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Bill Barr Forgot How to Be an Attorney General

The head of the Department of Justice is suddenly struggling to be an effective election-year consigliere for President Trump.

Doug Mills/Getty Images

Attorney General Bill Barr had already left few doubts about his commitment—or lack thereof—to the American rule of law before this month, having spent the past year carving out a role as President Donald Trump’s long-sought wartime consigliere. In that capacity, Barr has misled the public about Special Counsel Robert Mueller’s findings, undermined the prosecutions of presidential allies like Michael Flynn and Roger Stone, and launched investigations that sought to validate Trumpworld conspiracy theories.

For all his previous moves, however, it will likely be June 2020 that defines Barr’s life in public service. As protests and riots over the death of George Floyd spread across the nation, he publicly blamed antifa and other left-wing groups for most of the violence even as federal prosecutors brought charges against multiple right-wing militants who sought to provoke a civil war. He made baseless claims about the legitimacy of mail-in voting, elevating falsehoods spread by Trump and conservative media outlets. He even personally oversaw the crackdown on protesters in Washington, D.C., wielding the nation’s federal law enforcement agencies like a personal army of sorts.

All of this was the prelude, however, to Barr’s latest stunt: the attempted dismissal of Geoffrey Berman, the top federal prosecutor in Manhattan, on Friday night. Barr’s attempt to appoint a new U.S. attorney for the Southern District of New York ultimately proved to be a fumbling, self-defeating bit of double-dealing. If Barr wanted to draw more attention to his legacy of misrule, then he succeeded. If he thought he might create an advantage for the president—or himself—it was a miscalculation.

Berman began serving as the SDNY’s acting chief in January 2018. Three months later, federal judges in the Southern District’s courts used a provision in federal law to keep Berman in the position until the Senate confirmed a successor. Like most U.S. attorneys in what’s often referred to in legal circles as the “Sovereign District of New York,” Berman immediately became one of the highest-profile prosecutors in America. Trump had interviewed him for the post after removing Preet Bharara in 2017, though he never nominated Berman—or anyone else, for that matter—to take over the job full time.

That made it all the more surprising when Barr announced on Friday night that Berman would be leaving his post in July and that Jay Clayton, the current chairman of the Securities and Exchange Commission, would be nominated to replace him. Barr also announced that he would supplant the existing deputy U.S. attorney in Manhattan and assign Craig Carpenito, the current U.S. attorney for New Jersey, to take over SDNY until Clayton could be confirmed by the Senate. The announcement followed a string of other high-profile departures at the Justice Department, including Solicitor General Noel Francisco and the heads of the department’s Civil Division and Criminal Division.

Barr’s announcement immediately drew suspicion, and for good reason. The SDNY often prosecutes major international cases like Jeffrey Epstein, Venezuelan President Nicolas Maduro and members of his government, and various foreign banks accused of skirting Iran sanctions. Its jurisdiction also happens to include Trump’s personal residence and the headquarters of his family business. Under Berman, federal prosecutors have, in recent years, reportedly investigated his personal attorney Rudy Giuliani and the Trump Organization itself.

A few hours after the DOJ announcement, Berman seemed to vindicate those suspicions. The official SDNY Twitter account posted a statement from him declaring that he would be staying. “I have not resigned, and have no intention of resigning, my position, to which I was appointed by the judges of the United States District Court for the Southern District of New York,” he said in the statement. “I will step down when a presidentially appointed nominee is confirmed by the Senate. Until then, our investigations will move forward without delay or interruption.” Some observers took the reference to ongoing investigations as a thinly veiled alarm.

The standoff centered on an unusual legal question. The New York Times’ Charlie Savage noted that because Berman had been given his semi-permanent appointment by federal judges, some legal experts questioned whether Barr had the power to remove him at all. A 1979 opinion from the Justice Department’s Office of Legal Counsel had also concluded that attorneys general could not remove an acting U.S. attorney who had been temporarily appointed by the federal judiciary. That meant Berman could effectively only be removed once the Senate confirmed a full-time U.S. attorney or the president himself fired him.

On Saturday afternoon, Barr returned fire. “Unfortunately, with your statement of last night, you have chosen public spectacle over public service,” he wrote in a letter to Berman. “Because you have declared that you have no intention of resigning, I have asked the President to remove you as of today, and he has done so. By operation of law, the Deputy United States Attorney, Audrey Strauss, will become the Acting United States Attorney, and I anticipate that she will serve in that capacity until a permanent successor is in place.” Though framed as a rebuke, it was also a concession: Strauss, not Carpenito, would now be taking over the office.

Almost immediately, however, Trump himself undermined his own attorney general. Reporters at the White House asked the president as he departed for a rally in Oklahoma about Berman’s dismissal. Trump quickly disclaimed any responsibility for it. “I’m not involved,” he told reporters, claiming that it was Barr’s department and not his. (So much for the unitary executive theory.) Taken at face value after Barr’s letter, Trump’s claim of noninvolvement meant that either he had lied to the public, or Barr had lied to Berman.

This time, it was Berman who came to Barr’s rescue. The SDNY office’s Twitter account published a statement on Saturday evening from Berman announcing his own departure. “In light of Attorney General Barr’s decision to respect the normal operation of law and have Deputy U.S. Attorney Audrey Strauss become Acting U.S. Attorney, I will be leaving the U.S. Attorney’s Office for the Southern District of New York, effective immediately,” he said. “It has been the honor of a lifetime to serve as this District’s U.S. Attorney and a custodian of its proud legacy, but I could leave the District in no better hands than Audrey’s.”

Berman’s graciousness masked what amounted to a sharp rebuke to Barr’s plot. Though Barr claimed the president had fired him, Berman effectively ignored the assertion and acted as if he had resigned of his own accord. His position was already highly tenuous. Eventually, someone would be able to get Trump’s signature on a piece of paper or provide him access to his own Twitter account. But despite that precariousness, Berman still managed to ensure that a civil servant would take over the district’s sensitive investigations instead of handing them over to Barr’s hand-picked political appointee.

All of this might seem a little inside baseball, but the skirmish had practical consequences. Lindsey Graham, the chairman of the Senate Judiciary Committee, said on Saturday that he would not suspend the Senate’s blue slip tradition for U.S. attorney nominees to replace Berman. Since neither of New York’s senators are likely to sign off on Trump’s replacement for the district, the move all but guarantees Trump won’t be able to fill the vacancy before the election. In Barr’s haste to tighten his grip over the most important prosecutor’s office in his department, he only strengthened its tradition of autonomy. He also renewed interest among Trump’s critics in whether the Southern District is conducting investigations that could affect Trump or his allies—with the added clatter and bang of what looked to all the world like a half-baked cover-up attempt.

The episode caps a turbulent and downcast month for the attorney general. It began on June 1 when Barr personally directed federal police to clear peaceful protesters from D.C.’s Lafayette Park by force, moments before Trump walked to a nearby church for a photo op. In the following days, Barr moved the Bureau of Prisons’ riot-control teams and other unmarked federal agents into Washington to impose order upon the restless city. Neither move was particularly popular among Americans, who largely back the protesters. Barr, in a lawyerly evasion of responsibility, later claimed he hadn’t actually given an explicit command at Lafayette Park. “My attitude was get it done,” he said in an Associated Press interview, “but I didn’t say, ‘Go do it.’”

Barr’s other major initiatives have also lately stalled. Over the past two months, the department’s Civil Rights Division has launched a campaign against coronavirus-related restrictions that it sees as infringements upon religious freedom. DOJ has yet to challenge any state or local order in the courts itself. But it’s taken to admonishing states like California for not paying sufficient attention to religious interests and filing statements of interest in disputes brought by churches and other groups. So far, federal judges have largely declined to curb local orders to contain the pandemic. The Supreme Court, led by Chief Justice John Roberts, also turned down a request to intervene last month.

Other high-profile legal battles have also faltered. Last week, a federal judge rejected the administration’s unusual request to block the publication of former national security adviser John Bolton’s highly critical memoir of the Trump White House. In the preceding days, the Supreme Court dealt two major defeats: first by ruling that Title VII of the Civil Rights Act of 1964 protects gay and transgender workers from discrimination and then by declaring that the Department of Homeland Security had illegally rescinded the Deferred Action for Childhood Arrivals program. Barr’s Justice Department had taken the opposite stance in both cases. Though legal conservatives will likely see other victories at the Supreme Court this term, the twin losses served as a tangible marker of the conservative legal movement’s limits.

Barr’s rough weekend is all the more surprising given that he’s one of the more experienced hands in the Trump administration. As I’ve noted before, his first tenure as attorney general under George H.W. Bush gave him ample experience in brushing presidential messes under the rug, most notably after the Iran-Contra saga. If anyone should know how to manipulate the Justice Department’s levers of power toward their own ends, it’s Bill Barr. And yet the uniquely corrupt woes of this uniquely corrupt administration may have proven too much for him this time.

Of course, in a healthy political culture, Barr’s authoritarian mien and transparent bad faith would have led to his resignation or dismissal long ago. The United States is not so fortunate. House Democrats discounted the possibility of impeaching the attorney general over the weekend for practical reasons. (It would be impossible, for example, to hold a Senate trial during the pandemic.) It’s also virtually unimaginable that Trump will remove one of his most capable allies. If Americans want to remove Barr from the Justice Department, they will have to do it themselves in November. The only question is how many victories or half-defeats he can rack up before then.