When the Justice Department announced it would drop charges against former Trump National Security Adviser Michael Flynn, legal experts reacted with a combination of shock and horror.
Flynn not only lied to the FBI about his contacts with the Russian government, which is a crime, but admitted that he had lied in open court. At best, dropping his case is highly unusual; at worst, it’s President Trump corruptly protecting a political ally who broke the law on his behalf.
After the decision was announced, CBS News released an interview with Attorney General William Barr on the Flynn case. The clearly incredulous reporter, Catherine Herridge, asks Barr how he thinks history will remember his actions in this case.
“Well, history is written by the winners,” the attorney general responds. ”So it largely depends on who’s writing the history.”
It’s a remarkable answer — perhaps the pithiest expression of the Trump-Barr governing philosophy that we’ve seen yet.
Throughout his term in office, Barr has acted more as Trump’s personal attorney than as the nation’s top law enforcement official — repeatedly deceiving the public about the Mueller report’s findings, interfering in the sentencing of Trump ally Roger Stone, and helping Trump’s personal lawyer Rudy Giuliani funnel bogus intel on Biden and Ukraine to the president. He and Trump seem to believe that governing is an exercise in power, where the strong do what they can and the weak suffer what they must.
This attitude is anathema to democratic politics. In democracies, the justice system is supposed to be neutral in political disputes: an enforcer of the rules of the game, referees that ensure all political players abide by democratic practices. Under Barr and Trump, the Justice Department is being used as an extension of the White House’s interests — a tool that allows their allies to break the laws the Justice Department is, in theory, supposed to enforce.
The force of Herridge’s question is the idea that, down the road, future Americans who believe in basic ideas about democracy and the rule of law will see Barr’s behavior as unacceptable and will judge him harshly.
Barr’s response suggests he just doesn’t care: As long as his side wins the struggle for political power today, his allies will be in a position to tell people who was in the right. The very act of winning power makes its exercise legitimate.
The scariest thing about Barr’s response is that he actually has a point.
Liberals and other critics of Trump’s more authoritarian tendencies like to imagine that history will automatically vindicate them after Trump leaves office. I imagine many Union partisans thought much the same after the Civil War, yet the successful insurgency against Reconstruction — and rise of neo-Confederate apartheid regimes in Southern states — constituted a more insidious kind of Confederate victory.
The now-notorious Dunning School of historians convinced millions of Americans that the racist Southerners were the real victims during Reconstruction. Monuments to the Confederacy cropped up across the South. Even today, mainstream politicians and media figures defend flying the rebel flag as a matter of “heritage, not hate.”
History does not automatically reward the morally righteous. Through political struggle, the people who seem like clear villains — even racist authoritarians — can end up wielding enough power to change the way they’re remembered in the eyes of many. Trump and Barr are counting on Trump apologists in the Republican Party having enough power to do the same for many years to come.
The key question, perhaps in all of American politics, is whether they’re making a wise bet.