William Barr and the Crucial Role of the Justice Department

By Jeffrey Toobin, The New Yorker

20 January 19

Donald Trump’s nominee told senators that he would protect the work of the special counsel, Robert Mueller, but that’s not the Attorney General’s only job.

hen William Barr testified last week before the Senate Judiciary Committee as President Trump’s nominee for Attorney General, he gave the impression that he would be an aberrational figure in the Administration. Unlike many members of the President’s Cabinet, Barr is experienced, knowledgeable, and clearly qualified, in any formal sense, for the job, which he has held before, under President George H. W. Bush. In addition, he has a reputation for integrity and straight dealing. Most of the questions at his confirmation hearing concerned the work of Robert Mueller, the special counsel, whom Barr will supervise if he is confirmed. He made a convincing case that he would allow Mueller to complete his investigation of President Trump. He was less definitive about how much of Mueller’s report he would release, but he seemed receptive to the sentiment, expressed by Democrats and even by some Republicans, that the public has a right to know what Mueller has learned.

Based on the hearing, one might think that supervision of the special counsel is the Attorney General’s main responsibility. But that’s far from true, and it’s regarding the other work of the Justice Department, particularly its central mission of protecting the civil rights of all Americans, that the prospect of Barr’s service appears dismaying. By and large, he seemed prepared to sustain the work of his predecessors in the Administration: the belligerently right-wing Jeff Sessions and the comically unqualified Matthew Whitaker, the acting Attorney General.

Consider voting rights. In the past decade, Republicans have changed and applied electoral laws to make it harder for Democrats, especially people of color, to vote. The Supreme Court abetted these practices with its decision, in 2013, in the Shelby County case, which gutted the Voting Rights Act. The midterm elections brought home the consequences. In states around the country—especially Florida and Georgia, where African-Americans ran competitive statewide campaigns—voter suppression, in various forms, demeaned the process and may have affected the outcome.

And what has the Trump Justice Department done about these outrages? It’s encouraged them, in part by withdrawing legal challenges to discriminatory laws which were filed during the Obama Administration. (In Ohio, the department switched sides in a suit that had been brought to halt a purge of registered voters.) Last week, Barr said that he would enforce the Voting Rights Act, but he did not seem perturbed by the problem of voter suppression. He allowed that low voter turnout was likely the result of public disengagement, adding that “turnout shouldn’t be artificially driven up.” Actually, turnout by eligible citizens should be driven up, whether artificially or otherwise.

Indeed, the Trump Justice Department has had something of an obsession with making sure that minorities don’t count. Its lawyers colluded with Commerce Department officials to add a question on citizenship to the 2020 census questionnaire. This was widely seen as an attempt to dissuade non-citizens and immigrants from participating; undercounting them would deprive states of the share of congressional representation and federal funds owed to them. Last week, a federal district judge invalidated the move, but the Justice Department is pressing an appeal.

Barr is sure to continue the defense of the citizenship question (in the hearing, he punted on the matter of birthright citizenship), and his views on immigration appear substantively similar to the Administration’s. He has praised Sessions for addressing “the rampant illegality that riddled” the system, and supported Trump’s travel ban. In the hearing, Barr endorsed the President’s noxious idea of building a wall on the border with Mexico, on the ground that it would keep out illegal drugs. (The vast majority of drugs enter the country through existing border crossings.)

When it comes to criminal justice, the department has mirrored Trump’s reflexive solicitude for law enforcement. Under President Obama, the department engaged in serious oversight, at times negotiating binding consent decrees with police departments that had demonstrated hostility, or worse, toward African-Americans. As soon as Sessions took office, he all but withdrew from the business of investigating police misconduct. His attitudes were so antediluvian that they ran into opposition from many Republicans as well as Democrats: at the end of the year, Congress passed, and the President signed, the FIRST STEP Act, a modest but meaningful measure that will reduce the federal prison population by several thousand inmates, and shorten sentences for several thousand more.

Barr’s first stint as Attorney General, in the early nineteen-nineties, came at a time when the country was in a panic about rising crime, and both parties were complicit in passing laws, all supported by Barr, that put too many people in prison for too long. He has been fulsome in his praise of Sessions on law enforcement, and last week said that he agreed with him on the consent decrees. Yet he also acknowledged that times have changed; crime is way down, and people on all sides now agree that mass incarceration is both a moral and an economic abomination. In a hopeful sign, Barr suggested that he might temper Sessions’s instructions to federal prosecutors to always seek long prison sentences. He also vowed to allow states to continue to experiment with the legalization of marijuana, which is still, technically, illegal to possess under federal law.

In all, Barr came across as what he is: a conventional conservative and a competent officeholder, who would have been at home in any other Republican Administration since the Second World War. Like virtually every Republican in Congress, he seems willing to uphold the policies of the Administration while choosing not to see—or, at least, not to confront—its ignorance and its recklessness. It’s typical of this President that he subjected Jeff Sessions to endless abuse for the one thing that he did absolutely right—recusing himself from the Mueller investigation.

But, if confirmed, Barr may soon experience at first hand Trump’s disregard for the norms of governmental conduct. Trump has never understood that the Attorney General is the people’s lawyer, not his personal protector. Barr sounded like a man who will resist the President’s corrupt entreaties, and for this, if for little else, there’s reason to be grateful.