Why Is William Barr Really Criticizing Donald Trump?

By David Rohde, The New Yorker

16 February 20

 

n the spring of 2001, historians interviewed William Barr about his tenure as Attorney General in the George H. W. Bush Administration. The multi-hour discussion was conducted by the University of Virginia’s Miller Center, as part of a project to record oral histories from former Presidents and the senior officials who served them. Midway through the interview, Barr spoke about the tremendous influence and discretion that federal prosecutors wield when deciding whether to charge a person with a crime. “One of the things I took away from the Department of Justice is what awesome power prosecutorial power is,” he said. “There’s no other power like it in government. Maybe the power to shoot a foreigner in war, but the prosecutive power destroys lives.”

Barr then proceeded to make an argument that turned a central premise of the post-Watergate American legal order on its head. After Watergate—and, particularly, Richard Nixon’s request to have the I.R.S. prosecute two hundred of his political enemies for tax fraud—there had been a drive in the Justice Department to prevent elected officials and their appointees from handling criminal prosecutions. The goal was to reassure the public that the department would apply the law equally to all Americans, regardless of whether they were the President’s rivals or his toadies.

Barr argued that the threat of unjust criminal prosecutions came not from elected politicians and their appointees but instead from unelected prosecutors who were simply trying to make a name for themselves. “I think it started picking up after Watergate, the idea that the Department of Justice has to be ‘independent,’ ” he told the historians, questioning a presumption that has been widely embraced in the forty-five years since Nixon resigned. Barr further contended that appointed officials should be allowed to oversee criminal cases because they—or their bosses—are ultimately held accountable by the voters. “I have come to feel that political supervision of the Department is very important,” he said. “Someone ultimately has to answer to the political process.” He added that elected officials don’t necessarily resolve cases based on political expediency. “The second-guessing is not for political reasons, it’s really because someone is exercising some maturity of judgment and putting things in perspective and saying, Why would you indict this person over this?”

On Thursday, after a year of serving as Donald Trump’s Attorney General, Barr struck a very different tone. In an interview with ABC News, he said, in reference to the President’s behavior, “To have public statements and tweets made about the department, about people in the department, our men and women here, about cases pending in the department, and about judges before whom we have cases, make it impossible for me to do my job, and to assure the courts and the prosecutors in the department that we’re doing our work with integrity.”

And, in a second apparent break with Trump, the Justice Department announced on Friday that it would not be pursuing criminal charges in a case that the President has tried to influence: whether the former F.B.I. deputy director Andrew McCabe will be prosecuted for lying to investigators about his role in a news-media leak in 2016. That disclosure, about an investigation into the Clinton Foundation, was damaging to Hillary Clinton’s Presidential campaign, but Trump has used the case to declare McCabe, an ally of the former F.B.I. director James Comey, a criminal.

Prior to this week, of course, Barr and Trump seemed to be working together seamlessly to politicize the Justice Department, deciding legal issues—and, increasingly, criminal prosecutions, as well—in ways that benefit the President politically. With surprising ease, they have reversed half a century of precedent that was designed to curb corruption in the criminal-justice system, and earned the enmity of hundreds of former Justice Department officials and legal experts. Many of those officials were deeply skeptical of Barr’s seeming rebuke of Trump in the ABC interview. “Barr’s insistence on his independence is not credible, considering his slavish devotion to Trump’s interests ahead of the nation’s interests until now,” Stephen Gillers, a professor of legal ethics at the New York University School of Law, told me.

Gillers argued that Trump has repeatedly signalled to potential targets of criminal investigations—from wealthy individuals to large corporations—that they may receive special treatment if they show loyalty to him. “Once you inject the idea that political considerations can affect any prosecution, even if it’s a small number, you encourage political contributions in order to win favor, to increase the possibility of a pardon or favorable treatment,” Gillers said. “Once that gate is opened, the public confidence is going to be destroyed.”

Some conservative commentators were enraged at Barr. The Fox News host Lou Dobbs said that “it’s a damn shame” that Barr doesn’t understand what Trump and his family have been through, and demanded to know why Barr hadn’t arrested the dozens of people in the “politically corrupt deep state within the Justice Department, the F.B.I.” Dobbs wholly endorsed the idea that the President should control the Justice Department and criminal prosecutions. “I don’t want to hear any crap about an independent Justice Department,” Dobbs said. “This Justice Department, as does everyone, works for the President. It’s part of the executive branch.”

The events of the past few days provide yet more examples of the impulsiveness and divisiveness that mark Trump’s Presidency. The current turmoil relates to the February 20th sentencing of Roger Stone, Trump’s longtime friend and former campaign adviser. In a case brought by prosecutors working for the special counsel Robert Mueller, a federal jury convicted Stone, in November, of lying to Congress and tampering with a witness to prevent investigators from learning how the Trump campaign tried to benefit from e-mails stolen from the Democratic Party in 2016.

In a court filing on Monday, the four prosecutors who handled the case recommended to a federal judge, Amy Berman Jackson, that Stone be sentenced to seven to nine years in prison. In the interview with ABC, Barr said that he was surprised when he heard of the recommendation that evening. Earlier in the day, he had spoken with Timothy Shea, a longtime aide whom he recently appointed U.S. Attorney in Washington, and expected the sentencing recommendation to be shorter. Barr said that he supported the prosecution of Stone, calling it “righteous,” and added that he was not “a fan” of the political operative, who has bragged about employing dirty tricks in campaigns since his involvement in Watergate. But Barr felt that seven to nine years was excessive, so he told his subordinates to issue a new recommendation on Tuesday morning.

Later that night, though, after conservative commentators criticized the sentencing recommendation on Twitter, Trump weighed in, condemning both the treatment of Stone and the Mueller investigation. “This is a horrible and very unfair situation,” Trump tweeted, at 1:48 a.m. “The real crimes were on the other side, as nothing happens to them. Cannot allow this miscarriage of justice!”

When Barr learned of the tweet, he told ABC, he wasn’t sure if he should go ahead and submit a new sentencing recommendation. Doing so would signal to the public that Trump had intervened in the case. “Well, now what do I do?” he recalled thinking. “Do you go forward with what you think is the right decision, or do you pull back because of the tweet? And that just sort of illustrates how disruptive these tweets can be.”

Nevertheless, Barr, who said that Trump has never asked him to intervene in any criminal case, submitted the new Stone filing. In a highly unusual step, senior Justice Department officials withdrew the four prosecutors’ recommendation and called for Stone to receive “far less” of a sentence. Their statement urged Judge Berman to consider Stone’s “advanced age, health, personal circumstances, and lack of criminal history in fashioning an appropriate sentence.”

In response, the four prosecutors withdrew from the case, and one resigned from his position at the Justice Department. A day later, Jessie Liu, the former U.S. Attorney in Washington, D.C., who had until recently overseen the Stone case, resigned from the Trump Administration, as well. The resignations sparked an outcry among former prosecutors. But Trump, again on Twitter, celebrated the new recommendation, and praised Barr for making it happen: “Congratulations to Attorney General Bill Barr for taking charge of a case that was totally out of control and perhaps should not have even been brought,” he wrote.

Precisely what Barr’s apparent distance from Trump means has been the subject of frantic speculation. In interviews for a recent Profile of the Attorney General that I wrote for The New Yorker, Barr’s current and former friends and colleagues described him as a lifelong believer in the need for the United States to have a strong Presidency. More than any other branch of government, the Presidency, Barr argues, has saved the country in the face of war, recession, and discord. He has accused the legislative and judicial branches of usurping Presidential power in recent decades. He was semi-retired, but said that he joined the Trump Administration to defend the institutions of the executive branch. The unresolved question is how far Barr will go in expanding Presidential power when the President is Donald Trump. Critics contend that, by empowering Trump, Barr is paving the way for autocracy.

The ABC interview offered hints that the reality of working for Trump may be affecting Barr’s views. He agreed that an Attorney General has a duty not to allow a President to use the Justice Department to score political points or to punish his enemies. “I think the essential role of the Attorney General is to keep law enforcement, the criminal process, sacrosanct—to make sure there is no political interference in it,” Barr said. He later added, regarding any President, that, “if he were to say, you know, go investigate somebody because—and you sense it’s because they’re a political opponent—then an Attorney General shouldn’t carry that out, wouldn’t carry that out.” Allies point out that he has shown independence before, and made other decisions that frustrated Trump, such as declining to prosecute James Comey.

But Barr’s statements, of course, could be platitudes. On Friday, the Times reported that he has appointed an outside prosecutor to review the case against Michael Flynn, a former Trump aide accused of lying to F.B.I. agents, whom the President has said deserves leniency. Barr also reportedly brought in outside prosecutors to review the work of career attorneys in other politically sensitive national-security cases. The steps appeared to be designed to placate the President.

After the ABC interview, there was speculation that Trump might fire Barr, as he has other Cabinet members who have publicly disagreed with him. Others wondered if Barr had coördinated his statement with the White House and was essentially asking Trump to let them continue to aid the President’s allies, but to do so quietly.

Donald Ayer, who served as Deputy Attorney General under George H. W. Bush, said he remained deeply skeptical of Barr. “He really is shattering the traditions of the modern Justice Department,” Ayer told me. He and Gillers both said the stakes for the country are enormous. A foundational American ideal—that all people will be prosecuted equally under the law—is at stake. Gillers called losing the belief in equal justice “anathema.” “It deprives the country of its birthright,” he said. “That’s what makes us different.”