The Barr Bar
Amid the murmur and buzz about the forthcoming redacted Mueller report, pundits eventually got around to recalling the Christmas Eve memo, when Attorney General William Barr advised President Bush to pardon people involved in a scandal to which Mr. Bush was substantially connected, even as a material witness. But that 1992 maneuver was not the first time Barr had, as a public attorney, attempted the maneuver.
On Friday the thirteenth October 1989, by happenstance the same day as the “Black Friday” market crash, news leaked of a legal memo authored by William Barr. He was then serving as head of the Justice Department's Office of Legal Counsel (OLC). It is highly uncommon for any OLC memo to make headlines. This one did because it was issued in “unusual secrecy” and concluded that the FBI could forcibly abduct people in other countries without the consent of the foreign state. The headline also noted the implication of the legal opinion at that moment in time. It appeared to pave the way for abducting Panama's leader, Gen. Manuel Noriega.
Members of Congress asked to see the full legal opinion. Barr refused, but said he would provide an account that “summarizes the principal conclusions” ....
.... When Barr withheld the full OLC opinion in 1989 and said to trust his summary of the principal conclusions, Yale law school professor Harold Koh wrote that Barr's position was “particularly egregious.” Congress also had no appetite for Barr's stance, and eventually issued a subpoena to successfully wrench the full OLC opinion out of the Department.
What's different from that struggle and the current struggle over the Mueller report is that we know how the one in 1989 eventually turned out.
When the OLC opinion was finally made public long after Barr left office, it was clear that Barr's summary had failed to fully disclose the opinion's principal conclusions.
And as
Ryan Goodman↱ notes for Just Security, the Attorney General would then go on to obfuscate, including leaving Poppy Bush embarrassed and unable to answer questions about the summary of the OLC report. Furthermore, even the State Department, under the one and only James Baker, found need to get involved, noting the narrowness of the opinion, failure to consider intenrational law, and disregard shown the duties of the presidency. Goodman reminds it remains unknown whether the Secretary of State ran his statement by Justice, observing Baker's "description of the OLC opinion would turn out to be not just misleading, but false". When Congress asked for the full OLC opinion, the answer was no, but the Attorney General delegated that response to an assistant.
The obvious seems obvious: "So why not release the 1989 opinion? Was there something to hide?"
The idea that Barr and the administration would not even discuss the content of the opinion could not withstand public pressure. Barr's stance was especially untenable because his OLC opinion reversed a prior OLC opinion (an unusual event), and the Justice Department had released that prior opinion in full to the public just four years earlier.
For some reason, it sometimes seems people have trouble with the question of hiding something. Sometimes we refer to partisanship, and this can easily get lost in both-sides equivocation. Here is an important indicator: While the question of what someone might be hiding can seem like an easy trope, it is harder to dismiss of one does something like lying in public, and even more so if an Attorney General takes that lie to Congress. On 8 November 1989, Attorney General William Barr appeared before the House Judiciary:
First, Barr started out by saying that the history of internal Justice Department rules was a basis for not handing over the full opinion to Congress. “Chairman. Since its inception, the Office of Legal Counsel's opinions have been treated as confidential,” Barr said.
That statement was misleading or false, and Chairman Edwards knew it.
What we're seeing in Barr's current tenure atop the Department of Justice is pretty much to form. "Some of the events that unfolded," Goodman writes of the 1989 hearing, "also bear a remarkable resemblance to Barr's handling of the Mueller report to date." After his false claim about OLC opinions, he sparred with Chairman Edwards, leading the legislator to explicitly remind of the point, complaining that while Congress had certain OLC decisions, what they were being told they couldn't have was the decision that reverses what they already had. The false pretenses make it clear the Department of Justice was hiding something.
The following paragraph from Goodman reads pretty much like business as usual with Republicans:
Barr then pointed out his willingness to provide Congress with “our conclusions and our reasoning.” This was the 13-page written testimony which contained a detailed recounting of the views expressed in the OLC opinion. Chairman Edwards complained that Barr had violated the rules of the House by submitting his written testimony only that same morning of the hearing, rather than 48 hours in advance. Barr's timing meant that members of the committee and their staff were not well equipped to analyze or question the OLC's analysis. But at least they had the OLC's views in writing. Or did they?
One of the big questions about Thursday's pending release of the redacted report is whether or not it will happen. And consider the hair one splits, at that point: Procedural necessity can, indeed, cause delays; given history, if something pushes the release back a day, even better for President Trump. Barr has used Christmas Eve, before, so we ought not be surprised at the proximity to Good Friday and Easter.
More directly, Mr. Barr, in his short tenure under Mr. Trump, is following his own long-established model, to parse not simply like an attorney but, rather, a bad stereotype thereof. His purpose is utterly political, and if he cannot win outright, the least he can do for the team is obfuscate. His actions in 1989 reflect this, and in the current circumstance the Attorney General's behavior continues to remind that
the key↑ to understanding the Sunday letter (24 March) is to scrutinize what Mr. Barr says according to the point of how it is not a disqualifying lie.
Recalling a 1993 paper on the subject of Barr's behavior in 1989, Goodman writes:
Without the benefit of the OLC opinion, Professor Koh explained how Barr could be hiding important matters by asking Congress and the public to trust just the 13-page version. Koh wrote:
“Barr's continuing refusal to release the 1989 opinion left outsiders with no way to tell whether it rested on factual assumptions that did not apply to the earlier situation, which part of the earlier opinion had not been overruled, or whether the overruling opinion contained nuances, subtleties, or exceptions that Barr's summary in testimony simply omitted.”
Koh's words proved prescient.
Goodman's analysis of three powerful distortions can easily be understated if one calculates to contain the questions entirely to politics. In consideration of a question about the U.N. Charter, Barr's "proposition is a very difficult one to sustain, and as Brian Finucane and Marty Lederman have explained, Barr was wrong". Also, Goodman quotes law professor Jeanne Woods, who explained over twenty years ago that, "A careful analysis of the published opinion, and the reasoning underlying it, however, reveals the depth of its deviation from accepted norms". Goodman is more direct in his analysis of the
Charming Betsy reversal: "That part of the OLC's analysis has not withstood the test of time. Indeed, there was good reason to keep it buried." There also arose a question of Barr's apparent failure "to inform Congress that the 1989 opinion discussed international law"; consider that a State Department legal adviser who testified alongside Mr. Barr in 1989, pretended, "As Mr. Barr has indicated, that opinion addressed a narrow question—the domestic legal authority to make such arrests", in order to posture State's role in the hearing as addressing "issues not discussed in the OLC opinion—the international law and foreign policy implications of a nonconsensual arrest in a foreign country". That statement was inaccurate; Goodman notes, "the OLC opinion had addressed some questions of international law and how a specific treaty—the U.N. Charter—might apply in such contexts". And while the OLC opinion itself struggled to justify itself on this point, Goodman also reminds, "What's relevant is that Barr represented to Congress in his written and oral testimony that the OLC opinion did not address these legal issues, even though it did."
The object of obfuscation was, then, and is, today, to allow a particular and calculated narrative time to set in the marketplace so that all emerging deviations can be postured as contrarian to some established truth. There is a certain amount of what Barr said in 1989 that was purely political, instead of juristic; there is also a certain amount that was plain wrong. This was the point of styling a memo that "summarizes the principle conclusions", as the Attorney General put it, thirty years ago.
Or, as
Jed Shugerman↱ put it last month, the 24 March "letter—word for word, legal theory for legal theory—shares exactly what we already knew about Barr's view of the relevant law without telling us anything about Mueller's factual findings."
And Goodman, yesterday: "Some of the events that unfolded also bear a remarkable resemblance to Barr's handling of the Mueller report to date."
