Discover more from Public Notice
Bill Barr, Trump's legal enabler, needs to be investigated
For more than 30 years, the former AG subverted the Constitution to protect his bosses.
Before taking office as Donald Trump’s attorney general in February 2019, William Barr made his agenda clear: To use the Department of Justice as a tool to protect the president and attack his enemies.
Over the next nearly two years, Barr did just that, corrupting the nation’s leading law enforcement agency to a degree unprecedented since the Nixon administration, both by protecting Trump and his cronies, while pursuing Trump’s claim that enemies embedded in the “deep state” were out to get him.
Through its new “weaponization of government” subcommittee, the GOP-controlled House is preparing to pursue the same conspiracy theories that preoccupied Barr and Trump, as the below clip from Chuck Grassley’s opening statement yesterday before the subcommittee illustrates.
This makes it all the more essential that the Senate, and the DOJ itself, conduct a comprehensive inquiry into Barr’s actual weaponization of the justice system for political ends.
Barr announces his agenda to turn the DOJ into a political weapon for Trump
The roots of Barr’s agenda date back to his tenure in the George H.W. Bush administration, during which he first served as attorney general. Barr was an early proponent of what became known as the “unitary executive” doctrine, which questioned efforts to limit presidential power in the wake of Watergate.
Barr was a ruthless and effective political actor, focused on protecting Bush from potential peril. He facilitated Bush’s pardons, immediately before leaving office, of six individuals who had been convicted or charged by the Iran-Contra Independent Counsel, including former Secretary of Defense Casper Weinberger, thereby truncating a potential criminal probe into Bush’s own conduct.
Public Notice is entirely funded by readers and made possible by paid subscribers. To support this work, please click the button below and sign up to get our coverage of politics and media directly in your inbox three times a week.
When Trump took office, Barr became a prominent public defender of the president’s efforts to forestall investigations of himself, and to instigate investigations of his political opponents. Barr defended Trump’s firing of FBI Director James Comey after his announcement that the bureau was investigating Russian interference in the 2016 election. Barr also publicly advocated for a DOJ investigation into the Steve Bannon-sponsored conspiracy theory that Hillary Clinton corruptly facilitated a Russian company’s purchase of US uranium assets, contending that there was “nothing inherently wrong” with Trump pressing for the investigation of a political opponent.
Barr’s statements must have been music to the ears of Trump, who pushed his first attorney general, Jeff Sessions, out of office because he had recused himself from the Russia investigation, thereby paving the way for deputy attorney general Rod Rosenstein’s appointment of Special Counsel Robert Mueller after Trump fired Comey.
After Trump nominated Barr as Sessions’s replacement, it came to light that Barr had taken even more extreme positions in a confidential memo he sent to DOJ officials. In the memo, Barr argued that Rosenstein should bar Mueller from investigating Trump’s firing of Comey. Barr also contended that Trump had an “illimitable” executive authority to “start or stop” law enforcement investigations. In this regard, Barr suggested that Trump could properly choose to order the DOJ to commence investigations of potential misconduct by his enemies, while putting the brakes on investigations of his allies.
As it turned out, Barr’s memorandum proved to be a blueprint for his second term as the nation’s attorney general.
Barr protects Trump by lying about Mueller’s findings
Barr’s scheme to turn the DOJ into a Trump protection racket began almost as soon as he took office. In March 2019, Barr released a letter purporting to recount the findings of the then still secret Mueller report regarding Russia’s interference in the 2016 election, as well as Trump’s own efforts to interfere with the Mueller and FBI investigations.
In his letter, Barr purported to exonerate Trump of liability for obstruction of justice. Barr argued that Trump lacked the “corrupt intent” required to merit conviction for such crimes.
But as the public learned only weeks later — when a redacted version of the Mueller report was belatedly released — there was actually ample evidence that Trump had engaged in criminal conduct. Among other things, in a Nixonian move, Trump had unsuccessfully pressured DOJ officials to fire Mueller (just as he had earlier fired Comey), in an effort to shut down an investigation of his own conduct.
Barr (like Mueller) believed that Trump was immune from indictment while in office, regardless of whether he had actually committed a crime, thus making any determination of whether his conduct merited charges unnecessary. Barr nonetheless commissioned DOJ lawyers to prepare a memo that amounted to a set of legal talking points supporting Barr’s public contentions that Trump had not acted criminally, in a transparent effort to forestall an impeachment proceeding in Congress.
Years later, federal courts ordered the DOJ to release the memo, reasoning that the DOJ had inaccurately described the document as a product of the DOJ’s law enforcement decision-making process. Another judge separately decried Barr’s lack of candor and truthfulness in connection with the DOJ’s redaction of portions of Mueller’s report.
While the full scope of Barr’s scheme to mislead the nation about Mueller’s findings ultimately came to light, Barr did play a key role in the successful forestalling of a congressional effort to impeach the president for his illegal actions.
Barr’s scheme to protect Trump’s cronies
Barr’s efforts were not limited to protecting Trump; he also repeatedly employed the DOJ to protect Trump’s cronies.
First, in February 2020, Barr set out to protect Roger Stone, Trump’s long-time associate, who had been convicted of witness tampering, lying to Congress, and other charges brought by Mueller’s team. The case arose from Stone’s effort to frustrate Mueller’s investigation of Stone’s possible role as a go-between for the Trump campaign and Wikileaks’ Julian Assange, who published many of the documents Russia stole from the Democratic National Committee.
Stone was convicted after prosecutors provided the jury with overwhelming evidence, including of Stone’s egregious acts of witness intimidation. The DOJ thereafter, in normal course, filed a memo asking the court to sentence Stone to nine years in prison.
But soon after Trump issued a tweet complaining about the DOJ’s sentencing request, Barr intervened, causing the DOJ to withdraw it. His unprecedented move led four members of the prosecution team to withdraw, and one of them resign from the DOJ entirely.
Barr’s actions did not prevent Stone from receiving a lengthy prison term. Trump then intervened directly, first by commuting Stone’s sentence and, ultimately, by pardoning Stone.
But Barr’s brazen use of the DOJ itself as a means of undermining the justice system had set a pattern.
Second, in May 2020, Barr’s DOJ sought the dismissal of criminal charges against former Trump National Security Advisor Michael Flynn. Flynn stood charged with making false statements to the FBI, having brazenly lied about taped conversations he held with the Russian ambassador to the US before Trump took office, during which Flynn indicated that Trump was inclined to soften or eliminate sanctions President Obama had imposed on Russia in response to its election interference.
In the face of the overwhelming evidence, Flynn had pled guilty, and agreed to cooperate with the Mueller inquiry (an agreement he ultimately reneged upon). But a prosecutor installed by Barr filed a motion to dismiss the indictment, contending — based on a strikingly dubious legal theory — that Flynn’s baldfaced lies to the FBI did not merit prosecution after all. Barr’s efforts to avoid a searching judicial inquiry into the rationale for the dismissal motion failed at the appellate level. As the proceedings moved forward, and potentially embarrassing evidence began to be released, Trump pardoned Flynn.
Finally, and perhaps most audaciously, in June 2020, Barr removed one of the DOJ’s most prominent prosecutors, US Attorney for the Southern District of New York Jeffrey Berman, in a transparent effort to frustrate investigations of persons close, or potentially dangerous to, Trump — likely including Trump’s closest crony (and former US Attorney) Rudy Giuliani. Barr tried to handpick Berman’s successor. That effort failed, but it again demonstrated that Barr was willing to do whatever it took to keep Trump’s inner circle above the law.
Barr tries to cover up Trump’s Ukraine extortion scheme
One of Barr’s most outrageous efforts to protect Trump remains the least explored: The attorney general’s elaborate 2019 scheme to employ the DOJ as a tool to conceal from Congress and the public Trump’s effort to extort Ukrainian President Zelenskyy.
As part of that scheme, the DOJ instructed then-acting Director of National Intelligence Joseph Maguire to violate his duty to turn over to Congress a whistleblower’s complaint recounting Trump’s demand — during his “perfect” phone call with Zelenskyy — that Ukraine announce a bogus “investigation” of Joe Biden in return for urgently needed weapons to defend Ukraine against attacks by Russian proxy forces.
As later came to light, the DOJ’s once respected Office of Legal Counsel had prepared a transparently defective opinion declaring that the DNI had no obligation to share the whistleblower’s complaint with Congress, and asserting that the DOJ’s criminal division had exclusive jurisdiction over the matter. Criminal division prosecutors then conducted a cursory “review” and closed the file.
While Barr’s coverup effort ultimately failed, like some other Barr schemes, it raised the obvious question whether there was any limit to Barr’s willingness to misuse his office, and with it the law enforcement instruments of the DOJ, to aid Trump.
Barr manages the “investigation” of Trump’s conspiracy theories
In the “audition” memo he penned before Trump nominated him to serve as AG, Barr contended that the Constitution not only broadly empowers a president to frustrate investigations of his own misconduct and that of his associates, but also provides the nation’s chief executive with broad leeway to direct federal law enforcement authorities to pursue the president’s political enemies. And Barr did just that for Trump through the John Durham “investigation.”
As detailed in a recent New York Times report, building on earlier reporting by the Hartford Courant, beginning in the spring of 2019, Barr enlisted Durham, then the Connecticut US Attorney, to engage in a wide ranging “investigation” into the Justice Department’s probe of Russia’s interference in the 2016 election, in what amounted to an even more audacious chapter in his scheme to discredit Robert Mueller’s findings.
As detailed in the Times’s report, Barr was motivated by a conspiracy theory positing that “deep state” actors within US Intelligence or law enforcement agencies were behind the FBI’s — and Mueller’s — investigations of Russia’s election interference, as well as its potential links to Trump’s campaign. Barr was personally, and deeply, involved in Durham’s effort to prove this thesis, which ultimately, and spectacularly, failed.
The most disturbing new revelation in the recent Times article is that 2019 reporting that Durham’s investigation had become a “criminal” probe was highly inaccurate. While Durham’s investigation indeed became “criminal” in nature at that time, the step did not actually relate to the “deep state” claims Durham was appointed to investigate. Rather, Barr had (curiously) assigned Durham to “investigate” allegations of potential criminal conduct involving Trump or his associates.
According to Barr, Durham, however, concluded that the allegations — the nature of which remain secret — were without merit.
It is unclear how the misleading “leak,” falsely implying that Durham had made progress in substantiating Trump’s conspiracy theory, made its way to multiple journalists; but one thing is clear, Barr did nothing to disabuse the public from the inaccurate reports — published just as Trump’s reelection campaign was heating up — that Durham’s investigation was actually bearing fruit.
Ultimately, in a striking echo of other Barr schemes, several prosecutors left Durham’s team after being disturbed by his politicized tactics.
After Trump left office, the Barr/Durham investigation culminated in two failed prosecutions of fringe players, and no proof of the underlying conspiracy theory. In the meantime, however, Barr had succeeded in creating a public impression that Trump’s baroque claims of a deep state plot actually had merit. Indeed, these fictional claims continue to be pursued, including by the new House “weaponization of government” subcommittee.
Yet, as House member, and constitutional scholar, Jamie Raskin observed during a hearing of the subcommittee yesterday, it is the Durham investigation itself that is a classic example of such weaponization.
Barr bolsters Trump’s election conspiracism, and then flees the scene
Barr resigned on December 15, 2020, in a letter showering Trump with praise. But soon thereafter, Barr began letting it be known that he objected to Trump’s election fraud claims, and later began to publicly, and harshly, criticize his former boss, whom he has variously accused of “extortion” and “sabotage.”
Yet these accusations flew in the face of Barr’s own aggressive efforts to bolster Trump’s election conspiracism before, during, and immediately after the election.
During the fall of 2020, for instance, Barr did the cable news rounds and pontificated about the supposed dangers of mail-in ballots and suggested — as Trump did before and after the election — that large cities (which happen to have large numbers of non-white citizens) are rife with voting fraud.
Immediately before election day, Barr’s DOJ announced what it later admitted to be a meritless investigation of supposed misconduct involving absentee military ballots in Pennsylvania. Then, days after the election, Barr gave federal prosecutors approval to investigate “vote tabulation irregularities” — echoing Trump’s stolen election claims, and violating longstanding DOJ policies. Those policies are intended to prevent the DOJ from contributing to the undermining of public confidence in the electoral system, which (of course) was just what Trump was trying to accomplish.
By resigning in mid-December, Barr avoided being in office when, only a few weeks later, the conspiracism he had enabled culminated in the attack on the Capitol.
There needs to be a full accounting of Barr’s abuses of power
There is an urgent need for Congress to investigate Barr’s actual weaponization of the DOJ, and not merely to complete the historical record. Just as in the wake of the Watergate era
— the last time the nation witnessed such a comprehensive effort to undermine the nation’s law enforcement institutions — a full accounting of the misuse of law enforcement agencies that occurred during the Trump presidency is needed in order to determine what reforms are required to prevent such events from occurring again.
Some Democratic House members have called for the DOJ’s inspector general to commence a probe, which is certainly in order. But any investigation of Barr’s misconduct will, by definition, also be an investigation of the DOJ; and no institution can be relied upon to conduct a neutral and comprehensive investigation of itself. Therefore, the Senate, which now has a Democratic majority, with the authority to issue subpoenas and compel the production of documents, should conduct its own inquiry.
Senate Judiciary Committee Chairman Dick Durbin has announced that his committee will be undertaking an investigation. The question is whether the Senate inquiry will have the proper scope — it should encompass the entirety of Barr’s wide-ranging misconduct — as well as whether it will be as searching as past, successful Senate inquiries, including the Senate Watergate investigation.
The recent, and notably successful, House January 6 investigation demonstrates that Congress remains capable of such inquiries. Those who recognize the importance of an effective DOJ, free of politically influenced misconduct, must hope that Durbin and his colleagues undertake their investigation of Barr’s repugnant legacy diligently and without fear or favor.
That’s it for this week
We’ll be back with more Monday. In the meantime, have a great weekend.