Against the Persecution of Bill Barr

By David French
Thursday, May 09, 2019

The Democratic party’s current war on Attorney General William Barr is one of the most misguided, misplaced bursts of outrage that I’ve seen during the first term of the Trump administration. Barr protected the Mueller investigation, he went above and beyond legal requirements to release Mueller’s report to the public, and he has offered to congressional leaders far more details about the investigation than are publicly available. Yet now he’s subject to congressional contempt proceedings?

This is nonsense.

Barr has been far, far more transparent than governing law requires. The special-counsel regulations are crystal clear: The special counsel is required to deliver to the attorney general a “confidential report explaining [his] prosecution or declination decisions.” The attorney general is under no obligation to make that report public. Instead, the regulations state that he “may determine that public release of these reports would be in the public interest” and if so can release them subject to “applicable legal restrictions.”

This is exactly what Barr did: He released the report with minimal material redactions. The American public can read all about Russian interference in American elections, Trump’s unscrupulous campaign team, and Trump’s own deceptions right here. An annotated version can be read here. A bound volume of the report can even be bought here.

So why are Democrats now claiming that we’re in the grips of a “constitutional crisis”? Why are some openly suggesting using the sergeant at arms to arrest Barr and throw him in jail? The answer is absurd: because Barr has not complied with a congressional subpoena that demands from him documents he cannot legally disclose. Yes, that’s right. Congress is threatening Barr with contempt in part because Barr won’t break the law.

The House Judiciary Committee has subpoenaed the entire, unredacted Mueller report and the evidence that underpins it. Yet both the unredacted report and the supporting evidence contain classified information, information relevant to multiple additional ongoing investigations, and grand-jury information. While the release of classified information and information relating to other investigations can be negotiated, rule 6(e) of the Federal Rules of Criminal Procedure spells out the mandate for grand-jury secrecy and does not include an exception for congressional committees.

Barr has responded by permitting senior members of the Judiciary Committee (along with designated staff) to view a version of the report that redacts only the grand-jury information — a redaction that reportedly totals two full and seven partial lines from the obstruction portion of the report. To date, no Democrat has opted to view this less-redacted version. Instead, Nadler’s committee has proceeded directly to contempt proceedings.

Hours before the Committee’s contempt vote, the Trump administration asserted executive privilege over the entire report and its supporting evidence. This assertion — called a “protective assertion” — is intended to act as a temporary “hold” on legal proceedings while lawyers pore through the hundreds of thousands of requested pages to determine which documents are actually privileged. The legal basis for such an assertion comes from a 1982 Reagan-era memorandum and a 1996 Clinton-era opinion written by then–attorney general Janet Reno.

This isn’t a “constitutional crisis.” It’s standard legal sparring that is amply grounded in past precedent and past practice. It would be unlawful for the attorney general to provide Congress with protected grand-jury information. It would be similarly unlawful for the attorney general to provide information subject to validly asserted claims of executive privilege. It would be reckless and irresponsible for Congress to continue to demand wide dissemination of at least some of the classified information in the report and the supporting evidence and at least some of the information and supporting evidence that bears directly on ongoing investigations.

So, if we’re witnessing standard negotiations between Congress and the Department of Justice and standard, competing legal assertions, then why the overheated rhetoric? Why the claims that the “crisis is here.” Aside from the fact that we live in an overheated age, we cannot separate the current proceedings from the lingering fury generated by Barr’s initial rollout of the Mueller report. Democrats are livid that he created his own summary of the report rather than reproducing some version of Mueller’s summaries, and they’re livid that he and Rod Rosenstein issued their own legal opinion that Trump did not obstruct justice.

This anger was of course compounded when we discovered that Mueller directly complained to Barr that Barr’s summary “did not fully capture the context, nature, and substance” of his report. As I said when Mueller’s letter leaked, I understand his complaint, but it was entirely mooted when Barr released the report. Barr had the legal authority to exercise his own discretion in deciding how to describe the report and whether to release the report. The bottom line is that Barr chose transparency.

And while I understand why Democrats would be angry that Barr made his own obstruction-of-justice finding, let’s not forget that Barr’s determination is meaningless to Congress. It can choose to impeach the president regardless of the attorney general’s legal opinion. Indeed, it can impeach Trump even if he’s entirely innocent of any illegal activity. Impeachment is a political remedy for abuse of power, not a legal finding of criminal guilt.

Moreover, it is not the attorney general’s job to make impeachment politically easier for Democrats. If he believed in good faith that Trump did not obstruct justice, then he was amply justified in saying so. We now know that hundreds of former federal prosecutors disagree and believe Trump would have been charged if he wasn’t president. Their disagreement opens room for an important and necessary political debate. In fact, if Trump loses in 2020, a different attorney general could reach a different conclusion and direct his prosecution once he leaves office. As of this moment, no means of holding the president accountable have been foreclosed. The Democrats can still impeach. If Trump loses, a U.S. attorney can still indict.

The fact of the matter is that all too many Democrats hoped that Mueller (and, by extension, the Trump DOJ) would make their job easy. They believed that Mueller would deliver the kind of evidence that would operate like a silver bullet — a magic weapon that would slay the beast. When two things happened at once — Mueller completed his investigation without interference from the DOJ, and he concluded that the Trump campaign did not actively conspire with the Russian government — their hopes were dashed, and we were left with a messy, contentious political fight. So it goes.

The attorney general has not precipitated a constitutional crisis. Instead, he has played a key role in avoiding a true emergency. Far from acting as Trump’s bodyguard, the Department of Justice appointed a special counsel, defended him from presidential interference, and published his work for all to see. And now it is negotiating with Congress to disclose even more of his work.

The key figures in the Trump DOJ — Jeff Sessions, Matthew Whitaker, Rosenstein, Mueller, and, yes, Barr — have performed an invaluable public service. They withstood immense pressure from the president and fulfilled their statutory and regulatory mandates. They went above and beyond the requirements of the law in the name of transparency and the public interest. They did more than anyone else to expose Russian perfidy, campaign corruption, and presidential dishonesty. They deserve our applause, not congressional contempt.