Outgoing US Attorney-General William Barr says he stood for ‘justice not politics’

Outgoing US Attorney-General lets rip on Robert Mueller, Hunter Biden, Mike Flynn and the flak he’s taken from both parties.

US Attorney-General William Barr testifies to a House of Representatives sub-committee last year. Picture: AFP

The US Attorney-General is meditating on one of his frustrations with the modern Justice Department: the outside world keeps moving faster; the wheels of justice ever more slowly.

“Nobody wants to take responsibility any more,” William Barr says with a hint of incredulity. “They wring their hands and push issues around the bureaucracy and trade memos for months.” His response: “Bring it to me! I’ll make the decision. That’s what I’m here for!”

If Mr Barr, 70, dominated headlines over the past two years, it’s because he made a lot of tough calls. Special counsel Robert Mueller’s constitutionally dubious claims that President Donald Trump committed obstruction of justice? No. An investigation of the 2016 Russia-collusion probe and the dismissal of charges against Mike Flynn, briefly national security adviser? Yes. New oversight of sensitive political investigations and surveillance of US citizens? Yes. A criminal referral about Mr Trump’s call to the Ukrainian President? No. Repeated demands — from the left and the right — for his department to engage in politics? No, no, no.

Consequential decisions have a way of annoying people — Democrats, Republicans, the staff, one’s boss — but Mr Barr, who’d been attorney general before, from 1991-93, knew that going in. “I’m in a position in life where I can do the right thing and not really care about the consequences,” he told senators during his January 2019 confirmation hearing. In a 90-minute phone interview on Tuesday — less than 24 hours after the announcement of his resignation, effective December 23 — he sounded his usual spirited self.

He reminds me why he took the job in the first place: “The Department of Justice was being used as a political weapon” by a “wilful if small group of people”, who used the claim of collusion with Russia in an attempt to “topple an administration”, he says. “Someone had to make sure that the power of the department stopped being abused and that there was accountability for what had happened.”

Mr Barr largely succeeded, in the process filling a vacuum of political oversight, reimposing norms, and resisting partisan critics on both sides.

William Barr and President Donald Trump in September. Picture: AFP

Mr Barr describes an overarching objective of ensuring that there is “one standard of justice”. That, he says, is why he appointed US Attorney John Durham to investigate the FBI’s 2016 Crossfire Hurricane probe. “Of course the Russians did bad things in the election,” he says. “But the idea that this was done with the collusion of the Trump campaign — there was never any evidence. It was entirely made up.”

The country deserved to know how the world’s premier law-enforcement agency came to target and spy on a presidential campaign.

Mr Barr says Mr Durham’s appointment should not have been necessary. Mr Mueller’s investigation should have exposed FBI malfeasance. Instead, “the Mueller team seems to have been ready to blindly accept anything fed to it by the system,” Mr Barr says, adding that this “is exactly what DOJ should not be.”

Mr Durham hasn’t finished his work, to the disappointment of many Republicans, including the President, who were hoping for a resolution — perhaps including indictments — before the election. Mr Barr notes that Mr Durham had to wait until the end of 2019 for Inspector General Michael Horowitz to complete his own investigation into the FBI’s surveillance. Then came the COVID lockdowns, which suspended federal grand juries for six months. Mr Durham could no longer threaten to subpoena uncooperative witnesses.

“I understand people’s frustration over the timing, and there are prosecutors who break more china, so to speak,” Mr Barr says. “But they don’t necessarily get the results.”

Mr Durham will, and is making “significant progress”, says Mr Barr, who disclosed this month that he had prior to the election designated Mr Durham a special counsel, to provide assurance that his team would be able to finish its work. The new designation also assures that Mr Durham will produce a report to the attorney-general. Mr Barr believes “the force of circumstances will ensure it goes public” even under the new administration.

The biggest news from Mr Durham’s probe is what he has ruled out. Mr Barr was initially suspicious that agents had been spying on the Trump campaign before the official July 2016 start date of Crossfire Hurricane, and that the Central Intelligence Agency or foreign intelligence had played a role. But even prior to naming Mr Durham special counsel, Mr Barr had come to the conclusion that he didn’t “see any sign of improper CIA activity” or “foreign government activity before July 2016”, he says. “The CIA stayed in its lane.”

Mr Barr says Mr Durham’s probe is now tightly focused on “the conduct of Crossfire Hurricane, the small group at the FBI that was most involved in that”, as well as “the activities of certain private actors.” (Mr Barr doesn’t elaborate.) Mr Durham has publicly stated he’s not convinced the FBI team had an adequate “predicate” to launch an investigation. In September, Director of National Intelligence John Ratcliffe declassified a document showing that the FBI was warned in 2016 that the Hillary Clinton campaign might be behind the “collusion” claims.

Mr Barr says Mr Durham is also looking at the January 2017 intelligence-community “assessment” that claimed Russia had “developed a clear preference” for Mr Trump in the 2016 election. He confirms that most of the substantive documents related to the FBI’s investigation have now been made public.

The Attorney-General also hopes people remember that orange jumpsuits aren’t the only measure of misconduct. It frustrates him that the political class these days frequently plays “the criminal card”, obsessively focused on “who is going to jail, who is getting indicted”.

The American system is “designed to find people innocent”, Mr Barr notes. “It has a high bar.”

One danger of the focus on criminal charges is that it ends up excusing a vast range of contemptible or abusive behaviour that doesn’t reach the bar. The FBI’s use “of confidential human sources and wiretapping to investigate people connected to a campaign was outrageous”, Mr Barr says — whether or not it leads to criminal charges.

Also outrageous, in Mr Barr’s view, was the abuse of power by both the FBI and the Mueller team toward Mr Trump’s associates, especially Mr Flynn. The FBI, as a review by US Attorney Jeff Jensen found, pulled Mr Flynn into an interview that had “no legitimate investigative basis”. The Mueller team then denied Mr Flynn’s legal defence exculpatory information and pressured Mr Flynn into pleading guilty to lying.

Mr Barr didn’t order a review of the case until Mr Flynn petitioned to withdraw his guilty plea in January 2020. Mr Jensen’s review then made clear that the case “was entirely bogus”, Mr Barr says. “It was analogous right now to DOJ prosecuting the person [US President-elect Joe] Biden named as his national security adviser for communication with a foreign government.”

The Justice Department agreed to drop the charges in May, although Judge Emmet Sullivan spent months contesting the move until Mr Trump finally pardoned Mr Flynn. Mr Barr declines to comment on Judge Sullivan’s manoeuvring.

Likewise, Mr Barr didn’t “go looking” to get involved in the case of Trump associate Roger Stone, convicted of charges including witness tampering and lying to investigators. Mr Barr thinks Mr Stone violated the law. But when Mr Mueller’s prosecutors “wanted a penalty for him that was unprecedented and outlandish” — seven to nine years in prison — “I wasn’t going to have the department seek such a harsh penalty,” he says. He overruled the career prosecutors’ recommendations in February, and the judge sentenced Mr Stone to less than half the time the Mueller team had sought.

Mr Barr took flak from the left for that decision, and even more for a Constitution Day speech this year in which he reminded Democrats and the media that this is exactly how the system is designed to work. The Justice Department’s powers are vast, and professional attorneys therefore are subordinate to democratically accountable officials. “The Department of Justice is not a trade association for prosecutors,” Mr Barr says. Its client is the American people; its duty is to ensure the principles and standards of justice are fairly executed.

He took flak from the right for not bringing the Justice Department hammer down on Mr Trump’s adversaries. “A lot of Republicans think that’s playing by Robert’s Rules [a parliamentary handbook] — you are being soft on the other side. And I understand that frustration. It’s painful that the system is used against Republicans and there is an AG not willing to do the same thing against Democrats. But that is the only way we find our way back,” he says — meaning back to one standard of justice, to not using the Justice Department as a political tool.

He also makes no apology for declining to divulge before the election that [President-elect Biden’s son] Hunter Biden was under investigation. He acknowledges that the Justice Department’s rule against confirming probes involving office-seekers is “not absolute” and that he could “imagine” a “dilemma” in which government has “decisive evidence of a serious crime against a candidate”. But in the absence of those conditions there’s “damn good reason for the rule”, which protects disfavoured politicians, and private citizens with whom they’re associated, against the deep state.

“Think about the power it would give the federal bureaucracy,” he says. “The standard for investigating someone is low. So just gin up an investigation, make it public, affect every election.”

Along with these politically charged topics, Mr Barr is eager to talk about “the other part of the job” — meaning “the management of the work of the department — the FBI, the DEA, the US Marshals, all our legal responsibilities”. The department’s politicisation has overshadowed all that but Mr Barr says it’s a big reason he took the job and is proud of the department’s work. He highlights its efforts on drug enforcement and opioids, and his regrets that COVID slowed that momentum. He highlights Operation Legend, a successful law-enforcement initiative to fight violent crime.

He’s also proud of the department’s interventions to protect free speech and religious freedom. As early as April, Justice had intervened on behalf of a Mississippi church whose congregants had been ticketed during a drive-in service amid COVID, and it continued to support institutions denied their constitutional rights by lockdowns. The department has also intervened to protect college students’ free speech on campus. “The only rights that receive attention any more are those that involve human pleasure-seeking,” he says. “But the foundational rights are what we rely on as a people to reason and to make rational judgments on things … The reason we have free speech isn’t because everyone’s views are right; it is because we try to reach the truth through the dialectic of competing viewpoints.”

Mr Barr had planned to stay on in a second Trump term to work on issues like this. He worries about an onslaught of synthetic opioids and methamphetamines and increasingly powerful Mexican cartels. He was looking forward to a restored FBI gearing counterespionage efforts against China. He’s sorry he won’t be able to continue pushing a zero-tolerance policy toward “violence in our political process”. He’s sceptical the Biden administration will deal effectively with the growing power of big tech companies, in particular the problem of censorship.

I ask if he has any advice for his successors, and he rounds back to the personal quality that defined his own tenure. “There has been a tendency for AGs to let the bureaucracy run itself, to sit in the office and look at the inbox,” he says. “After all, you can never get in trouble by going along with the institution.”

But institutions are supposed to stand for principles, and it’s the attorney-general’s job to reinforce them every day: “Be active. Make sure people understand the priorities, understand what they are there to do. Make the decisions.”

The Wall Street Journal