Attorney General William P. Barr told federal prosecutors in a call last week that they should consider charging rioters and others who had committed violent crimes at protests in recent months with sedition, according to two people familiar with the call.
The highly unusual suggestion to charge people with insurrection against lawful authority alarmed some on the call, which included U.S. attorneys around the country, said the people, who spoke on the condition they not be named describing Mr. Barr’s comments because they feared retribution.
The attorney general has also asked prosecutors in the Justice Department’s civil rights division to explore whether they could bring criminal charges against Mayor Jenny Durkan of Seattle for allowing some residents to establish a police-free protest zone near the city’s downtown for weeks this summer, according to two people briefed on those discussions.
The directives are in keeping with Mr. Barr’s approach to prosecute crimes as aggressively as possible in cities where protests have given way to violence. But in suggesting possible prosecution of Ms. Durkan, a Democrat, Mr. Barr also took aim at an elected official whom President Trump has repeatedly attacked.
Justice Department representatives did not respond to requests for comment. The Wall Street Journal first reported Mr. Barr’s remarks about sedition.
The disclosures came as Mr. Barr directly inserted himself into the presidential race in recent days to warn that the United States would be on the brink of destruction if Mr. Trump lost. He told a Chicago Tribune columnist that the nation could find itself “irrevocably committed to the socialist path” if Mr. Trump lost and that the country faced “a clear fork in the road.”
Mr. Barr’s actions have thrust the Justice Department into the political fray at a time when Democrats and former law enforcement officials have expressed fears that he is politicizing the department, particularly by intervening in legal matters in ways that benefit Mr. Trump or his circle of friends and advisers.
The protest zone in Seattle became a flash point in the national debate over issues of race and policing this summer. Officers had abandoned the police station there for weeks before retaking it in late July amid escalating violence, including deadly shootings. Ms. Durkan said at the time that she had been forced to act because of the lawlessness.
Days later, federal Homeland Security officials sent tactical agents to the city. Ms. Durkan protested that their arrival would potentially exacerbate tensions between residents and local officials.
Mr. Trump has called the people who lived in the zone “domestic terrorists” and warned that Ms. Durkan and Gov. Jay Inslee of Washington needed to regain control of the area. “If you don’t do it, I will,” the president wrote on Twitter. “This is not a game.”
The attorney general’s question about whether Ms. Durkan, the former U.S. attorney in Seattle, had violated any federal statutes by allowing the protest zone was highly unusual, former law enforcement officials said.
“The attorney general seems personally, deeply offended by the autonomous zone and wants someone to pay for it,” said Chuck Rosenberg, the former U.S. attorney in the Eastern District of Virginia. “If the people of Seattle are personally offended, they have political recourse. There is no reason to try to stretch a criminal statute to cover the conduct.”
His supporters say Mr. Barr’s approach is necessary to preserve order at a moment that threatens to spiral into violence and to tamp down unrest in cities where the local authorities will not.
More than 93 percent of the protests in the United States this summer were peaceful, according to a report by the Armed Conflict Location and Event Data Project, which monitors political upheaval worldwide. The report looked at 7,750 protests from May 26 through Aug. 22 in 2,400 locations across all 50 states and the District of Columbia.Sign up to receive an email when we publish a new story about the 2020 election.
But far-right and far-left groups, as well as looters and rioters, have seized on the protests to commit acts of violence, including deadly shootings — serious crimes that some federal prosecutors said could not be dismissed out of hand as anomalous, particularly as the threat from extremist groups grows.
Two men associated with Boogaloo, a far-right movement that supports the coming of a second civil war, were arrested on terrorism-related charges last week. Prosecutors said they used the protests as cover to try to sell weapons to the Palestinian militant group Hamas, which the United States and other countries consider a terrorist group, and to use the money to support the Boogaloo movement.
Mr. Barr told federal prosecutors on the call that they needed to crack down on rioting, looting, assaults on law enforcement officers and other violence committed during the protests that have continued across the country since George Floyd, a Black man in Minneapolis, was killed by the police in May.
Mr. Barr mentioned sedition as part of a list of possible federal statutes that prosecutors could use to bring charges, including assaulting a federal officer, rioting, use of explosives and racketeering, according to the people familiar with the call. Justice Department officials included sedition on a list of such charges in a follow-up email.
After Mr. Barr spoke, Richard P. Donoghue, a top aide to the deputy attorney general, interjected to note that some of the U.S. attorneys on the call worked in districts where violence during protests was less common, and that the federal prosecutors may not need to use tools as aggressive as sedition charges.
Mentioning that he had visited Portland, Ore., Mr. Donoghue also assured the prosecutors that the Justice Department would support all efforts to crack down on violence.
“If Barr was saying that if you have a sedition case, then bring it, that is fine,” Mr. Rosenberg said. “But if he is urging people to stretch to bring one, that is deeply dangerous.”
The most extreme form of the federal sedition law, which is rarely invoked, criminalizes conspiracies to overthrow the government of the United States — an extraordinary situation that does not seem to fit the circumstances of the riots and unrest in places like Portland, Ore., and elsewhere in response to police killings of Black men.
The wording of the federal sedition statute goes beyond actual revolutions. It says the crime can also occur anytime two or more people have conspired to use force to oppose federal authority, hinder the government’s ability to enforce any federal law or unlawfully seize any federal property — elements that might conceivably fit a plot to, say, break into and set fire to a federal courthouse.
Congress has treated seditious conspiracy as an unusually serious crime: While ordinary federal offenses carry a maximum sentence of five years, a conviction on a charge of seditious conspiracy can carry up to 20 years in prison.
Bill Barr has been involved in a game of Three-Card Monte with US Attorney assignments. First, he pulled DC US Attorney Jessie Liu out of her position as top prosecutor in DC, installed a lackey, Tim Shea, who then started doing favors for Donald Trump’s criminal associates, reducing Roger Stone’s sentencing recommendation and trying to tank the Mike Flynn case altogether. Barr then tried to do the same thing to Southern District of New York US Attorney Geoffrey Berman, trying to install Jay Clayton, a non-prosecutor as the top prosecutor in SDNY. Berman had the last laugh as he both exposed Barr as lying about the claim that Berman had resigned (he hadn’t) and securing the appointment of his Deputy Audrey Strauss as SDNY Acting US Attorney. Now, Barr is at his shell game again, trying to swap a high-ranking DOJ official, Seth DuCharme, for the US Attorney at the Eastern District of New York US Attorney’s Office, Richard Donoghue. Will Barr get away with this latest game of musical chairs . . or musical US Attorneys?
The attorney general undermined the rule of law by forcing out Geoffrey Berman, the United States attorney in Manhattan.
President Trump has long made clear that, for him, “rule of law” is a limited-utility slogan. By word and deed, he has demonstrated his belief that the law exists to serve him, personally and politically.
He has pressured individuals and institutions to pervert their usual independent government missions to comply with a mandate of pure self-interest to protect the president and his friends and pursue the president’s adversaries. This explains Mr. Trump’s ire at his former attorney general, Jeff Sessions, for recusing himself from the Russia investigation; recusal made the protection part of the mandate harder to accomplish.
It also explains the president’s conduct at the heart of impeachment — using the diplomatic and financial levers of government to coerce Ukraine into announcing a damaging investigation of Joe Biden, his chief political rival. The episode is what the former Russia adviser Fiona Hill disparagingly referred to in her testimony as “a domestic political errand.”
Mr. Trump’s latest domestic political errand involves the office I led for almost eight years — the United States Attorney’s Office for the Southern District of New York in Manhattan, commonly known as S.D.N.Y., a place where politics is supposed to be off limits. The United States attorney, Geoffrey Berman, was fired on Saturday in a manner and under circumstances that warrant criticism and scrutiny.
To understand the uproar over the termination in legal circles, some context helps. S.D.N.Y. is famously and proudly independent. It embraces its nickname, the “Sovereign District of New York,” as a badge of honor. Sovereign, in the understanding of those who have served there, does not mean rogue. It signifies respect for law and scorn for political considerations. Republicans and Democrats are equally in the cross hairs.
The career lawyers are hired without knowledge of their politics or ideology. Mary Jo White, the U.S. attorney who hired me to be a prosecutor, opened an investigation of Bill Clinton, the president who appointed her, after he pardoned the fugitive financier Marc Rich. Such independent action would seem beyond this president’s comprehension.
That same commitment to independence is why I did not return President Trump’s unusual phone call to me in March 2017, after which he fired me.
The importance of reputational independence isn’t codified in a rule or a statute, but it is rightly embedded in the DNA of any worthy law enforcement institution for a simple reason: That independence gives comfort to the public that decisions about life and liberty will not be influenced by politics or partisan interests, that those decisions will not depend on an individual’s identity, wealth, fame, power or closeness to a president — every judgment rendered without fear or favor, as the oath commands.
It is this independence, and the public’s faith therein, that Attorney General Bill Barr, in cahoots with President Trump, threatened with his dubious, if legal, removal of Mr. Berman.
What prompted the termination? We don’t know and neither Mr. Barr nor President Trump has publicly said. Mr. Berman is a registered Republican, donated to the Trump campaign and was personally interviewed by the president. There has been no suggestion of impropriety or incompetence.
Against that backdrop, the only sin ascribable to S.D.N.Y. under Mr. Berman’s leadership, it seems, is violation of the commandment to protect the president’s friends and pursue his rivals. The president was unhappy with how the case against his former personal lawyer, Michael Cohen, was handled. The president was displeased that his handpicked U.S. attorney, Mr. Berman, removed himself from the case, unable to protect Mr. Trump from being incriminated in open court.
Then there is the reported continuing investigation of the president’s other personal lawyer, Rudolph Giuliani, a former law partner of Mr. Berman. Perhaps that was a bridge too far.
Maybe it had something to do with Turkey. According to John Bolton’s new book, in connection with a case involving the Turkish bank Halkbank in S.D.N.Y. that the Turkish president, Recep Tayyip Erdogan, didn’t like, Mr. Trump told the Turkish leader that the “Southern District prosecutors were not his people.”
I don’t know if any of these matters, individually or in combination, provoked the firing. It may be impossible to know.
But given the president’s track record, the absence of any other articulated reason and the peculiarity of the weekend termination, neither Mr. Trump nor Mr. Barr deserves much benefit of the doubt. Nothing about the weekend termination was regular or in good faith. It smacks of an effort to get rid of someone perceived to be disloyal in favor of someone more controllable. It may be legal, but it does not clothe the attorney general, or the department he leads, in honor.
It began with Mr. Barr declaring that the chairman of the Securities and Exchange Commission, Jay Clayton, would be nominated by the president to be the next head of S.D.N.Y., a somewhat odd choice. Mr. Clayton has never been a prosecutor and never worked in S.D.N.Y. (as has every other U.S. attorney going back two generations). The timing of the announcement, during the traditional news graveyard of Friday night, was further suspect.
More important, Mr. Barr, in a pro forma note of appreciation, thanked Mr. Berman for his service and said he was “stepping down” after two and a half years in the prosecutor’s office. The second part of that statement was an apparent lie. As Mr. Berman said in his own release later the same night, “I have not resigned, and I have no intention of resigning.”
In my experience, government officials don’t lie about the intentions of others when they are acting in good faith. Perhaps the attorney general thought Mr. Berman would be too cowed to contradict a pre-emptive public announcement of resignation. He was wrong. The next day, Mr. Barr sent a letter to Mr. Berman advising him the president had fired him (though Mr. Trump added to confusion and irregularity later in the day by saying, “I was not involved.”).
Forcing out a well-performing U.S. attorney of the same party, without explanation, on the eve of election, in favor of a less qualified candidate who golfs with the president (as Mr. Clayton does), in the midst of investigations known to be irksome to the president, does not reflect a commitment to law enforcement independence.
Within the Department of Justice, hardworking public servants — in the Southern District of New York and elsewhere — are angry, dismayed and demoralized. I’ve spoken to many of them this weekend. They are disheartened by the bad faith of Bill Barr and his determined efforts to undermine prosecutorial independence. On Saturday, finally assured his well-regarded and principled deputy, Audrey Strauss, would take over the reins, Mr. Berman left S.D.N.Y. with his head held high.
I believe the wrong Department of Justice official left office that day.
Despite claims by President Trump and Attorney General William P. Barr, there is scant evidence that loosely organized anti-fascists are a significant player in protests.
Inciting a riot. Hurling a Molotov cocktail. Plotting to sow destruction. Those are some of the most serious charges brought by federal prosectors against demonstrators at protests across the country in recent weeks.
But despite cries from President Trump and others in his administration, none of those charged with serious federal crimes amid the unrest have been linked so far to the loose collective of anti-fascist activists known as antifa.
A review of the arrests of dozens of people on federal charges reveals no known effort by antifa to perpetrate a coordinated campaign of violence. Some criminal complaints described vague, anti-government political leanings among suspects, but the majority of the violent acts that have taken place at protests have been attributed by federal prosecutors to individuals with no affiliation to any particular group.
Even so, Attorney General William P. Barr has blamed antifa for orchestrating the mass protests, which broke out in cities and towns across the country following the death in police custody of George Floyd. “There is clearly some high degree of organization involved at some of these events and coordinated tactics that we are seeing,” Mr. Barr said. “Some of it relates to antifa, some of it relates to groups that act very much like antifa.”
Mr. Trump has sought to expand and exploit accusations against what he has called the involvement of “radical leftists” in the protests. At one point the president said that antifa would be declared a “terrorist organization,” although it is not a single organization nor does any American law allow using that designation against a domestic group. On Tuesday, the president suggested on Twitter, without providing any evidence, that a 75-year-old Buffalo protester hospitalized after being knocked down by police, could be “an ANTIFA provocateur.”
Mr. Trump and other Republicans have also sought to raise campaign funds off the unsubstantiated accusations. “Stand with President Trump against antifa!” read a banner advertisement on Mr. Trump’s re-election campaign website this week.
Marjorie Green, a congressional candidate in Georgia, produced a campaign ad showing her armed with an AR-15 military-style rifle and threatening antifa activists. “You won’t burn our churches, loot our businesses or destroy our homes,” she said.
Asked why the myriad criminal complaints do not single out antifa, Mr. Barr said on Fox News this week that preliminary charges do not require linking suspects to a particular group, adding that there was, “a witches’ brew of extremist groups that are trying to exploit this situation on all sides.”
F.B.I. agents and federal prosecutors have pursued charges aggressively against rioters, looters and others accused of wreaking havoc during the demonstrations. Law enforcement officials have relied on a variety of federal statutes to make arrests, including conspiracy to commit arson, starting a riot, civil disorder and possession of a Molotov cocktail.
The most serious case that has emerged in federal court involved three men in Nevada linked to a loose, national network of far-right extremists advocating for the overthrow of the U.S. government. They were arrested on May 30 on charges of trying to foment violence during Black Lives Matter protests.
Given the sheer volume of thousands of arrests nationwide in recent weeks, officials cautioned that many investigations remain in the early stages with investigators still trying to determine affiliations. In addition, state and local court documents are far harder to search comprehensively.
However, interviews with several major local police departments and a review of hundreds of newspaper stories about arrests around the country revealed no evidence of an organized political effort behind the looting and other violence.
“We saw no organized effort of antifa here in Los Angeles,” said Josh Rubenstein, the spokesman for the Los Angeles Police Department.
Asked in an interview about the involvement of antifa or other extremists groups in Minneapolis, Medaria Arradondo, the chief of police, said, “As I sit here today, I have not received any sort of official information identifying any of the groups.”
In the one example where antifa is mentioned, local police in Austin, Texas, said members of the Red Guards, a Maoist organization, were involved in organizing the looting of a Target store. The Red Guards have been associated with antifa protests in Austin in the past, but local activists said they were largely estranged from the group.
While anarchists and anti-fascists openly acknowledged being part of the massive crowds, they call the scale, intensity and durability of the protests far beyond anything that they might dream of organizing. Some tactics used at the protests, like the wearing of all black and the shattering of store windows, are reminiscent of those used by anarchist groups, say those who study such movements.
In Portland, those affiliated with Rose City Antifa said they have supported the continuing protests. But the city’s antifa actions have long involved a wide range of people, some who dress in black apparel and face coverings and others who show up in everyday clothing to decry far-right extremists and police militarization. There has also been various far-left activities in Seattle, including people who have spray-painted anarchist symbols on public property.
Antifa has roots in the Occupy Wall Street protests of a decade ago and the demonstrations against the World Trade Organization in the 1990s. During Mr. Trump’s inauguration, antifa activists marched in Washington vandalizing businesses and at one point setting fire to a limousine.
Over the next several months, its followers disrupted events hosted by right-wing speakers like Ann Coulter and Milo Yiannopoulous. When the far right fought back, organizing its own public protests, anti-fascist activists met them on the streets in what often turned into violent confrontations, culminating in the bloody rally in 2017 in Charlottesville, Va.
Anarchists and others accuse officials of trying to assign blame to extremists rather than accept the idea that millions of Americans from a variety of political backgrounds have been on the streets demanding change. Numerous experts called the participation of extremist organizations overstated, as well.
“A significant number of people in positions of authority are pushing a false narrative about antifa being behind a lot of this activity,” said J.M. Berger, the author of the book “Extremism,” and an authority on militant movements. “These are just unbelievably large protests at a time of great turmoil in this country, and there is surprisingly little violence given the size of this movement.”
In July 2019, Christopher Wray, the F.B.I. director, told the Senate Judiciary Committee that the agency “considers antifa more of an ideology than an organization.”
In Las Vegas, the complaint filed in U.S. District Court said the three suspects called themselves members of the “boogaloo,” which is described as a far-right movement “to signify a coming civil war and/or fall of civilization.”
At an initial protest, the three strapped on bulletproof vests, grabbed their rifles and waded into the crowd, hoping to provoke clashes between protesters and the police, according to court papers. One taunted police officers, yelling in their faces, while a second chided protesters “that peaceful protests don’t accomplish anything and they needed to be violent,” the complaint said.
When that failed, they plotted to blow up an electric substation along the route of the demonstration in the hope that would prompt more violence between police and protesters, according to the complaint. They were arrested after preparing Molotov cocktails from gasoline and lemonade bottles before a march.
Robert M. Drascovich Jr., an attorney for one of the accused, Stephen T. Parshall, 35, said his client denied all the charges.
Individuals associated with the boogaloo movement have been out in force at countless demonstrations in the past few years, clad in their distinctive combat dress and armed with rifles. They often claim that they appear armed in public to underscore their commitment to Second Amendment rights, or to protect local businesses.
But online, boogaloo discussion groups overflow with racist statements and threats to exploit any unrest to spark a race war that will bring about a new government system.
In Denver, police seized a small arsenal including three assault rifles, numerous magazines, several bullet proof vests and other military paraphernalia from the car trunk of a self-professed “boogaloo” adherent headed toward a protest, a man who had previously live-streamed his own support for armed confrontations with police.
After a demonstration in Athens, Ga., on May 31 ended with the National Guard being called in and tear gas fired to clear protesters away from the gates of University of Georgia, Chief Cleveland L. Spruill wrote a lengthy memo spelling out his concerns around extremist involvement in the protests.
Given the volatile mix of protesters, including armed men, he said, he feared a repeat of Charlottesville. Some participants called such fears overblown given the overall peaceful tenor of the protest.
In New York, police briefed reporters on May 31, claiming that radical anarchists from out of state had plotted ahead of the protests by setting up encrypted communications systems, arranging for street medics and collecting bail funds.
Within five days, however, Dermot F. Shea, the city’s police commissioner, acknowledged that most of the hundreds of people arrested at the protests in New York were actually New Yorkers who took advantage of the chaos to commit crimes and were not motivated by political ideology. John Miller, the police official who had briefed reporters, told CNN that most looting in New York had been committed by “regular criminal groups.”
In Austin, Texas, court documents said several members of the Red Guards participated in burglarizing a Target store, including a woman who streamed the event on Facebook Live, encouraging people to come “even if you do not want to loot,” one affidavit said.
Although the court documents identified the Red Guards as part of the city’s anti-fascist umbrella organization, several Austin activists described the group as either defunct or estranged from one another because of their penchant for troubling acts like laying a dead cat on the doorstep of a business involved in a gentrification dispute.
Kit O’Connell, a longtime radical leftist activist and community organizer in Austin, said that shortly after Mr. Trump’s election, the group took part in anti-fascist protests in the city against a local white supremacist group and scuffled separately with Act for America, an anti-Muslim organization.
“They’ve been an influence at the protests but they’re not in charge — no one’s really in charge,” Mr. O’Connell said.
Carl Guthrie, a lawyer for Samuel Miller, one of those charged with burglary, denied that his client had any connection to the Red Guards. He called such accusations “a transparent, incendiary attempt to distract from the problems plaguing our society — systemic racism and state-sponsored murder.”
Experts on extremism said the few suspects arrested with overt political goals fall under the broad category of “accelerationists,” groups that hope to exploit any public unrest to further their own anti-government goals.
In the first Monday in May, the Department of Justice headquarters in Washington was on coronavirus lockdown — or at least it appeared to be from the outside. Signs posted on the outer doors facing Independence Avenue admonished visitors to keep out if they had symptoms of Covid-19 or had been “exposed to any person diagnosed” with it. Inside, the guards operating the X-ray machines wore masks and gloves. Across the lobby, a free-standing pump of hand sanitizer cast a cautionary shadow down empty marble halls.
But as you drew closer to the fifth floor, where Attorney General William Pelham Barr works out of a suite of offices, things started to loosen up. One assistant outside his conference room wore a mask, but the other did not. In the middle of the room, with its oil paintings and vaulted ceiling, the long central table had fewer chairs than you might expect, and an appropriate distance between them. But past the next door, inside the attorney general’s smaller personal office, Barr himself was also mask-free. Turning around to greet his visitors, he moved into the middle of a wide circle of four chairs arranged in front of his desk.
Now nearing the end of his career, Barr did not take his current job for the glory. He had already been attorney general once, in President George H.W. Bush’s administration, winning him a reputation as a wise old man — a reputation that, in the eyes of some, his tenure in the Trump administration has tarnished. Nor is he doing it for the money. His time in corporate America earned him tens of millions of dollars in compensation and stock options, and his bearing is still that of a Fortune 500 counsel, cozy manners wrapped around a harder core.
“I’m not going to insist that you have a mask,” Barr said, though I had been asked to bring one. His tone was jokingly conspiratorial, as though he were making an exception for an old friend. Barr is sometimes described as “rumpled,” an adjective that also captures his professorial manner. His speaking voice is very soft, just loud enough to be consistently perceptible; his accent is patrician, with a trace of old New York. His personality breaks through mostly in frequent moments of humor, which range from clubby chuckles to tension-breaking eruptions.
“If you want to take it off … ,” an aide added. Barr crossed the circle of chairs, grinning away any awkwardness. We bumped elbows. “I’m not going to infect you,” he said in the same joshing tone. The greater risk, of course, was that I might infect him, given his cabinet-level access to regular coronavirus testing, the difference in our ages, Barr’s regular meetings with the president and the mostly one-way prophylactic value of masks in general.
“Go ahead and take it off,” his aide suggested again. I took it off.
That Monday, the whole country was doing the same dance. The Centers for Disease Control and Prevention had recommended that all Americans wear masks at meetings like this one. President Trump was doing something else, and so, for the time being, was the White House staff. Vice President Mike Pence, having been wrong-footed after taking the no-mask custom to the Mayo Clinic, now seemed to be making it up as he went along. Eight weeks into the global pandemic, a charitable observer might still have described the administration’s response as improvisational or misguided, as opposed to willfully cavalier. But things were about to get worse. That day, Trump’s projection of the total U.S. death toll (75,000 to 100,000), which was given the previous evening at the Lincoln Memorial, would be challenged by an internal Trump-administration document predicting that the number of daily deaths would rise into June. The reckless faith of the president’s inner circle would be challenged when two members of the White House staff tested positive for the coronavirus. Barr and I did not know it then, but we were enjoying the tail end of the Trump administration’s libertine phase. On May 27, the official death toll would surpass 100,000, the upper bound of what Trump predicted on May 3.
One has to assume that Trump is keeping a close eye on the 70-year-old Barr right now. The powers of the attorney general, as the executive branch’s rule interpreter and law enforcer, peak during moments of social unrest. Barr knows these powers well: He led the Justice Department through the Los Angeles riots of 1992, when Bush invoked the Insurrection Act and deployed thousands of soldiers and Marines. (Later, Barr said the L.A. riots were “opportunistic” gang activity and not “the product of some festering injustice.”) Like Trump, Barr is a stalwart believer in the righteousness of the police; those communities that fail to give the police “respect and support,” he said in a December speech, “might find themselves without the police protection they need.” Last summer, Barr dropped the department’s federal case against the New York police officer who killed Eric Garner during an arrest in 2014.
Barr’s role also gives him influence over three major political fronts heading into November.
- First, there is Trump’s fight to open the nation’s economy, which could depend in no small part on Barr’s interpretation of federal authority and willingness to twist governors’ arms. Then there are
- the mechanics of the vote itself, a topic of great partisan controversy about which the Justice Department has shown a growing willingness to weigh in. Finally, there is
- the ongoing investigation led by John Durham, the United States attorney in Connecticut, into the origins of the F.B.I.’s Russia probe in the run-up to the 2016 election, the findings of which are widely expected to be announced before November.
With the election now on the horizon, Barr defended his record in two recent interviews. His critics charge that, since becoming attorney general, he has repeatedly steered the Justice Department toward decisions that serve Trump’s interests — particularly around the investigations, carried out by the F.B.I. and Robert S. Mueller III, into Russian influence over the 2016 election. Barr insists that he acts independently, even as the president often undermines that claim by tweeting out apparent instructions for what his attorney general ought to do.
By the time of our first meeting in his office, Barr had already started looking at how the federal government might intervene in state-ordered coronavirus shutdowns. As Trump accused Democratic governors of denying citizens their “freedom” and encouraged residents to “liberate” Michigan, Minnesota and Virginia, Barr zeroed in on the nuts and bolts of the legal case for “liberation”: When two small churches filed lawsuits, seeking to hold live services despite state or local regulations, the Justice Department made filings in support of their First Amendment rights. In a signed memorandum sent to the department’s 93 United States attorneys, Barr suggested that the federal government’s interest went beyond protecting live worship. It included “disfavored speech and undue interference with the national economy.”
Three weeks before our interview, Trump bragged that he held “total” authority over the states. This went against the prevailing view that the federal government, while free to enforce a variety of measures during its own emergencies, is more constrained in its authority to compel state or local governments to lift theirs. When I asked Barr what Trump meant, he responded by laying out a general view of the president’s pandemic-related powers: “I think the federal government does have the power to step in where a state is impairing interstate commerce,” he said, “where they’re intruding on civil liberties, or where Congress under the commerce clause — or some other power Congress has — has given the president under emergency authorities that essentially pre-empt the states in a particular area, if he chooses to use them.” The answer sounded so dry and routine that I failed to ask what he meant by “other power.” Construed broadly enough, Barr’s interpretation could sanitize and legalize Trump’s claim to “total” authority.
Mail-in ballots are another domain where Trump had been staking out turf. He called the distribution of ballot applications in Michigan “illegal” and warned that voting by mail “doesn’t work out well for Republicans.” In a second interview on May 20, when I asked who was going to referee the 2020 election, Barr replied, “The voters.” He said his department’s role would be limited, as the power belongs to the states and their electors. But when I brought up Trump’s tweet about Michigan, which he posted that same morning, Barr quickly seized the opportunity to float a new theory: that foreign governments might conspire to mail in fake ballots.
“I haven’t looked into that,” he cautioned, offering no evidence to substantiate that this was a real possibility. But he called it “one of the issues that I’m real worried about,” and added: “We’ve been talking about how, in terms of foreign influence, there are a number of foreign countries that could easily make counterfeit ballots, put names on them, send them in. And it’d be very hard to sort out what’s happening.”
On many election-related issues, the Department of Justice has to defer to the states. But in the case of Durham’s investigation of the 2016 investigators, or the “witch hunt,” as Trump has so often called it, Barr has a greater degree of control. For years, Trump has been saying that he was treated unfairly in 2016, particularly at the hands of James Comey, then the F.B.I. director. Barr, who is open about his agreement with this premise, is now in the process of nailing down the details. He won’t rule out the possibility that Durham’s findings could undermine a key consensus about 2016, the well-established conclusion that Russian interference sought to favor Trump — a finding of the Intelligence Community Assessment of 2017 that was later underscored by Mueller, the special counsel, and verified by the Republican-controlled Senate intelligence committee.
Durham, Barr told me, was looking for “who should be held accountable for this, and … .” He paused, glanced down and fidgeted for a moment with his necktie before going on. “As I’ve said publicly, I think Comey has cast himself as being seven layers above the decision-making. I don’t think that holds water. The record will be clear that that’s not the case.”
Barr seems aware at times that he is gambling with his reputation. “Everyone dies,” he said with a matter-of-fact sigh in a TV interview last year. “I don’t believe in the Homeric idea that, you know, immortality comes by, you know, having odes sung about you over the centuries.” When we spoke in his office, he was critical of what he called Comey’s tendency to “wrap the institution” around himself. “I don’t say, ‘Gee, if you criticize me, you’re attacking the men and women of the department.’” he said. “B.S.,” he added. “I’ll live or die by my decisions.”
Barr’s willingness to weather controversy on the president’s behalf has not only caused consternation among some former friends and allies; it has given rise to considerable speculation about his motives. Why would a grandfather in semiretirement, who had already reached the pinnacle of his profession, sign up for this? Some wonder if Barr might still be hungry for influence, having been attorney general for only 17 months the first time. Others wonder whether he spent too much time watching Fox News during the Obama years and came out the other side an ideologue. And there are others who look at Barr’s support for Trump and see more consistency than contradiction. Barr, they say, hasn’t changed his values. Rather, he has found in Trump the perfect vehicle with which to move them forward.
“Those who think he’s a tool of Donald Trump are missing the point,” says Stuart Gerson, who led the Justice Department’s civil division during Barr’s first tour and then succeeded him, serving as acting attorney general during the first three months of Bill Clinton’s presidency. “If anything, it’s the other way around. Barr is vastly more intelligent than Donald Trump. What Trump gives Bill Barr is a canvas upon which to paint. Bill has longstanding views about how society should be organized, which can now be manifested and acted upon to a degree that they never could have before.”
As far as what Barr is hoping to do with his canvas, Gerson says he is committed to the “hierarchical” and “authoritarian” premise that “a top-down ordering of society will produce a more moral society.” That isn’t too far away from what Barr himself articulated in a 2019 speech at the University of Notre Dame. In Barr’s view, piety lay at the heart of the founders’ model of self-government, which depended on religious values to restrain human passions. “The founding generation were Christians,” Barr said. Goodness flows from “a transcendent Supreme Being” through “individual morality” to form “the social order.” Reason and experience merely serve to confirm the infallible divine law. That law, he said, is under threat from “militant secularists,” including “so-called progressives,” who call on the state “to mitigate the social costs of personal misconduct and irresponsibility.” At their feet, Barr places mental illness, drug overdoses, violence and suicide. All these things, he said, are getting worse. All are “the bitter results of the new secular age.”
Barr started his career in the C.I.A. as an analyst, working on China and other matters. When I asked about the origin of his interest in the intelligence service, he responded indirectly, with an anecdote about telling his high school guidance counselor that he wanted to be C.I.A. director. It was tempting to link Barr’s career and conservatism with his father, Donald Barr, who served in the Office of Strategic Services, the C.I.A.’s forerunner, during World War II. In 1940, as an undergraduate at Columbia, Donald wrote a controversial editorial for The Columbia Review, defending a speech by the university president that called upon the faculty to support the American war effort. “Most liberals,” he wrote, “do not think precisely.” As tempting as it was to see the son as part of some epigenetic chain of old-line conservatism, Barr cautioned me not to make such assumptions. “My father was like: ‘Do what you want to do. Do what you enjoy. Do something that you’re really interested in, because that’s what you’ll do best in.’”
Barr’s parents met at the University of Missouri in the early 1940s. Donald, who already spoke three languages, had been sent there by the Army to learn Italian. He spotted Mary Ahern, a young Irish-Catholic woman who had a master’s degree in English from Yale, through an open doorway, teaching Shakespeare to undergraduates, and was smitten. Ahern took some courting. She thought Donald was a “New York wolf,” Barr told me, and his background was also an issue; he was raised without much religion, but his father, William’s grandfather, was born a secular Jew. Upon joining the Army, Donald gave his religion as Dutch Reformed. He converted to Catholicism after he and Mary wed.
Donald Barr’s 26-page O.S.S. file, obtained from the National Archives, gives a detailed account of his transition from the military to intelligence work. In 1944, he shipped off to Europe. He suffered from hay fever and 20/200 vision; much of his time overseas was spent hospitalized with allergies. The next year, he was assigned to the O.S.S. His interviewer found him to be “a quiet, unassuming person … matured beyond his age.” In late 1945, he moved to Washington to begin work at the Interim Research and Intelligence Service, which would become the State Department’s in-house intelligence bureau.
William, the couple’s second son, was born in 1950. By age 8, he had taken up the bagpipes, which would become a lifelong hobby. He attended the Horace Mann School in New York, where his classmates remembered his conservatism, the delight he took in making an argument and his sense of humor. The yearbook praised him as an “incomparable master of facial contortions.”
Barr’s involvement with campus politics continued at Columbia. He joined the Majority Coalition, which organized against student occupiers who had taken over the campus to protest the Vietnam War. Columbia was known as a feeder school for the C.I.A. An average of 14 seniors went to the agency each year from 1960 through 1966, according to a 1967 article from the student newspaper, The Daily Spectator, which reported that a majority came in not through the college’s Office of Career Planning and Placement but “through interviews with various affiliated groups” — perhaps a reference to the private foundations and student organizations that were receiving C.I.A. funding at that time.
In the late 1960s, this recruiting drew campus protests, which eventually broadened to take on other issues beyond the war. On the morning of April 24, 1968, student demonstrators, many of them affiliated with Students for a Democratic Society, stormed Low Memorial Library and took over the offices of Columbia’s president. The protesters were angry that Columbia was building a gymnasium nearby that would have two separate entrances — one for the school community and one for neighborhood residents — and also about the university’s connection with a think tank that did research for the Pentagon.
Barr was on the other side, standing shoulder to shoulder with conservatives and athletes to form a blockade around the library. “We interposed ourselves around them,” he told me. “There was a group of S.D.S. students and younger people from Harlem that assembled and tried to break through. And so there was a huge fistfight. Over a dozen people went to the hospital, between the two groups, when they tried to rush through.” He smiled to himself. “They didn’t get through.”
I asked if he was in the fistfight. He adjusted the bridge of his glasses and glanced down. “I was in the fistfight,” he said, letting out a big laugh. “I was lucky. I had big guys around me. I had the football team around me!” He later added, “I picked my opponents carefully.”
Barr interned at the C.I.A. in the summers of 1971 and 1972. In 1973, after completing his graduate degree in government and Chinese studies, he married Christine Moynihan, whom he met at a fraternity party. The next day, the couple drove to Washington, and Barr began a permanent job at the C.I.A. the day after that. His mother’s memories of the Great Depression, he said, had instilled in him a desire for career stability, so he began taking law courses at night. By then, he had transferred to the C.I.A.’s Office of Legislative Counsel. “He was the ultimate straight arrow,” says John Rizzo, who worked down the hall from Barr in the general counsel’s office, where Rizzo would eventually rise to become the acting head. “Very serious. He was a nose-to-the-grindstone guy.”
The new job put Barr on the C.I.A.’s seventh floor, not far from the director’s office and near the center of what was shaping up to be a historic fight with Congress. In the aftermath of World War II, the presidency was endowed with vast new powers — mass surveillance, covert operations, proxy wars and nuclear weapons. The young C.I.A., spurred on by the imperative to win the Cold War, abused its own new powers to an astonishing degree. Despite a statutory ban on its involvement in either “police” or “internal-security functions,” the C.I.A. surveilled and surreptitiously engaged with countless American citizens. The agency reported to the president and often took action based on informal conversations, without ever committing much to paper. Secrecy around the agency’s transgressions held until the 1970s, when antiwar sentiment began to peak. The scandals around the Pentagon Papers (1971) and the Watergate break-in (1972), culminating in the long-anticipated Vietnam defeat, convinced much of the public that the federal government should no longer be given the benefit of the doubt. In 1973, Richard Helms, the longtime C.I.A. director, ordered the destruction of internal C.I.A. documents regarding MK-Ultra, an experimental mind-control program. “The program was over,” Helms later recalled. “We thought we would just get rid of the files as well, so anybody who had assisted us in the past would not be subject to follow-up, or questions, embarrassment, if you will. … We kept faith with the people who had helped us, and I see nothing wrong with that.”
In 1974, the journalist Seymour Hersh, who had already broken the story of the My Lai massacre in Vietnam, revealed that the C.I.A. had developed a sprawling domestic-spying operation, keeping dossiers on thousands of American citizens. Congress created two special committees — a Senate committee, led by Senator Frank Church, and a House committee that would eventually be led by Representative Otis Pike — to investigate. For years, the C.I.A. would be consumed with negotiations over the limits of what Congress could oversee.
“We had, like, seven different committees investigating, and the Pike commission,” Barr told me in his office. “This was for excesses during the Cold War.”
I asked if there had indeed been excesses. Barr’s poker face came to life. He grinned, turned his palms out and shrugged. “Some,” he said. He burst out laughing. Then he pulled back to give the matter some more thought, adjusting his glasses as he settled back into seriousness.
“I don’t want to be quoted as saying they were not excessive,” he said. “There were some that clearly were excessive.”
The battle between conservative hard-liners and a Democratic-led Congress would continue through the late Cold War. Inside the C.I.A., there was a sense of victimization. “The Church Committee period was a horror for the agency,” Frederick Hitz, the agency’s first presidentially appointed inspector general, told me. “We got batted around.”
In 1976, the job of defending the agency in public passed to the new director, George H.W. Bush, who had served as a special U.S. envoy to China. On at least one occasion, Barr sat behind Bush during a congressional hearing, giving him legal advice. Congress wound up making oversight a permanent thorn in the C.I.A.’s side by establishing two intelligence oversight committees. That May, Barr drafted two letters, each signed by Bush, asking Congress if the C.I.A. could resume the routine destruction of documents. The request was denied.
“The culture of the agency was passive resistance,” says Michael Glennon, now a law professor at the Fletcher School of Law and Diplomacy at Tufts University, who dealt with the C.I.A. as legal counsel of the Senate Foreign Relations Committee. “You’re never talking to the right person. You never had exactly the right document. They had a dozen different bureaucratic obstacles in their arsenal, and they used every one of them.”
Rather than accept post-Watergate congressional limitations, the hard-liners decamped from the C.I.A. and became floaters, bureaucratic nomads who sought out underused and low-visibility pockets of the federal government from which to wage their war over executive power. The largest battle was fought around the Iran-contra affair. A covert group operating out of the Reagan White House had used money gained by selling arms to Iran to fund anti-Communist rebels in Central America, flouting a congressional prohibition. Much of the operation was organized by Lt. Col. Oliver North of the National Security Council. Many of the Iran-contra plotters were dragged into the public eye and indicted by a special prosecutor, another post-Watergate innovation. Evidence pointing to the involvement of President Ronald Reagan and Vice President George H.W. Bush was inconclusive. The hard-liners felt that foreign policy and covert operations were an exclusively presidential domain. “The business of Congress is to stay the [expletive] out of my business” is how Reagan’s first C.I.A. director, William Casey, put it in an interview with the political scientist Loch K. Johnson.
Around this time, conservative thinkers of Barr’s generation began to coalesce around an idea they called “the unitary executive.” The president’s right to his powers under Article II of the Constitution, they argued, was undivided and absolute. Post-Watergate reforms — independent prosecutors to investigate high-level wrongdoing, requirements to get warrants for national-security wiretaps, and more — were unconstitutional incursions into the president’s rightful powers.
In June 1977, Barr left the C.I.A. upon his graduation from George Washington University Law School, eventually landing as a policy lawyer in the Reagan White House. Bush, running for president, took Barr to the 1988 Republican National Convention to help vet potential running mates and, after winning the election, appointed him to lead the Justice Department’s Office of Legal Counsel, where his duties included determining the legal limits of C.I.A. activities. Rizzo, who was still at the C.I.A., recalls that Barr kept his independence from the Oval Office. Two of Barr’s opinions on classified C.I.A. operations “didn’t give the White House and C.I.A. everything that they wanted,” while a third operation, Rizzo says, was rejected entirely. One of Barr’s public opinions, though, effectively authorized the invasion of Panama. Later, as acting attorney general, he impressed Bush further by defusing a delicate prison-hostage crisis. As attorney general in 1992, Barr signed off on a mass-surveillance program that collected billions of call records for the Drug Enforcement Administration. At the end of Bush’s presidency, he successfully pushed for a pardon of six Iran-contra defendants.
Gen. Michael V. Hayden, a former C.I.A. director, says Barr reminds him of David Addington — the former C.I.A. lawyer who became Vice President Dick Cheney’s chief of staff and played a major role in pushing the limits of conduct, including torture, that the White House and the C.I.A. determined to be legal in the aftermath of the Sept. 11 attacks. Barr “wants the president to be in charge,” Hayden says. “People who believe that if the president wants it, most times he gets it and it’s legal — those people usually go far in the White House.”
Barr’s intellect and experience made him appealing to the private sector. For eight years, he served as general counsel at Verizon, at a time when the company was working out secret arrangements with the National Security Agency to turn over its customers’ data. In September 2001, a legal trade publication noted Barr’s $1.5 million salary and compared him to a “powerful amphibious vehicle” for the depth of his connections in both political Washington and corporate New York. At that time, he said, he had no interest in returning to officialdom. “The opportunity to pick up the phone and talk to policymakers, to kibitz — without worrying about what the newspaper is going to say the next day about you — is a great luxury,” he said. “I have the best of all worlds.”
By the 2016 presidential election, Barr was a player in Republican politics and active in conservative Catholic causes. He gave nearly $50,000 to a PAC affiliated with Jeb Bush. His annual holiday parties, traditional Scottish cèilidhs with music and singers, drew hundreds whose friendships he had maintained over the years. He wrote and sold a screenplay about World War II. He spent time traveling abroad and hunting birds. His three daughters all became accomplished lawyers, working on Capitol Hill or as federal prosecutors. The eldest, Mary, moved to the Treasury Department’s financial-crimes unit after Barr’s nomination as attorney general; one of Barr’s sons-in-law left the Justice Department for the White House Counsel’s Office.
Last year, shortly after his Notre Dame speech, Barr gave a second major address at the annual convention of the Federalist Society, an organization of conservative lawyers founded during the Reagan administration. The subject was executive power. Again Barr criticized progressives, this time for making politics “their religion.” The presidency, in his view, handled “sovereign functions … which by their very nature cannot be directed by a pre-existing legal regime but rather demand speed, secrecy, unity of purpose and prudent judgment to meet contingent circumstances.” Part of the core function of the presidency was the ability to act swiftly and without constraint, but this capability had been diminished by the other branches since Watergate. Congress had burdened the president with oversight, while the courts were interfering with Trump’s travel ban on certain countries and his termination of President Barack Obama’s DACA program for young immigrants. Barr seemed to suggest that when it comes to foreign policy, the only legitimate check on presidential behavior is the next election. Months later, this argument would become the foundation of Trump’s impeachment defense.
On Dec. 5, 2018, Barr attended George H.W. Bush’s funeral. While waiting in line for the shuttle bus that would take him to Washington National Cathedral, he and his wife ran into a friend, C. Boyden Gray, who was Bush’s White House counsel during the Reagan years. The two men spent most of the day together. Barr sounded out Gray about the attorney-general job. Gray knew from following the news that Barr was under consideration, but Barr never tipped his hand about how close he was to being tapped, and Gray never asked. Later that week, when Trump announced Barr’s nomination, Gray was not surprised. “I don’t think he felt totally fulfilled by the limited time he had” under Bush, Gray says. “I think he felt he had another round left in him.”
At the time of his nomination, Barr’s supporters presented him as a trustworthy and sensible conservative, a known quantity within the Washington establishment who would restrain Trump’s worst impulses. James Comey called him “an institutionalist who cares deeply about the integrity of the Justice Department.” Benjamin Wittes, a legal commentator who is now one of Barr’s harshest critics, tweeted at the time that he had been “a very fine A.G.” under Bush and that his confirmation would be “a very decent outcome.”
During the confirmation hearing, Senator Dianne Feinstein of California, the ranking Democrat on the Judiciary Committee, questioned Barr at length about a memorandum he wrote to the administration the previous summer, outlining why he believed that Mueller had no legal right to investigate Trump for obstruction of justice. The president, Barr argued, has “complete authority to start or stop” investigations and can “give direction” on individual cases, including those that touch on his political or financial interests. “The Constitution itself places no limit on the president’s authority to act on matters which concern him or his own conduct,” Barr wrote. Law enforcement, he argued, was a power exclusively held by the president, because “he alone is the executive branch.”
In the hearing, Barr seemed to say that he did not believe the unitary executive’s powers to be infinite. When Senator Patrick Leahy, a Vermont Democrat, asked if it would be lawful for a president to trade a pardon for a promise not to incriminate him, Barr answered that such an exchange would be a crime. He also mentioned his long friendship with Mueller. Barr’s wife attends the same Bible study as Mueller’s wife; Mueller attended the weddings of two of Barr’s daughters.
Barr was confirmed by a vote of 54 to 45. He had barely served one month as attorney general when his friendship with Mueller was tested by the special prosecutor’s delivery of his report, on the afternoon of Friday, March 22. Trump’s Twitter account then went dark for nearly 40 hours. That Sunday, Barr sent a letter to Congress that he would later describe as giving Mueller’s “bottom line,” and Trump’s feed came back to life. “No Collusion, No Obstruction, Complete and Total EXONERATION,” he tweeted. In his first public comments that same day, Trump said the words “no collusion with Russia” three times. “Hopefully someone is going to be looking at the other side,” he added.
Trump’s tweet, Barr’s letter and Mueller’s report said three different things. Neither Barr nor Mueller exonerated Trump. Barr quoted Mueller’s own words that his complicated finding on obstruction “does not exonerate” the president. But Barr omitted Mueller’s conclusions that Russian interference sought to favor Trump; that Trump and his campaign welcomed the interference and believed they would benefit from it; and that the “links” and “contacts” between Russians and the campaign were substantial, even though the evidence Mueller was able to gather fell short of a criminal conspiracy.
Mueller fired off two letters complaining that Barr had misrepresented his work. In the second letter, dated March 27, he asked Barr to immediately release the report’s introductions and executive summaries. But the public would not get to read Mueller’s work until April 18, when Barr released a redacted version of the full report. Before doing so, Barr gave a news conference in which he tilted further toward declaring Trump innocent, something Mueller bent over backward not to do. “As he said from the beginning,” Barr said of Trump, “there was in fact no collusion.”
Barr’s distortions drew wide criticism. Democrats were also frustrated by the report’s content. It lacked the thunderous revelations about Russia that had long been promised by Trump’s opponents, and it suffered from legalistic inconclusiveness on the most fundamental questions. Mueller, having been given a chance to put the 2016 election to bed for good, had carefully avoided doing so.
Democrats’ hopes for the promised collusion bombshell now turned to the unredacted version of the Mueller report, which Barr refused to give them. In an echo of his C.I.A. work during the Church Commission years, the Barr-led Justice Department has taken a very hard line regarding what information Congress and the courts are entitled to get from the White House. It has fought in court against the release of Trump’s tax returns; argued that Congress did not need to see the Ukraine whistle-blower’s complaint, because it was not a matter of “urgent concern”; and has challenged congressional requests for Mueller’s secret grand-jury materials.
After Barr refused to turn over the fully unredacted Mueller report to the House Judiciary Committee, citing executive privilege, the committee voted to hold him in contempt. The Democratic chairman, Representative Jerrold Nadler of New York, claimed that this was the beginning of a “constitutional crisis.” Barr seemed untroubled. “Madam Speaker, did you bring your handcuffs?” he reportedly quipped to Nancy Pelosi at an event a few days later. But concerns about Barr’s handling of Mueller’s investigation have not been confined to Democrats. Judge Reggie B. Walton of the United States District Court for the District of Columbia, a George W. Bush appointee, recently criticized Barr’s “lack of candor” and questioned whether “Barr’s intent was to create a one-sided narrative.”
At his first meeting with President Trump in 2017, Barr later recalled in his confirmation hearing, he told Trump that “the Barrs and Muellers were good friends and would be good friends when this was all over.” In the end, he was half right. “I haven’t talked to him since March 5, when he came over to talk about his report,” Barr said in one of our interviews. That would have been March 2019 — more than a year ago.
“My wife and his wife still talk, and they’re friends,” Barr continued. I asked if they still saw each other at Bible study. “Yup,” Barr replied.
Attorneys general are chosen by the president; no law prohibits them from doing the president’s bidding. Many presidents have occasionally asked the attorney general to intervene in individual prosecutions. John Mitchell, President Richard M. Nixon’s attorney general, went much further, helping to plan the Watergate burglary and then working to cover it up. But the Justice Department’s guidelines do enjoin prosecutors not to comment about ongoing investigations, something Barr does regularly. They also caution that legal judgments “must be impartial and insulated from political influence” and that the department must respect Congress’s “legitimate investigatory and oversight functions.”
None of this has stopped Barr from overruling his subordinates to the benefit of Trump’s friends and associates — most notably Roger Stone, Trump’s longtime political mentor, and Michael Flynn, his former national security adviser. In both cases, Trump has tweeted about what he sees as the unfairness of their legal troubles, and the Justice Department has subsequently pushed for leniency.
Barr has repeatedly said that Trump has never asked him to do anything in a criminal case: “I’m not going to be bullied or influenced by anybody,” he said in an interview with ABC News. But the department’s interventions on behalf of Stone and Flynn have raised questions about the supposed Trump-Barr firewall. “Even assuming that Bill Barr is acting with integrity, it is impossible for people to believe that, because the president is making him look like his political lap dog,” Jack Goldsmith, who led the Office of Legal Counsel under George W. Bush, told The Times in February. Barr has said he doesn’t pay attention to Trump’s tweets and doesn’t take seriously the ones he is made aware of. “The president says a lot of things which he doesn’t follow through on, and doesn’t actually mean, probably,” says Gray, Barr’s friend and former colleague.
Vanita Gupta, the former head of Obama’s civil rights division at the department, articulated a prevailing view of Barr among Democrats, telling me that the attorney general has “since Day 1 operated as the president’s defense lawyer.” Gupta says Barr’s interventions on behalf of Trump associates have far-reaching consequences. “Barr is overturning decisions made by career prosecutors to placate the president,” she says. “It’s insulting to federal prosecutors who have given their time to build cases with honor and integrity. It has a destructive impact on morale.”
In February, prosecutors recommended that Stone be sentenced to seven to nine years in prison for witness tampering and other crimes. The following day, the Justice Department filed a second, revised sentencing memo asking that Stone’s sentence be reduced. Eighty-seven to 108 months, the memo argued, “could be considered excessive” given Stone’s “advanced age, health, personal circumstances and lack of criminal history.”
On the same day the department revised its sentencing recommendation, all four of the prosecutors responsible for the case announced their withdrawal. One, Jonathan Kravis, left the department entirely. “I am convinced that the department’s conduct in the Stone and Flynn cases will do lasting damage to the institution,” Kravis wrote later in an op-ed in The Washington Post.
On Twitter, Trump said the Stone prosecutors “cut and ran after being exposed.” He tweeted out congratulations to Barr for “taking charge of a case that was totally out of control.” Barr pushed back in the ABC interview, insisting that he reached the Stone decision independently. “To have public statements and tweets made about the department, about our 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 that we’re doing our work with integrity,” he said, adding, “I think it’s time to stop the tweeting about Department of Justice criminal cases.”
The post-Mueller case that has arguably received the most attention among Trump’s supporters is that of Flynn, the lieutenant general who briefly served as Trump’s national security adviser. The dueling narratives around the Obama-to-Trump transition crystallize around Flynn, and the question of whether he or those who investigated him were in the wrong. In addition to drawing scrutiny for his Russian contacts, Flynn initially failed to report, as legally required, that his company was effectively on the payroll of the Turkish government during the 2016 campaign. Obama himself tried and failed to talk Trump into dropping him. Many of Trump’s own problems hinged on his asking Comey if he could “see your way clear” to dropping the Flynn investigation. Trump’s adversaries consider Flynn to be a loose cannon and possible Russian pawn who needed to be rooted out. His supporters depict him as the second coming of Oliver North — a good soldier who was martyred in public for his loyalty to the executive.
On May 4, the day of my first interview with Barr, Flynn was still awaiting sentencing, having pleaded guilty to lying to the F.B.I. From time to time, Trump had been tweeting about the Flynn case in ways that seemed to cross the line that Barr had drawn about public comments from the White House about matters pending before the Justice Department. Trump said Flynn had been victimized by the “same scammers” as Stone.
I asked Barr, in light of his statement on ABC News, whether these were the kind of tweets that made his job “impossible.”
“I’ve already made my position on the tweets clear,” Barr said. “I don’t have anything further to say about it.”
Trump had recently been tweeting about Flynn, I said. “I haven’t seen any of his tweets about Flynn, so I’m not sure what he’s saying,” Barr replied.
I asked if he would like to see them. “Not particularly,” Barr said. “I don’t pay any attention. I don’t even know what he tweets.”
I handed Barr a printout of an April 29 Trump tweet. It read:
@CNN doesn’t want to speak about their persecution of General Michael Flynn & why they got the story so wrong. They, along with others, should pay a big price for what they have purposely done to this man & his family. They won’t even cover the big breaking news about this scam!
“Take it for what you will,” Barr said with cool indifference. “The thing that I reacted to with Stone, was him [Trump] saying what the department should do.”
I asked how it was that Flynn’s supposed antagonists could be punished — “pay a big price” — without involvement from the department.
“That doesn’t have to do with the Flynn matter, does it?” Barr asked, referring to the particular case that was now before Judge Emmet Sullivan. He had found the right hair to split, and he split it so cleanly and decisively that I couldn’t say this wasn’t his position from the beginning.
The tweet, Barr said, was nothing new. Trump, he said, “has been calling for justice and for holding people to account since the very beginning.”
Three days later, on the afternoon of May 7, the Justice Department filed a motion to dismiss its own prosecution of Flynn. The government argued that Flynn’s false statements were not “material” to the investigation of Flynn, because the investigation was itself unjustified. The argument relied in part on the contents of handwritten F.B.I. notes that had been turned over to Flynn’s attorneys by the department and released to the public by mutual agreement. One of the prosecutors assigned to the case immediately withdrew.
A few days later, Sullivan decided he wouldn’t rule on whether to accept the department’s motion until he had heard from friends of the court and a special counsel. Flynn’s lawyers appealed, asking a higher court to force the judge’s hand. Again, the department took Flynn’s side. Trump took to Twitter, celebrating “a BIG day for Justice in the USA. … I do believe there is MUCH more to come!”
The definitive Sept. 11 Commission-style history of the 2016 election remains unwritten, though not for lack of trying. In addition to the Mueller report and voluminous criminal indictments, we have the Intelligence Community Assessment, the Horowitz report (by the Justice Department’s inspector general, Michael Horowitz) and four volumes of the Senate intelligence committee’s report, a fifth volume of which is on the way.
The major episodes of the story may now seem like familiar terrain to those who have kept up, and a hopeless mess to everyone else. But zoom out a bit, and the stakes could not be higher. Many of Trump’s critics, like Representative Adam Schiff of California, the Democratic chairman of the House Intelligence Committee, and James Clapper, Obama’s director of national intelligence, go further than saying that the Russians put a thumb on the scale for Trump. They have suggested that the extra boost was decisive — that Trump would not have been elected in 2016 but for Russian interference. The crucial legacy of 2016 is that the question of Trump’s legitimacy was never settled. And without any consensus on what happened in 2016, the rules of the road for 2020 are up in the air.
But first, armed with the powers of law enforcement and presidential access to classified material, Trump is getting ready to roll out his account of 2016. When Trump promises “much more to come,” he most likely has in mind the ongoing investigation by John Durham and its long-expected report — although it is also possible that Durham’s public work product will take the form of indictments, or perhaps nothing at all. Barr, who assigned Durham the task of investigating the Russia probe in May last year and met with him several times immediately after the conclusion of Mueller’s investigation, is overseeing Durham’s work and briefs Trump on his findings regularly. Based on Barr’s public statements, we can see the rough contours of Durham’s findings beginning to take shape. The government’s conduct during the Obama-to-Trump transition, Barr has said, was “abhorrent.” Surveillance of Trump’s campaign amounted to “spying.” Then there was the all-important question of whether the F.B.I. was justified in opening the initial Crossfire Hurricane investigation into the Trump campaign’s Russia ties.
Under ordinary circumstances, Justice Department prosecutors do not comment on anything connected to an ongoing investigation, but on the day that Horowitz released his report, both Barr and Durham decided to do just that. The F.B.I.’s interest in Trump, Barr said, was based “on the thinnest of suspicions” and “insufficient to justify the steps taken.” “We do not agree with some of the report’s conclusions as to predication,” Durham said in his own statement. Horowitz had found that the investigation was justified, so these sounded like sweeping words of dissent. But over the coming months, as attention drifted elsewhere, they shrank. By the time I sat down with Barr, the only dispute with Horowitz he’d voiced was whether the F.B.I. had enough evidence to open a full investigation. (Barr and Durham believe that there was only enough to open a preliminary investigation, not a full one.)
In our first interview, Barr mentioned the dossier of salacious anti-Trump claims that had been gathered and circulated by Christopher Steele, a former British intelligence agent who was working indirectly for the Clinton campaign. The possibility that the Russian government intentionally seeded the dossier with misinformation was one of the issues Mueller ignored and Durham was looking at, Barr said. Nor had Mueller gone back and looked at the investigative steps taken as Crossfire Hurricane accelerated, he continued. Horowitz had done that, but unlike Barr and Durham, he had no access to the C.I.A., the N.S.A. and the foreign governments that were involved.
To facilitate what later became a criminal investigation, Trump ordered the heads of the intelligence agencies to cooperate with Barr. He delegated to Barr the power to order the declassification of secret documents. Barr has spoken with intelligence officials from Italy, Australia and Britain to reportedly solicit information that could help Durham. In the case of Italy, where Barr and Durham met with political leaders and intelligence chiefs in person, his visit provoked concern among U.S. diplomats, who told The Times that Barr circumvented protocols in setting up the trip. Senator Mark Warner of Virginia, who is the ranking Democrat on the Intelligence Committee and helped write its five-volume report, said there were “concerns” about Barr’s trips. “There is queasiness among our allies about the kind of activities Barr is engaged in,” he said.
Timothy Flanigan, a former colleague of Barr’s from the George H.W. Bush years, said he thought Durham could come back with something more. Mueller’s investigation “was limited to the president and the campaign,” he told me. “No one has looked at the whole intelligence community and asked, ‘Was there something amiss here?’”
Durham’s investigation is not the only means through which Barr’s decisions could affect the election. If the F.B.I. wants to open a criminal investigation into either campaign, it will first need Barr’s personal approval. Barr has established a special “intake process” to deal with materials that Rudolph W. Giuliani says he has obtained from Ukrainian sources, which, Giuliani has claimed, implicate Joe Biden, the presumptive Democratic presidential nominee. In the interview, Barr did not dispute the notion that the Russian government had interfered in 2016, but he made it sound as though the assumption that it favored Trump would be coming under some pressure.
One also would expect Barr to play a role in deterring and punishing foreign interference in the 2020 election, but that could get complicated. Trump’s camp continues to deny the intelligence community’s consensus view, one strongly reiterated by Mueller and the Senate intelligence committee, that the Russians favored Trump over Hillary Clinton. Some, including Republicans on the House Intelligence Committee, claim to have unreleased evidence that points the other way. Based on what Barr told me, Russian intentions will most likely emerge as the key retrospective battlegrounds as Durham’s work continues and the election draws closer.
“There was definitely Russian, uh, interference,” Barr said. “I think Durham is looking at the intelligence community’s I.C.A. — the report that they did in December. And he’s sort of examining all the information that was based on, the basis for their conclusions. So to that extent, I still have an open mind, depending on what he finds.”
But what Barr did not address directly was the fourth volume of the report from the Senate intelligence committee. That report reviewed much of the same intelligence underlying the Intelligence Community Assessment. It affirmed that Russia’s pro-Trump position and President Vladimir V. Putin’s direct involvement were supported by “specific intelligence.” The N.S.A.’s disagreement was “reasonable, transparent and openly debated.” Unlike the committee’s groundbreaking 2012 Torture Report, the fourth volume was unanimously approved by a bipartisan vote of the Republican-led committee. “The committee found no reason to dispute the intelligence community’s conclusions,” said Senator Richard Burr, a Republican from North Carolina and the chairman of the committee.
Warner, for his part, dismissed Durham’s investigation as “a fishing expedition,” he told me. “I will be very surprised if Durham finds anything new.”
I brought up the Durham investigation again in my last interview with Barr, on May 20. The fifth floor of Justice Department headquarters now felt different; some older, lawyerly looking men walking around wore masks. Two younger men in suits with lapel pins, who were most likely security, did not. Barr himself still wore no mask, but there were no more polite entreaties for visitors to take theirs off. One could see two crumpled blue surgical masks lying amid the papers on Barr’s desk. With disarming familiarity, Barr sat down on a sofa and offered me my “usual place” in a tufted leather chair.
By then, Trump had seized on the “Obamagate” meme, accusing the former president and Biden of “the biggest political crime in American history.” When asked what crime he thought they were guilty of, Trump declined to answer. In a news conference two days before I went to see him, Barr was asked indirectly if Durham’s investigation might lead to criminal charges being filed against Obama or Biden. “I have a general idea of how Mr. Durham’s investigation is going,” he said. “Based on the information I have today, I don’t expect Mr. Durham’s work will lead to a criminal investigation of either man. Our concern about potential criminality was focused on others.”
Later that same day, Trump, asked about Barr’s statement, replied, “I’m a little surprised.” He went on: “I don’t think he said it quite the way you said it. I think he said ‘as of this moment,’ I guess. But if it was me, I guarantee that they’d be going after me.” Trump then said he had “no doubt” that Obama and Biden were “involved” in what he now called a “scandal.” As to whether or not it was criminal, he said, “I would think it would be very serious — very, very serious. It was a takedown … and in my opinion, it was an illegal takedown.”
In Barr’s office two days later, I brought up how Trump seemed to have heard only what he wanted to hear, that Barr’s prediction about not prosecuting the former president was only valid “as of this moment.”
Barr said I shouldn’t read too much into those words.
“I was just qualifying it simply as any lawyer would qualify an absolute statement,” he said. “I have nothing in mind like that.”
Whether he realized it or not, the line Barr had drawn at the news conference was getting blurrier with every word, just as Trump had hoped.
“You never say never,” Barr went on. “Things could pop up that change the world.” He pulled back from the conversation and thought for a moment. “But I have a pretty good grasp of what went down and what was happening, and I don’t expect that.”
After keeping tabs on Durham’s investigation for more than a year, Barr did not think it was likely that he would have to prosecute a former president. But neither, at that moment, was he willing to rule it out. He made this position sound reasonable, even as it served to support the unsupported “Obamagate” theory that the president was floating at the time.
In the end, the substance of Durham’s findings might not matter. Whatever he turns up will become a major theme of Trump’s 2020 campaign; the less time there is before an election, the greater political impact of even the smallest apparent revelation. All Trump needed from Barr was the glimmer of a possibility, a slight shadow of official uncertainty in which his wild theories could flourish. And for now, Barr was giving him that. How much more he would give the president before November, it was hard to say.
But it wasn’t only components of the Defense Department that had been brought to the nation’s capital to help with the “domination” that President Trump sought to display in the wake of the turmoil. Washington residents have also been confronted with a number of other heavily armed law enforcement officers who share an unexpected characteristic: Neither their affiliation nor their personal identities are discernible.
On Tuesday, Mother Jones reporter Dan Friedan encountered these individuals, who gave no more specific identification than that they were associated with the Justice Department.
Near the White House on Wednesday, MSNBC’s Garrett Haake had a similar encounter.21.6K people are talking about this
So did the New Republic’s Matt Ford. When he asked the armed men if they were associated with the Bureau of Prisons based on an acronym on their uniforms, Ford was simply told, “Maybe.”
As it turns out, each of these encounters was apparently with elements of the Bureau of Prisons, called to the region by Attorney General William P. Barr this week. Friedman confirmed with BOP that the men he encountered were with the agency; Haake’s Twitter followers picked out BOP insignia on their clothing.
“The idea that the federal government is putting law enforcement personnel on the line without appropriate designation of agency, name, etc. — that’s a direct contradiction of the oversight that they’ve been providing for many years to local police and demanding in all of their various monitorships and accreditation,” former New York City police commissioner William Bratton said in a phone interview with The Washington Post on Wednesday.
The prospect of government agencies involved in policing the city seeking to obscure their identities, Bratton said, was “very concerning.”
The vagueness of their identity and their disinterest in identifying themselves introduce specific challenges and risks, as former Army officer and FBI special agent Clint Watts explained in a phone interview with The Post.
For one thing, Watts pointed out, a civilian might refuse to respond to an order from a law enforcement official who doesn’t identify themselves in that way.
“If I go out and I pull out a gun and I say, ‘Freeze,’ and they say why, I would have to say, ‘I’m an FBI agent’ or law enforcement officer or whatever,” he said, “because otherwise they would be totally in the right to defend themselves potentially.”
He imagined his own reaction if he was on the street in New York or Washington and an unidentified officer pushed him with a shield: His instinct would be to fight back.
The added danger, particularly given the influx of officials in the area, is that law enforcement officers wouldn’t recognize one another. Bratton noted that one reason for identifiers is that officers would be able to recognize one another. Riot helmets often have identifying numbers on their backs in part for that purpose.
Watts described an incident shortly after he began at the FBI when an undercover agent who’d drawn his weapon was killed by another bureau employee who confused him with the perpetrator. Introduce scores of officers without identification into a volatile scenario and it’s easy to see similar (if less deadly) mistakes being common.
Particularly given another component of the moment. It’s not uncommon for civilians to dress in paramilitary gear and show up at the protests, often doing so as self-appointed assistants to police and other law enforcement officials.
“You can have this weird thing where you have these militia group guys just dressed up in their gear, which they like to do anyway, show up and just start pushing protesters around,” Watts said. “And if you’re a protester, you don’t know if you have to respond to this person.”
Granting unidentifiable law enforcement officials the ability to engage with and confront protesters functionally allows any unidentifiable individual to more easily pretend to be law enforcement. It introduces an opportunity for those looking to take advantage of the situation to target protesters or to cause disruptions.
The problem extends further. Consider the security hired to defend Saks Fifth Avenue’s flagship store in Manhattan.
It’s easy to envision a scenario in which protesters are confronted by other hired security and forced to determine in real time if they constitute an official arm of law enforcement or if they’re simply hired muscle. There are widely divergent ramifications for a protester’s potential responses to such confrontations, depending on who the other person is.
And there’s an overarching question here: Why? Why are these officers unwilling to identify themselves or their organization? There’s clearly some power dynamic at play, as demonstrated in the snide “maybe” Ford was offered. But it also inhibits accountability.
“If those officers engage in any type of misbehavior during the time that they are there representing the federal government, how are you to identify them?” Bratton said. “What is the need for anonymity in controlling crowd demonstrations?”
Such anonymity echoes the way in which enforcers in autocratic regimes have worked to avoid accountability. If you believe that you were unlawfully detained or assaulted by a law enforcement official, you can try to hold them to account. (Of course, the extent to which you’ll be able to do so is another question, one at the heart of the current protests.) But how do you hold someone accountable when you don’t know who they are or even who they work for?
Ruth Ben-Ghiat, a professor of history at New York University and an expert on authoritarianism, noted the lack of accountability introduced by the government of Chilean dictator Augusto Pinochet for the actions of loyalist forces.
“The government passed laws that allowed the service records of military men and police who had been involved in torture and abuses to be destroyed so that their records were swept clean,” she said. “Many authoritarian leaders issue amnesty that free service people, clean up their records so that their abuses are never known.”
The point isn’t necessarily that the lack of identification offered by the men in Washington is intended to facilitate abuse. It’s that it hampers accountability, intentionally or not, which itself makes abuse more likely to go unchecked. Officers of the law are accountable to the public, something that’s harder to achieve if you don’t know who they are.
What the current situation demands is clarity. Given the tension between law enforcement and the protesters and given the existence of those looking to amplify that tension either as cover for illegal looting or to commit vandalism against the state, it seems more important now than it normally is that the enforcement arm of the government be identified by agency and individually.
“The idea of having no identification whatsoever as to the agency that you belong to,” Bratton said, “is highly unusual and, from my perspective, not professional at all.”
Haake updated his assessment of the scene at the White House on Wednesday afternoon, reporting that the unidentified officers had been replaced by members of the National Guard, in uniforms including the D.C. flag.
But that didn’t last long.
This sort of editing is inexcusable – and happens too often. We in the media have to do better with our use of ellipses, the rule being that what’s cut doesn’t substantively change the intended meaning. This clearly did. #MeetThePress #MediaTrust #BillBarr
This sort of editing is inexcusable – and happens too often. We in the media have to do better with our use of ellipses, the rule being that what’s cut doesn’t substantively change the intended meaning. This clearly did. #MeetThePress #MediaTrust #BillBarr https://t.co/73aArxvBcL
— kathleenparker (@kathleenparker) May 12, 2020