The New York Times on Monday published a mea culpa by career lawyer Erica Newland, who joined the Justice Department under Obama and then served under Trump. Working in the Office of Legal Counsel, she wrote, her job was “to tailor the president’s executive actions to make them lawful—in narrowing them, I could also make them less destructive.” Her portfolio “included matters targeting noncitizens, dismantling the Civil Service and camouflaging the president’s corruption.” She left in late 2018, “overcome with fear that I was doing more harm than good,” adding, “I’m haunted by what I did. The trade-off wasn’t worth it.”
Her broad-brush indictment of a DOJ staff that “collectively perpetuated an anti-democratic leader” was a useful, if underwhelming, reminder of the need for accountability as the department transitions to a new administration—especially as senior Trump officials who have left the DOJ in recent months, and those who will do so in the months ahead, polish their résumés. Of particular interest is a group that I have come to call the Barr Bros, a cadre of relatively young, conservative white men who acquired senior positions under Attorney General Bill Barr despite having dubious qualifications for their jobs. Many are likely to seek lucrative private sector jobs—a move that will require them simultaneously to capitalize on their positions while obscuring their responsibility for running the department into the ground and enabling a corrupt, morally repugnant presidency.
Consider William Levi, a 36-year-old lawyer who recently left the DOJ after two years serving as a counselor to Bill Barr and later his chief of staff. If you read his departing profile in The National Law Journal closely, you could work out that he had, in fact, never worked at the department before late 2018, after a brief stint in the Trump White House and some time at a large law firm. It probably helped that his grandfather, Edward Levi, had been attorney general in the Ford administration, and thus his grandson was politically well connected.
Levi’s close affiliation with Barr may not go over well with some people outside the Trump administration, and Levi may realize this. “People familiar with Levi and the Justice Department’s front office stressed that to be by the attorney general’s side is not to endorse his every move,” The National Law Journal reported, but the profile cited no issue on which Levi and Barr ever disagreed. Barr himself was quoted as saying that Levi would “push back and put me to the test,” but this was a hilariously unconvincing claim coming from a man who is not exactly known for encouraging dissent—someone who described congressional oversight as “constant harassment,” characterized Black Lives Matter protesters as “fascistic,” and defended the tear-gassing of peaceful protesters.
Another Barr Bro facing a similar post-Trump quandary is Brian Rabbitt, a senior DOJ official who was 36 at the time of a profile in Politico last year. Rabbitt came to the DOJ in early 2019 after working in the Trump White House and as a senior adviser in the Trump Securities and Exchange Commission but had never worked at the department before then. After serving as a counselor and chief of staff to Barr, he ascended to a job that he is even less qualified to hold—acting head of the Criminal Division in Washington, D.C.—where he currently oversees 600 criminal prosecutors who investigate everything from securities fraud to child exploitation to international drug trafficking.
Like Levi, Rabbitt may understand that his future would be well served by the appearance of some distance from his benefactor. A recent story in The New York Times conspicuously noted that Rabbitt had “pushed back” before Barr relaxed an internal policy on investigating election fraud cases. In the scheme of things, this was among the least objectionable things Barr did with Rabbitt by his side—a two-year period during which Rabbitt worked with Barr on his misleading summary of the Mueller report and shielded Barr from questions about the department’s interventions in the Roger Stone and Michael Flynn prosecutions.
Some of the Barr Bros have been less adept in their reputation management. Bill Hughes is the associate deputy attorney general who oversees the department’s work on coronavirus-related misconduct (an under-recognized failure). Hughes had never worked at the department before coming over from the White House in April 2019—unless you count a summer internship nearly 15 years ago, which you should not—and gave testimony before Congress over the summer that suggested that he knows close to nothing about how criminal prosecutions work. Patrick Hovakimian is, like Hughes, an associate deputy attorney general, and although he at least had some prior experience as a DOJ prosecutor, he also may have broken the law last year by playing an integral role in the intelligence community’s retaliation against a DOJ whistleblower.
Once you spot the type, the Barr Bros become hard to miss. Craig Carpenito is the U.S. attorney for New Jersey and was supposed to replace Geoffrey Berman, the U.S. attorney in Manhattan, when Barr lied to the public about firing Berman back in June; he also heads up a task force into price-gouging that has produced fewer than 20 prosecutions despite what his office recently described as “hundreds upon hundreds” of complaints. Michael Sherwin was a federal prosecutor in Miami who reportedly impressed Barr at a meeting last year before becoming the acting U.S. attorney for the District of Columbia in May; since then, he has overseen the department’s ridiculous motion to dismiss the Flynn case, as well as its self-defeating attempt to stop the publication of John Bolton’s book. In September, Robert Zink became one of Rabbitt’s deputies, but four years ago, he was one level above a line attorney in the DOJ’s Fraud Section, where I used to work; in the meantime, he accidentally called one of his own prosecutions into question and lost a major trial.
The relative youth and inexperience of the Barr Bros served a clear purpose for the attorney general. In June, a former senior DOJ official during the George H.W. Bush administration testified before Congress about how Barr had “a well-developed, scalable process” for exerting control in the department—namely, by “using a cadre of ambitious conservative lawyers to second-guess or completely take over decision making from experienced career attorneys,” who could then “look forward to the rewards of career advancement, including greater responsibilities, higher positions, and in more than a few cases to eventually receiving the reward of a life-tenured federal judgeship.”
With the Biden administration on the horizon, many of the Barr Bros are likely to exit the government for the private sector, despite having been party to some of the worst lawyering—not just morally and ethically but as a matter of basic competence—in the department’s history. It worked for Rod Rosenstein, who oversaw the department’s reprehensible family separation policy, and for John Bash, a onetime U.S. attorney who oversaw one of the key border districts during the same policy. After all, the private legal sector is home to lots of people whose moral commitments are dubious, and at pretty much every prominent law firm, white men have a considerable leg up, irrespective of their professional merits.
The Barr Bros may be with us for a long time, particularly in the absence of any meaningful effort to rummage through the wreckage of the last four years. After some time in private practice, and after memories of Trump’s worst excesses have faded, the Barr Bros could (like Barr himself) cycle back into the government in a future Republican administration—next time in even higher positions of authority and having learned all of the wrong lessons under Barr.
But the problem is bigger than the Barr Bros. They’re representative of much larger problems of racial and gender diversity in the “elite” legal profession—both the public and private sectors—and one that the next attorney general would do well to focus on. A DOJ without a diverse group of talented lawyers at every level—among line attorneys, senior career officials, and the highest levels of the political apparatus—cannot be expected to address the full spectrum of the American public’s needs, whether they concern racial inequities in policing or the impact of financial crime on minority communities. Nor can it be expected to fully represent our country’s most disadvantaged communities and our most important values when it matters—even if doing so might cause a few comfortable people to incur some professional discomfort along the way.