27 Problems With Media’s Latest Failed Attack On Attorney General William Barr

Some days it seems as if Attorney General William Barr is one of very few adults in Washington, D.C. The highly respected attorney is serving his second tour at the head of the Department of Justice. The first was during the George H.W. Bush administration. A brilliant legal mind with a candid and no-nonsense attitude, Barr is able to withstand pressure from the media and other members of the Resistance.

Partisan media vehemently oppose Barr, partly for being an effective advocate of President Trump’s policies at the Department of Justice, but mostly for admitting and expressing concern about the Department of Justice’s role in the Russia collusion hoax that undermined the Trump administration.

Nearly the entire political media establishment worked with anonymous sources inside the government and Democratic offices to spread the false conspiracy theory that Trump was a traitor who had colluded with Russia to steal the 2016 election from Hillary Clinton. This false and dangerous conspiracy theory negatively affected national security and foreign policy, sidelined Barr’s predecessor at the Department of Justice, and generally made it difficult to run the executive branch or secure good political appointees to work in the administration.

As the media did with Rep. Devin Nunes (R-Calif.), who accurately raised the alarm about Russia collusion story, they have put out a series of attacks and hit pieces on Barr and John Durham, the federal prosecutor Barr appointed to investigate the FBI’s spying on the Trump campaign. The playbook is for the media and Democrats to discredit whomever they decide is a threat.

Rep. Adam Schiff, who spent years falsely claiming to hold evidence of treasonous collusion with Russia, called Barr “the second most dangerous man in America.” One Washington Post headline: “John Durham has a stellar reputation for investigating corruption. Some fear his work for Barr could tarnish it.” As in, if Durham’s investigation doesn’t match the false narrative set by the Post and other media outlets, they’ll rewrite the story about his reputation. Nice reputation you have, Durham. Shame if something happened to it.

The fear of Durham’s investigation and Barr’s support for that investigation is legitimate. The media and other Resistance members staked their reputations on the Russia probe, which imploded spectacularly when, despite the daily if not hourly promises of bombshells and “walls closing in,” Special Counsel Robert Mueller and his sprawling investigation were unable to find a single American who had colluded with Russia to steal the 2016 election.

While he doesn’t have the resources Mueller had, Durham doesn’t face the limitations other investigations into the Russia collusion hoax had. Unlike the inspector general, who recently found the FBI committed egregious errors in its efforts to wiretap a Trump campaign affiliate, Durham can obtain information from people outside the Justice Department, including former employees, other agencies, and those outside the government. The probe has found enough to become a criminal investigation.

Latest Hit Piece on Barr Fits This Pattern

The best hope the media and other Resistance figures have is to discredit Nunes, Durham, Barr, and anyone else who threatens to embarrass them. That’s the context for the latest hit piece on Barr, by The New Yorker’s David Rohde. Rohde’s extreme bias against Trump is apparent in this and other writings, such as the one where he fantasized that Barr might be imprisoned for his support of Trump, and would have to recuse himself from the administration of the Justice Department as Democrats push their media-led impeachment effort.

The framework of the article is that a top official in the Trump administration supporting Trump and his policies is somehow nefarious. Among other things unique to the Trump administration is the media’s idea that political appointees should be virulently opposed to the president elected by the American people. Another key theme of Rohde’s is that a cabal of Christians is conspiring to do … bad things in the administration. The article is absolutely riddled with errors and omissions of key facts.

Peter Baker of The New York Times said Rohde’s article was a “smart, richly rendered and compelling profile.” It is, alas, not even close to any of these things.

1. Lies About the Historical Record

For example, in the second paragraph, Rohde writes about a speech Barr recently gave at the University of Notre Dame. Barr asserted that declining religious influence in American life has left the country more vulnerable to government dependency. He also noted that some of the left’s secularists are not particularly tolerant.

For Rohde, the speech was “a catalogue of grievances accumulated since the Reagan era, when Barr first enlisted in the culture wars. It included a series of contentious claims. He argued, for example, that the Founders of the United States saw religion as essential to democracy. ‘In the Framers’ view, free government was only suitable and sustainable for a religious people—a people who recognized that there was a transcendent moral order,’ he said.”

Of course, there is nothing contentious about the claim that the Founders saw religion as essential to maintaining the republic. You can read the full speech here (in so doing, you might note that every word of Rohde’s characterization is wrong or misleading). Barr follows up that line by immediately quoting Founding Father, statesman, attorney, writer, second President and first Vice President of the United States John Adams:

As John Adams put it, ‘We have no government armed with the power which is capable of contending with human passions unbridled by morality and religion. Our Constitution was made only for a moral and religious people. It is wholly inadequate for the government of any other.’

The factual errors, inaccuracies, omissions of context, and poor sourcing are riddled throughout the article. While political differences such as those between Rohde and Barr account for some of the problems, such as whether it’s a good or bad idea to have a religious test for political appointees, Rohde gets major issues wrong, such as War Powers, the Mueller report and its handling, and the FISA abuse investigation.

2. The U.S. Didn’t Invade Kuwait In 1990

But he gets even basic facts wrong, such as his claim that “In August, 1990, Bush invaded Kuwait, with congressional approval.” It was Iraq that invaded Kuwait in August of 1990. The U.S.-led response to that invasion began with an aerial campaign in January 1991 and ground troops expelling those forces from Kuwait in February 1991, followed by a brief incursion into Iraq. The New Yorker has an unwarranted reputation as diligent in fact-checking, but the piece is full of errors that would be easy to check, suggesting the absence of fact checking.

Every paragraph in the nearly 10,000-word article has significant problems. Taken together, it is just one long string of innuendos that Barr is evil. Yet the innuendos are laid down in such a dry, disaffected style it’s as if Rohde and his editors don’t think the reader will notice how they’re leading him to one facile conclusion after another. It’s almost parodic.

Beyond the two errors cited above, here are just some of the other significant problems with Rohde’s emotional screed against Barr.

3. Mischaracterizes Independent Counsels

Rohde argues that Barr’s views on executive power are wrong. He praises President Jimmy Carter for signing legislation allowing independent counsels while denouncning all criticism of these counsels from Republicans or conservative Supreme Court justices.

Rohde writes, “During his [earlier] tenure, Barr turned down multiple requests to name prosecutors to examine potential executive-branch abuses. ‘The public integrity section told me that I had received more requests for independent counsel in eighteen months than all my predecessors combined,’ Barr recalled. ‘It was a joke.’”

Nowhere does Rohde mention that there was broad bipartisan consensus, led by Democrats, against the independent counsel legislation and that it was allowed to lapse as a result. Here’s the top of a 1999 CNN article, for example:

Saying, ‘I don’t think it is fixable,’ Sen. Tom Daschle on Sunday echoed the sentiments of many lawmakers on Capitol Hill toward the Independent Counsel Act.

With the statute set to expire on June 30, it is almost certain the law will be allowed to lapse.

‘The time has come for us to close the books and try to find another way within the Justice Department itself to handle these responsibilities,’ the South Dakota Democrat said on ABC’s ‘The Week.’

Even GOP members of Congress agree with the Senate’s minority leader.

4. Ignorance of Actual War Power Debates

Rohde takes snippets of an interesting interview with Barr to suggest that Barr’s views on executive power are crazy. For instance, he inaccurately summarizes a discussion between Barr and President Bush over whether the president has the right to go to war.

While Barr’s explanation is lengthy and specific to the circumstances, Rohde says his view is simply that the president can go to war whenever. Barr further explains his case that even though Bush had the right to fight Iraq and specific congressional approval to put troops near Iraq, that he should explicitly obtain Congress’s support for a counterinvasion.

Here’s how Rohde puts it:

Barr feared that lawmakers would try to block such an action, and so he urged Bush to cover himself by obtaining Congress’s support. Even the other conservatives in the room were startled; Justice Department officials were expected to maintain scrupulous impartiality. According to Barr, Cheney, at that time the Secretary of Defense, reprimanded him: ‘You’re giving him political advice, not legal advice.’ Barr recalled that he said, ‘I’m giving him both political and legal advice. They’re really sort of together when you get to this level.’ In August, 1990, Bush invaded Kuwait, with congressional approval. The following year, he named Barr Attorney General.

The quotes are from Barr’s own telling of events, and he never describes anyone as startled. As described in Judge David Barron’s “Waging War,” power struggles between Congress and the president go back to George Washington. And most successful presidents who have waged war use a combination of their commander in chief authority and congressional approval when serving. It is hard to imagine that seasoned government officials would be startled by discussions of law and politics before entering war.

5. Mischaracterizing Views On Criminal Justice

Rohde is upset that Barr doesn’t think the poor are more immoral than the rich. “In a 1995 symposium on violent crime, he argued that the root cause was not poverty but immorality,” Rohde writes, aghast. It’s unclear precisely what Rohde’s problem with the statement is. He notes that Barr doesn’t believe poverty programs will fix violent crime. But that’s not Barr’s view so much as the simple truth. Many billions of dollars have been spent on poverty programs without the desired effect on violent crime.

Later he writes, “In 1992, rioting erupted in Los Angeles following the acquittal of four police officers who had been videotaped beating the motorist Rodney King. Barr deployed two thousand federal agents on military planes to stop the unrest. He later argued that civil-rights charges should have been brought—not just against the offending officers but also against the rioters on the streets of L.A.”

Again, it’s unclear what his problem is. He leaves out, incidentally, that California Gov. Pete Wilson requested the agents, or that the deputy attorney general was responsible by statute for authorizing their deployment. More than 60 people were killed in the riots and nearly 2,400 were injured. It’s unclear why Rohde doesn’t think those victims matter.

6. Confuses Problem With Mueller’s Political Team and Other People’s Political Action

“In another article, Barr criticized Robert Mueller for hiring prosecutors who had donated to Democratic politicians—but did not disclose his own donations to Republicans,” Rohde writes, apparently confused about the difference between needing a politically balanced team to handle the most politically sensitive investigation in the Justice Department’s history, and being a Republican appointee and political donor.

7. Bizarre Characterization of Barr’s Memo About Obstruction of Justice

Here’s Rohde’s characterization of Barr’s memo to the Justice Department arguing against redefining obstruction of justice to include lawful actions taken by the president.

Barr has said that he wasn’t interested in the position of Attorney General. But in June, 2018, he sent an unsolicited, nineteen-page legal memo to Rod Rosenstein, the Deputy Attorney General, who was overseeing the Mueller investigation. He spent much of the letter elaborating an argument that a President’s Article II powers rendered him essentially incapable of obstructing justice. He acknowledged that such blatant acts as destroying evidence and encouraging perjury were impermissible. But, he wrote, ‘Mueller’s core premise—that the President acts ‘corruptly’ if he attempts to influence a proceeding in which his own conduct is being scrutinized—is untenable.’ Benjamin Wittes and Mikhaila Fogel, of the blog Lawfare, described the memo as ‘bizarre.’ Barr, without firsthand knowledge of the facts in the case, had devised a legal theory of obstruction, attributed it to Mueller, and then declared it ‘fatally misconceived.’

Rohde provides no evidence for his insinuation that Barr was seeking to be made attorney general. As for the memo, it was completely vindicated by the eventual attempt of Mueller to, well, redefine lawful actions taken by the president as obstruction of justice. The idea that Benjamin Wittes — given the nickname Dr. Tick Tock Von Boom Boom for his use of a cannon to suggest the Mueller investigation was tick-tick-ticking to an explosive outcome — as a good arbiter of what’s bizarre is itself bizarre.

8. Speaking Of Rohde’s Sources

Rohde clearly did not have access to Barr or most people close to him. There is maybe one person quoted who is not a member of the Resistance. Instead, Rohde goes to implicated parties in the Russia collusion hoax, such as Wittes, James Baker, and David Laufman. Laufman wasn’t just implicated in the Russia story, he was also a figure in the smearing of Brett Kavanaugh. As one former Justice official asked, “Was Rohde even trying?”

The most telling choice for a source was Don Ayer, a former Bush DOJ official Rohde used extensively. Ayer has attacked Barr on NeverTrump podcasts and is the media’s go-to source for negative quotes about his former colleague.

It probably should have been mentioned that Ayer had a disastrous and brief tenure as the deputy attorney general before being replaced by Barr in 1990. Attorney General Dick Thornburgh scrambled to find a deputy after his pick failed to make it through Senate confirmation. An aide suggested Ayer, who made it through, but quickly proved to be a bad match. He only made it a few months before being canned.

On his way out, Ayer trashed his boss and his career never took off. There are reports he felt resentful of Barr going back to 1990. Ayer ended up handling pro bono cases for Jones Day. It’s fine to use activists, implicated parties, or people with personal grudges as sources, of course, but Rohde should have disclosed all of these things.

9. Weird Description of Confirmation Hearing

Rohde suggests that Democratic senators should have given Barr a religious test for confirmation. “Ignoring the advice of some aides, Democrats did not dwell on Barr’s statements regarding criminal justice, or on whether his religious beliefs might affect his views.” Barr is Roman Catholic, which Rohde paints as a sick and demented belief system that should perhaps be barred from public service. That bigotry is woven throughout the article and thoroughly debunked here.

Rohde goes on to suggest that Barr should have seen his role as confrontational to Trump, deferential to Mueller, and supportive of the Russia hoax. “He testified that he believed that Mueller, a longtime associate whom he described as a “good friend,” should be allowed to complete his investigation. But he also signalled skepticism about the idea that Trump had colluded with Russia, and repeatedly expressed support for the President’s policies.”

Left unsaid is that Trump had not colluded with Russia and such skepticism was warranted. Or that neither Trump nor Barr nor anyone else interfered with the Mueller probe in any way.

10. Revisionist History on Kavanaugh

In Rohde’s telling, President Trump is such an obstructionist, that he was hostile to Congress’s request for information on Kavanaugh.

When past Presidents resisted sending materials to Congress by claiming ‘executive privilege,’ Justice Department lawyers tried to help resolve the disputes. Under Trump, that practice has stopped, Senator Sheldon Whitehouse told me. As Brett Kavanaugh was going through confirmation hearings for the Supreme Court, Congress requested documents describing his work in the George W. Bush Administration. The White House refused access to more than a hundred thousand pages of them. Blank sheets of paper arrived on Capitol Hill stamped ‘Constitutional privilege,’ a category that members of Congress said they had never heard of before.

Rohde does not mention that senators could review Kavanaugh’s 307 opinions and hundreds of other opinions he joined, totaling more than 10,000 pages of the actual writing that matters. Or that Kavanaugh submitted more than 17,000 pages of speeches and articles, along with a 120-page written response to the Senate, more than any other nominee ever had. Or that senators were given nearly half a million pages of documents from Kavanaugh’s time in the executive branch.

Read more — and stuff that’s way more exciting than paperwork battles — in the best-selling book I co-authored with Carrie Severino, “Justice on Trial: The Kavanaugh Confirmation and the Future of the Supreme Court.”

11. False Claims About Barr’s Summary of Mueller

“When the special counsel Robert Mueller released the findings of his inquiry into connections between Trump’s 2016 campaign and Russia, Barr presented a sanitized four-page summary before the report was made public, which the President used to declare himself cleared,” Rohde writes. In fact, Barr’s summary explicitly quoted Mueller’s view that while the report “does not conclude the President committed a crime, it also does not exonerate him.”

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