“Everyone dies and I am not, you know, I don’t believe in the Homeric idea that you know, immortality comes by, you know, having odes sung about you over the centuries, you know?”
— William P. Barr, asked about his legacy as attorney general
Everyone dies. This much is known.
The real reason Bill Barr is defending Trump
The attorney general didn’t want to serve Donald Trump. But he did want to fight for a theory of presidential power.
After his combative news conference moments before the release of the Mueller report, one GOP operative wished aloud that Trump would drop Vice President Mike Pence from the ticket in 2020 and add Barr instead. Other prominent Republicans speak of him in almost adulatory terms. “Barr is the closest thing we have to [former Vice President Dick] Cheney,” said Chuck Cooper, a conservative litigator and Barr ally who, like the attorney general, has led the Justice Department’s Office of Legal Counsel. “He’s a man. He has a very strong sense of purpose and confidence.”
.. But people who know Barr and have tracked his career for years say the story is more complicated. Trump and Barr barely have a personal relationship, according to White House aides. Barr may have donated $2,700 to Trump in the 2016 general election, but only after he threw $55,000 to Jeb Bush in the primaries. They say that it’s not Donald Trump whom Barr is fighting for, but a vision of the presidency.
.. Advocates for the “unitary executive”
Barr’s first interaction with the Trump White House came in the spring of 2017 when he met with Pence to talk about representing him in the Mueller probe. Barr waved off the offer, instead recommending a handful of friends to do the job. About a year later, when the president’s children were unhappy with Trump’s legal representation, Barr got another phone call — and turned down another offer, this one to join the president’s personal legal team.
In late 2018, when the White House was on the hunt for a new attorney general, Barr might as well have been on speed dial. He is a longtime friend of White House counsel Pat Cipollone, who worked for him at the Department of Justice in the 1990s and who pressed him to take the job. Again, Barr begged off, urging the White House to consider his friend J. Michael Luttig, a former federal appeals court judge — or former Arizona Sen. Jon Kyl — or his Kirkland & Ellis partner Mark Filip.
Ultimately, his friends managed to talk him into it. “We had discussions over a period of time, and I encouraged him to take it,” said George Terwilliger, a conservative attorney and longtime friend of Barr’s.
Barr’s social and professional circle was critical in drawing him into Trump’s orbit. Barr pals, including Terwilliger, Cooper, Luttig and former Virginia Attorney General Richard Cullen are part of a group of elite conservative litigators who were once wunderkinds in the the Reagan and George H.W. Bush administrations. They grew up together and have fought countless political battles alongside one another.
The Trump era has been no different. Cullen represents Pence in the Russia probe. Cooper represents former Attorney General Jeff Sessions. And Luttig was the runner-up for the attorney general post when Trump tapped Barr in December, according to multiple sources.
They are united by a firm belief in a theory of robust presidential power dusted off by Reagan Attorney General Edwin Meese. Known among legal scholars as the theory of the “unitary executive,” they argue that the Constitution grants presidents broad control of the executive branch, including — to take a salient Trump-era example — the power to fire an FBI director for any reason at all.
Barr made his first imprint in this battle as head of the Justice Department’s Office of Legal Counsel in the George H.W. Bush administration, when he authored a controversial memo giving the FBI the right to seize fugitives abroad without the consent of the foreign government in question. As deputy attorney general, he told George H.W. Bush he had the power to send U.S. military forces into Iraq without congressional authorization.
.. Conservative heroes from Robert Bork to the late Justice Antonin Scalia have been advocates of this theory. Bork carried out President Richard M. Nixon’s directive, in the midst of the Watergate scandal, to fire independent special prosecutor Archibald Cox because he determined the president had the right to do so. Scalia, in a 1988 dissenting opinion, argued that the president had the power to fire any executive branch official, including an independent counsel.
“A lot of The Federalist Society heroes are people who participated in or were advocates for the unitary executive,” said University of California law professor John Yoo, himself a proponent of the theory, which became a flash point in the George W. Bush administration after Yoo penned memos advising Bush that the Constitution grants the president virtually unlimited authority to use force abroad and justifies the warrantless wiretapping of American citizens.
Enter Bill Barr. Before he agreed to take the attorney general job, he drew on the unitary executive theory in the 18-page memo he sent to Deputy Attorney General Rod Rosenstein last June — a document his critics say amounted to a veiled application for his current job. In that memo, Barr argued that obstruction of justice is limited to things like witness tampering and destroying evidence and that the president has “complete authority to start or stop a law enforcement proceeding.” The implication: Trump was acting on firm constitutional ground when he fired FBI director James Comey, regardless of his motivation, and that doing so was not an effort to obstruct justice. Neither were Trump’s subsequent, but thwarted, moves to fire Mueller himself.
Described by his friends as supremely confident in his views, Barr said at his confirmation hearing that he had circulated the memo widely “so that other lawyers would have the benefit of my views.”
“This captures Bill Barr perfectly,” Luttig said. “He has stayed active in Washington his entire life, he knows everyone and everyone knows him, he reaches out regularly to tell people what he is thinking about the issues of the day — and what he thinks of what they’re doing and, yes, what they need to be doing differently! And they love it.”
A lifelong conservative raised by Roman Catholic educators — his father was a professor of English literature at Columbia University, his future alma mater — Barr, was 10 at the time of John F. Kennedy’s 1960 campaign. But he has told friends he resisted Camelot’s allure. “He claims the nuns washed his mouth out with soap,” Cullen said.
Barr’s critics argue not only that he has a fringe interpretation of the law, but that far from even-handedly applying it, he’s gone out of his way to protect the president. “You can be the President’s defense attorney or America’s Attorney General, but you can’t be both,” Rep. Eric Swalwell (D-Calif.) said in mid-April, as part of a call for Barr’s resignation. Other liberal critics have argued for his impeachment.
These critics say that presidents cannot and should not oversee, interfere with or direct investigations. “The most important function of the Department of Justice is to protect the independence of the prosecutorial function and the criminal justice system from political entanglement,” said Joyce Vance, a former federal prosecutor who worked under Barr at the Justice Department during the George H.W. Bush administration. Vance argued in a December op-ed that Barr’s memo disqualified him from serving as attorney general.
“It’s easier for people who’ve never been in the Justice Department to take this unitary executive point of view,” Vance added. “But for anybody who’s been inside of the Justice Department for even five seconds, you understand that one of the most important things that you do is to protect the criminal prosecutorial power from political influence.”
Parrying with the press
Barr’s decision to convene a news conference on the Mueller report before it was released to the public and his statements during the 21-minute event turned him into a villain on the left and a subject of broad admiration on the right.
Democrats say that Barr didn’t just mischaracterize the report’s findings, using the president’s preferred word, “collusion,” rather than the more legally accurate “criminal conspiracy” but labored to explain Trump’s illicit behavior, describing him as “frustrated and angered by his sincere belief that the investigation was undermining his presidency.” Barr was acting as “as if he’s the personal attorney and publicist of the President of the United States,” declared Sen. Elizabeth Warren (D.-Mass).
“Excusing the president taking obstructive acts by saying that he was frustrated — every person who commits obstruction of justice is frustrated,” said Matt Miller, who served as spokesman for Attorney General Eric Holder. “The person that Republicans told us would be strong enough to stand up to the president is the one person who is actually behaving the way the president has always wanted his attorney general to behave.”
Republicans have seen something different unfolding. They relish Barr’s willingness and ability to thrust and parry with the news media — something other Trump Cabinet secretaries have gone out of their way to avoid for fear of overshadowing the president or taking a misstep that might sit wrong with him and cost them their job.
During his pre-Mueller report news conference Barr interrupted a reporter who questioned why Mueller wasn’t present for the release of “his” report only for Barr to interject, “No, it’s not, it’s a report that he did for me as the attorney general. … I’m here to discuss my response to that report and my decision, entirely discretionary, to make it public since these reports are not supposed to be made public.”
Pressed on whether it was inappropriate to come out and “spin” the report before it was made public, Barr offered a terse response: “No.”
Barr’s allies argue that Democrats are upset only over Barr’s decision not to prosecute the president. “The left is savaging Barr only because Barr is not savaging Trump,” Cooper said. A Wall Street Journal editorial titled “Targeting Bill Barr,” argued that Barr “will be hammered no matter what he decides. The good news is that the country finally appears to have an Attorney General who can take the heat.”
He will have to. Reports Tuesday evening indicating that Mueller wrote a letter to Barr protesting his characterization of the report’s conclusions reignited calls for Barr’s resignation or impeachment.
But many conservatives think it will take more than that to damage Trump’s improbable defender.
“Barr step down?” Sol Wisenberg, a former deputy on Kenneth Starr’s independent counsel investigation into President Bill Clinton, told POLITICO on Tuesday. “Are you fucking insane?”
How Barr’s Excerpts Compare to the Mueller Report’s Findings
Attorney General William P. Barr sent a letter to Congress last month citing brief fragments from the Mueller report. Now that the document is public, his selections are coming under scrutiny.
Mr. Barr took Mr. Mueller’s words out of context to suggest the president had no motive to obstruct justice
“In making this determination, we noted that the special counsel recognized that ‘the evidence does not establish that the president was involved in an underlying crime related to Russian election interference,’ and that, while not determinative, the absence of such evidence bears upon the president’s intent with respect to obstruction.”
Vol. II, Page 157: Obstruction of justice can be motivated by a desire to protect noncriminal personal interests, to protect against investigations where underlying criminal liability falls into a gray area, or to avoid personal embarrassment. The injury to the integrity of the justice system is the same regardless of whether a person committed an underlying wrong. In this investigation, the evidence does not establish that the president was involved in an underlying crime related to Russian election interference. But the evidence does point to a range of other possible personal motives animating the president’s conduct. These include concerns that continued investigation would call into question the legitimacy of his election and potential uncertainty about whether certain events — such as advance notice of WikiLeaks’ release of hacked information or the June 9, 2016, meeting between senior campaign officials and Russians could be seen as criminal activity by the president, his campaign or his family.
Mr. Barr, in explaining why he was declaring Mr. Trump cleared of obstructing justice, cited this sentence fragment about how the evidence Mr. Mueller had gathered did not prove there had been any conspiracy with Russia for Mr. Trump to cover up. This use of Mr. Mueller’s words turned the special counsel’s meaning on its head: The brief excerpt came from a list of other possible reasons Mr. Trump might have had to corruptly impede the investigation, and which Mr. Barr did not mention.
Mr. Barr omitted words suggesting that there was complicit conduct that fell short of “coordination”
“The special counsel’s investigation did not find that the Trump campaign or anyone associated with it conspired or coordinated with Russia in its efforts to influence the 2016 U.S. presidential election. As the report states: ‘[T]he investigation did not establish that members of the Trump campaign conspired or coordinated with the Russian government in its election interference activities.’”
FROM ROBERT S. MUELLER III
Vol. I, Page 1:The investigation also identified numerous links between the Russian government and the Trump campaign. Although the investigation established that the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome, and that the campaign expected it would benefit electorally from information stolen and released through Russian efforts, the investigation did not establish that members of the Trump campaign conspired or coordinated with the Russian government in its election interference activities.
Mr. Barr took a larger passage in which the Mueller report suggested that the Trump campaign and the Russian government were knowingly dancing together at a distance, and then excerpted a fragment to make it look like a cleaner exoneration.
Similarly, Mr. Barr truncated the special counsel explanation of what “coordination” meant — and didn’t mean
“In assessing potential conspiracy charges, the special counsel also considered whether members of the Trump campaign ‘coordinated’ with Russian election interference activities. The special counsel defined ‘coordination’ as an ‘agreement — tacit or express — between the Trump campaign and the Russian government on election interference.’”
FROM ROBERT S. MUELLER III
Vol. I, Page 2:We understood coordination to require an agreement — tacit or express — between the Trump campaign and the Russian government on election interference. That requires more than the two parties taking actions that were informed by or responsive to the other’s actions or interests.
In the second sentence, which Mr. Barr omitted, Mr. Mueller again emphasized that there can be a type of complicit conduct that falls short of how the special counsel defined coordination.
Mr. Barr omitted the reason Mr. Mueller trumpeted the thoroughness of his factual investigation
“After making a ‘thorough factual investigation’ into these matters, the special counsel considered whether to evaluate the conduct under department standards governing prosecution and declination decisions but ultimately determined not to make a traditional prosecutorial judgment.”
FROM ROBERT S. MUELLER III
Vol. II, Page 2: Second, while the O.L.C. opinion concludes that a sitting president may not be prosecuted, it recognizes that a criminal investigation during the president’s term is permissible. The O.L.C. opinion also recognizes that a president does not have immunity after he leaves office. And if individuals other than the president committed an obstruction offense, they may be prosecuted at this time. Given those considerations, the facts known to us, and the strong public interest in safeguarding the integrity of the criminal justice system, we conducted a thorough factual investigation in order to preserve the evidence when memories were fresh and documentary materials were available.
In his letter to Congress, Mr. Barr did not explain that Mr. Mueller was trying to leave open the possibility that prosecutors in the future, after Mr. Trump leaves office, could look at the evidence he gathered and decide then whether to indict Mr. Trump. That rationale — which stemmed from the view of the Justice Department’s Office of Legal Counsel, or O.L.C., that sitting presidents cannot be indicted but former presidents lose such immunity — conflicted with Mr. Barr’s move to pronounce Mr. Trump cleared now.
Mr. Barr portrayed Mr. Mueller as encountering “difficult issues” in reaching a decision on obstruction
“The special counsel therefore did not draw a conclusion — one way or the other — as to whether the examined conduct constituted obstruction. Instead, for each of the relevant actions investigated, the report sets out evidence on both sides of the question and leaves unresolved what the special counsel views as ‘difficult issues’ of law and fact concerning whether the president’s actions and intent could be viewed as obstruction. The special counsel states that ‘while this report does not conclude that the president committed a crime, it also does not exonerate him.’”
Mr. Mueller used those two phrases twice, in slightly different formulations:
FROM ROBERT S. MUELLER III
Vol. II, Page 2: Fourth, if we had confidence after a thorough investigation of the facts that the president clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, however, we are unable to reach that judgment. The evidence we obtained about the president’s actions and intent presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred. Accordingly, while this report does not conclude that the president committed a crime, it also does not exonerate him.
Vol. II, Page 8: Because we determined not to make a traditional prosecutorial judgment, we did not draw ultimate conclusions about the president’s conduct. The evidence we obtained about the president’s actions and intent presents difficult issues that would need to be resolved if we were making a traditional prosecutorial judgment. At the same time, if we had confidence after a thorough investigation of the facts that the president clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, we are unable to reach that judgment. Accordingly, while this report does not conclude that the president committed a crime, it also does not exonerate him.
In his letter, Mr. Barr did not explain why the special counsel had demurred from making any prosecutorial judgment on obstruction beyond a cryptic reference to what he said Mr. Mueller had described as “difficult issues” of law and fact. His suggestion was that these unspecified issues prevented Mr. Mueller from making a call “one way or the other.” In fact, Mr. Mueller made clear that the difficulties resided in accusing Mr. Trump of committing a crime; if the facts had exonerated him, he would have been willing to say so.
William Barr’s Testimony, and Reasons to Be Snitty
said, ‘Bob, what’s with the letter?’ ” Attorney General William Barrrecounted in his testimony before the Senate Judiciary Committee on Wednesday. “ ‘Why don’t you just pick up the phone and call me if there’s an issue?’ ” Bob—that is, Robert Mueller, the special counsel in charge of the investigation into Russian efforts to interfere in the 2016 election—had sent Barr the letter on March 27th, three days after Barr had released his own letter purporting, in four pages, to convey the principal conclusions of Mueller’s more than four-hundred-page report. Mueller had been fairly clear about what was, as Barr put it, with the letter: Barr’s statement “did not fully capture the context, nature, and substance of this Office’s work and conclusions.” And, in its wake, there was “now public confusion.” Barr told Senator Richard Blumenthal, Democrat of Connecticut, that the letter had prompted him to call Mueller, on speaker phone, while several people, including Deputy Attorney General Rod Rosenstein, were in the room with him. As Blumenthal questioned Barr about his subsequent exchange with Mueller, Barr picked up what appeared to be a copy of Mueller’s letter and gave it a sour scan. “The letter’s a bit snitty,” he said. “I think it was probably written by one of his staff.”
“Snitty” is a word of relatively recent origin; Merriam-Webster traces the appearance of the underlying noun, “snit,” to 1939. It echoes something of the meaning of snipe and snip, and even snitch—of pettiness and petulance. It hardly seems right as a way to describe the concerns that Mueller—a man with a long and distinguished career in law enforcement—had about a possible blow to public confidence in his investigation, or in the Justice Department, or in both. And yet the complaint perfectly expresses the culture of the Trump Administration. Calling people “snitty” is a way of accusing them of being weak, mewling, and rule-bound, with a pathetic belief in fairness. It’s the bully’s retort upon being called out—expressing the same resentment that might, say, lead a President to commit what the Mueller report refers to as potentially “obstructive acts.” “Snitty” is used to conjure up the image of people whom one would rather ignore stamping their feet—which may be why Barr joined it with the supposition that the letter Mueller signed was written “by one of his staff.”
The question of what “staff” might be capable of was, it seems, already on Barr’s mind. After the Senate hearing, it emerged that he had decided not to appear at a parallel hearing in the House, scheduled for Thursday, supposedly because he objected to being questioned by lawyers on the committee staff rather than by the representatives themselves. The committee is responding with a flurry of subpoenas; the issue of the Trump Administration’s evasions of congressional oversight is not a new one, and it won’t go away. But Barr does a particularly bad job of hiding his disdain. At one point, Blumenthal asked him if anyone had taken notes of the “what’s with the letter” call. Barr confirmed that some people had done so. “May we have those notes?” Blumenthal asked.
“No,” Barr replied.
“Why not?” Blumenthal asked.
“Why should you have them?” Barr said.
Who do these senators think they are? Barr’s own recollection of the call was an exercise in blame. According to Barr, Mueller said that he was “concerned about the way the media was playing this” and wanted his executive summaries released in order to “avoid some of the confusion that was emerging.” Barr continued, “I asked him if he felt that my letter was misleading or inaccurate, and he said no, that the press—he felt that the press coverage was.” At this point, Barr has shown himself to be enough of an unreliable narrator that it makes sense to wait and learn if this is also Mueller’s recollection. (Mueller does not specifically mention the press in his letter.) But it is worth asking what Barr is saying here about the press: the coverage, up until then, was based only on his four-page letter. If the coverage was inaccurate or misleading, how might that have happened—was the press making things up? Barr doesn’t appear to mind implying that reporters either are incapable of basic reading comprehension or just act in bad faith. Earlier in the hearing, Senator John Kennedy, Republican of Louisiana, also raised what he called “the news-coverage issue” and asked Barr, “What were you supposed to do about that?” Noting that the report was now out, the senator called the whole matter moot and added, “None of us can control what the news publishes or prints, except the media.” Nor should anyone—but it would be helpful, sometimes, if the press had truthful material to work with. And Congress might do something about that.