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.
Last week, Attorney General William P. Barr testified in front of the Senate Judiciary Committee on his apparent attempt to whitewash special counsel Robert S. Mueller III’s findings, particularly those related to potential obstruction of justice by President Trump. In the course of his defense, Barr said, “We have to stop using the criminal justice process as a political weapon.”
His statement echoed language that President George H.W. Bush used when announcing a controversial pardon in the final weeks of his presidency — after consultation with Barr, who was serving his first stint as attorney general. These statements make plain Barr’s view that prosecutorial investigations of executive officials are inherently partisan and, therefore, illegitimate under the rule of law. But this idea calls into question one of the central principles of the American constitutional system: executive accountability.
In Federalist 70, Alexander Hamilton trumpets the advantages of a unitary executive, that is, the notion that all executive branch authority rests with the president, rather than being divided up among different executive officers, as states such as Texas and New York do.
One of Hamilton’s central arguments was that a unitary executive increases accountability: The buck stops with the president. In a divided executive, it could be unclear whether the president or another executive officer should be held to account for unpopular, unscrupulous or unlawful actions. By making the president accountable for all such action, the people will know how to vote in future elections.
Notably, Hamilton’s ideas on accountability extend beyond the president paying at the ballot box for unpopular action. In Federalist 65, he clearly states that a president impeached for misconduct is also “liable to prosecution and punishment in the ordinary course of law.” In other words, the presidency was not designed to be free from prosecutorial inquiry.
Holding the president and other, subordinate executive branch officials to account was central to our constitutional design and the rule of law, part of the delicate compromise between those at the constitutional convention who wanted a weak executive and those who wanted a strong one.
Hamilton’s reasoning on executive accountability has featured prominently in the development of the concept over time. For example, the United States Supreme Court ruled unanimously in Clinton v. Jones that the president is not immune from civil litigation due to the constitutional mandate of executive accountability. Indeed, such accountability was not only allowed, but may well have been necessary to protect the rule of law.
Barr, however, rejects this notion — and did so long before Donald Trump entered the political arena. On Christmas Eve 1992, Bush issued a pardon to former secretary of defense Caspar Weinberger for his role in the Iran-contra affair during the Reagan administration. In violation of U.S. law, Weinberger had allegedly facilitated the sale of American missiles to Iran to help fund the contras in Nicaragua. An independent counsel was appointed to investigate the scandal and a grand jury brought indictments on two counts of perjury and one count of obstructing justice. Weinberger protested the fairness of the indictments, but the evidence of wrongdoing was substantial. (Bush, who was vice president during the Iran-contra affair, was implicated but ultimately not indicted.)
When Bush explained his rationale for the pardon, he did not contest Weinberger’s likely guilt. Instead he praised Weinberger’s long record of service to the nation and his role in bringing down the Berlin Wall and the Soviet Union.
Bush went further, though, not resting on Weinberger’s meritorious service alone. He pivoted to attack the prosecutions — 14 people associated with the Reagan administration were indicted, and 11 convicted — themselves as inconsistent with law’s necessary neutrality. Bush argued that the prosecutions represented “the criminalization of policy differences” and that “[t]hese differences should be addressed in the political arena, without the Damocles sword of criminality hanging over the heads of the combatants.” Reports at the time indicated that Bush worked closely on the pardon with Barr, which is unsurprising given the views Barr espoused last week.
Indeed, when reading this pardon in conjunction with Barr’s testimony, it’s clear that Barr holds a narrow understanding of executive accountability. In both the cases of Weinberger and Trump, prosecutors statutorily shielded from partisan influences found substantial evidence that the figure in question obstructed justice.
Yet because the targets of the investigations were political actors and, ostensibly, the opposition party would benefit from a successful prosecution of them, Barr considers any such prosecution inherently partisan and ill-suited for the courts. In other words, any attempt to investigate whether presidential action was unlawful must be partisan and, therefore, is inappropriate for nonpartisan legal institutions. Instead, as Bush identified in the Weinberger pardon, “the proper forum” for executive accountability was the “voting booth, not the courtroom.”
But this essentially gives the president (and other executive officials) a blank check: Unless misconduct rises to the level of impeachment, or if the partisan realities in Congress render impeachment an impossibility, the president is essentially immune from sanction for breaking the law, at least until leaving office.
This is not how Hamilton and his fellow Founders envisioned the system working. Worried about an out-of-control executive, they aimed to create checks and balances — and accountability. Checks and balances and the rule of law are not just formal institutional arrangements, they are norms of governance that invigorate principles central to the American system of government. Accountability is even more crucial in 2019 than it was in 1787, given how much more power the president wields today than in the 18th and 19th centuries.
When an ideology like Barr’s undermines those norms, the system of accountability carefully crafted by Hamilton and his fellow Founders and developed over two centuries threatens to become unbalanced. The result is a president unmoored from the norms that tether the executive to lawful behavior. That risks the entire American constitutional structure crashing down, as the president asserts himself with little to fear until at least the next election. While executive power has advanced steadily throughout the 20th century, what Barr envisions would be another leap, putting the United States on dangerous ground. It is not too much to ask our presidents not to violate the law. And when they fail to meet that standard, the consequences should be swift and assured.
Kirstjen Nielsen is the latest one out of the president’s spiraling cabinet who expressed his cruelty but wouldn’t go as far as he wanted.
There’s no reason to mourn Kirstjen Nielsen’s departure from the Department of Homeland Security. She was an immigration hard-liner working aggressively to carry out President Trump’s restrictionist agenda. She spearheaded efforts to crack down on migrants and asylum seekers. She requested military assistance at the border. She limited the number of people who can legally present for asylum at ports of entry. And she vastly increased the number of immigrants in detention.
She also carried out the president’s “zero tolerance” policy, resulting in the separation of thousands of families at our border with Mexico. Many parents are still searching for their children.
But there were limits to Nielsen’s embrace of Trump’s immigration policies. She pushed back on his demands to break the law to stop migrants from entering the country, according to The Times, and repeatedly reminded the president of “the limitations imposed on her department by federal laws, court settlements and international obligations.”
In almost any other administration, this would be unremarkable. It simply means Nielsen took her job and its legal obligations seriously — what we would expect from any civil servant. But Trump is unusual among modern presidents for his routine elevation of people who lack that basic sense of public ethics. If regular pressure to break the law was part of Nielsen’s decision to leave the administration, then her departure illustrates how any belief in the public good, no matter how slight, is incompatible with working for this president, even if you share his views.
This was evident from previous resignations and firings. Rex Tillerson, Trump’s first secretary of state, seemed to share the president’s skepticism of the department, carrying out an agenda meant to shrink its influence. But when Trump wanted to break the law — which, Tillerson said in an interview after leaving the administration, was “often” — Tillerson would push back, unwilling to completely subordinate himself to the president’s will. “I would have to say to him, ‘Mr. President, I understand what you want to do, but you can’t do it that way. It violates the law.’”
The president’s first attorney general, Jeff Sessions, faced similar pressures after he recused himself from any investigations related to the prospect of Russian interference with the 2016 presidential election. Sessions took that step after The Washington Post revealed his meetings with the Russian ambassador, Sergey Kislyak, during the campaign — the kind of contact he had denied during his confirmation hearing before the Senate Judiciary Committee.
Trump was furious, which grew into rage after the deputy attorney general, Rod Rosenstein, appointed Robert Mueller special counsel. Trump reportedly berated Sessions in the Oval Office — which the attorney general called his “most humiliating experience in decades of public life” — and complained that the recusal was “unfair.”
Trump wanted Sessions to derail the Russia investigation and protect him from scrutiny, essentially making himself above the law. And he spent much of 2018 pressuring the attorney general to do just that, either attacking him in public or cajoling him in private. Sessions, who shared Trump’s politics but not his complete contempt for the rule of law, wouldn’t budge.
The overall pattern is clear. Trump wants to act with impunity, breaking the law if he needs or even just wants to. His appointees, who share his goals but not his methods, resist. He scolds and attacks them until they resign, replacing them with loyalists who may actually bend to his will.
Rex Tillerson was replaced by Mike Pompeo, then serving as director of the C.I.A. Unlike Tillerson, who attempted to contain Trump’s worst instincts, Pompeo has been willing to say or do nearly anything to stay in Trump’s favor. It’s why he would echo the president’s widely criticized flattery of Kim Jong-un and the North Korean government.
Trump says that Kevin McAleenan, until now the commissioner of Customs and Border Protection, will take over for Nielsen as acting secretary of Homeland Security. Like Nielsen, McAleenan backs the president’s harsh border policies. He defended border patrol agents after they used tear gas on hundreds of migrants, including women and children, who tried to enter the United States near Tijuana, Mexico. Some attorneys say it’s unclear if Trump can elevate McAleenan, since the laws regarding succession point to under secretary for management Claire Grady as next-in-line as acting director.
In 1988, senior members of Reagan’s administration, including Lt. Col. Oliver North, were charged with conspiracy to defraud the United States over their alleged roles in illegally selling arms to Iran and passing the proceeds to rebels in Nicaragua.
The affair was investigated by Congress and independent counsel Lawrence Walsh. By the time it was over, 14 people were criminally charged and 11 were convicted — although all 11 either had their convictions overturned or received pardons from Reagan’s successor, George H. W. Bush.
Walsh later complained bitterly that the Reagan and Bush administrations stymied his investigation, including through those pardons, which were pushed hard by Bush’s then-attorney general, William Barr. Barr later recalled: “I favored the broadest pardon authority.” Perhaps not coincidentally, Barr has now been called back to the DOJ by Trump to oversee the final stages of the Mueller investigation.
.. Renato Mariotti, a former prosecutor and close Mueller-watcher, argues that the special prosecutor is unlikely to roll out a grand conspiracy — for the simple reason that it would be extremely difficult to prove beyond a reasonable doubt.After all, even behavior that appears to be a clumsy attempt at coordination might fall short of serving as evidence of conspiracy: Recall when Trump famously asked Russia to hack Hillary’s emails in the middle of the campaign.By making that call during a press conference, Trump actually made it harder to prove in court that he was somehow intentionally conspiring with Russians in the hacking of her computer, which took place later that same day.“I think most prosecutors would be reluctant to charge that, because he could say it was said in jest,” said McQuade.