roger Stone and Michael Flynn, also blew up in his—and Trump’s—faces.
The Flynn and Stone cases were brought by Robert Mueller, but were each inherited by the office of the District of Columbia United States Attorney, Jessie Liu, who was appointed by Trump, but apparently lacked the desired level of pliability. Accordingly, in January, Barr induced Liu to leave her job immediately, after previously announcing that she would be nominated for a high-level position in the Treasury Department. With Liu out of the way, Barr installed his “senior counselor” Timothy Shea as acting U.S. Attorney, soon before the deadline for the DOJ to submit its sentencing recommendation for Stone, who had been convicted of obstructing justice to protect Trump.
As Stone prosecutor Aaron Zelinsky testified before Congress last week, he and his team faced intense pressure to alter a memorandum calling (in accordance with long-standing DOJ policy) for Stone to be sentenced in accordance with the federal sentencing guidelines. Zelinsky’s supervisor told him that Shea was “afraid of the president,” and wanted the recommendation to be modified to seek a lower sentence for “political reasons.” According to Zelinsky, the supervisor also told the Stone prosecution team that “this case was ‘not the hill worth dying on’ and that we could ‘lose our jobs’ if we did not toe the line.”
Like the inspector general, however, the Stone prosecutors were not inclined to sacrifice their ethics in response to a Barr crony’s bullying. After Zelinsky threatened to resign, his team was permitted to file a memorandum containing their initial sentencing request.
But soon after the filing, Trump tweeted that the DOJ’s recommendation was "horrible and very unfair." The department then replaced the initial memorandum with a new document that asked for an unspecified lower sentence. None of the members of the Stone prosecution team signed the new memorandum; indeed, all of them withdrew from the case, openly signaling their strong disagreement with the unprecedented move by Barr.
Even before Zelinsky provided his inside account to Congress, the episode was widely denounced, and likely forced Barr to replace him, thus bringing his brief stint as U.S. Attorney to an end. Furthermore, the DOJ’s attempt to walk away from its initial sentencing recommendation was utterly ineffective, particularly after a department representative stated, during Stone’s sentencing hearing, that he stood by the original brief filed by Zelinsky’s team, which he said had been prepared in “good faith,” and indeed had never been withdrawn.
The judge ultimately gave Stone a sentence of over three years, which was less than half of what Zelinsky’s team had initially recommended; but that was hardly unusual for a judge with a reputation for relatively lenient sentencing. Notably, however, the judge largely conducted her sentencing analysis with reference to the reasoning of Zelinsky and his team, not the that set forth in the document Barr had attempted to substitute for it. Accordingly, Barr’s intervention was, for all intents and purposes, a nullity. Furthermore, the judge just ordered Stone to begin serving his sentence in mid-July, and Trump has given every indication that he will grant his crony’s public demands for a pardon before then, thus rendering Barr’s intervention in the sentencing process all the more pointless.
Barr, however, was undeterred by the Stone fiasco, and decided to engage in even more audacious meddling, this time in the Flynn case. On May 7, Shea filed a motion to dismiss charges arising from Flynn’s lies about his communications with the Russian ambassador in the wake of the 2016 election, despite Flynn’s own multiple admissions of guilt. In an echo of the Stone imbroglio, no member of the Flynn prosecution team signed the document.
The motion was grounded on mendacious accounts of the facts, that were immediately repudiated by several law enforcement officials cited in Shea’ brief, as well as on patently wrong accounts of the applicable law that were inconsistent with the DOJ’s own long-standing positions.
The entirely predictable result was yet another fiasco, in which the DOJ asserted that the judge had to grant the dismissal motion, regardless of how frivolous or outright false the department’s rationales may have been. When the trial judge had the audacity to schedule a hearing on the motion, Flynn sought relief from an appellate court, with the support of Barr’s department.
On Wednesday, in an opinion authored by former Trump White House official Judge Neomi Rao, a divided appellate court panel ruled in the DOJ’s favor. The opinion is grounded on an astonishing proposition: that Barr’s DOJ would be harmed by any judicial “scrutiny” of its transparently politicized decision to drop the case.
The decision may be rejected by the full appellate court, and could ultimately end up before the Supreme Court. But regardless of the ultimate outcome, it is plain that Barr’s intervention in the Flynn case was yet another unforced error for Trump’s consigliere. The most Trump can hope for is a ruling stating that the DOJ rightly fears “scrutiny” of its efforts on behalf of a presidential crony. Furthermore, the case could well remain in the courts, and the news, well past the election, unless Trump also pardons Flynn to put the episode to bed, just as he likely planned to do before Barr came up with his over-the-top dismissal scheme.
Barr Loses the Battle for the Southern District of New York
Barr’s most epic fail so far was last week’s battle for control of the Southern District of New York, which he lost, spectacularly.
On Friday evening, the DOJ issued a press release announcing that SDNY U.S. Attorney Geoffrey Berman had resigned, and that Trump was nominating Jay Clayton to take his place. Clayton is currently chairman of the Securities and Exchange Commission, but has no prosecutorial experience. Barr also announced that, instead of allowing Berman’s deputy to manage the office until the confirmation of his successor, as normally occurs in such circumstances, he was installing the New Jersey U.S. Attorney, who previously represented Governor Chris Christie in the investigation of the scheme to create a traffic jam on the George Washington Bridge, to run the SDNY on an interim basis.
It remains a mystery just what motivated Barr to attempt the precipitous decapitation of the nation’s most important local prosecutorial office; but there have been reliable reports that the SDNY is investigating Trump attorney, and former U.S. Attorney, Rudy Giuliani for possible Ukraine-related misconduct; and, according to John Bolton’s recently published book, Trump has been eager to terminate the office’s prosecution of a bank controlled by the government of Turkey. The New York Times has also reported that Barr previously, and ineffectively tried to divert the SDNY’s Ukraine-related investigations to another office, and made noises about questioning the merits of the office’s prosecution of Trump fixer Michael Cohen for violating campaign finance laws by making a hush money payment on Trump’s behalf, possibly in an effort to insulate Trump from a future prosecution for the same conduct.
Whatever his reasons, Barr tried to run the same play he had used to displace Liu in D.C. against Berman, including by purporting to offer Berman a new plum job in return for quietly and quickly leaving office. Indeed, Barr (absurdly) offered to get Trump to nominate Berman to Clayton’s current job as chair of the SEC, for which Berman is probably unqualified. Liu never ended up getting the Treasury Department job that had been promised to her as an inducement to immediately vacate the D.C. U.S. Attorney’s office; therefore, Berman would have been wise to discount any such offer from Barr.
In any event, Berman was unwilling to play along, and openly challenged Barr’s authority to fire him without a direct order from the president. In the resulting firestorm, Barr was forced to pay a heavy price to get Berman’s resignation: allowing his deputy, Audrey Strauss, an experienced, and unquestionably independent, prosecutor to take over as acting U.S. attorney, stymieing any hope Trump and Barr may have had of manipulating or deep-sixing any sensitive investigations in the “Sovereign District.”
Looking at Barr’s epics fails, it’s clear that his intimidation schemes have become less and less effective as he has faced more and more pushback from his victims. But that is not to say that he, like his equally shambolically bullying boss, is no longer a danger to the nation. Indeed, Barr may well respond to his recent setbacks with even more audacious efforts to undermine the justice system, and possibly democracy itself.
For example, Barr recently joined in Trump’s attacks on allowing voting by mail in the midst of the pandemic, claiming that allowing voters to mail their ballots invites massive fraud masterminded by foreign nations. Yet, when questioned, Barr has also admitted that he has absolutely no evidence for the assertion. And Barr’s repeated, and wholly improper, trumpeting of future indictments of unnamed law enforcement personnel in connection with an investigation of the Russia investigation’s investigators makes clear that the attorney general stands ready to do all he can to substantiate Trump’s “Obamagate” conspiracizing.
But nothing diminishes a bully more than losing fights, and Barr has lost a lot recently.