The “Reputational Interests” of William Barr
After the Attorney General, William Barr, sent a four-page letter to Congress, on March 24th, in which he quoted just one and a half sentences—seventy-four words—from the special counsel Robert Mueller’s report on Russian interference in the 2016 Presidential election, he complained about “some media reports and other public statements mischaracterizing my . . . ‘summary.’ ” Subsequently, the House Judiciary Committee chairman, Jerrold Nadler, had a telephone conversation with Barr, and later disclosed that the Attorney General told him that Mueller’s report runs at least three hundred pages. On March 29th, Barr sent an unusual second letter, announcing that he would deliver to the Congress and the public more than the seventy-four words, but less than the full text of the report. He also revealed that the report includes unexplained “tables and appendices,” which add to its unknown breadth as well as its length.
In the memo, Barr wrote that he would bowdlerize the report in accord with certain criteria: he would black out classified and grand-jury material, though Congress, if not the public, is entitled to see grand-jury proceedings, owing to statute and legal precedent, including in the case of Watergate. Then he imposed a novel and vague category for excision: he would protect the “reputational interests of peripheral third parties.” As for what those “reputational interests” are, who the third parties (as opposed to the first and second parties) are, and what, precisely, “peripheral” means, Barr has appointed himself the sole authority to decide.
The more the story unfolds, the deeper Barr’s interference appears to be. According to reports in the Times and the Washington Post, Mueller’s staff prepared summaries of each section of the report, which, according to one staff member, they intended for release “immediately—or very quickly” after it was delivered. Those summaries carefully excluded material that required redaction. Barr might simply have announced those summaries, representing the report in the words of those who worked on it, without going to the trouble of writing one of his own. According to the Washington Post, some members of Mueller’s team also said that the report contained evidence of Donald Trump obstructing justice that was “much more acute than Barr suggested”—implying that Barr suppressed their summaries in order to present an account more favorable to the President. These intrusions run counter to the image that the Attorney General has created of himself as a reliable professional devoted to the nation’s institutions, but they shouldn’t have come as a surprise; they are consistent with his record of more than twenty years at the Department of Justice.
Barr has seemed determined to serve as Trump’s shield from the start. On June 8, 2018, he sent an unsolicited memo to the Justice Department in which he insisted that any inquiry by the special counsel into possible obstruction of justice committed by Trump was “fatally misconceived.” (Although Mueller and Barr have a longtime professional and personal connection, Barr has also expressed his objections to Mueller’s probe in harsher terms; a year earlier, he told The Hill that the obstruction investigation was “asinine.”) Barr insisted that “Mueller should not be able to demand that the President submit to an interrogation about alleged obstruction.” (Although previous Presidents have testified in federal legal investigations—Ronald Reagan, Bill Clinton, and George W. Bush among them—Mueller did not require such an interview of Trump, relying instead on written responses to questions.)
Barr’s effort to discredit the Mueller investigation should have brought to mind the not-so-distant history of his first stint as Attorney General, under George H. W. Bush. In 1992, just as Bush was leaving office, he issued, with Barr’s support, pardons for six Reagan Administration officials—including the former Defense Secretary Caspar W. Weinberger—who had been either charged for or were convicted of crimes connected with covering up the Iran-Contra affair and its violations of the U.S. Constitution. Weinberger’s pardon came before his case went to trial, and it was commonly believed that it was itself part of another coverup, to prevent the presentation of evidence that would have indicated Bush’s personal involvement in Iran-Contra, when he was Reagan’s Vice-President. Thanks to the pardons, the whole truth was never known.
Investigations into the scandal were still being conducted by the independent counsel Lawrence Walsh, who was, interestingly, like Robert Mueller, a consummately professional Republican who believed in the rule of law. Bush dismissed Walsh’s probe as “the criminalization of policy differences,” and the pardons effectively killed it. Walsh reacted with tempered bitterness, divulging in a public statement that Bush was, in fact, a subject of his investigation, and that the materials connected with the Weinberger case included “evidence of a conspiracy among the highest-ranking Reagan Administration officials to lie to Congress and the American public.” The episode was a textbook lesson on how to short-circuit an independent counsel’s investigation and suppress damning evidence that investigators had uncovered—and William Barr was in the middle of it.
There is abundant precedent for attorneys general to act honorably and forcefully in onerous political situations. Edwin Stanton, in his brief stint in the job at the end of James Buchanan’s Administration (he was later Abraham Lincoln’s secretary of war), tried his best to stiffen the faltering Buchanan in the face of Southern secession. Under President Ulysses S. Grant, Attorney General Amos Akerman, a Southerner, vigorously prosecuted the Ku Klux Klan, and stood up to railroad magnates seeking favorable treatment in bond issues and land grants. Herbert Brownell served Dwight Eisenhower by standing resolutely behind the enforcement of the Brown v. Board of Education desegregation decision of 1954, most notably, three years later, during the Little Rock crisis.
The outstanding, and most pertinent, profile in attorney-general courage in modern times is that of Elliot Richardson—as well as his deputy, William Ruckelshaus—at the height of the Watergate troubles. In October of 1973, Richard Nixon, unable to ignore mounting public demands that he release privately recorded White House tapes, offered a compromise. The White House would provide its own edited transcript of the tapes, which would be verified by having Senator John Stennis, of Mississippi, listen to the tapes. Stennis, a noted segregationist, was notoriously hard of hearing and increasingly out of touch, which only heightened the impression that the offer was insincere. The special prosecutor Archibald Cox turned down the Stennis compromise, whereupon Nixon ordered Richardson to fire him. Richardson refused, and quit, as did Ruckelshaus, and the solicitor general finally fired Cox—the Saturday Night Massacre.
Richardson refused to countenance a self-serving edit of a transcript designed to exonerate the Nixon White House; Barr has issued a skewed account of the Mueller report, which has permitted the Trump White House to declare itself exonerated. The fact that Barr has since promised a timely release of the report to Congress and the public, but in a version redacted as he sees fit, only underscores the contrast with Richardson. But there is more in the history of Watergate that clarifies the potentially disastrous role that Barr is playing.
Less than four months after the Saturday Night Massacre, in February of 1974, the House authorized its Judiciary Committee to initiate hearings on whether there were sufficient grounds to impeach the President. Nixon was now fighting on two fronts—against the House committee, as well as against Cox’s replacement, the special prosecutor Leon Jaworski—and he faced a subpoena that Jaworski had obtained to release the tapes in full, so he tried to revive the Stennis compromise in a new form. With televised fanfare, the White House released a multivolume transcript of the tapes, which Nixon swore to the world contained every scrap of audio evidence pertaining to Watergate. The President voluntarily agreed to outside verification, this time by the House Judiciary Committee chair, Peter Rodino, and the ranking member, Edward Hutchinson. For a moment, it seemed as if the tide might be turning in Nixon’s favor; writing for the Times, R. W. Apple called the release of the transcripts Nixon’s “strongest counterattack so far in his long struggle to survive Watergate.”
Instead, Nixon’s trick proved the beginning of the end. Jaworski wouldn’t settle for the transcripts; the U.S. District Court judge John Sirica refused to quash his subpoena; and the Supreme Court, ruling 8–0 in the case of U.S. v. Nixon, ordered that the tapes be released in their entirety. With the “smoking gun” evidence made public, Nixon was doomed, and, sixteen days later, he resigned.
The Nixon strategy of delay, redaction, and misdirection—despite its failure in 1974, and the passage of decades—survives in Barr’s defense of Trump, though the roles have changed. Playing the part of Nixon is Barr himself, trying to sell the public and the Congress on an edited version not of White House tape transcripts but of a special counsel’s report. Stepping into the role of Jaworski is Nadler, who may have to fight in the courts to have the Attorney General disclose the Mueller report in full. The one role that stays the same is that of the Supreme Court, where, it seems, this case, too, will almost inevitably end up. But, if the Court is still the Court institutionally, the characters on it have changed utterly since 1974. Whereas U.S. v. Nixon was decided unanimously, U.S. v. Trump, or whatever such a case might be called, will almost certainly not be. A 4–4 split seems likely, along ideological lines. If so, the case’s fate may end up in the hands of Chief Justice John Roberts.
Nixon himself laid out the strategy to kill an investigation, mislead the public, and rescue his corrupt Presidency in instructions to his former Attorney General, John Mitchell, which were recorded on the White House tapes. “I want you all to stonewall it, let them plead the Fifth Amendment, cover up or anything else, if it’ll save it, save this plan. That’s the whole point,” Nixon said. “We’re going to protect our people if we can.” Barr is trying to disprove the Nixon-era adage that “it’s not the crime, it’s the coverup” that gets you in the end. He is also upholding, on behalf of Trump, Nixon’s doctrine, stated years after he left office: “When the President does it, that means it is not illegal.” Whatever short-term gains Barr makes in defending Trump, he’s cementing his “reputational interests” in history.