Editor’s Note: In this weekly column “Cross Exam,” Elie Honig, a CNN senior legal analyst and former federal and state prosecutor, gives his take on the latest legal news. The views expressed in this commentary are his own. View more opinion on CNN. Watch Honig answer readers’ questions on “CNN Newsroom with Jim Acosta” on weekends.
It was already a matter of record that William Barr abused his power as attorney general under former President Donald Trump. Turns out, it’s even worse than we knew.
There’s no question that Barr was fundamentally dishonest (to put it charitably). Federal judges nominated to the bench by presidents of both political parties have found that Barr “lack(ed) … candor“; that his public and in-court statements were “disingenuous,” “incomplete,” “inconsistent” with truth and “called into question Attorney General Barr’s credibility.” Others, including former special counsel Robert Mueller, thousands of former Justice Department officials (including me), and members of Congress have expressed doubt or worse about Barr’s truthfulness and integrity.
We already knew that Barr politicized the Justice Department. He used it defensively to shield Trump from potential criminal exposure by misleading the public about Mueller’s findings, and by declaring, contrary to the evidence and the law, that Trump had not obstructed justice. (In his report, Mueller detailed extensive evidence of obstruction, but declined to clearly state whether he concluded that Trump had committed a crime). And Barr intervened in unprecedented fashion to undermine his own Justice Department’s prosecutions of Trump’s political allies Michael Flynn and Roger Stone.
But recent revelations – that prosecutors in Trump’s Department of Justice subpoenaed Apple for data from the accounts of Democratic members of Congress, their staffs and families – are different in kind. According to The New York Times, Barr even moved a New Jersey-based attorney to the main Justice Department to work on a case related to Rep. Adam Schiff of California, one of the House Democrats whose data was sought. (Barr, the Justice Department and Apple declined to comment on the story to the Times, though the Justice Department’s inspector general has said it will investigate.)
In taking such action, Barr used the staggering power of his position to selectively pursue Trump’s perceived political rivals. This is eerily similar to former President Richard Nixon’s “enemies list” and his efforts at retributive action.
Barr himself apparently understood the flagrant impropriety of his actions. In a memorable confrontation in May 2019, then-Sen. Kamala Harris – plainly aware that Trump had publicly called for the Justice Department to lash back at Mueller and others by “investigating the investigators” – asked Barr at a Senate Judiciary Committee hearing, “Has the President or anyone at the White House ever asked or suggested that you open an investigation of anyone. Yes or no, please, sir.”
This straightforward question should have elicited a straightforward response. Instead, Barr stammered, stalled for time, feigned as if he hadn’t heard the question, asked Harris to repeat it and then pretended not to understand the meaning of the basic English word, “suggested.”
Barr’s response to Harris was telling. If nobody at the White House had asked (or “suggested”) that he open an investigation, that’s an easy “no” response. If somebody had asked, and there was nothing improper about it, then a simple “yes” would suffice. But Barr played dumb and engaged in semantic games. He seemed to know the answer was “yes” – and that his conduct was too ugly to openly admit.
Indeed, we are now learning just how deep Barr’s corruption ran. He reportedly reauthorized an investigation into purported leaks by Congress even after the investigative trail had gone cold (and it’s not clear there was any basis for an investigation in the first place).
Prosecutors hold enormous power, including nearly unfettered discretion to obtain information through subpoenas. But ethical prosecutors use that power only where they have a good faith basis – “predication,” as prosecutors sometimes say – to believe that the subpoena is necessary to uncover evidence of a specific crime. Yet Barr reportedly demanded that prosecutors redouble their efforts, absence of evidence be damned.
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Making matters worse, Barr apparently authorized the extraordinary step of seeking to renew a “gag order” which prevented the recipients of the subpoenas (Apple and another service provider) from notifying the subjects of the subpoenas. The end result was an unfair fight, where the subjects – including Schiff and Rep. Eric Swalwell of California – did not even know their personal information had been obtained by law enforcement, and had no ability to fight for their own privacy and other legal rights in court.
In a famous 1940 speech, then-Attorney General Robert Jackson noted astutely that “the prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous.” With that power comes unique public trust to exercise prosecutorial authority impartially and evenly. As Jackson said, “While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst.” Barr’s despicable conduct – and the damage he has wrought – proves that Jackson had it exactly right.