Barr told the Senate Tuesday that he was merely saying that “whatever the standard is for launching an investigation, it should be dealt with evenhandedly.” In light of all the evidence that has emerged about the Trump team seeking the Russian government’s aid in defeating Clinton, Barr’s remarks don’t sound evenhanded at all. They sound like he’s justifying Trump’s using the Justice Department for political persecution.
Barr is also no stranger to helping presidents shield themselves from federal inquiries. In 1992, he supported President George H. W. Bush’s decision to pardon six people for crimes, including obstruction of justice, in the Iran-Contra investigation, which looked into whether the Reagan administration, in which Bush had served as vice president, illegally traded arms with Iran to fund right-wing paramilitaries in Central America.
One of Bush’s justifications for the pardons was that the “common denominator of their motivation—whether their actions were right or wrong—was patriotism.” That is an odious rationale—patriotism as a blanket excuse for lawbreaking would condone any number of atrocities. It is hardly a stretch to imagine Trump using the same rationale to pardon loyalists for refusing to cooperate with Mueller. Special Prosecutor Lawrence Walsh said the pardons demonstrated “that powerful people with powerful allies can commit serious crimes in high office—deliberately abusing the public trust without consequence.” The pardons were not merely rewards for “patriotism,” as the president insisted, Walsh said, but an attempt to prevent the investigation from implicating Bush himself.
Read: Bill Barr breaks with Trump on Mueller probe
Barr was asked during his confirmation hearing Tuesday whether a president could “lawfully issue a pardon in exchange for the recipient’s promise to not incriminate him.” Barr said that would “be a crime.” But the exact phrasing leaves open the possibility that Trump could abuse his pardon power to prevent associates from testifying against him—as long as no explicit promise was made. The template for that approach would be the Iran-Contra pardons that Barr himself supported.
Taken as a whole, Barr’s testimony is less comforting than it seemed. Barr is a respected party elder who possesses the legitimacy, legal acumen, and ideological convictions to shield the president and undermine the rule of law without committing the sort of ham-handed errors that could turn the public or Congress further against Trump. If Trump’s aim was to choose an attorney general who would protect him without igniting a massive public backlash, he may have made the best possible choice.
Barr has said he won’t be bullied into being a Trump crony. But that doesn’t mean he won’t do exactly what Trump wants him to do. It might just mean he doesn’t need to be bullied into it. For the sake of American democracy, and the rule of law, I hope that’s wrong.