July 07, 2021 at 12:01AMPhilip Elliott
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There are several moments in Elie Honig’s new book, Hatchet Man: How Bill Barr Broke the Prosecutor’s Code and Corrupted the Justice Department, where you can imagine the author flinging the pages across the room in abject fury.
Honig, CNN’s senior legal analyst, writes about how the Justice Department bent in improbable ways to cater to President Donald Trump’s needs. Excuses were made, objections created out of whole cloth, legal precedent ignored or sidestepped for four unparalleled years that gave America a special counsel probe, two impeachments, constant churn at the Department of Justice and an insurrection at the Capitol. At the core of the crisis, according to Honig? Former Attorney General Bill Barr.
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“I found that the most effective way to make this case is let the facts speak for themselves,” Honig tells me.“For me to go on a soapbox and say, ‘This is so bad, this is so bad,’ it doesn’t make the case as strongly as Bill Barr’s own words and actions.”
A top mob prosecutor in New York, a top lawyer for the state of New Jersey and one of the Trump era’s most considered legal talking heads, Honig has written a book that is part memoir, part intro-to-law text for would-be-litigators and part charge of legal apostasy against Barr. “What I tried to do is take my own background and channel that into making almost the kind of case I would make to a jury in a closing argument against Bill Barr,” Honig says.
The D.C. Brief spoke with Honig by phone ahead of his book’s publication today by HarperCollins. This conversation has been lightly condensed and edited for clarity.
You don’t mince words here. In the introduction, you call Bill Barr “a liar” and “a political partisan with an extremist dystopian worldview.” At what point did you come to this conclusion?
I came to the conclusion gradually as Bill Barr went through his tenure and we started to see incidents—starting with the Mueller Report and then repeatedly over and over again throughout his tenure—where he was dishonest or worse with the American public. As to the part about having this dystopian worldview, that was something I only came to later when I was trying to piece together the question that so many people ask, which is, ‘Why would Bill Barr have taken this job in the first place?’ Bill Barr sees himself really as a culture warrior, as somebody whose ultimate mission was not so much to enforce the criminal laws of the United States fairly and impartially, but to impose his own extremist worldview where the only true way to govern societies is with religious belief at the forefront, and secularism is the root of all evil.
You were in the same boat as a lot of us here in D.C.—that we were just so happy to be done with the drama of the messy Jeff Sessions era—that we overlooked what was incoming. How did we get that wrong?
I point the finger at myself there. I happened to be on CNN the day that his name was announced. I said something like, ‘He’s serious and he is respected and he should be a real upgrade from Jeff Sessions.’ I did not have knives out and ready for him from the start. I was willing to give him the benefit of the doubt. But very shortly after that, we realized that he had written what I call the audition memo, where he all but announced that he would be clearing Donald Trump on the Mueller investigation. Then he proceeded to do exactly what he told us he would do. He fixed the deck.
Time and time again, we saw things that scholars and practitioners like yourself called wrong if not outright unconstitutional. Why did nothing matter?
We as a country vest enormous powers in our prosecutors. The Attorney General holds the most powers of any prosecutor, and so much of our system depends on trusting in prosecutorial judgment and discretion and goodwill. I was taught from a very early age at DOJ that a good prosecutor can do the most good of virtually anyone in public service and a bad prosecutor can do a huge amount of harm. What consequences can there be for someone like Bill Barr? Ultimately history needs to be told and the record needs to be made.
People say, ‘Well, can he be prosecuted criminally?’ There’s a difference between committing a crime and abusing power. I would say the closest he came [to committing a crime] is making false statements to Congress in various points. [Barr has not been charged with making false statements to Congress.]
Prosecutors’ credibility is the cornerstone of the whole system. You had to boot someone from a case for raising money for a charity 5k. Early in your career, you had to step away from a case because your dad’s law firm was involved in previous iterations of it. It seemed like during the Trump era, no one really cared about that. How does A.G. Merrick Garland get us back to that place?
One of the advantages that Merrick Garland has—a significant advantage over Bill Barr—is that Merrick Garland was raised in the Justice Department and handled real cases on the front line, up to and including the Oklahoma City bombing case. And one of my main criticisms of Barr that I make throughout the book is that he was never what I call a real prosecutor. Yes, he was Attorney General once before in the early ’90s and he’s one of two people ever to be Attorney General twice in this country. However, Bill Barr never tried a case as a prosecutor in his life, nor did many of his top brass who he surrounded himself with. And I think that led to a real lack of appreciation of what it really means to be a prosecutor.
However, I’ve been critical of Merrick Garland thus far. I think Merrick Garland has not been strong enough, has not been aggressive enough, in correcting the abuses of the Barr Administration and the Trump Administration. Garland has made clear that he wants to avoid causing political turbulence at virtually all costs. And he seems to be seeking the path of least resistance, but I don’t agree that that’s the right way to do things because I think there is a lot of affirmative correction that needs to be done.
Speaking broadly here, I guess we all knew how political the work of the Office of Legal Counsel had been under Trump, but seeing it stacked up, I’m worried that these guys might not be the geniuses we’ve been led to believe.
When you learn about OLC in law school, you are taught these are the super geniuses who unravel in an impartial way the most complex and thorny issues of constitutional law. The reality is a bit different. And this predates the Trump Administration. There is a study that I cite in the book that shows that over time, OLC has become increasingly pliable to the President’s ideology and what they imagine the President would want. But I do think that under Trump and under Barr, OLC just went completely off the rails with the absolute-immunity opinion, which was later rejected by federal courts, including the Supreme Court. This notion that the President would be free to discard and tell others in the executive branch to discard any congressional subpoena for any reason? That cannot be the case. I also talk about how with the Ukraine context, how OLC came up with this tortured opinion that the whistleblower law applies to everybody but the President, somehow.
And I think Merrick Garland needs to do a couple of things. One, he just needs to convey to OLC that, ‘You’re here to do your job impartially. I do not want you trying to start with the bottom line of what you think I may want, or the President may want, and then back filling it in from there.’ They need to formally disavow the opinions that have been rejected by courts, because you don’t want them used by future generations for flimsy legal cover that can be used to drag out legal disputes.
Moving outside the formal powers of government, did Trump hire the absolute worst attorneys available to him? The John Dowd voicemail seems so terribly advised. He left this trail that just seems irresponsible at best.
I’m very critical of John Dowd in the book. I think the voicemails that he left for those defense lawyers are very close to—and probably over—the line of witness intimidation. The President’s choice in personal counsel over the years runs from Roy Cohn to Michael Cohen to Rudy Giuliani to John Dowd. I think the President has a clear conception of what he wants in his lawyers. That’s his infamous cry of ‘Where’s My Roy Cohn?’
You’re entitled in your personal capacity to hire whoever you want. You suffer the consequences. But when it comes to picking the government’s top lawyers, whether it’s White House counsel, or most importantly, Attorney General, I think you run into real problems when you’re searching for your Roy Cohn. And I think it’s quite clear that Bill Barr’s audition memo reached Donald Trump and he liked it. In Donald Trump’s mind, he had his Roy Cohn.
Did Bill Barr know better? That’s the question I keep coming back to: Did he know better than what he gave the country?
He had to have known better. This is a smart man. This is a deeply experienced man. This is a man who was Attorney General once before. He appeared to be an institutionalist.
When he got in office this time, though, he really went off the rails. The audition memo that foreshadowed that he would fix the Mueller Report for Donald Trump. His intervention with Michael Flynn and the Roger Stone case, both of which were unprecedented. The way he writes to the public about the threat of election fraud. [Barr ultimately rejected Trump’s false claims of fraud in the 2020 election.] He did a 180, really, from the way he had handled the job previously.
I don’t know if that’s because he fell into the thrall of the whole Trump world, or if that’s because he saw this as his last best chance to preserve his power and to preserve his worldview. Bill Barr saw this all as his last shot to impose his will on the world. And he was willing to violate any number of principles and ideals in order to get there.
Talking about the Roger Stone case, this was the one time in the 80,000 cases that DOJ handles a year that the AG stepped in. Would a jury convict AG Barr for, say, misconduct on that circumstantial evidence?
I don’t think Barr committed a crime in intervening in the Stone case. The Attorney General technically has the right to ask for a lower sentence. It’s just outrageous that he did that. It’s an abuse of his power. And it’s a violation of DOJ norms that he did that.
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