Attorney General-nominee William Barr is an old-school, main-line institutionalist, loyal first to the rule of the law and the Justice Department. Senate Republicans want us to believe, and the nominee himself Tuesday told the Judiciary Committee that he is willing to serve in the Trump administration as a matter of selflessness and patriotism. He isn’t serving to thwart Robert Mueller or otherwise obstruct justice, he somberly told panelists, but because he’s reached a point in his life where he doesn’t have to worry about the future of his career.
No, no, say Senate Democrats. Barr may enjoy a patina of respectability because of his past work during the administration of George H. W. Bush but you don’t have to dig too deep below the convenient nostalgia and hagiography to see in him deep illiberal strains. From his zeal to push pardons for Iran-contra scoundrels to his push for mass incarceration to his dubious Mueller memo, Barr’s expansive view of presidential power has more in common with Donald Trump than the nominee’s Establishment backers care to admit. The Mueller memo, remember, argued essentially that no lawful act of a president ever could be obstruction of justice, a position which, if true as a matter of fact or law, could cut the legs out from Mueller.
And so there you have it. After two days of a largely desultory hearing on Capitol Hill nothing much changed for Barr or his excellent chances of getting confirmed. Everybody heard from Barr what they wanted to hear; everyone is reassured who wants to be so. There is no reason to think Barr won’t promptly be confirmed as the nation’s 85th U.S. attorney general. Nor, for that matter, is there any reason to believe that the American people have any better sense of how courageously (or not) he is going to act when his moment of truth comes and he has to choose between his old friend Mueller and his new boss Trump.
If you are support Barr, the nominee said nothing Tuesday that ought to alarm you. Yes, he said he would allow Mueller to complete his investigation into the Trump team’s Russian ties. Yes, he said that suborning perjury is a crime. (It is.) But Barr also suggested that he would not necessarily make Mueller’s final report public even though most legal experts agree he has the discretion to do so. And his Mueller memo, written in June 2018, when there already was public evidence of presidential obstruction, stands still as Barr’s most complete analysis of Mueller’s work. If you take Barr at his word in the memo, he’s skeptical of the special counsel’s ability to ever raise an obstruction-of-justice case against the president.
That’s quite a leap for a once-and-future attorney general to make about an investigation which he took pains this week to say he was not “looped into.” The leaps in law and logic that animate the memo aren’t just sloppy legal work. They suggest, at least to me and others, a sort of wishful thinking on Barr’s part. As though he’s come to the complex constitutional questions raised by Trump with preset conclusions that favor Trump. This would also explain why Barr was so unresponsive, even obtuse, when he was asked by senators to share his level of concern about the fact that the president may be a Russian agent. Barr seemed more concerned instead about the FBI investigation into Trump. Odd for a venerable lawman.
If you oppose Barr though, the nominee said plenty Tuesday to make you wonder how candid he’s being when he talks about the “independence” and “integrity” at the Justice Department. He seemed to refuse to concede the obvious racial disparities that existed and still exist in criminal justice. And he told panelists, for example, that he hadn’t looked up the emoluments clause of the Constitution or looked into whether the 14th Amendment ensures “birthright citizenship.” I don’t believe that for a second and neither should you. A former attorney general would be derelict in his duty not to know what the 14th Amendment says. And any applicant for the job today would be negligent not to have paid attention to the millions of words of analysis on the emoluments clause since Trump rescued it from constitutional oblivion.
It is simply not credible for Barr to pretend he has not done the sort of basic due diligence on these topics at the same time he was trying to convince senators that former Justice Department experts like him frequently offer private opinions about public topics — as he did with his 19-page Mueller memo. But if it somehow is true that Barr stayed conveniently ignorant on these two contentious issues, it makes his proactive lurch into the Russia probe all the more dubious. He went out of his way to try to undermine Mueller, even though he admitted he didn’t know what Mueller knows about Trump, while going out of his way not to educate himself, through the emoluments clause, into Trump family corruption.
No senator asked him, as Tuesday wore on, why Barr chose to interject himself so loudly into the debate over the scope of Mueller’s work and remain so uninvolved in so many of the other momentous legal issues into which the Justice Department has weighed since January 2017. Is there a “memo” we don’t know about that offers us a view of Barr’s view of Trump’s odious Muslim ban? How about one about the Justice Department’s abdication of its enforcement obligations under the Voting Rights Act? Did Barr also share those with White House lawyers?
Barr also tipped his hand about what how Trumpian his Justice Department will look and act like on immigration, and the border wall in particular. He parroted the same false and often racist narratives that Trump and the Vichy Republicans on Capitol Hill parrot these days about crime, drugs, and immigrants. We need money for a wall to thwart deadly drug trafficking, Barr told senators, even though serious experts, including those within the federal government, say that’s nonsense. Asylum seekers are “being coached,” he added, as though that somehow makes all those lawful asylum requests less so.
These are not the positions of a fact-based law enforcement official. They are not the statements of someone who has reviewed the evidence that dispels the myth about links between immigrants and crime. This is not what the “adult in the room” is supposed to say about the complexities of immigration. Don’t you wish a senator had asked Barr to share his main sources of news? Barr’s responses strongly suggest, as Brian Beutler of the New Republic and others noted Tuesday, that Barr surely must be getting his worldview largely from Fox News and the right-wing echo chamber.
Not a surprise, I suppose, given the way we all get our news these days, but Barr’s Fox talking points this week vitiate the argument the administration is otherwise making about Barr being a DOJ traditionalist. As Republican senators tried Tuesday to sell Barr to the American people as some sort of nonpartisan avatar of justice, I kept thinking of another legal legend, Ted Olson, and the ways in which he and Barr are similar and different. Both were stars of past Republican administrations. Both excellent, powerful, Washington-infused lawyers. Both clearly qualified for the post of attorney general, or White House counsel, or even federal judge. Both men of conservative sensibilities with great reputations across the aisle.
But when Trump approached Olson to work for him, Olson wanted no part of defending or justifying the most corrupt and lawless administration in the nation’s history. Olson showed great courage and integrity — and that says as much about Barr as it does about Olson. It says, about Barr, that he’s always been more than just a professional lawyer dipping in and out of public life. It says the nominee sees in Trump his final real chance to implement his own ideological agenda on a country that wasn’t ready for it in 1992 and isn’t ready for it today. And we don’t need to guess about that agenda because Barr spelled it out for us.
He was for a personal right to bear arms before the Supreme Court acknowledged such a right, he told senators, and he embraces the expansive view of “religious freedom” that conservatives have used as a cudgel to expand the creep of religion into public life. When he talked about the need to protect election integrity he talked about it vaguely in terms of foreign interference. What he didn’t say, to anyone, what that he would use DOJ resources to protect the right to vote against a surge of voter suppression at the state and local level now justified by Republican officials by widespread in-person voter fraud that simply doesn’t exist.
All of this tracks Trump-era Republican orthodoxy. And all of it suggests that rather than the reluctant hero dragged back into the arena, Barr submitted his job application — i.e. the Mueller memo — because he’s fully on board with this administration’s aims. In this sense Barr is playing Trump as much as Trump is trying to play Barr. They both need each other. Trump needs Barr for that whiff of credibility and respectability the nominee still brings for his long public service. Barr needs Trump for the job. That was made clear hour after hour Tuesday as Barr virtue-signalled his fealty to the president’s policies. What happens next is clear. Like everything else Trump touches Barr now is tainted, corrupted, and eventually will be fired or resign in disgrace like so many other members of Trump’s inner circle. And based on Trump’s reported concern about Barr’s personal ties to Mueller it may happen sooner rather than later.
If this were a movie and Barr were a good guy he would take the job at Justice knowing he were some sort of sacrificial lamb. He’d get confirmed and work to restrict the damage Trump already has done to the institution and its values. He’d last a few months, protecting Mueller all the while, and then become a martyr after being sacked by Trump. If Trump really did suborn perjury by telling Cohen to lie to Congress, or if more evidence of obstruction of justice emerges, Barr would be first in line to use the resources of the Justice Department to hold the president accountable. Historians would in this event view him as a patriot, a hero, of the sad story of the Trump years.
But this is reality, not Hollywood, and the truth is that Barr strikes me as no more a patriot than Trump. A patriot either wouldn’t touch this vexed administration or would call out the “alternate facts” on which this White House operates. A patriot would already have said to Trump: You may nominate me but that doesn’t mean I’m going to protect you from what’s to come. And if Barr said that to Trump in private, Barr wouldn’t be on the cusp of being confirmed as attorney general. I hope I am wrong about all of this. But I think Barr wrote that Mueller memo hoping he would get Trump’s attention and now that he has it, and the job, he’s going to try to end his public career acting as ideologically as he can in concert with his new benefactor. In this sense, Barr also is like Trump: an old guy who came up with a new con.