Though it was evident at the time that President Donald Trump and the Department of Justice (DOJ) were closely aligned, the full extent to which the agency took its direction from Trump and fulfilled his political wishes is only now becoming clearer.
Recent reports show the department under both Attorneys General Jeff Sessions and William P. Barr secretly sought and obtained phone and email records of journalists, lawmakers and even White House Counsel Donald McGahn in pursuit of leaks related to politically damaging news stories.
In 2017 and 2018, the DOJ obtained the phone and email data of at least 12 people connected to the House Intelligence Committee, including two top Democrats on the panel, as part of a leak inquiry into the FBI’s Russia investigation. Gag orders imposed on several major tech firms, including Apple and Microsoft, to prevent them from informing customers about the subpoenaed records were renewed throughout Barr’s stint as AG. Barr told Politico that he was “not aware” of any searches of members of Congress. Sessions also denied knowing about the subpoenaed records, though he announced DOJ had 27 leak investigations underway in November 2017.
DOJ inspector general Michael Horowitz said Friday that his office will investigate the department’s subpoenaed phone and email records during the Trump administration to see whether they were appropriate and abided by agency guidelines. On Monday, Democrats on the Senate Judiciary Committee sent a letter to Attorney General Merrick Garland ’74, J.D.’77, requesting a full briefing on the searches of lawmakers.
A new book, “Hatchet Man: How Bill Barr Broke the Prosecutor’s Code and Corrupted the Justice Department,” attempts to catalog actions Barr took that author Elie Honig, J.D. ’00, says greatly damaged the department’s reputation for impartiality and independence from politics. From Barr’s efforts to neuter the Mueller investigation and to burying the Ukraine whistleblower’s complaint to public validations of Trump’s claims about voter fraud in the 2020 election, Barr appeared to equate serving the White House’s political interests with the DOJ’s mission and constitutional duty to the country, Honig argues.
A CNN legal analyst, Honig served as a federal prosecutor in the U.S. Attorney’s office for the Southern District of New York (SDNY) from 2004 to 2012 and as assistant attorney general in the New Jersey Division of Criminal Justice from 2012 to 2018. He spoke with the Gazette about Barr’s effect on the DOJ and why he thinks Attorney General Garland needs to be more aggressive if he’s to restore the department’s luster.
GAZETTE: The Trump administration was full of news-making incidents and powerful figures. What’s noteworthy about what Barr did as attorney general?
HONIG: There were so many scandals, so many abuses of power, that when you lay them end to end like this and thoroughly document and assess them, I think it’s stunning, and I think it’s alarming. Even since the book went to print a few weeks ago, we’ve learned of several new scandals that illustrate just how badly Barr abused his power as AG — including, most troubling, secretly investigating reporters and members of Congress, apparently without justification.
People sometimes say to me, “Well, how about Eric Holder?” I’m not necessarily pro or con Eric Holder. He was one of four attorneys general I worked under. All they have on Holder is he said, at one point, he was Obama’s “wing man” and “fast and furious.” So you have one inappropriate statement, and you have one scandal that has nothing to do with covering up for the president. Contrast that with Bill Barr and this overwhelming body of corruption that he put together in his less than two years as attorney general. Everyone sort of remembers the Mueller report and maybe [Roger] Stone, maybe [Mike] Flynn. [But] there was the private party he had at the Trump hotel, the intervening in the E. Jean Carroll case, which is back in the news. There was the way he talked about election fraud in the run-up to the election and spread the big lie. Even within those stories, so many nuances and details that have been lost or forgotten. I’ll give you one example: It’s well documented, including by multiple federal judges, that Barr lied to the public about the Mueller report. What I think people forget is the way that he choreographed and manipulated his own lie for maximum impact. Bill Barr got the Mueller report on a Friday, March 22. He came out with his bogus four-page letter “clearing” Donald Trump two days later, on March 24. Do you remember how long Bill Barr held on to the Mueller report and kept the public from seeing it? Twenty-seven days! In that month, public opinion calcified. Barr had already told his slanted version of the story. You can’t unring that bell. It was so manipulative for him to hold that report back for 27 days, during which time he testified in Congress, he gave a press conference. So that fact is something I think we all knew at one point, but when you bring it back, you see how outrageous it is.
GAZETTE: You say Barr was “corrupt from the beginning,” starting with the way he auditioned for the job by denigrating special counsel Robert Mueller’s investigation and his slippery testimony to Congress during the confirmation process. You identify three traits that “infected” his approach to the job. Can you explain?
HONIG: Bill Barr is a liar, and I don’t use that term lightly. In the two fields where I’ve worked in my career, law and media, we are naturally, and probably healthily, reluctant to use that phrase. You’d say “someone misstated the facts” or “lacked candor” or was “disingenuous” or what have you. I think Bill Barr was given plenty of chances to fall back into one of those softer labels. But starting from the way he lied to the public about the Mueller report, he lied about his lie almost within the Mueller report. During one of those congressional testimonies, Bill Barr was asked by a member of Congress — I’m paraphrasing here — “Has anyone on the special counsel’s team voiced any displeasure to you with the way you characterized the report?” And Bill Barr just straight up leaned into the microphone and said, “No.” Well, it turned out that weeks before, Bill Barr had gotten a letter from Robert Mueller saying, “You’ve misstated my conclusions and work in your in your four-page letter.” That is dishonesty heaped upon dishonesty. He lied to the public about why he fired SDNY U.S. Attorney Geoffrey Berman. Bill Barr tried to tell the public that Geoffrey Berman would be “stepping down.” Geoffrey Berman, hours later said, “Oh, no, I’m not.” Even with Lafayette Park — he tried to tell the media that no tear gas was used when that turned out to be untrue; no man-made chemicals were used; that turned out to be untrue. He lied about the threat of voter fraud. He turned [his stance] around after the election was over, but in the months leading up, he spread all sorts of falsehoods about the risk of massive voter fraud. So that’s trait one.
Trait two is he politicized DOJ. The way I was trained at DOJ is that politics should have nothing to do, ever, with anything you do. It’s perfectly legitimate for a new administration to say, “These are our policy priorities.” I worked my first four[-plus] years at DOJ under Republican AGs, and they prioritized certain types of prosecutions and certain practices. And then Obama won in 2008, and the Democrats took over, and they prioritized a different set of types of cases. That’s perfectly fine and legitimate. What’s not OK is to intertwine politics with DOJ’s prosecutorial function, with specific cases that are being prosecuted. And we saw Bill Barr do that in the Roger Stone case in a flagrant way and in the Michael Flynn case. Both times he tried to claim those cases just happened across [his] desk, [and had] nothing to do with Donald Trump constantly harping about them and tweeting about them. The fact that they were connected to Donald Trump is so damaging to the Justice Department and to everything it stands for.
The third one was Bill Barr tried to use the AG job to self-actualize his views on the law [and] on the need for a religious society. He’s a hard right, Federalist Society adherent. There’s nothing wrong with that, and that’s to be expected. Any attorney general will come into the job with certain a certain set of ideological views. To the extent he let those views influence his prosecutorial judgments, I think that’s wrong. But on his policy issues, that’s fine. I think he took it way too far. He argued that the president is essentially not at all accountable to Congress, and the courts, by and large, rejected that argument. More problematically, Bill Barr, it turns out, is what I call a culture warrior. He railed [during the 1990s] against the “homosexual movement” and how that was so damaging to the fabric of our society. He started to give hints of this [again] under Trump. He would rail about how this secularism, this nonreligious approach to public life, was damaging everything from the mental health of our population to the spike in crime rates to drug use. He said things about how a Judeo-Christian religiosity is the only true path for any moral, civilized society. Notice it’s not just religiosity, it’s Judeo-Christian religiosity, in particular. And he brought some of that to bear to his job as attorney general.
GAZETTE: What sets him apart from other AGs? Because it’s hard to name an attorney general from either party — John Mitchell, Robert F. Kennedy, Alberto Gonzales, Janet Reno, to name a few — who doesn’t have critics.
HONIG: Every attorney general has emerged from their tenures with controversy, every attorney general has been criticized for something or other and often correctly criticized. Bill Barr is different. First, because he outright lied to the public so many times. I can’t find an example of an attorney general who demonstrably lied to the public like that. I was trained as a prosecutor. You certainly never lie, but you never fudge the truth; you never exaggerate. If there’s a fact you don’t like, you own it; you disclose it; and you deal with it. Bill Barr broke that core principle in a way that no prior attorney general [has]. The level of politicization: I can’t find an example of a prior AG directly and personally intervening in cases the way Barr did (with Flynn and Stone, in particular), to save the hide of the president’s own loyalists and doing exactly what the president was publicly begging him to do. And then, there’s just the sheer volume of Barr’s abuses. If you go back through history, everyone can name an AG and associate one, maybe two, significant scandals with that AG. With Bill Barr, there’s a dozen. That matters, that sets him apart.
GAZETTE: Don’t the facts that under AG Garland the DOJ will continue to defend Trump in the E. Jean Carroll defamation suit, seeks to block the full release of the OLC [Office of Legal Counsel] memo crafted to justify why Barr did not pursue any of the 10 obstruction of justice charges laid out against Trump in the Mueller report, and has also sought reporters’ phone and email records in search of leaks, validate some of Barr’s actions?
HONIG: I don’t see it that way at all. I think Merrick Garland has been far too timid in his approach to this job thus far. Merrick Garland clearly wants to keep DOJ out of any political headwinds or any political turbulence. However, in doing that, he’s not fully doing his job. I wrote a column for CNN, but I’ll say it again here: Merrick Garland does not want to become the anti-Barr. There were basically two paths available to Merrick Garland to get DOJ back on its feet. One was to try to just lie low and stay out of politics. But in doing that, sometimes, you stop doing your job properly, and Merrick Garland is right on that border. The other one would have been to come in and be the anti-Barr and undo everything Barr did. But that’s difficult.
Bill Barr has set the status quo on these cases. E. Jean Carroll: If Merrick Garland was making this decision for the first time, we don’t know whether he would have come out this way. But it’s a much more dramatic thing to take a position that DOJ has already taken, already litigated in court, and reverse it than to make the decision himself. So he’s operating from sort of a downwind position here. But no, I have been and will continue to be critical of Merrick Garland for too passively accepting some of the missteps of Bill Barr.
GAZETTE: Like Trump, Barr violated many longstanding norms. You argue that he’s done lasting structural damage to the job of AG and to the DOJ’s independence and reputation. Have any harmful precedents been set that can’t be undone?
“There were so many scandals, so many abuses of power, that when you lay them end to end like this and thoroughly document and assess them, I think it’s stunning, and I think it’s alarming.”
HONIG: The good news is that a lot of the damage Bill Barr did can be corrected within the Justice Department. To the extent Bill Barr took, I believe, inappropriate or just meritless arguments to the courts, we now have a body of precedent rejecting those. Barr’s DOJ took the position that the president was “absolutely immune” from having to respond to congressional subpoenas. A federal judge found that view was “a fiction” that got separation of powers exactly backwards. So I think the courts have done their job, by and large, course-correcting where Bill Barr has stepped outside the bounds of the law.
Within DOJ, I’ll give you some examples of things that I think can be corrected. The easiest one is, don’t lie; don’t mislead the public. That one is an obvious starting point. Bill Barr, several times, commented on pending DOJ investigations, which is another thing you are taught [on] Day One of the job that you never do. So a lot of Bill Barr’s abuses are correctable by a person who understands the fundamentals coming in and saying, “We’re just not going to do that. I’m not going to lie; I’m not going to comment on pending investigations; I’m not going to inject myself into obviously political cases at the president’s urging.”
And at the end of the book, I talk about some policy changes that can be implemented, like updating the special counsel regulations to be clearer. I think Robert Muller made a mistake in not stating his legal conclusions. The special counsel regulations already arguably do say that he should have done that, but let’s clarify that. I think DOJ needs to discard its OLC opinions that were rejected in the courts. DOJ needs to formally adopt what we call “the blackout rule,” the rule against making public comments or announcing cases publicly within 60 or 90 days of an election, something else that Barr tinkered with. So there’s a lot of repair work to be done there.
GAZETTE: Do you believe Barr committed any crimes and should he be held accountable for any specific actions that he took as AG?
HONIG: Abusing the power of the Office of Attorney General is not necessarily the same as obstruction of justice. I want to say that up front. I do point to many, many times when he overstepped his bounds as AG, but I don’t know that any of those rises to the level of obstruction of justice. I think the closest you would get would be false statements to Congress about, for example, the Mueller report and things he was told about the Mueller report.
But let’s be practical here. Bill Barr is not going to get charged with a crime. For reasons political and prudential and otherwise, there’s no way that Merrick Garland’s DOJ is going to charge Bill Barr with a crime. And I don’t argue in the book that he should be charged with a crime. As outrageous as his conduct was, as damaging as his conduct was, it’s hard to pinpoint a particular instance and say, “That right there is a crime and that must be prosecuted.”
There could be bar licensing consequences. There have been complaints filed against him, that will be up to the bar commissions. If they find that he was dishonest about pending cases in a public way, he absolutely could be sanctioned by legal licensing bodies. I think a lot of people will find that unsatisfactory or insufficient.
One of the big reasons I wrote this book is because I think it’s really important that this record be made for the public and in one place because there were so many abuses that we remember them, “Oh, yeah there was this; there was that; oh, remember this?” But it needs to be pulled together somewhere, and I don’t believe anyone else is going to do it. I think I’m sort of uniquely positioned to do it, given my background in DOJ. It may not satisfy some people’s desire to see Bill Barr held accountable in the courts, but it’s a hell of a lot better than nothing.
Interview has been edited for clarity and length.