Six words that changed conservatism, and American politics.
U.S. Department of Justice
In 1989, at the beginning of his administration, President George H. W. Bush appointed Barr to the U.S. Department of Justice as Assistant Attorney General for the Office of Legal Counsel (OLC), an office which functions as the legal advisor for the President and executive agencies. Barr was known as a strong defender of presidential power. He wrote an advisory opinion justifying the U.S. invasion of Panama and arrest of Manuel Noriega. He wrote legal justifications for the practice of rendition, so that the FBIcould enter onto foreign soil without the consent of the host government to apprehend fugitives wanted by the United States government for terrorism or drug-trafficking. Barr declined a congressional request for the full opinion, but instead provided a document that “summarizes the principal conclusions.” Congress subpoenaed the opinion, and its public release after Barr’s departure from the Justice Department showed he had omitted significant findings in the opinion from his summary document.
U.S. Attorney General (1991–1993)
First nomination and confirmation
It was reported that President Bush was impressed with Barr’s management of the hostage crisis; weeks later, Bush nominated him as Attorney General.
Barr’s two-day confirmation hearing was “unusually placid”, and he received a good reception from both Republicans and Democrats on the Senate Judiciary Committee. Asked whether he thought a constitutional right to privacy included the right to an abortion, Barr responded that he believed the constitution was not originally intended to create a right to abortion; that Roe v. Wade was thus wrongly decided; and that abortion should be a “legitimate issue for state legislators“. “Barr also said at the hearings that Roe v. Wade was ‘the law of the land’ and claimed he did not have ‘fixed or settled views’ on abortion.” Senate Judiciary Committee Chair Joe Biden, though disagreeing with Barr, responded that it was the “first candid answer” he had heard from a nominee on a question that witnesses would normally evade; Biden hailed Barr as “a throwback to the days when we actually had attorneys general that would talk to you.” Barr was approved unanimously by the Senate Judiciary Committee, was confirmed by voice vote by the full Senate, and was sworn in as Attorney General on November 26, 1991.
During his first tenure as AG, media characterized Barr as staunchly conservative. However, Barr was widely respected by both Republicans and Democrats alike. In 1995, Joe Biden told Barr, “You were one of the best (attorney generals) I have ever worked with, and there have been a lot of attorneys general since I have been here, and I mean that sincerely.” He was described as affable with a dry, self-deprecating wit. The New York Times described the “central theme” of his tenure to be “his contention that violent crime can be reduced only by expanding Federal and state prisons to jail habitual violent offenders.” In an effort to prioritize violent crime Barr reassigned three hundred FBI agents from counterintelligence work to investigations of gang violence, which the New York Times called, “the largest single manpower shift in the bureau’s history.”
The Case for More Incarceration
In 1992, Barr authored a report, The Case for More Incarceration, which argued for an increase in the United States incarceration rate, the creation of a national program to construct more prisons, and the abolition of parole release. Barr argued that incarceration reduced crime, pointing to crime and incarceration rates in 1960, 1970, 1980 and 1990; a 1999 criminology study criticized Barr’s analysis, saying “so complex an issue as the relationship between crime and punishment cannot be addressed through so simplistic an analysis as a negative correlation between the two very aggregated time series of crime rates and incarceration rates.” University of Minnesota criminologist Michael Tonry said the data in Barr’s report was deceptively presented; if Barr had chosen five-year intervals, then the data would not have supported Barr’s argument, and if Barr had chosen to look at violent crime specifically (as opposed to all crimes as a category), then the data would not have supported his argument. Barr said in the report, “The benefits of increased incarceration would be enjoyed disproportionately by black Americans”. In the report, Barr approvingly quoted New Mexico Attorney General Hal Stratton, “I don’t know anyone that goes to prison on their first crime. By the time you go to prison, you are a pretty bad guy.” Barr’s report influenced the Violent Crime Control and Law Enforcement Act of 1994, which aimed to increase the incarceration rate.
.. Phone surveillance program
In 1992, Barr launched a surveillance program to gather records of innocent Americans’ international phone calls. The DOJ Inspector General concluded that this program was launched without a review of the legality of the program. According to USA Today, the program “provided a blueprint for far broader phone-data surveillance the government launched after the terrorist attacks of Sept. 11, 2001.”
In late 1992, Independent Counsel Lawrence Walsh, who had been chosen to investigate the Iran–Contra affair, found documents in the possession of Reagan’s former defense secretary, Caspar Weinberger, which Walsh said was “evidence of a conspiracy among the highest-ranking Reagan Administration officials to lie to Congress and the American public.” Weinberger was set to stand trial on felony charges on January 5, 1993. His “indictment said Mr. Weinberger’s notes contradicted Mr. Bush’s assertions that he had only a fragmentary knowledge of the arms secretly sold to Iran in 1985 and 1986 in exchange for American hostages in Lebanon.” According to Walsh, then-president Bush might have been called as a witness.
On December 24, 1992, during his final month in office, Bush, on the advice of Barr, pardoned Weinberger, along with five other administration officials who had been found guilty on charges relating to the Iran–Contra affair. Barr was consulted extensively regarding the pardons, and especially advocated for pardoning Weinberger.
Walsh complained about the move insinuating that Bush on Barr’s advice had used the pardons to avoid testifying and stating that: “The Iran-contra cover-up, which has continued for more than six years, has now been completed.” In 2003, he wrote an account of the investigation in his book, Firewall: The Iran-Contra Conspiracy and Cover-Up.
Because of this and Barr’s unwillingness to appoint an independent counsel to look into a second scandal known as Iraqgate, New York Times writer William Safire began to refer to Barr as “Coverup-General Barr.” Barr, however, responded that he believed Bush had made the right decision regarding that and he felt people in the case had been treated unfairly. Barr said that Walsh was a “head-hunter” who “had completely lost perspective.”
.. In June 2018, Barr sent an unsolicited 20-page memo to senior Justice Department officials, and to members of Trump’s legal team, with some of whom he discussed the memo. In it he argued that the Special Counsel should not be investigating Trump for obstruction of justice because Trump’s actions, such as firing FBI Director James Comey, were within his powers as head of the executive branch. He characterized the obstruction investigation as “fatally misconceived.” The day after the existence of the memo became known, Deputy Attorney General Rod Rosenstein said “our decisions are informed by our knowledge of the actual facts of the case, which Mr. Barr didn’t have.” Democrats later characterized the memo as Barr’s “job application” for the Attorney General position.
In May 2019, three months into his tenure as Attorney General, the Associated Press characterized Barr as a champion and advocate for Trump. Barr had enthusiastically supported Trump’s political agenda, misrepresented aspects of Special Counsel Robert Mueller’s, repeated Trump’s talking point that those investigating Trump had engaged in “spying”, defied congressional subpoenas, and refused to give Congress an unredacted version of the Mueller report.
Under Barr’s leadership, the Justice Department changed its position on the Affordable Care Act(ACA). Previously the department took the position that the individual mandate provision was unconstitutional, but could be severed from the whole healthcare law. On March 25, the department updated its position to argue that the entire law is unconstitutional. On May 2, the department conducted a filing with the United States Court of Appeals for the Fifth Circuit to nullify the entire law, arguing that the removal of the provision on individual mandate results in the entire law becoming unconstitutional. As of that day, President Donald Trump has promised to produce a replacement health insurance plan only after he wins reelection in 2020. If the ACA is nullified, over 20 million Americans risk losing their health insurance.
At a hearing before the Senate Judiciary Committee on May 1, 2019, Barr was asked by Senator Kamala Harris: “Has the president or anyone at the White House ever asked or suggested that you open an investigation of anyone?” Barr hesitated, asked her to repeat the question, and finally indicated he was unsure of what ‘suggested’ meant, saying “there have been discussions of matters out there, they have not asked me to open an investigation … I wouldn’t say suggest.” When Harris asked, “Hinted? Inferred?” Barr replied: “I don’t know.”
In early June the House Oversight Committee moved to hold Barr in contempt of congress for defying a subpoena regarding information about efforts to add a citizenship question to the 2020 US Census. Two days after the 75th anniversary of D-Day, Barr likened his own experience at the Justice Department to the experience of the paratroopers who had shoot into Sainte-Mère-Église on D-Day.
Mueller investigation and report
On January 14, 2019, a day before Barr’s confirmation hearing for Attorney General, Barr sent written testimony to the Senate Judiciary Committee regarding the eventual final Mueller report, saying “it is very important that the public and Congress be informed of the results of the special counsel’s work … For that reason, my goal will be to provide as much transparency as I can consistent with the law.”
The Department of Justice released a redacted version of the special counsel’s report in the morning of April 18, 2019. After the release of the full report, fact-checkers and news outlets characterized Barr’s initial letter as a deliberate mischaracterization of the Mueller Report and its conclusions. The New York Times reported instances in which the Barr letter omitted information and quoted sentence fragments out of context in ways that significantly altered the Mueller findings, including:
- A sentence fragment described only one possible motive for Trump to obstruct justice, while the Mueller report listed other possible motives
- Omission of words and a full sentence that twice suggested there was knowing and complicit behavior between the Trump campaign and Russians that stopped short of coordination
- Omission of language that indicated Trump could be subject to indictment after leaving office, to suggest that Trump was cleared in full
According to the Associated Press, Barr misrepresented the report in several ways, saying the report
- gave no indication that Congress could make a determination on obstruction of justice (the report specifically stated “that Congress may apply obstruction laws”) and that
- “these reports are not supposed to be made public” (when DOJ regulations give the AG wide authority in releasing reports such as this one). Barr
- falsely claimed in his summary of the report that “the White House fully cooperated with the Special Counsel’s investigation.” The Washington Post fact-checker described Barr’s claim as “astonishing” and PolitiFact said it was “false.” In actuality, Trump
- declined to grant the Special Counsel an in-person interview, and the
- Special Counsel report characterized Trump’s written responses to interview questions as “inadequate“.The report also
- documented numerous instances where Trump tried to either impede or end the Special Counsel investigation, analyzing each in terms of the three factors necessary for a criminal charge of obstruction.[not in citations given]
During a press conference, Barr said Mueller’s report contained “substantial evidence” that Trump was “frustrated and angered” because of his belief that the “investigation was undermining his presidency, propelled by his political opponents, and fueled by illegal leaks”; however, the report gave no indication that Trump’s frustrations with the investigation would mitigate obstructing behavior. Barr also said it would not be criminal obstruction of justice for a president to instruct a staffer to lie to investigators about the president’s actions, and suggested a president could legally terminate an investigation into himself if he was being “falsely accused”.
The Justice Department took the position that disclosure of the unredacted Mueller Report would require the department to violate “the law, court rules and court orders” as well as grand jury secrecy rules.
During May 1, 2019 testimony before the Senate Judiciary Committee, Barr stated he accepted Mueller’s interpretation of the law that was applied in the Report. However, in a May 30 CBS News interview, Barr stated that he had applied his own interpretation of the law and took the position that obstruction laws cannot apply to presidents who abuse their official powers to impede an investigation for a corrupt reason. Barr elaborated: “As a matter of law…we didn’t agree with the legal analysis – a lot of the legal analysis in the report. It did not reflect the views of the department”.
In a 1995 article for The Catholic Lawyer, Barr stated that the American government is “predicated precisely” on the Judeo-Christian system.:3 Barr grapples with the challenge of representing Catholicism “in an increasingly militant, secular age.”:1 Barr asserts that there are three ways secularists use “law as a legal weapon.”:8
- The first method is through elimination of traditional moral norms through legislation and litigation; Barr cites the elimination of the barriers to divorce and the Supreme Court’s decision in Roe v. Wade as examples of this method.:8
- The second is the promotion of moral relativism through the passage of laws that dissolve moral consensus and enforce neutrality.:8 Barr draws attention to a 1987 case, Gay Rights Coalition v. Georgetown University, which “compel[s] Georgetown University to treat homosexual activist groups like any other student group.”:9
- The third method is the use of law directly against religion; as an example of this method, Barr cites efforts to use the Establishment Clause to exclude religiously motivated citizens from the public square.:9 Concluding, Barr states the need to “restructure education and take advantage of existing tax deductions for charitable institutions to promote Catholic education.”:12
Barr is an avid bagpiper. He began playing at age eight and has performed competitively in Scotland with a major American pipe band. At one time, Barr was a member of the City of Washington Pipe Band.
Mr. Barr spent two years as attorney general under former Republican President George H.W. Bush. One of the people who served under Mr. Barr during that time was Pat Cipollone, whom Mr. Trump named White House counsel in October.Mr. Barr has also called for “more balance” among the prosecutors working for Mr. Mueller, noting that some of them have made political contributions to Democrats. Mr. Mueller is a registered Republican. Mr. Barr also publicly supported Mr. Trump’s call last year for the Justice Department to investigate 2016 Democratic presidential candidate Hillary Clinton, saying there was “nothing inherently wrong” with such a call. Presidents typically avoid public calls for investigations to avoid the appearance of interfering with matters of justice... As Mr. Trump mulled his choices for the job, some of the president’s advisers opposed Mr. Barr, saying he was the sort of establishment figure the president often derides on the campaign trail... Mr. Whitaker also had told CNN that if Mr. Sessions were succeeded by an acting attorney general, he could imagine a scenario in which that person would reduce Mr. Mueller’s budget “so low that his investigations grinds to almost a halt.”
The effect of Bush’s 1992 loss on the current GOP cannot be overestimated. The object lesson for the GOP was that neither preparation nor accomplishment mattered as a metric for political success. The two salient facts for Republicans were:
(1) Bush compromised with Democrats to reduce the budget deficit, thereby reversing his pledge not to raise taxes and alienating the GOP base; and
(2) Bush lost in 1992.
Newt Gingrich supplanted Bush as the GOP standard-bearer. This paved the way for political success and policy disasters.
Donald Trump can do one useful thing for the modern GOP: He can lose in 2020. Trump’s control over his party has already wobbled a bit after the midterms. And as CNN’s Harry Enten noted last week, Trump is laying the groundwork for that kind of ignominious failure:
The difference between Trump’s net economic approval rating and net overall approval rating is astonishingly high when put in a historical context. I looked up every single president’s overall and economic net approval ratings right around each midterm since 1978.
No other president has done this much worse overall than his economic ratings would suggest. On average, their overall net approval rating has actually run 17 points better than their economic net approval rating. Trump is running 27 points worse. The only president to come close to Trump’s negative differential was Bill Clinton in 1998. That was when Clinton was getting impeached….
Trump’s tweets, attacks on the media and improvisational style may be fodder for his base, but they don’t seem to be working on the electorate at-large. A Monmouth University poll earlier this year found that the vast majority of Americans said Trump ran a less conventional administration than normal, and by a 21-point margin, they said that was a bad thing.
If Trump loses in 2020, then maybe the modern GOP would start tacking back toward the style of George H.W. Bush and his aspirations for a kinder, gentler nation.