Expanded from a letter in The Boston Globe, June 20, 2020
The House Democrats unavailing efforts to smear Attorney General William Barr during his recent testimony before the House Judiciary Committee were only the latest in a steady drumbeat of criticism of Barr by the Democrats.
I have written previously of Attorney General Barr’s qualities. See Whose Prosecutorial Discretion Is It, Anyway? When appointed in 2019 he had all the riches and high office a man could want. He was retirement age, was wealthy from successful private practice and had already served as Attorney General in the Cabinet of President George H.W. Bush nearly 30 years before. Before his current appointment as Attorney General in February of 2019, Bar had no prior connection or dealings with Donald Trump. Indeed he had reportedly refused a request that he serve as the President’s personal counsel. He is merely the latest in a chain of honorable lawyers – Elihu Root, Henry Stimson and Dean Acheson come to mind – who go to Washington to serve not a President, but the nation, for no reason other than the personal satisfactions that come from public service.
If he were controversial at all, it was because of his advocacy of a “Unitary Executive,” a Constitutional theory that all executive power resided in the President. Again, see Whose Prosecutorial Discretion Is It, Anyway? In this vein he had written to the Department of Justice that Trump’s firing of FBI Director Comey could not constitute Obstruction of Justice. (The desirability of a “strong executive” was a very popular view among liberal academics in the mid-20th Century, comparing FDR, Truman, Kennedy and Johnson to what they regarded as the ‘weak” Eisenhower. The same scholars revised this view in the face of a 24 year chain of Republican presidents, except for one term of Carter.)
A seemingly concerted effort by the political left to paint Barr as some kind of corruptly motivated cat’s paw of Trump’s has lately increased in volume and intensity. For example, amidst the chaos of recent weeks the Attorney General came to town and met with Boston Police Commissioner William Gross (who also happens to be black) to discuss the hot topics of race and police relations. The pearl-clutching headline in the Boston Globe the next day was, “Sharply criticized, Gross defends meeting with Barr,” as if he had met with the ghost of Charles Manson.
The liberals’ complaints were laid out in the Atlantic Monthly on June 27:
“Many observers breathed a sigh of relief when Bill Barr was confirmed as attorney general. Here was a respected professional who had served in the post once before in an honorable administration. Now, just a year and a half later, what a disappointment he has proved. The man cannot be trusted.
“Think of the intentionally misleading account he gave of the Mueller report, at a time when the public and Congress had only Barr’s word to go by. Or the brief he allowed his Justice Department to file with the Supreme Court in the case about including a citizenship question on the 2020 census, whose rationale the Court later characterized as “contrived” and “pretextual.” Or his false account of the use of armed forces to clear Lafayette Square for the president’s photo op. Or his statement that U.S. Attorney Geoffrey Berman asked to step down, when Berman had done no such thing. And now we have damning testimony this week about the politicization of the Department of Justice in the prosecution of the Trump ally Roger Stone
“The attorney general is entitled to his opinion on the policies underlying these matters, and to argue forcefully for them. But as a lawyer, as a high official, as an officer of the court, he must not misrepresent the facts or the authorities. Americans need not agree with the attorney general’s arguments or conclusions, but they must have absolute confidence that he will not try to deceive them.”
Similar complaints were raised by House Democrats during Barr’s testimony. Most efforts fell flat but the hearing took on some aspects of a “bear baiting.” The chained bear saw most of his efforts to reply to their “questions” or charges ended within seconds by a “I reclaim my time.”
These charges were rattled off lightly. Let’s take a look at them.
Barr released the Conclusions of the Mueller Report while the full report was undergoing review for security because Mueller’s team had not vetted the report before turning it over to the Attorney General. The Mueller Report’s Conclusions were accurately reported. See It’s Mueller Time 2: Obstruction. All but the most fervent of the Cool-Aid drinkers have abandoned this trope because, with the full report released they could not identify a Conclusion misrepresented or missing.
The Attorney General does not write or usually even approve court briefs including the one about the 2020 Census. The opinion about the government’s stated reason for including a citizenship question was the trial’s judge’s, quoted by the Court.
Barr’s account of his early and peripheral involvement in the clearing of Lafayette Square during rioting was accurate. The violence he observed was captured on camera. His own interview with CBS was edited to remove that information. I’ve seen the deleted material.
The DOJ statement about the transfer of the Acting US Attorney in New York was a routine courtesy to avoid saying a lawyer has been sacked, Acting US Attorney Berman was not appointed by the President or even as Acting by the Attorney General. He was appointed by the judges to fill a vacancy until it was filled by the Executive.
Barr properly corrected false statement by the Democrats asserting that he had sent troops to Portland OR to attack “mothers and mayors protesting.” U.S. Marshals were stationed on the U.S. Courthouse grounds to protect the Court from repeated attempts to set it on fire.
Finally, Barr’s involvement in reversing lower level prosecutors’ recommendations on the sentencing of Roger Stone was perfectly proper as I discussed in Whose Prosecutorial Discretion Is It, Anyway?. The decision on a sentencing recommendation is ultimately not theirs but his. I happen to think Barr was correct in his exercise of his discretion. See The Indictment of Roger Stone. The sentence recommendation did not have to be followed by the judge, but was. Both recommendations were within technical sentencing guidelines but the prosecutors’ original recommendation was double what the recommendation would usually be for a personal in Stone’s circumstances. The prosecutors were transferred from the Mueller team. Their recommendation was intended to punish Stone for not telling them what they had wanted to hear during the Mueller Investigation, an all too frequent practice of many Federal prosecutors.
The Stone case does touch, however, on the real reason for the increase in intensity and volume of complaints by liberals in politics and the media. Even at his confirmation hearing he made it known that, while he would not interfere with Mueller’s investigation, he would look into what has become known as the “origins” of the “Trump campaign-Russian Collusion” investigation.
Barr has appointed Special Counsel, U.S. Attorneys from around the country, to look into various aspects of public officials’ behavior in 2016 and 2017. Connecticut U.S. Attorney John Durham has been appointed to investigate the “origins” of the “Trump campaign-Russian Collusion” investigation. This will included investigation of the obtaining of FISA warrants to conduct surveillance of the Trump campaign. The DOJ Inspector General (appointed by President Obama) has already released a report of intentional misrepresentations and improper omissions from those applications. See The Inspector General’s Report – A Matter of Intent His jurisdiction is limited, however, to the actions of DOJ employees and does not include prosecution.
A US Attorney from Texas was appointed to investing the use of “unmasking” of Americans (particularly General Flynn) by political appointees, whose conversations with foreign diplomats were recorded in counterintelligence investigations and whose identities are supposed the be kept secret. There are proper reasons such “unmasking” can be done, but doing it for political reasons and leaking the information is improper.
The Attorney General also assigned an outside U.S. Attorney to investigate the prosecution of General Michael Flynn. He found investigatory and prosecutorial misconduct sufficient to warrant the dropping of the charges against Flynn. The judge refused to allow withdrawal of the charges, a decision that was appealed to the D.C. Circuit Court. That Court’s decision stated, “If evidence comes to light calling into question the integrity or purpose of an underlying criminal investigation, the Executive Branch must have the authority to decide that further prosecution is not in the interest of justice.”
The investigations to date have suggested politically motivated investigations and prosecutions during the 2016 campaign and, by career employees, during the first months of the Trump Administration.
For nearly four years Democrats have been fighting a desperate rear-guard action to keep their actions concealed. The lid is about to blow and they want to be able to attack the results by tarring Barr. It won’t work.