So far, Attorney General William P. Barr’s testimony before the Senate Judiciary Committee has done himself and the administration no favors. To the contrary, former acting solicitor general Neal Katyal observes, “Barr has been evasive and misleading from the first paragraph. It’s conduct totally unbecoming of an attorney general. He’s not even very good at misleading.”
Fordham law professor Jed Shugerman were more blunt. "This is nuts . . . just bonkers, " he told me mid-morning.
Among Barr’s worst moments: Claiming there was a difference between seeking to remove special counsel Robert S. Mueller III for “conflicts” (which never existed), or firing him; claiming, despite the language of Mueller’s letter, that he did not think Mueller found Barr’s four-page letter from March 24 misleading; claiming that he did not release Mueller’s summaries because the entire report had to be released (yet Barr released his own four-page letter, which he refused to characterize as a “summary”); and claiming that Mueller refused to reach a prosecutorial decision (despite the Office of Legal Counsel (OLC) guidelines prohibiting prosecution of a sitting president) because of insufficient evidence.
Again and again, the attorney general resorted to word games. He didn’t lie, he now argues, when he told committee members that he was unaware of the Mueller team’s objections because he was referring to the team, not to Mueller. (Isn’t Mueller part of his own team?) On the difference between removing Mueller for phony conflicts and firing him, Shugerman says, “I cannot understand his explanation on Trump manufacturing a conflict of interest as distinguishable from firing. Both are impeding an investigation.”
“Barr’s testimony has been disgraceful,” constitutional scholar Laurence H. Tribe tells me. “He’s betraying his oath as the nation’s chief law enforcement officer, acting as though he were Donald Trump’s personal defense attorney.” Tribe continues, “He has been purposely misleading, both on ‘collusion’ and on whether Mueller would’ve recommended indicting President Trump if only he had thought the evidence warranted doing so — something Barr knows full well [Justice Department] policy flatly prohibited.”
Tribe adds, “Even when Barr isn’t dissembling, he’s manifestly slippery and evasive. Barr’s answers manifest the kind of sophistry that gives lawyers and the legal profession a bad name. It’s quite clear that Barr would be shredded by the kind of cross-examination by staff that he has told the House Judiciary Committee he wants to avoid.”
The attorney general seems determined to incinerate his professional reputation. Former federal prosecutor Renato Mariotti says, “Barr is deliberately misleading the U.S. Senate by making statements that are highly deceptive but technically accurate. This underscores the importance of asking carefully worded questions, and explains why Barr is reluctant to submit to questioning by a lawyer for House Judiciary.”
What is clear is that the Justice Department’s delaying tactics on allowing Mueller to testify must end. If need be, Mueller must be subpoenaed. “If there was any chance DOJ could prevent Mueller from testifying it’s gone now,” says former prosecutor Joyce White Vance. “Congress is entitled to hear from Mueller directly to see if he agrees with Barr’s characterization of his concerns and his comments.”
If Democrats before had suspected Barr was being intentionally deceptive, acting more like a slick lawyer defending a client than an attorney general presenting the findings of a prosecutor appointed by his own department, this performance will convince them he is intentionally fencing with Congress to minimize the president’s wrongdoing. One cannot read the 10 categories of conduct and Mueller’s recitation of the OLC letter without concluding that the special counsel was leaving the matter to Congress. Barr, in denying the plain meaning of Mueller’s report and deciding a prosecutorial decision had to be made, ignores history (e.g., special prosecutor Leon Jaworski made a referral to Congress during the Watergate scandal) and twists Mueller’s words (in particular, intimating that Mueller wasn’t affected by the OLC letter).
We’ll see how the rest of his day goes and whether he shows up before the House Judiciary Committee. An honorable person would resign, but having proved himself a political hack, Barr surely will not and, therefore, may face impeachment hearings. He’s become Trump’s lawyer (a clumsy one at that) and has ceased to abide by his oath to enforcement the laws (including his own department’s OLC guidelines). He can no longer function credibly as attorney general.