I don’t know Bill Barr. I have never met him that I can recall. If you had told me we have more than our age in common, I would have laughed in disbelief. I know little of his personal life, but there are odd symmetries to our lives. Our paths, while not exactly intertwined, have crossed, literally and figuratively, for decades, notwithstanding our diametrically opposed political and legal views.
In addition to our age, we were in the same entering year at Columbia, and we both became lawyers. Barr’s high school picture from his senior year at Horace Mann, an elite New York City private school, offers only the slightest clue to his political future. Like my senior picture from the very serviceable public high school I attended, it shows a serious-looking young man, his head tilted slightly in the standard pose for such photographs in those days. His hair, like mine, was a bit longer than a crew cut, swept across the forehead from a side part. We were both thinner then.
The brief bio accompanying his picture proclaims his staunch conservative political views. Mine made no such proclamation, only listed my achievements and activities. But if it had, it might have mentioned that I leaned left and found my spiritual home more in Greenwich Village than in upper-middle class Manhattan. Our religious affiliations too have an off-kilter connection. He is descended from secular Jews on one side of his family and has morphed into a conservative Catholic, while I was raised as a secular Jew in a predominantly conservative Catholic neighborhood.
In the spring of our first year of college, Bill Barr and I participated in one of the seminal political moments of our youth — the Columbia “strike,” or “riot” (as I imagine he might put it). For me, my support of the Columbia strike, as chaotic and out-of-control as it sometimes felt, was an extension of beliefs and activities that I had been instinctively drawn to since high school. Barr was active in the Majority Coalition, the group known for ringing the occupied buildings on campus, trying to halt resupply of the occupying students, confronting us “troublemakers” where they found them. He has described his involvement, and the opportunities to confront his political opposites, with some glee in numerous interviews and articles.
I remember members of the Majority Coalition standing around Low Library in their blazers and ties, the products of a college culture that seemed to be rooted in the past. Or so I recall. Perhaps we ran into each other at the barricades.
Now Barr is in the news again. First, it was the decision of Judge Amy Berman Jackson of the U.S. District Court for the District of Columbia in what might otherwise have been a relatively straightforward case under the Freedom of Information Act, involving the claim of privilege with certain materials prepared in connection with Barr’s now- infamous summary of the Mueller Report.
This is not the first case to arise as a result of that summary, but the decision puts in high relief the role of Barr and the Department of Justice he led in shielding Donald Trump from the consequences of his actions. Judge Jackson’s Memorandum Opinion calls into question “the accuracy of Attorney General Barr’s …representation to Congress,” describes Barr and his department as guilty of “bad faith” along with “disingenuousness [and] obfuscation” and dismisses the affidavits presented in the case as “not worthy of credence.”
And then came the disclosure of the seizure of data from at least two Democratic members of the House of Representatives, Adam Schiff and Eric Swalwell, both of California, and apparently their staff and families, as well as phone records for journalists at a number of mainstream media outlets. The story is unfolding — the data seizure was only the beginning of the revelations — and apparently both Barr and Jeff Sessions, his predecessor, have denied knowledge of the secret subpoenas used to gain access to the records. The inspector general of the Department of Justice and Senate Democrats have promised investigations. Should we be surprised? To take Barr’s own words out of context, “No, it’s obvious.”
That was Barr’s response to Steve Inskeep of National Public Radio when asked during whether he [Barr] had any evidence of the existence of counterfeit mail-in ballots, a concern Barr voiced on a number of occasions.
As a lawyer, I thought his answer surprising, and even more so coming from the attorney general of the United States, the nation’s top lawyer. What about evidence? Facts? The things a lawyer is expected to look at, to analyze, to use as a basis for argument. Instead, he dismissed the issue without even a half-hearted attempt to cloak the response in legal arguments. Had I mistaken the nature of the office as well as its occupant? I decided to dive deeper.
The office of the attorney general is as old as our government. It was created by Senate Bill No. 1 during the first Congress of the United States, part of the Judiciary Act of 1789. The attorney general is a member of the Cabinet, but somewhat independent of the president, at least in theory. The attorney general was originally considered a lesser role than those of the heads of other executive departments, perhaps because there was no department — the Department of Justice did not come into being until 80 years later, in 1870.
The first attorney general, Edmund Jennings Randolph, had no clerk, no office, no assistants and no money to hire one or rent one. He was paid substantially less than his colleagues in the Cabinet. The job was intended as a part-time position. The attorney general was to maintain his private law practice — there was no “hers” until Janet Reno, some 200 years later — while serving in the role.
For the first attorneys general, the role seemed to be a stepping-stone to more important Cabinet jobs. Randolph himself left the post to succeed Thomas Jefferson as secretary of state. Later attorneys general went on to important roles in the government, including a number who became justices, and in the case of Roger Taney, chief justice, of the Supreme Court. Barr is only the second to have served in the position twice, the first time in George H.W. Bush’s administration, and the second as successor to Jeff Sessions under Trump.
After his years at Columbia, Barr went to graduate school, then to the CIA. I had a series of odd jobs, painting houses, doing construction and working in a warehouse for a year or two, until I landed a job working in a program in Brooklyn which was more consistent with my politics and how I saw myself. Barr went to law school at night, obviously aiming for something higher, graduating in the spring of 1977. I too went to law school, and graduated in the same year, although never in my wildest imagination did I think I would actually become a lawyer.
I did, and it turned out I am good at it. After a decade or two of berating myself for selling out, I came to terms with the contradictions and found I could live with myself for doing my job. Which I have done in all the decades since.
Barr, on the other hand, appears from all outward signs to have experienced none of the self-doubt I suffered as he went from the CIA through a series of jobs to Justice, climbing ever upward. After his first stint as attorney general, he became general counsel to Verizon and its predecessor companies, returning to Justice after Trump fired Sessions.
At some point along the way, Barr became an adherent of a legal theory that sounds innocuous enough, the “unitary executive.” As I understand it, that theory is based on the tenet that the powers of the president expressly granted under the Constitution are absolute and cannot be limited by the courts or Congress, even in the case of alleged wrongdoing by the President and his henchmen. (Still no “her”!)
This theory of executive power seems to have colored the legal interpretations and advice Barr has rendered throughout much of his career, although to those of us who care not to get lost in the weeds of constitutional interpretation, the unitary executive sounds an awful lot like Vladimir Putin, albeit without the shirtless bareback rides and mysterious poisoning of his political enemies.
Although Barr would undoubtedly disagree, and perhaps offer seemingly well reasoned arguments to the contrary, he has taken the theory to questionable extremes, whether intended or not, using it to justify or support, among other things, interference with prosecutions, like those of Roger Stone and Michael Flynn, investigations of perceived political enemies, the suppression of votes through limitations on mail-in ballots and similar efforts.
Barr is not the first attorney general to stray into politics from the duties expressly laid out for the office in the Judiciary Act, or the first to execute those duties with a particular political or legal bent or bias. Eric Holder was Barack Obama’s self-described “wingman.” John Mitchell, the attorney general under Richard Nixon, went to jail for his part in the Watergate cover-up. And Bobby Kennedy, referred to by some as the “assistant president” to his brother, is alleged to have been intimately involved in political operations far beyond the attorney general’s limited statutory powers, including extra-legal activities such as attempts to overthrow Fidel Castro.
Indeed, one can trace the “undefined responsibilities” of the attorney general all the way back to the aforementioned Edmund Randolph , who in one of his first acts was directed by George Washington to survey and gauge the views of the citizens of Maryland and Delaware on Washington’s declaration of neutrality in the conflict between Britain and France.
When viewed through that lens, it may be that Barr’s actions as attorney general were not outliers but part of the duties that fell to or were assumed by the occupants of the office over the years, although they were not specifically envisioned by the founders or Congress and lie far beyond the limited authority of the statute, which is mostly to represent the United States in court and to advise other executive departments on their legal rights and obligations.
But it was still jarring to hear the nation’s chief lawyer openly provide political cover for the president, as Barr did in releasing the purported summary of the Mueller report or opposing the use of mail-in ballots (a decision generally left to the states) on the grounds that the risk of fraud was “obvious.”
Like many others, I was taken aback — not necessarily surprised, but disconcerted — when Trump sought to have Barr and the Department of Justice represent him in the defamation lawsuit brought against him personally by E. Jean Carroll, who has claimed that Trump raped her in a department-store dressing room decades ago. There seems to be no way to contort that into an engagement representing the United States, or even the president in the execution of the duties of the office, although Barr’s Justice Department, and as most recently reported, the Justice Department now led by Merrick Garland, have asserted just that.
Notwithstanding his pre-election reservations about mail-in ballots, and notwithstanding what is reported to have been intense pressure from the White House, Barr rejected Trump’s repeated claims of widespread voter fraud, after his own department found none existed. But the damage was done, not only to Barr’s reputation, which he apparently cares little about, but to our democratic processes, to the confidence citizens may have in the government, to any claim to fairness or even-handed administration of justice. And ultimately to the idea that there is such a thing as truth.
So: Barr and me. What can I say? Not exactly strange bedfellows, but oddly connected. And still on the opposite sides of the barricades.