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William Barr’s Slick Performance Shouldn’t Fool Anyone

He needs to recuse from the Mueller probe, argues Brennan Center fellow Andrew Cohen.

January 15, 2019

Cross-posted from Slate.

William Barr, the former and likely future attorney general, the wizened Washington pro, the epic pro-pardon guy, came to Capitol Hill on Tuesday and used his vast repertoire of pretty words to try to reassure the Senate Judiciary Committee, and an anxious nation, that he will be “independent” and principled if and when he takes over the Justice Department again. It was a bravura performance. Nothing fancy. Nothing alarming. Somber. Sober. But nothing he said—and nothing he can say now—should spare Barr from being forced to recuse himself from oversight of the Mueller investigation after the stunt he pulled last summer with a dubious memo questioning that probe’s power to investigate potential obstruction of justice by the president.

In fact, if you take Barr at his word based on his opening statement, and his early responses to questions from the senators, he can’t possibly be faithful both to the rule of law and to this president. There is no way to square his lofty rhetoric about keeping the Justice Department away from partisanship with Trump’s previous abuses of power to try to defend himself from the consequences of his serial wrongdoing. Something’s going to have to give. I think something already may have. Barr said Tuesday that he took the job because he’s “in a position in life to do the right thing” and not worry about the consequences. Based on his previous actions and early answers, it appears as though he accepted it to help enforce the president’s will and agenda, which in many material ways mirrors his own. “I’d like to help,” he told Sen. John Cornyn, R-Texas.

Tuesday morning’s confirmation hearing session then confirmed mostly that these ritualized public displays of bloviating by our senators aren’t worth two dead flies. Republicans tried initially to portray Barr as some welcome relic from the past, an adult in the room, a man with the spine necessary to push back against the president who nominated him. At other times, they didn’t even bother to pretend to make the hearing about the nominee. In the first five minutes of questioning, for example, committee Chairman Lindsey Graham, the South Carolina Republican, used Barr as a foil to talk about supposed FBI overreach and the Page/Strzok text messages. To Graham, it’s clear, the problem isn’t that the president of the United States may actually be a Russian asset. It’s that the FBI had the temerity to inquire about it.

Democrats for their part tried to portray the nominee as a principled partisan who sees in Trump and this administration an opportunity to promote anew from a top spot the same alarming legal views that Barr has long held. And in some ways the Democrats, too, used Barr as a foil to make larger political points. About Mueller’s integrity. About the lawlessness of the Trump administration. About conflicts of interest within the Justice Department. There were fewer questions about recusal, at least at the start, than I expected there to be. When it came up, Barr refused to offer the same assurances that previous Attorney General Jeff Sessions had in his confirmation hearings that he would recuse himself from relevant probes if career ethics officials suggested it. This raised the eyebrows of Democrats on the committee.

Barr sat in the hot seat Tuesday knowing he had a low bar to overcome. The Senate leans Republican 53–47, and there is no reason, today anyway, to believe that he has lost or will lose any GOP votes. The Republicans inclined to vote for him now can cite his opening statement, with all its hosannas to the “rule of law” and “integrity” and character, as proof that Barr will stand up to Trump. But what, precisely, in Barr’s past experience tells us that this is so? That he’s an “institutionalist” who cherishes the pre-Trump traditions of the Justice Department? There is far more evidence, from Barr’s decades of public and private work, that tells us he’ll be largely deferential to Trump’s whims and caprices. It’s clear to all that Barr is deeply entrenched as a conservative Republican in the political and legal establishment of Washington, and he acknowledged that he has seen part of his role in the past as supporting the Republican agenda. This despite his pledge, during questioning by Sen. Richard Durbin, D-Illinois, in which Barr said: “I will not be bullied.”

This is where it’s good to return to his now-infamous Mueller memo. Published in June, after there was public evidence of collusion between Team Trump and the Russians, Barr’s memo criticized the scope of the Russia investigation and urged the president to take a particularly aggressive posture in defending himself from Robert Mueller. That alone doesn’t disqualify Barr from being the next U.S. attorney general, and Democrats shouldn’t wish for that to be so. There are plenty of people Trump would be inclined to choose instead of Barr who would present a clearer and more present danger to the rule of law than Barr might. And there are plenty of other legitimate reasons to question whether Barr is the right person for the job.

But when it comes to the Russia investigation, which will be the single most important part of Barr’s portfolio in the months to come, the memo is patently disqualifying. It’s not a close call, and in this case, as in most cases, it’s important to focus on context. In his prepared remarks, and again on Tuesday, Barr tried to discount the range and significance of the memo even though we are talking about, after all, a president under credible investigation for criminal conduct. Reasonable people can and have argued over what the memo means, and what it doesn’t mean, and it’s in Barr’s interest to argue, now, that his analysis was limited and not intended to cause trouble for Mueller.

Except that doesn’t ring true. Barr didn’t write the memo as some sort of academic exercise or to satisfy his own vanity. He didn’t write it at the request of a newspaper, or magazine, or law review. He says he wrote it because he felt he had something important to say, to DOJ and White House officials, about how the Mueller investigation was unfolding. He wrote it as a partisan brief, a partisan affair, to curry favor with the White House, and we know that because we now know that Barr made sure the president and his men were made aware of what he had written. Barr knew that his expansive view of presidential power would delight the most authoritarian president ever. It was a job application, no matter how many times he denied it on Tuesday. Maybe for White House counsel. Maybe for attorney general. Maybe for the U.S. Supreme Court.

Most of the attention during the hearing is and will continue be on Barr’s view toward Mueller, and in an ironic way that will shield from more public view the many other substantive reasons why Barr will be a disaster at the Justice Department. Barr helped invent mass incarceration, for example. Are we really supposed to believe he’s going to help reverse it now in his charge of implementing the brand-new bipartisan criminal justice reform law? Why should anyone believe he is going to turn the department again into an institution that fights for and not against voting rights? How is Barr’s view of presidential power going to translate into checks on the administration’s immoral and disastrous immigration policy? What about the Trump family’s graft and the Emoluments Clause? What about how Barr might defend a president who has claimed the authority to usurp the Constitution’s clear delineation of powers by claiming a phony national emergency, another query he ducked during the early questioning? And so on.

You can believe what Barr wrote and said this week with his nomination on the line, or you can believe what he wrote last summer about Robert Mueller and the accountability of presidents when he was clearly auditioning to be the nation’s chief law enforcement official. You can’t believe both. I choose to believe that the candid Barr was the one who wrote that memo and that means the Justice Department will be turned over soon to a man who doesn’t need to be convinced by a corrupt White House that presidents have sweeping power. Barr says he’ll allow Mueller to finish his work. That doesn’t mean he won’t try to limit or undermine Mueller even if the two are longtime friends whose wives were said to attend Bible study together. This is Trump’s Washington, and Trump’s Republican Party. William Barr is clearly on Trump’s team. 

(Image: Alex Wong/Getty)

The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.