Through the looking glass with Barr’s Humpty Dumpty routine
“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean — neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master — that’s all.”
When Lewis Carroll published “Through The Looking Glass” in 1872, he could not have foreseen how easily we’d be able to replace the character of Humpty Dumpty in that passage with Attorney General William Barr.
It has now been widely reported that special counsel Robert Mueller wrote to Barr in late March to say that Barr’s four page summary of the then-unreleased 448 page report did not “fully capture the context, nature, and substance” of the special counsel’s probe. This raises an obvious question: Once you have omitted context, nature, and finally, substance from an investigatory report, what have you got left? The answer, of course, is “No Collusion! No Obstruction!”
In Wednesday’s hearing before the Senate Judiciary Committee, Barr’s linguistic prowess was on full display. Barr defended his previous testimony that he was unaware of any actual concerns on Mueller’s part with his own now-infamous four-page summary. This, despite the fact that Mueller had additionally told Barr that his letter managed to “undermine a central purpose” of his appointment as special counsel.
Barr also maintained that his four-page summary isn’t a “summary.” While it’s unclear why this is important to him, it appears he believes a nonsummary can omit material facts that a summary must include.
Before the Senate committee, Barr also defended his conclusion that the president “cooperated fully” with the special counsel’s investigation. Apparently Trump didn’t order White House counsel Don McGahn to “fire” Mueller — he only ordered Mueller to be “replaced” for an (unspecified) conflict of interest. Replacing the special counsel, it seems, wouldn’t end the investigation, therefore there was — No Obstruction!
We should not be surprised. Barr’s behavior in the six weeks since he received US Senate confirmation has been nothing if not consistent:
Seeking to define the FBI’s investigation into Russia’s well documented attacks on our electoral system, Barr previously settled on “spying.” When asked by Senator Jeanne Shaheen of New Hampshire at his April testimony before Congress to retract that term, he paused, reconsidered, and repeated the accusation. In the same hearing, Barr also refused to assert that the Mueller investigation was not a “witch hunt,” saying merely, “It depends on where you sit.” Donald Trump, who views any measure intended to protect us from future election interference as an affront to the magnitude of his 2016 victory, no doubt was delighted.
Within days, Barr followed those dangerous and inane comments by presenting Trump’s “anger and frustration” with the Mueller investigation as a justification for obstruction of justice. Since anger and frustration describe the president pretty much on a daily basis, this innovative legal theory will enable a lot more obstruction. It fits neatly with another one of Barr’s contentions — that presidential authority over the executive branch makes it impossible for Trump to obstruct justice. That argument, wholly specious, was featured in his now widely reported unsolicited job application sent to the Justice Department in June of 2018.
What can we expect in the days ahead? First, Barr will try to control the conditions of his upcoming appearance before the House Judiciary Committee, chaired by Democrat Jerrold Nadler.
Barr objects to being questioned by staff attorneys — practicing lawyers who are experienced in posing questions that are hard to dodge — and also to testifying in a closed session, where he cannot claim that security concerns prevent him from discussing attacks on the 2016 election.
Next, Barr will weigh in on the question of Trump’s tax returns. The relevant provision states: “Upon written request . . . the Secretary [of the Treasury] shall furnish [the Committee on Ways and Means of the House of Representatives] with any return or return information specified in such request.” To the average speaker of English, that language would seem to tell Treasury Secretary Steve Mnuchin what he is required to do without needing a formal legal opinion from the Justice Department.
Mnuchin can be confident that Barr will take his time with this weighty legal question. He will probably try to keep it in court past Nov. 3, 2020. Bill Clinton was rightly ridiculed for trying to question the meaning of “is.” We may find out whether Barr has better luck in construing “shall.”
Barr will help to battle all those pesky subpoenas issued by House Democrats interested in testimony from McGahn, Mueller, and Barr himself. In particular, Barr will be tasked to defend the claim that McGahn’s testimony is barred by executive privilege.
In fact, Trump has repeatedly waived the privilege by sending McGahn to be interviewed for 30 hours by the special counsel, by not seeking redactions from the written report, and finally by publishing his own questionable versions of conversations with McGahn to 60 million twitter followers. In Wednesday’s hearing however, Barr simply denied, without explanation, that any waiver had occurred.
Barr, unlike Humpty Dumpty, may not be found sitting on a wall, but he will be defending construction of one. He’ll need to redefine Article I of the Constitution to permit the monies appropriated by Congress for other purposes to be sent to selected construction companies along our southern border. That shouldn’t be worrying for a man with his credentials as an immigration hard-liner. In the early 1990s Barr ran a program out of the Justice Department that shipped some 12,000 Haitian asylum seekers to Guantanamo and confined them in what a federal judge, who enjoined it, described as an “HIV prison camp.”
We tend to think of law as a technical exercise. That’s only partly true. Like every aspect of democratic governance, the rule of law depends heavily on the good will, intellectual honesty, and moral integrity of public servants.
We’ve been warned about people like Barr. As Humpty Dumpty himself has explained, “The question is, which is to be master — that’s all.”
Andrew Grainger is a retired associate justice of the Massachusetts Appeals Court.