Bill Barr is acting like Trump's attack dog, not his attorney general
Earlier this year a slew of distinguished lawyers signed an open letter to the Washington DC legal bar, asking it to investigate and discipline the US attorney general, William Barr, for possible ethical violations.
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The complaint charged him with violating his oath and the constitution by, among other things, representing “the personal and political interests of Donald Trump, not the interests of the United States”. It quoted a legal ethics professor, Stephen Gillers: “We don’t have an attorney general now. We have an additional lawyer for the president.”
If Barr’s outrageous interview with CNN on Wednesday is anything to go by, the professional discipline complaint gave him too much credit.
In his interview with Wolf Blitzer, Barr acted less like America’s highest law enforcement officer and more like a campaign press aide for Donald Trump.
The distinction is extremely important. Lawyers deal in evidence and law. Campaign press spokesmen mimic their candidate’s talking points. Prosecutors are careful not to speak publicly about a criminal investigation. Campaign press aides make unfounded charges to dip into culture wars.
This is not the way an attorney general should behave. After Watergate, Edward Levi affirmed that “our law is not an instrument of partisan purpose”. The next attorney general, Griffin Bell, proclaimed the justice department “a neutral zone” beyond politics.
Barr lowered the bar even on his prior public appearances. Let’s look at five things he said.
1. Mail-in voting
Trump has continually attacked the post office and vote-by-mail. Barr amplified that sentiment on Wednesday, speculating that universal mail-in voting was “playing with fire”, “open to fraud and coercion” and “reckless and dangerous”.
When Blitzer asked Barr how many mail-in voter fraud cases his justice department has prosecuted, however, Barr demurred: “I don’t know off the top of my head.”
In fact, the evidence is clear: mail voting fraud is practically nonexistent. Utah, one of the most conservative states in the union, has had universal mail-in voting since 2012. Utah county’s Republican clerk reports that “there has not been a single prosecuted case of vote-by-mail fraud. And we’ve looked.”
Out of billions of mail-in votes cast between 2000 and 2012, the University of California law professor Richard L Hasen recently found 491 cases of fraud nationwide among absentee ballots between 2000 and 2012. That would be a percentage under 0.000025.
Indeed, in 2017, Trump set up a whole new election fraud commission to disprove the idea that Hillary Clinton legitimately vanquished him in the popular vote. The commission quietly disbanded without producing a shred of evidence of voter fraud.
2. Foreign ballot interference
It gets worse. The president said in August that foreign countries might try to “grab batches” of vote-by-mail ballots from the US Postal Service. Barr, acting less like a lawyer and more like a propagandist, took it a step further. Consider this fearmongering exchange with Blitzer:
“If we use a ballot system, a system that states are just now trying to adopt, it leaves it open to counterfeiting,” Barr said.
“Do you think a foreign country could do that?” Blitzer asked.
“I think anybody could do that,” Barr said.
“But have you seen any evidence that they’re trying to do that?” Blitzer asked.
“No, but most things can be counterfeited,” Barr said.
There was also this:
“You’ve said you’re worried a foreign country could send thousands of fake ballots” to US voters, Blitzer said. “What are you basing that on?”
“As I’ve said repeatedly, I’m basing that on logic,” the attorney general replied.
“But have you seen any evidence?” Blitzer pressed.
“No,” Barr responded.
3. Voting twice
In North Carolina on Wednesday, Trump went from the ridiculous to the sublime, encouraging his supporters to vote both by mail and then in person, a clear violation of the law in that state.
After Barr tried to make sense of the statement, Blitzer asked the AG if it was legal to vote twice. Barr’s answer? “I am not familiar with the law of the particular states.” Incredulous, the CNN host repeated the question, and the attorney general repeated his answer.
We do expect lawyers to know, and to state unequivocally, that voting twice is election fraud, and against the law. It would amount to a class I felony in North Carolina. Apparently, knowing that was too much to ask of the attorney general of the United States.
4. China, not Russia
Barr not only made statements for which he lacked evidence; he also made statements contradicting public evidence.
We know that the president has done everything possible to deny Russian election interference. This year, he has taken to arguing that China is the one trying to steal the election – for his opponent.
Singing from the same songbook, the attorney general did not hesitate to name China over Russia, when Blitzer asked him on Wednesday which country was the most aggressive election interferer in 2020. When Blitzer asked, “Not Russia?” Barr repeated, “China.” When Blitzer inquired about the basis for the AG’s opinion, Barr answered, “I’ve seen the intelligence,” and refused to say more.
But what did Trump’s own Office of National Intelligence say? That Russia is using “active measures” to help Trump, while China “prefers” Biden because Trump is “unpredictable”, and that China is using more traditional foreign policy measures in Biden’s favor.
There is a world of difference between active election interference and using diplomatic tools. Barr’s answer contradicted the intelligence community’s statement.
5. Kenosha culture war
When Blitzer asked Barr about the tragic shooting of Jacob Blake in Kenosha, Wisconsin, he repeated another Trump mantra. He denied that there was systemic racism in the US justice system and argued there was a “false narrative” that the country was in an “epidemic” of unarmed Black people being killed by police officers.
He even suggested that if anything reforms of the past 60 years have built into them “a bias toward non-discrimination”.
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Barr veered from justice department regulations that prohibit prosecutors from commenting on cases before charges are filed when he talked about the Blake shooting. He alleged that Blake “had a weapon” and “was in the process of committing a felony”.
Never mind that Blake had his three children in the car while he was supposedly committing that felony. Never mind that Blake’s family has said he did not have a weapon and that no one has reported seeing a weapon. Never mind that the police officer shot Blake seven times in the back while holding Blake’s T-shirt from behind.
Barr’s CNN interview makes clear that he has trashed the scruples of his post-Watergate predecessors and sunk to the level of a common campaign flack. And it shows his worldview to be indistinguishable from that of the president he so dutifully serves.
By devoting himself to promoting the president’s partisan aims, he disserves the interests of the American people that he is duty bound to represent.
Austin Sarat is William Nelson Cromwell professor of jurisprudence and political science at Amherst College and the author of Gruesome Spectacles: Botched Executions and America’s Death Penalty. Dennis Aftergut is a former federal prosecutor who writes on national affairs
