Of President Donald Trump’s many career skills, perhaps the least appreciated is his lifelong and uncanny ability to sniff out lawyers who will serve his will.
In slightly more than 500 days in office, Attorney General William Barr has pivoted from establishment D.C. attorney—sworn to protect and defend the Constitution of the United States—into Trump’s family lawyer. The office of the attorney general is one of the oldest in our constitutional system, and the department is pledged “to ensure fair and impartial administration of justice for all Americans.” But Barr, instead, displays a tendency to use all the department’s levers—and with a $32 billion budget there are a lot of them—not to protect “all Americans” but to protect the president, personally and politically.
Is Election Day set by law? “I’ve never looked into it,” Barr demurred in his testimony this week. Is it appropriate for the president to solicit or accept foreign assistance in an election? Barr’s first answer: “It depends what kind of assistance.” These are the answers of a man who has turned the once-proud Department of Justice into the president’s personal law firm. That is contrary to every tradition of the Justice Department, but consistent with how Trump has operated for his entire professional life.
For decades, Trump found his family lawyers on the mean streets of New York and New Jersey, tapping the corrupt Roy Cohn and his successors, like Michael Cohen and Marc Kasowitz, to protect his interests. They quickly earned the title of “fixer” for a man whose personal and professional legal needs ultimately swelled to more than 4,000 lawsuits — bankruptcies, divorces, libel, unpaid debts, condo fees, wage disputes, and fraud, to name a few.
Above all, there was Cohn, who gave Trump his first taste of how an unscrupulous and savage lawyer could advance his cause. The two met in 1973 when Trump was looking for someone to help defend him and the family business from one of the nation’s highest profile charges of housing discrimination at the time. That case established a symbiotic MO between Trump and his lawyers—abuse of the law, and then covering it up—that continues to this day. Trump’s latter-day lawyers, Cohen and Kasowitz, both had their ethics problems: Cohen landed in prison for his role in covering up hush money payments in violation of campaign finance laws and for lying to Congress. Kasowitz faced allegations of violating legal ethics when he briefly represented Trump in D.C. but was best known for aggressive (some might say excessive) lawsuits against Trump’s adversaries.
Now Trump has Barr, who has become the president’s most prominent and prized fixer yet.
Barr’s testimony demonstrated a singular blend of real pugnacity and feigned world-weariness as he defended his 18 months in office. Barr has tried to muzzle Trump’s critics, protect his friends, hide information from Congress and investigate those who investigated the president. He has also—much like Cohn and Cohen—worked as a PR agent, spinning negative information in Trump’s favor, and even using federal agents to violently clear a path through protesters before a presidential photo op.
Above all, he has followed his boss’s lead in lying incessantly about every major scandal afflicting Trump, from Russia to Ukraine, and now about the current racial justice protests. Barr has is even begun lying preemptively about the coming election, claiming that the widespread use of mail-in ballots could lead to fraud. He continued also with a barrage of falsehoods large and small at this week’s House Judiciary Committee hearing, ranging from doubling down on his commitment to alternative facts about the Russia investigation to his insistence that no tear gas was used on protesters outside the White House, when the evidence is clear that it was.
It is tempting to think that everything will be set to rights when (or if) Barr leaves his post. But he is not a one-man show. He found and exploited structural and internal cultural weaknesses in the department that had been growing for years.
What that means is that the Department of Justice is going to have to come to a larger reckoning at some point, instituting or welcoming stronger safeguards against manipulation and misuse and shoring up ethical standards. It is going to have to find a way to stand up to all presidents who would intrude upon its independence, not just those named Trump. And as part of that, Congress also needs to figure out a way to conduct more effective oversight of the department.
Within the Justice Department, one important first step would be to rework the Office of Legal Counsel, a division that has systematically provided Barr with a cloak of legal respectability and has served as a legal rapid response team running personal errands for the Trump presidency. For example, it was OLC that wrote a much-derided snap memo to rationalize withholding the Ukraine whistleblower’s complaint from Congress; OLC and DOJ’s effort failed only because the House of Representatives successfully forced the document to light. OLC also has provided legal rationales for refusing to provide a House committee the president’s tax returns despite a clear statute saying they must be turned over. It has backed novel and extreme interpretations of executive privilege and absolute immunity for the president’s closest advisers, and it has done much more that is deeply destructive.
For decades, OLC opinions carried a presumption that they were based on scrupulous and thorough consideration of the law, even if some felt the office tended to go too far to serve the president’s will. But its reputation is now badly frayed. Step one in building back its repute would be greater discipline in how and when it issues opinions—and in when it refuses to issue opinions. For example, snap analyses should be strongly disfavored. In addition, OLC should also be more open about releasing its opinions to the public. Today, OLC selectively decides when to release opinions, and often withholds some that are crucial for understanding exactly what the government is up to. Taking these steps is something a new Attorney General could do immediately in order to help restore OLC to its former luster.
In addition to tackling the decay at OLC, the department’s watchdogs and ethical advisers need to be further empowered. One proposal backed by several Republican senators, for example, would allow the department’s respected and well-funded inspector general to look into allegations of professional misconduct of the sort Barr has been accused of. Currently such allegations are reviewed by another office within the department that is supervised by the attorney general—virtually ensuring that his behavior will escape scrutiny. Inspectors general, on the other hand, are singularly independent and tough; they certainly have not hesitated to investigate the heads of other Cabinet agencies in the current and previous administration, and given the number of prominent Republicans already backing this idea, passing a law strengthening ethics investigations seems doable.
Meanwhile, the department’s ethics program can be swathed in mystery and exude a whiff of ad hoc decision-making. While there are manuals and regulations aplenty, there is very little clarity or openness about how Department of Justice attorneys are held to account. To this day, for instance, no one has seen a full explanation of why former Attorney General Jeff Sessions recused himself from the Russian interference investigation and why Barr, who was involved in some matters that were part of the probe, did not. Transparency about that could help rebuild public confidence and all it would require is an attorney general committed to transparency about ethics enforcement.
Finally, Congress needs to reboot its powers to conduct meaningful oversight. If it was not already obvious, the system for appointing and confirming an attorney general and the top personnel to the Department of Justice has broken down. Nominees have memorized the necessary formula: the promise, when asked, that they will resist illegal and unconstitutional requests. They swear they will say no to an overweening president or resign if need be. Then they get confirmed, and all bets are off.
Ongoing and systematic oversight by Congress is the only way to fix this problem. Earlier this year, the House Judiciary Committee used special counsel in addition to members to lead off questioning of some high-profile witnesses during its impeachment inquiry. The system allowed for focused and complex lines of inquiry, with the opening round of extended counsel questioning nicely setting up more focused five-minute rounds of questioning by members. But that exception required a special resolution of the full House. Why not change the standing rules of the House to allow that option more broadly? That would allow deeper oversight from Congress.
In the case of Barr, Trump’s instinct for finding fixers has served his agenda well. But it has devastated the once-proud Department of Justice. Restoring the department’s reputation will take sustained work long after Barr departs and Trump is once more cruising the back streets of the Tri-State area for representation.