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FOCUS: Bob Bauer | Angry Political Man
Bob Bauer, Lawfare
Bauer writes: "A book sharply critical of Bill Barr's performance as attorney general in the Trump administration presents a challenge for readers who agree with its core argument: that Barr aggressively undermined the norms that shape expectations of an attorney general and inflicted serious damage on the Department of Justice." VVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVV
A review of Elie Honig, “Hatchet Man: How Bill Barr Broke the Prosecutor's Code and Corrupted the Justice Department” (Harper, July 2021)
book sharply critical of Bill Barr’s performance as attorney general in the Trump administration presents a challenge for readers who agree with its core argument: that Barr aggressively undermined the norms that shape expectations of an attorney general and inflicted serious damage on the Department of Justice. On the one hand, it remains important to have a clear and complete record of Barr’s deeply troubling tenure, to round it out as more facts become available, and to keep it in view throughout any project of Justice Department reform. At the same time, the success of this project depends on getting beyond moral outrage to understand how Barr’s attorney-generalship went so badly off the rails. A reader who is actively sympathetic to the strong case against Barr will also want illumination on this central question: Why did a once well-established and generally respected lawyer, whose service as attorney general during the administration of George H.W. Bush was not especially controversial, wind up delivering a disastrous encore some 25 years later?
In “Hatchet Man,” Elie Honig, a former federal and state prosecutor, offers blunt judgments—“First, Bill Barr is a liar. I won’t mince words.”—and an energetically constructed case against Barr. He provides a useful and detailed review of the low points and controversies of the Barr years.
But for all the ardor and extensiveness of his critique, Honig cannot come up with a fresh or interesting answer to this basic question. To Honig, Barr was purely and simply a bad attorney general, if not a bad person altogether: a liar and schemer and opportunist, nothing more than indicated by the title of the book. In other words, Barr was the ultimate hatchet man. But to the extent that Honig tries out an explanation, it falls flat, or alternatively fades into the background of his general contempt for Barr.
As noted previously by Quinta Jurecic in her Washington Post review of the book, Honig seems to think that Barr’s most egregious failures are grounded in his lack of prosecutorial experience. But as Jurecic points out, it’s hard to make this case when some of the more storied attorneys general, like Edward Levi, also lacked any such experience. She also notes the incongruity of this argument at a time when prosecutorial ethics have become part of the searing debate about criminal justice reform. And, at any rate, someone without prosecutorial experience is not by definition or even reasonable expectation any more likely to turn out to be a stone-cold liar and opportunist.
A further striking example of the missing explanatory framework is the failed connection between the title of Honig’s book and its main argument. A “hatchet man” carries out instructions from another: He or she is “a person whose job it is to execute unpleasant tasks for a superior, as dismissing employees.” Yet by Honig’s own account, while Barr undeniably acted on President Trump’s behalf in various respects, he was very much his own man, pursuing his own program. Trump merely provided him with his opportunity: “[F]or Barr, Trump is a vessel, a means to an end: to make his own personal vision of government, and the wider social order, a reality.”
Honig rightly points to Barr’s concern to defend an expansive vision of presidential authority and to protect the place of religion in public life from what he viewed as grave threats from a well-entrenched, secularist, progressive establishment. Barr made no bones about this agenda, as evidenced by his speech at Notre Dame in October 2019. But whatever one thinks of this world view, and there is more to say about it, Barr’s commitment to use government service to articulate and advance his own normative commitments does not support the description of him as a “hatchet man.”
It is not uncommon for passion to drive overstatement and lead to confused analysis. But at various points, Honig makes mistakes in overdrive when the record, simply presented, would have been sufficient to make his point.
For example, Honig castigates Barr for using the word “collusion” in the press conference at which he spun the results of the still-unreleased Mueller report. There is no such legal offense or concept as “collusion,” Honig correctly writes, noting that the term was a “rallying cry of Trump and his supporters,” a “refrain” that, especially in the period between the press conference and the full release, “Trump started and Barr dutifully mimicked.”
But Honig is wrong to suggest that this term was primarily a tool of Trump-world misdirection. In fact, as Victoria Clark traced on Lawfare, the term “collusion” arose first in criticisms of Trump’s and the Trump campaign’s brazen engagement with the Russian government during the 2016 campaign. And it was carried forward with gusto by the press. Thoughtful critics of the Trump campaign’s interest in Russia’s support frequently used “collusion” as a shorthand to describe Trump’s and his campaign’s conduct. So while there is the case to be made against Barr’s choice to refer to the term (see below), it cannot rest on the suggestion that the Trump campaign was exclusively responsible for its pervasive use in the public debate, or that it is somehow more questionable to use the word “collusion” when denying rather than prosecuting the charge.
Honig’s book is better seen as an impassioned manifesto than a historical account and, on that score, it succeeds. But the question remains: What happened to Bill Barr, such that sensible people who lauded his appointment were left astounded by how it all turned out?
Barr always presented as a dedicated conservative Republican, if sometimes a partisan one. And on at least one occasion during his first term as attorney general—the “House Bank” scandal of 1992—Barr left himself and the Justice Department vulnerable to charges of partisan politics and, at a minimum, of insensitivity to the appearance of playing politics. The House of Representatives operated a bank in which many members held accounts on which they overdrew, in some cases in substantial amounts. This became yet another chapter in the story the Republicans wrote, and that Newt Gingrich used to ride to the speakership, about the corrupt Democratic-controlled Congress that had illicitly maintained its grip on power for decades. While the “overdrafts” did not involve the misuse of public money, and the bank itself bore responsibility for mismanaging the accounts, the question of how the House ran the bank was a legitimate point of inquiry and criticism. But Barr responded by instituting a bizarre, suspiciously designed investigative procedure in which he appointed as a special counsel a former federal judge for whom he had clerked, Malcolm Wilkey, who then proceeded to vacuum up by subpoena the personal bank records of hundreds of members of Congress.
This process reflected a starkly deficient sensitivity to separation of powers issues, pungently captured by Wilkey’s declaration that members of Congress were no different from the depositors of a “failed S&L or a fraudulently operated [Bank of Credit and Commerce International, the subject of a major international banking scandal].” It also lent itself to the appearance that the Justice Department was helping to feed the Republican “corruption” attack on Democrats with an irresponsibly structured investigation laden with political significance. A small handful of prosecutions connected to the inquiry eventually ensued, but the vast majority of members were swept up in the investigation without any basis in evidence of wrongdoing. While they were ultimately cleared, the political damage to the House Democratic majority was extensive and may have figured to some degree in Republican success in regaining control of the House four years later.
But the House Bank was a singular, if disturbing, episode in Barr’s Bush administration service, and it is hard to see that partisanship can convincingly explain Barr’s damaging run as Trump’s attorney general. More plausible were the effects of his normative, less narrowly partisan party commitments: his robust defense of presidential power and his disgust with what he perceived to be the ascendancy of secularist progressivism. It seems that as the times changed and the politics of the country became more polarized, and as the right became more assertive and resentful, Barr went far down that same path. His views became sharper, more uncompromising, and—in this sense—more “political.”
Barr saw Republicans in the 21st century up against foes even more relentless than the liberals of the 1990s in their attacks on conservative values and morals. In his Notre Dame speech, he recalled that in the past Democrats and Republicans, with Chuck Schumer as a co-sponsor, could collaborate in passing the Religious Freedom Restoration Act. Now the “the process of secularization has accelerated,” and “secularists, and their allies among the ‘progressives,’ have marshalled all the force of mass communications, popular culture, the entertainment industry, and academia in an unremitting assault on religion and traditional values.” Their intention, Barr declared, is to “drown out and silence opposing voices, and to attack viciously and hold up to ridicule any dissenters. … Those who defy the creed risk a figurative burning at the stake—social, educational, and professional ostracism and exclusion waged through lawsuits and savage social media campaigns.”
By the time he delivered this address, Barr revealed himself to be an angry man, not a hatchet man, and if he occasionally wielded the hatchet for Trump, he did it on his own terms and for his own purposes. In 2001, when he sat for an oral history with the University of Virginia’s Miller Center, he thought of Congress as merely annoying, likening its members to “infants,” and believed that, while the press was biased against Republicans, it had on balance been fair to him, if not to the president he served. But by the time he took over as Trump’s attorney general, Barr was seemingly convinced that Democrats and their progressive allies were playing dirty like never before and that the stakes were dramatically higher.
Thus, in the Russia investigation, and in his controversial actions in the prosecutions of former national security adviser Michael Flynn and Trump confidant Roger Stone, Barr was apparently moved by the belief that Trump’s critics were conducting a war driven by opposing ideological and political objectives rather than a legitimate horror at this president’s unprecedented and open contempt for legal limits and norms. He said as much in his press remarks on the Mueller Report—that on taking office, “President Trump faced an unprecedented situation” of investigations and press suspicion—and in a November 2019 speech to the Federalist Society that denounced Trump opponents’ “explicit strategy of using every tool and maneuver available to sabotage the functioning of [his] Administration.”
Barr seems to have believed that in a war like this he should not have to observe norms that only rewarded the opposition’s bad faith and constrained an effective defense of the president. On the available record, this seems a reasonable, if not the most convincing, reading of the difference between the Barr of the 1990s and the one who ran Trump’s Justice Department 30 years later. And this passage tracked the course of polarized politics from his first to his second term as attorney general. Survey research showed that over the period from the end of George H.W. Bush’s administration to the election of Donald Trump, substantial numbers of Democrats and Republicans came not merely to disagree with, but to detest, each other. They reported that the other party made them “afraid,” and each party assigned to the other attributes of “immorality” and “dishonesty.”
It is the attorney general’s job not to be an active combatant in these polarized, partisan struggles but to do what can possibly be done to insulate the Justice Department from them. The more intense the pressure on norms coming from outside the department, the higher the responsibility to protect those norms from within. Barr failed not because he did not honor the code of the prosecutor, as Honig argues, but because he chose through his actions and public commentary to dishonor the norms that an attorney general should be concerned above all to preserve. It was in this sense that he was too political.
So when Barr chose to speak on pending cases or in other ways inappropriate for the attorney general, it appeared that he felt compelled to enter the wider political controversies swirling around Trump. How else to explain that, in the wake of the Justice Department inspector general’s finding that the Russia investigation was adequately predicated, Barr responded with a public statement of his contrary opinion that the inquiry had been initiated only on the “thinnest of suspicions” and that, “from its inception, the evidence produced by the investigation was consistently exculpatory”? Or that, while conceding that he had no evidence of illegal Obama administration surveillance of the Trump campaign, he declared nonetheless that “I think spying did occur”? In these cases, as in his press conference on the Mueller report, Barr exhibited the urge and apparent mission to score points off partisan adversaries: the Democrats and progressives who, as he stated in his 2019 speech to the Federalist Society, were “using every tool and maneuver available to sabotage the functioning of [Trump’s] Administration.” This is likely why Barr could not resist describing the Mueller report as not finding any “collusion”—and also the reason he should not have made such a statement.
Many of Barr’s critics, Honig included, believe that he simply assumed the role of Trump’s defense counsel. That Barr provided ample room for this perception seems undeniable, and it is yet one more point against him that he invited this judgment. But it seems less likely that he saw things quite this way. As his Notre Dame speech illustrated, the political and culture war that he was all too eager to fight was far broader, more consequential, than whatever served Trump’s immediate political purposes.
Some of the more restrained Barr of the 1990s did show up from time to time during his Trump years. He registered a public objection to Trump’s tweets assailing the Justice Department, complaining that they complicated his job. To be sure, he could have done more, taken an even stronger stand in defending crucial norms. Resignation would have been the more compelling choice when it became clear that Trump would pay no attention to Barr’s concerns on this score. And while those defending Barr in the Russia matter will fairly note that he did not seek to block the release of the Mueller report nor object to Mueller’s testimony to Congress, it’s not clear that this course of action was, as a practical matter, open to him.
Most importantly, Barr eventually separated himself from Trump’s attempts to subvert the 2020 election. Unfortunately, this last stand, while exceptionally important to the preservation of democracy, came only after Barr threw some “vote fraud“ rhetoric the president’s way, in the course of which he gave an entirely false account of fraud in Texas that the department had to quickly walk back, blaming flawed briefing materials. Barr also unnecessarily opined on the risks of fraud in mail voting, a subject about which he was clearly ignorant and a major point of political conflict on which he should have stayed silent.
Still, against the backdrop of Jan. 6 and the epic struggle over voting rights that has followed, we might well appreciate this much: As dismal as Barr’s performance was in critical respects, there were other Republican leaders who would have gladly done and said what Barr eventually refused to do and say to help Trump deny and resist his loss.
The point here is not that this final act of responsibility cleanses Barr of responsibility for a damaging stewardship of the Justice Department. It is simply a part of the history of his journey from a vaunted member of the legal elites to a much criticized, and in some quarters actively despised, attorney general all too symptomatic of the ugly, polarized politics of the time. The story of Bill Barr underscores the urgent need for the Justice Department to resist these pressures, and for legislative and internal reforms to ensure that it does. Barr decided to pick and choose his moments of norm-breaking, drawing the line at helping a president with planning for subversion of a presidential election, but a future attorney general, in an even more drastically politicized Justice Department, could well choose differently.
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