William Barr Is Attacking His Own Department

December 13, 2019 0 By HearthstoneYarns

(Bloomberg Opinion) — When President Donald Trump appointed Bill Barr as attorney general back in February, it seemed like good news for the Department of Justice. The department had suffered some serious damage to its public reputation under attorney general Jeff Sessions — much of it inflicted by Trump himself.

The president had systematically attacked the department and the FBI, depicting choices of investigation and prosecution as partisan and political. Trump had fired the FBI director, James Comey, and excoriated Sessions for recusing himself from the Russia investigation that Comey had begun. The appointment of Barr, who held the same job under George H. W. Bush, held out the prospect of a strong attorney general who would protect the department and its institutional integrity.

It hasn’t turned out that way. Unlike Sessions, Barr has managed not to be criticized by Trump. But instead of protecting the Department of Justice and its institutional integrity, Barr has instead attacked the department he leads by lambasting the FBI, which is part of the DoJ. 

The most blatant example of Barr’s attack on his own department came this week, when Barr described the FBI’s investigation into the Trump campaign’s contact with Russians a “travesty” with “many abuses.” He also said that the investigation featured “gross abuses … and inexplicable behavior that is intolerable in the FBI.”

Barr’s attacks are are especially stunning because they were timed to undercut the Justice Department’s very own inspector general’s report on the FBI’s investigation into election interference. While that report did find serious errors and omissions in the FBI’s work, it also rejected Trump’s narrative that the investigation was politically motivated or illegitimate. (Barr has also commissioned a separate investigation into the origins of the FBI’s Russia investigation, which in fact will be the “last word” on the subject, if only because it will come after the IG’s report.)

An inspector general is the official in a government department who is supposed to be the most outside politics — whether that’s organizational politics or the red-blue kind. And the Department of Justice is supposed to be the least political department in the executive branch. So a report from the Justice Department IG should be at the apex of apolitical objectivity.

An attorney general who wanted to restore the department’s reputation for nonpartisan investigation and prosecution would have embraced the IG report — or at worst, ignored it. Barr criticized it head on. By doing so, he sent the message that he did not trust the assessment of his own inspector general. That is a perfect way to deepen public distrust of the department.

What’s going on? Does Barr actually not care about his department’s reputation and institutional credibility? Or has he made a strategic decision to keep Trump from attacking the department by doing so himself, preemptively? Note that Trump has gone after FBI director Chris Wray for defending his own organization even mildly. In contrast, Trump seems well pleased in his servant Barr.

It’s a peculiar strategy to be sure. It’s demoralizing enough for a government department to come in for presidential attack. But to be publicly undercut by your own department head is arguably worse for morale.

And because the public, even the Republican public, now applies some discount to anything the president says, Barr’s criticism of his own department may do even more long-term damage. Barr must know this. 

Whatever his motivation, Barr is making a catastrophic error. He is entitled to a strong view of executive authority. But he is the current steward of an institution which he has now run twice. That gives him the obligation to restore Americans’ bruised trust in a department that investigates and prosecutes apolitically. Right now, that is an obligation he is shirking.

To contact the author of this story: Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story: Sarah Green Carmichael at sgreencarmic@bloomberg.net

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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