Book Review: “Hatchet Man” by Elie Honig

Former Attorney General William Barr’s misconduct in office has been well-documented. But it may take someone who worked as a federal prosecutor to fully appreciate the true nature and extent of the damage Barr did to the Department of Justice. Former federal prosecutor and now CNN senior legal analyst Elie Honig provides that perspective in a new book, “Hatchet Man: How Bill Barr Broke the Prosecutor’s Code and Corrupted the Justice Department.” It’s a sobering look back on Barr’s two-year assault on the very foundations of the Justice Department – an assault from which DOJ likely will need years to recover.

William Barr
Former Attorney General William Barr

The Prosecutor’s Code

Honig structures his book around what he calls the “prosecutor’s code” – core principles that guide the behavior of good prosecutors, such as impartiality, independence, owning up to mistakes, and keeping politics out of prosecutions. Honig believes a key reason Barr failed as Attorney General is that he has never worked as a federal prosecutor and never understood this prosecutor’s code.

An AG without prosecutorial experience could at least compensate by hiring top aides with that background. But as Honig points out, Barr didn’t do that either. His Deputy Attorney General and Assistant Attorney General – the number two and three spots at the department – likewise had no prosecutorial experience. Even the assistant attorney general for the criminal division had no experience as a criminal prosecutor. That’s sort of like a hospital hiring a dermatologist to be the head of open heart surgery.

Barr spent most of his career as a civil attorney. A civil litigator’s job is to win – to get the best possible outcome for the client, within the bounds of law and ethics, regardless of what might objectively appear just or fair. But prosecutors have a higher obligation. As one of Honig’s supervisors told him early in his career, good prosecutors don’t do “wins and losses.” Their duty is to see that justice is done and to protect the justice system. Barr, having never been a prosecutor, never appreciated this.

Another reviewer took issue with this argument, noting that prosecutorial experience does not guarantee respect for the rule of law. She cited as an example former federal prosecutor Sydney Powell, the infamous lawyer in Trump’s “Kraken” lawsuits challenging the election who now faces professional sanctions. But this misses Honig’s point. He’s not claiming that having been a prosecutor will automatically make you a good Attorney General. He’s arguing that it’s awfully difficult to be a good Attorney General without that experience. I think he’s right about that, and I agree it’s part of the reason Barr was such a disaster. It became clear during Barr’s tenure that he simply did not “get” the Department that he led. He was too willing to view DOJ as simply another political institution, and his own power as a means to achieve political ends.

Spinning the Mueller Report

One of Barr’s most egregious actions as attorney general – and one of the biggest favors he did for president Trump — was his dishonest handling of the Mueller report. Honig walks us through the entire shameful episode. It began, of course, before Barr was even hired as attorney general, when as a private citizen he wrote an unsolicited nineteen page memo to DOJ arguing that Mueller’s investigation was “fatally misconceived.” Honig refers to this as Barr’s “audition memo” for the attorney general position. Once Barr got the job, he did not disappoint the man who hired him.

A mere two days after receiving Mueller’s 400-plus page report, Barr held a press conference and released a four page letter to Congress purporting to summarize it. He successfully “spun” the report and misled the public about Mueller’s conclusions. He failed to release the summaries Mueller had prepared that would have given the full picture. By the time the redacted report was made public weeks later, Trump’s claims that Mueller had found “no obstruction, no collusion” had firmly taken hold in the public consciousness – aided by Barr’s misleading conduct.

Many, including Honig, have been critical of Mueller and the way he handled his report. But the irony is that Mueller actually was following that prosecutor’s code to which Honig refers. Mueller played by the rules, kept politics out of his decisions, and followed the facts where they led. His mistake, and perhaps his naivete, was in assuming that his boss, the nation’s top prosecutor, would follow that same code. Instead, Barr seized the opening Mueller gave him and stuck a knife in Mueller’s back.

Roger Stone
Roger Stone

The Flynn and Stone Cases

None of Barr’s actions demonstrated his failure to understand the prosecutor’s code more than his personal interventions in the cases of Trump allies Roger Stone and Michael Flynn. In the Flynn case, Barr’s DOJ took the unprecedented step of trying to drop the charges after Flynn had already pleaded guilty, taking laughable legal positions that contradicted decades of legal precedent. In Stone’s case, after prosecutors, with their supervisor’s approval, filed a memorandum arguing for a sentence within the recommended guideline range, Barr personally intervened to overrule them and argue for a lower sentence

In both cases the front line prosecutors withdrew in protest, an act that, as Honig notes, is almost unheard of. Those prosecutors had put their credibility on the line before the federal judge every time they appeared in those cases. They took legal positions consistent with precedent and prior practice and with the approval of their supervisors. And then they had their legs cut out from under them by the attorney general himself. Withdrawing was their only honorable option. If Barr had ever stood before a federal judge as a prosecutor, perhaps he would have understood that.

Honig also recounts Barr’s attempt to explain away these actions in an outrageous speech he made towards the end of his tenure. Barr argued that allowing decisions of lower level employees to be sacrosanct might be a “good philosophy for a Montesorri school, but it’s no way to run a federal agency.” In addition to infantilizing the thousands of career DOJ employees who worked for him, this argument completely missed the point. Of course the attorney general has the authority to overrule decisions made by line prosecutors. But these prosecutors had not “gone rogue” – their actions were approved by the relevant supervisors. And as Honig notes, the key question remains: out of the tens of thousands of criminal cases prosecuted by DOJ each year, why did Barr personally intervene only in the two cases that involved close allies of president Trump – allies who could potentially implicate the president himself in criminal activity?

The Sovereign District of New York

Honig also analyzes the bizarre incident where Barr tried to replace the U.S. Attorney for the Southern District of New York, Geoffrey Berman, with a Trump loyalist. After Barr initially said Berman was “stepping down,” Berman denied it. Barr was then forced to ask Trump to fire Berman.

Honig claims this episode demonstrates that Trump and Barr feared Honig’s former office, the SDNY, and had to try to bring it under control. He notes the office’s famous nickname, the “Sovereign District of New York,” and recounts how an article in The New Yorker once referred to SDNY prosecutors as the “killer elite.” Honig claims the members of the office relished that characterization, saying he personally “goddamn loved it.” He says the SDNY prides itself on its willingness to flaunt the rules from “Main Justice” in Washington and chart its own course. “What other federal prosecutor’s office,” he argues, “has the guts to take on cases that could harm the president of the United States?”

According to Honig the most important aspect of SDNY independence, and the reason Trump had cause for worry, is that the SDNY “simply does not do partisan politics.” He says he never once heard of political considerations influencing a case. I believe that – but the same is true of any good U.S. Attorney’s office. I experienced the same thing during my own career at the D.C U.S. Attorney’s office, which sees more than its share of politically-charged investigations. The prosecutor’s code that Honig describes requires that all prosecutions be apolitical. It’s odd for Honig to suggest this somehow sets the SDNY apart.

In any event, the facts unfortunately don’t support Honig’s claims about his old office. For example, the SDNY apparently was ready to execute search warrants for Rudy Giuliani’s records some time in 2020. A truly “sovereign” office might have anticipated that Barr’s DOJ would object and simply gone ahead with the warrants – following the old adage, “it’s better to ask forgiveness than to ask permission.” But that didn’t happen. Barr’s DOJ successfully prevented the warrants from being executed. Only after the Biden Justice Department was in charge did the searches take place – after Giuliani had months to prepare for them.

Similarly, when Michael Cohen pleaded guilty to a campaign finance violation for the Stormy Daniels payoff, he famously said the president himself – “Individual #1” – directed him to commit the crime. If Trump acted willfully, that would make him equally as guilty as Cohen. Given the DOJ policy against indicting a sitting president, perhaps the SDNY could not reasonably be expected to charge Trump while he was in office. But a truly “sovereign” office might at least have confirmed Trump was culpable by, for example, naming him as an unindicted co-conspirator. In any event, Trump left office six months ago, losing the shield of that DOJ policy — and still no charges.

It was New York state prosecutors, not the SDNY, who investigated the potential financial crimes by the Trump organization and waged the successful battle to obtain Trump’s tax returns. And it was state prosecutors who charged the Trump Organization and its CFO Alan Weisselberg with tax fraud – even though the largest portion of that alleged fraud involved federal tax offenses that could have been pursued by the SDNY.

Honig is a proud alum of the SDNY and perhaps can be forgiven for the paean to his old office. But the truth is the “sovereign district” did no better than the rest of the Department of Justice at resisting the Trump/Barr onslaught. And it’s a bit jarring that Honig fails to recognize that the sort of macho swagger he describes as the office’s culture does not rest very comfortably with his own “prosecutor’s code,” which includes such traits as humility.

Other Examples of Barr’s Misconduct

Honig walks us through a number of other troubling incidents as well, including Barr’s failure to investigate and attempts to conceal Trump’s actions in connection with Ukraine (the misconduct that ultimately resulted in his first impeachment); Barr’s role in the incident in Lafayette park where protestors were gassed to make room for a Trump photo-op; and Barr’s decision to appoint Connecticut U.S. Attorney John Durham to “investigate the investigators” by probing the basis for the original Russia investigation. Overall, the book is a harrowing review of a tumultuous two years. It’s remarkable how much damage Barr was able to do in such a short period of time.

Honig concludes with proposals for nine reforms to help the Justice Department restore its public standing. Some have already taken place. For example, he calls for new rules governing communications between DOJ and the White House. Last week Attorney General Merrick Garland issued such rules.

The Barr Enigma: Why Did He Do It?

When Barr was first appointed to be attorney general, many Trump critics were cautiously optimistic. Honig, as he admits, was one of them. So was I. Barr was conservative, of course, but he had a reputation as a serious person and had done the job before. He seemed like someone who could be trusted to preserve and uphold the principles that guide the Justice Department. Instead, he did something I would have thought impossible: he left us pining for his predecessor, Jeff Sessions.

So why did Barr do it? Honig offers three possible explanations: a simple lust for power, a desire to implement his own expansive views on executive authority, and a religious desire to combat secularism. But Honig doesn’t really spend much time trying to grapple with Barr’s motivations, and the attempt to link Barr’s actions to his religious views, in particular, seems strained. The book sometimes has an almost knee-jerk, “Barr = bad” feel to it. I think the truth is more complicated.  

Consider, for example, Barr’s actions after the election, when Trump and his allies were claiming the election was stolen. It’s true Barr made some halfhearted remarks about investigating voter fraud. But in the end he refused to endorse Trump’s claims about the election and told Trump the arguments were “bullshit.” Imagine if Barr had been a Rudy Giuliani, backing Trump’s claims with the full power of the Department of Justice? Trump may well have succeeded in overturning the election.

Honig chalks this up to simple self-interest: Barr’s attempt to get off the sinking Trump ship and preserve his own legacy. Maybe that’s correct. But the fact remains that, in the end, Barr did the right thing. To paraphrase Shakespeare, nothing in Barr’s career as attorney general became him like the leaving it. But after being willing to drive DOJ into a ditch for two years, it’s fascinating that Barr decided to turn the wheel at the last minute.

As Honig note, Barr was not a classic Trump MAGA sycophant, doing whatever it takes to please the president. But then what explains Barr’s intervention in the Flynn and Stone cases? That seemed all about feeding Trump’s “witch hunt” persecution fantasy. Why did Barr step in, particularly when he must have known that Trump would almost certainly pardon both men in the end? Rationales such as seeking to maximize executive power don’t really explain it.

Other incidents also raise unexplored complexities. For example, Honig criticizes Barr’s decision to have the Department of Justice defend Trump in the defamation suit brought by E. Jean Carroll, a woman who claims Trump raped her in the 1990’s. But as I wrote here, that was probably the correct decision in terms of protecting all executive branch employees from future private lawsuits. After Honig’s book went to press, attorney general Merrick Garland came to the same conclusion and decided to continue the defense. That doesn’t mean it’s the right decision, of course, but at a minimum it suggests the matter is more nuanced than Honig lets on.

To me, Barr’s behavior is really a puzzle. But we will have to await future authors to perhaps probe more deeply not just what Barr did, but what explains it.

Conclusion

In this cynical age it’s tempting to dismiss the ideals Honig describes as the “prosecutor’s code” as fanciful platitudes. It’s easy to claim the Department of Justice is just about power and politics, like almost everything else in Washington. Good prosecutors like Honig, and like the thousands of others who were appalled by Barr’s actions and registered their protests during his tenure, know this is not true. They recognize the critical role of the prosecutor in our system of justice and the importance of the code that good prosecutors follow. And they recognize the dangers that arise when that code is ignored or subverted.

Barr’s actions poured fuel on the fires of public cynicism about the justice system. It’s now the job of the Garland Justice Department to try to quell those fires and begin the long, slow process of restoring DOJ’s reputation. It remains to be seen whether that is possible or whether the damage done by Barr was too extensive. The DOJ faced similar challenges after the damage done during the Watergate scandal. Honig’s book provides an important review of a history we must remember if we are not to be doomed to repeat the same mistakes yet again.

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Prosecutors and the Spiderman Principle

“The United States wins its point whenever justice is done its citizens in the courts.”   — Inscription on the wall at U.S. Department of Justice, Washington, D.C.

There’s a well-known scene in the 2002 Spiderman movie where Uncle Ben is talking to Peter Parker. Peter has just begun to discover his super powers and was recently involved in a fight at school where, much to his own surprise, he beat up the school bully. Uncle Ben, concerned about the changes he is seeing in Peter, cautions him that his ability to do something doesn’t automatically give him the right to do it. “Remember,” he says, “with great power, comes great responsibility.”

This line is actually a paraphrase of one written by Stan Lee in the very first Spiderman comic book in 1962. It also found its way last term into a Supreme Court opinion by Justice Kagan in Kimble v. Marvel Entertainment, LLC., making her no doubt the first Supreme Court Justice to cite both Dr. Seuss and Marvel Comics in the same year.

But my fondness for this saying has nothing to do with comic books. My white collar crime students get used to hearing me talk about the “Spiderman principle” – with great power comes great responsibility – whenever I talk about the special role that prosecutors play in the criminal justice system.

Spiderman

The Special Responsibilities of Criminal Prosecutors

The prosecutor’s role is different from that of any other advocate. Normally an advocate’s job is to get the best result possible for your client – to win, if possible – while acting within the bounds of law and ethics. In most situations an advocate has a duty to his client, not a duty to pursue truth, justice, or some other ideal.

For example, a criminal defense attorney’s duty is to represent her client zealously, even if she knows he is guilty. She has no obligation to seek the truth; in fact, in many cases she will be doing her job if she can obscure the truth and keep it from coming to light. A civil attorney representing a company whose products injured people will get the case thrown out if there’s a legal basis to do so, even if the company is clearly responsible and fairness suggests the victims should be compensated.

But a prosecutor’s role is different.  His job is not to “win” – at least not if winning is defined as convicting someone, anyone, for a particular crime. The prosecutor’s job is to ensure that justice is done. That means doing your best to make sure that the rules are being followed, that exculpatory evidence is disclosed, that the defendant’s rights are protected, and above all that you are prosecuting the right people. It means dropping charges or not bringing charges at all if it’s the right thing to do, even if you could probably get a conviction if you went to trial.

These special obligations of prosecutors may not always be clear or intuitive to the general public. Popular culture tends to portray lawyers as gladiators battling in the courtroom coliseum – and gladiators generally fight to win. Prosecutors are frequently portrayed in movies or novels as power-hungry or politically motivated, bent on winning at any cost. And it seems that every week brings some new story about a prosecutor who withheld exculpatory evidence or engaged in some other kind of misconduct that resulted in the conviction of an innocent person.

But the duty of the prosecutor to seek justice is not an anachronism or a quaint platitude. To good prosecutors, it is at the heart of their professional identity, part of their DNA. For the justice system to function effectively, it’s vital that it remain so.

The Prosecutor’s Role

The Supreme Court famously described the role of the prosecutor decades ago in Berger v. United States:

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. . . . It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

Many other cases have recognized this obligation of prosecutors to do justice and not merely to convict. Prosecutors are expected to be zealous advocates, but are expected to temper their zeal with recognition of their broader responsibilities.

This unique role of the prosecutor is recognized in various ethical and professional standards as well. For example, the American Bar Association Model Rules of Professional Conduct, which have been adopted by nearly every state, include Rule 3.8 entitled “Special Responsibilities of a Prosecutor.” It provides, among other things, that a prosecutor must not knowingly bring charges not supported by probable cause, must work to ensure that the rights of the defendant are protected, and must make timely disclosure to the defense of all exculpatory evidence.

In this cynical and partisan age it’s easy to dismiss the special obligation of prosecutors as a naïve and unrealistic ideal. Some suggest it is contrary to human nature: competitive lawyers will always try to win, and asking them to do anything less is doomed to fail. Critics argue that prosecutors are just politicians, who will do what is popular rather than what is right.

I don’t agree. To most prosecutors – and to all good prosecutors – this duty to seek justice really does mean something. I saw it put into practice every day during my twelve years as an Assistant United States Attorney. Prosecutors may not always agree with each other, and certainly may not always agree with defense attorneys, over how best to fulfill their obligations in a given situation. They may make mistakes while carrying out their duties. But they always know that they, unlike other advocates, do have a higher duty.

It’s not that good prosecutors don’t try to win — it’s that they must have a different concept of what “winning” means. As the inscription on the wall at DOJ provides, the prosecutor and the government win when justice is done in the courtroom. In any given case that may mean no one is ever prosecuted or that a guilty defendant walks free, if that’s what the law requires. Winning doesn’t mean locking someone up by any means necessary.

The Planes that Don’t Crash

One reason some may doubt that prosecutors still honor their obligation to do justice has to do with widely publicized cases of prosecutorial misconduct. It’s not uncommon to see reports of a case where a defendant was wrongfully convicted after prosecutors withheld exculpatory evidence, encouraged witnesses to lie, or engaged in some other misbehavior. Such reports have led some to claim there is an epidemic of prosecutorial misconduct in this country.

I would never seek to minimize the seriousness of misconduct when it does occur. True prosecutorial misconduct can cause tremendous harm, including in the most extreme cases sending an innocent person to prison or even to death row. Actual misconduct should be dealt with swiftly and severely and cannot be condoned. But recognizing all that, the truth is that evidence of an “epidemic” of misconduct is remarkably thin.

Press accounts may focus on one particular case or a handful of cases, and the misconduct may indeed be appalling. But any single case also has to be placed in context: each year in the United States there are several million felony prosecutions at the state and federal level. Examining a handful of individual cases actually says nothing about what is the norm across all criminal prosecutions.

There is an old saying about journalism: “no one writes about all the planes that don’t crash.” Cases of egregious misconduct make headlines, and rightly so. But no one reports on the thousands of cases every day where prosecutors are fulfilling their obligations and following the rules. No one writes lengthy research studies about how prosecutors are doing their jobs properly. Judges don’t write opinions about how the prosecutors in their case adhered to all the appropriate professional standards. Like the thousands of safe airline flights every day, these cases go unnoticed because the system is functioning as it should.

Law is a human enterprise and therefore is necessarily flawed. There are tens of thousands of prosecutors working around the country at the federal, state and local level. In any field of endeavor that large you are going to have bad actors. There are bad prosecutors, just as there are bad bankers, bad doctors, bad hedge fund managers, and bad corporate CEOs.

I’m not naïve; I don’t deny that prosecutorial misconduct happens. But I do reject the claim that the behavior of the “bad apples” is in fact the norm.

Courtroom (1)

It’s Not Just the Law, It’s a Good Idea

Good prosecutors seek to do justice and play by the rules because it is their moral, ethical, and professional obligation to do so — but they soon learn it is also in their own professional self-interest. Even in large cities, the criminal law bar is a relatively small community. Within that community the most valuable asset a prosecutor has is his or her reputation.

If a prosecutor develops a reputation for being unethical, defense attorneys will learn not to trust her. That will make them less likely to encourage clients to trust the prosecutor during plea negotiations, or to advise a client to cooperate in an investigation. This will make it much more difficult for the prosecutor to resolve cases quickly or pursue complex investigations. A prosecutor doesn’t need the defense bar to love her, but she does need them to respect and trust her if she’s going to be effective.

Judges, too, may take action against unscrupulous prosecutors. Unlike most lawyers, prosecutors appear repeatedly before the same small group of judges, who rule on countless matters in the prosecutors’ cases. Judges will stop trusting a prosecutor who develops a reputation for playing fast and loose with his professional obligations. Anything that prosecutor asks the judge to do will begin with a presumption of skepticism and mistrust, making the prosecutor’s job much more difficult. A disgruntled judge can make a prosecutor’s life very miserable indeed.

If a prosecutor’s office develops a reputation for misconduct, that also will have an effect on its jury pools. Juries are drawn from members of the local community. If, based on press reports and incidents from other cases, the community does not like or trust the prosecutor’s office, members of a jury are less likely to trust the prosecution in any particular case and may register that distrust with their verdict.

In short, good prosecutors soon learn that abiding by their professional and moral obligations is not merely the right thing to do – it is also the way to be most effective as a prosecutor. Ignoring these obligations may allow an unscrupulous prosecutor to secure a conviction in a particular case, but in the long run it will catch up with him.

DOJ seal - what are the special responsibilities of a prosecutor?

“Do the Right Thing”

When writing a note or commendation to a Department of Justice attorney, former Attorney General Janet Reno would often close with the tag line, “Do the right thing.” It’s simple – and may sound corny to some – but that admonition nicely summarizes the goal of every good prosecutor.

A friend who is a former prosecutor turned defense attorney tells me that when he meets with prosecutors about a case he proceeds on the assumption that the prosecutors are acting in good faith. This is much more effective, he says, than taking the position of some defense lawyers that the prosecutors are all jack-booted thugs. But in addition to being more effective it has the virtue, he believes, of being true. Most prosecutors, most of the time, are acting in good faith and trying to do their jobs appropriately.

Prosecutors wield a tremendous amount of power, and with such power always comes the potential for abuse. The ability to launch even a grand jury investigation, much less to indict, is the ability potentially to ruin someone’s life. A lawyer given that kind of power needs to recognize the responsibility that goes along with it, and must exercise that power with some humility, compassion, wisdom, restraint and judgment. And if you can’t do that, you should find another line of work. (I hear estate planning is fascinating.)

But for those willing to assume the responsibilities that go along with the job, criminal prosecution is an incredibly rewarding career — and an honorable one. Prosecutors and defense attorneys doing their jobs appropriately are the critical foundation of our criminal justice system. Although prosecutor bashing is very fashionable these days, good prosecutors working hard and trying to do the right thing will always be the true face of the profession.

People hired to be prosecutors must understand their unique obligations and have those responsibilities drilled into them from day one. The leadership in prosecutor’s offices must always ensure they are creating a culture where these obligations are recognized and embraced. A good prosecutor never forgets that he or she is not just another advocate – and never forgets the Spiderman principle.

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