Compared to Justice Brett Kavanaugh’s sullen, bombastic performance last September, this week’s Judiciary Committee hearing for William Barr, nominee for the post of attorney general, was almost a soporific affair. It was, in a way, a throwback to an age when nominees held in their rage and clotted grudges were not verbally vomited all over the conference table.
Of course, nothing about the Barr hearing was humdrum because it took place within the context of the chaos presidency of Donald Trump. The stakes for this nomination — political, legal and constitutional — are as high as the tape measure can reach. At issue is the extent of presidential powers, the security of Robert Mueller’s ongoing collusion investigation and the eventual availability of his final report, the integrity of the office of the attorney general and the Justice Department at large, the care and feeding of the noxious carceral state, and freedom of the press.
As far as surface performance goes, Barr comported himself as well as can be expected. No surprise there, as he has been through Senate confirmation hearings three times before, most notably when he was named to be George H.W. Bush’s attorney general at the ragged end of that administration. This was an old hat for a veteran DC insider. The tableau of his family seated behind him — his librarian wife and three grown daughters, all lawyers, plus a grandson named Liam who ladled cuteness all over the proceedings — lent Barr an aura of stability, like some weathered old oak.
Appearances are often deceiving, however, and beneath that respectable veneer lurked a man with strong ideas which would not sit well with a public that has spent two years enduring Trump’s tyranny of mayhem-enriched overreach. When you give your hand away at a poker table, it’s called a “tell.” Barr’s tell appeared on the occasions when he refused to give straight answers to serious questions.
For most of the hearing, Barr gave very Republican answers to a wide variety of questions because he is very Republican, but did so quietly. The committee members by and large seemed to welcome this. Sen. Diane Feinstein’s line of questions on Tuesday essentially boiled down to asking him, “Do you promise to be awesome, please?” Barr said he would.
The tell came when he was pressed on two fronts: the opinion of the Justice Department’s career, non-partisan ethics experts, and the eventual availability of the completed Mueller report. Sen. Kamala Harris went right at Barr on the first matter, asking whether he would recuse himself from the Mueller investigation if the Department of Justice’s ethics experts told him to. Barr danced his way around providing an affirmative response. This was unprecedented; nominees for this post since time out of mind have all given at least a veneer of lip service to the idea of following the guidelines of the department’s ethics experts, but Barr had no interest in putting himself in that box.
The question of impartiality and possible recusal was made central to the conversation because of the memo Barr wrote attacking the Mueller investigation. This thing was a real piece of work. Barr, having in hand exactly as many facts about that investigation as the rest of us, presumed to pour himself inside Mueller’s skull to opine on his motives and castigate his actions.
The Barr memo’s conclusion, in essence, was that a president can fire anyone he wants to without that firing rising to the level of obstruction of justice. Furthermore, according to Barr, presidents cannot be charged with obstruction under any circumstances. “For 40 years,” he said to Sen. Richard Blumenthal during one exchange, “the position of the executive branch is that you can’t indict a sitting president. I actually haven’t read those opinions in a long time, but I see no reason to change them.”
The memo was a whole platoon of baseless straw men Barr knocked down one by one, despite being utterly divorced from any actual knowledge of Mueller’s goals, tactics or data. It was Monday morning quarterbacking from a guy who, like everyone else, isn’t able to watch the game.
Worse, Barr enthusiastically peddled the thing to members of the Trump administration like someone handing out flyers at the airport. A number of Democratic senators wondered aloud if Barr meant the memo to be a job application aimed at landing him his old AG gig, where he could be the stalwart defender Trump has been craving since he took office. Barr demurred, of course, but the question and the concern justifiably haunted the proceedings.
Barr’s refusal to commit to making the full Mueller report available to Congress and the public likewise served as a tell for the nominee. Time and again, he was pressed on the question, and time and again he avoided giving a straight answer. “I will if I can” was the essence of his replies, even under notably urgent questioning from Senators Mazie Hirono and Richard Durbin.
On Tuesday, Senator Feinstein seemed all too pleased with Barr’s answers on the issue. By Wednesday, however, she decided she didn’t like the taste of it and announced that her vote would hinge on Barr explicitly promising to release the report. No such promise was forthcoming, because Barr doesn’t need Senator Feinstein’s or any Democrat’s vote to win confirmation.
That, as they say, was that. The man whose top résumé line is helping Bush Sr. and crew escape consequences for the Iran-Contra scandal will almost certainly hold the final fate of the Mueller report in his hands once his nomination comes up for a full vote. After two evasive days, this remains a deeply uncomfortable truth.
Mueller and his report were not the only vital issues under discussion during these hearings. As Truthout reporter Mike Ludwig noted yesterday, the hearing showcased Barr’s grave threat to civil rights. On Wednesday, one witness in particular, NAACP President Derrick Johnson, was not impressed. In his testimony before the committee, Johnson made it abundantly clear where he and his organization stand regarding Barr’s experience in the criminal legal system:
Mr. Barr’s record demonstrates a lack of strong commitment to protecting the civil and human rights of all Americans. The communities served and represented by the NAACP will have a difficult time placing their trust in the Justice Department and, by extension, the American criminal justice system overall.
As attorney general, he championed mass incarceration and deprived countless persons of color of their liberty and dramatically limited their future potential. His Justice Department tenure was marked by extraordinarily aggressive policies that harmed people of color.
William Barr did not and does not recognize the racially discriminatory impact of our criminal justice system policies. In 1992 he said, “I think our system is fair and does not treat people differently.” And just yesterday he told Sen. Booker, “Overall, the system treats black and whites fairly.” This statement is singly disqualifying.
“The NAACP opposes Mr. Barr’s nomination,” Johnson concluded, “and I urge every member of this committee to vote against his confirmation.”
There was also the question of freedom of the press, which came to be an issue at the hearing when Sen. Amy Klobuchar put the matter to Barr bluntly: “If you’re confirmed, will the Justice Department jail reporters for doing their jobs?” Barr meandered through a non-reply before stating a journalist could be jailed if he or she “knows that they’re putting out stuff that will hurt the country.”
That is incredibly dangerous ground, for as we all know, “stuff that will hurt the country” often exists in the eye of the beholder. If the beholder has arrest and detention powers, as Barr will if confirmed, journalistic freedom will be in deep peril. If Barr is in the bag for Trump, as many suspect, that peril grows exponentially worse.
Some believe Barr wants to serve for reasons of honor and country. Others fear he is a snake in the grass who will upend the rule of law to protect the president. Whitewater special prosecutor Kenneth Starr thinks Barr is just wonderful, a fact that should give any rational person pause. One thing is almost certain: Barr is going to sail to confirmation when the final vote comes up, probably with a few Democratic votes in his pocket, because he didn’t flip out during the hearing and remind everyone how much trouble we’re in.
Quite the opposite, in fact; Barr’s mellow, wordy lawyer’s schtick was the perfect Trojan horse for all the bad policies with which he intends to infest the Justice Department. On presidential powers, civil rights, immigration and press freedom, Barr looks a lot like Jeff Sessions. “Barr was nominated by a president who has used the boogeymen of ‘gangs,’ ‘violent criminals’ and immigrants to rile up right-wingers who are fearful of white displacement,” noted Ludwig. “When it comes to issues facing anyone else, Barr appears no different from Sessions, and indeed, no different from Trump himself.”
So, is that it? Game over? Does Trump finally have the firewall at Justice he lacked after Sessions recused himself from the Russia investigation? I fear the worst, but still wonder about what might be. The question now, you see, is less about Barr’s dubious commitment to integrity and more about his own ego.
H.L. Mencken once said, “The only way a reporter should look at a politician is down.” I have, over the years, come to swear by that dictum. While I certainly have not met every politician or powerful official, I have met enough of them to know that, for the most part, they are not the sort you’d ever want to be stuck on an elevator with.
The reason, in nearly every case, is ego. It takes a spectacular amount of hubris to rise to the levels these people have reached, and that almost always makes them personally repellent and unpleasant. They tend to devoutly believe their own best ink and practice transmogrifying the loaves and fishes in their spare time, you know, just in case they actually are Jesus Christ come again. That ego also makes them prickly as porcupines when their self-image gets tweaked.
It’s remarkable, actually. That line about power corrupting is flawed. Power does not corrupt; it attracts the corruptible like flies to honey, and the first corruption is the end of a humble self-image. Douglas Adams had it right: “Anyone who is capable of getting themselves made president should on no account be allowed to do the job.” Sadly, this goes for a great many other positions, including that of attorney general.
This phenomenon may prove to be Trump’s Achilles heel when it comes to Barr. Trump’s own massive ego prohibits him from realizing he’s working with people who also have massive egos and don’t like to get smacked around in public. Barr is one of those types; he may stand up to Trump for no other reason than he’s A Great Man who deserves better treatment. Trump tends to break an important rule with a lot of his people — don’t poop where you eat — and with Barr, it may come to cost him.
It’s a pretty slim branch to hang one’s hat on, to be sure. How much of our fate will be determined by the inevitable sparring match between the egos of Trump and Barr? Only time will tell.