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Can We Stop Pretending Prosecutors Are Impartial Now?

Attorney General Bill Barr and ex-prosecutor Rudy Giuliani share the same job: defending the president.

Alex Wong/Getty Images

The attorney general, it is presumed, represents the people of the United States, not the president of the United States. Yet the latter is how Attorney General William Barr will be remembered.

As the House of Representatives investigates a whistleblower complaint alleging that President Trump pressured the president of Ukraine to investigate his political rivals, urging him to work with Barr and Rudy Giuliani as his “personal envoys,” Barr stands to lose what’s left of the respectable, protective sheen of his office. His association with his boss’ highly dubious activities, along with Giuliani’s brand of potentially criminal lawyering, may at last put to bed the American fantasy of the impartial prosecutor, someone who despite their human failings—and their tremendous power—will uphold the rule of law.

To be regarded in the same breath as Trump’s hatchet man may anger Barr. But in the memo of Trump’s phone call with Ukrainian President Zelenskiy, which the White House released last week, Trump spoke of the two as collaborators: “I will have Mr. Giuliani give you a call and I am also going to have Attorney General Barr call and we will get to the bottom of it.”

Last week, a CBS News/YouGov poll found that four out of ten Americans now believe the president is a crook—that he engaged in illegal activities in the Ukraine matter. The man the president appointed as the nation’s chief law enforcement officer has been defending him—while pointedly not recusing himself from investigating the complaint he himself is implicated in. Barr has “gone rogue,” according to Speaker of the House Nancy Pelosi. But has he gone rogue, or has the attorney general merely leaned fully into the reality of law and order in the United States, the truth behind the romantic, egalitarian fantasy of criminal justice perpetuated from its beginnings?


Under Barr, the presumption of prosecutorial fairness can be seen for what it provides cover for: the two-tiered justice system in this country. When a homeless man is prosecuted for trespassing or stealing what he needs to live and lands in jail, but bankers who steal millions from the many walk free, that’s understood to be because that bankers are closer in power to the people who would prosecute them than the homeless man.

Democrats were first concerned Barr would never fully investigate Trump because he was more loyal to Trump than to the rule of law. His handling of the whistleblower complaint raises a fresh concern: Barr could be aiding in a cover-up. After learning of the complaint, Department of Justice lawyers may themselves have violated whistleblower protection law to keep the complaint from Congress. The Barr Justice Department declined to bring criminal charges based on the complaint. (The Justice Department denies that Barr ever communicated with Ukraine “on this or any matter,” nor did Barr speak about Ukraine with Giuliani, according to a spokeswoman.) And on Monday, reports surfaced of a second Trump call deploying Barr, this time for an investigation into what Trump asserts were the origins of the Mueller probe—a conspiracy theory—with Barr allegedly initiating the call. Barr has also sought other foreign officials’ collaboration in this ongoing investigation into the Russia inquiry, which Trump believes will undermine the Justice Department’s investigations into his own activities.

In short, Barr may now get away with involvement in what intelligence investigators regard as potentially criminal conduct—precisely because he tops the justice system. Barr appears to have already used the Justice Department not only to protect Trump, but to conduct investigations into his opposition on his behalf. Now, Barr could attempt to use the Justice Department to shield himself from the consequences of abusing it.

It’s grim, but predictable, especially to those who for so long have insisted that such unfairness is not evidence of a broken system, but a system working as designed.

Before the whistleblower report, Barr already stood on shaky ground. Only three Democratic senators voted to confirm Barr in February. (Two of those senators have since expressed regrets.) The appointment and confirmation put Barr in charge of overseeing what would be made public from special counsel Robert Mueller’s investigation into Trump’s 2016 election, despite the fact that Barr, as attorney general under President George H. W. Bush, recommended that six Reagan administration officials be pardoned for crimes committed in connection with the Iran-Contra cover-up.

Barr initially downplayed the Mueller report’s findings when summarizing them for the public, leading Mueller to write to Barr that his summary “threatens to undermine” public confidence in the investigation. Before Mueller’s letter to Barr was made public, Barr told the House Appropriations Committee that he wasn’t aware of any such concerns from Mueller’s investigators. Speaker of the House Nancy Pelosi subsequently called Barr’s denial of Mueller’s concerns a lie and a crime, and Barr then denied his denial.

“Mr. Barr, now the American people know that you are no different from Rudy Giuliani,” Senator Mazie Hirono told him in May, once this all came out, “or Kellyanne Conway or any of the other people who sacrifice their once decent reputation for the grifter and liar who sits in the Oval Office.”

Those who had held out hope that Barr would ultimately defend the rule of law have, with each revelation, fallen away. “It is better to have an attorney general who is steeped in the traditions and culture of the Justice Department,” wrote Benjamin Wittes upon Barr’s nomination in December, “than to have an acting attorney general [Matthew Whitaker] who is understood at the department to be operating as the ‘eyes and ears’ of a president who is busily attacking the institution.” In April, Wittes begged, “For the next two weeks, let’s give Attorney General William Barr the benefit of the doubt.” (Former FBI Director James Comey urged similarly.) By May, Wittes wrote: “I was willing to give Bill Barr a chance. Consider me burned.”

Former assistant United States attorney in the Civil Division Maya Wiley, now a MSNBC legal analyst, has withdrawn her once cautious support, as well. “I believed he was capable of sticking to the rule of law and ensuring the Department of Justice maintained the public trust in the midst of an investigation of the president,” she wrote Thursday of Barr, recalling his appointment in February. “I said as much on live TV. I was wrong.” In April, she had said Barr was “acting as the communications director for the White House rather than the U.S. attorney general.” Now, with the release of the whistleblower complaint, Wiley has called for his impeachment.


The political dimensions of any prosecutor’s job are becoming harder to ignore. This may be partly due to the seemingly never-ending non-indictments of police officers who have shot and killed people on the job. Attorneys in Barr’s civil rights division declined to charge former NYPD officer Eric Pantaleo, whose illegal chokehold killed Eric Garner in 2014—although that Justice Department investigation began in the Obama administration. For decades, and across the nation, county prosecutors—those whose work relies on police—have failed to secure indictments against police who kill. Convictions are rarer still.

The nascent “progressive prosecutor” campaigns across the country (which Barr condemns) may be part of this shifting understanding of the job of the prosecutor, too. Reform advocates’ efforts to elect prosecutors who promise to rein in the power of their office depend upon an electorate who understand how much discretion prosecutors hold when it comes to enforcing the law. The candidacy of Senator Kamala Harris has also provided an opportunity to puncture myths about prosecutors. Harris now claims a “reformed” prosecutor identity on the campaign trail. But while earlier serving as San Francisco district attorney, Harris prosecuted the kinds of marijuana cases she now criticizes, pursued assault charges against someone who was shot by police, and withheld exculpatory evidence in cases—a serious form of prosecutorial misconduct and a violation of defendants’ rights. All this, her opponents have argued, demonstrate that prosecutors, contrary to popular myth, do not simply, and with robotic precision, enforce the law. And the ideal of “the law” doesn’t absolve the prosecutor from the harms that come from how she chooses to enforce it.

People close to Barr say he was “surprised and angry” to be lumped in the whistleblower complaint with Giuliani, another former prosecutor, who can be seen clownishly undermining his client while allegedly defending him nearly any time a television news camera is nearby. Giuliani, one must strain to recall these days, once garnered liberal respect, too: As the U.S. attorney for New York’s Southern District and an associate U.S. attorney general under President Ronald Reagan, he was revered by some as the kind of tough prosecutor who went after the powerful, who transcended politics. (Unless you were a refugee from Haiti, or a black man in New York, or you were Muslim.)

Even back then, Giuliani was willing to twist his prosecutorial power towards spectacle. On a visit to the editors and writers of The Village Voice, Giuliani played his part in a game which the Voice’s Nat Hentoff called “A Journalist’s Dream,” as he wrote in 1989. Giuliani, then “at the crest of his glowing tenure,” was read the names of public officials and other public figures, and was asked for each, would they be indicted, soon or ever? As Hentoff observed of the scene, “I was stunned as the presumption of innocence kept crumbling. Here was the United States attorney for the Southern District inviting us delighted journalists to go on a fox hunt. And he provided the foxes.”

Giuliani may have fully gone off the rails of the law under Trump, but he’s long been willing to skirt due process. The difference is that now, in his televised tantrums, he openly gives away the game underpinning our two-tiered system of justice, one in which prosecutors rule: His appeals to fairness, now that he’s under investigation, have little to do with either fairness or the rule of law. “Equal justice under law is at stake in this Witchunt [sic],” Giuliani tweeted gravely on Sunday. “Until the media and law enforcement demonstrate equal treatment, division and anger will prevail.” The media, of course, is under no obligation to uphold the equal protection clause of the Fourteenth Amendment. As for law enforcement, no one has yet criminally charged Giuliani.

Trump that day struck a related note: “Like every American, I deserve to meet my accuser,” he tweeted. By accuser he meant the person he went on to describe as “the so-called ‘Whistleblower’.” The right that Trump was referring to lies in a clause in the Sixth Amendment, but applies only to criminal trials. So while Trump and Giuliani’s rhetoric sounds lawyer-ish, these are not appeals to the impartiality of the law. As Trump’s other reported remarks on the whistleblower—praising the execution of spies—make clear, they are closer to threats. “Don’t confuse intimidation with due process,” tweeted MSNBC’s Maya Wiley on Monday.

As of Monday, Giuliani had been subpoenaed by the House Intelligence Committee. Barr’s fate remains dubious, with more calls for the attorney general’s impeachment joining those already issued against the president. In a matter of weeks or days, Barr may be called—once more—to explain himself under oath. But no one need wait for the verdict. If Barr is a rogue, as Pelosi has said, it’s a rogue’s system.