A few years ago, I reached out to the Department of Justice with a straightforward question: How does the Department define “justice”? “I don’t recall ever being asked this question,” the press officer responded. Two years later, he wrote back.
“I’m not aware of any definition of Justice in a policy manual or guideline,” he said. “Our library staff also looked into this, and also concluded there is no set definition that the department refers to.” The press officer pointed me to a speech delivered by Attorney General Robert H. Jackson in 1940, which described “the qualities of a good prosecutor” as a man “who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.”
This was a bit of misdirection, since the Department of Justice does have a definition of justice that it works from: Justice is whatever the attorney general decides it to be.
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When William Barr appears before the House Judiciary Committee later this month—only his second appearance before Congress during his 16-month tenure as attorney general—he’ll have to answer to that vision. Barr’s critics have fixated on the argument that his corruption disqualifies him from office. That argument has been made by more than 2,600 former federal prosecutors calling for his resignation. A Judiciary Committee hearing this month saw two federal prosecutors testify to Barr’s interference in their cases for political reasons—accounts that he ignored or dismissed as “false” and based on “double hearsay.” All this spectacle gives the illusion that something remarkable is going on under his leadership. What we’re seeing is, in fact, a familiar story: powerful Washington lawyers casting aspersions on each other's integrity. This is a game that Barr has played for nearly 30 years. And he’s good at it.
Barr’s political sideshows serve another purpose. They run interference for what is actually happening at the Department of Justice. A record decline in white-collar prosecutions. Environmental crimes and hate crimes go without prosecution. Immigration cases dominate the federal docket, but those detained are rarely serious criminals. And criminal prosecutions—the core function of the Department’s primary division—have dropped by more than a third.
Yet, politics has not gone neglected. The Department of Justice brought 74,843 criminal cases in 2019, but two convictions warranted the attorney general’s direct involvement: those of Michael Flynn and Roger Stone. This fits with a trend. In Barr’s first six months on the job he personally met or spoke with United States Attorney John Durham, the prosecutor charged with investigating the official conduct surrounding the investigation into the Trump campaign, seven times.
And he stood up an investigation to be led by John Bash, the U.S. Attorney for the Western District of Texas, into the supposed national crisis of “unmasking.” While Bash is relatively inexperienced as a federal prosecutor, his partisan credentials are otherwise impeccable: he clerked for Brett Kavanaugh and Antonin Scalia, before joining the Trump administration as a special assistant to the president and as an associate White House counsel.
This reflects an underlying fact about Barr: He is not, and has never been, a federal prosecutor. His experience in law enforcement is not drawn from the inside of a federal courtroom, but conference rooms in Main Justice and the White House—environments where power is not in service to the law, but the law is in service to power.
Perhaps Barr’s ignorance about the role of the prosecutor helps explain his ineptitude, but that hardly excuses it. Since the early 1990s, he has had the unique ability to advocate policies that been been remarkably ineffective and costly to the American taxpayer. During his first tenure as attorney general, he championed a concordance of failed criminal justice policies: mass incarceration, aggressive use of pretrial detention, mandatory minimum sentences, prison labor, asset forfeiture, charging juvenile defendants as adults, and expanding prosecutorial authority to use wiretaps. An entire body of scholarship has been devoted to documenting the racist impulses and moral vacancy of these measures—not to mention how they contribute to, rather than combat, cycles of crime.
Another example: military commissions. Barr first floated the idea for an alternate justice system following the Lockerbie bombing in 1988. Then, after the Sept. 11 attacks, as a private citizen, he picked up the phone and pitched the notion of an alternative justice system to the White House. Barr’s instinct to out-lawyer al Qaeda was too smart by half. Leaving aside the propaganda victory Guantanamo Bay provided to enemies around the world, the diplomatic nightmare the repatriation of detainees created, and the permanent stain on U.S. global standing, military commissions have cost the American taxpayer more than $6 billion—to secure six convictions, half of which have been vacated or dismissed. This failure is gut-wrenching. It is also quantifiable. That money could have paid the salaries of 5,500 public school teachers for the 18 years that the commissions have been operating. Or could have funded national security efforts of actual substance, like pandemic preparedness.
It’s easy to forget that William Barr was attorney general during the last major period of civil unrest in our country. Despite this experience, Barr’s vocabulary in addressing these events remains remarkably limited. The 1992 Los Angeles riots were “primarily centered on street gang activity,” he said at the time. The protests and looting that followed George Floyd’s killing were “planned, organized, and driven by anarchic and far left extremist groups using Antifa-like tactics.” (When I pressed his spokesperson the next day for the factual basis of Barr’s remarks, she said the information came from “state and local law enforcement.” That has not been borne out by subsequent federal prosecutions.)
If there’s any question as to whether the attorney general will address the underlying forces driving the crisis of racism in the United States, look at his record. The year after the Rodney King beating, federal prosecutions against police officers for excessive use of force plummeted to their second-lowest level in nearly 30 years. His parting shot during his first stint as attorney general was to publicly reprimand FBI Director William Sessions for perceived ethical lapses, a career-ending hit job at a moment when the director was working to diversify the nation’s premier law enforcement agency.
This ladders up to the use of the Insurrection Act, which President Trump threatened to invoke earlier this month. For Barr, the act presents a novel legal question—does the president have the power to deploy troops against American citizens? That, of course, is the wrong question. The correct question isn’t legal, but historical. Why is that each time Barr holds the office of attorney general, the commander in chief weighs deploying the military against Americans?
One answer is that Barr’s vision of justice is, and has always been, paternalistic. He sees his job as enforcing a top-down vision of law and order, not establishing an equitable application of the law. Tie this in with the attorney general’s cult-like view of executive power, and we get scenes like the violent dispersal of protesters along Lafayette Park, where the Constitution doesn’t have a shot against a fiat and a fusillade of pepper balls.
Justice under Barr is also Janus-faced. There is what the attorney general sees as the president’s interest, and then what is plainly visible. The U.S. Attorney for the Southern District of New York, who had prosecuted and was pursuing cases involving the president and his allies, was replaced because “a really strong, powerful candidate raised his hand,” according to Barr. Michael Flynn, who’d pleaded guilty, was wrongly prosecuted because there was no “legitimate” investigation. The Mueller Report shows “no collusion”; the report “does not exonerate” the president or his campaign.
This dysphoria is Barr's hallmark. Truth is not established by facts; it is determined by power. Barr adopts his position on the truth—which never wavers from that of the president—then brings to bear the authority of his office to achieve it. When you’re powerful, obstacles can be navigated or simply blown through. If you don’t like the conclusions of an independent counsel, front-run the report. Then delay its release. If a line prosecutor won’t cut one of the president’s friends a break, bring in an attorney from Main Justice who will. And if the president faces a huge political risk in pardoning a former advisor who admitted breaking the law, spare him the hassle and drop the case. Then launder the transaction with a perfunctory order signed by an appellate judge appointed by that same president.
Congress is just another obstacle to navigate. And Barr has deftly avoided oversight to date—even as he has been held in contempt. But with this month’s hearings, that bill appears to have come due. His congressional questioners will need to chart his elisions and evasions by their rhetorical landmarks and verbal tells.
One such tell: arguing definitions of common-sense terms. During his confirmation hearing, Barr paused and stammered after Senator Kamala Harris asked, “has the President or anyone at the White House ever asked or suggested that you open an investigation of anyone, yes or no?”
The attorney general eventually landed on: “I’m trying to grapple with the word ‘suggest.’”
Then there are things that Attorney General Barr hasn’t “looked into” — like whether the Democrats colluded with Ukraine to meddle in the 2016 election, or whether foreign governments could manipulate the upcoming election mail-in voting. The attorney general doesn’t use his platform to dismiss outrageous allegations that threaten the integrity of our elections. What’s the point of punching a hole in a conspiracy that serves the political ends of the president?
As Trump’s star collapses in on itself, his Republican allies are just beginning to run from the gravitational suck of his failure. When they do, Barr will be particularly exposed. The attorney general faces the choice of doubling down on Trump and supporting the seemingly inevitable dispute over the election, or retreating from the president and rewriting his advocacy for Trump as a principled stand for the office. In either case, Barr’s legacy will reveal the bankruptcy of his theory of the unitary executive, which rests upon the presence of character and integrity to uphold the oath of office—something neither the president or the attorney general have demonstrated.
James Baldwin wrote that “ignorance, allied with power, is the most ferocious enemy justice can have.” And if Attorney General William Barr has failed to define for the American people what justice is, his career testifies to what it is not.
