Attorney General William P. Barr’s scalding criticism of some of his own Justice Department prosecutors grew in part from frustration with the accusation that he had improperly intervened in high-profile political cases, but those close to him insist it was also meant as a signal to those on the right calling for arrests of former officials whom President Trump dislikes.
In a speech Wednesday night to a conservative audience, Barr said some prosecutors were “headhunters,” and that career staff, rather than being best suited to make decisions in sensitive cases, must defer to him, the nation’s top law enforcement official. He decried what he called the “criminalization of politics” and the lust among some pundits to criminally charge officials with whom they disagree.
Current and former Justice Department officials expressed a range of reactions to the speech, from outrage to mild disappointment to curiosity about whether the attorney general is trying to send a message about action in future cases. Some said Barr was attacking the institution he leads, seemingly ignoring that Trump, perhaps more than anyone, has pushed for charges against those he considers political foes.
“He need look no further than to Pennsylvania Avenue,” said one career Justice Department employee, speaking on the condition of anonymity to criticize a superior.
But some people close to the attorney general said Barr’s speech was meant not just as a rejoinder to those on the left who have criticized his moves on cases involving Trump associates, including former national security adviser Michael Flynn and longtime friend Roger Stone. Barr was also gingerly trying to temper conservatives’ hopes that, before Election Day, former senior officials once involved in investigating the president will be charged criminally, people familiar with the matter said.
The people spoke on the condition of anonymity to reveal private discussions with the attorney general.
Barr has tapped the U.S. attorney in Connecticut, John Durham, to review the FBI’s 2016 investigation into whether Trump’s campaign coordinated with Russia to influence the election. Trump and other conservatives have been hopeful that Durham will validate their long-held criticism of the Russia probe by bringing serious charges or leveling public allegations against top law enforcement and intelligence officials who worked in the Obama administration.
Barr already has publicly dashed conservatives’ hopes of even higher-level indictments, saying former president Barack Obama and former vice president Joe Biden, Trump’s challenger in the November election, are not being investigated.
Barr, who also served as attorney general in the George H.W. Bush administration, has long harbored skepticism about the independence of career prosecutors — declaring in a 2001 interview that they were some of “the most political people in the Department of Justice.” In the past year or so, he talked with friends about his desire to give a speech on the topic that would be akin to an address then-Attorney General Robert Jackson gave in 1940, warning of how a prosecutor’s great power could be used for evil.
“He sensed a trend that certain prosecutors around the country had just gotten away from what Jackson was saying and were targeting people, as opposed to targeting crime,” said Richard Cullen, a former U.S. attorney now in private practice who is close with Barr. “And he said he felt like before he left office, he was going to give a speech about that.”
By the time Barr finally delivered the address — choosing a Hillsdale College event in the Hyatt Regency ballroom in Arlington, Va. — the matter had become somewhat personal. Barr had grown increasingly at odds with career prosecutors in his department over his personal intervention in criminal cases.
First, he moved to overrule the sentencing recommendation career prosecutors had given for Stone, who had been convicted of lying to Congress as part of its investigation of Russian interference in the 2016 election. The action sparked four career prosecutors to withdraw from the case, with one quitting government entirely. Barr later moved to drop the nearly resolved prosecution of Flynn, who had pleaded guilty to lying to the FBI about his dealings with a Russian diplomat before Trump was sworn into office.
More recently, Barr pressed Durham to expedite his work. In the midst of that, Durham’s top career deputy on the case, Nora Dannehy, left the Justice Department entirely.
While asserting his authority to overrule career prosecutors, Barr notably jabbed at those who would seek to charge their political opponents.
“Now you have to call your adversary a criminal, and instead of beating them politically, you try to put them in jail,” he said, adding that some investigations lasting months or years ultimately never produce charges.
As president, Trump has repeatedly called for the prosecution of his political foes, and when he was a candidate in 2016, his rallies frequently featured chants of “lock her up” in reference to his Democratic opponent, Hillary Clinton.
One person familiar with Barr’s thinking said, “I dare to say that Barr would point to the ‘lock her up’ quotes as fitting squarely in the type of conduct that he views as problematic.”
Another said his speech “cuts both ways” — addressing both overzealous career prosecutors and those who want to see Durham bring charges where the law and the facts might not support them. The person said Barr understands some of conservatives’ frustration with Durham and himself is skeptical of what happened in the Russia probe, but that he is unwilling to charge people if the evidence does not support it.
“I think Bill was talking both to the left and to the right,” Cullen said, adding: “This is mainstream thought. This isn’t just Bill being on a one-man crusade. There are a lot of people who feel that way in the type of work that I do and others do, that there’s been somewhere between a subtle and a dramatic shift toward hunting people, not hunting crimes, and that’s scary, because of the incredible power that a U.S. attorney and an assistant U.S. attorney have.”
Critics, though, say Barr has facilitated the president’s calls to investigate or prosecute Trump’s enemies. On Thursday, a Justice Department spokeswoman revealed that Barr had directed officials to research whether they could take civil or criminal action against officials in Portland, Ore., for possibly running afoul of civil rights laws as they responded to unrest in that city stemming from protests against racial injustice and police brutality. The spokeswoman, Kerri Kupec, declined to say whom in the city they researched taking action against.
Trump has repeatedly criticized Portland’s Democratic mayor, Ted Wheeler, calling him “incompetent” and alleging that he had “watched great death and destruction of his City.” Justice Department officials also discussed whether officials in Seattle — which experienced similar civil unrest — might have possible criminal civil rights liability, though Kupec said Barr had not directed that.
Separately, Barr has told federal prosecutors to aggressively pursue cases against those committing violence amid the protests, and in a Justice Department conference call last week he suggested they might apply a rarely used law against sedition, according to people familiar with the conversation. On Thursday, Deputy Attorney General Jeffrey Rosen issued a memo to prosecutors in response to that controversy, blaming the news media for misrepresenting what Barr said and what he meant.
The section of federal law cited by the attorney general, Section 2384, relates to charging people with opposing the U.S. government by force, or preventing, hindering or delaying the execution of a law. “Those who have actually read the statute recognize that the text of Section 2384 could potentially apply to some of the violent acts that have occurred,” the memo notes, adding that the Obama administration charged nine suspects under that part of the law in 2010.
Jonathan Turley, a law professor at George Washington University and constitutional scholar, said that while other administrations have prosecuted people under that law, it had “been primarily used for mischief, and so there are very few redeeming qualities.” Barr’s interventions in the Stone and Flynn cases had already dampened morale inside the department, but one career attorney said Wednesday that the speech marked a significant low point.
“We have a long and checkered history dealing with free speech, and specifically using sedition charges to quell dissent,” he said.
“We’re somewhat desensitized, but this was beyond the pale,” the attorney said, speaking on the condition of anonymity. “Again, you never expect the head of your agency to dismiss you and to denigrate the work that you do, and to call into question your motives. You don’t go to work every day for that.”
Some career prosecutors, though, said Barr’s views, while problematic, were not wholly off-base. As the attorney general, they said, Barr is the ultimate decider. What was most problematic, some said, was his claim that prosecutors who have to defend tough decisions to federal judges lack the political buy-in to do so.
At a congressional hearing Thursday, Rep. Val Demings (D., Fla.) a former police chief, pressed FBI Director Christopher A. Wray about Barr’s comment in his speech the night before that all FBI agents ultimately report to the attorney general, as the nation’s top law enforcement official. “Whose agents do you think you are?” Barr had asked rhetorically.
“I’m not familiar with that particular comment by the attorney general,” Wray told Demings, but added, “We, the FBI, work for the American people.”
After his speech, Barr also made several controversial comments on some of the most politically charged topics of the day.
He claimed, for example, that the Black Lives Matter movement was “not interested in Black lives. They’re interested in props, a small number of Blacks who are killed by police during conflicts with police — usually less than a dozen a year — who they can use as props to achieve a much broader political agenda.”
A Washington Post tracker found that 250 Black Americans were killed by police last year. Black people are also killed by police at a higher rate than White people, The Post found. A Justice Department official said Barr meant to refer to unarmed Black people; last year, The Post identified 14 such people who were killed.
Barr also compared coronavirus lockdown measures to house arrest, as he has in the past, but added, “other than slavery, which was a different kind of restraint, this is the greatest intrusion on civil liberties in American history.” Responding to the comment, House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) said Barr’s “entire worldview is dangerous and wrong.”