Attorney General William Barr made a gesture of putative magnanimity when he said at a news conference Monday that he would not, in fact, seek to lock up Barack Obama or Joe Biden. This was, perhaps, a small relief. Barr’s tenure has consisted of a race to the bottom that has gone beyond the worst fears of his critics. At least he has finally identified a floor below which he will not sink. It was the Justice Department equivalent of Jared Kushner conceding that Trump will not postpone the November election.
But Barr is not abandoning his campaign of rampant politicization of justice. His gambit is to fulfill the role Trump demands of the position — to be his Roy Cohn — while maintaining the trappings of legal legitimacy. His rhetorical method for positioning himself as a disinterested arbiter of law is to triangulate between two extremes. In his case, the poles are Donald Trump and … Robert Mueller.
Barr described Mueller’s investigation as witch hunt against Trump. “The law enforcement and intelligence apparatus of this country were involved in advancing a false and utterly baseless Russian collusion narrative against the President,” he asserted. “The proper investigative and prosecutive standards of the Department of Justice were abused, in my view, in order to reach a particular result.” He not only echoed Trump’s description of the Mueller probe, but also his language, calling the investigation “unprecedented in American history,” and vowing “we can’t allow this ever to happen again.”
After having smeared Mueller explicitly, he pushed back ever so gently against Trump’s threats to prosecute his opponent. “But this cannot be and it will not be a tit-for-tat exercise,” and promised not to “allow this to be hijacked by efforts to drum up criminal investigations of either candidate.”
The reason Barr has been forced to draw this implicit parallel between Mueller and Trump is that the latter has recently indulged yet again in his recurrent authoritarian fantasies. The president is ranting about “Obamagate” and floating promises to implicate Joe Biden in whatever criminal allegation he can stir up. Trump does not require an actual criminal violation in order to call for charges.
“Illegal” is just Trump’s term for any political activity he doesn’t like. He ran for president on a platform of imprisoning his opponent for the same email-security-protocol violations numerous members of his own administration have violated. He has continued lobbing allegations of criminality at his critics, ranging from Nancy Pelosi to Adam Schiff to Joe Scarborough. Just this weekend, he described both the left-leaning tilt of the workforce at social-media firms and the fact that mainstream media has covered him critically as “illegal”:
To compare Trump’s shrill demands for mob justice with Mueller, even implicitly, is absurd. Mueller, a Republican, was fastidious to a fault. After suppressing any leaks to the media throughout his probe, he cloaked his report in dense legalese, sought to avoid testifying, and then, when called by Congress, delivered a performance so understated it allowed his critics to present him as senile.
Barr exploited Mueller’s reticence to aggressively mislead the public about his work. He has repeatedly claimed Mueller found no collusion, despite the fact Mueller’s report did not attempt to answer whether or not Trump colluded with Russia. “We did not address ‘collusion,’ which is not a legal term,” Mueller testified. “Rather, we focused on whether the evidence was sufficient to charge any member of the campaign with taking part in a criminal conspiracy.”
Proving a criminal conspiracy turned out to be impossible — in part because the most important potential conspirators did not cooperate. Mueller found that Trump’s campaign manager passed 75 pages worth of detailed polling data to his business partner and Russian intelligence agent Konstantin Kilimnik, but was unable to determine its purpose. Mueller found that Trump held secret negotiations in which Russia dangled the prospect of a building deal that would deliver him a profit of several hundred million dollars with absolutely no risk (exactly the kind of sweetheart deal Russia often gives under the table to overseas political allies). Mueller testified that Trump’s secret dealings gave Russia blackmail leverage over him. And of course, he found Trump’s campaign entertaining secret promises of Russian campaign assistance.
Barr has spun the failure to prove a criminal conspiracy into imaginary exoneration. He has then turned this imaginary exoneration against Mueller. Working backward from his false conclusion, he has reframed the investigation as a witch hunt, and treated every prosecution as a scheme to undermine Trump.
In the pursuit of this goal, Barr has sought to undo prosecutions of Trump cronies Roger Stone and Michael Flynn, leading outraged prosecutors to resign in protest. He has placed a pliable Republican in charge of the Washington, D.C., office, giving Trump loyalists control over prosecutions in the capital. “This represents a politicization of the U.S. attorney’s office of the District of Columbia that is remarkable, and unique, and unprecedented,” Stuart M. Gerson, a Republican and former Barr aide who served as acting attorney general briefly under presidents George H.W. Bush and Bill Clinton, told the Washington Post. “It’s a political coup, there really can be no question about it.”
And Barr is eagerly looking for grounds to bring charges against Trump’s other deep state enemies. Barr told CBS last week “we have our eye on” criminal charges.
He has not managed to come up with a crime he can plausibly bring against either Obama or Biden. But Barr can try to charge the intelligence and law-enforcement officials who investigated Trump’s sleazy secret dealings with Russia. The extreme care and caution Mueller took to constrain his probe became Trump’s best weapon to unravel his work.