The US Department of Justice is shut down this week, with many staff furloughed and many others working without pay, but the Senate is starting the work of installing a new boss in the form of William Barr, President Donald Trump’s selection to succeed Jeff Sessions as attorney general.
Barr, who served as both attorney general and deputy attorney general during George H.W. Bush’s administration, is certainly qualified for the job.
But Trump is not particularly known for valuing a depth of government experience in his appointees. It seems instead that what appealed to Trump about Barr is that he is a known critic of special counsel Robert Mueller’s investigation. Trump has been angry for years that neither Sessions nor Sessions’s deputy, Ron Rosenstein, agreed to act as zealous defenders of Trump’s personal interests.
Yet Barr gives every appearance of being a solidly pro-Trump pick on topics beyond Mueller, espousing hardline views on criminal justice and immigration that put him into closer alignment with the Trump/Sessions approach than with the more moderate style of politics that’s often associated with the Bush dynasty.
It’s a track record that offers plenty for Democrats to object to. And with three Democrats on the Judiciary Committee known to harbor presidential ambitions, it’s reasonable to expect fireworks at the hearing. Yet the larger context of Senate proceedings has changed, with the GOP picking up two seats on net in November’s election and — perhaps more importantly — shedding some of its most Trump-skeptical members, meaning there’s little that Democrats can realistically do about Barr but complain.
Barr wrote a deeply skeptical memo about the Mueller probe
Barr served in the Justice Department near the end of a span of history in which Republicans won five of six presidential elections but Democrats continuously controlled the House and mostly ran the Senate, too.
It was a time, in short, when the balance of power between the branches of government had a clear partisan valence and when “investigating the president” almost invariably meant investigating a Republican. Investigative work ended Richard Nixon’s presidency, and it deeply imperiled Ronald Reagan’s at the height of the Iran-Contra scandal — that inquiry was ultimately scuttled by George H.W. Bush pardoning a number of high-ranking Reagan administration officials.
Consequently, even though Barr’s tenure in office was several political epochs ago, it was perfectly timed to produce a Republican legal thinker who would instinctively agree with Trump’s basic view that presidential powers are vast and investigations are to be resisted.
More specifically, last June, Barr wrote a private memo to the Justice Department in which he blasted the Mueller investigation. In it, Barr admits that he is “in the dark about many facts,” but went on to make a lengthy argument that Mueller appeared to be “proposing an unprecedented expansion of obstruction laws” that he claims could have “grave consequences” to the executive branch. Barr’s key claim is that Mueller’s “obstruction theory is fatally misconceived” and “premised on a novel and legally insupportable reading of the law.”
The problem, Barr asserts, is that Mueller is treating “facially-lawful” actions in which Trump exercised his executive authority as if they could be obstructive. The Constitution gives the president authority over the Justice Department and its use of prosecutorial discretion, and Barr argues the president has the authority to ask the FBI director to drop an investigation and to fire the FBI director for whatever reason he wants.
During a press conference shortly after the memo’s existence was revealed, Rosenstein was asked about it and seemed to imply that Barr was getting the basic story wrong.
“Our decisions are informed by our knowledge of the actual facts of the case, which Mr. Barr didn’t have,” he said.
Barr was a major proponent of mass incarceration
When Barr first became attorney general in 1991, the United States experienced 9.8 murders per 100,000 residents. That number began to fall in 1994, eventually reaching just 4.4 murders per 100,000 in 2014. Murder then ticked up somewhat to 5.4 per 100,000 in 2016 (a number that would have been considered an enormous victory in Barr’s day) before falling slightly in 2017 and appearing to be on track for a big drop in 2018 when all the numbers are in.
Under the circumstances, it’s not particularly surprising that the politics of the early 1990s were awash in “tough on crime” rhetoric and policymaking, with Barr very much at the center of things.
As summarized for Vox by German Lopez, Barr was an enthusiast for drastically expanding the prison system and downplaying concerns about racial equity:
- As deputy attorney general from 1990 to 1991 and attorney general from 1991 to 1993, Barr pushed for and helped implement more punitive criminal justice policies, including a 1990 crime law that, among other things, escalated the war on drugs.
- In 1992, Barr signed off on a report by the Department of Justice titled The Case for More Incarceration. In a letter of support, he argued that “there is no better way to reduce crime than to identify, target, and incapacitate those hardened criminals who commit staggering numbers of violent crimes whenever they are on the streets.” He also called on the country to build more jails and prisons. (Although he specified violent criminals, the federal system, unlike the much larger state systems, locks up mostly drug offenders.)
- In 1992, asked about racial disparities in prisons by Los Angeles Times reporter Ronald Ostrow, Barr argued that “our system is fair and does not treat people differently.” He went on to defend laws that made prison sentences for crack cocaine much harsher than prison sentences for powder cocaine. The disparity between the two was reduced by the Fair Sentencing Act of 2010, in part because there’s little justification for it based on the drugs’ effects, but the higher sentences for crack have a disproportionate racial impact since crack was more commonly used in black communities and powder cocaine was more commonly used in white communities.
- In 1994, Barr co-chaired a commission for Virginia’s governor that released a plan to abolish parole (which allows certain inmates to go free before the completion of their sentences) in the state, increase prison sentences, and build more prisons.
- Barr also once said that it was “simply a myth” that there were “sympathetic people” and “hapless victims of the criminal justice system” in prisons, according to David Krajicek at Salon.
Obviously, the actual situation is very different in 2019 in regard to both the much lower crime rate and the much higher prison population, so many people have changed their views about how to strike the right balance. Barr, however, joined with two other Republican former attorneys general to write an op-ed in November hailing Sessions’s “tough on crime” approach, specifically praising him for going after drug dealers and reversing Obama-era efforts to reduce the use of excessive force by police officers.
Barr was the original wall-builder
Perhaps most interestingly, Barr took over as attorney general at a time when unauthorized migration from Mexico was rising and when there were few physical impediments to crossing the border.
These days, the large, unfenced areas of the US-Mexico border exist overwhelmingly in remote rural locations that are inconvenient for would-be border crossers and relatively easy to surveil. But in the early 1990s, there were minimal physical barriers even in built-up cross-border metropolitan areas like San Diego/Tijuana or El Paso/Juarez.
Unauthorized crossings were, at the time, heavily concentrated in the San Diego area, and Barr rolled out a multimillion-dollar plan to beef up security there. One component of that plan: building a steel fence with the assistance of the Department of Defense. (Migrants were unimpressed; a few days after Barr gave a speech in San Diego announcing the new funding, a group of migrants had dug a large hole under the steel fence.) The San Diego area started a border-wide trend of building physical barriers to prevent crossings in populated areas — funneling immigrants toward the Arizona desert and, more recently, gang-controlled crossings in the Rio Grande Valley.
Barr also began the trend of hiring Immigration and Naturalization Service investigators to go after “criminal aliens involved in street gangs” and advocated for “summary deportation proceedings to weed out patently phony claims for asylum.”
He perhaps more tellingly had a broader instinct to see unauthorized migration as not just a problem on its own terms but as a root cause of a much wider set of social ills, telling the Los Angeles Times in the wake of the Rodney King riots that “the problem of immigration enforcement — making sure we have a fair set of rules and then enforce them — I think that’s certainly relevant to the problems we’re seeing in Los Angeles.”
The Justice Department, as currently constituted, has much less authority over immigration issues than it did in Barr’s day because many of the relevant agencies have been handed over to the Department of Homeland Security. But Barr clearly shares his broad instincts and can speak firsthand to the merits of wall-building in helping secure specific stretches of the border.
Expect tough hearings and an easy confirmation
Sens. Cory Booker (D-NJ) and Kamala Harris (D-CA) are both on the Senate Judiciary Committee and are widely thought to harbor presidential ambitions, for which Barr’s confirmation hearings will provide an early opportunity to communicate before a national audience.
Also on the committee is Sen. Amy Klobuchar (D-MN), whose plans are less clear but who has also been widely touted as a potential 2020 contender. Klobuchar is less well-known than either Booker or Harris (who themselves occupy a name recognition rung below Joe Biden, Sen. Bernie Sanders (I-VT), and Sen. Elizabeth Warren (D-MA)) and could really use an opportunity to make a wave or two. And Klobuchar, unlike Booker and Harris, has relatively little experience appealing to black and Latino voters; the Barr hearings offer her a potential opportunity to demonstrate concern with key issues of interest to voters of color.
The fate of the Mueller inquiry, however, is overwhelmingly likely to be top of mind for Senate Democrats, who have good reason to fear that installing Barr could be the first step in sandbagging the investigation.
Republicans on the committee, meanwhile, will almost certainly use the specter of presidential ambitions to dismiss Democrats’ questioning as just so much theatrics. Republicans’ once razor-thin 51-49 majority in the Senate is now more comfortable at 53-47. With Jeff Flake, Bob Corker, and John McCain all gone from the Senate, the caucus is also more reliably pro-Trump.
Under the circumstances, there’s no reason to think there are potentially persuadable GOP votes out there or any prospect of Barr’s nomination getting quashed, and Democrats have little real leverage to extract any concessions from him on the subject of Mueller or anything else.