If I ever have to stand trial, here are the conditions I would like.
After the police and the prosecutors have done their job and gathered the evidence and made their case, I’d like my lawyer—handpicked for his expertise in this area—to go through their brief and take a big fat black Sharpie to anything he finds objectionable.
I’d like it if he had total authority to do that and didn’t really have to explain or defend his decisions to anyone.
I’d like it if had a really impressive blue chip résumé and a lot of experience in covering up the kind of crimes in question.
I’d like it if the jury was not allowed to see the case against me until after my guy had blacked out all the incriminating evidence to his satisfaction—which is to say, to my satisfaction, except even better because he’s a lawyer and knows the nuances, which I don’t.
I’d like it if he had three or four weeks or so to do that, while I commanded a gargantuan public pulpit from which to proclaim that I had already been exonerated.
I’d like it if the large chunks of the press obediently reported and repeated my claims.
And finally, I’d like it if most people didn’t really think any of this was weird, and were unbothered that I was able to engineer it that way.
That sounds like a pretty good arrangement, doesn’t it?
Bill Barr is the Attorney General that Donald Trump always dreamed of.
In 21 months of public humiliating his previous AG, Jeff Sessions, Trump made it clear that what he wanted in that job was a Mafia-style consigliere, an attack dog who would protect and defend him and persecute his foes with the full force of the Department of Justice, in keeping with Trump’s vision of the entire DOJ as his personal Schutzstaffel.
It’s a perfect example—maybe the signature one—of Trump’s fundamental misunderstanding of the most basic principles of democracy and the rule of law.
(And yes, I’m using both Mafia and Nazi imagery in the same sentence. Let me know which is more egregious: the “hysterical” analogies or the mixed metaphor.)
Trump famously, and falsely, characterized Eric Holder as having served that “attack dog” role for Barack Obama. The guy he really wants in the job, of course, is Roy Cohn, and should Barr leave the gig at some point, I would not be surprised to open my web browser and read that Trump has proposed exhuming Cohn’s corpse and nominating his rotted bones for the position.
We’ve heard a lot—even from progressive pundits on MSNBC—about how Barr is an honorable public servant, with integrity and respect for the rule of law, an eminence grise from the days of the “old school GOP.” Yeah, that’s the old school GOP that gave us Iran/contra and secret sales of WMD to Saddam Hussein, which Barr actively covered up during his first tour as AG under Bush 41. Bush pardoned six underlings implicated in Iran/contra, including his Secretary of Defense Caspar Weinberger, with Barr providing legal cover and help in shutting down an investigation by independent counsel Lawrence Walsh. It was behavior so egregious that William Safire—the former Nixon speechwriter turned conservative columnist (!)—nicknamed him the “Coverup General,” and called him that in print.
So I am unmoved by the hosannas attesting to what a fine and honorable man Bill Barr is. It strikes me as a farce, and a measure of how low the sliding scale had slid when it comes to “public service.” On the contrary, he seems to be a veteran of exactly this kind of unethical bullshit, which is surely why he got the job with Trump in the first place. As Thom Hartmann wrote in reporting Barr’s ugly backstory for Salon, “History shows that when a Republican president is in serious legal trouble, Bill Barr is the go-to guy.”
It’s an open secret that Barr auditioned for an encore in the Trump administration with an unsolicited 19-page attack on the very legitimacy of the special counsel (almost five times the length of his summary/non-summary of Mueller’s report), which he sent to Deputy Attorney General Rod Rosenstein and the head of the DOJ’s Office of Legal Counsel and even discussed personally with Trump (double !!). In it, he called the SCO’s whole obstruction inquiry “fatally misconceived,” in keeping with his well-known, expansive view of executive power (in a word: unfettered), including the eye-popping, anti-democratic belief that a President by definition cannot obstruct justice.
Neal Katyal, the former acting US Solicitor General who helped draft the current special counsel rules (and like the late Mr. Safire, another self-identified conservative), wrote that Barr’s unsolicited memo reflected “bizarre legal views,” and “should be understood for what it is, a badly argued attempt to put presidents above the law.”
In other words, Barr seems to have been hired specifically because he offered the implicit (if not explicit) promise that he would support an imperial presidency, ensure that Trump would never be charged with obstruction, and would bury the results of the Mueller probe.
Now he appears to be doing precisely that, in plain sight.
RETURN OF THE HANGING CHAD
For all the grief and ridicule the White House suffered for being unprepared to counter the Mueller report, it turns out that they actually had a pretty good strategy—one that didn’t hinge on rebutting it at all, but simply on blunting its impact by misdirection and misrepresentation. It may not be working quite as well as they hoped, but it’s still a classic of distraction, disinformation, and dishonesty.
First they succeeded in keeping the human perjury machine that is Donald Trump from being interviewed face to face by the special counsel.
Then they got Barr installed as AG—a man cloaked in the veneer of Gipper-era respectability, but with vast experience in covering up presidential crimes, and an avowed animus to the whole special counsel probe, especially its obstruction piece. This step was essential, since the outcry would have been deafening—even for a Teflon presidency like Trump’s—if an obviously unqualified bozo like Matt Whitaker was still in that job and doing the things Barr is doing. That fact was apparent to a number of observers during Barr’s confirmation hearings, but got little air time. (Behold the value of a news cycle tuned to the attention span of a goldfish, lurching from crisis to crisis in a permanent state of emergency cultivated by and beneficial to the crooks atop our kakistocracy.)
Barr’s opportunity to get the first (and thus far only) look at the final report then enabled him to cherrypick two sentence fragments—not even full sentences, and totally decontextualized—and spin them as exoneration for the president on one count, while blithely rendering a snap decision on specious grounds on the other count—in 48 short hours—one that the meticulous Mr. Mueller deemed so delicate and complex that he pointedly declined to render a judgment at all. (I know that Barr and Rosenstein supposedly had a couple of weeks’ advance notice that Mueller would not charge Trump with obstruction, giving them more than 48 hours to prepare their pre-judgment on his innocence, but that hardly makes it much better.)
Then the White House and its amen corner began pounding that narrative in the press and public while Barr and his people are busy redacting the report of anything embarrassing to Donald Trump.
And up next, they will release this heavily expurgated version, and act as if they have been totally transparent.
It’s a plan that is at once audacious in its bald-faced contempt for democracy and the rule of law, and yet sufficiently slick that they just might get away with it, especially with a base that—as we’ve already painfully established—would blithely excuse Trump even of cold blooded murder in the middle of Fifth Avenue.
The comparison has been drawn between this strategy and Florida in the 2000 election, where the GOP tenaciously staked out its position—“We won!”—and hammered it home in the press and the courts, while the Democrats dithered and (to their credit) worried about the rule of law and setting a dangerous precedent by refusing to challenge the vote count, and (to their detriment) basically failed to realize—butterknife-to-a-gunfight like—that we had entered a whole new era of authoritarian politics.
But today’s Democratic Party seems to have learned that lesson, as Jerry Nadler is having none of it, and apparently neither are the bulk of the American people.
BARR TAKES OFF FROM THE TOP OF THE KEY
To that end, I have no confidence that this bowdlerized report will reveal much of anything. Correctly, Rep. Nadler and other Democratic Congressional leaders are insisting on seeing the full, unredacted report from the special counsel, as they have both a right and a duty to do so as a co-equal branch of government charged with acting as a check on the executive.
It appears that this was Robert Mueller’s intent in declining to draw an conclusion on obstruction: to provide the pertinent information to Congress, which constitutionally is the appropriate body to act on it, given the DOJ policy that a sitting president cannot be indicted.
It’s doubtful that his intent was to turn it over to Bill Barr so that he could casually and unilaterally decide that Donald Trump should go scot free.
Former assistant US Attorney General and Duke law professor Walter Dellinger suggests that in declining to make a determination on obstruction—while explicitly saying he was not exonerating the president—the special counsel was attempting to follow the example of Watergate special prosecutor Leon Jaworski:
Mueller’s office may have properly drafted a detailed and damning account of Trump’s obstruction of justice and simply cast it as a set of facts, a road map for the analysts who must decide what to do about it: members of Congress….What Mueller may not have anticipated (and perhaps could not have avoided) is that Barr would improperly declare the president’s guilt or innocence….
Congressional review is especially appropriate, because the worst offenses may not be criminal, and may demand something broader than a legalistic focus. It would be a grave offense for a presidential candidate secretly to be indebted to a foreign power and to lie about that relationship, for instance. But nothing in the criminal code forbids it. This is why we have the phrase “high crimes and misdemeanors.”
Count Preet Bharara, the former US Attorney for the SDNY, as another who thinks Mueller was trying to tee up Congress with a no-look, behind-the-back pass, but didn’t anticipate Barr intercepting it and taking it the other way for a backboard-shattering tomahawk dunk. (Bill’s pretty nimble for a guy his size.) Here’s Preet, speaking to Crooked Media:
It didn’t much matter what the facts would show, and so in the absence of Bob Mueller making a determination about whether or not a crime was committed, Bill Barr right on cue sort of swoops in to say, “No crime here”….
Former US Attorney and deputy assistant Attorney General Harry Litman—now a law professor at UCLA—also agrees, emphasizing the egregiousness of Barr’s insertion of himself in the process:
I am unaware of a single instance in my years in the Justice Department in which a final prosecutorial decision was left to the attorney general without so much as a recommendation from the actual prosecutor. We need to know the answer. If, say, Mueller’s reason for refusing to exercise this judgment was that he believed the involvement of the president made the question a political one for Congress, Barr’s move would represent a rank overruling of a key conclusion of Mueller, as well as a power grab from Congress.
So what of Barr’s hamhanded conclusion that there was no obstruction of justice, despite all the evidence in plain view, not to mention anything additional the special counsel uncovered, to which he apparently alludes in his report?
I went to law school for exactly—let me count them—zero days, but even I know that there need not be an underlying crime for obstruction to take place. (Most obviously, because successful obstruction might prevent the underlying crime from being proven, or evidence of it even discovered.) Indeed, in their varying capacities as prosecutors and DOJ officials, all these jurists—Barr, Rosenstein, Giuliani—have overseen the prosecution of plenty of defendants for obstruction, irrespective of the crime they were covering up, or lack thereof, or lack of proof thereof.
I also didn’t get hired to teach constitutional law at Harvard (geez, you wear Crocs to one interview and they never let you forget it), but I do have common sense enough to know that the Framers didn’t intend to put the president above the law by making it impossible by definition for him or her to obstruct justice. In fact, if I’m not mistaken, they fought a whole war to free us from precisely that sort of governance.
Barr surely knows this too, yet miraculously promulgated the opposite view in his shameful summary of the Mueller report. (You know, the one he later backpedaled and said wasn’t a summary at all, just a quick Post-It note of its “principal conclusions.”) Somehow I doubt he would hew to that same standard were a Democratic president under this kind of investigation. Just a hunch.
And forgive me for noting that there are underlying crimes. Here’s Chairman Nadler himself, in a Washington Post op-ed:
Did the attorney general forget that the special counsel indicted 37 other people, including the president’s campaign chairman, deputy campaign chairman and former national security adviser, for various crimes, including conspiracy against the United States? Did he lose track of his own prosecutors, who effectively named the president as an unindicted co-conspirator in the Southern District of New York?
Hence the GOP’s desire to keep the actual Mueller report hidden for as long and in as much detail as possible. If it really exonerated Trump, it would already be online in full, and in the bookstores, and in a special edition of the Wall Street Journal, Washington Times, and WorldNetDaily.
COVER AND CONCEALMENT
Since issuing his summary, Barr has been on the defensive, putting out a clarification (that may only have muddied matters more), announcing a timetable (albeit rather long) for the release of the Mueller report itself (albeit heavily expurgated), all of which suggests that he—and the White House—may have overestimated their ability to pull a fast one on the American people. As Dana Milbank notes in the Washington Post: “Suppose a special prosecutor in the Obama administration had filed a 400-page report about crimes possibly committed by President Barack Obama, and Obama appointees sat on the report while offering a ‘nothing to see here’ summary.”
(Trump himself has, with the utter predictability of a Swiss watch, flip flopped on his original bluff assertion that the public ought to see the whole report.)
It goes without saying that Congress MUST see the unredacted report, and the American people should see as much of it as possible within the bounds of legality and security considerations. I know it takes time to declassify material, and that there are other legal issues as well. My concern, of course, is that the redaction process is being abused; employed as a fig leaf for partisan interference and obfuscation of information that both Congress and the American public have a right to know. It wouldn’t be the first time. Chairman Nadler again:
The entire reason for appointing the special counsel was to protect the investigation from political influence. By offering us his version of events in lieu of the report, the attorney general, a recent political appointee, undermines the work and the integrity of his department. He also denies the public the transparency it deserves. We require the full report—the special counsel’s words, not the attorney general’s summary or a redacted version.
We require the report, first, because Congress, not the attorney general, has a duty under the Constitution to determine whether wrongdoing has occurred. The special counsel declined to make a “traditional prosecutorial judgment” on the question of obstruction, but it is not the attorney general’s job to step in and substitute his judgment for the special counsel’s.
That responsibility falls to Congress — and specifically to the House Judiciary Committee—as it has in every similar investigation in modern history. The attorney general’s recent proposal to redact the special counsel’s report before we receive it is unprecedented. We require the evidence, not whatever remains after the report has been filtered by the president’s political appointee.
And we’re now being told that even some members of Mueller’s team— heretofore Sphinx-like—have broken their silence for the first time to complain that Barr is misrepresenting their findings and downplaying the amount of information therein that is damaging to Trump.
The vote by the House Judiciary Committee, led by Chairman Nadler, to subpoena the full, unredacted report with all its appendices and underlying data, is a step in the right direction. That Barr, the DOJ, the GOP, and the White House intend to fight it tells you all you need to know. Even more telling, every single Republican on that committee—all 17 of them—voted against issuing that subpoena….this after those very same Republicans joined in a unanimous 420-0 House vote the previous week to endorse the release of the full report. Was that just a charade?
Forget I asked.
The stink of coverup is growing, and the longer the AG and White House delay and demur, the more suspicious it gets. Dellinger again:
There was a time when it was thought that firing Mueller would lead to mass demonstrations nationwide. Prominent lawyers quietly discussed the necessity of being arrested for chaining themselves to the doors of the Justice Department if it came to that. Would that outcome really be so different from one in which the release of the report is indefinitely delayed or its contents excessively redacted? Both cases would prevent the public from finding out what the government discovered.
If Team Trump digs in—which is their usual MO, democracy be damned—and we are not allowed to see the full report, will we take to the streets? We’ve seen that sufficient pressure does work on the Trump administration, despite its general indifference to the democratic process and ability to function in a Bizarro World of alternative facts. (See: the border wall, Obamacare, even Barr’s recent defensiveness.)
Jennifer Rubin (yet another conservative):
The weeklong, premature victory lap by Trump and his vicious assault on Congress and the press were possible only because Barr made it seem as if Trump had gotten a clean bill of health. (Harvard law professor Lawrence) Tribe argues that, in his first letter, Barr was “exploiting legalistic formulas—like saying Mueller hadn’t been able to ‘establish’ conspiracy with Russia—to help Trump create the impression that no treacherous collusion took place and that there is no substantial evidence of Trump’s improper coordination with the Kremlin—much of it in plain view.”
When the entire report comes out, both Barr and Trump may appear to have misled the public. Mueller, we know, did not exonerate Trump of obstruction and his report will provide us with hundreds of pages explaining why and, further, enlighten us as to why Trump, for example, hid from voters his attempt to pursue a lucrative deal with Russia during the campaign and why so many in his campaign had so many contacts with Russians, contacts they tried to cover up.
Whatever the temporary political benefits to him and his boss, Barr has permanently stained his reputation and politicized the Justice Department. He adds his name to a long list of people who have tossed away their credibility to protect the most unfit president in history.
HISTORY HAS ITS EYE ON
All that said, I’m not expecting bombshells in the Mueller report, should we actually see it.
It seems clear that this was the GOP strategy from the start: to release an almost comically brief summary that appears to exonerate Trump; to let that narrative marinate in the public consciousness for almost a month while the DOJ scrubs the report of anything incriminating; to let progressives build up the release of the report as their next salvation; and then to dump a redacted report on us that obscures the full story, so its impact is blunted as the coup de grace to smack the Democrats down yet again.
So let’s not set ourselves up for another disappointment when we can clearly see that a thumb is being put on the scales.
While I do expect there to be damaging information in the full report, my concern is that the text will be pulverized to camouflage that fact. As I wrote last week, even under the best of circumstances the damning details are likely to be complex and nuanced, which is not exactly MAGA Nation’s strong suit. They are almost sure to lack the screaming impact of inaccurate headlines like “Mueller finds no collusion!” Even as pundits and legal experts parse the report, the right wing will dismiss their conclusions as grasping at straws. We can’t let them get away with that.
The optimistic view is that in laying out the whole story of Trump’s corruption and malfeasance, a moment of political epiphany will hit the American people, or at least its sentient segment. As many observers have written, if all the scandals of the previous three years came out all at once rather than bit by bit as they have, our collective head would explode.
So we don’t need bombshells. Even if the report contains nothing but a comprehensive summary of what we already know, the story for Trump will be extraordinarily damaging in the eyes of any objective observer.
I realize that lets out the entire GOP. But it does not exclude the cold eye of history.
Will we eventually view the preliminary Barr report as a red herring, and the ensuing Republican High Five Festival as woefully premature? Maybe. It sure would help settle the question if we could see the actual Mueller report itself before November 2020.
Bill Barr will soon reveal whether he deserves the respect of his former colleagues who have praised him on TV and will go into posterity as an honorable man, or prove that he never did and never was, and go down as a soulless hack and accessory to the biggest crime in American political history.
Illustration courtesy Michael DeNola