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.
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.
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.
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.
Like this post? Click here to join the Sidebars mailing list