When William Barr was first touted as the likely replacement for previous United States Attorney General Jeff Sessions, many onlookers breathed a sigh of relief. Almost two years later, it is apparent that this optimism was unwarranted. Throughout his tenure as Attorney General of the Trump administration, Barr has undermined the integrity and legitimacy of the Department of Justice (DOJ), as well as that of American democracy itself, by protecting president Donald Trump’s political interests at the expense of the American public through repeated violations of institutional rules and norms.
Barr’s predecessor, Jeff Sessions, stepped down from his role in November 2018, following an acrimonious, and very public falling out with the president. After Sessions recused himself from “any existing or future investigations of any matters related in any way to the campaigns for president of the United States,” he became the constant subject of Trump’s ire. It did not matter that various Republican Senators (among whom Susan Collins, Kevin McCarthy, and Jason Chaffetz) had joined their Democratic colleagues in calling for his recusal from the Muller Investigation. Trump, it is generally acknowledged, had appointed Sessions as Attorney General largely as a reward for having been the first Republican Congressman to endorse him in the 2016 presidential election. Consequently, he deemed Sessions’ recusal from the role he had given him to be an intolerable act of disloyalty. Trump would go on to state that appointing Sessions had been his “biggest mistake” in office, and in a 2017 New York Times interview claimed that he would not have appointed Sessions if he had known that he would recuse himself.
In light of the mayhem that had surrounded Sessions’ resignation, Republican and moderate Democratic senators welcomed Barr’s appointment. Unlike Sessions, who had been on the fringes of the Republican Party throughout his career due to his particularly hardline stance on a number of issues, Barr was very much part of the Republican political establishment. He had previously served as Attorney General under the Bush administration, and it was thought that he would bring back order to the DOJ. Speaking in 2019 of his decision to vote to appoint Barr, Democratic Senator Doug Jones stated, “I… thought he would bring this institutional stability to the Department of Justice,” echoing a widespread sentiment at the time of the nomination.
Rather than stabilizing the Department of Justice, Barr has undermined its institutional mission and crippled its legitimacy in the eyes of the American public. The DOJ purports to “enforce the law and defend the interests of the United States according to the law; to ensure public safety against threats foreign and domestic… to seek just punishment for those guilty of unlawful behavior; and to ensure fair and impartial administration of justice for all Americans.” However, throughout his tenure, Barr has principally acted as if he were the president’s personal lawyer rather than the head of an institution meant to safeguard the impartial administration of justice within the United States. Criticism of Barr’s actions cannot be dismissed as emblematic of the “normal” tension between the federal bureaucracy’s need for independence and its function as the instrument of the political leader of the executive branch. Barr’s violations and norm-breaking highlight that his politicization of the DOJ far exceeded the standard, and is undermining democracy.
Most of Barr’s ethical violations were detailed in a 37-page District of Columbia bar complaint filed in July 2020. In this document, 27 distinguished D.C. attorneys, including former bar presidents, detailed “how Barr has continuously violated the D.C. Bar Rules of Professional Conduct prohibiting deceitful and dishonest conduct, interference with the administration of justice, conflicts of interest and a failure to support the Constitution.”
The complaint notes that two days after receiving the Muller Report, which detailed the findings of the investigation that President Trump had so desperately sought to quash, Barr announced in a four page report that Mueller was unable to determine whether Trump attempted to obstruct justice, but himself concluded that “the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense.” Before the Muller report had been made public, Barr thus summarized its contents in a way most favorable to the President and which, according to Muller himself, “did not fully capture the context, nature, and substance of this office’s work and conclusions.” In an ensuing 23-page opinion, U.S. District Court Judge Reggie Walton wrote that Barr’s eminently distorted report, “cause[d] the Court to seriously question whether Attorney General Barr made a calculated attempt to influence public discourse about the Mueller Report in favor of President Trump despite certain findings in the redacted version of the Mueller Report to the contrary.”
Additionally, mere months after this controversy, Barr launched a counter-investigation into the propriety of the FBI investigation of Trump. It is notable that President Trump had previously publicly criticized Jeff Sessions for failing to launch this very same investigation. Moreover, once the Inspector General concluded that there had been a sound basis for the FBI investigation’s initiation, Barr, in a shocking breach of precedent, publicly criticized the Inspector General’s findings in a televised interview. In that same interview, and a subsequent one given just a few weeks later, Barr suggested the possible prosecution of FBI agents who had conducted the investigation, in a flagrant infraction of DOJ rules, which “prohibit comment by prosecutors on ‘the existence of an ongoing [criminal] investigation’ or on ‘its nature or progress before charges are publicly filed.’”
Most recently, and arguably most grievously, Barr violated yet another institutional norm in a move which legitimated the president’s unsubstantiated claims about voter fraud in the 2020 election. Even though no credible evidence of voter fraud has thus far been found, in a written memo to DOJ officials, Barr sanctioned investigations into alleged, “apparently-credible” instances of voter fraud. In so doing, Barr has broken with long-standing DOJ policy of not conducting overt investigations until after the outcome of the election allegedly affected by the fraud is certified. Although such change in DOJ practice, in abstraction, may appear to be motivated by a legitimate desire to “improve” the functioning of Democracy, Ozan Varol, in Stealth Authoritarianism makes the case that, in the modern era, most measures undertaken to undermine democracy tend to be cloaked in “a veneer of legitimacy.” [1] However, the fact that, even months prior to election night, Barr was already echoing the president’s misleading claims about the dangers of voter-fraud posed by mail-in ballots, demonstrates that this change in policy was not motivated by legitimate concerns about the health of American democracy, but rather, as Varol predicts, as an attempt to entrench the incumbent’s power by seeking to disenfranchise a portion of the population unfavorable to him. [2]
To conclude then, it has become clear that, in multiple instances, Attorney General William Barr has violated institutional norms and procedures in manners which were almost certainly meant to benefit the U.S. President Donald Trump. Scholars such as Ellen Lust and David Waldner have convincingly argued that democratic backsliding principally consists of “changes that negatively affect competitive elections, liberties, and accountability. [3] Accountability as defined by them consists of two principal components: answerability, or the obligation of public officials to provide information about their activities and to justify them, and punishment, or the capacity to impose negative sanctions on officeholders who violate certain rules of conduct. [4] By utilizing his role as head of the DOJ to protect president Trump’s political interests, Barr has effectively reduced the ability of American institutions to punish Trump, most notably by skewing information regarding his misconduct detailed in the Muller report. Additionally, by validating his unsubstantiated claims about voter fraud, Barr has moreover undermined the principle of answerability by himself providing a justification for the president’s actions rather than questioning it. Since Barr’s tenure as Attorney General has thus reduced president Trump’s accountability to American institutions and the American public, his actions have precipitated democratic erosion.
References:
- Ozan Varol, “Stealth Authoritarianism,” Iowa Law Review 2015, 1677.
- Ozan Varol, “Stealth Authoritarianism,” Iowa Law Review 2015, 1702-1705.
- Ellen Lust and David Waldner, Unwelcome Change: Understanding, Evaluating, and Extending Theories of Democratic Backsliding, 2015. Washington, DC: USAID, 3.
- Ellen Lust and David Waldner, Unwelcome Change: Understanding, Evaluating, and Extending Theories of Democratic Backsliding, 2015. Washington, DC: USAID, 3.
Andrew, this is a very insightful piece on how A.G. Barr has violated numerous institutional norms in his role at the DOJ. One thing I would want to push back on is the idea that Barr was viewed as a “safe pick” when appointed. Barr may have been part of the conservative legal establishment and held the Attorney General position in the ‘90s, but prior to his appointment he had made several alarming arguments in favor of expansive executive authority that were red flags to many Democrats and institutionalists. Notably, he was outspoken in criticizing Robert Mueller for hiring prosecutors with a history of Democratic political donations, and had even legitimized Trump’s calls to investigate political opponents, particularly Hillary Clinton. I strongly agree with your assessment that many of Barr’s actions have been blatantly to Trump’s benefit, at the expense of political independence and institutional norms, but I would not go as far as to say that these actions were unexpected given Barr’s prior history of arguing for unprecedented executive power. Hopefully Biden’s attorney general can bring political independence back to the DOJ and rebuild many of the institution’s damaged norms.