Hatchet Man: How Bill Barr Broke the Prosecutor's Code and Corrupted the Justice Department
Author: Elie Honig
Date: 2021-07-06T04:27:11.195600+00:00
Keywords: American Government; National; Corruption & Misconduct; History; Politics; Political Science; Law Enforcement; Biography
Description: NATIONAL BESTSELLER“Elie Honig has written much more than a compelling takedown of an unfit attorney general; he also offers a blueprint for how impartial and apolitical justice should be administered in America.”—Preet Bharara“An essential analysis for anyone committed to understanding the abuses of the Trump administration so we can ensure they never happen again.”—Joyce White Vance“Essential reading for all who cherish the rule of law in America.”—George Conway"Written with all the color and pacing of a legal thriller. "—VarietyCNN Senior Legal Analyst Elie Honig exposes William Barr as the
Publisher: HarperCollins

Dedication

To my mom and dad

Contents

1. Cover
2. Title Page
3. Dedication
4. Contents
5. The Prosecutor’s Code: Earn Your Stripes
6. Confirmation
7. The Prosecutor’s Code: Impartiality
8. The Mueller Investigation
9. The Prosecutor’s Code: Take a Shot
10. Ukraine
11. The Prosecutor’s Code: Podium Privilege
12. Michael Flynn

13. The Prosecutor’s Code: Protect the Process

14. Roger Stone
15. The Prosecutor’s Code: Independence
16. SDNY Takeover

17. The Prosecutor’s Code: Business, Never Personal

18. E. Jean Carroll
19. The Prosecutor’s Code: Know Your Role
20. Lafayette Square Park

21. The Prosecutor’s Code: Take the Facts as They Are

22. The Durham Investigation: “Investigate the Investigators”

23. The Prosecutor’s Code: Own It, Fix It
24. The 2020 Election: Endgame
25. Culture Warrior
26. The Road Back
27. The Prosecutor’s Code: Humility
28. Acknowledgments
29. Index
30. About the Author
31. Copyright
32. About the Publisher

i
ii
iii
v
ix
vi
vii
viii
ix
x
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
62
63
64
65
66
67
68
69
70
71
72
73
74
75
76
77
78
79
80
81
82
83
84
85
86
87
88
89
90
91
92
93
94
95
96
97
98
99
100
101
102
103
104
105
106
107
108
109
110
111
112
113
114
115
116
117
118
119
120
121
122
123
124
125
126
127
128
129
130
131
132
133
134
135
136
137
138
139
140
141
142
143
144
145
146
147
148
149
150
151
152
153
154
155
156
157
158
159
160
161
162
163
164
165
166
167
168
169
170
171
172
173
174
175
176
177
178
179
180
181
182
183
184
185
186
187
188
189
190
191
192
193
194
195
196
197
198
199
200
201
202
203
204
205
206
207
208
209
210
211
212
213
214
215
216
217
218
219
220
221
222
223
224
225
226
227
228
229
230
231
232
233
234
235
236
237
238
239
240
241
242
243
244
245
246
247
248
249
250
251
252
253
254
255
256
257
258
259
260
261
262
263
264
265
266
267
268
269
270
271
272
273
274
275
276
277
278
iv

The Prosecutor’s Code
Earn Your Stripes

Any prosecutor’s first trial is a blur of terror, self-doubt, confusion, fleeting moments of competence, worry, a bit more terror, and then, ultimately, catharsis. The second trial gets a bit easier, and things gradually smooth out from there. It’s the same basic pattern, the same grind and pressure, but eventually you build up some calluses and you learn to calm your nerves and even relish the fight. But the first trial—that’s pure, uncut panic.

When I walked into our courthouse “war room” on the first morning of my first trial as a prosecutor for the Southern District of New York, my supervisor, Rich Sullivan, took one look at me and said, “What the hell are you wearing?” I was confused. I had deliberately dressed in the standard SDNY male prosecutor’s “uniform”: conservative navy-blue suit, white dress shirt, red tie, black loafers. The problem, it seems, was with the fitted, slip-on look of my dress shoes.

“No laces? Not in front of a jury. Find different ones for tomorrow,” he snapped.

Sullivan—now a federal appellate judge—was one of the most respected prosecutors in the office, a true believer in the criminal justice process and a trial assassin who expected perfection in all things, from everyone. Sullivan had seen it all, and he knew all the rules—the ones in the books and the unwritten code of things you must do and those you just don’t. Never refer to the judge as “you”; it’s always “Your Honor” or “the Court.” Move around the courtroom a bit, but do not lay your hand on the railing of the jury box; that’s their territory, not yours. It’s okay to smile, but no laughing out loud in front of the jury, even if something funny happens. No drinking in front of the jury, except for water from a small paper cup, and only if your voice is about to crack. No laceless shoes, apparently, was one that I had not yet learned.

A few hours later, I rose to give my first opening statement. An office veteran had told me that, when introducing the defendant to the jury during an opening, you should lock eyes with him, and whoever blinks first, loses.

“This is Robert Ortiz,” I said, walking toward the defendant’s table, pointing. I stared right at him. Tough-guy showdown time. Ortiz was a few years older than I was, mid-thirties, shaved head, crooked grin. He didn’t blink. Glared right back at me, through me. I held his gaze for a few seconds and conceded the macho stare-down, turning back to the jury. “He’s here on trial before you,” I continued, “because the NYPD caught him red-handed with a loaded gun stuck in his waistband and a fake police badge hanging around his neck. His plan was to use that gun and badge to pretend to be a police officer and rob a cocaine dealer.”

The trial should have taken about a week, maybe two. It took a month and a half. Nothing went to plan. The defense attorney fell into a manhole while walking her dog one weekend, breaking her orbital socket and necessitating a few days of delay. (She’d finish the trial wearing dark wraparound sunglasses indoors and using a cane to get around the courtroom; talk about earning sympathy points from the jury.) One of our key witnesses disappeared for a week. The NYPD detective who had found the gun in Ortiz’s waistband was so sinister on the witness stand that Sullivan, who had been trying cases for over a decade, later told me, “He came off like Darth frickin’ Vader up there.” (Sullivan, unlike me and most of our SDNY colleagues, rarely cursed.)

Eventually, mercifully, the trial ended. The jury deliberated for four long days before sending out a note to the judge: “We have a verdict.” Everyone hustled back to the courtroom. This wasn’t the trial of the century or even the trial of the week at the SDNY, but I was having a full nervous system–type response; I consciously tried to slow my own breathing. Once everyone was back in place in the courtroom—judge up on the bench, Sullivan and me at the front prosecutor’s table, Ortiz and his lawyer behind us at the defense table, Ortiz’s family arrayed in the gallery—the jury filed in.

Some trial lawyers claim you can tell what the jurors have decided by watching them come back into the courtroom before the verdict, but if they were giving any clues that day, I wasn’t seeing them. Sullivan, seemingly amused at how nervous I was over a relatively small-potatoes case—he’d been through many verdicts, on far bigger matters—leaned over and whispered, “Can you believe they really do it like this?” I knew better than to laugh by this point. “Remember,” Sullivan added, growing more pointed, “whatever they decide—no reaction whatsoever.”

“Foreperson of the jury, on count one, conspiracy to commit robbery, how do you find?” the judge’s clerk asked.

“Not guilty” came the response.

Well, that’s that, I thought. I’m going to lose my first trial, after the cops found this guy with a gun in his pants and a badge around his neck. I’m terrible at this job. They should fire me. Probably will. But, as Sullivan had instructed, I didn’t blink.

“On count two, illegal possession of a firearm by a person with a prior felony, how do you find?”

It seemed like the foreperson waited an extra half beat. “Guilty,” he said.

I could sense shoulders sagging at the defense table, and one of Ortiz’s family members yelled from the gallery, “Noooo, that’s bullshit!” Again, no reaction from me—in part because I simply wasn’t quite sure how to feel.

Minutes later, after the courtroom cleared and we were in the elevator heading back to the trial war room, I asked Sullivan, “So, was that a win or a loss?”

“This isn’t the NFL,” he replied. “We don’t do ‘wins’ and ‘losses.’ The jury gave its verdict, and we respect it. That’s our justice system at work.”

That was my first trial at the SDNY. I’d do fourteen more, eventually trying public officials for bribery, human traffickers for buying and selling young sex workers, and Mafia bosses for racketeering, extortion, robbery, and murder. I’d argue more than twenty cases in the Second Circuit Court of Appeals, grilled by brilliant, unrelenting three-judge panels. In all, as a federal prosecutor for over eight years, I prosecuted hundreds of cases, maybe over a thousand, and later in my tenure at the SDNY, I supervised dozens of other prosecutors handling many more. I then served for five and a half years as director of the New Jersey Division of Criminal Justice, the criminal arm of the state Attorney General’s Office, where I oversaw five-hundred-plus prosecutors, detectives, and other staff who collectively prosecuted about a thousand cases per year.

The learning curve as a prosecutor is almost impossibly, exhilaratingly steep. You get thrown right into the mix, and you learn largely by failing. Every little thing Rich Sullivan taught me in that first SDNY trial stayed with me for my next fourteen years on the job and beyond. And I learned new lessons in every case that followed—from other prosecutors, of course, but also from judges, defense lawyers, law enforcement agents, victim services experts, even from certain defendants. In this profession, nothing comes easy. You have to earn your stripes as a prosecutor, and book learning alone doesn’t cut it.

William Pelham Barr has served as attorney general of the United States twice. But he has never tried a single case, in the trenches, as a prosecutor.

For most of his tenure as attorney general under President Donald Trump, Barr was hardly alone among Justice Department leadership in his real-world prosecutorial inexperience. Like Barr, his top brass boasted impressive legal résumés, but had never set foot in a courtroom to prosecute a criminal case.

When Barr became attorney general in early 2019, he specifically requested that Trump nominate Jeffrey Rosen to the number two position in the Justice Department, deputy attorney general. Trump obliged, even though Rosen had exactly zero prosecutorial experience of any kind. In Rosen’s official DOJ bio, seemingly aware of this glaring deficiency, he explained defensively that “[t]hough most of [his] nearly four-decade career was in the private sector,” he had held various Senate-confirmed positions. None of those public jobs involved working as a prosecutor.

Associate Attorney General Claire McCusker Murray served under Barr and Rosen in the number three position on the DOJ org chart. Murray’s résumé is impressive, but it conspicuously lacked even a day of prosecutorial trial experience before she landed the top-tier Justice Department gig.

Even Brian Benczkowski, the assistant attorney general for the Criminal Division for much of Barr’s term—the word criminal is right there in the job title—had experience within the Justice Department, but had never handled a single line-level prosecution.

If you’re keeping score, the sum total of trials prosecuted by Barr and his top three criminal-side advisors added together: zero.

It is not normal to have such a dearth of prosecutorial experience at the top of DOJ. Indeed, Barr’s four Senate-confirmed predecessors (Jeff Sessions, Loretta Lynch, Eric Holder, and Michael Mukasey) and his confirmed successor (Merrick Garland) all did years of high-stakes, hands-on criminal trial work before they became attorney general, and they surrounded themselves with deeply experienced senior staff and advisors.

But none of the top four Justice Department criminal officials during most of Barr’s watch had ever lived the experience of prosecuting and trying a case on the front line. None of them had ever had a defense lawyer break her face during trial, or a key witness vanish right at the worst possible time. They never gave a closing argument to a jury or had a judge declare to them, when they still had about thirty minutes of material left to cover, “Counsel, you’ve got five minutes to wrap this thing up.” None of them ever prepped a witness for days and then watched helplessly as he collapsed on cross-examination. Neither Barr nor any of his top brass ever had a judge unexpectedly throw a key piece of evidence out of a case the night before a trial opened. None ever sat face-to-face with a victim too scared to leave the witness room and walk onto the stand. They never had to face a room full of strangers, ask them a handful of basic questions about their lives, and try to discern which ones might make good jurors. Barr, Rosen, Murray, and Benczkowski never walked out of a courtroom while a defendant’s family hissed curses and mumbled threats at them. And they never got to eat lunch from a food truck (not the gourmet kind) in a ramshackle conference room while exchanging war stories and barbs with other prosecutors.

So, why does this matter? I’ll put it simply, how we might have said it during one of those lunches back at the SDNY: Bill Barr has no chops.

None of this is intended as an attack on the legal credentials of Barr or the people who helped him run the Justice Department. Together, they’ve got briefcases full of elite degrees, impressive judicial clerkships, and top-tier, highly paid private gigs. But, in my experience, you simply cannot lead the Justice Department effectively unless you’ve learned to be a prosecutor first—the hard way, by making mistakes and experiencing setbacks mixed in with the successes.

In this book, I draw largely on my fourteen-plus years of experience as a federal and state prosecutor. I was raised—some might say “indoctrinated”—in the full SDNY tradition. I started at the Southern District of New York when I was twenty-nine years old—which, in retrospect, makes me shudder at the gravity of the mistakes I could have made and thankful that I managed to avoid the big ones (mostly). As young as I was, I had the benefit of being “raised” in the SDNY system, guided by the office’s core principles and by men and women who had earned their stripes before I arrived. As one of my first supervisors told me, “We throw you in the deep end, but we won’t let you drown.”

Some of what you learn at the SDNY, or in any of the ninety-three other U.S. Attorney’s Offices across the country, is by the book. After a while, you essentially memorize the rules of evidence, the criminal statutes, the rules of criminal procedure, and the sentencing guidelines. Anyone can read the rule books, the statutes, the cases. But the most important part of the prosecutor’s education is learning the unwritten rules—those norms, ethics, and values that come only with experience, successes and failures alike.

This is the prosecutor’s code. You learn it in the dingy conference room where you scarf down lunch and shoot the breeze with other prosecutors; you learn it in the well of the courtroom during the heat of battle at trial; you learn it from supervisors and judges and defense lawyers who keep you in line when you step out. It sounds like a parody of a Springsteen lyric, but the truth is that I learned more from knocking around the hallways of the SDNY than I ever learned from any law book.

Some of those unwritten rules may seem minor, but they matter. (For example, it would be disrespectful to the jury, the judge, and the defendant to show any emotional reaction, positive or negative, upon the reading of a verdict.) A few are, I now believe, misguided. (The macho point-and-stare-down with the defendant is unnecessarily confrontational and counterproductive, and I stopped doing this eventually.) But, for the most part, the unwritten rules help prosecutors understand and carry out the highest functions of the job. I’ll never forget Sullivan’s admonition that real prosecutors do not think in terms of their “win-loss” records. Real prosecutors seek justice and respect the process and the outcome, whatever the verdict.

Throughout his tenure, Barr faltered because he never understood or respected the prosecutor’s code. He never properly appreciated what it really means to work as a prosecutor—the unimaginable stakes for all involved and the sanctity of the criminal justice process, which must stand above and apart from other governmental functions. Barr’s ignorance—laced with a heavy dose of arrogance partially masked by his hangdog demeanor and veneer of intellectualism—led him to treat the attorney general job primarily as utilitarian and to degrade the Justice Department by using it as a means to predictable political, and ultimately personal, ends.

Barr never earned his stripes. And it showed.

In this book, I identify three fundamental traits that infected Barr’s approach to his position as the nation’s top prosecutor. Because of these shortcomings, Barr failed as attorney general, abused his power, and did lasting damage to the Justice Department.

First, Bill Barr is a liar. I won’t mince words. In both fields where I’ve worked, law and media, there is a natural and perhaps healthy reluctance to flat-out call somebody a liar. Usually, we soften it a bit. We say somebody is “not credible,” or has “misstated the facts,” or “lacks candor.” Barr had plenty of chances to fall back into one of those softer labels. But, after nearly two years and countless exaggerations, obfuscations, and outright false statements on his part, I have no hesitation in saying it: Barr is a liar.

Throughout his tenure as attorney general, Barr misstated crucial facts, virtually always in favor of Trump or his preferred political narrative of the moment. He distorted the law to serve whatever predetermined bottom line best satisfied his and Trump’s needs. He shaded reality by selective omission, by misleading framing, by false analogy. He contradicted himself when convenient. He projected his own untruthfulness and dissembling on others. When confronted, he played dumb or pretended not to understand basic words and phrases. There’s no benefit or reason to soft-pedal it, so I won’t: as attorney general, Bill Barr lied to the American public time and again.

Second, Barr is an eager political partisan. He willingly, affirmatively, and aggressively used the Justice Department as a political tool to help Trump—until the very end, when it was clear that Trump’s days in office were numbered. People sometimes say Barr “allowed” or “permitted” the Justice Department to become politicized. But it’s more than that; that phrasing is too passive. Barr didn’t merely sit by and let DOJ get dragged into politics by Trump or others—he made it happen himself, by design and with gusto, often directly in response to Trump’s corrupt entreaties. Prosecutors hold staggering power, and ultimately nothing could be more dangerous than for the Justice Department to become an arm of political protectionism and retribution. Yet Barr dragged DOJ down that perilous path.

Third, Barr over time used the attorney general position to impose his own legal and philosophical views on how civil society ought to function. Throughout his tenure, he consistently acted upon a hard-line, Federalist Society–endorsed view of the law that exalts the executive branch and the president in particular as the primary source of legitimate governmental power. He sought to place the presidency above and beyond the reach of Congress and the judiciary, at times successfully. In the process, he (at least temporarily) upset our constitutional balance of powers, rendering the president unaccountable and untouchable.

More broadly, Barr sought to actualize his own extremist, dystopian worldview in which a small group of strong, powerful men of faith enforce social order and ward off dark forces of creeping secular chaos. Barr brought to the attorney general’s job a dangerously distorted conception of his own power to impose that social order on what he saw as the needy, dim-witted masses. Unlike many of Trump’s most eager, sycophantic enablers, Barr, by his words and actions, treated Trump not as an end unto himself, not as some charismatic figure to be slavishly uplifted and celebrated. Rather, Barr recognized in Trump a powerful and perhaps unwitting vehicle through which Barr sought to realize his own long-standing quest to root out secularism and reshape civil society.

I don’t claim that I somehow know more than William Barr does. I was, however, raised in the best tradition of the Justice Department before Barr corrupted it. And, unlike Barr, I proved my steel in the well of the courtroom. This professional upbringing enables me to understand and explain Barr’s malfeasance and to assess the institutional damage he has inflicted on the Justice Department. (Note: I offered repeatedly to sit down with Barr for an interview for this book. He and his representatives never responded.)

There are more great things about working as a prosecutor than I could ever list or count. The best of all is that, as one of my former bosses put it, you always do the right thing, in the right way, for the right reasons. At the SDNY, we fought hard to do justice, to charge well-supported and righteous cases, and to convict serious lawbreakers. But those goals, worthy as they are, could never come at the expense of our integrity, credibility, and independence. Without those core values, as a prosecutor, you’re lost.

Confirmation

When President Donald Trump first announced in December 2018 that he would nominate William Barr as attorney general, a lot of people said a lot of things they would later regret. It’s easy to forget—given that Barr ultimately turned out to be a dishonest, partisan opportunist—but, in fact, commentators from all quarters initially praised Trump’s selection of Barr.

Former FBI director James Comey—no fan of Trump’s after infamously being fired by the president in May 2017—put aside any hurt feelings and applauded Barr as “an institutionalist who cares deeply about the integrity of the Justice Department.” Comey would later write a series of New York Times op-eds scorching Barr for his performance as attorney general, including one piece titled “Justice Is Supposed to Be Blind. Bill Barr Can’t See That.”

“A strong person of principle,” commented former Bill Clinton–appointed U.S. attorney Harry Litman on NPR. Litman also wrote an op-ed for the Washington Post entitled “Count Me as One Democrat Who Thinks Trump Made an Excellent Choice in William Barr.” Litman, too, later retracted his positive initial take and wrote that Barr had done “the opposite of his pledge to protect the independence and reputation of the department,” among other pointed public criticisms of the attorney general.

The Los Angeles Times originally endorsed Barr’s nomination for attorney general. The paper eventually ran an op-ed entitled “Barr Is the Cheerleader Trump Needs, but Not the Attorney General We Deserve.”

Ben Wittes, editor in chief of the influential Lawfare website, aptly captured the reaction even of Trump’s fiercest critics to news of Barr’s nomination: “As Good an Attorney General as We’re Likely to Get,” he wrote for The Atlantic. Wittes later took it back: “I was willing to give Bill Barr a chance. Consider me burned.”

I happened to be live on set at CNN as the news broke of Trump’s intention to nominate Barr. I declared on air that “what you want is somebody who’s qualified, who’s serious, and who’s respected. And by all accounts, William Barr is all of those things.” I ended up writing this book.

Despite the eventual walk-backs of these initial pronouncements, there was in fact good reason to be cautiously optimistic about Barr when Trump first announced the nomination. Barr had already done the job once before, having served as attorney general in the administration of President George H. W. Bush from 1991 to 1993. Barr is only the second person in U.S. history to hold the attorney general job twice. (Can you name the other? Why, John Crittenden, of course, in 1841 and then from 1850 to 1853. Take a bow if you knew that.)

During his first run as attorney general, Barr had his dustups, as any attorney general would, but he completed his tenure without any legacy-defining failure or scandal. He did generate controversy in 1992, when he supported presidential pardons for former defense secretary Caspar Weinberger and five other administration officials who had been charged with crimes or were under investigation for the Iran-Contra scandal; it was widely believed that Weinberger’s trial potentially could have revealed wrongdoing by Bush himself. In retrospect, Barr’s leniency toward the president’s political allies looks like sinister foreshadowing of what was to follow decades later, in his second term as attorney general. But by the time of his second nomination, in 2018, his involvement in the Iran-Contra pardons was a historical footnote.

After he left the attorney general’s job in 1993, Barr spent the next twenty-five-plus years in comfortable obscurity, holding lucrative private sector gigs as general counsel for GTE and Verizon and as “of counsel” with the elite law firm Kirkland & Ellis. That firm notably would yield more than its share of influential Trump nominees and defenders who wound up at the center of the defining controversies of Trump’s presidency: Brett Kavanaugh (accused of sexual assault before being confirmed to the Supreme Court); Alex Acosta (who, as a federal prosecutor, let serial child molester Jeffrey Epstein off the hook with a toothless non-prosecution agreement and ended up resigning from his post as Trump’s secretary of labor when the scandal resurfaced); John Bolton (who kept quiet about Trump’s self-dealing and abuse of power regarding Ukraine, until he wrote a book after Trump’s first impeachment was safely over); and Kenneth Starr (who defended Trump during that same impeachment).

By 2018, Barr was sixty-eight years old, semiretired, playing out the string on his own run at Kirkland, and financially set. According to his 2018 public financial disclosure form, he earned over $1.1 million in annual salary from Kirkland and held dozens of stocks and other financial assets collectively worth millions. In 2019, Forbes magazine estimated Barr’s total net worth at approximately $40 million.

For most of the American public, Barr had become a distant memory, if any memory at all. But when his name resurfaced as Trump’s potential nominee, he looked promising—particularly when compared with his two immediate predecessors as attorney general, Jeff Sessions and Matthew Whitaker, both of whom had proven to be preposterously unfit for the exalted position.

Trump’s first attorney general, Sessions, got the job largely because, as a U.S. senator, he was one of the first establishment Republicans to endorse Trump for president. Sessions was confirmed as attorney general by almost a straight party-line vote in the Senate. (Every Republican senator and one Democrat, Joe Manchin of West Virginia, voted to confirm.) Democrats objected to Sessions because of, among other reasons, his ugly history of racist comments, which had derailed his nomination as a federal judge back in 1986. After his confirmation as Trump’s first attorney general, in October 2017, Sessions remarked, “I’m just astounded that President Trump made the miraculous intervention, and I’m the attorney general of the United States. It’s really, really hard to believe.” Indeed.

Sessions quickly got to work ensuring that Democrats would proudly stand by their “nay” votes. His signature enforcement issue was a draconian crackdown on immigration, which crested with his announcement of a “zero-tolerance” policy requiring criminal prosecution of any person attempting to enter the United States illegally. Despite ghastly images and audio of children who had been separated from their parents, Sessions made no effort to sugarcoat his policy. To the contrary, he celebrated it, declaring that “if you are smuggling a child[,] then we will prosecute you, and that child will be separated from you as required by law . . . If you cross this border unlawfully, then we will prosecute you. It’s that simple.” The New York Times later reported that Sessions had instructed his subordinate federal prosecutors, “We need to take away the children” to deter people from trying to enter the United States. Deputy Attorney General Rod Rosenstein—as we’ll see throughout this book, the ultimate “go along to get along” guy, more bureaucratic shape-shifter than principled prosecutor—reportedly instructed prosecutors that it did not matter how young the children were, even if they were barely older than infants.

Sessions and Rosenstein’s child separation policy illustrates the danger posed by prosecutors who believe they must robotically apply criminal law without regard for basic considerations of fairness, equity, or mercy. Prosecutors are not, should not be, and need not be soulless automatons. The job is not merely a matter of “see crime, prosecute crime.” It should not be an algorithmic exercise where if the facts technically satisfy the statutory elements, then you charge and let the chips fall where they may—even if that means removing children from parents who have done nothing more than try to cross a border, seeking a better life. Prosecutors can, and absolutely should, look at all the facts and circumstances and then ask themselves not only “Can I prove this case?” but also “Is this case fair and just?” Sometimes the answer to the former question is yes while the answer to the latter is no—and that’s okay. I had plenty of cases over my career as a prosecutor in which a person had technically committed a crime, but I concluded (usually after consulting with supervisors or colleagues) that the case just didn’t need to be charged. Maybe the crime was too minor, or the person’s involvement was minimal, or a prosecution would have carried unjustifiably heavy real-life collateral burdens.

I’ll admit: it’s hard to do this, particularly when you’re a younger prosecutor. The cases come at you fast, and you don’t want to risk being perceived as “soft.” But I got better at recognizing these equities with experience, and I became more comfortable over time concluding that a particular person might have committed a crime, but that it simply wasn’t worth prosecuting. This is not to argue that prosecutors need be “bleeding hearts,” or that they should allow themselves to be paralyzed into inaction when considering the inherently drastic consequences of any decision to prosecute. Sometimes, as a prosecutor, you need to make tough decisions, and some people who are sympathetic in some sense might still need to go to prison. But that doesn’t mean prosecutors must leave their humanity at the office door.

Even beyond its utter coldheartedness, the Sessions-Rosenstein child separation policy was a stark departure from existing DOJ practice. When I was at the SDNY, under the administrations of both George W. Bush and Barack Obama, we would prosecute only those immigration cases in which the person had already been convicted in the United States of a serious crime, had been deported, and then had come back to the United States. Even those cases were seen as the dregs, to be dumped on the first-year prosecutors. Once, I made the mistake of taking a week’s vacation during my first year in the SDNY, and when I returned, my chief told me, “We’ve punished you by assigning you some illegal reentries.” She wasn’t kidding. I got to my office to find a stack of Redweld intake folders containing new illegal reentry cases waiting on my chair. In fact, we didn’t even fight when judges imposed lower sentences than called for under the federal sentencing guidelines in these immigration cases. After all, the defendant would certainly be deported again, so why waste time and resources holding him in a U.S. prison for a long stretch first?

Sessions, however, required prosecution of all illegal entrants—even those who had never committed a crime before—a single-mindedness that resulted in countless unnecessary prosecutions and punitive family separations. If my higher-ups had tried to make us prosecute these cases while I was at the SDNY, we might have had a full-on revolt.

In March 2017, shortly after he took office as attorney general, Sessions made the legally and ethically correct but politically fateful decision to recuse himself from the single most explosive matter then before the Justice Department: the investigation of Russian interference in the 2016 presidential election. With Sessions off the case, Rosenstein took over and quickly appointed Robert Mueller as special counsel.

Sessions publicly reasoned that he had to recuse himself from the Russia investigation because he had been part of the Trump campaign, which was being investigated by the very Justice Department he now oversaw. Seemed sound enough. Indeed, Sessions’s prior involvement with the Trump campaign presented a textbook conflict of interest, and his recusal was appropriate on this basis alone.

But his conflict of interest actually went even deeper. Sessions himself was a potential subject of the investigation because he had testified untruthfully under oath during his January 2017 Senate confirmation hearing for the attorney general position. In that testimony, he stated that he had “been called a surrogate at a time or two in that campaign and I didn’t have—did not have communications with the Russians.” In fact, Sessions had spoken to Russian ambassador Sergey Kislyak at least twice in 2016, including at least once about the campaign. Sessions himself therefore could have been a subject of the Russia investigation, an unstated but glaring basis for his recusal. (An attorney cannot be both the prosecutor and a subject, or even a witness, in the same case; more on this later.)

Indeed, Mueller eventually did investigate whether Sessions had committed perjury in his Senate testimony. While Mueller ultimately did not bring charges, he found that Sessions’s Senate testimony was inaccurate. But Mueller concluded, with a heaping spoonful of prosecutorial generosity, that Sessions might simply have recalled incorrectly (as opposed to having lied intentionally), sparing the attorney general a federal perjury charge.

Whatever the rationale, Sessions did the right thing when he recused himself from the Russia investigation, as any prosecutor should recognize. But Trump didn’t see it quite that way, and never got over it. The remainder of Sessions’s tenure was marked by increasingly humiliating public tongue-lashings from Trump. Trump publicly berated Sessions as “scared stiff and Missing in Action,” “our beleaguered A.G.,” and “mixed up and confused.” He even declared that “I’m very disappointed in Jeff. Very disappointed . . . I don’t have an Attorney General. It’s very sad.”

Even after Sessions left the Justice Department, Trump heaped on still more abuse, calling him a “total disaster,” not “mentally qualified” to be attorney general, “very weak and very sad,” and an “embarrassment to the great state of Alabama,” where Sessions ran for his old U.S. Senate seat and lost in a 2020 Republican primary. (Trump enthusiastically supported Sessions’s primary opponent, former Auburn University football coach Tommy Tuberville, who eventually won the seat and then promptly announced that the three branches of government were “you know, the House, the Senate, and the executive.”)

As a Justice Department alum, it became increasingly painful to watch the attorney general absorb such a degrading public beating from the president. I’ll never understand how Sessions could have passively taken the abuse and still held his head up when addressing the prosecutors and law enforcement agents under his charge. Every time Trump lashed out at him, belittling him and the department he was supposed to lead, I’d think, Stand up for yourself, or at least for the people who work under you. Stand up for the department. Show some spine. Sessions, for the most part, just took the abuse and kept grinning.

Trump didn’t even wait until all the 2018 midterm election ballots had been counted to dump Sessions, announcing his departure by tweet at 2:44 p.m., the day after Election Day, while several races’ final vote tallies were still pending. The president also confirmed in that same Twitter thread that Sessions’s own chief of staff would take over as acting attorney general—prompting frantic nationwide Google searches for the name “Matthew Whitaker.”

Matthew Whitaker was underqualified for the attorney general position on paper and quickly proved himself to be even less capable of handling the job in practice. In 2004, despite Whitaker’s having zero prosecutorial experience, President George W. Bush had appointed him U.S. attorney for the Southern District of Iowa, where he worked until 2009. In his original Senate confirmation paperwork for the U.S. attorney job, Whitaker listed among his most important cases a personal injury matter and various breach-of-contract suits. With such little experience, he would’ve had no chance in an interview for an entry-level position at the SDNY or many other prosecutor’s offices.

Whitaker eventually spent five years running the U.S. Attorney’s Office in Des Moines, and that’s not nothing. But it’s also a bit thin for a U.S. attorney general, even one serving in a temporary “acting” capacity. The Southern District of Iowa is a fairly small operation within the Justice Department. For example, at the end of 2017 (the last full year before Whitaker’s elevation to acting attorney general), the Southern District of Iowa had 334 pending criminal cases, the fifty-sixth busiest of the ninety-four U.S. Attorney’s Offices in the country. (Each of the ninety-four U.S. Attorney’s Offices across the United States and its territories is supervised by one U.S. attorney, except for Guam and the Northern Mariana Islands, which share one U.S. attorney; thank me later if this comes up on Jeopardy!) At the same time, the SDNY had 4,744 pending criminal cases—more than fourteen times the volume of the office that Whitaker once led.

Whitaker’s other experience before he became acting attorney general was, shall we say, undistinguished. After his stint as U.S. attorney, he ran in the 2014 Iowa Republican primary for U.S. Senate, then managed another person’s campaign for state treasurer—losing both times. Whitaker also sat on the board of a company called World Patent Marketing, which, the Federal Trade Commission later alleged, was a “scam that has bilked thousands of consumers out of millions of dollars.” To the delight of late-night comedy-show hosts, one of the company’s products related somehow to time travel. Another was a special toilet “for well-endowed men.”

Pure strangeness aside, the marketing scam exposed Whitaker’s fundamental unfitness to serve even temporarily as the nation’s top law enforcement officer. At the most basic level, any former prosecutor who has developed any kind of radar for crooks should have known better than to align himself with an obvious snake oil scheme that peddled in time travel and toilets with extra-high seats (or extra-deep bowls?). If Whitaker didn’t recognize the fraud, then he had no business serving as acting attorney general, or as any prosecutor at all.

Even worse, Whitaker had tried to use his status as a former federal prosecutor to intimidate a customer who complained about World Patent Marketing’s fraud. In an email to the customer, Whitaker conspicuously noted that he was “a former United States Attorney for the Southern District of Iowa” and threatened “serious civil and criminal consequences for you”—an ugly breach of a fundamental prosecutorial norm. At the SDNY, we were taught never even to mention our status as federal prosecutors when out in the real world—not to a cop during a traffic stop, not even to a bouncer at a bar—because it could be taken as either a threat or a request for special treatment. The Justice Manual, which contains practical and policy guidance to assistant U.S. attorneys across the country, memorializes this important prohibition, providing that a prosecutor “may not use his public office for his own private gain . . . [a]n employee’s position or title should not be used to coerce; to endorse any product, service or enterprise; or to give the appearance of governmental sanction.” Whitaker wasn’t even any good at the “former federal prosecutor” tough-guy routine; the customer, unintimidated, shot back, “Do not email me with your scare tactics . . . You are party to a scam.”

Whitaker’s bizarre past suggested a lack of both qualifications and judgment. He simply was not equipped for the job. Yet his elevation to acting attorney general in November 2018 could hardly have come at a higher-stakes moment. The big question: How would he handle the Mueller investigation?

Turns out, Whitaker had already given the public, and Trump, a pretty good hint. In an odd harbinger of what would later come from Barr, Whitaker spent the months preceding his elevation engaged in a public campaign against the Mueller investigation—the single most important matter he would oversee as acting attorney general. He wrote an op-ed for CNN titled “Mueller’s Investigation of Trump Is Going Too Far.” He declared in a radio interview that “there is no criminal obstruction of justice charge to be had here.” And he suggested on air on CNN that whoever replaced Sessions as attorney general could cut off funding to Mueller’s team so the investigation “grinds almost to a halt.”

How badly did Trump want Whitaker, with the latter’s broadly advertised preconceived notions about the Mueller investigation, as the temporary replacement for Sessions? Badly enough that he bypassed several other officials who ranked higher on the DOJ org chart. (“Chief of staff to the attorney general,” Whitaker’s position at the time of his elevation, isn’t even listed there.) Trump also passed on other candidates who, unlike Whitaker, had already been confirmed by the Senate—which raised questions about the legality of Whitaker’s serving even in a temporary “acting” capacity. Legal scholars ranging from former Obama administration Acting Solicitor General (and passionate Trump critic) Neal Katyal to former George W. Bush administration Deputy Assistant Attorney General John Yoo (notorious for writing government memos authorizing certain forms of torture) called Whitaker’s temporary appointment unconstitutional. No matter: Whitaker had shown his hand on the most important case pending before the Justice Department, and Trump gave him the nod.

In another indefensible move that would soon be replicated by Barr, Whitaker somehow contorted the ethics rules and decided not to recuse himself from the Mueller investigation, even though he had already expressed a clear predisposition about the case. Whitaker rejected the advice of a veteran Justice Department ethics official who recommended that he step aside. It doesn’t take an ethics expert to call this one. It’s a no-brainer for any prosecutor that, once you’ve already publicly expressed an opinion on a pending case, you’re out. Whitaker either didn’t understand this or didn’t care.

Whitaker quickly proved that he was out of his depth as acting attorney general. Perhaps his most memorable act was to blurt out at the end of a press conference about an unrelated case that Mueller’s “investigation is, I think, close to being completed.” (Moments before, Whitaker had declared that “I really am not going to talk about an open and ongoing investigation otherwise”—and then proceeded to do just that, when he spilled the beans about Mueller being nearly done.) Whitaker’s statement violated a long-standing DOJ rule and practice not to comment on the status of any pending investigation. (Plenty more on this policy later; Barr repeatedly trampled it as well.) The reason for this prohibition is simple: when you publicly announce that an investigation is near its end, as Whitaker did, you undercut the prosecutor’s ability to make the case. Witnesses and potential subjects may resist subpoenas or take other steps to run out the clock until the investigation’s pending close. Potential cooperators are less likely to flip if they believe that things are wrapping up and that they’ll therefore have only a limited opportunity to help themselves by providing assistance to the prosecution. Either Whitaker slipped up and simply couldn’t hold his tongue, or he meant to undermine Mueller’s investigation. Either way, the comment exposed his fundamental unfitness to fill the attorney general position, even temporarily.

So, to summarize: Trump’s first choice for attorney general led an absurdly cruel crusade to prosecute border-crossers, and his second was an underqualified pretender who turned out to be a cartoonish con man. After Sessions and Whitaker, Barr seemed to promise stability, ballast, and potentially a measure of independence. But there was one pulsing red warning light: the “audition” memo.

In June 2018—six months before Trump announced Barr’s nomination as attorney general but well after it was clear that Sessions would soon be a goner and that the attorney general job would be opening up—Barr wrote and sent to the Justice Department a nineteen-page memo offering up his own views, as a private citizen, on the Mueller investigation.

Despite Barr’s eventual protestations, his memo was more than just an academic expression of his opinion on the Mueller investigation, a casual “penny for your thoughts” memorialization—it was his pitch for the attorney general position. Nobody at DOJ had asked for the memo. Barr just wrote it up and sent it in. Keep in mind, Trump had publicly wailed about Sessions’s not coming to his rescue on the Mueller case, reportedly moaning to White House staffers, “Where’s my Roy Cohn?” (referencing his own former personal attorney and infamously unethical fixer). And Whitaker later got the temporary job as acting attorney general only after engaging in his own public Mueller-bashing campaign. Indeed, Jonathan Swan of Axios later reported that Trump had learned of the audition memo before he nominated Barr, and that Trump “got the gist of it, and he liked it.”

Plainly aware that his memo would be perceived as a job audition, Barr defensively proffered in the very first sentence the benign explanation that “I am writing as a former official deeply concerned with the institutions of the Presidency and the Department of Justice.” After acknowledging that “I realize that I am in the dark about many facts,” Barr proceeded to make a series of dramatic and conclusory pronouncements. He blasted Mueller as “overly zealous” and “overly aggressive”; he opined that Mueller should not be permitted to subpoena and directly question Trump; and he concluded that Mueller’s theory of obstruction was “fatally misconceived” and should be rejected.

Beyond the memo, Barr also commented to the website The Hill that Mueller’s obstruction investigation was “asinine” and risked “taking on the look of an entirely political operation to overthrow the president.” There’s the tell: Barr’s public comments to the media contradict his claim that he had submitted the memo directly to the Justice Department purely out of some high-minded intellectual concern about the course of Mueller’s investigation. He made his “concerns” known directly to DOJ in the memo. Why also take it public, through the media, if not to angle for the attention of Trump (a famously prodigious consumer of the news)?

Barr’s memo was revealing. It laid bare his intent regarding the Mueller investigation. In retrospect, one can see he was remarkably transparent about his intentions. Eventually, Barr did almost precisely what the audition memo forecasted: he engineered a result favorable to Trump, and he backfilled a specious legal and factual basis to get there (as I’ll discuss in an upcoming chapter).

Another thing about Barr’s memo: it was simply wrong. This was a Barr special. In what would become a signature of his tenure as attorney general, he drafted up a document that certainly looked the part: plenty of legalese, loaded with formal citations and ten-cent words, chock-full of confident, conclusory pronouncements about the law. But the memo, like much of Barr’s work as attorney general, disintegrates when held up to meaningful scrutiny.

Here’s why Barr was wrong in the audition memo. His central premise is that it generally cannot be a crime for a president to exercise a constitutional power of the office, such as removing an executive branch official (the FBI director or a special counsel, for example) or ending a Justice Department investigation. Yet Barr acknowledges that it could be a crime if a president exercised a constitutional imperative for criminal reasons. For example, if a president accepted a suitcase of cash from John Doe and, in exchange, agreed to fire a federal prosecutor who was about to indict Doe, Barr inherently concedes in the memo, that would be criminal bribery. Barr later admitted explicitly during congressional testimony that it would be a crime if a president accepted a cash bribe in exchange for a pardon.

By Barr’s own reasoning, then, the president can both exercise a unique constitutional power of the office and also commit a crime in the process. Thus, if a president fires an FBI director or tries to fire a special counsel to derail a criminal investigation—both of which Trump did, according to Mueller’s eventual findings—then, yes, he exercises a constitutional power of the office (to fire executive branch officials) and, yes, he also commits a crime (in this case, obstruction of justice).

For all its many flaws—its legal and logical shortcomings, its distinct “Pick me, Mr. President!” undertones—the audition memo is most alarming for one particular sentence. In it, Barr writes that the president has “complete authority to start or stop a law enforcement proceeding.” Barr later amplifies this notion, declaring that “the President’s law enforcement powers extend to all matters, including those in which he has a personal stake.”

Any prosecutor should immediately recognize the danger inherent in this view of unlimited presidential power over prosecution. By Barr’s “complete authority” standard, the president may instruct the Justice Department to criminally charge anybody, for any reason, even purely for his own political gain (subject to the systemic check of the grand jury, which must find “probable cause” that a crime has been committed before issuing an indictment). Or, as Barr would later facilitate, DOJ may go easy on the president’s political allies, even for the president’s personal or political protection.

In fact, Barr’s assertion—that the president has unfettered authority over all law enforcement actions and may order any case opened or closed, even for his own personal gain—violates both the written and unwritten rules of the Justice Department. For example, the Justice Manual prohibits direct communication between federal prosecutors and Congress and requires that any such communication be reported to the Justice Department officials tasked with ensuring that politics do not impact prosecutorial decision making. The Manual also places limits on attendance by prosecutors at official events and even on certain types of social interaction with members of Congress and staff. Trump’s own White House counsel, Don McGahn, issued a memo in 2017 restricting communications between White House staff and Justice Department employees. The bottom line: keep politics out of prosecution.

Good prosecutors know the rules and will instinctively recoil against any attempted intrusion by politicians. One of my SDNY bosses, former U.S. attorney Preet Bharara, has written about how he received a phone call from President Trump in March 2017, shortly after Trump had taken office. Bharara, fully understanding both the formal and informal rules regulating contact between elected officials and federal prosecutors, declined to take the call. Trump fired Bharara the next day. Bharara knew what he had to do, did the right thing, and paid the price.

Similarly, when I ran the New Jersey Division of Criminal Justice, I once received a call from a mid-level member of then-Governor Chris Christie’s staff, asking about a particular case. Remembering Bharara’s example, I told the staffer I would not talk to him. I then notified the state attorney general, John Hoffman, who, in turn, notified Christie. I was told later that Christie—who had served as U.S. attorney for the District of New Jersey before becoming governor—reiterated to his staff, loud and clear, that they were never to ask us prosecutors for information about any criminal case. I never got another call from the governor’s office. Christie, like Bharara, understood the vital need for prosecutors to do their work without interference from politicians.

But Barr saw it differently—Justice Manual be damned, prosecutorial independence be damned. In Barr’s own written view, if the president wants to use the Justice Department for overtly political purposes—even to protect his political allies or, worse, to prosecute and potentially imprison his political opponents—he has “complete authority” to do so.

Barr’s audition memo was no secret. Indeed, it immediately became the fulcrum of his confirmation hearing in the Senate Judiciary Committee in January 2019. Republican senator Lindsey Graham of South Carolina, opening the hearing as Judiciary Committee chair, gushed about Barr—“[i]ncredible,” “worthy of the job,” “pretty amazing,” “academically gifted,” a “consequential life”—but even Graham had to acknowledge that “[t]he memo, there will be a lot of talk about it, as there should be.” By this point, it was known simply by the shorthand “the memo.” No further explanation was needed. Everyone had read it and understood the stakes.

Barr addressed the memo in his opening remarks. He reiterated the implausible claim that he had written it purely as an academic exercise, just “so that other lawyers would have the benefit of my views.” (Again: Why the media commentary if this was just a private expression of concern rather than a job tryout?) Barr also stated defensively, “My memo was narrow, explaining my thinking on a specific obstruction of justice theory under a single statute . . .” Sure, it was narrow. It just happened to go narrowly to the precise issue that Mueller was then pursuing, the same narrow issue that posed an existential threat to Trump’s presidency. One man’s “narrow” is another’s “laser-focused.”

Barr strained throughout the hearing to take the edge off. He noted that he and Mueller were personal friends, that he trusted Mueller to be fair, and that he did not believe Mueller would engage in a “witch hunt.” All this was mere window dressing, however. Barr could have nice thoughts about Mueller while also harboring no intention of ever letting his investigation harm Trump. All the pleasantries in the world amount to little when compared with Barr’s unambiguous statement in the memo that Mueller’s obstruction theory was “fatally misconceived.”

Barr also engaged in pedantic wordplay to try to soften the impact of his memo. At his confirmation hearing, he rambled incoherently that “people do not understand what the word ‘corruptly’ means in that [obstruction of justice] statute. It is an adverb, and it is not meant to mean with a state of mind. It is actually meant the way in which the influence or obstruction is committed. That is an adverbial function in the statute.” If this makes no sense to you, fear not; there isn’t some magical formulation in this response that only prosecutors understand. It’s straight nonsense. Barr further theorized that “that is what the word ‘corruptly’ means because once you dissociate it from that, it really means—very hard to discern what it means. It means ‘bad.’ What does ‘bad’ mean?” When you’re at the point of wondering aloud what “bad” means, you’ve likely confused or bored your audience into submission. And that seemed to be Barr’s goal.

In one telling exchange, however, Barr did let his true colors peek through. In response to a question from Democratic senator Mazie Hirono of Hawaii about Trump’s public attacks on Mueller and the FBI, Barr first responded, “[W]e have to remember that the President is the one that, you know, has denied that there was any collusion and has been steadfast in that. So presumably he knows facts. I don’t know facts. I don’t think anyone here knows facts.” Here, Barr began to subtly take on the role of Trump’s defense attorney.

Let’s apply Barr’s reasoning more broadly. Any defendant in any criminal case who pleads not guilty has denied the charges against him—perhaps even “steadfastly”—and that same defendant “presumably knows the facts.” So, why would any prosecutor follow through with any investigation or any criminal case? How could anyone ever be charged? After all, the defendant knows the facts, and if the defendant steadfastly denies wrongdoing, then according to Barr’s reasoning, we might as well pack up the case and go home.

Also note Barr’s subtle but telling use of Trump’s own politically loaded terminology: “collusion.” As any prosecutor knows, there is no federal crime of “collusion” (except in an antitrust context, plainly not applicable to Mueller’s case). Rather, “collusion” by that point had become Trump’s amorphous political catchword, capable of being redefined around the contours of the factual record to declare Trump free and clear. No real prosecutor would ever seriously use the term “collusion” in an official setting. But a political operative certainly would.

Barr then took his response to Hirono a step further, layering in a bit of amateur psychoanalysis. Barr defended Trump’s use of the term “witch hunt,” noting that “I think it is understandable that if someone felt they were falsely accused[,] they would view an investigation as something like a witch hunt.” The excuse making has already begun: Barr protests that Trump’s reaction to the investigation was “understandable.” This twisted rationale would resurface later as Barr’s excuse for Trump’s efforts to obstruct Mueller’s investigation, even though a person’s acting out of frustration or anger is no defense at all to an obstruction charge. In fact, many people who obstruct justice do so precisely because they feel aggrieved.

The audition memo should have warned the Senate of Barr’s duplicity and his immovable predisposition. But, in the end, partisanship prevailed, and the Senate confirmed Barr on a nearly straight party-line vote of 54–45. Three Senate Democrats crossed the aisle and voted to confirm Barr, while Republican Rand Paul of Kentucky voted against him because of his positions on privacy rights unrelated to the Mueller investigation. Barr made it through on the strength of the cold, hard math of the Senate’s party composition. Democrats tried to stick him with his own words, with his own written assurance in the audition memo that he would let Trump’s crimes slide. But elections have consequences, and majority rules. Senate Republicans, and Trump, had their man. Barr’s preemptive public dismissal of the ongoing Mueller investigation, his brazen “audition” for an audience of one, had paid off. There was never a chance that he would be an impartial attorney general.

The Prosecutor’s Code
Impartiality

“Okay, what did I do wrong?” I asked, half-jokingly, as I picked up the phone. It was an internal phone call from John McEnany, the SDNY’s longtime in-house ethics guru. Most calls from McEnany meant you had neglected to fill out some form, were overdue on some kind of mandatory training, or had done something stupid.

“Surprisingly, nothing,” McEnaney deadpanned. “But we have to pull you off a case.”

It was a fairly routine investigation involving low-level financial fraud. Turns out, one of the potential witnesses in the case—not a subject, not somebody likely to be charged, but merely a witness—had, about a decade before, been represented by my father’s law partner in a civil case.

“For real?” I asked. Yes, McEnany confirmed. I was off the case—“recused,” in the lingo. Truth be told, I had more than enough to do, and this case wasn’t at the top of my priority list. So, I halfheartedly feigned disappointment and accepted McEnany’s eminently wise decree.

My recusal reflected a vital principle: if there is anything at all about a case that might lead a prosecutor to prejudge it—to favor or disfavor any party, for any reason—then the prosecutor has to go. The core concept here is impartiality. The Justice Manual calls for recusal in circumstances “that would cause a reasonable person with knowledge of the facts to question an employee’s [the prosecutor’s] impartiality.” The rules do not even require an actual conflict of interest; merely the reasonable appearance of a conflict is enough to require recusal. We’ll see this focus on public appearance throughout this book. Of course, there’s an issue if a conflict of interest actually compromises the prosecutor’s impartiality. But it’s also problematic for the prosecutor and DOJ, institutionally, if there exists even the appearance or realistic perception of such bias. Public trust is vital to the Justice Department’s institutional standing and credibility.

So, I was off the case because, years before, my father’s law partner had represented a potential witness to a crime. That’s three degrees of separation, but—better safe than sorry. It would be unwise to risk even the faintest perception that I might lean one way or the other.

Yet William Barr publicly pronounced before he took office that he had already come to a decisive conclusion about Robert Mueller’s investigation of Russian interference in the 2016 election—but he remained on the case and, ultimately, in charge of it.

Barr’s decision not to recuse himself from the Mueller investigation was inexplicable and unprincipled. Forget any theoretical concern about perceptions of impartiality or subtle tilting of the scales—Barr had already pronounced definitive judgment, in full public view. He had already declared in the audition memo and in the media that Mueller’s theory was “asinine” and “fatally misconceived”—“asinine” as in “really stupid” and “fatal” as in “dead, over, done.” When it comes to prejudging a case, it doesn’t get more conclusive than that.

Prior attorneys general, Republicans and Democrats alike, have recused themselves from cases potentially implicating the presidents who nominated them, or even close associates of those presidents. In 1998, Attorney General Janet Reno, nominated by President Bill Clinton, recused herself from the prosecution of Clinton business associate Webster Hubbell (who also had served as associate attorney general under Reno at DOJ). Attorneys General John Ashcroft and Alberto Gonzales, both George W. Bush appointees, recused themselves from an investigation of the leak of the identity of CIA agent Valerie Plame, which ultimately resulted in the indictment and conviction of Scooter Libby, chief of staff to former vice president Dick Cheney. (Bush commuted Libby’s sentence in 2007, and Trump fully pardoned him in 2018.) Neither Reno, Ashcroft, nor Gonzales had made substantive public statements about the merits of the cases before them, but they all recused themselves nonetheless, based on the mere potential appearance of partiality.

Bipartisan precedent had little resonance for Barr. His non-recusal was as predictable as it was wrong. Trump had already made eminently clear to the world that he viewed Sessions’s recusal from the Russia case as his original, unforgivable sin, and Trump relentlessly ridiculed Sessions publicly for his decision to recuse. Ethics be damned, no way Barr was going to take over and then do the exact same thing.

When pressed during his confirmation hearing about whether he would recuse himself from the Mueller investigation, Barr tellingly declined to commit. He promised, “I will seek the advice of the career ethics personnel, but under the regulations, I make the decision as the head of the agency as to my own recusal.” Translation: I’ll ask for guidance, but I don’t have to listen to it.

Later in the hearing, in response to a question from Democratic then-senator Kamala Harris of California about when he might decline to follow the recommendation of Justice Department ethics officials, Barr responded, “If I disagreed with it.” Why even bother consulting, then? Asked at that same hearing whether he would decline to recuse himself because of concern about another DOJ official taking over the Mueller case, Barr offered up this elucidating reply: “No, I am just—well, in some—in some contexts, there very well might be because of, you know, the—who is confirmed for what and who is in what position.”

And when Democratic senator Patrick Leahy of Vermont observed that Barr had “rather harshly prejudged the investigation in some of your writings,” Barr responded, “Well, you know, I do not see that at all, Senator.” Hard to understand how “fatally misconceived” is not prejudging “at all,” but the clumsy response got Barr through the moment.

Three weeks after his confirmation, Barr surprised exactly nobody when he decided not to recuse himself from the Mueller investigation. A Justice Department spokesperson announced that “senior career ethics officials advised that General Barr should not recuse himself from the Special Counsel’s investigation. Consistent with that advice, General Barr has decided not to recuse.”

If you’re confused, you should be—because, just months before, ethics officials at the same Justice Department had advised Barr’s predecessor, Matthew Whitaker, that he should recuse himself from the Mueller investigation. (Whitaker ignored the advice and stayed on the case anyway.) Barr and Whitaker faced the same conflict of interest: they both had made public statements prejudging Mueller’s investigation. If anything, Barr’s criticisms were more strident and definitive than Whitaker’s. Yet DOJ ethics officials somehow advised Whitaker to recuse himself but Barr to do the exact opposite. There are two possibilities here: either (1) the same ethics official did a 180 and came to the opposite conclusion based on comparable facts, or (2) Barr shopped around for different ethics officials to give him a different recommendation than that which Whitaker got.

It hardly mattered. Given Barr’s conspicuous hedging during his confirmation hearing—and given that Whitaker had disregarded a recommendation to recuse himself in a nearly identical scenario—there is little doubt Barr would have done the same even if he had (like Whitaker) been advised to recuse. But the revised ethics opinion gave Barr a bit of cover.

All the cards had fallen into place. William Barr was now attorney general of the United States. The same person who had already conclusively declared Mueller’s investigation “fatally misconceived,” “asinine,” and “overly zealous” would now oversee that very same case.

The Mueller Investigation

During my career with the SDNY, I prosecuted more than one hundred members and associates of the New York City Mafia, some of them powerhouses. Only one was a woman: Ann Chiarovano.

Chiarovano was old-school, battle-hardened, trusted by the leadership of the Genovese Family. She was pension director at Local 1181 of the Amalgamated Transit Union, a Mobbed-up bus drivers’ union with more than ten thousand members and millions of dollars flowing annually through its coffers. The union was a gold mine for the Mob. The Genovese Family embezzled member dues, shook down bus companies, and handed out cushy no-show jobs that provided W-2s and insurance coverage to friends and family. (Even mobsters need health and dental.)

Chiarovano kept the books at the Local’s headquarters, but she was no mere pencil pusher. She served as the Mob’s in-house eyes and ears, facilitating various rackets. She also was the only woman permitted to sit at the back corner table at Don Peppe, the restaurant in Queens where the Genovese Family boss and his top captains and soldiers ate dinner together every Tuesday and Thursday nights.

We quickly identified Chiarovano as a key conduit between the Mob and the union. So, the FBI agents working the case with us paid her a visit to ask her some questions. Chiarovano was a savvy operator; she wasn’t about to tell the FBI the whole truth, but she also knew not to spin a web of easily disproved lies. So, she mostly gave truthful answers—mostly. But she also wove in a few carefully calibrated misstatements intended to downplay her relationship with Genovese Family leadership. She falsely denied that she had tipped off her Mafia pals about our investigation, warning them when the union received our federal subpoena. And she claimed that she had met one particularly powerful gangster only a few years before when, in fact, they had known each other, and had been dating on the side, for over a decade. We knew she lied because—well, remember that regular back corner table at Don Peppe? We had placed a bug (a hidden recording device) within the table itself, which enabled us to hear their dinner conversations (and an awful lot of clanking of silverware and chewing of food).

Chiarovano eventually pled guilty to obstruction of justice based on her false statements to the FBI. Her lawyer argued for probation rather than prison, citing Chiarovano’s age (sixty-four) and the nonviolent nature of her crime, which was her first-ever conviction. But the judge noted that lying to the FBI is “a very, very serious offense” and sentenced Chiarovano to five months behind bars.

For those keeping score: Ann Chiarovano committed obstruction of justice and did five months in prison because she lied to the FBI about two facts during an interview. But President Donald Trump tried to persuade the FBI director to drop a criminal case against a political ally, fired the FBI director in an effort to end an investigation, tried to fire the special counsel investigating him, instructed White House counsel to lie and to create a false document, and dangled (and ultimately delivered) pardons to prevent potential witnesses from talking to law enforcement. Yet, according to William Barr, Trump committed no crime at all.

Barr, more than any other person, enabled Trump to walk away from the Mueller investigation essentially consequence free. Barr had to lie and scheme and bend the special counsel rules and contort the law beyond all recognition to get there, but he never showed any compunction about using drastic means to reach his inevitable end.

Barr’s effort to whitewash the Mueller investigation and absolve Trump began in earnest with a four-page letter that Barr sent to Congress on Sunday, March 24, 2019, purportedly summarizing the contents of the final report Mueller had sent to Barr two days before. Somehow, over the course of a weekend, Barr managed to read and synthesize the twenty-two-month-long investigation detailed in Mueller’s 448-page, single-spaced, heavily footnoted report. Either Barr has superhuman cognitive powers or he already had his mind made up before the report landed on his desk. (Recall Barr’s audition memo, in which he wrote to the Justice Department before taking over as attorney general that Mueller’s obstruction investigation was “fatally misconceived.”)

Barr’s four-pager is a powerfully dishonest and manipulative document. History should remember it as the moment when he first subordinated the Justice Department to the president’s political needs. In the letter, simply put, Barr lied to the American public about the Mueller Report.

We know this, to start, because Robert Mueller himself said so. Just days after Barr publicly issued his letter, Mueller fired off a private letter of his own to Barr, noting that Barr’s purported summary “did not fully capture the context, nature, and substance of this Office’s work and conclusions.” “Context, nature, and substance” pretty much covers the landscape; what else is left? This was Mueller’s way of telling Barr: you didn’t just make marginal misstatements—you tore the heart out of the report.

The mere fact that Mueller wrote a letter to Barr says a lot. In a situation like this, where one lawyer needs to correct another, there are two options: make a quick phone call and informally straighten things out or, if necessary—if you don’t fully trust the other party—put pen to paper and make a record. Barr later complained that Mueller hadn’t opted for the less drastic, informal phone call option. But Mueller clearly felt compelled to take the more permanent course of action by memorializing his beef with Barr. For the almost religiously reticent Mueller, his letter was an uncharacteristically assertive countermove. (Barr would later whinge before the Senate that Mueller’s letter was “a bit snitty,” though it’s really more blunt than anything else.)

Barr, bizarrely, would later fudge the truth to Congress about Mueller’s you-got-it-wrong letter. In testimony before the House Appropriations Committee on April 9, 2019—after Barr had received Mueller’s letter but before the public knew about it—Democratic representative Charlie Crist of Florida asked Barr about reports “that members of the special counsel’s team are frustrated at some level with the limited information included in your March 24th letter, that it does not adequately or accurately portray the report’s findings. Do you know what they are referencing with that?” Barr responded flatly, “No, I don’t.” Remember: about two weeks before, Barr had received Mueller’s letter complaining that Barr’s four-page summary “did not fully capture the context, nature, and substance of this Office’s work and conclusions.” That Barr kept a straight face while responding flatly “No, I don’t” is a testament to the ease with which he is capable of dissembling.

At a Senate hearing three weeks later—by that point, Mueller’s letter had become public—Democratic senator Sheldon Whitehouse of Rhode Island confronted Barr on his prior false answer to Crist. Whitehouse asked, “Would you concede that you had an opportunity to make this [Mueller] letter public on April 4 when Rep. Crist asked you a very related question?” Barr responded by playing dumb: “I don’t know what you mean by related question, it seems to me it’d be a very different question.” Whitehouse shot back, “I can’t even follow that down the road. I mean, boy, that’s some masterful hairsplitting.” Barr certainly was splitting hairs, though not particularly masterfully—his explanation is barely comprehensible and not at all credible.

Later, Democratic senator Patrick Leahy of Vermont raised the same issue about Barr’s seemingly false denial that he had received a complaint from Mueller. Barr tap-danced his way through this tortuous response: “I talked directly to Bob Mueller, not members of his team. And even though I did not know what was being referred to, and Mueller had never told me that the expression of the findings was inaccurate, but I did then volunteer that I thought they were talking about the desire to have more information put out. But it wasn’t my purpose to put out more information.” Somewhere in this word salad, Barr tries to draw a nonsensical distinction between Mueller himself and “members of his team”—as if Mueller somehow did not count as a member of his own team. Leahy captured the obvious in his reply: “Mr. Barr, I feel your answer was purposefully misleading, and I think others do, too.”

To summarize: Barr distorted Mueller’s report, Mueller called out Barr for his dishonesty, Barr misled the House by claiming he did not know about any concerns from “members of the special counsel’s team,” and then Barr offered up mush-mouthed gibberish when confronted by the Senate on his prior testimony to the House. He did all this while serving as the nation’s top law enforcement official, the leader of the U.S. Department of Justice.

Barr’s four-page letter is a masterwork in the deceptive power of selective inclusion (and exclusion)—particularly where the audience cannot see the underlying source material being summarized. And Barr made darn sure that when he issued his letter to Congress and the public, neither had access to the Mueller Report itself.

Here’s the time line, which is telling in its own right. Mueller sent his report to Barr on March 22. Barr issued his four-pager two days later, on March 24. But Barr sat on the Mueller Report for a total of twenty-seven days, until April 18. In the meantime, Barr testified in Congress and held a press conference, offering the public his take on the as-yet-unreleased Mueller Report. Barr had the report, but kept it locked down while he did a nearly four-week public relations tour spinning it.

By the time the actual Mueller Report came out, public perception had largely calcified around Barr’s distorted presentation, amplified by Trump and his most ardent defenders. Trump led his own chorus of premature self-vindication, tweeting “No Collusion” or some variant more than twenty-five times during the highly impressionable period after Barr released his four-page letter in March 2019 but before he released the actual Mueller Report in April.

Republican Senate majority leader Mitch McConnell of Kentucky similarly declared after the release of Barr’s four-pager that “the special counsel’s conclusions confirm the President’s account that there was no effort by his campaign to conspire or coordinate with Russia in its efforts to influence the 2016 presidential election.” (Mueller, in fact, had found dozens of efforts by Trump’s campaign to coordinate with Russia, but Barr left that part out of his letter.) Republican House minority leader Kevin McCarthy of California piled on, crowing that “it is abundantly clear, without a shadow of a doubt, there was no collusion.” (Again: Barr craftily omitted from his letter any mention of the Trump campaign’s many efforts to coordinate with Russia.) Trump’s personal attorney Rudy Giuliani exulted about the Barr four-pager, “It’s better than I expected.” Indeed. Turned out, Barr’s letter was “better” (for Trump) than Mueller’s actual report, or reality itself.

Even after the Mueller Report came out, much of the American public still held on to the first (mis)impression created by Barr and persistently echoed by Trump and his loyalists. An April 2019 Washington Post/ABC poll showed that over 30 percent of all respondents and 61 percent of Republicans believed (wrongly) that Mueller’s report cleared Trump of all wrongdoing, and 56 percent of all respondents opposed impeachment of Trump based on Mueller’s findings. In another poll taken in April and May 2019, only 42 percent of respondents said (correctly) that Mueller had not cleared Trump of wrongdoing; the remaining 58 percent of respondents either believed that Mueller had cleared Trump altogether or were unsure whether Mueller had done so. This Through the Looking Glass–type of misperception was born, and persisted, largely because of Barr.

So, why the delay? Why did Barr hold back the Mueller Report for twenty-seven days? Barr claimed that his team needed this time to make redactions (meaning to black out information that was classified or related to ongoing investigations). For comparison: Barr purportedly took two days to read, digest, and draw a firm legal conclusion regarding Mueller’s 448-page report. But his entire team needed twenty-seven days to redact that same document.

There is nothing inherently wrong with making redactions. Indeed, prosecutors should protect against public disclosure of classified information and information relating to pending investigations. But the sheer amount of time Barr stalled was inexplicable. As attorney general, Barr had at his fingertips the full resources of the Justice Department. I’ve done redactions, removing potentially sensitive information from public legal filings. While there is no magic formula for how long the process takes, a team of, say, ten prosecutors and FBI agents should have been able to redact the Mueller Report in a week, give or take. Yet Barr held back the report for nearly four weeks.

Even more inexcusable: Barr easily could have, and should have, publicly released the “executive summaries” that Mueller himself had drafted for precisely that purpose. Along with his report, Mueller sent Barr two summaries, one on Russian election interference (“Volume I” of the report) and the other on obstruction of justice (“Volume II”). The summaries run seven and six pages, respectively, and Mueller had already scrubbed both to ensure they did not contain any information that needed to be redacted. As Mueller specified in his March 27 letter, he had provided the summaries in a format that would enable Barr to disclose them to the public right away. Mueller and his team fully expected that Barr would do just that. They reportedly were dismayed when Barr sat on Mueller’s summaries and released his own, twisted synopsis instead.

Imagine if Barr had initially released Mueller’s summaries rather than his own distorted four-page letter. The public’s first impression would have been quite different than it was. The public would have known immediately from Mueller’s summaries that: (1) the Russian government committed crimes to help Trump win the election, (2) Trump campaign officials attempted and made dozens of contacts with individuals with ties to the Russian government as the Russian government committed those crimes, (3) the Trump campaign knew about criminal Russian election interference and “expected it would benefit electorally from information stolen and released through Russian efforts,” and (4) Mueller had identified and detailed eleven separate instances of potential obstruction of justice by Trump. That’s a far cry from “no collusion, no obstruction.”

Mueller would not end up alone in his assessment that Barr had fudged the truth about Mueller’s investigation. In March 2020, ruling on a lawsuit brought by a government transparency group and a media organization seeking access to redacted portions of the Mueller Report, federal district court judge Reggie Walton—nominated to the bench by President George W. Bush in 2001—excoriated Barr for his four-page hatchet job.

Walton found that “[t]he Court cannot reconcile certain public representations made by Attorney General Barr with the findings in the Mueller Report” and that Barr’s public “inconsistencies” with the Mueller Report “cause the Court to seriously question whether Attorney General Barr made a calculated attempt to influence public discourse about the Mueller Report in favor of President Trump . . .” Walton pointedly noted Barr’s “lack of candor,” which “call[s] into question Attorney General Barr’s credibility and in turn, the Department’s representation” that it had properly redacted the Mueller Report in the lawsuit pending before the court. Walton ultimately ruled that Barr’s redactions were improperly broad. So, not only did Barr take an absurdly long time—delaying public disclosure of the Mueller Report at a key juncture, allowing his own distorted encapsulation to have the public stage to itself—but he substantively muffed the redactions as well.

This is rare and serious stuff. For a judge to explicitly call out any prosecutor for peddling “inconsistencies” and exhibiting a “lack of candor” would be potentially career ending and certainly reputation scarring. In my fourteen years as a prosecutor, I saw only one instance in which a federal judge specifically questioned the credibility of a prosecutor, on the record—and that was a line-level colleague of mine, not the attorney general. A prosecutor without credibility cannot effectively go into court and represent the United States. An attorney general without credibility undermines the entire Justice Department.

Let’s look at some specific examples of Barr’s dishonesty in his four-page letter.

In one critical passage, Barr writes that “as the report states: ‘[T]he investigation did not establish that members of the Trump campaign conspired or coordinated with the Russian government in its election interference activities.’” Astute observers realized that Barr had pulled this quote from a longer sentence contained in the Mueller Report. Barr’s use of brackets around the capital T in “[T]he” indicates that the word “the” was lowercased in Mueller’s original report; in other words, Barr intentionally cut off the first part of the sentence. The world did not know with the release of Barr’s letter just how damaging that first part was—but Barr did, and he chose to leave it out.

Here’s Mueller’s actual sentence, with the first part, the part that Barr intentionally cut, in italics: “Although the investigation established that the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome, and that the Campaign expected it would benefit electorally from information stolen and released through Russian efforts, the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.”

So, Barr deliberately removed the part of Mueller’s sentence establishing that (1) Russia believed it would benefit if Trump won, (2) Russia committed crimes to help Trump win, (3) the Trump campaign knew about the Russian effort to use stolen emails to help Trump win, and (4) the Trump campaign expected to benefit from that criminal Russian election interference. But Barr left in the part about how the proof did not rise to the level of a specific crime committed by any particular Trump campaign staffer. If any prosecutor made a move like this in a criminal case—intentionally snipped off the front half of a sentence and submitted only the second half, altering the overall meaning—any judge would tear his head off, and any decent defense lawyer would move for dismissal based on prosecutorial misconduct.

Barr later compounded the dishonesty when he declared at a press conference held just minutes before the release of the report that Mueller had “confirmed” that there was “no collusion.” (By the way, Barr easily could have distributed the report before that press conference, giving the media a chance to meaningfully quiz him about it. Instead, he held on to it just long enough to do one more lopsided press event where the media did not have access to the underlying materials and then released the report immediately after he left the podium.)

First, where might Barr have picked up this particular turn of phrase, “no collusion”? As discussed previously, there is zero legal significance or meaning to the phrase “no collusion.” But in the tumultuous weeks between Barr’s misleading four-page report and the release of the actual Mueller Report, “no collusion” had, of course, become a political rallying cry of Trump and his supporters. Barr’s non-prosecutorial, overtly political rhetoric fell right in line.

Second, the “no collusion” refrain that Trump started and Barr dutifully mimicked is simply irreconcilable with the actual Mueller Report, which details dozens of instances of Trump campaign officials making and attempting to make contact with Russians. Some of those contacts involved efforts to obtain dirt from Russians on Trump’s political opponent, Hillary Clinton, or to gain information about leaks of hacked emails. Perhaps, as Mueller found, no particular communication rose to the level of a chargeable criminal conspiracy. But at an absolute minimum, any cry of “no collusion” must, in the name of accuracy, be followed by “. . . but they sure as hell tried.”

Ever the tireless political cheerleader, Barr once again put on the pom-poms and repeated the “no collusion” refrain when he testified to Congress weeks after the release of the Mueller Report. This time Barr took things even further, declaring, “The evidence is now that the president was falsely accused of colluding with the Russians and accused of being treasonous . . . Two years of his administration have been dominated by allegations that have now been proven false.” Proven false? To the contrary, Mueller’s report laid out a damning chronology of attempts by Trump and his campaign to communicate and coordinate with Russia on election interference. Among other things, Mueller found that Trump himself spoke directly with Roger Stone about dumps by WikiLeaks of emails that had been stolen from his political opponents. Damning evidence that doesn’t constitute a specific federal crime is one thing; “proven false” is quite another.

Without question, some of the blame here falls on Mueller for leaving the door open to Barr’s predictable manipulations. Throughout his report, Mueller uses confounding double and triple negatives to describe and qualify his conclusions. For example: “If we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, we are unable to reach that judgment.” Ultimately, Mueller declared to head-scratching effect that “[w]hile this report does not conclude that the President committed a crime, it also does not exonerate him.”

Rather than this indecipherable, backward-syntax Yoda-speak, Mueller very well could and should have simply made a prosecutorial judgment and clearly stated his conclusion—particularly given how openly Barr had displayed in his audition memo and elsewhere that he was predisposed to twist the facts and the law to clear Trump. Yes, long-standing Justice Department policy counseled against indicting a sitting president, and Mueller acknowledged this limitation in his report. But there is nothing in the special counsel regulations or the law that prevented Mueller from saying clearly what he seemed so strongly to suggest: that Trump had committed obstruction of justice, likely many times over. In fact, the regulations call for the special counsel to issue a “report explaining the prosecution or declination decisions reached by the Special Counsel”—precisely the kind of thumbs-up or thumbs-down call Mueller declined to make.

Instead, Mueller twisted himself into a pretzel, reasoning that it would be unfair to accuse the president of a crime when he could not be indicted. Thus, Mueller explained in the report, Trump would not have had a forum—a criminal trial—to defend his good name. Mueller’s justification suffers in retrospect. First, Donald Trump has never had any problem defending himself—in public, over Twitter (before he was banned in January 2021, at least), from the White House, on television, anywhere. Second, Trump certainly would have had a formal trial in which to defend himself if he ever was criminally charged (after he left office, for example). Ultimately, Mueller was so solicitous of Trump’s good name that he ended up doing his own investigation a disservice. Barr is primarily to blame for his own dishonesty, but it’s also fair to fault Mueller for unnecessarily leaving the door open.

Making matters worse, according to a public account from Mueller team member Andrew Weissmann, Mueller actually had notified Barr weeks in advance that the report would not contain any legal recommendation. Barr deviously stayed silent, let Mueller take a pass, and then filled the void with his own distortions. He even cynically criticized Mueller later for failing to clearly state a prosecutorial decision. He declared that Mueller “could have made a decision” and that if Mueller was unwilling to “go down the path of making a traditional prosecutive decision, then he shouldn’t have investigated.” Of course, if Barr truly had a problem with Mueller’s leaving his prosecutorial conclusions unstated, then he certainly could have ordered, or at least urged, Mueller to do otherwise when he learned about his intentions before the report’s issuance. Instead, Barr remained silent, let Mueller publicly equivocate, and then pounced on the opportunity to bend Mueller’s factual findings to his own liking.

While Barr’s spin on Mueller’s conclusions on Russian election interference was dishonest and political, his assessment of the second major issue, obstruction of justice, was just flat-out wrong.

In his four-page letter, Barr went well beyond Mueller’s findings and declared Trump free and clear on obstruction: “Deputy Attorney General Rod Rosenstein and I have concluded that the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense.” (There’s Rosenstein again, going along to get along.)

Eventually, after the actual Mueller Report became public, more than a thousand former federal prosecutors who served under administrations of both parties (including me) would disagree with Barr’s no-obstruction conclusion. The group of veteran prosecutors signed an open letter concluding that Trump’s conduct should “result in multiple felony charges for obstruction of justice.” No such letter or movement ever surfaced from former prosecutors in support of Barr’s conclusion. So, it’s Barr and Rosenstein in one corner and more than a thousand experienced prosecutors in the other. Take your pick.

Barr, seemingly anticipating the chorus of dissent that followed his announcement, preemptively argued in his memo that Trump did not obstruct justice in part because, “while not determinative,” the Mueller Report “does not establish that the President was involved in an underlying crime relating to Russian election interference.” In other words, Barr argues, it’s hard to obstruct justice when there’s no separate crime that the offender is trying to hide from detection.

This argument has superficial appeal. But as any decent prosecutor knows, logic and the law dictate that a person can obstruct justice even in the absence of a separately charged crime. Just ask Martha Stewart, Scooter Libby, or Roger Stone—all convicted of federal obstruction offenses but no underlying crimes. (Coincidentally—or, perhaps, not—Trump would later pardon Libby and Stone.) Heck, even ask Ann Chiarovano, the Mobbed-up union officer who opened this chapter; I prosecuted and convicted her at the SDNY for obstruction of justice but no separate crime. Or try Abdirizak Jaji Raghe Wehelie. Just weeks after Barr cleared Trump on obstruction largely because there was no underlying crime, Barr’s own Justice Department indicted Wehelie on obstruction charges . . . with no underlying crime.

Indeed, people obstruct justice for all kinds of reasons. Sometimes they obstruct to cover up another crime. And sometimes, as Mueller noted in his report, “[o]bstruction of justice can be motivated by a desire to protect non-criminal personal interests, to protect against investigations where underlying criminal liability falls into a gray area, or to avoid personal embarrassment.”

Barr’s excuse making crumbled quickly when held up to the actual facts of the case. When pressed at a later congressional hearing on one of the most flagrant examples of obstruction—Trump’s instruction to then–White House counsel Don McGahn to have Rosenstein fire Mueller—Barr resorted to a false claim: that Trump merely wanted McGahn to discuss Mueller’s potential conflict of interest (relating to Trump’s theory that Mueller was disappointed that Trump did not name him FBI director and that Mueller and Trump had had some strange beef over golf club fees). In reality, Mueller found that Trump, through McGahn, made “efforts to remove” him and told McGahn that Mueller “must be removed.” Trump did not dispatch Rosenstein to benignly discuss “conflicts of interest” with Mueller, as Barr claimed; Trump dispatched Rosenstein to “remove” Mueller, as Mueller’s report documented. This was classic Barr: simply change the facts to support a predetermined conclusion in Trump’s favor.

Barr’s defense lawyering for Trump on the obstruction issue went even further, as he played amateur psychologist in a strained effort to justify Trump’s conduct. Barr opined that Trump had not committed obstruction in part because “the President was frustrated and angered by a sincere belief that the investigation was undermining his presidency, propelled by his political opponents, and fueled by illegal leaks.” Of course, in my own prosecutorial experience, people often obstruct justice precisely because they feel “frustrated and angered” by a pending investigation. Imagine how this would play out in courts across the country if Barr’s defense of Trump actually reflected how the law worked.

Prosecutor: Your Honor, we allege that this defendant obstructed justice.

Defense attorney: Yes, Judge. However, my client did so because he felt . . . frustrated and angered.

Judge: Frustrated and angered? Well then, case dismissed.

After he’d pulled the teeth from the Mueller Report, Barr was not quite done. He next set about making sure Congress wouldn’t be able to follow up with any meaningful investigation of its own.

After the Mueller Report became public, House Democrats began sending subpoenas (legal documents requiring the recipient to provide testimony or other evidence) to key witnesses to Trump’s misconduct, clearly with an eye to potential impeachment. Trump, standing outside the White House, boldly announced his categorical strategic response: “We’re fighting all the subpoenas.” Not “We’ll evaluate each subpoena and comply with the ones we believe are valid.” Not “We’ll work with House Democrats to come to reasonable resolutions.” Just: We’re fighting all of them, period. Give Trump credit for transparency.

Barr promptly assumed his role as the field marshal responsible for executing Trump’s stonewalling strategy. The Justice Department’s Office of Legal Counsel (OLC) traditionally is (or, once was) generally regarded as an elite group of in-house legal experts who puzzle through difficult constitutional questions and provide reliable, independent legal opinions to DOJ and the executive branch. But in recent years (even predating the arrival of Trump and Barr), OLC has produced more political outcomes; one study of more than two hundred OLC opinions concluded that, over time, OLC had become “systematically deferential” to the president. OLC has certainly had its moments of infamy, including the “torture memos”—the twisted legal justification for “enhanced interrogation” techniques used on enemy detainees, issued by OLC under the administration of President George W. Bush.

Under Barr, OLC offered up a series of opinions that seemed dubious immediately upon issuance and eventually were struck down in the federal courts, including the U.S. Supreme Court. When it came to the Trump administration’s response to congressional subpoenas relating to the Mueller Report, Barr’s OLC generated an all-time clunker. Barr embraced an OLC opinion that essentially took Trump’s “We’re fighting all the subpoenas” declaration and dressed it up in superficially impressive legalese. OLC called it “absolute immunity”—the notion that the president has unlimited power to ignore congressional subpoenas and to order other executive branch officials and employees to do the same.

This was another Barr special: a memo thick with citations and conclusory legalistic declarations and sealed with the imposing imprimatur of the Justice Department. But upon closer inspection, the OLC opinion is a rag—both dead wrong and transparently servile to Trump’s political whim. There simply was no way the “absolute immunity” opinion could have been correct. If it was, then the executive branch could shrug off with zero consequences any effort by Congress to hold hearings or gather information. You need only a Schoolhouse Rock–level understanding of checks and balances to see the flaw.

Sure enough, federal courts firmly rejected Barr’s legal chicanery. One federal district court judge dismissed the “absolute immunity” claim as a “fiction” that “promotes a conception of separation-of-powers principles that gets these constitutional commands exactly backwards.” That stings. The judge, casting side-eye at Trump and Barr, pointedly noted that “[p]residents are not kings.”

In another case, the Supreme Court, by a 7–2 ruling, threw out a variation of Barr’s “absolute immunity” theory that Trump’s attorneys invoked to try to block a criminal subpoena from the Manhattan District Attorney’s Office seeking Trump’s tax returns from a financial institution, Mazars USA. The Barr-endorsed “absolute immunity” legal position was so flimsy that Trump-nominated justices Neil Gorsuch and Brett Kavanaugh joined with historically conservative chief justice John Roberts and the Court’s four traditional liberal justices (Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan) to reject Barr’s argument on Trump’s behalf. Give Barr this much credit: he came up with a legal position so flawed that it managed to unite Neil Gorsuch with Sonia Sotomayor, Brett Kavanaugh with Ruth Bader Ginsburg.

Even though the courts soundly rebuked Barr’s legal concoction, his bogus theory still mostly did the trick. Litigation over both the congressional subpoena to McGahn and the Manhattan DA’s subpoena wound through the federal courts until well into 2021, safely after the November 2020 election. Barr’s legal positions were feeble and, ultimately, roundly rejected. But they enabled Trump to run out the clock.

To sum up: Barr used every tool at his disposal to protect Trump from the politically existential threat of Mueller’s investigation. He lied about the substance of Mueller’s report while artificially holding it back from the public; he fudged the truth to Congress about Mueller’s letter objecting to his, Barr’s, distortions; he twisted Mueller’s conclusions while declining to release Mueller’s summaries; he distorted the law to declare Trump free and clear on obstruction; he echoed Trump’s misleading rhetoric and political catchphrases; and he endorsed a bogus legal theory to guard Trump against congressional action and potential impeachment.

Looking back on the Mueller investigation now, it is remarkable that Trump got through it almost entirely unscathed. He was never impeached for his conduct detailed in the Mueller Report. When House Democrats later did impeach Trump over the Ukraine scandal (the first of Trump’s two eventual impeachments), they specifically chose to omit a potential Article of Impeachment based on Mueller’s findings. (Trump wasn’t even censured by Congress in connection with the Mueller Report.)

Now that he’s out of office, Trump can be indicted for his conduct laid out in the Mueller Report. But given the passage of time and attention, and the wide public acceptance of the “no collusion, no obstruction” narrative, this seems exceedingly unlikely. If anything, Trump managed to turn the Mueller Report to his own political advantage, constantly harping on the Mueller “witch hunt” and the “fake Russiagate hoax”—a term later parroted by Barr, who eventually dropped all pretense of impartiality and called it the “bogus ‘Russiagate’ scandal.” Above all, Trump owes the fact that he was able to survive the Mueller investigation politically to Barr’s dishonest and strategic campaign to spin Mueller’s findings right out of the public consciousness.

The Prosecutor’s Code
Take a Shot

“Got a minute?” asked Rob Herbster, a savvy, young agent assigned to the FBI’s “Gambino Squad.” Herbster and I had done a few cases together before, but nothing earth-shattering. I waved him into my office. “I think we can make a run at Howie Santos,” he said.

I was interested. Santos was a knockaround guy. He had been around the Gambino Family for over two decades, and he did whatever the Family needed—with his fists, a baseball bat, a gun. Of even more interest: Santos was the longtime driver for Joseph Corozzo, a powerhouse Gambino Family consigliere (house counsel to the boss and, under Mafia succession rules, third in charge overall).

Drivers were always good targets for prosecutors. They overheard key conversations between powerful players, and they sometimes felt underappreciated and disaffected. (Part of the job is to wait in a car for the boss to return from his business, sometimes for hours on end; this tends to grate after a while.) Santos was particularly vulnerable because, as a non-Italian, he could never get “made” (formally inducted into the Family). His Mafia career prospects were severely limited.

But we had a problem. We needed something on Santos—some leverage, some hook, some way to make him realize it would be in his best interest to work with us. Sure, we could always have Herbster just go out and pitch Santos cold and see what happened. But your chances of flipping a target are far better if the FBI agent has an arrest warrant in hand. Something about a pair of handcuffs has a way of focusing the subject’s mind.

I asked if we had anything, anything at all, on Santos. “A little,” Herbster replied. Turned out, Santos had developed a specialty: middle-of-the-night break-ins at consumer electronics stores. He and his crew had honed a technique where they’d get up to the roof of a store in a strip mall; drill down through it and into the store, triggering the alarm system; retreat back to the roof and lie low (literally) until the cops came and went; and then descend back down into the store before the alarm system could rearm. (Often, the store manager would forget to rearm the system altogether once the situation seemed defused.) We had heard rumors from sources that Santos and his crew were hitting stores around the New York metro area, but we didn’t have much in the way of hard proof tying them to the burglaries.

But Herbster had developed some information on a new job: it appeared Santos and his crew had hit an Apple Store in Woodcliff Lake, New Jersey. Our proof was, well, thin. We did have cell phone records showing that Santos and his crew were in touch with one another, and in the general area of the store, on the night of the robbery, both before and after the break-in. (It is fairly conspicuous, from a phone records standpoint, for a group of guys who live in Queens to have a couple dozen cell phone conversations between 2 and 4 a.m. out in suburban Jersey near an Apple Store that got robbed that same night.) And we could prove that the suspects, after tripping an initial security alarm, had drilled in through the store’s roof—consistent with the general technique of Santos and his crew. But that was about it. No fingerprints or DNA, no usable surveillance footage—they knew how to block the cameras—and no admissions of guilt. And the charges, even if they stuck, were fairly lightweight, likely calling for two or three years behind bars. Santos had done more time than that in the past and had “stood up,” as the mobsters call it when a tough guy takes a conviction without flipping.

Herbster and I decided to draft up a complaint and see how it looked. So—and this is a scene you could see playing out in U.S. Attorney’s Offices across the country at any given moment—the FBI agent pulled up a chair next to me at my computer as I tapped out the details of a criminal complaint. I printed out two copies, and we both looked over the complaint and quickly came to the same conclusion: it’s not much, but it’s something. Let’s give it a shot.

The next day, Herbster called me around lunchtime. “He’s in,” Herbster said. Turns out, Santos was ready, even eager, to flip. He had had enough of the Mob life, he felt like he was being disrespected and misused by the Gambino Family, and he wasn’t willing to fight a case or go to prison (again) to protect them. Santos had agreed, on the spot, to cooperate. Best of all, he had agreed to wear a “wire” for us. (The days of physical wires were long gone; let’s call it a “concealed recording device.”) For the next six months, Santos recorded his day-to-day talks with other mobsters, from the powerhouses who ran the Family on down. He captured dozens of incriminating conversations, including one where a rising enforcer bragged to Santos, while munching on a dirty-water pushcart hot dog, about committing a murder that had gone unsolved for eight years. Six months after we flipped Santos, we rounded up twenty-six Gambino Family members and associates as one part of the largest coordinated single-day Mafia takedown in U.S. history.

We made that case for one reason: because we took a shot.

But when it came time for William Barr to decide whether to open a criminal investigation of President Donald Trump’s conduct toward Ukraine, despite ample evidence of potential criminality, Barr simply looked the other way and did nothing at all.

Ukraine

If William Barr had gotten his way, the world would never have known about the Ukraine scandal. We would never have learned about President Donald Trump’s misuse of the country’s international might to run a “domestic political errand,” or about “quid pro quos,” or about “I would like you to do us a favor though.” As attorney general, Barr abused his position as the nation’s top prosecutor to ensure that neither Trump nor any of his associates faced any criminal consequences. And he tried to go even further by distorting the law in an effort to silence a whistleblower. If Barr had gotten his way, Trump might never have been impeached over Ukraine at all.

As a prosecutor, you’ve got to have something to go on, some reasonable factual basis to start an investigation. The technical term for it is “predication.” The attorney general’s guidelines for the FBI define predication as requiring “generally, allegations, reports, facts or circumstances indicative of possible criminal or national security–threatening activity.” The principle is that to start an investigation, you need something, some fact, some reasonable basis—but you don’t need much.

When the Ukraine scandal hit, the Justice Department had more than enough predication to open a criminal investigation of Trump and others around him, based solely on the White House transcript of the July 25, 2019, phone call between Trump and Ukrainian president Volodymyr Zelensky. That transcript alone presented a reasonable basis to investigate potential criminal charges, including bribery, extortion, and solicitation of foreign election aid. Yet Barr ignored the obvious indicators of criminality and declined even to open an investigation. He was so far in the bag for Trump that not only did he decline to bring criminal charges, but he refused even to take a look in the first place.

Anonymous DOJ officials later claimed that the decision not to open an investigation on Ukraine was made without Barr’s involvement, by the Justice Department’s Criminal Division (headed by Brian Benczkowski, who, as previously noted, had never worked a day as a prosecutor before he took the helm). The anonymous claim that Barr was not involved in the decision is implausible, given the obvious stakes; we’d have to believe that he somehow opted to have no say in the most important and most explosive matter then before the department. And if it is true that he stayed out of it, then it’s hardly an excuse to hide behind the judgment of his closest advisors—all of whom, by mid-2019, were well versed in Barr’s solicitude of Trump. Anyone working in the higher reaches of DOJ at that point would have learned Barr’s golden rule: do Trump no harm.

And even if the decision not to investigate truly was made entirely without Barr’s involvement—well, the decision was simply wrong, and Barr is culpable for not fixing it. If he didn’t make the decision himself, he certainly learned at some point that somebody in the department had decided not even to investigate, and he had every right to step in and say, “Actually, we ought to at least take a look.” Barr would later exercise this same imperative to insert himself aggressively in other DOJ decisions—only, he’d do it in the opposite manner, to intervene for the political protection of the president and his close associates by undermining the cases against Michael Flynn and Roger Stone in unprecedented fashion, as we’ll discuss later. Note the discrepancy in Barr’s willingness to override his subordinate prosecutors depending on whether the initial decision helped or hurt Trump and his political allies.

The failure of Barr and the Justice Department even to open a criminal investigation relating to the Ukraine scandal is indefensible. Any real prosecutor would have looked at the facts and seen several federal crimes—or at least potential federal crimes, which is all you need to open an investigation—screaming out for further inquiry. I see these three:

First, bribery. It is a federal crime for a public official—here, Trump—“[d]irectly or indirectly” to demand, seek, receive, or accept any “thing of value” in return for “being influenced in the performance of any official act.” These two facts are beyond dispute: (1) Trump held back hundreds of millions of dollars in military aid to Ukraine, and (2) Trump asked the Ukrainian president to investigate Hunter Biden, the son of former vice president Joe Biden, whom Trump viewed (correctly, it turned out) as a potential rival in the approaching 2020 presidential election. Even Trump’s staunchest defenders must concede these points. (Both are confirmed by the White House’s own transcript of the July 25 phone call between Trump and Zelensky.)

So, the only remaining question is this: Did Trump condition (1) the foreign aid on (2) the Biden investigation? Were those two things somehow connected? If so—consistent with the testimony of impeachment witnesses, including Acting Ambassador to Ukraine William Taylor, Ambassador to the European Union Gordon Sondland, and U.S. diplomat in Kiev David Holmes, plus Trump’s own acting chief of staff, Mick Mulvaney (who, memorably, declared that such exchanges happen all the time and that the public should just “get over it”)—then it’s bribery. If not, then it’s all just an unfortunate, cosmic coincidence that both these things, the withholding of aid and the request for a Biden investigation, happened at the same time, entirely unrelated to each other. At a minimum here, as a prosecutor, I’m taking a look.

Second, extortion. Extortion is effectively the flip side of bribery. Bribery is “If you do this thing I want, then I will give you this benefit,” while extortion is “If you do not do this thing I want, then I will harm you.” Trump wanted the Biden investigation, and he threatened to harm Ukraine by withholding hundreds of millions of dollars in foreign aid (while Ukraine was embroiled in a war against Russia) if he didn’t get his way.

Third, solicitation of foreign election assistance. This is the least known but most easily proven of the potential crimes. It is illegal to (1) “solicit” (2) from a “foreign national” (3) a “thing of value” relating to a campaign or election. (1) and (2) are inarguable: Trump asked (“solicited”) Zelensky (a foreign national) to investigate the Bidens. The only question is whether that investigation qualifies under the law as a “thing of value.” There is no conclusive answer in the existing case law, but here’s a mental exercise. If the Trump campaign had asked (“solicited”) Ukrainian officials for a used van that the campaign could use to drive volunteers around and deliver lawn signs, would that van be a “thing of value”? Certainly. Not a ton of value, maybe a few grand, but a “thing of value” by any reasonable definition.

So, what would be more valuable to a campaign: that used van or dirt on a campaign opponent suggesting that the opponent had committed a crime? Ask any campaign manager on the planet which of those things is more valuable and see how she responds. Of course, dirt on an opponent is valuable—often, exponentially more valuable than basic office equipment or other standard campaign gear. Political campaigns routinely make enormous expenditures to look for damaging information on their opponents. And Trump wasn’t merely digging for dirt in Ukraine. He was trying to manufacture dirt by compelling the Ukrainian president to open an investigation that Trump could use for campaign fodder.

A long-standing but controversial Justice Department policy counsels against indicting a sitting president, though there is no specific statute or case law on the issue either way. But even assuming DOJ could not bring a criminal charge against Trump while he occupied the Oval Office, it certainly could have investigated and then filed any applicable charge after his term ended. Justice Department policy itself confirms that a president can be federally indicted after leaving office. And—this is important—DOJ absolutely could have investigated and, if the evidence proved its case, charged other key players in the Ukraine scandal, potentially including Mulvaney and Trump’s personal attorney Rudy Giuliani, a primary engine behind the shakedown effort.

Trump (now that he is no longer president), Mulvaney, Giuliani, and others theoretically could still be prosecuted for their involvement in the Ukraine scandal. However, valuable time has now been lost; the memories of witnesses have faded, and the scandal itself has largely receded in the collective public memory, to the point where it seems exceedingly unlikely that the post-Barr, post-Trump DOJ will have real motivation to investigate. If anything, intervening scandals—including the January 2021 Capitol insurrection sparked by Trump’s repeated false denials of his election loss—have rendered the Ukraine scandal more of a historical note than a live topic for potential investigation.

The ideal time for prosecutors to strike was in 2019, as the scandal broke. And given all the publicly known facts, any reasonable prosecutor would have at least taken a shot and opened an investigation. But Barr’s Justice Department opted not even to take a look.

The Ukraine scandal first bubbled to the attention of key governmental decision makers in the summer of 2019. A letter that landed on the desk of Director of National Intelligence Joseph Maguire on August 26, 2019, threw off sparks threatening to ignite something far bigger. The letter, from Intelligence Community Inspector General Michael Atkinson—who had been nominated to his position by Trump in 2018—referenced a whistleblower’s complaint, filed two weeks before, that alleged that “the President of the United States is using the power of his office to solicit interference from a foreign country in the 2020 U.S. election,” plus a telltale cover-up. The complaint cited proof, including precise details about a July 25, 2019, phone call between Trump and the president of Ukraine, and it dropped the names of some heavy hitters, including Trump himself, Giuliani, and Attorney General William Barr.

Atkinson had already reviewed the whistleblower’s complaint and found it to be both “credible” and of “urgent concern.” Given these determinations by the inspector general, under any reasonable reading of the law, Maguire had no choice: federal law requires that the inspector general “shall transmit” any complaint to the director of national intelligence within fourteen days (as Atkinson had done) and that the DNI (then Maguire) “shall, within 7 calendar days of such receipt, forward such transmittal to the congressional intelligence committees,” including the House Intelligence Committee, then chaired by Democratic congressman (and former federal prosecutor) Adam Schiff. Seems remarkably straightforward. “Shall forward” to Congress means “shall forward” to Congress—not “may forward,” not “in his discretion, may decide to forward,” but “shall forward.” No law degree required. “Shall” means “shall.”

Or maybe not—because Maguire had an ace up his sleeve (or a joker, perhaps). He had Barr sitting over at the Justice Department. And once again, DOJ rode to the rescue, or at least tried to. Once again, out came the Office of Legal Counsel—the same Justice Department subdivision that just months before had manufactured the “absolute immunity” theory that Trump used to defy congressional subpoenas after the Mueller Report (the same theory that was later roundly thrashed in the federal courts). This time, the Office of Legal Counsel had even more of an uphill climb: how to make “shall forward” mean something other than “shall forward.”

OLC did the best it could. It was another Barr special: plenty of legalese, a handful of peripherally relevant citations, a tone of casual certitude, and a predetermined conclusion that also happened to be dead wrong. It took OLC twelve pages of contortion to conclude that “shall forward” doesn’t actually mean “shall forward”—at least not when it comes to the president. A Justice Department spokesperson tried to downplay Barr’s involvement—why would DOJ need to do that, if the decision were legitimate?—but conceded that Barr had not recused himself and that he was “generally knowledgeable” about the matter.

But Atkinson wasn’t about to roll over and allow DOJ to squash the whistleblower’s complaint. In a courageous act that would later cost him his job, he wrote on September 9, 2019, directly to Schiff and House Judiciary Committee ranking member Devin Nunes about Maguire’s obstructionism, effectively notifying Congress of the whistleblower’s complaint himself. Seven months (and one presidential impeachment) later, in April 2020, late on a Friday night, Trump fired Atkinson. But Atkinson went out with a bang, sounding an alarm for other public servants inside the administration: “The American people deserve an honest and effective government . . . Please do not allow recent events to silence your voices.”

Schiff took the handoff from Atkinson and ran with it. On September 24, 2019, he wrote a letter to Barr noting that Maguire was improperly withholding the whistleblower’s complaint from Congress and calling out the Justice Department for providing cover. (At this point, Barr indisputably knew of OLC’s obstructionist position and did nothing about it.) Schiff pointedly wrote that Maguire “withheld the complaint from the [House Judiciary] Committee after ‘consulting’ with the Department of Justice”—the sarcastic quotation marks around “consulting” are Schiff’s, not mine. Schiff understood the dynamic: Maguire needed legal cover, and Barr’s Justice Department generated a flimsy legal opinion to provide it.

The Justice Department tried to keep a lid on the whistleblower complaint. But ultimately, Atkinson’s courage, Schiff’s dogged will, and the plain language of the law itself overcame DOJ’s politically driven maneuvering. The end result was the third presidential impeachment in U.S. history.

The same day as Schiff’s letter, the White House declassified and then publicly released a transcript of the fateful July 25 phone call between Trump and the Ukrainian president. The most famous Trump quotes to Zelensky are familiar now: “Congratulations on a great victory”; “I will say that we do a lot for Ukraine”; “I wouldn’t say that it’s reciprocal necessarily”; “I would like you to do us a favor though”; and “there’s a lot of talk about Biden’s son, that Biden stopped the prosecution and a lot of people want to find out about that so whatever you can do with the Attorney General would be great.”

Trump’s explicit reference here to the attorney general was not isolated. In total, Trump mentioned either “Barr” or the “attorney general” four times to the Ukrainian president. He made clear in the call that he intended to appoint a crack two-man squad of Barr and Giuliani to coordinate with Ukrainian government officials on the quest to open an investigation and find dirt on the Bidens. “I will have Mr. Giuliani give you a call and I am also going to have Attorney General Barr call and we will get to the bottom of it,” Trump told Zelensky.

It turned out that, once the evidence was in, Barr never did what Trump promised on the July 25 call. No evidence emerged that Barr contacted Ukrainian officials or worked with Giuliani in the quest for dirt on the Bidens. Nonetheless, it was an ugly (if telling) look for Barr that Trump considered him essentially part of a potent one-two punch with Giuliani, Trump’s own private lawyer, to gin up back-channel dirt on a political rival. Trump said out loud what many in the public had begun to suspect after Barr spun the Mueller Report into oblivion: that he viewed Barr not so much as attorney general but as his personal counsel—essentially, a second Giuliani, but on the federal payroll.

Trump’s statements on the July 25 call posed yet another recusal dilemma for Barr. One of the most basic conflict-of-interest rules is that a person cannot be both attorney and witness in the same case. For example, Attorney General Eric Holder recused himself from a 2012 Justice Department investigation of leaks of classified information to the media after he was interviewed by the FBI on the matter. Given Holder’s status even as a potential witness, he recused himself “to avoid any potential appearance of a conflict of interest.” It was the right call, and an easy one.

Similarly, if any prosecutor or investigator were to draft up a witness list based on the July 25 Trump-Zelensky transcript, Barr would be right up there near the top, after Trump and Giuliani. You’d want to ask Barr whether Trump or anyone else had ever discussed the Ukrainian scheme with him; whether he ever took any action to broker the deal Trump suggested in the call; and whether he ever had any dealings with Giuliani on the matter. Perhaps Barr’s answers to all these questions would be “no.” But it’s hard to imagine a world where Trump’s own repeated invocations of Barr’s name don’t at least make Barr a witness. Given that, he should immediately have recused himself. But Barr, true to the form he had established on the Mueller case, looked the other way and stayed on the Ukraine matter.

This time, however, the case was mostly out of his hands. The Justice Department had already come to the myopic conclusion that there was nothing worth investigating criminally. And Congress—particularly Schiff and the Democratic-run House Intelligence Committee—had taken the investigative lead.

But Barr still had a role to play as the president’s defender. He had tried and failed to keep a lid on impeachment in the first place by squashing the whistleblower’s complaint and refusing to investigate. Yet, once Schiff and the House Democrats started circling, Barr did everything in his power to make sure Trump beat the rap.

As the impeachment saga unfolded, House Democrats under Schiff’s direction scrambled to piece together evidence that Trump had committed high crimes and misdemeanors. Fortunately for Schiff, much of the case already had been made in public by Trump himself and his closest loyalists: Trump’s July 25 “I would like you to do us a favor though” phone call, Giuliani’s self-defeating boast on national television that he had asked Ukraine to investigate Biden, and Mulvaney’s declaration that quid pro quos happened all the time in international relations and that everyone should just “get over it.”

But Schiff’s team needed live witnesses, too. So, they set about requesting testimony formally (through subpoenas) and informally from key administration officials who knew what Trump had done and understood the constitutional implications. Once again, Barr jumped in to provide legal cover for Trump. Trump’s legal team again invoked the same “absolute immunity” argument that the administration had used to prevent witnesses from testifying about the contents of the Mueller Report in the House Judiciary Committee—the same bogus legal shield that had already been trashed in the federal courts.

Some past and present administration officials courageously defied Trump’s invocation of the Barr-created “absolute immunity” claim and chose to step forward and testify: Taylor, Sondland, Ambassador to Ukraine Marie Yovanovitch, Lt. Col. Alexander Vindman, former White House advisor Fiona Hill, and others whose names became familiar to the nationwide impeachment audience. Trump later would take vengeance on these public servants for speaking out. He would demote, fire, or reassign Sondland, Yovanovitch, and Vindman. He even transferred Vindman’s twin brother, Eugene, a lieutenant colonel in the army who had had nothing to do with the impeachment, just for Mafia-like good measure. Despite Trump’s textbook display of witness retaliation (a federal crime), Barr never even opened an investigation.

While some witnesses spoke out, others eagerly hid behind the legal wall that Barr had built, structurally unsound though it was. Mulvaney, Secretary of State Mike Pompeo, Energy Secretary Rick Perry, and others refused to testify or turn over documents. Former national security advisor John Bolton later claimed in his book The Room Where It Happened that Trump had explicitly tied foreign aid to Ukraine to the Biden investigation, which any prosecutor would have recognized as smoking gun evidence. But as the impeachment unfolded, Bolton also took cover behind Barr’s “absolute immunity” theory, claiming he’d be willing to testify only if so ordered by a court, threatening protracted litigation that Schiff’s team simply had no time to wait out. Bolton later said he would testify in the Senate impeachment trial if subpoenaed. To the surprise of nobody, the Republican Senate majority voted against hearing from any witnesses at all, keeping Bolton safely locked away and preserving his juicy secrets for his book, released months after Trump was acquitted.

Once again, Barr got it wrong but still did the trick for Trump, providing legal cover under the weighty imprimatur of the U.S. Department of Justice. The infirmity of that pretext was immediately apparent to anybody who understood the law, and the federal courts later toppled Barr’s brittle construction. But he erected just enough of a barrier, and it stood for just long enough, to keep Trump’s most loyal defenders from having to testify against him. Barr, once again, cheapened the Justice Department to help Trump hide the truth and escape a massive scandal almost entirely unscathed.

The Prosecutor’s Code
Podium Privilege

“And if you do those three things—consider the facts, follow the law, and use your everyday common sense—then, I submit, at the end of this trial, you’ll return a fair and just verdict: guilty on all counts. Thank you.”

I exhaled and looked expectantly around the cramped conference room. It was stuffed with prosecutors sitting two deep in mismatched chairs around a chipped, seen-better-days table. Some of my colleagues were looking down, finishing up their note taking. (Or, perhaps, as I was about to learn, they simply didn’t want to look up at me.) I thought I detected some confusion on the faces of others.

Keeping with tradition, we started with the most senior prosecutor in the room, my General Crimes unit chief. He began, in a half-apologetic, half–“you need to hear this for your own good” manner: “I don’t know exactly what that was. But it was not an opening.”

Looking back, I see that he was absolutely right. It was my first-ever “moot,” as we called it. SDNY office tradition requires that, whenever a prosecutor is about to deliver a jury address (opening, closing, or rebuttal), he first must give it a dry run in front of his colleagues. It’s a dress rehearsal, essentially. Then, American Idol style, each assembled prosecutor in the audience offers a blunt critique, positives and negatives alike, holding nothing back but also with a focus on the constructive, the things that need to be different and better. As you might guess, the comments tend to be mostly of the Simon Cowell variety.

Moots were nightmarish. Nobody enjoyed giving them. It never felt quite right to deliver a jury address standing at the head of a conference table, using a box of copier paper as a lectern. The conference rooms were too small, too crowded, and allowed no space to move around freely, as you might do in the well of a courtroom. And the audience—mostly prosecutors, plus the occasional paralegal or law enforcement agent or staffer, to get some “real person” perspective—might have a couple hundred years of cumulative prosecutorial experience. Tough crowd.

Once, when I was a few years in, I tried during a moot to do a dramatic reenactment of a shooting, physically acting out how it had gone down, yelling “bang” as I feigned firing a gun with my fingers. Starting off the post-moot commentary, my unit chief had to just say it: “That shooting thing—don’t do that.” Everybody else in the room laughed with relief; they were all thinking the same thing, but since he was first, it was his job to put it out there, no holds barred. But it was for the best. (He was absolutely right; I dropped the reenactment shtick, and the opening was much better without it.)

No, moots were no fun. But they served an invaluable purpose. Inevitably, after you absorbed the sting of criticism—and it doesn’t get much worse than “I don’t know exactly what that was” or “don’t do that”—you’d go back to your office, revise and rework, and come out with a much better product. And by the time you were standing in front of a real jury in a real courtroom the next day, you’d be ready for battle. The moot is the hard part. The actual jury address is the payoff, an adrenalized joyride by comparison.

The moot is a vital exercise in its own right. It helps the prosecutor craft a persuasive argument. It builds your calluses, your prosecutorial steel. It also reflects an important ethic in prosecutors’ offices: We can freely critique each other, behind closed doors, before the action goes down in public. But once the moot is over, once the prosecutor goes into the courtroom and delivers a jury address, the second-guessing ends and everyone stands together.

Anyone who has done the job recognizes what we call “podium privilege.” When you’re in the well of the courtroom, standing at that podium, you’re the one in the ring. Everything happens fast, you rely on your own instincts and judgment, and you can’t worry about whether people will second-guess you. As the great boxer-philosopher Mike Tyson famously put it, “Everyone has a plan until they get punched in the mouth.” Only the person standing in the arena can know how it feels, can sense the vibe in the courtroom. A look from a juror can convey confusion or agreement; a judge might say something from the bench indicating that you’ve hit on something important, or that it’s time to wrap up; a defense lawyer might lodge an unexpected objection that undercuts a key point of your argument and forces you to improvise on the spot.

When you’re the one doing battle, it’s your call, and your privilege. Real prosecutors don’t undercut one another after the fact—and it is absolutely unthinkable to do so in public.

Yet, in two of the highest-profile and most politically charged cases of his tenure—the prosecutions of Trump’s first national security advisor, Michael Flynn, and Trump’s self-described “dirty trickster”–slash–political advisor Roger Stone—William Barr did just that, in the most public and officious manner. In both cases, Barr’s intervention was transparently politically driven, as we’ll discuss in upcoming chapters. But Barr also broke a core tenet of the prosecutor’s code: he undermined his own prosecutors in dramatic fashion after they had received necessary internal DOJ approvals to proceed. And he backstabbed them right out in public for the entire world to see.

It’s exceedingly rare to see a prosecutor resign from a case in protest. In my fourteen years as a prosecutor, I never saw it happen or even heard it discussed. Yet the line prosecutors on the Flynn and Stone cases—the real prosecutors, the ones who built the cases and earned hard-fought convictions—planted a flag and withdrew or quit in protest over Barr’s ugly meddling (as did other prosecutors in other cases later in Barr’s term; we’ll get to those).

This is not to say there’s no place for deliberation or disagreement in prosecutors’ offices. In fact, this is much of what you’ll hear if you walk the halls of the SDNY as prosecutors gather in small groups—animated, profane give-and-take, chop busting, discussion of pending dilemmas and hypothetical “what-would-you-do” scenarios. But that smack talk ends once the prosecutor gets to the podium and takes an official position, in public and on the record.

Of course, the attorney general (or any supervising prosecutor) can and at times should overrule lower-level prosecutors. I sometimes disagreed with my supervisors, and I was occasionally corrected or simply overruled by them. I understood and respected their views and authority. Maybe I’d bring a prosecution memo to a supervisor who would tell me I didn’t quite have the proof on a particular defendant. Maybe a supervisor would decide that I couldn’t plead a case out unless the defendant agreed to accept a bit more prison time. Or a supervisor might tell me to drop a weaker legal argument and lead with a different one. Later, as a boss, I would do the same for the people I supervised. That’s the job.

But here’s why Barr’s intervention in the Flynn and Stone cases was different—again, putting aside the politics for now. In both cases, the prosecutors had already gone through all appropriate internal Justice Department levels of review and approval. Accordingly, they then took public positions, on the record, in documents filed under DOJ letterhead, with the country watching. Only after that—and after some conspicuous, manic Trump tweets urging leniency—did Barr belatedly spring into action.

Seemingly prodded by the president and politics, Barr cut the knees right out from under his own prosecutors. That’s an ugly, disloyal, backstabbing move. And it’s one that no real prosecutor, nobody who has ever been under fire at the podium in the well of a courtroom, would ever make.

Michael Flynn

Michael Flynn was talking to the feds—until somebody or something convinced him to shut up.

Flynn was, for a time, cooperating with Robert Mueller’s team of prosecutors, implicating other people in criminal conduct in an effort to save his own hide. But then he changed course and decided to stay quiet. As a result of his change of heart, Flynn put himself at risk; when he stopped cooperating, he exposed himself to the real possibility of a prison sentence. But Bill Barr used his power as attorney general in an unprecedented manner to try to ensure that Flynn would never spend a day behind bars.

Flynn’s guilty plea in December 2017 was a seismic opening act for Special Counsel Robert Mueller. Seven months before, Mueller had been appointed to investigate Russian interference in the 2016 election, and Flynn’s conviction was Mueller’s first pelt. Flynn was a serious player—not some peripheral wannabe, but President Donald Trump’s first national security advisor and one of Trump’s closest campaign cheerleaders; Flynn had infamously (and ironically, given his own eventual rap sheet) led chants of “Lock her up” during the 2016 Republican National Convention.

Flynn pled guilty, right away, to Mueller’s charges that he had lied to the FBI. The conviction was on the books before the public knew the case was coming.

In any federal case, there are two types of guilty pleas. The first is what we at the SDNY would call a “straight” plea. The defendant admits his crime and, in return, gets a bit of a haircut on his recommended sentence. It’s a straightforward exchange—this for that—and then the parties go their separate ways.

The second type of guilty plea is the cooperation deal. This is a more involved, longer-term commitment. The defendant pleads guilty, typically to a formal charging document called an “information” (essentially, a voluntary indictment to which both sides agree in advance). The deal is the defendant must give up others and must testify as needed. In return, the cooperating defendant gets a sentencing letter—often called a “5K letter,” after the sentencing guidelines section that authorizes it—from prosecutors, which typically results in a major reduction in the sentence.

Defense lawyers sometimes refer to the coveted 5K letter as the “golden ring”—the most powerful asset any defendant can have at sentencing. Stories of successful cooperators getting massive sentencing breaks are plentiful. Notorious Gambino Family underboss Sammy “The Bull” Gravano admitted to nineteen murders but was sentenced to only five years in prison because prosecutors wrote him a powerful 5K letter based on his extensive cooperation. Decades later, the SDNY flipped powerhouse Gambino Family captain Michael “Mikey Scars” DiLeonardo. (He’d always point out to the jury that he earned his nickname not because he inflicted scars on others but because, as a child, he was attacked by a dog.) DiLeonardo pled guilty to three murders, plus racketeering, extortion, and other crimes. But I told the sentencing judge in a 5K letter that he had also provided historic cooperation, leading to the convictions of dozens of other mobsters. The judge sentenced DiLeonardo to just over three years behind bars. Bottom line: it pays to cooperate—if you do it right.

What constitutes cooperating “right” varies depending on the prosecutor’s office. In some federal districts and state- or county-level prosecutors’ offices, cooperation can be limited. The cooperator might have to testify against only certain people or about certain crimes (typically, the crime and codefendants charged in the original indictment). But in the SDNY and much of the Justice Department, cooperation is all-or-nothing. A cooperator must admit everything he has ever done. We used to tell any new, aspiring cooperator to start by telling us about the first time he shoplifted candy as a kid, and we’d progress from there. And, critically, an SDNY cooperator must give up everything he knows about any crime that any other person has committed, whether charged in the original indictment or not. Under either system, cooperation works only if the cooperator provides information on other potential targets. You can’t flip without bringing down others.

When Flynn originally pled guilty in federal court in Washington, DC, in December 2017, it was not a “straight” plea deal. Flynn was a cooperator. He pled guilty and he signed an agreement with Mueller’s team requiring him to “cooperate fully, truthfully, completely, and forthrightly.” Flynn was cooked, and he was going to take down others to save himself.

We don’t know exactly what Flynn told Mueller’s team or whom he gave up. But we do know that he spent at least a year talking. On the eve of what was supposed to have been Flynn’s sentencing in December 2018—before things fell apart—Mueller wrote a letter to the sentencing judge that dropped tantalizing hints. He confirmed that Flynn had provided “particularly valuable” information relevant to “several ongoing investigations,” including “the investigation concerning any links or coordination between the Russian government and individuals associated with the campaign of President Donald J. Trump.” Mueller also noted that Flynn had provided “long-term and firsthand insight”—“firsthand” meaning that Flynn was actually in the room when the crimes were committed and didn’t just hear about them through the grapevine.

Mueller’s team revealed that they had met with Flynn nineteen times. I’ve met about that many times with certain of my most productive cooperators, guys (like DiLeonardo) who spent decades committing crimes as a living for the Mafia. The fact that Mueller’s team spent that much time debriefing Flynn tells you they had an awful lot of ground to cover. As a prosecutor, my colleagues and I used to say there are cooperators and then there are cooperators. Mueller’s letter made clear: Flynn was the latter, italicized variation.

But, at some point, Flynn went south. First, his December 2018 sentencing proceeding nearly blew up on him when he showed signs that he might be reconsidering his commitment to fully coming clean about his own criminal conduct. Federal district court judge Emmet Sullivan—a straight-shooting nonpartisan who had been appointed to various judicial positions by Presidents Ronald Reagan, George H. W. Bush, and Bill Clinton—unleashed fury on Flynn. He accused Flynn of “undermining everything this flag over here stands for. Arguably you sold your country out.” The judge spared Flynn temporarily, however, adjourning the sentencing proceeding to give him an opportunity to reconsider his recalcitrance and fully accept responsibility for his criminal conduct.

Instead, Flynn unraveled. At some point, he stopped talking to Mueller’s team or stopped telling the truth. He refused to testify in a case against his former business partner, Bijan Kian, who was charged with violating foreign lobbying registration laws. Mueller’s team ended up trying Kian without Flynn’s testimony. After the jury found Kian guilty, the judge threw out the charges because of insufficient evidence; a court of appeals later reinstated Kian’s conviction.

It got worse after that. Eventually, Mueller’s team informed the court that it would oppose any sentencing credit for Flynn because of problems with his “cooperation and candor.” Flynn had gone completely off the rails.

Understand: it is self-defeating for a defendant to cooperate for an extended period and then to “blow up,” as we in the SDNY sometimes phrased it. This was about the most counterproductive strategic tack Flynn could have taken. The guilty plea of a cooperator gone bad still stands—only, he does not get the benefit of the prosecutor’s 5K letter to the judge at sentencing. Worse, the judge knows that the defendant failed in his effort to cooperate, which can result in an even higher sentence than if the defendant had never tried to cooperate at all. It’s the worst move a defendant can make—unless he’s been promised some other, extraordinary form of relief on the back end: by pardon, by Justice Department intervention, or by other means.

What could have caused Flynn to flake out on his cooperation? It always helps to start with the incentives: Who stood to be hurt by his cooperation, and who benefited when it fell apart?

Quick reminder of the facts that led to Flynn’s charge and conviction. In late December 2016, toward the very end of his tenure, President Barack Obama imposed sanctions on Russia for its interference in the 2016 presidential election. Flynn, who had been tapped as Trump’s first national security advisor and was then weeks away from taking office, consulted with the Trump transition team and then had a phone call with Russian ambassador Sergey Kislyak. Flynn told Kislyak that Russia should not retaliate or otherwise escalate the situation, assuring Kislyak that “then when we come in, we will have a better conversation where we are going to go regarding our relationship.” The day after the Flynn-Kislyak phone call, Russian president Vladimir Putin announced that Russia would not take retaliatory measures against the United States over the sanctions—precisely as Flynn had recommended. Kislyak then called Flynn back to inform him of Putin’s decision, and Flynn, in turn, updated the Trump transition team.

Weeks later, on January 24, 2017—just days after the Trump administration took office—the FBI interviewed Flynn about his call with Kislyak. Flynn lied. He claimed that he had not asked Kislyak to refrain from escalating the situation regarding sanctions, and he claimed not to remember any follow-up conversation with Kislyak about the Russian response. When charged by Mueller, Flynn immediately pled guilty to making false statements to the FBI.

Any prosecutor preparing to debrief Flynn as a new cooperator would quickly have identified the million-dollar question: Why? Why did Flynn lie to the FBI? Who or what was he trying to protect? Recall that, both before and after his pivotal call with Kislyak (the one he’d later lie to the FBI about), Flynn had contact with members of the Trump transition team. Mueller’s prosecutors did not specify in Flynn’s paperwork whom on the Trump transition team Flynn spoke with, whether Flynn spoke directly with Trump, or whether other transition team members updated Trump. But anyone in the administration who knew about Flynn’s contacts with Kislyak stood to get hurt by Flynn’s cooperation.

Trump’s personal attorney John Dowd took an early crack at convincing Flynn not to cooperate. (Dowd is known to some as the man who led Major League Baseball’s investigation of gambling by Pete Rose, but he sticks in my memory for classily flipping the bird to the media outside the courthouse during a trial in which an SDNY colleague of mine eventually earned a conviction of a Dowd client.)

Dowd called Flynn’s lawyers shortly after they informed the White House they could no longer communicate with Trump’s legal team—to any experienced defense attorney, a bright red flag of impending cooperation. Leaving a voice mail message that clumsily blended intimidation tactics with veiled enticements for Flynn to keep quiet, Dowd stammered that it had become clear to him that Flynn had begun cooperating: “I understand your situation, but let me see if I can’t state it in starker terms. If you have . . . and it wouldn’t surprise me if you’ve gone on to make a deal with, and, uh, work with the government, uh . . .” Eventually, Dowd got to the point: “If, on the other hand, we have, there’s information that implicates the President, then we’ve got a national security issue, or maybe a national security issue, I don’t know, some issue, we got to, we got to deal with, not only for the President, but for the country.” Dowd himself didn’t even seem to believe what he was slinging—“I don’t know, some issue.”

Then Dowd, still fumbling, made his ask: “So, uh, you know, then, then, you know, we need some kind of heads up. Um, just for the sake of protecting all our interests, if we can, without you having to give up any confidential information.” Translation: We need to know if Flynn is giving information to prosecutors that could harm Trump. And, if so, it could hurt Flynn as well (“protecting all our interests”). But no person about to be implicated by a cooperator is entitled to a “heads-up.” Later, just to make sure the message came through, Dowd spoke on the phone with Flynn’s attorneys and informed them that he took Flynn’s position as a sign of “hostility” toward Trump, and he vowed to advise his client, the president, accordingly. With this message, Dowd erased any doubt that the purpose of his outreach was to flex: We know Flynn is cooperating, we don’t like it, and we’re going to make his life difficult if he goes through with it.

But there was a carrot, too. Dowd closed his voice mail message by reminding Flynn’s attorneys that “you know, remember what we’ve always said about the President and his feelings toward Flynn, and that still remains.” You don’t need to be an expert subtext reader to understand this part. Trump still has “feelings” for Flynn. Yes, the same president who holds constitutional pardon power and who heads the executive branch, which houses the Justice Department. That president and those “feelings.” There’s a reason that Flynn’s attorneys at the time, one a former federal prosecutor, knew to save this voice mail and turn it over to Mueller. (Disclosure: I used to work at Covington & Burling, the same law firm that represented Flynn during his guilty plea and initial cooperation, years before the firm handled the Flynn case.)

Buttressing Dowd’s behind-the-scenes effort to keep Flynn quiet, Trump himself did his utmost to make the Flynn case go away. The night after Trump learned that Flynn had been interviewed by the FBI, he had a private one-on-one dinner with then–FBI director James Comey at which he demanded “loyalty.” Days later, after he pushed Flynn out of his White House job, Trump declared to former New Jersey governor Chris Christie, with a misplaced sigh of relief, that “now that we fired Flynn, the Russia thing is over.” Christie, a former federal prosecutor, soundly advised Trump that, no, firing the subject of a criminal investigation does not make a criminal case disappear.

Just hours after Christie doused Trump’s naïve hope with a bucket of cold prosecutorial reality, Trump tried again. He pulled Comey into the Oval Office for a private one-on-one. According to Mueller’s final report, Trump beseeched Comey, “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.” No dice. A seasoned federal prosecutor who was the U.S. attorney for the SDNY from 2002 to 2003—he left the office shortly before I joined—Comey knew instinctively that he could do no such thing. Though, by his own account, he did not explicitly rebuff Trump, but merely did not commit to ending the Flynn case.

Something about the Flynn case plainly made Trump and his legal team nervous. And by the time Flynn pled guilty and began cooperating with Mueller, Trump escalated his behind-the-scenes efforts to squelch the case to an overt public campaign to disparage the Flynn prosecution and anybody who had anything to do with it. In all, Trump tweeted or retweeted more than one hundred times about the Flynn case. Just weeks after Flynn’s guilty plea under a cooperation deal with Mueller, Trump publicly floated the possibility of a pardon: “I don’t want to talk about pardons for Michael Flynn yet. We’ll see what happens. Let’s see. I can say this: When you look at what’s gone on with the FBI and with the Justice Department, people are very, very angry.” (Note the old “I won’t talk about it, but now let me talk about it”—a tactic Barr also would adopt when convenient.)

Mueller later found that Trump’s efforts to silence Flynn could have satisfied the legal requirements for a criminal charge of obstruction of justice. In his report, Mueller halfheartedly raises potential defenses to such a charge—maybe Trump just felt sympathy for Flynn; maybe Trump had bad intent that wasn’t quite criminal—and then shoots each lame excuse down in turn. This exercise underscores Mueller’s failure to clearly state that Trump obstructed justice, even though the facts in his report could hardly have made the conclusion any clearer. This became an exasperating trademark of the Mueller Report: here’s a bunch of damning evidence, but who’s to say if it constitutes a crime? And remember: Trump’s effort to silence Flynn was just one of eleven separate instances of potentially obstructive conduct outlined by Mueller.

Here’s the math. The primary (or perhaps only) reason Flynn (or any defendant) cooperates with prosecutors is to reduce his potential sentence. As we used to tell juries right up front during SDNY trials: “Cooperators don’t cooperate because they are angels or patriots—they cooperate to help themselves.” Well, if the president is poised to eliminate the possibility of any sentence at all, what incentive remains to flip?

Flynn decided to cooperate, initially. He did so, successfully, for a long time, during which he provided valuable information to Mueller about other people. Dowd tried to prevent Flynn from cooperating on Trump’s behalf, without success. Trump tried to stop him, privately and publicly, by offering both punishments and rewards. And ultimately, Flynn flaked. He stopped cooperating—at his own peril. Perhaps Flynn stopped cooperating because he came to believe that the case against him was so flawed that he could get out of his prior guilty plea (an extraordinarily difficult thing to do; defendants sometimes try to withdraw their guilty pleas and almost never succeed). Maybe Flynn simply lost his mind; in July 2020, he posted videos of himself reciting slogans and hashtags associated with the conspiracy group QAnon. Or perhaps Flynn knew he’d never wind up behind bars because somebody would save him.

The Justice Department typically prosecutes more than eighty thousand defendants in over sixty thousand cases a year. (Some cases involve multiple defendants, of course.) Of those tens of thousands of defendants, Barr personally interceded to seek a dismissal of charges following a guilty plea for one defendant: Michael Flynn, the same Michael Flynn whom Trump and his legal team had tried to dissuade from cooperating; the same Michael Flynn whose case Trump constantly railed about publicly.

Here’s how unusual it is for an attorney general to reach down from Justice Department headquarters and seek the dismissal of a case where a defendant has pled guilty. (Because of a procedural hiccup, Flynn actually pled guilty twice.) Nobody—not Barr himself, nor his defenders—could cite one other case where this had happened before. I certainly never saw it during my years as a prosecutor; the very notion would have been inconceivable. The possibility is exactly as absurd as it sounds: this defendant was charged by DOJ, admitted his own guilt (twice) under oath in front of a judge—and then the attorney general seeks to dismiss the case?

Barr later defended his intervention in the Flynn case (and the Roger Stone case, discussed in an upcoming chapter) by pulling rank and pounding his chest. In a September 2020 speech, he declared, “Because I am ultimately accountable for every decision the department makes, I have an obligation to ensure we make the correct ones . . . Letting the most junior members set the agenda might be a good philosophy for a Montessori preschool, but it is no way to run a federal agency.” Where to begin? With these comments, Barr, a man who has never tried a case as a prosecutor, infantilized the thousands of men and women who served under him in the Justice Department, the people who fought every day in courtrooms across the country while Barr theorized from his comfy suite in Washington, DC. Barr’s rebuke of his own line prosecutors is a profile in hypocrisy and a model of morale-crushing leadership.

And his argumentative technique is decrepit. First, he states an inarguable, uncontroversial point—that the attorney general runs the Justice Department and has the authority to intervene in its cases. Of course. But Barr’s explanation glides right past the key point: that he exercised that power only in a selective and nakedly political manner and that he undercut his own prosecutors after they had already received internal DOJ approvals.

Barr tried again to retroactively justify his involvement in the Flynn case in a December 2020 Wall Street Journal interview, during his final days in office. This time, he claimed that the Flynn investigation “was entirely bogus.” “It was analogous right now [during the presidential transition] to DOJ prosecuting the person Biden named as his national security advisor for communication with a foreign government,” he claimed. But this was a false analogy resting on a mischaracterization of what had actually happened. The FBI did not investigate Flynn because he had merely “had a communication with a foreign government.” The FBI investigated because, after Flynn had that communication, he lied to the vice president about it, among others; if that didn’t set off alarm bells for Barr, then his lack of prosecutorial instinct shone through. And the FBI prosecuted Flynn—and, let us not forget, Flynn pled guilty—not because he had communicated with a foreign government or even because he had lied to the vice president, but because he had then lied to the FBI about those communications.

Beyond the ugly politics of the Flynn case, Barr also just straight-up got it wrong legally. DOJ’s motion to dismiss Flynn’s conviction is garbage, an illogical mess that shows no understanding of the law or prosecutorial practice. (Timothy Shea, interim U.S. attorney for the District of Columbia and a close Barr confidant and advisor, signed the motion, but Barr later acknowledged that he had been directly involved in the case and in the decision to overrule the line prosecutors who had directly handled the Flynn case from the start.) It’s another Barr special: citations that do not quite get to the point at hand and conclusory declarations about the correctness of the position taken, but little of substance.

As retired federal judge and former federal prosecutor John Gleeson (who had been appointed by Judge Sullivan to assess the merits of DOJ’s motion to dismiss Flynn’s conviction) put it, Barr’s legal work was “riddled with inexplicable and elementary errors of law and fact.” Gleeson called out Barr’s flimsy argumentative tactics, noting that the motion to dismiss contains a “parade of false formalities” and relies on weak “straw man” arguments. Gleeson eventually concluded that Barr’s effort to dismiss the Flynn case was a “corrupt and politically motivated favor” and that the Justice Department “is trying to give special treatment to a criminal defendant because he is favored by the President.” (Fun fact: Gleeson tried and convicted the legendary mobster John Gotti in the 1990s. Decades later, I tried but did not convict John A. Gotti, aka “Junior”; more on this later.)

Gleeson was right. Barr’s motion is a travesty, an illogical and legally suspect mess that no real prosecutor would ever cobble together and file with a court. The core argument in Barr’s motion to dismiss is that Flynn’s lies to the FBI were somehow not “material”—meaning not significant enough to the subject matter of the FBI’s investigation. For the first refutation of Barr’s theory, let’s turn to Michael Flynn himself and to the FBI itself: when Flynn pled guilty, he admitted under oath that his lies were in fact “material.” The prosecution team, including the FBI, agreed. Who would know better than the defendant and the FBI whether the defendant’s lies actually mattered to the FBI in its own investigation?

The materiality of Flynn’s lies could hardly have been more obvious. The FBI was investigating potential coordination between the Trump campaign and Russia; Flynn had had conversations with Kislyak and the Trump campaign about how the Trump administration would react to Russia’s interference in the 2016 election; and then Flynn had lied to the FBI about those very conversations. As Gleeson put it, “That is about as straightforward a case of materiality as a prosecutor, court, or jury will ever see.”

Here’s where Barr becomes a Cirque du Soleil–level legal contortionist. He argues that Flynn’s lies to the FBI were not material because there had been no legitimate basis to investigate Flynn in the first place. First, this simply is not the law, and Barr cites nothing to support his crooked spin. (This is a common Barr tactic: lard the brief with legal citations on uncontested and non-dispositive points, but when it comes to the core dispute, just declare yourself correct without any supporting authority.)

The linchpin of Barr’s position is that, at one point, the FBI determined that it had “no derogatory information” on Flynn—until, Barr neglects to mention, it did. Indeed, at a certain point, the FBI had no information that Flynn had done wrong. But then the Bureau learned that Flynn had told Kislyak to go soft in response to sanctions and had lied to Vice President Mike Pence, among others, about that conversation. (Pence, in turn, repeated Flynn’s lies during an interview with CBS News.) Only a clueless non-prosecutor or a hopeless partisan could argue that the FBI still did not have enough even to question Flynn at that point, or that it was harmless for Flynn to have lied when the FBI questioned him.

More broadly, any real prosecutor quickly sees the problem with Barr’s tortured claim about “materiality.” The FBI interviews people all the time, whether or not it believes they have done something wrong. If any person lies, whether the FBI suspects that person was part of the underlying crime or just an innocent eyewitness, it’s still a crime to lie to the FBI, either way. If a bystander witnesses a robbery and then talks to the police, it’s a crime to lie about what he saw, even if he had no fault in the robbery itself.

Barr also argues in the motion to dismiss the Flynn case that the Justice Department has an unqualified right to dismiss any charges in any case for any reason—even if pure “pretext.” Yes, according to Barr, because he is attorney general, he can get rid of a case, even under false cover, and there’s nothing any federal judge or anybody else can do about it. True, it is generally up to the executive branch—DOJ, specifically—to decide whether to bring or dismiss criminal charges. But, contrary to Barr’s argument, that power is not unlimited in cases where a defendant (like Flynn) has already been charged or convicted. In those cases, the law requires that a judge grant “leave of court,” meaning the judge has the right and responsibility to review the proposed dismissal and determine its propriety. Barr could flex his authority, and he did have ample muscle as attorney general, but he could not simply will the actual federal rules into submission.

After Barr’s unprecedented move to dismiss the charges against Flynn, the case took a tortuous journey through the federal courts. In sum: Judge Sullivan declined to dismiss, and he appointed Gleeson to weigh in. DOJ appealed that decision. Then a three-judge court of appeals panel took Flynn’s side and ordered Sullivan to dismiss the charges without a further hearing because DOJ had unilateral authority to dismiss its own cases. The full court of appeals, sitting “en banc” (an extraordinary step in which all active judges for a circuit reconsider a case), disagreed and ruled that Sullivan did in fact have authority to hold a hearing and decide for himself whether to dismiss the case. And Sullivan reinitiated his fact-finding hearings.

During one of those hearings, Flynn’s lawyer Sidney Powell—who replaced the original lawyers who initially arranged for Flynn to cooperate with Mueller, prompting a Trump tweet gushing that Flynn had “not retained a good lawyer, but a GREAT LAWYER”—revealed that she had briefed Trump, in person, on the case. This was a jaw-dropping admission. The criminal defense attorney in a high-profile Justice Department prosecution had personally updated the sitting president on her efforts to get the case dropped. Powell’s admission cast doubt on Barr’s claim that he had just happened upon and decided to intervene in this one particular case for legitimate, nonpolitical reasons.

But in late November 2020, on the eve of Thanksgiving, after Trump had lost the election and entered his lame-duck period, he pardoned Flynn, announcing the pardon in a tweet that made it sound more like Flynn was receiving an award than a reprieve from a federal felony conviction: “It is my Great Honor to announce that General Michael T. Flynn has been granted a Full Pardon. Congratulations to @GenFlynn and his wonderful family, I know you will now have a truly fantastic Thanksgiving!”

With the courts resisting DOJ’s effort to dismiss the case, a presidential pardon was the only way to ensure that Flynn would not go to prison. The pardon ended Sullivan’s effort to discover the full truth behind DOJ’s machinations and preempted any formal decision from him about whether the Justice Department was within its legal rights to dismiss the case.

But, shortly after the pardon, Sullivan made clear what he would have done if the case had remained before him. In a written opinion, he took apart DOJ’s distortion of the law around “materiality,” concluding that its legal arguments were flatly incorrect and that they “directly contradict previous statements the government has made in this case.” And Sullivan noted pointedly that the fact-finding hearing, before being short-circuited by Trump’s pardon of Flynn, had “raise[d] questions regarding [the Justice Department’s] motives in moving to dismiss.”

Through the seemingly never-ending cycle of appeals, reconsiderations, and remands, the ultimate outcome was never seriously in doubt. Once Barr tried to gut the Flynn case, it was all but over. One way or another, through the machinations of Barr (not because he was right, but because DOJ has broad power to decide whether to prosecute or dismiss charges) or Trump, there was no way Flynn would spend a day behind bars. And once that became clear to Flynn, he had no reason to continue talking to Mueller.

Barr’s interference in the Flynn case was both politically driven and legally incorrect. And more than that, Barr again broke a core tenet of the true prosecutor: he undercut the actual prosecutors on the case, in broad view of the public, after their moves had been fully vetted and approved through proper Justice Department channels. Barr shattered the podium privilege.

Brandon Van Grack, who had worked for a decade as a DOJ prosecutor, led the Flynn prosecution for Mueller’s team from the first public filing in the case in late 2017. When Barr usurped the case and sought to throw it out in May 2020, Van Grack took the nearly unheard-of step of resigning from the case, plainly in protest.

Understand what a big deal it is for a Justice Department prosecutor to resign from a case. If you care about the job, if you’re doing it right, then for better or worse, you live it. Every major case I worked became a part of my life, my identity. Even outside work hours, I’d often find my mind drifting toward my cases—while out for a run, while watching TV, even while asleep. (I’d keep a pen and paper in the drawer of my night table to jot down those brilliant 3 a.m. brainstorms; somehow, they never seemed quite as insightful the next morning.)

To leave a case that you’ve worked for over two years, as Van Grack did, is no empty symbolic gesture. It’s a painful decision that you make only if you have no other choice. I never once in my fourteen years as a federal and state prosecutor saw or heard about a prosecutor resigning from a case in protest. The prospect never even came up in casual conversation. That’s largely because, simply put, nobody—no supervisor, no U.S. attorney, no attorney general—had ever pulled a baldly political and public end run like Barr did on the Flynn case.

All the legal moves Van Grack made were properly vetted and approved within the Justice Department: the decision to charge Flynn, to accept his guilty plea, to give Flynn a cooperation agreement, to proceed to sentencing. Once a motion is filed under DOJ’s imprimatur, with the appropriate approvals and signatures, that’s that—or it should be. Barring unexpected new factual developments, with the filing of a motion, the Justice Department has taken a formal position and is on record. (Barr tried weakly to argue in the Flynn case that the team had discovered new evidence, but none of it went to the core fact that Flynn had lied to the FBI.)

Only at virtually the last minute, as Flynn awaited imposition of the final sentence, did Barr descend from his perch and cut off at the knees both the case and the prosecutors who had made it. And he undermined the Flynn prosecution team in an especially public, high-profile manner—not only humiliating his own prosecutors but also causing the public rightly to doubt the Justice Department’s processes and integrity.

Big picture: this is why Barr’s intervention was so damaging to the Justice Department. He showed the world that DOJ’s own house was not in order. He contradicted his own people, who knew the case best, in service of dubious ends. And he undercut the department’s most important assets: its credibility and independence. Judges, defense lawyers, other prosecutors, and the public need to know that once the Justice Department commits to a position, it won’t change it without a damn good reason. Barr cast doubt on that fundamental faith by undermining such an important case with so little legitimate justification.

If Barr had ever set foot in a courtroom himself, he’d have had a better understanding of the podium privilege. He’d have respected the concept that the line prosecutors who live and breathe the case, who know the facts cold, are in the best position to make the key calls. And he’d have known that while internal discussion and dissent are fine, even beneficial, once the Justice Department has worked out its position, you stick with it and you stand by your fellow prosecutors.

Michael Flynn never did complete his cooperation. And it took a Bill Barr shiv to the backs of his own line prosecutors, the real prosecutors, to help ensure that no harm befell Flynn—or the people he might have implicated had he completed his cooperation—as a result.

The Prosecutor’s Code
Protect the Process

I could hear the shrieks coming through the heavy door of the witness room. “I’m not going out there,” our witness sputtered whenever he was able to gather his breath between sobs. He wasn’t just feeling jittery. He was full-on melting down.

We were in the middle of the trial of a Genovese Family associate, Angelo Nicosia, whom we had charged with extorting the witness, a contractor. (I won’t use his name here.) It was a textbook shakedown. Nicosia and his Genovese Family cohorts had demanded tens of thousands of dollars from the contractor’s company in connection with a building project in New Jersey. When the contractor resisted paying, the Genovese Family sent out an enforcer, who went to the work site, demanded payment, and then punctuated his request by smashing a half-filled glass coffeepot over the head of the contractor’s business partner. Later, Nicosia and two other Mob enforcers brought the contractor to a diner, surrounded him in a booth, and threatened to cut off his fingers if he didn’t pay. Duly terrorized, the contractor eventually coughed up fifty thousand dollars. I actually worried a bit during the trial that it all sounded almost too Hollywood, too made up—especially the threat to cut off the contractor’s fingers—and that the jury would doubt it had actually happened that way.

Through a cooperator’s tip, we had located the contractor and convinced him to testify—or so we thought. (The contractor’s partner, who had taken the glass coffeepot to the head, absolutely refused; we could have issued a subpoena and forced him to testify, but he had made it clear he was not going to be forthcoming if we did that.) We went out to a job site to meet with the contractor, who was reluctant but willing to tell us what happened and, if necessary, to testify. As it turned out, everybody involved in the extortion took a guilty plea except Nicosia, who went to trial.

On the morning of the contractor’s testimony, the FBI agents on the case picked him up and drove him to the courthouse. They brought him into our trial prep room, and we ran through some last-minute questions. The contractor was visibly nervous, but he also seemed to have steeled himself to do what he had to do.

All this changed quickly in the minutes right before he had to take the stand. By that point, the FBI agents had moved him up to the witness holding area, right outside the courtroom. By the time I heard the contractor’s screams and opened the door to the witness room, he was a sobbing heap. “I’m not going out there. I’m not doing it. I don’t care. You can throw me in jail if you need to,” he moaned. I was about to interject; if I had spoken, I would have said something along the lines of “Too bad. Get it together and get out there and testify. It’s too late to back out now.”

But thankfully, my trial partner, Lisa Zornberg, stopped me with a look. The contractor was her witness, and she brought a better touch to the matter. “Listen,” Zornberg said to him. “I know it’s not easy. But the law is entitled to your evidence. We need it. The court needs it. The jury needs to hear it.” The contractor seemed to catch himself and arrest his downward spiral. He took a breath and looked up. “Would it help if I gave you a hug?” Zornberg asked.

Minutes later, the contractor walked into the courtroom, past Nicosia, and onto the witness stand. He took the oath and got through his testimony, first answering questions from Zornberg on direct exam and then withstanding a pointed cross-examination from the defense attorney. The contractor was halting and visibly shaky in his testimony—in a sense, his palpable fear probably helped us by driving home to the jury just how scared he was—but he got through it. By the time he was done, it was game over. A few days later, the jury found Nicosia guilty of extortion.

We were lucky to get the contractor’s testimony. It often is difficult to convince witnesses, especially victims, to come forward and testify against a criminal defendant, particularly those who are Mobbed up or otherwise powerful. As a prosecutor, it’s easy to get used to the courtroom. But to a victim, the courtroom can be terrifying. The defendant is right there, seated just feet away from the witness box. (There’s no way around this. Our Constitution ensures every defendant the right to “confront” the witnesses against him, meaning the defendant must be physically present during the trial and can challenge the testimony, through a lawyer’s cross-examination.) Trials are open to the public. Sometimes members of the media show up. And at times, defendants will pack the viewing area with sympathizers and supporters; if the defendant has Mob ties, the gallery can look imposing. It’s a small miracle we got the contractor on the stand, albeit just barely.

This is one of the most insidious things about the Mafia. They’re willing to break the rules of the game itself. They lie, they hide evidence, they tamper with witnesses. Sometimes mobsters explicitly threaten a witness, but often witnesses know the deal without anyone having to say anything at all. Sure, the Mob runs its rackets out on the streets—extortion, robbery, drug trafficking, murder—but it also messes with the very system that aims to hold it accountable. Mobsters understand that the best way to get away with crime on the streets is to commit crimes that cheat the criminal justice process itself.

People who don’t truly understand law enforcement and criminal justice sometimes refer dismissively to these types of crimes as “process crimes”: perjury, obstruction of justice, and witness and evidence tampering, for example. To outsiders, or those pushing an agenda, “process crimes” can seem less than—certainly less dramatic than a murder or a robbery, for example, and more susceptible to minimization as a technical, bureaucratic foul rather than the “real” street crimes that often lead the local news. As Trump’s personal lawyer and loyal defender Rudy Giuliani described the indictment of another Trump attorney, Michael Cohen, to the Daily Beast, “Nobody got killed. Nobody got robbed . . . This was not a big crime.” (Giuliani, of all people, a former SDNY Mafia prosecutor, certainly knows better, or once knew better.)

But as a real prosecutor will tell you, so-called process crimes are a big damn deal because they compromise the very rules of the game. Perjury (lying under oath) undermines the core truth-finding function of our entire criminal justice process. Destruction of evidence and witness tampering do the same. Even under normal conditions, it’s hard enough for prosecutors to get evidence from witnesses and victims. And it becomes near impossible when there’s an added element of intimidation at play.

Bill Barr himself gets a partial pass on this one—but only partial. He never explicitly used the phrase “process crimes” in public to minimize the importance of the prosecutions of Flynn, Stone, and others who had undermined the Mueller investigation. But he certainly threw shade in that direction.

For example, in a September 2020 speech, Barr alluded defensively to his controversial intervention in the Flynn and Stone cases, casting doubt on the legitimacy and seriousness of the charges and imputing bad political motivations to Justice Department prosecutors: “Rather than root out true crimes—while leaving ethically dubious conduct to the voters—our prosecutors have all too often inserted themselves into the political process based on the flimsiest of legal theories.” Barr drew a specific distinction here, between “true crimes” on the one hand and the crimes for which Trump’s political cronies had been convicted on the other.

Beyond his words, Barr by his actions showed his disregard for the seriousness of obstruction-related crimes. Early in his tenure, he misstated the law governing obstruction of justice, quickly clearing Trump on Mueller’s findings based on flawed premises and flimsy excuses. (Recall Barr’s excuse that perhaps Trump obstructed justice because he felt “frustrated and angered.”) Barr later fanned the dismissive “process crimes” chorus by his conspicuous, targeted intervention in two of the Justice Department’s highest-profile cases involving offenses committed against the system itself: he moved to dismiss the charges against Flynn for lying to the FBI (as discussed in the previous chapter), and he sought sentencing leniency after a jury convicted Roger Stone of lying to Congress and witness tampering (coming up next).

Powerful players who approved of Barr’s systematic dismantling of Mueller’s work cheered him on by railing against prosecution of mere “process crimes.” Giuliani first belittled the Cohen prosecution because it involved crimes less serious than murder or robbery; later, he moaned to the Washington Post after the indictment of Roger Stone, “Another false statement case? God almighty.” Other Trump defenders and apologists, from Republican senator Lindsey Graham of South Carolina to Alan Dershowitz to Rush Limbaugh, jumped aboard the process crimes–disparagement train. Most pointedly, the White House’s official statement on Trump’s commutation of Stone’s sentence noted dismissively that Mueller had “resorted to process-based charges” against Stone and others. And during his final month in office, when Trump pardoned two other defendants who had been convicted by Mueller, George Papadopoulos and Alex van der Zwaan, the official White House press release minimized their offenses as “process-related crime[s].”

No, Barr never publicly disparaged process crimes, in so many words. But from his perch as the nation’s top law enforcement officer, he downplayed their significance by his actions. Barr showed a soft touch for those who would cheat the very criminal justice process where the Justice Department does its work every day, and Trump and his most loyal defenders eagerly amplified this dangerous indifference.

Roger Stone

The attorney general was cornered.

It was July 2020, and Barr was testifying before the House Judiciary Committee. Months earlier, in February 2020, he had taken the jaw-dropping step of publicly undercutting the sentencing recommendation made by Justice Department prosecutors who had tried and convicted Roger Stone, a longtime political ally and advisor to Trump, on charges that Stone had lied to Congress about his dealings with Russia and the Trump campaign relating to the 2016 election and that he had tampered with a witness. Even though the prosecutors had received internal DOJ authorization to seek a sentence of 87 to 108 months, Barr reached down from his perch as attorney general and publicly overruled them to seek a lower sentence—a move he would make in no other case during his tenure—prompting all four prosecutors who had obtained the Stone conviction to resign from the case.

Even though Barr had been in office as attorney general for nearly a year and a half at the time of his July 2020 testimony, it was, somehow, his first time appearing publicly before the House committee that holds primary oversight responsibility for the Justice Department. Much of the fault for this delay lay with Barr himself, who over a year before, in May 2019, had casually blown off the committee and no-showed for his scheduled testimony, the way a spring semester high school senior ditches eighth-period study hall. The rest of the fault lies with Judiciary Committee Democrats, who responded to Barr’s insouciance not by subpoenaing him but, rather, by holding a farcical empty-chair hearing and eating fried chicken on the floor of the committee room. (Get it? He’s a “chicken” for not showing up!)

But in July 2020, Judiciary Committee Democrats finally had the attorney general in the witness chair, under oath. Representative Eric Swalwell, a former prosecutor, summoned the old courtroom skills and walked Barr right into a trap.

Swalwell began: “At your confirmation hearing, you were asked, ‘Do you believe a president could lawfully issue a pardon in exchange for the recipient’s promise to not incriminate him?’ And you said, ‘That would be a crime.’” Barr agreed. Good cross-examination so far: one question, one issue, and only one possible answer. (No witness can deny his own prior testimony.)

Swalwell took the next step, getting Barr to agree that he also had said that, if he saw a pardon exchanged for a recipient’s silence, he would “do something about it.” Again, solid cross; one step at a time.

Swalwell then jumped to the bottom line. (As a cross-examination technique, this was a bit premature; he should have baited the hook more before getting to the ultimate question.) Swalwell asked, “Now, Mr. Barr, are you investigating Donald Trump for commuting the prison sentence of his longtime friend and political advisor Roger Stone?”

“No,” Barr responded.

“Why not?” Swalwell asked.

Barr unfolded his thumbs from his interlaced fingers in an interrogatory gesture and responded, “Why should I?”

Swalwell then proceeded to methodically answer Barr’s defensive “Why should I?” (This is the part Swalwell should have done before asking the big-money question at the end.) Piece by piece, Swalwell laid out a compelling case that Trump had commuted Stone’s sentence to ensure and reward Stone’s silence. A federal jury convicted Stone for lying to Congress about his contacts with Trump and the Trump campaign relating to efforts to coordinate with Russia; Justice Department prosecutors told the jury that Stone lied “because the truth looked bad for Donald Trump”; had he cooperated, Stone was in a position to expose Trump’s lies in his written responses to Robert Mueller (in which Trump claimed he did not recall any conversations with Stone about Russian connections); Trump tweeted praise for Stone’s having “guts” for not testifying against him; and Stone publicly all but demanded his reward, reminding the world that “I had 29 or 30 conversations with Trump during the campaign period. He knows I was under enormous pressure to turn on him. It would have eased my situation considerably. But I didn’t.”

Barr first responded to Swalwell’s litany of damning facts by feigning ignorance (or, perhaps, by admitting to it). He claimed he had not seen Trump’s “guts” tweet or Stone’s “I was under enormous pressure to turn on him” public statement—a claim that seemed both convenient and dubious, particularly given that Barr had previously talked publicly about Trump’s tweets on the very same Stone case.

Swalwell retorted, “How can you sit here and tell us ‘Why should I investigate the President of the United States?’ if you’re not even aware of the facts . . . ?” Barr stammered, “Because we, we require, uh, y’know, a reliable predicate before we open a criminal investigation. I don’t consider it, I consider it a very Rube Goldberg theory that you have.” (“Rube Goldberg” refers to an unduly complicated device that performs a simple task.)

So, according to Barr himself, it’s a crime for a president to issue a pardon in exchange for a potential witness’s silence. Stone lied to Congress to cover for Trump’s lies. If Stone had cooperated, he could have exposed Trump’s lies. Trump publicly praised Stone for having guts and keeping quiet. Stone boasted that he could have turned on Trump but didn’t. And Trump bailed Stone out with a sentence commutation just four days before Stone was due to surrender to the U.S. Marshals and start serving his time in federal prison in July 2020. (In December 2020, just weeks before he left office, Trump granted Stone a full pardon.) To any real prosecutor, that’s a viable criminal investigation, predication and then some. But to Barr, a man who never tried a case as a prosecutor, it’s “Rube Goldberg.”

“Why should I?” If any phrase perfectly encapsulates Barr’s tenure as attorney general, this is the one. It can be taken in two different ways, both of which reflect fundamental deficiencies with Barr’s approach to the job.

Maybe Barr meant “Why should I?” in the “I don’t see any evidence that would support opening an investigation” sense. If that’s what Barr meant, then his lack of prosecutorial chops shines through. I’ve started investigations based on less. (Remember Howie Santos and his Apple Store burglary?) Barr had plenty of evidence right in front of his face, in full public view. Yet, in a case that could have hurt the president, he chose to do nothing—just as he had done earlier on the Ukraine scandal, despite ample evidence of bribery and other crimes. An investigation of the Stone commutation stood to damage Trump. Barr didn’t even take a look.

Or maybe Barr meant “Why should I?” in the “I’m the attorney general, I do what I please, and there’s nothing you can do to stop me” sense. If this is what he meant by “Why should I?” then his response neatly captures his unique blend of arrogance and political sycophancy. Maybe I should open an investigation, but I won’t because of who might get hurt, and nobody can force me to do otherwise.

Barr’s myopic refusal to look into the circumstances of the Stone commutation was his final act on the case and a predictable extension of his original intervention.

Days before sentencing, the same line-level prosecutors who had built the case against Stone, tried him before a jury, and obtained a conviction had recommended a sentence within a federal sentencing guidelines range of 87 to 108 months (a bit over seven to nine years; federal prosecutors tend to use the same numbers as the guidelines, which express sentences in months). This recommendation had been vetted and approved through appropriate DOJ channels, up to the interim U.S. attorney for the District of Columbia, the head of the office handling the Stone prosecution.

Trump quickly made his displeasure known to the world. Just hours after the prosecutors publicly filed their Stone sentencing memo, Trump retweeted an article about the case and added his own commentary: “This is a horrible and very unfair situation. The real crimes were on the other side, as nothing happens to them. Cannot allow this miscarriage of justice!”

Enter Bill Barr. Just hours after Trump’s tweet criticizing the Stone prosecutors’ sentencing recommendation, Barr had an official from Justice Department headquarters file a “Supplemental and Amended” sentencing motion. (The memo was formally signed by John Crabb Jr., acting chief of DOJ’s Criminal Division, but Barr later acknowledged that he was personally involved in the decision making.) The motion begins by claiming that the Stone prosecutors’ original sentencing submission “does not accurately reflect the Department of Justice’s position on what would be a reasonable sentence in this matter”—even though it had in fact been fully vetted and approved by the U.S. attorney for the office handling the case. In the new “Supplemental and Amended” sentencing memo, DOJ asked the judge to sentence Stone to less time than the line prosecutors had requested. The Justice Department did not specify any particular sentence that would be appropriate—just, less.

Perhaps Barr truly had not read Trump’s tweets, as he testified under questioning by Swalwell. Maybe it was a crazy coincidence that, just hours after the president publicly complained about the original prosecutors’ recommendation, Barr took the bizarre and unprecedented step of undermining those prosecutors and seeking a lower sentence on that very case. Maybe Barr was being cute here, playing some sort of semantic game; maybe he hadn’t physically “read” Trump’s tweet, as Swalwell phrased it in the question, but rather, had heard about it or been briefed on it. Or perhaps Barr lied to avoid having to make an embarrassing concession that, of course, he had snapped to attention and taken action to service Trump’s gripes.

Barr’s motion for leniency for Stone was brief—it ran to only five pages—but it hit like a bomb. All four line prosecutors on the case resigned in protest; three resigned from the Stone case specifically and a fourth, Jonathan Kravis, resigned from the Justice Department altogether. Kravis later wrote in an op-ed for the Washington Post, “I left a job I loved because I believed the department had abandoned its responsibility to do justice” in the Stone case. “In both cases,” Kravis wrote (referring to the Stone and Flynn cases), “the department undercut the work of career employees to protect an ally of the president, an abdication of the commitment to equal justice under the law.” Kravis also noted Barr’s cowardice in undermining his own prosecutors, who, under DOJ policy, were unable to speak publicly to defend themselves. (Kravis had left the Justice Department by the time of his op-ed.) Barr’s conduct, Kravis concluded, “sends an unmistakable message to prosecutors and agents—if the president demands, we will throw you under the bus.”

Another of the original Stone prosecutors, Aaron Zelinsky, testified before the House Judiciary Committee in June 2020. As a line-level prosecutor, Zelinsky had limited access to the deliberative process of Justice Department bosses. But, as he testified, it was clear to him that Stone had been “treated differently from any other defendant because of his relationship to the President.”

Prosecutors such as Kravis and Zelinsky and the others on the Stone case, or Van Grack on the Flynn case, or Nora Dannehy on the John Durham Russia investigation, or election law specialist Richard Pilger (we’ll discuss the latter two later), had spent months or years working their cases, agonizing over them, living them. They resigned at real professional and personal cost, and for a reason: to alert the world that something had gone horribly wrong at Bill Barr’s Justice Department.

After the dust had settled, Barr responded to criticism about his intervention in the Stone case by pointing out that “[t]he judge agreed with me.”

Barr was right, in the narrow view. He had requested an unspecified sentence below the 87 to 108 months originally requested by the trial prosecutors, and Judge Amy Berman Jackson sentenced Stone to 40 months. Judge Jackson was not, however, sympathetic to Barr’s intervention. She pointedly noted that Barr’s handling of the case was “unprecedented” and that the politics swirling around the case had played no part in her sentencing determination. And, seeming to anticipate that Trump might pardon Stone—it didn’t take a fortune-teller to see that coming, given Trump’s constant tweeting about the injustice of the case—Jackson stressed that Stone’s prosecution was righteous and was related to the president himself: Stone “was not prosecuted for standing up for the president; he was prosecuted for covering up for the president.”

In fact, it wasn’t hard to see that the judge would sentence Stone below the range of 87 to 108 months recommended by the original prosecutors. I wrote for CNN before the sentencing that “I also think [Judge Jackson] will come in below the approximately seven to nine years (87 to 108 months, specifically) originally recommended by the Justice Department prosecutors who tried Stone.” And I predicted on air that the judge would sentence Stone to 48 months. A pretty good call, if I do say so myself, but I’m no soothsayer. It wasn’t hard at all to see a below-guidelines sentence coming for Stone.

That’s largely because of the federal sentencing guidelines themselves. Stop any federal prosecutor on her way into court, and she’ll be carrying two books: the federal rule book and the sentencing guidelines manual. The guidelines essentially provide a mathematical formula for determining the recommended sentencing range in any given case. (I became so familiar with the guidelines from relying on them, and from absentmindedly paging through them while waiting for judges to take the bench, that I can still calculate the range for virtually any case in my head—a neat little parlor trick.)

The guidelines were, for years, mandatory; the judge had to sentence within the range. But in a tectonic (and just) decision in 2005, the Supreme Court ruled that the guidelines were merely advisory and could not bind judges’ discretion in sentencing. Ever since then, the guidelines have been important—every judge must calculate and consider the guidelines sentencing range in every case—but not mandatory.

The dirty little secret about the sentencing guidelines is that they frequently yield recommended sentencing ranges that are overinflated. As a former prosecutor, I readily acknowledge this; many judges and virtually all defense lawyers would agree. For example, in fiscal year 2019, federal judges imposed sentences below the original recommended guidelines range in 46.2 percent of all cases (including cooperators, who almost always receive major sentencing reductions). Judges sentenced defendants within the guidelines range in 51.4 percent of all cases. And judges went above the original guidelines range in only 2.4 percent of all cases. This tells you that judges recognize that, in nearly half of all cases, the guidelines range is unfairly high and that it is very rarely too low.

The Stone case exemplifies how severe the guidelines can be, if mechanically maxed out. The guidelines sentencing table has two axes. One measures the defendant’s criminal history. Stone had no priors, so he landed in the lowest tier, “Category I.” The other axis measures “offense level,” which assigns a number based on the seriousness of the crime at hand. In Stone’s case, the original prosecutors argued for an eight-point increase in this offense level because Stone had threatened to injure or kill a witness. Indeed, Stone had written to a potential witness, Randy Credico, “Prepare to die, cocksucker.” And he had threatened to hurt Credico’s dog. (Memo to all: Don’t threaten somebody’s dog. Judges and juries hate that.) By the letter of the guidelines, the eight-level enhancement applied. But Credico himself had told the court he did not seriously believe Stone would follow through on the threats.

Now, I’m the last person who will make excuses for or minimize threats to witnesses. I spent years prosecuting the Mafia; I understand just how pernicious witness intimidation can be. But even I’ll agree that the guidelines are a bit harsh as rigidly applied to Stone’s case. Without the eight-level increase for the threats to Credico, Stone’s sentencing guidelines range would have been 37 to 46 months. With the increase, the range more than doubled, to the 87 to 108 months that the prosecutors recommended. Looking at the case objectively, I could see that there was simply no way the judge would have more than doubled the sentence because of a threat the victim himself had not taken seriously.

But the problem with Barr’s intervention wasn’t about Stone’s bottom-line sentence. The problem was the very fact that Barr chose to intervene in that particular case (and in the Flynn case as well). In a Wall Street Journal interview given in December 2020, during his final days in office, Barr claimed that he did not “go looking” to get involved in the Flynn and Stone cases. He did not explain exactly how and why he did get involved, but he assured the Journal in conclusory fashion that there was no intentionality behind his bizarre, unprecedented intervention in those two cases.

Consider the sheer odds here. The Justice Department charges more than eighty thousand defendants per year, and Barr descended from the attorney general’s chair to undermine the DOJ-approved sentencing recommendation of the actual trial prosecutors in . . . exactly one case. Maybe it’s the same enormous coincidence that animated his decision to take the unprecedented step of seeking to toss out the Flynn conviction. Maybe Barr just happened to take action in favor of exactly two defendants out of those eighty thousand, and both of them, Stone and Flynn, just happened to be close political allies of the president who also might have been able to implicate him in wrongdoing. Somebody can run the math on the likelihood of that happening randomly.

Put it this way: Imagine you stuck eighty thousand Post-it Notes to a massive wall and wrote the name of one of DOJ’s defendants on each. You then put on a blindfold, grabbed two darts, and threw them at the wall. Imagine if out of those eighty thousand Post-its, both darts happened to hit two that both happened to bear the names of the president’s close political advisors.

Maybe it was just a remarkable coincidence. Or maybe Barr chose those two cases for a reason.

In the midst of the public uproar that followed Barr’s meddling in the Stone case, Barr did, for a fleeting moment, show some backbone. In a February 2020 interview with ABC News—right after Barr had filed the memo seeking a lower sentence for Stone just hours after Trump had tweeted about the injustice of the case—Barr said, “I think it’s time to stop the tweeting about Department of Justice criminal cases.” He added that Trump’s tweets “make it impossible for me to do my job.” For one brief, shining instant, Barr seemed to be pushing back against Trump’s constant public undermining of Justice Department prosecutions.

Turned out, Barr’s rhetoric was empty. Trump waited less than twenty-four hours to openly scoff at Barr’s attempt to stand up for DOJ’s independence, tweeting the morning after Barr’s interview, “‘The President has never asked me to do anything in a criminal case.’ A. G. Barr. This doesn’t mean that I do not have, as President, the legal right to do so, I do, but I have so far chosen not to!” And, just six days later, Trump picked up right where he had left off, tweeting again about the Stone case: “‘What has happened to Roger Stone should never happen to anyone in our Country again.’ @TuckerCarlson @FoxNews.” Trump seemed to rub it in Barr’s face. You want me to shut up? How do you like this for shutting up?

Indeed, despite Barr’s admonition, Trump kept up his furious pace of tweeting about ongoing Justice Department cases. And he didn’t limit his criticisms to the substance of pending cases; he made it personal. He went after the federal judge presiding over the Stone case, tweeting and retweeting attacks on her competency and impartiality. He stooped even lower when he publicly lambasted a juror on the Stone trial, calling her “totally biased” and “tainted.” It’s one thing, and not a good thing, to go after a sitting federal judge. But at least, by entering public life as a government official, a judge willingly subjects herself to criticism. A juror is just a civilian, a normal person fulfilling her most basic public duty. And Trump kept up his drumbeat of publicly criticizing DOJ prosecutors. After years of routinely attacking Mueller’s prosecutors—“Gang of Angry Dems” and the like—he renewed his efforts in 2020, well after Barr threw down the gauntlet, lashing out generally, in all caps, at “PROSECUTORIAL MISCONDUCT.”

Did Barr speak up? Did he back his prior declaration about how he could no longer abide by Trump’s inflammatory tweets? Did he stand strong to defend the integrity of the courts, the federal judiciary, the civilian juror? Did he defend the prosecutors who worked in his own Justice Department? Did he, in light of his dramatic proclamation that continued tweeting would make his job “impossible,” stand up to Trump or do the principled thing and resign? No. Trump kept tweeting, and Barr did nothing at all.

The Prosecutor’s Code
Independence

“Okay, these are good to go,” my unit chief said, handing me back a chart showing a list of plea numbers. After months of back-and-forth with a team of attorneys representing about a dozen Gambino Family members and associates, we had finally reached a tentative “global” plea deal, which would require all the defendants in the case to plead guilty, as a group. As a Mob prosecutor, I often insisted on these “everyone pleads or nobody pleads” deals because I didn’t want all the bosses and other heavy hitters to plead out, leaving us to try only the small-time leftovers; juries don’t feel strongly about locking up some mope who maybe ran a loansharking operation and picked up an envelope of cash now and then. “Great,” I said. “I’ll shoot the numbers down to OCRS,” referring to the Organized Crime and Racketeering Section at the Justice Department’s Washington, DC–based headquarters (usually called “Main Justice” by prosecutors around the country). As I understood it, we were supposed to get OCRS approval on major moves in any racketeering case, including plea deals.

My unit chief, a mild-mannered SDNY lifer, had begun to walk out of my office, but he spun on his heel and turned back toward me, suddenly becoming firm, even a bit cross. “We don’t report to Main Justice. These are good numbers, I approve them, and we’re taking them. And if OCRS calls and gives you a hard time, have them call me.”

I finalized the plea deals, as listed on the chart. We wrote up a press release and the newspapers covered the guilty pleas. And nobody from OCRS or Main Justice ever made a peep.

The joke among lawyers in New York and around the country is that the SDNY should be called the “Sovereign” District of New York. (The comedic bar is low here; it’s a bunch of lawyers talking about the Justice Department, after all.) The idea is that the SDNY is so independent that it essentially functions as its own sovereign entity, free from the pressures and restrictions that all public institutions, including prosecutors’ offices, normally face. It sometimes seems there’s a rule that any media reference to the SDNY must be preceded by “the famously independent.” You won’t hear me object.

So, what exactly makes the SDNY unique? Part of it is geography. The SDNY covers Manhattan, the Bronx, and a handful of counties north of New York City. In just a few square miles, we’ve got the great melting pot of federal crime: ruthlessly profit-driven Wall Street traders and bank execs; public officials ranging from municipal bureaucrats to elected state and federal representatives; traditional Italian Mafia plus emerging organized crime groups from Albania, China, and Russia; street gangs that run drugs and guns, some of which arrive at local ports; and, permanently emblazoned on the city’s skyline and psyche, targets for terrorist attacks and plots.

On a typical day, I’d arrive in the city on the PATH train at the World Trade Center station. Over the years, I’d watch as a massive, excavated hole in the ground slowly became the 9/11 Memorial Museum and the glistening Freedom Tower. As I emerged onto street level, I could glance south at Wall Street as packs of traders blew past with cell phones attached to their ears. (Maybe cashing in some insider tips, I’d think.) I’d walk past City Hall, wondering what public official was working what angle inside. Later, I might grab lunch with colleagues in nearby Chinatown, on the same block that we knew was controlled by an emerging gang peddling heroin. And then we might have an after-work drink just north of there, at a spot in Little Italy part-owned by a “silent partner” in the Genovese Family. At the SDNY, you didn’t just prosecute crime; you strolled right through it.

Indeed, there’s a prevailing, distinctly New York ethic of “We handle the big-time stuff here; we don’t need anyone else meddling in our business or telling us how to do it.” And it goes deeper still, beyond geography. There’s an abiding sense of tradition within the office. Every U.S. Attorney’s Office is rightly proud of its history, but at the SDNY, new prosecutors are indoctrinated in almost cultlike fashion. (Again, I say this with full awareness and pride, as somebody who has been both indoctrinated and indoctrinator.)

As you’ll be reminded if you work at the SDNY, the place is nearly as old as the Constitution itself, founded by George Washington in 1789 as part of the nation’s original Judiciary Act. The SDNY has produced a roll call of legal and political luminaries: Supreme Court justice Felix Frankfurter, Secretary of War Henry Stimson, New York City mayor Rudy Giuliani (who, despite his recent humiliating collapse, was once an exalted figure), FBI directors Louis Freeh and James Comey, Attorney General Michael Mukasey, U.S. attorneys Mary Jo White and Preet Bharara, dozens of federal judges, plus countless more leaders in law, politics, and private industry. The SDNY is prominent enough in the public mind to feature in popular entertainment, from the bestselling book Den of Thieves to the hit Showtime show Billions to the Netflix series Fear City.

Most imposing of all is the SDNY’s unrivaled docket of real-life cases. Walk the halls there, and you walk through law enforcement history: the 1980s prosecutions of Michael Milken, Ivan Boesky, and other infamous real-life “greed is good”–type Wall Street barons; the 1980s takedowns of the bosses of the major Mob families; the 2009 conviction of notorious fraudster Bernie Madoff; prosecutions relating to terrorist attacks ranging from the 1993 World Trade Center bombing to the 2010 Times Square attempted bombing. Recent SDNY prosecutions have gotten the Hollywood treatment in everything from the FX series The Americans (inspired by the SDNY’s 2010 arrests and convictions of deep-cover Russian spies living in the United States) to the films Captain Phillips (starring Tom Hanks as a U.S. Merchant Marine captain taken hostage by Somali pirates, based on the SDNY’s 2010 conviction of Abduwali Abdulkhadir Muse), Lord of War (starring Nicolas Cage as an international arms dealer modeled on Viktor Bout, who was tried and convicted by the SDNY in 2011 for arms trafficking and terrorism-related offenses), and Wizard of Lies (starring Robert De Niro as Bernie Madoff). (Sorry. I’m not counting Martha Behand Bars, a schlockfest featuring the SDNY’s 2004 conviction of famed television homemaker Martha Stewart on obstruction of justice charges.)

Whatever the source of the SDNY’s famous sense of self-worth and independence, it quickly gets embedded in new prosecutors. You’re never formally instructed that “[w]e here at the SDNY are unique.” You just learn it, much as a child learns how to walk and talk. Eventually, you don’t consciously think about that famous sense of independence. It just is.

And I’ll admit: that independence sometimes manifests itself as a wee bit of cockiness. The New Yorker ran an article about the SDNY in 2013 that referred to the office’s stable of prosecutors and alums as the “Killer Elite.” If anyone who has worked at the SDNY claims he didn’t smile at that characterization, he’s lying to you. (I goddamn loved it.)

The notion of the SDNY’s independence actually captures three broad concepts, distinct but partially overlapping.

First, as my story about the Gambino plea deal illustrates, the SDNY is traditionally resistant to and independent from supervision by “Main Justice,” the attorney general, his top deputies, and the rest of the department’s DC-based central bureaucracy. I learned early on to see Main Justice as mostly a nuisance—a source of unnecessary, meddlesome oversight from a couple of hundred miles away and of laughably useless online trainings. (“True or false: if a stranger on the street tells you she is an FBI agent and needs your DOJ email password, you should give it to her.”) We’ve got Manhattan and the Bronx locked down, thank you very much; you all just worry about DC. (As you probably can tell, I eagerly embraced this dismissive view of our invisible, powerless overlords.)

Sometimes the SDNY’s independence from Main Justice would manifest as simple defiance. Main Justice wanted us to run our racketeering plea deals through OCRS; we just didn’t. Here’s another example: Main Justice generally expected all new prosecutors to attend an intensive two-week training course at the National Advocacy Center (NAC) in Columbia, South Carolina. When I got an email about the training course during my first year in the SDNY, I mentioned it to my unit chief. She responded, “You’ve got plenty of real cases here to handle. We don’t need you playing moot court games in South Carolina.” (Once again, my response: Done and done.) Ask any non-SDNY federal prosecutor if she has ever been down to the NAC, which also offers advanced training courses, and she’ll likely tell you she’s been there several times. I never set foot in the place.

Don’t get me wrong. The SDNY is absolutely part of the Justice Department and cannot simply go rogue and defy specific commands from the suits in DC. But there’s a good deal of play in just how solicitous of Main Justice the SDNY, or any U.S. attorney, need be. For example, the Justice Manual requires that U.S. attorneys notify the deputy attorney general about “sensitive, important or novel” matters. Of course, this provision is subject to interpretation. What exactly qualifies as a “sensitive, important or novel” matter to trigger the notification requirement in the first place? There is plenty of gray area, and lawyers are good at nothing if not interpreting gray-area matters to their liking. And even if a case does require notice to Main Justice, a U.S. attorney can dutifully update the deputy attorney general before every major move—or the U.S. attorney can give an early, general heads-up that a case exists and then take it from there on her own.

As a practical matter, it is exceedingly difficult for an attorney general or his top brass to completely overrule the SDNY or squash one of its cases. The SDNY is so good at making cases that often, by the time DOJ headquarters receives notice, the case is already fully developed, or nearly so. While Main Justice might be able to tamp down a case in its earliest stages, it’s harder to do so when presented with a handcart full of evidence. And Main Justice squashes the SDNY at its own risk. There is so much attention focused on the SDNY—by the legal, business, and political industries and by the media—that any interference by Main Justice in the SDNY’s work can quickly become apparent and known to the world, at the peril of any DC-based interlopers.

The second prong of the SDNY’s independence—related to but subtly distinct from the first—is its power to bring essentially any case it sees fit, regardless of traditional geographical or jurisdictional limitations.

Generally, the law prefers that prosecutors charge criminal cases in the geographical district where most of the conduct occurred. But technically, in order to have proper “venue” over a crime, all a prosecutor needs to show is that some relevant act—even a single, relatively minor one—occurred in the district where the case is charged. This smidge of legal leeway—some might even call it a “loophole”—historically has opened the door for the SDNY to charge virtually any crime that happens anywhere in the United States and beyond. The joke is that it’s good enough if any of the defendants even glanced at the Manhattan skyline. Technically not quite right, but not far off.

For example, I once handled a three-month trial against a group of Queens-based mobsters that involved hundreds of exhibits and evidence covering years of criminal conduct. While virtually all the relevant acts happened in Queens—which falls in the neighboring Eastern District of New York, not the SDNY—we had venue in the SDNY solely because one of the defendants, while visiting a relative in a hospital, had made a single phone call from a pay phone in Manhattan. Plenty of people get charged in the SDNY without ever setting foot in the district at all. Much to the chagrin of fraudsters across the United States, it turns out that virtually every financial transaction gets wired at some point through the big Manhattan-based banks. If you commit financial fraud in Louisiana, you might well end up on trial in the SDNY.

Going even broader, the law provides that a person who commits a federal offense overseas can be tried in the district in the United States where he “is first brought.” That’s why federal agents, when transporting a high-value defendant arrested internationally into the United States for trial, sometimes glide right past JFK and LaGuardia (both located in the Eastern District of New York) and make sure the plane touches down first at the Westchester County Airport—a smaller airport, but in SDNY territory. That’s how the defendants responsible for the 1998 bombings of U.S. embassies in Tanzania and Kenya found themselves on trial for terrorism and murder charges in a courtroom in Lower Manhattan.

It was a point of pride for us that federal agents stationed in Queens or Brooklyn or New Jersey often would search for any angle to bring their cases across the Hudson River or East River to the SDNY for prosecution. I once received a cold call from a New Jersey–based FBI agent—we had never met or spoken before this—who, dissatisfied with the work of a federal prosecutor in New Jersey, asked if I’d be willing to talk with one of his Genovese Family cooperators. I hopped a train into Newark and met at the back of a diner with the agent and the cooperator. We ended up taking down eight Genovese Family members and eventually solving a murder that had happened seventeen years before.

The third and most important prong of the SDNY’s independence is that it simply does not do partisan politics. I never once heard, even second- or third-hand, of political considerations influencing any aspect of any case. It was even a bit taboo to casually discuss electoral politics in the office. When I was at the SDNY, I had virtually no idea about the political leanings of any of my colleagues, and I hardly cared. Now, years later, I’ll occasionally see that a former colleague has been nominated to a position in a presidential administration, and I’ll think: Huh, I had no idea she was a Democrat (or Republican).

We took pride in the fact that it made no difference whatsoever who was in the White House or sitting behind the attorney general’s desk. To those of us on the line, the last day of the Bush administration felt no different from the first day of the Obama administration. No doubt, those two administrations had different policy initiatives, some of which were implemented through the Justice Department. But the day-to-day criminal casework at the SDNY was utterly unaffected.

The SDNY’s sole mission is to pursue criminality, regardless of its source. There certainly is no fear of going after powerful targets. If anything, in political corruption cases as in Mob cases, it’s a badge of honor to make a case against a powerhouse, and it can be a source of ridicule if you’re picking up only low-ranking mopes. Partisan politics does not factor into this calculus in the slightest.

Recent history offers examples of the SDNY investigating and charging major targets from the same political party as the president who nominated the U.S. attorney. In 2001, U.S. Attorney Mary Jo White launched a criminal investigation of President Bill Clinton’s pardon of fugitive financier Marc Rich. White had been nominated to her position by Clinton himself. Ultimately, the SDNY did not file charges, but the mere fact that it opened a criminal investigation received national attention and cast a dark historical shadow over Clinton’s final days in office.

In 2009, the SDNY—then under the leadership of the Democratic-appointed Preet Bharara—indicted Hassan Nemazee, a leading fundraiser for powerful Democratic politicians, for his role in a fraud scheme involving hundreds of millions of dollars. He eventually pled guilty and was sentenced to twelve years in prison.

In 2015, the SDNY, still under Bharara, charged the Democratic New York State Assembly Speaker Sheldon Silver on corruption charges. Silver had long been one of the most powerful Democratic political figures in the state. Just over four months later, the SDNY arrested Republican New York State Senate majority leader Dean Skelos for bribery and other offenses. Both Silver and Skelos eventually were tried, convicted, and imprisoned.

Bharara also caused headaches for Democratic New York governor Andrew Cuomo, indicting a former top Cuomo aide, Joseph Percoco, on bribery charges. (Percoco was tried, convicted, and sentenced after Bharara’s tenure ended.) Cuomo publicly lashed out at Bharara as a “scalp hunter.” Again: both Bharara and Cuomo are Democrats. But as U.S. attorney, Bharara simply did not play partisan politics.

Even under the Trump administration (but before Barr’s arrival as attorney general), the SDNY indicted and convicted Republican congressman Chris Collins—much to the public dismay of Trump, who lamented by tweet that the Justice Department had cost the Republican Party “two easy wins” by taking down Collins and California Republican congressman Duncan Hunter. (Later, during his final weeks in office, Trump pardoned both Collins and Hunter.)

The SDNY even landed a stiff blow against Trump himself during the prosecution of Michael Cohen, Trump’s former personal attorney, also before Barr’s arrival. The SDNY represented on record in a public filing that Cohen had committed campaign finance crimes “in coordination with and at the direction of Individual-1,” the most obvious generic moniker in the history of criminal law, a transparent reference to Trump himself.

Tellingly, in a book written after he finished his temporary service as acting attorney general, Matthew Whitaker whinged that the SDNY “dreamed up new ways to torment President Trump throughout my tenure at the Department of Justice.” I suppose Whitaker meant this as criticism, but I take it as a glowing tribute to the SDNY’s political independence (reserving my right to object to the “dreamed up” characterization; it didn’t take much dreaming to see Trump’s malfeasance). What other federal prosecutor’s office has the guts to take on cases that could harm the president of the United States?

It’s easy to see why Trump and Barr understood the threat posed by the SDNY, and the need to muzzle it. You’ve got an office that is notoriously resistant to and insulated from supervision by the attorney general; that can and will roam across geographical and jurisdictional borders to make cases; and that goes after wrongdoers, regardless of who sits in the White House or at Main Justice, or in any seat of political power at any level.

No doubt, the SDNY posed a threat to Trump and those around him and to Barr’s ability to protect them. And the best (perhaps only) way to bring the SDNY to heel was to lop off its head.

SDNY Takeover

Nobody was buying it. Nobody.

Within minutes of the attorney general’s public announcement that the U.S. attorney for the Southern District of New York, Geoffrey Berman, would be “stepping down,” my group text chains with fellow SDNY alums blew up. Essentially, everyone had the same reaction: No way. Can’t be. Something’s up.

The first tip-off was the timing: after 9 p.m. Eastern Daylight Time on a Friday. That’s generally not when public officials announce good news that they’re super proud of. Ever seen a prosecutor hold a press conference on a Friday night to announce a sweeping takedown of a dangerous narcotics trafficking operation?

It took all of about two hours for Barr’s public claim that Berman was “stepping down” to be exposed as a lie. Shortly after Barr’s announcement, Berman declared unequivocally, “I have not resigned, and have no intention of resigning, my position.” You could practically hear the cheering coming from the SDNY building at One Saint Andrews Plaza in Lower Manhattan and from the alumni diaspora. When former U.S. attorney Preet Bharara was informed live on air on CNN that Berman was publicly pushing back, he articulated what virtually every SDNY alum was thinking: “Good for him.”

At that point, despite (or perhaps because of) Berman’s defiance, his fate was sealed. The next day, Barr doubled back and notified Berman that, well, maybe you didn’t actually step down last night, but now you’re fired: “I have asked the President to remove you as of today, and he has done so.” Barr added, “[W]ith your statement of last night, you have chosen public spectacle over public service.” But one man’s “public spectacle” is another man’s “calling out a lie by the attorney general.” No matter. Ultimately, Trump and Barr held the power position, and Berman was a goner.

As if Barr hadn’t already done enough damage to his own credibility, Trump himself promptly contradicted Barr’s version of events. Despite Barr’s claim that he had asked Trump to remove Berman and that Trump had done so, Trump begged to differ: “I’m not involved” in Berman’s firing, he told the press. Purely as a matter of basic math, either Barr or Trump lied. Either Trump was involved in firing Berman (as Barr had said) or he wasn’t (as Trump had said). Take your pick.

The timing of Barr’s initial announcement wasn’t the only tell that something was amiss. According to Barr, a relative unknown named Jay Clayton would be tapped to replace Berman as U.S. attorney for the SDNY. Now, Clayton seems like a fine fellow and an accomplished attorney. At the time of Barr’s announcement, Clayton was serving as chair of the Securities and Exchange Commission, an important regulatory agency, after his 2017 nomination to that post by Trump.

But here’s the thing: Clayton had never spent a single day in his life as a prosecutor. Putting a complete rookie in charge of the SDNY, the country’s preeminent prosecutor’s office, is like making me the starting shortstop for the New York Yankees. (I’m available, if needed: slap hitter, decent but declining range, popgun arm.) It doesn’t matter how bright Clayton might be, or how quickly he might have learned on the job. It is simply impossible to lead the SDNY effectively if you’ve never once stepped up to a podium to represent the United States in a criminal matter. Granted, Clayton’s complete prosecutorial inexperience did give him something in common with Barr himself and with Barr’s top Justice Department brass, none of whom had ever worked as line prosecutors, either.

There also was the curious announcement that, during the pendency of Clayton’s nomination and confirmation, Craig Carpenito would fill in as acting U.S. attorney for the SDNY. But Carpenito was already serving full-time as U.S. attorney for the District of New Jersey. (Disclosure: Carpenito is a friend, and my wife was his second in command at the DNJ.) Anyone who has served as a U.S. attorney for any major district will tell you that the job is all-consuming as is. To run not one but two of the busiest districts in the country, even temporarily, is flat-out impossible.

Turns out, Barr lied not only to the public but also apparently to Carpenito. Josh Marshall of Talking Points Memo reported that, just hours before Barr first publicly announced that Berman would be “stepping down,” Barr had asked Carpenito to step in and temporarily run the SDNY. Marshall reported, “Barr told Carpenito[,] and Carpenito said he believed that Berman had already resigned or was in the process of resigning. In other words, he [Carpenito] was told that Berman was leaving on [sic] his own volition[,] and he agreed to take over on that basis. He was shocked to learn later in the evening that Berman hadn’t resigned at all and was refusing to do so.” Barr lied about Berman’s departure outside DOJ, to the public. And he reportedly lied inside DOJ, to one of his own U.S. attorneys, in an effort to dupe him into going along with the scheme to remove Berman.

Ultimately, one important variable changed between Friday night (when Barr announced that Berman had stepped down and Berman publicly pushed back) and Saturday (when Barr brought in Trump, or at least invoked his name, to formally fire Berman): Trump and Barr abandoned the previously announced Clayton-Carpenito combo and instead gave the job temporarily to Berman’s top deputy, veteran SDNY prosecutor Audrey Strauss. This is how things would work in the ordinary circle of prosecutorial life: the U.S. attorney leaves, and the in-house deputy takes over, at least temporarily. So, rather than an impossibly overworked U.S. attorney from another district (Carpenito) taking over temporarily and a novice pretender (Clayton) getting the permanent gig, the SDNY ended up in the hands of an experienced, nonpolitical career SDNY prosecutor in Strauss. For this result alone, Berman’s resistance was worth the fight.

Berman first became U.S. attorney for the SDNY in January 2018. Ordinarily, the president nominates and then the Senate confirms U.S. attorneys. In the case of Berman, however—and sixteen other U.S. attorneys around the country—Trump never formally made a nomination. It could be that the president wanted to avoid the traditional “blue slip” process that empowers home-state senators to approve (or disapprove) U.S. attorney or federal district court nominees for their districts. Perhaps Trump did not want to deal with Democratic New York senators Chuck Schumer and Kirsten Gillibrand; both senators stated publicly that they opposed Berman’s nomination, and Gillibrand vowed that she would try to block his confirmation if he were nominated. Or perhaps Trump believed he would hold more power over U.S. attorneys if he kept them in “nonconfirmed” status. As he openly declared in January 2019 regarding the many temporary fill-ins throughout his administration, “I like ‘acting.’ It gives me more flexibility. Do you understand that? I like ‘acting.’”

Instead of going through the typical nomination and confirmation process, Berman took office as interim U.S. attorney under an obscure federal statute that permits the attorney general, in the absence of a presidential nomination, to appoint a person to fill a vacancy for up to 120 days. After 120 days, the federal judges for the district can then appoint a U.S. attorney to serve until the vacancy is filled by presidential nomination. Berman served out his 120 days as interim U.S. attorney and then was appointed by the judges of the SDNY as the U.S. attorney, pending a presidential nomination (which never came).

Make no mistake: although Berman technically was put in place by then–attorney general Jeff Sessions, he was very much Trump’s choice. But Trump took a winding, soap-operatic path to arrive at Berman.

During his presidential transition in 2016, Trump made the unusual move of personally interviewing Bharara, who had been nominated as U.S. attorney by President Barack Obama in 2009 and then confirmed by the Senate (the normal path for appointment). Trump then made another unorthodox move by keeping Bharara in place as U.S. attorney; typically, new presidents quickly replace all or nearly all the U.S. attorneys nominated by their predecessors.

The Trump-Bharara combo didn’t last long. In March 2017, just two months after he took office, Trump fired Bharara, for reasons the president has never explained. Bharara himself does not know why he was cut loose. However, as discussed in chapter 2 of this book, the day before the firing, Trump called Bharara directly, and Bharara, in keeping with the historical institutional separation between the SDNY and politics, declined to take the call from the sitting president. (Trump also had called Bharara twice during the transition, before he was sworn in as president; Bharara reluctantly took those calls, given that Trump had not yet taken office and could not order him to do anything.) But the day after he turned down Trump’s third call, Bharara was a goner. He walked out of the SDNY’s front door to rowdy and sustained applause from a throng of SDNY staffers. His top deputy, Joon Kim, filled in as U.S. attorney for the remainder of 2017, and Sessions put Berman in charge in January 2018.

Bharara later publicly underscored the sheer strangeness of receiving a call, while serving as the SDNY U.S. attorney, from the sitting president of the United States: “It was odd, because as a general matter, Presidents don’t speak directly to United States attorneys. It’s unheard of in my experience. You know the number of times President Obama called me? Zero.”

We may never know exactly why Trump briefly kept Bharara on, or why he quickly fired him. But I worked under Bharara when he was U.S. attorney, and I still work with him today in media, and I do know this: purely from a self-preservation standpoint, Trump was wise to fire him. Bharara would not have hesitated to investigate and, if appropriate, charge any person in any position of power, no matter how powerful and no matter who else stood to get hurt. As Bharara has said publicly, “[H]ad I not been fired, and had Donald Trump continued to cultivate a direct personal relationship with me, it’s my strong belief that at some point, given the history, the President of the United States would have asked me to do something inappropriate.” And there’s no way Bharara would have complied.

Trump understood, and perhaps feared, the SDNY’s awesome power and independence, as evidenced by his efforts to cultivate a relationship with Bharara and his sudden reversal when Bharara declined to reciprocate. Trump was a Manhattan resident, and the Trump Organization (which later would run into all manner of trouble with New York State investigators) had long done its business in Manhattan, making it subject to the SDNY’s jurisdictional reach. And even a casual perusal of the New York tabloid newspapers—Trump was long a prodigious consumer and subject alike—would remind readers of the SDNY’s many front-page cases over the years.

Trump plainly had a personal stake in who ran the SDNY, and Berman seemed at first like a safe pick. He was a longtime Republican donor—his support included a maximum donation of $5,400 to Trump’s presidential campaign—and he had held a position on the Trump transition team. Just to make sure, Trump personally interviewed Berman before his selection.

All this made Berman’s ouster downright bizarre. Indeed, as I’ve noted, it is common and expected for a new president, upon taking office, to fire all remaining U.S. attorneys nominated by his predecessor. (As a practical matter, many resign voluntarily before the new administration takes over.) It is, however, exceedingly rare for a president to remove a U.S. attorney of that president’s own original choosing. The closest recent precedent occurred in 2006, when the Justice Department under President George W. Bush fired seven U.S. attorneys in a single day whom Bush himself had nominated. Those dismissals were so extraordinary that they sparked congressional hearings and a criminal investigation (which ended after twenty-two months without criminal charges).

But the Bush administration firings, as unusual and scandalous as they were, happened nearly two years before the next general election, in which Bush himself, then in his second presidential term, was not eligible to run. By comparison, Trump’s and Barr’s timing was considerably more eyebrow-raising. Berman already had served nearly two and a half years under the Trump administration, and Trump and Barr removed him in June 2020—less than five months out from a general election involving Trump himself.

The timing of Berman’s removal, on the brink of election season, was suspicious in its own right. And Berman’s firing itself raised another fundamental question: Why? What was Barr’s reason for trying to remove Berman?

We know there was no problem with Berman’s competency as U.S. attorney. In the original DOJ press release announcing his departure (prematurely, it turned out), Barr proclaimed, “With tenacity and savvy, Geoff has done an excellent job leading one of our nation’s most significant U.S. Attorney’s Offices, achieving many successes on consequential civil and criminal matters.” According to Berman’s later congressional testimony, Barr told him that there was no issue with his job performance. And Barr had offered Berman other important government jobs, including head of DOJ’s Civil Division and chair of the SEC (which would have made for a bizarre job swap between Berman and Clayton).

So, if there was no concern about Berman’s competency, then what motivated Barr’s late Friday effort to shuffle him away from the SDNY and replace him with an inexperienced rookie? Let’s start by looking at the lineup of SDNY investigations and criminal cases that posed a potential threat to Trump and his associates.

Under Berman (but before Barr became attorney general), the SDNY had already incurred Trump’s public ire for its indictment of Republican representative Chris Collins and for its handling of the Michael Cohen prosecution (both discussed in the previous chapter). Berman was recused from the Cohen case, but Trump nonetheless reportedly held a grudge against him and the SDNY, which inflicted collateral damage on Trump by identifying him, under the transparent “Individual-1” moniker, as the person who had directed Cohen’s criminal hush money payoffs to two women who alleged had affairs with Trump. If Trump blamed Berman for recusing himself and failing to mitigate the damage, it wouldn’t be a first; recall that the president previously had railed publicly against Sessions for recusing himself from the Russia investigation. In Trump’s worldview, the job of Sessions or Berman, or any prosecutor, was to prevent any case from doing political harm to Donald J. Trump, or to those around him. Trump simply could not conceive of a prosecutor who would bring a case that might damage the politician who had appointed him.

The Collins case and the Cohen case were mostly history by June 2020, when Barr canned Berman. But, at that moment, the SDNY still held a hand stacked with active matters that posed dangerous possibilities for Trump, right as the election drew near.

Start with Rudy Giuliani (as many of Trump’s problems do). Giuliani was, of course, Trump’s personal lawyer, close friend, and avid political cheerleader. He was a key catalyst in the Ukraine scandal that led to Trump’s first impeachment. And he boisterously promoted the lie that the 2020 election was rigged, which eventually led to an insurrection attempt—“Trial by combat!” Giuliani screeched to the bellicose crowd of Trump flag–waving devotees, shortly before they breached the Capitol—and impeachment number two for Trump. When Trump and Barr removed Berman, the SDNY reportedly had a pending criminal investigation of Giuliani relating to his business interests in Ukraine and other shady financial dealings.

On the eighth floor of the SDNY’s main building, located at the Manhattan-side base of the Brooklyn Bridge, there’s a hallway that leads to the U.S. Attorney’s office suite. The walls of that hallway are adorned with formal portraits of every U.S. attorney, dating back more than two centuries. The hallway itself is dingy, like the rest of the building, and the photographs are smallish and cheaply framed. Nonetheless, they constitute an imposing display. While waiting to go in and meet with the U.S. attorney, I’d sometimes gaze back at the stern-looking handlebar-mustachioed U.S. attorneys of the 1800s, the legendary figures of the distantly familiar past (Robert Morgenthau, Robert Fiske), and those of the modern era, at the point where the photos turn from black-and-white to color, including a portrait of a confident, almost smirking Giuliani, who bombastically ran the office from 1983 to 1989.

The notion that the SDNY would end up investigating one of the people in those framed portraits is surreal to anyone who has walked down that hallway. I’d like to be gracious and feign sadness or sympathy over what has happened to Giuliani since his SDNY heyday, but I can’t fake it. I’m not saddened, and I have no sympathy. Rudy Giuliani has become a vicious fraud, a dangerous, sputtering con man, and a disgrace to the office he once led. And all his problems have been of his own making.

A potential criminal charge against Giuliani before the 2020 election could have had a devastating collateral effect on Trump. And if Giuliani had been charged and decided to cooperate, he might have been in a position to directly implicate the president in wrongdoing relating to Ukraine. Indeed, Giuliani had boasted publicly that he held an “insurance policy” on Trump, to protect himself in the first impeachment inquiry. Giuliani later claimed he was just being “sarcastic.” You know, just one old pal breaking chops about having an “insurance policy” on the other if he were ever charged with federal crimes.

Another case of possible interest to Trump arose late in Berman’s tenure when, in October 2019, the SDNY indicted two Giuliani business associates, Lev Parnas and Igor Fruman (plus two other defendants) for a series of crimes primarily involving the funneling of hundreds of thousands of dollars in illegal foreign campaign contributions to pro-Trump political committees—the same broad pattern of conduct for which Giuliani was under investigation. Parnas was a close friend of Giuliani’s—among other things, they had traveled together to Spain and taken in a bullfight—and also a shady business associate. Parnas’s company, called “Fraud Guarantee”—for real, that’s the name—paid Giuliani five hundred thousand dollars for purported “business and legal advice.” If you’re suspicious about whether Giuliani actually provided half a million dollars’ worth of “business and legal advice” to a company called “Fraud Guarantee,” I’m with you.

Trump furiously denied knowing Parnas, though he seemed to be aware of various photographs showing him and Parnas together: “I don’t know who this man is. Oftentimes I’ll be taking a picture with somebody and say, I wonder what newspaper that one will appear in. I don’t know him. Perhaps he’s a fine man. Perhaps he’s not. I know nothing about him.” Parnas begged to differ. He claimed that Trump “was aware of all of my movements. I wouldn’t do anything without the consent of Rudy Giuliani or the president.” To support his claims, Parnas publicly produced a series of photographs showing him with Trump, Giuliani, and members of Trump’s family and administration.

Even more telling, Parnas released an audio recording of Trump speaking at a small, private dinner attended by both Parnas and Fruman. In the recording, Trump is captured talking about the ambassador to Ukraine, Marie Yovanovitch, who later would become a key witness at his first impeachment. “Get her out tomorrow. I don’t care. Get her out tomorrow. Take her out. OK? Do it,” he is heard telling attendees at the small gathering. This was no casual photo op meet-and-greet. As they dined, Trump instructed the attendees, including Parnas, to carry out official government business relating to a U.S. ambassador.

But Giuliani’s dicey entanglements went even deeper and wider than Parnas and Fraud Guarantee. The SDNY had long been investigating the Turkish financial institution Halkbank for violating U.S. sanctions against Iran, allegedly by laundering money and disguising financial transactions on behalf of the Turkish government and businesses. The SDNY under Bharara in 2016 had indicted three prominent business leaders in the scheme. The investigation carried on through 2020 and reportedly grew to implicate Turkish president Recep Erdoğan. By his own public admission, in 2016 Erdoğan urged then–Vice President Joe Biden to fire Bharara. (Biden did not do so.) As the case rolled along after Trump took office—including a 2018 indictment of Halkbank itself, reportedly over the objection of Barr, who preferred to let the bank off the hook with a fine—Erdoğan tried again, this time urging Trump directly to fire Berman.

Trump, according to then–National Security Advisor John Bolton, vowed to take action. Bolton later wrote in his book The Room Where It Happened, “Trump then told Erdoğan he would take care of things, explaining that the Southern District prosecutors were not his people, but were Obama people, a problem that would be fixed when they were replaced by his people. . . . Trump rolled on, claiming he didn’t want anything bad to happen to Erdoğan or Turkey, and that he would work very hard on the issue.”

Giuliani was right in the muck. He represented one of the charged defendants, he traveled to Turkey to meet with Erdoğan, and he lobbied Trump administration officials to dump the case. Later, in an interview with Courthouse News, the judge on the case, Richard Berman (no relation to Geoffrey Berman), expressed dismay at Giuliani’s conduct: “I am still stunned by the fact that Rudy was hired to be—and he very actively pursued—being the ‘go between’ between President Trump and Turkey’s President Erdoğan in an unprecedented effort to terminate this federal criminal case in the middle of the case.” It is almost unheard of for a sitting federal judge to grant a media interview and rarer still for a judge to unleash publicly on an attorney about a specific case. And Judge Richard Berman, whom I appeared in front of many times, is about as even-keeled and reserved as they come.

If the Giuliani-Parnas-Halkbank threats to Trump and those around him weren’t enough, the SDNY also had ongoing cases and investigations involving Trump’s close political, business, and personal associates—any of whom could have chosen to flip and, as required by the SDNY, give up any damaging information they might have had on any other person.

For example, at the moment of Berman’s firing in June 2020, the SDNY was conducting an ongoing investigation of Trump’s former political advisor Steve Bannon, who was then indicted by the SDNY in August 2020, under Strauss’s command. The SDNY charged Bannon and three others with embezzling hundreds of thousands of dollars from a private fund-raising effort called We Build the Wall, which invoked Trump’s memorably divisive 2016 campaign promise. Bannon had been at Trump’s side throughout the 2016 campaign as a key advisor, and then as a White House advisor to the president, up until he was fired by Trump in August 2017. Bannon knew firsthand the inner workings of the campaign and the early days of the administration.

On the final full day of his presidency, January 19, 2021, Trump pardoned Bannon—but, tellingly, none of his three co-defendants. Trump’s dramatic final-hours pardon plainly had little if anything to do with the merits of the SDNY’s case; why pardon only one of the four defendants if the case itself was defective or unjust? By singling out Bannon for a pardon, Trump exposed his own fear that his former advisor might flip against him. The pardon eliminated any incentive that Bannon might have had to try to win a reduced sentence by cooperating with the SDNY.

At the moment of Berman’s ouster, the SDNY also had ongoing cases implicating Trump’s personal friends. In July 2019, the SDNY indicted the notorious sex trafficker and child molester Jeffrey Epstein, who committed suicide in prison the following month. Trump reportedly had broken off his relationship with Epstein years before the SDNY indictment, but in 2002, Trump spoke to New York magazine about his long-term friendship with Epstein: “I’ve known Jeff for fifteen years. Terrific guy. He’s a lot of fun to be with. It is even said that he likes beautiful women as much as I do, and many of them are on the younger side. No doubt about it—Jeffrey enjoys his social life.” Old videos showed Trump and Epstein together at parties at Trump’s properties, laughing and dancing, surrounded by young women.

At the time of Berman’s firing, Epstein was dead—but the SDNY continued to pursue his top lieutenant in the sex trafficking operation, Ghislaine Maxwell, another personal friend of Trump’s. The SDNY indicted Maxwell in July 2020, just weeks after Berman’s departure. Strauss saw the case through to the finish line and announced the charges herself. Even after Maxwell’s indictment for grotesque crimes involving child molestation, Trump publicly supported her. He repeatedly told the media “I wish her well” and even cast doubt on whether she had been involved in Epstein’s sex trafficking ring. (“Well, first of all, you don’t know that,” Trump responded when asked about the charges.)

And, at the moment of Berman’s firing, the SDNY was conducting an ongoing investigation of Trump’s longtime lender of choice, Deutsche Bank. The German-owned bank had loaned billions of dollars over the years to Trump and his businesses, despite several red flags at times when no other bank was willing to take a risk on Trump.

Trump had to have understood early on—from the moment he fired Bharara, at least—what kind of damage the SDNY could do. And in June 2020, with an election right around the bend and an array of potentially explosive cases on the docket, the SDNY posed a tangible threat to Trump’s inner circle, at a minimum. That’s the moment when Barr dropped the axe on Berman.

After the dust of Berman’s firing had settled, Barr sat for an interview with Pierre Thomas of ABC News. Thomas noted at one point that Barr’s initial statements that Berman would be “stepping down” “made it appear that he [Berman] was resigning when he, in fact, was not.” Barr began by explaining that “this was not a question of removing [Berman] because of any deficiency on his part.” Rather, Barr claimed, he had made the move because Clayton, an “outstanding” lawyer—Barr failed to mention Clayton’s complete lack of prosecutorial experience—was available and “said that he was interested” in the SDNY job. Gee, who knew it was so easy to become the U.S. attorney for the SDNY? No experience necessary, just be (1) available and (2) interested.

Eventually, Barr reached the matter at hand: his misleading (at best) public statement that Berman had agreed to step down. “We said he was stepping down[,] which is usually the language we use in these—in these kinds of announcements. But it left open the possibility that once he saw that he was leaving the position—that he’d be interested in—in figuring out other alternatives . . . But—but it was not—it was not misleading. Stepping down is a term that we use. It’s ambiguous as to what the basis for it is.”

It’s hard to say whether Barr is less convincing when he’s lying or when he’s trying to explain away a lie after the fact. First, generally speaking, whenever someone’s lead defense is “It’s ambiguous as to what the basis for it is,” then that person is full of it. As for Barr’s claim that “stepping down is a term that we use”—well, sure, if the person is actually stepping down. But Berman wasn’t stepping down. Barr got caught fudging the truth, then offered nonsensical mush-mouthed garbage afterward to try to wriggle free.

Why would Barr mislead the public (and, reportedly, Carpenito, behind the scenes) about Berman’s departure? Why wouldn’t he have just come out and said, “We’ve fired Berman,” or “We’ve asked Berman for his resignation,” or “We’ve asked Berman to step down”? Because any of those would have confirmed that Berman was leaving not of his own volition, but with a push out the door from Barr and Trump.

And that would have led to a very difficult question: Why? Why get rid of Berman if there was no issue with his competence? And why now, with an election just months away? The right answer, as I propose here, is also the most obvious one. Trump and Barr no longer believed they could control the SDNY through Berman. They understood that, as they rounded the homestretch to the 2020 election, the SDNY had an imposing docket of cases that could impact Trump, either directly or indirectly by association. And unless and until they could control the SDNY, they had no way to influence or mitigate the political damage it might do.

Barr himself clearly anticipated precisely this public perception, and he tried preemptively to address it in his ABC interview. When asked why the removal of Berman could not have waited until after the election, Barr evaded the question and instead said, “I felt that anyone who knows the department knows that even if one were interested in trying to influence a case[,] you wouldn’t do it by removing the head of the office. That’s simply not how the Southern District of New York or the department as a whole operates.”

Barr is right here, but only to an extent (also: he dodges the actual question and jumps right to defensive protestations). True, if the U.S. attorney leaves office (through “stepping down,” resignation, or firing), the cases don’t leave with him. But if you replace an experienced prosecutor like Berman (who already had proven his independence and willingness to pursue cases that might harm politically powerful people around Trump) with a novice like Clayton, then those threatening cases will take a different course. A rookie like Clayton would first need to figure out the pure basics of prosecution—the stuff I learned as a twenty-nine-year-old SDNY rookie—before he could even begin to handle the high-stakes decisions. Perhaps Clayton would lack the prosecutorial experience and confidence to make a tough call, to green-light a case that might displease Trump or Barr. Perhaps he’d lack the political independence to do so. Unlike Berman, who had served as an assistant U.S. attorney for the SDNY early in his career, Clayton had not been raised or indoctrinated in the SDNY’s sovereign tradition.

At an absolute minimum, a Clayton appointment would slow the pace at a crucial point in time. Whereas Berman already was fully entrenched and up to speed on the SDNY’s cases in June 2020, Clayton would need to start from scratch. Imagine, for example, that I was suddenly put in charge of piloting an ocean cruiser. I’ve never done the job before, of course, but given proper support, I just might manage to avoid sinking the ship altogether. But, for sure, I’d veer way off course while I figured things out, wasting valuable time in the process. And with the all-important November 3 election just a few months out at the time of Berman’s dismissal, there wasn’t much time left for Trump and Barr to run out.

Together, Trump and Barr mounted an audacious campaign to bring the SDNY to heel. But they succeeded only partially, and temporarily. Barr publicly dissembled as they clumsily removed Berman, who had displayed the independent streak that has long defined and distinguished the SDNY—right as that very ethic of independence posed a growing threat to Trump and his reelection prospects. But they failed to install Clayton, a nonthreatening novice. Public indications, including the indictment of Bannon, signaled that Strauss, the SDNY veteran, kept the office focused on its traditional mission to pursue criminality, regardless of potential political fallout.

Virtually everything about the SDNY stands in opposition to Trump’s view of government and public service. The SDNY is all about exercising power, without fear or favor, to protect the larger public good. But for Trump—as Barr seemingly well understood—it was never about process or principle; it was always about loyalty to the cause of Trump himself.

The Prosecutor’s Code
Business, Never Personal

My chief of staff, Robbie Miller, knocked on my open office door. She had that “You’re not gonna like this” look in her eyes. This was after my SDNY days, when I was director of the New Jersey Division of Criminal Justice, responsible for overseeing the agency and its five hundred–plus prosecutors, detectives, and staff. Miller’s job as chief of staff was to do all the hard stuff, which often meant giving me bad news. Miller, a savvy government service lifer, took no guff and never caused unnecessary drama.

“Need to talk to you about an ethics issue,” she said.

“All right. Let’s get this over with,” I responded.

One of our supervisory prosecutors, Miller began, was going to run in a 5K event to raise money for charity.

My mind immediately went to the worst place: “Please tell me he isn’t raising money for the charity and then pocketing it,” I said.

“No,” Miller replied. But, she explained, the supervisor was raising money for the charity event while inside the office building.

Feeling relieved at this seemingly benign turn of events, I asked, “So, what’s the problem? Is he going around pressuring people he supervises to donate?” I could see how that would be an issue—not a big one, but something we’d need to deal with.

“No, it’s not even that,” Miller replied. Turns out, the supervisor had taped up on his office door a sheet of paper that people could sign to make voluntary donations.

“Okay,” I responded, “and . . . ?”

“And that’s it,” Miller replied. I chuckled and did a “Who gives a crap?” shrug.

Miller knew that I knew better. “I understand it’s not the end of the world, but he can’t do that. You know that.”

I did. We mobilized our official ethics apparatus. The supervisor was instructed to take down the sign-up sheet and received a written reprimand.

It was hardly the crime of the century. It wasn’t even a crime, or anything close. In most of the outside world, the supervisor had done a good thing. What could possibly be wrong with raising money for a charity run? And he had done it unobtrusively, by sticking a sign-up sheet on his office door and letting people do whatever they wished.

But prosecutors’ offices are different from the outside world. Prosecutors’ offices are, and should be, obsessive about separating prosecutors’ personal finances from the official functions of the office. Even the most trivial overlap between the two can cause problems.

We had a policy at the Division of Criminal Justice that strictly prohibited prosecutors from doing any personal business, no matter how small or well intentioned, inside the office. The Justice Department is just as rigorous. DOJ’s Ethics Handbook states that “[e]mployees shall not use public office for private gain.” Similarly, the Code of Federal Regulations provides that “[y]ou may not use your public office for your own private gain or for the gain of persons or organizations with which you are associated personally. Your position or title shall not be used: to coerce or induce another person, including a subordinate, to provide any benefit, financial or otherwise, to you or to friends, relatives, or persons with whom you are affiliated in a nongovernmental capacity . . .”

Indeed, I remember being told at the SDNY that we could not even hold our kids’ Girl Scout Cookie drives inside the office. To most people, this seems like overkill. What could possibly be the harm of putting up a fundraiser sign-up sheet or selling cookies? Is a supervisor really going to play favorites based on who donated twenty dollars to a charity? Is a prosecutor going to tank a case over a box of Thin Mints?

Of course not. But prosecutors are right to be inflexible when it comes to keeping personal money outside the office. First, the intermingling of personal interests and the work of a prosecutor, even in the tiniest degree, starts one down a potentially dangerous road. A bright-line rule makes sense: no personal business, ever, period. Second, even if there is no realistic chance that anybody would be corrupted over a few bucks here and there, appearances matter. The public needs to trust prosecutors unconditionally and must believe that nothing prosecutors do is ever touched in any degree by their own personal interest.

So, for real prosecutors: no 5K fundraiser and no Girl Scout Cookies.

But William Barr, the top law enforcement official in the United States, dropped over thirty thousand dollars of his own personal money to book a holiday bash at a hotel owned by the man who had appointed him to the attorney general job, who could fire him from that job, and who was a potential subject of various ongoing investigations—the president of the United States.

It must’ve been some party: two hundred people, an open bar, and a buffet in the Presidential Ballroom of the Trump International Hotel. Barr planned the holiday bash privately for family and friends, not as an official DOJ event. The tab was a minimum of $31,500 (more if he went with the higher-end food options). In the wake of widespread condemnation of Barr’s bash, he rescheduled it less than a week out, according to a Justice Department spokesperson, perhaps seeking to avoid protesters. (Some did show up on the night for which it was originally planned.) DOJ confirmed that the party would still be held at Trump’s hotel, but declined to provide the new date.

Barr’s decision to hold his party at Trump’s hotel, and to enrich Trump personally, reminded me in a way of the Mafia. The Mob has a practice known as “kicking up” or “paying tribute.” Essentially, every member is expected to slide a wad of cash over to the boss every now and then. From the member’s point of view, kicking up is a way to show respect, curry favor, and reinforce the power structure. From the boss’s point of view, it’s a way to get rich. The percentages and payment plans vary, but the consequences for failing to pay up can be severe. I once prosecuted a Mob murder (more on this later) that was committed largely because the victim wasn’t fully kicking up to the boss.

The Justice Department scrambled to explain away the glaring ethical issue posed by the attorney general’s cutting a personal check for five figures to the president’s private business. A DOJ official argued in Barr’s defense that the Trump International Hotel was actually Barr’s third choice of venue, after he tried unsuccessfully to book two other DC luxury hotels, the Willard and the Mayflower. Now, if Washington, DC, had only three hotels in total, and the other two were booked, leaving Trump’s place as the only option, then, just maybe, this explanation would carry some weight. But anyone who has been to DC knows that downtown is essentially nothing but hotels, government buildings, law firms, souvenir shops, and museums. There are three hotels on some individual blocks, never mind in the entire District. Barr could easily have found a different hotel—maybe even one not owned by the president—if he had wanted or cared to do so.

The Justice Department also called on an old reliable, the consistently Barr-accommodating “career ethics officials.” This time they “determined that ethics rules did not prohibit [Barr] from hosting his annual party at the Trump hotel.” Yes, those same career ethics officials who previously saw no problem with Barr staying on the Mueller case even though he had already conclusively prejudged it and who let him remain involved in the Ukraine matter even though he appeared to be a potential fact witness. I dealt with ethics officials frequently as a prosecutor, and they almost always erred on the far side of caution. One ethics guru used to don a bagel-and-cream-cheese mascot costume (no idea where she got it) for her training presentations to illustrate the point that prosecutors could not even accept a free lunch from an outside party. Yet Barr somehow tapped into a remarkably accommodating cadre of ethics officers who seemed fine with just about anything, including his booking a thirty-thousand-dollar holiday party with the president’s business.

Here’s why Barr’s decision to throw his lavish soiree at Trump’s hotel was wrong. Let’s not put too fine a point on it: because the attorney general paid the president. Sure, there was a middleman—Barr’s personal check went to the Trump International Hotel—but that money, and some portion of the profits, wound up with Donald J. Trump, private businessman. Some of Barr’s personal money ultimately went to Trump—the very person who had nominated him, the only person who could fire him, and a person who was at least potentially subject to Justice Department investigations.

At an absolute minimum, Barr’s holiday party looked terrible. It suggested an attorney general bent on currying favor with the president, going out of his way to slide an envelope into the boss’s hands. When it comes to the Justice Department, perception matters. Ethics decisions often turn on the mere appearance of impropriety. And those appearances matter because, if the public doubts the Justice Department even on a seemingly minor matter, then the entire department’s integrity suffers.

E. Jean Carroll

One of the very few downsides to being a federal prosecutor is the pay. I started off making about $72,000 and, by the end of my run at the SDNY, I had maxed out at about $150,000. State prosecutors typically earn less; when I left the SDNY to work for the New Jersey Attorney General’s Office, I took a pay cut down to $128,000, even though I was in a high-level supervisory position. But don’t cry for me. By real-world, real-person standards, six-figure salaries are nothing to complain about.

But by the standards of what lawyers in the private sector make, prosecutor salaries are a pittance. When I left the DC-based law firm where I had worked since graduating law school and took the job at the SDNY, I took a pay cut of more than 50 percent. That disparity has only grown since then, as federal salaries have inched upward only sporadically, for minimal cost-of-living adjustments, while private sector pay has risen steadily and has spiked for some. First-year associates at law firms (twenty-five-year-olds right out of law school) now commonly earn approximately two hundred thousand dollars in salary, plus bonuses in the tens of thousands of dollars. Big law firm partners routinely pull down seven-figure annual salaries, and some top firms pay partners on average more than four million dollars per year. Still, many private lawyers would crawl over broken glass to become a prosecutor. That’s how great the job is.

At the SDNY, we used to enjoy making fun of each other, and ourselves, for our relative pauper status. One colleague observed aptly that every prosecutor’s wardrobe is frozen in time at the moment he or she left the private sector to work for the government. Another fellow assistant U.S. attorney with mid-level seniority calculated how much money he lost every day by working as a prosecutor rather than a law firm partner; it came out to over two thousand dollars per day. I once received an embarrassingly shoddy motion written by a young law firm associate; one of my colleagues said, “Hey, we laugh, but this guy’s a few years out of law school, and he makes double Pat Fitzgerald’s salary.” (Fitzgerald was a revered SDNY alum, at the time leading the front-page prosecution of Scooter Libby, former chief of staff to then–Vice President Dick Cheney.)

I once tried a case in which the Drug Enforcement Administration had seized two hundred kilograms of cocaine from a tractor trailer in rural Illinois (the shipment was headed to New York; that’s how we were able to charge it at the SDNY—another example of our expansive geographical reach). Each kilogram was packaged in plastic wrap as a rectangular, solid-white brick around the size of a shoebox, but longer and thinner. We kept some of the kilos, marked as exhibits, in the trial prep room. One day during trial, we introduced testimony from an expert witness that each kilogram of cocaine typically sold on the streets for about twenty-five thousand dollars. That night, back at the trial room, my trial partner grabbed three of the cocaine bricks, stacked them on my desk, and said, “Hey, here’s your annual salary.”

And here’s one more financial “perk” available to prosecutors: you get sued a lot. Turns out, most of the people you prosecute end up in prison, some of them blame you for it, and they have plenty of time on their hands to dream up wild accusations. Some defendants become “jailhouse lawyers,” inmates who file endless legal motions even after their cases are long over. Sometimes they try to reopen or contest their criminal convictions. And sometimes the jailhouse lawyers go right at the prosecutor, suing for money damages and alleging misconduct, vindictive prosecution, or other types of impropriety.

These cases generally don’t cause prosecutors much alarm. They’re part of the gig, and they almost never go anywhere, because there are protections built into the law that shield government officials from liability for official acts. But it can be a sobering moment to see a lawsuit, even a frivolous one, naming you as a defendant and seeking damages equal to twenty years’ worth of your salary.

But there is a saving grace. If the lawsuit relates to something you did on the job, DOJ itself will represent you. For example, if I got sued because I got into a car accident on the way to a friend’s house or because I injured somebody in a bar fight, then those things would plainly fall outside of the prosecutor’s job, and I’d be on my own in finding legal representation. But if I got sued by a defendant whom I prosecuted, that would be an easy call: obviously, that would relate directly to my job as an assistant U.S. attorney.

So, anytime a defendant sues a prosecutor for, essentially, prosecuting him, DOJ will assign one of its civil attorneys to the case to defend the prosecutor. And given the law that generally protects public officials from liability when acting in their official capacities, these cases almost always result in quick dismissals. Getting sued is no fun. But as a prosecutor, it’s good to know the Justice Department has you covered.

Here’s a rule of thumb: If Person A eagerly seeks a DNA sample from Person B, and Person B desperately resists, then Person A has something to prove and Person B has something to hide.

This about sums up the status of the civil lawsuit filed by E. Jean Carroll against Donald Trump as of September 2020. Carroll alleged publicly in 2019 that, in 1995 or 1996, Trump raped her in Bergdorf Goodman, an upscale Manhattan department store. Trump responded publicly by calling Carroll a liar, denying he had ever met her, and arguing that he couldn’t have raped her because, after all, she was “not my type.” (Sex crimes prosecutors across the country must have recoiled at the president’s suggestion that rape is somehow linked to physical attraction.)

Carroll then sued Trump in New York State court for defamation. She couldn’t sue based on the alleged rape because it had happened too far in the past, and the statute of limitations (the deadline for filing a case) had passed. But Trump made his allegedly defamatory comments about Carroll in 2019, well within the statute of limitations.

As the case progressed, troubling indicators piled up for Trump. Judge Verna Saunders denied his request to dismiss the lawsuit, rejecting the same Barr-created “absolute immunity” argument that had already been shot down by the U.S. Supreme Court and other federal courts. That ruling moved the Carroll lawsuit into the discovery phase, at which point the parties exchange documents and other information. Specifically, the judge’s ruling set the stage for Carroll’s lawyers to do two things that had to have worried Trump and his private attorneys: take Trump’s deposition under oath and obtain a court-ordered DNA sample from him.

And that’s when Trump called Barr’s Justice Department into the fray. The White House requested that DOJ take over Trump’s legal defense in the Carroll case, and Barr agreed. As Carroll herself succinctly tweeted, “TRUMP HURLS BILL BARR AT ME.”

The Justice Department concluded, somehow, that when Trump allegedly defamed Carroll by calling her a liar, he “was acting within the scope of his office or employment at the time of the incident out of which the claim arose.” Yes, that’s right: according to Barr, when Trump declared that Carroll was lying about an alleged rape, and was not physically attractive enough for him anyway, it was just part of the official presidential gig. Abraham Lincoln had “Four score,” John F. Kennedy had “Ask not,” and Donald Trump had “Not my type.”

To support his conclusion, Barr pointed to a 2006 case in which a federal court of appeals allowed DOJ to handle the defense of a congressman who had made comments to the media, from his office during working hours, disparaging the Council on American-Islamic Relations, which then sued the congressman for defamation. The court found that those comments were made in the course of the congressman’s official employment. Indeed, one can readily understand how a congressman’s comments about a well-known political advocacy group could relate to his job. But in the case of E. Jean Carroll, Barr did not explain how it is similarly part of the president’s official duties to publicly disparage a woman who has accused him of rape.

Correctly anticipating the public reprobation that followed the announcement that DOJ would be handling Trump’s personal defense, Barr noted that the request was initiated by the White House and not DOJ—as if that made any difference. (According to set procedures, this is always how it happens; the employee requests DOJ representation, and then DOJ makes its determination.) And Barr scoffed at the widespread public revulsion: “The little tempest that is going on is largely because of the bizarre political environment in which we live.” Or the “little tempest” could have happened because taxpayers weren’t thrilled about picking up the tab for DOJ to defend the president against a claim that he had defamed a woman accusing him of sexual assault.

The Justice Department’s intervention in the Carroll lawsuit also was notable for its timing. The White House did not seek DOJ’s intervention at the outset of the case. It did so only once things started to look bad for Trump—that is, only after the judge denied the motion to dismiss and the case moved into the discovery phase. The Justice Department’s belated intervention in September 2020 promised, at a minimum, to delay the case while it was transferred to federal court and while motions relating to the propriety of DOJ’s involvement were pending. Indeed, litigation (including the appeal) over the Justice Department’s effort to take over Trump’s defense carried well beyond the November 3 election date, preventing Trump from having to sit for a deposition or provide a DNA sample before voters had cast their ballots.

Ultimately, a federal judge firmly rejected Barr’s specious legal reasoning and denied his effort to have DOJ assume the president’s legal defense. SDNY district court judge Lewis Kaplan—I appeared before Kaplan many times as a prosecutor and predicted publicly that he would have little patience for Barr’s shoddy legal work—rejected Barr’s effort to insert DOJ into the case on the president’s behalf. Judge Kaplan held, logically and succinctly, that “while commenting on the operation of government is part of the regular business of the United States, commenting on sexual assault allegations unrelated to the operation of government is not.”

Once again, Trump tried to hide behind Barr’s flimsy legal concoction. Once again, the courts rejected Barr’s convenient but meritless construction. Once again, it was good enough to enable Trump to drag his feet, run out the clock, and minimize the political consequences of his actions.

The Prosecutor’s Code
Know Your Role

I wanted desperately to go with the FBI team into the woods of Agawam, Massachusetts, to dig up the body of a man who had been missing for seven years.

It all started when we charged seven members and associates of the Genovese Family, including the acting boss, with arranging an audacious hit on one of their own, a powerful captain named Al Bruno. Bruno ran the Family’s rackets in Springfield, Massachusetts, but he had committed two cardinal Mafia sins: he was skimming criminal proceeds before he sent his required share to the bosses in New York (“tribute,” in the lingo), and he had talked to the cops on the side. The end result: a hired assassin, Frankie Roche, jumped out from behind a soda machine and emptied a clip into Bruno in a parking lot right in downtown Springfield.

One of the people we had charged with having set up the Bruno murder, a “made” guy in the Genovese Family named Anthony Arillotta, decided to flip rather than face murder charges at trial and potential life imprisonment if convicted. At Arillotta’s first “proffer” session (the initial interview where a prospective cooperator gives prosecutors an overview of what he knows), he quickly fessed up to his role in the Bruno murder. But remember: in the SDNY, cooperation is an all-or-nothing proposition. So, as we explained to Arillotta, it wasn’t enough for him simply to tell us what he knew about the Bruno murder. We already had that one in the bag. He had to give us everything he knew about every crime, charged or not.

“Well, we also killed Gary Westerman,” Arillotta said. “And I can show you where we buried him.” The name didn’t mean much to us SDNY prosecutors, but the Massachusetts-based FBI agents on the case knew that Westerman had gone missing years before. According to Arillotta, just weeks before the Bruno murder, he and other Genovese henchmen had killed Westerman because they suspected him, like Bruno, of talking to the cops. Arillotta told us that he and his crew used a ruse to lure Westerman to the scene of his own murder. They told Westerman, a knockaround tough guy himself, that they were going to rob the home of a marijuana dealer in Agawam, the next town over from Springfield. The plan, Arillotta explained to Westerman, was that the robbery team would meet in the woods behind the dealer’s house and break in through the rear entry.

Westerman took the bait. On the chosen night, Westerman—wearing a ski mask and carrying a taser that he thought he would use in the robbery—walked into the woods with Arillotta and the rest of the hit team. He never walked out. As the group moved through the darkness, Arillotta and the others suddenly turned their guns on Westerman and shot him. He somehow survived the initial flurry of gunshots. So, to finish the job, Arillotta and another made guy bashed his head in with shovels. Once the job was done, the hit team dragged Westerman’s body to a hole in the ground. (They actually had dug the hole a few weeks prior, intended for a different murder victim before that hit was called off—but why waste a good hole in the ground?) They pushed Westerman’s dead body, which flopped headfirst, feet-up into its rudimentary, unmarked grave.

Now, seven years after the Westerman murder, it was time for the FBI to dig. We drafted a “take-out order” for Arillotta, a legal document, signed by a judge, that enables the FBI to take custody of a federal inmate outside of prison for a few days. The FBI agents took the order, got Arillotta out of federal lockup in New York, and prepared to drive him up to Agawam.

It was an almost irresistibly macabre field trip, and we SDNY prosecutors talked about whether we should go along with the dig team. Now, I know that on television cop shows, prosecutors commonly go out to the crime scene. Sometimes they even spread spearmint-flavored balm under their noses, to mitigate the corpse smell. Some state-level prosecutors actually do this, in real life. But the fact is, a prosecutor has no place at an active crime scene. The cops (especially the FBI) know what they’re doing. And if they need legal help—say, if they have a question about whether they are entitled to search a specific place, or if they need a warrant—they know how to reach the prosecutor. A cell phone usually does the trick. A prosecutor might go to a scene after the fact, to assess the layout or measure sight lines, but while the scene is live and being processed, all a prosecutor can do by being present is foul things up.

Worse, by going to a crime scene, a prosecutor could end up knocking himself right off the case. When you’re at a live crime scene, you might find a piece of evidence. You might hear a conversation involving an eyewitness. If so, you become a potential witness in the case. And if that happens, you’re a goner. Remember, for reference, how Barr appeared to be a potential witness on the Ukraine scandal and should have recused himself as a result. Same principle here.

But, boy, did we want to go up to Agawam. After all, how often do you get a chance to see a real FBI dig, to see a decomposed body pulled out of the ground? (Well, at least, we hoped.) We kicked around a few halfhearted justifications for why it might be appropriate for at least one prosecutor to go up with the FBI team. But ultimately, we did the right thing. We stayed in New York while the FBI did the dig.

Instead of being on the scene, we settled for a suspenseful string of email updates from the team in the field. Every few minutes, our cell phones pinged. “First layer removed: nothing.” (When the FBI does a dig like this, they use a backhoe to scoop one thin layer of dirt, a couple of inches at a time, and then they sift the dirt through a giant colander to search for evidence.) Next layer, nothing. Next layer: found what appears to be the soles of two sneakers. Next scoop: yup, two Nikes, still mostly intact. Next layer: two ankle bones, then two shins, two knees, and so forth.

That day, the FBI dug up the corpse of Gary Westerman seven years after he disappeared, right where Arillotta had said it would be. Westerman was even buried head down, feet up, just like Arillotta had described. And we weren’t there to see it happen.

Here’s the point: as a prosecutor, you have to know your role. It can get heady being a prosecutor. You hold unimaginable power, and you can do almost anything you please and go almost anywhere you want. Bureau of Prisons officials will let you into restricted areas of a prison to meet in secret with a witness. You can enter highly secure Witness Security Program facilities and FBI safe houses for cooperating witnesses. You get to go into the federal courthouse through a special entrance, skipping security. (Courthouse officials used to make defense attorneys wait in line along with members of the public; we’d get dirty looks as we breezed right past them.) The point is: you can come up with some rationale why you should or ought to be able to do almost anything—as my fellow prosecutors and I briefly did when trying to come up with a good reason to be at that dig in Agawam. But a good prosecutor knows to resist that impulse. You’re not a cop, you’re not an FBI agent, you’re not a forensic anthropologist. You’re a prosecutor. Know your role.

William Barr never learned that lesson. And that’s why, during one of the most hotly charged moments of his tenure, he made a fool of himself and put others at risk.

Lafayette Square Park

Spend a day with any attorney general—the one who heads the Justice Department or any of the state-level attorneys general around the country—and you’ll hear him or her called “General”: “General Barr,” “General Lynch,” “General Gonzales.” You’d assume, quite reasonably, that the honorary shorthand reflected the AG’s standing atop the quasi-militaristic hierarchical structure of law enforcement. He’s an attorney, sure, but he functions almost like a battlefield general, directing legions of prosecutors and law enforcement agents.

In fact, the title “attorney general” has nothing to do with the armed forces or commanding the troops. The “general” part is more an accident of nomenclature. The word “general” in the title (which dates back to the fourteenth century) modifies “attorney”—as in, this attorney has the general authority to act for the state on any kind of legal matter (civil, criminal, administrative, or whatever else may arise). So, it’s really “general” as in “broad subject matter,” not “General” as in Eisenhower.

John Farmer, a former New Jersey state attorney general who later worked on the 9/11 Commission, once accompanied military leaders on a visit to the Middle East. Farmer had previously been on record explaining that “attorney general” really meant “general attorney.” During his trip, when he heard uniformed soldiers in combat zones addressing senior military leadership as “General,” it reinforced in his mind the absurdity of calling a civilian lawyer in a business suit “General.” “I saw who the real generals were,” Farmer commented.

Nevertheless, on a hot night in June 2020, as protests raged outside the White House, sparked by the police killing of George Floyd in Minneapolis, Barr—a recreational military buff—decided to do his impression of a battlefield general. Dressed in lightly rumpled, tie-less business casual attire and safely flanked by his personal security detail plus a phalanx of shield-wielding federal agents, Barr stepped onto the White House Lawn in full view of the assembled media to survey the scene of the nearby protests. He then personally ordered federal agents to clear the streets immediately north of the White House, around Lafayette Square Park. A Justice Department official later told the media that Barr “basically said: ‘This needs to be done. Get it done.’”

So, what’s the problem here? What’s wrong with the attorney general, who inarguably holds supervisory authority over thousands of armed federal agents, deciding how to deploy them?

The problem is that, at least in the rush of that moment outside the White House, Barr lost sight of his role. Yes, he is in charge of federal agents. Any attorney general would be well within his lane to deploy them to, say, work on a certain case or conduct investigations into a particular matter. That’s fair play. But, remember: an attorney general is not a military general or even a police chief. Barr, like any attorney general, was not, needed not to be, and should not have pretended to be an authority on crowd control, on tactical movements of armed agents, or on the deployment of tear gas or rubber bullets. Leave that to the experts—the U.S. Secret Service, the Park Police, the National Guard. Sure, the attorney general is the boss. But being the boss and being within your depth are two different things.

Of course, it wasn’t just that Barr overstepped his authority, but that, very much on brand, he did so to serve the president’s appetite for political pageantry. It just so happens that, shortly before Barr strode out to the White House Lawn, Trump told senior White House advisors that they had to show they could control the streets of Washington, DC, particularly the area around the White House. “You can’t have a burning church in front of the White House was the president’s message,” the Washington Post reported.

Here’s how the Post described what unfolded shortly after Barr gave his “Get it done” command from the White House Lawn: “[O]fficers from the Park Police and other agencies used smoke canisters, pepper balls, riot shields, batons and officers on horseback to shove and chase people gathered to protest the death of Floyd. At one point, a line of police rushed a group of protesters standing on H Street NW, many of whom were standing still with their hands up, forcing them to race away, coughing from smoke. Some were struck by rubber bullets.” To even the casual observer, this use of force seemed excessive, deliberate, almost performative—lines of shielded, armed officers advancing and unleashing disproportionate force on a hodgepodge crowd armed mostly with water bottles and spray paint.

Just minutes later, President Trump emerged from the White House and strolled a few hundred yards across Lafayette Square and the now-cleared street to St. John’s Church. He stopped in front of the church, awkwardly held up a Bible for the cameras, and then left without even entering the building. Trump was pleased. The next day, he tweeted, “D.C. had no problems last night. Many arrests. Great job done by all. Overwhelming force. Domination.” Domination, indeed. General Patton conquered the Germans at the Battle of the Bulge; Attorney General (an “attorney in general matters,” that is) Barr pushed a group of protesters back a few blocks, the equivalent of about one stop on the DC Metro. Some of them probably had to grab their coffee at a different Corner Bakery.

Once the pepper spray had settled, the conflicting explanations started flying. The White House flailed to justify this use of brute power to enforce a 7 p.m. curfew. Other administration officials claimed the action was actually part of a preexisting plan to expand the perimeter around Lafayette Square, the green space north of the White House, where the church stands. It’s hard to imagine it was both these things at once.

Barr himself got in on the implausible explanations act. On CBS’s Face the Nation, he claimed he gave the order simply to extend the perimeter around Lafayette Park and that it had nothing to do with Trump’s Bible-holding photo op minutes later. “They were not connected,” he told CBS’s Margaret Brennan.

Brennan responded, duly incredulous, “You had no idea?”

Barr looked right at her and replied, “No. No, I did not.” Well, then—yet another incalculable coincidence. Barr just happened to personally give an order to federal agents to physically clear an area . . . just minutes before President Trump happened to stride across that exact same tract of land on his way to a photo op. Lucky how that worked out. Making Barr’s denial even more remarkable: Barr himself walked side by side with Trump to the church. But, again, Barr had no idea Trump would be heading over. Just a wild coincidence: Oh, hey, Mr. President. What’s that? You’re heading over to the church to hold up a Bible for the cameras? What do you know, I just cleared that area! I’ll take a stroll along with you.

In the same CBS interview, Barr also bizarrely claimed that “[t]here was no tear gas used” against protesters. Brennan pushed back, “There were chemical irritants the Park Police has said . . .” Barr cut her off: “No, there were not chemical irritants,” he interjected. “Pepper spray is not a chemical irritant. It’s not chemical.” He later went back to his original point: “There—there was no gas.”

The distinction was more technical than practical, and was nonsensical either way. Barr appeared to rationalize that the chemical compounds used by the Park Police were not man-made, as if that somehow made them less dangerous—ricin and strychnine aren’t man-made, either—or as if that somehow made them unclassifiable as “tear gas.” And it turned out Barr’s man-made versus naturally occurring distinction wasn’t even accurate. The chemicals actually used by the Park Police were indeed man-made. Another Barr special: a specious, intellectually dishonest explanation laid upon a false premise, just to get him through the moment.

Prosecutors love “takedowns,” a coordinated series of simultaneous arrests where agents scoop up all the defendants on a large case at once. (It used to feel good even to say the term out loud: “Oh, we’re doing a takedown next week.”) Whenever one of my bigger investigations reached the takedown phase, the FBI would come up with an “ops plan”—essentially, a tactical playbook detailing which agents are assigned to find and arrest which defendants; the timing for the arrests (typically, doors were knocked on or taken off their hinges at 6 a.m., to maximize the chances of finding the defendant at home and sound asleep); descriptions of the target locations (house, duplex, apartment); tactical plans for entry (who would go in the front door, who would guard the side or back exits); and notes about any contingencies (if, for example, the defendant was known to possess firearms).

The FBI would typically give me a copy of the ops plan a few days before the takedown. I confess, it always gave me a bit of a charge to flip through it—the same thrill I used to feel as a kid situating plastic army soldiers around the basement in anticipation of the big offensive. Now, if I had wanted to play field general with those takedown ops plans, I probably could have done so—let’s grab this guy a few hours later, when he goes to work, or let’s send this particular agent to arrest that specific defendant. But I’d remind myself: You’re not a cop. You don’t carry a gun or wear an FBI windbreaker. You’re a prosecutor. Know your role.

Not only was Barr out of his lane when he played military make-believe outside the White House that Monday, but he did it for a baldly political purpose. He essentially authorized federal agents to use force on civilians to set the stage for a campaign event. Trump’s jaunt over to the church was, quite literally, a photo op. He walked, he posed, he held up a Bible, the media snapped photos, and he went back home. No action taken; no prayers offered up. Barr’s “Get it done” command served little purpose other than to give Trump his moment in the flashbulbs, unbothered by nearby rabble-rousers. Worse, Barr made up silly fibs about, and excuses for, his actions after the fact.

Know your role. You’re not a battlefield tactician. You’re not a campaign public relations operative. You’re a prosecutor.

As protests erupted in response to police violence around the country through the summer and fall of 2020, the demonstrations became a political flashpoint. On May 30, 2020, as some protests turned violent in Minneapolis over the police killing of George Floyd, Trump tweeted, “It’s ANTIFA and the Radical Left. Don’t lay the blame on others!” In the ensuing weeks and months, he publicly railed against protesters, casting them as a threat to the security of all Americans. He vowed to use “the most vicious dogs, the most ominous weapons” in Washington, DC; he blamed Democratic mayors for unrest; and he tried to turn “law and order” into a prominent campaign issue, doomsaying that “I’m the only thing standing between the American dream and total anarchy, madness and chaos.” “If Biden wins, the mob wins,” Trump intoned. He specifically pinned the violence on far-left radicals: “I know about antifa, and I know about the radical left, and I know how violent they are and how vicious they are, and I know how they are burning down cities run by Democrats,” he said at an NBC town hall.

Barr wasn’t far behind. Jonathan Swan of Axios reported that during the summer of 2020, Barr had pushed back, behind closed doors, against Trump’s most extreme proposals to use the military and other dramatic shows of force to suppress protests around the country. Nonetheless, as the protests occurred in mid-2020, Barr willingly played along with Trump’s base instincts by publicly echoing his fiery proclamations. For example, the same day as Trump’s initial tweet blaming the Floyd protests on “ANTIFA and the Radical Left,” Barr issued an official statement cut from the same rhetorical cloth: “Groups of outside radicals and agitators are exploiting the situation to pursue their own separate and violent agenda. In many places, it appears the violence is planned, organized, and driven by anarchistic and far left extremists, using Antifa-like tactics, many of whom travel from out of state to promote the violence.” Turned out, months later, DOJ charged a member of the so-called Boogaloo Bois, a loosely connected group primarily but not exclusively affiliated with right-wing extremism, with rioting and firing an AK-47 into a Minneapolis Police Department precinct building. Assessing violence at protests nationwide, Clint Watts, a former FBI agent who studies extremist groups, stated publicly that “[t]he numbers are overwhelming: Most of the violence is coming from the extreme right wing.”

The day after Barr’s statement blaming “far left extremists,” Trump declared by tweet that “[t]he United States of America will be designating Antifa as a Terrorist Organization”—notwithstanding the absence of any legal procedure or consequence to such a designation. By contrast, there are meaningful legal consequences when the federal government designates a group as a foreign terrorist organization. For example, it is a federal crime to give material support to a foreign terrorist organization, and the government has broad authority to seize the financial assets of such organizations. But there is no corresponding legal significance, or any legal significance at all, to a domestic terrorist designation. Trump’s tweet was all for show. Nonetheless, Barr promptly did his duty in their dogged call-and-response routine, intoning that “violence instigated and carried out by Antifa and other similar groups in connection with the rioting is domestic terrorism and will be treated accordingly.” Similarly, in his July 2020 testimony to the House Judiciary Committee, he declared that “Antifa is heavily involved in the recent riots.”

Yet Barr’s passion about the left-wing extremist threat was belied by FBI director Chris Wray, who noted that Antifa is a “real thing,” but “[i]t’s not a group or an organization. It’s a movement or an ideology.” Even Barr’s Justice Department contradicted his rhetoric by its own action—or, more precisely, by its inaction. Despite Barr’s dire warnings, DOJ brought few if any indictments that specifically charged identified Antifa members with serious violent crimes relating to the protests. A June 2020 NPR review of more than fifty cases relating to violence at protests revealed none that specifically charged a member of the Antifa movement or any left-wing extremist group.

Barr eventually went so far as to urge U.S. attorneys to consider charging violent protesters with sedition, which criminalizes efforts to “overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof . . .” No doubt, protesters committed acts of violence and destruction of property, acts properly punishable by criminal charges (assault, arson, destruction of property, whatever charges fit the conduct). But sedition is a silly stretch. Even Trump, seeking to amplify the threat, could do no better than to claim that protesters were armed with cans of tuna and soup. No serious person perceived any meaningful threat that the “[G]overnment of the United States” would be “overthrow[n], put down, or destroy[ed],” as proscribed by the sedition law. Tellingly, none of the real prosecutors who received Barr’s overwrought suggestion actually followed through with a single sedition charge.

Failing a criminal sedition charge, Trump and Barr instead fell back on a superficial two-man performative bureaucratic waltz purportedly directed at identifying and labeling “anarchist cities.” Trump invented a previously nonexistent procedure whereby the Justice Department would identify so-called “anarchist jurisdictions”—based on an amorphous set of factors relating to local policing in response to protests, among others—which then might lose federal funding. (Trump’s threat to cut off federal funding was itself legally suspect; the president generally cannot unilaterally cut federal funding without congressional involvement and without a legitimate policy purpose.)

In the memo announcing this process, the White House singled out cities that might qualify as “anarchist” jurisdictions, purely by way of example, including New York, Portland, and Seattle. Turned out, three weeks later, Barr came back with his results, identifying exactly three cities as “anarchist” jurisdictions: New York, Portland, and Seattle. Not surprisingly, the threat to pull federal funds never actually materialized. But Trump and Barr had performed their emotive “anarchist cities” dance for public consumption.

As a prosecutor, I saw my share of twisted criminal plots. I prosecuted cases (more than one) where a Mob crew set up and executed one of their own (including the case where the dead body ended up in the woods of Agawam, Massachusetts). In another case, a Gambino captain authorized the murder of his own nephew. In yet another, a Genovese captain arranged the murder of his own cousin, luring the victim to his social club and knowingly feeding him a farewell lunch right before the hit went down. I supervised a murder-for-hire case where a wife paid a hitman to kill her husband, and another where a business owner tried to do the same to one of his partners. I saw some twisted, scary stuff.

But, as I read the October 2020 criminal complaint against a group of militants who had plotted to kidnap and potentially kill Michigan governor Gretchen Whitmer, I gasped. It was a genuine stunner, something darker and more sinister than even your typical murder conspiracy. A group of predominantly right-wing domestic extremists had planned to kidnap and potentially kill the governor and were on the brink of putting their plan into action when the FBI took them down.

The details are chilling. The defendants built and detonated an explosive device, held “field training exercises” involving firearms and combat tactics, located and surveilled Whitmer’s private home on a lake, planned to bomb a bridge leading to the house, and plotted escape routes by land and water. One of the defendants laid out his vision of the attack: “Snatch and grab man. Grab the fuckin’ Governor. Just grab the bitch. Because at that point, we do that dude—it’s over.” The defendant said that, after they kidnapped Whitmer, they could take her to a remote location in Wisconsin for a “trial”—clearly not the kind of trial envisioned by our Constitution, with its due process protections and prohibition of cruel and unusual punishment. Another defendant suggested a more direct approach: “Have one person go to her house. Knock on the door[,] and when she answers it[,] just cap her . . . at this point. Fuck it.” The plotters’ motive was simple, if twisted and imprecise: they wanted to make a political statement about Whitmer, whom they viewed as a “tyrant,” and they hoped to inspire broader antigovernment chaos. The plotters specifically discussed the need to pull off the scheme before the approaching November 3 general election.

Despite its shock value, the Michigan case shouldn’t have come as a surprise. For years, the FBI had been warning the public about the rising threat of domestic, primarily right-wing extremist groups, including the Proud Boys and the Boogaloo Bois. Yet, despite the FBI’s repeated warnings, Barr remained bizarrely reticent to condemn, or even acknowledge, the threat of right-wing extremism. When asked at a June 2020 press conference about the threat posed by right-wing extremists, he demurred: “I am not going to get too specific.” He noted that a “witches’ brew of organizations” was committing violence, singling out “Antifa-related” actors but refusing to specify anything relating to right-wing groups.

The Michigan case served as a stress test for Barr’s commitment to downplaying right-wing extremism. It presented about as extreme and serious a factual scenario as one could imagine. Often, in a case of this magnitude, the attorney general personally makes a public announcement. For example, Barr had spoken at prior press conferences to announce the arrests of MS-13 gang members, a common Trump talking point on the campaign trail and elsewhere. And Barr had personally provided the press with updates on Operation Legend, launched in July 2020 to surge federal law enforcement resources into cities beset by violent crime, just as the president was ramping up his rhetoric about being a “law and order” candidate amid a “shocking explosion” of violence in American cities—many of which, Trump noted repeatedly, were led by Democratic mayors.

But Barr did not attend the public announcement of the Michigan kidnapping case. He made no personal public statement, either on video or in writing, either of which would have taken maybe five minutes. He did not even include a written quote in DOJ’s press release about the Michigan plot—though, on the very same day, he did include a quote in a Justice Department press release announcing the publication of a report on cryptocurrency enforcement. The most that DOJ could muster on the Michigan case was a lukewarm statement made after the fact, through a spokesperson, that Barr had been briefed on the case, condemned the abhorrent behavior, and supported the FBI.

When the FBI uncovered a chilling plot by extremists against a sitting government official, it undercut the narrative Barr and Trump had been pushing on the American public for the preceding several months. The Michigan case was arguably the single most significant criminal charge in Barr’s entire tenure as attorney general. Yet, in the crucial days immediately after the arrests, he never showed his face on the case and never publicly, directly said a word.

The Prosecutor’s Code
Take the Facts as They Are

It had to be a murder plot. Two rising Gambino Family enforcers had lured Curtis Sliwa into a cab, shot him, and left him on an empty Manhattan street, bleeding from everywhere. Sliwa survived, somehow. But it seemed obvious: this must have been a planned hit.

Sliwa is the quintessential New Yorker. At the time of the attack, he had two main claims to local fame. In the late 1970s, he founded the Guardian Angels. Wearing distinctive red satin jackets and berets, members of this controversial, quasi-vigilante group patrolled New York City streets and subways purportedly to prevent violent crime. In the 1990s, Sliwa also hosted a popular radio show that essentially amounted to angry New Yorkers yelling at one another. Never one to be intimidated, Sliwa often went on rampages against the Gambino Family—in particular, the Gotti Family. Sliwa called John J. Gotti, the infamous boss of the Family, who was then in prison, “America’s number one drug dealer.” Given the Mob’s internal prohibition on drug dealing (often honored in the breach), these were fighting words.

On June 19, 1992, Sliwa woke up before dawn, as usual, and hailed a cab outside his Manhattan home. When a car pulled up, he had no way of knowing the driver was Joey D’Angelo, a Gambino Family associate who soon would become a made guy (that is, formally initiated in the Mafia) with several murders under his belt. (Not the same Joseph D’Angelo who later became infamous as the “Golden State Killer.” Different guy, same name, both killers.) And hiding under a blanket on the floor of the front passenger well was Michael Yannotti, another Gambino enforcer looking to earn his “button,” as they sometimes referred to formal initiation. The Gambino Family had heard Sliwa’s anti-Gotti rants, and now it was time for payback.

Sliwa slid into the back seat and gave the driver, D’Angelo, the address of the radio station where he worked the morning shift. Minutes into the drive, Yannotti popped up from under the blanket “like a jack-in-the-box,” as Sliwa later would testify, and said, “Take this, you son of a bitch.” Yannotti then shot Sliwa at point-blank range, hitting him in the chest and groin five times with hollow-point bullets. Sliwa tried to escape from the moving cab, but found that the rear windows were sealed closed and the door handles were missing (by his assailants’ design, it turned out). As D’Angelo drove the cab through the nearly deserted early morning streets of Manhattan, Sliwa, bleeding from his gunshot wounds, somehow managed to pull himself from the back seat toward the front and then vaulted over Yannotti. Sliwa then dangled out of the front passenger window for a few perilous seconds before tumbling out of the moving cab, badly injured but alive. He survived, somehow—though he endured multiple surgeries, dropped sixty pounds, and had to use a colostomy bag for years.

Meanwhile, prosecutors salivated. It looked like an obvious Gambino Family hit, almost certainly ordered by John A. Gotti, commonly known as “Junior,” then the acting boss of the Family while his father, the legendary boss and target of Sliwa’s rantings, was stuck behind bars. Years later, when my colleagues at the SDNY indicted Junior, they charged him with attempted murder for orchestrating the shooting of Sliwa. Seemed like a safe bet, given all the available evidence.

And then, a massive break: the SDNY flipped D’Angelo, the driver of the cab. The expectation was that the case against Gotti would get even stronger. D’Angelo quickly proved himself to be a remarkably forthcoming cooperator. He admitted to crimes, including murders, that the SDNY did not previously know he had committed. He was clear about who else in the Gambino Family had committed what crimes, and he seemed to bear neither fear nor favor toward any of his former colleagues. D’Angelo was, in many ways, the model cooperator. He came clean and told the truth, no matter whom it might help or hurt.

But when it came time for D’Angelo to tell prosecutors about the Sliwa shooting, he dropped a bombshell. Yes, Gotti had ordered and orchestrated the attack on Sliwa, as the SDNY suspected. Yes, D’Angelo was the driver of the cab, and yes, Yannotti hid under a blanket and shot Sliwa. But: it was never supposed to be a murder. D’Angelo told the SDNY that Gotti had ordered him and Yannotti to kidnap Sliwa in the cab and to “tune him up” with a “hospital beating”—a beating bad enough to land him in the hospital but not bad enough to kill him. D’Angelo didn’t know beforehand that Yannotti had a gun on him, and he was as stunned as Sliwa (maybe a bit less) when Yannotti popped up from under the blanket and started shooting.

Afterward, D’Angelo panicked. He feared that he would be punished by the Gambino Family because Yannotti had gone off the rails and, by shooting Sliwa, exceeded the boss’s orders—a major sin in the Mafia, potentially even punishable by death. D’Angelo managed to extricate himself from trouble, explaining to the Gambino Family leadership that he had no idea Yannotti would come out firing. And D’Angelo confirmed to SDNY prosecutors that Gotti was furious that Yannotti had shot Sliwa, exceeding his “hospital beating” mandate.

Now we at the SDNY had a problem. Our own star witness had told us that, despite our initial charge, it actually was not an attempted murder, at least not with respect to Gotti. A kidnapping, sure, and an aggravated assault. But, contrary to our expectation and, frankly, our hope, the case could no longer be charged as an attempted murder against Gotti. Gotti did not want or intend for Sliwa to be killed. The proof just wasn’t there, and the SDNY downgraded the charge accordingly.

Sometimes, as a prosecutor, you have to take the world as you find it. And sometimes that means things don’t turn out how you hoped or expected. But Bill Barr never learned that lesson. And that’s why, in May 2019—even with three separate investigations either pending or concluded into the origins of the FBI’s Russia investigation, all of which would find a proper basis to initiate the Russia inquiry—Barr singled out and tasked a Trump-nominated U.S. attorney, John Durham, to take a fourth look. And, as both Barr and the president made clear through their public statements, they fully expected Durham to take their preferred narrative and somehow, anyhow, make it real.

The Durham Investigation
“Investigate the Investigators”

There’s no question that William Barr is a smart man. He earned Ivy League undergraduate and master’s degrees from Columbia University and then graduated from George Washington University Law School with highest honors. He clerked for a federal appellate court judge. He held important legal and advisory positions in the Ronald Reagan and George H. W. Bush administrations, he worked at two prestigious DC law firms, and he was general counsel for two multinational corporations. And, of course, he was attorney general of the United States, twice.

Yet, when then-Senator Kamala Harris dug into Barr during his Senate Judiciary Committee testimony in May 2019, he inexplicably turned dumb, incapable of comprehending simple English words. If you ever want to see the difference between a real, courtroom-tested prosecutor and a bureaucratic pretender, watch the clip of Harris grilling Barr.

Just two weeks and change before Barr’s testimony, President Trump had tweeted, “Mueller, and the A.G. based on Mueller findings (and great intelligence), have already ruled No Collusion, No Obstruction. These were crimes committed by Crooked Hillary, the DNC, Dirty Cops and others! INVESTIGATE THE INVESTIGATORS!” Trump and his supporters quickly turned “investigate the investigators” into a rallying cry aimed not only at undermining Mueller’s findings but at turning the tables altogether.

Plainly aware of these public developments, Harris began her questioning of Barr with a simple but pointed question: “Attorney General Barr, has the president or anyone at the White House ever asked or suggested that you open an investigation of anyone?” Harris waited while her question hung in the air—a smart tactic. Let the witness twist in the wind for all to see while he grapples with a simple question that he desperately wants to evade.

Barr let a painful few seconds of silence pass before he stammered, “Ummm, I wouldn’t, I wouldn’t, um . . .” Harris, seeing that she was about to get the runaround, stepped in with one of the oldest but most effective tactics in the book: “Yes or no?” Barr then thought during a few more seconds of awkward silence before asking, “Could you repeat that question?” He obviously had heard Harris just fine; he had started to respond when she asked her initial question. He was stalling for time.

Harris repeated her question about whether Trump or anyone else at the White House had ever asked Barr to open an investigation (and she asked it in the same way as her initial question, to prevent Barr from exploiting any slight difference in the phrasing). Barr started with another drawn-out “Ummmm . . .” before he thought to himself, out loud, in a quizzical tone, “The President or anybody else . . . ?” Harris jumped in and stated the obvious: “It seems you’d remember something like that and be able to tell us?”

Barr retorted, “Yeah, but I’m, I’m trying to grapple with the word ‘suggest,’ I mean, there have been discussions of, of matters out there that, uh, they’ve not asked me to open an investigation, but . . .” Barr audibly stressed the word “asked,” and Harris picked up on the hedge. “Perhaps they suggested?” she asked.

Barr replied, “I don’t know. I wouldn’t say ‘suggest.’”

“Hinted?” Harris asked, narrowing her eyes and nodding as if to communicate, I see the game you’re playing here—we all do.

Barr responded, “I don’t know . . .” his voice trailing off.

“Inferred?” Harris asked. This time, Barr didn’t even answer audibly; he just jutted his bottom lip and made a face. “You don’t know?” Harris asked, ready to move on.

“No,” Barr responded.

I’ve seen plenty of witnesses collapse on the stand. Sometimes they were my own witnesses getting torched by a defense lawyer (agonizing to watch), and sometimes I was doing the attacking on cross-examination of a defense witness (much more fun). I can’t say Barr was worse than any of those witnesses, but he wasn’t far off. Juries, and sensible human beings in general, can instinctively spot a fibber. The stammering, the pausing, the pretending not to hear, the feigning of ignorance about basic words—these are glaring tells.

The exchange between Harris and Barr gained national attention mostly because Harris so skillfully exposed Barr’s mendacity. Depending on the viewer’s perspective, it was compelling or painful (maybe both) to watch the future vice president of the United States attack while the attorney general squirmed. But the confrontational aspect of the encounter overshadowed the substance. The exchange made clear that, at a minimum, the president or somebody at the White House had asked or suggested or implied (pick your verb of choice) that Barr open a criminal investigation of somebody or something at some point. And Barr wanted mightily to avoid talking about that. Even with all the hedging and the “ums” and the feigning of confusion over basic English words, Barr still admitted that “there have been discussions of, of matters out there.”

President Trump has long claimed that the investigations into his campaign’s contacts with Russia during the 2016 election were unnecessary and improperly politically motivated. But while Robert Mueller struggled to articulate his legal conclusions clearly, he made this much plain: the FBI’s investigation into Russian interference in the 2016 election was both proper and necessary. In his first public statement on the investigation, Mueller emphasized, “I will close by reiterating the central allegation of our indictments—that there were multiple, systematic efforts to interfere in our election, and that allegation deserves the attention of every American.” Later, in testimony before Congress, Mueller declared, “Over the course of my career, I’ve seen a number of challenges to our democracy. The Russian government’s effort to interfere in our election is among the most serious.”

The Justice Department’s own inspector general, after an exhaustive review undertaken from March 2018 to December 2019, issued a 476-page report that concluded, like Mueller, that the Russia investigation was properly predicated. Inspector General Michael Horowitz, an Obama appointee kept in the position by Trump and Barr, served as the department’s independent internal watchdog. Horowitz pulled no punches and criticized FBI agents who had made seventeen identified mistakes and omissions during the investigation. But he found no “documentary or testimonial evidence that political bias or improper motivation influenced the decisions” to start the investigation. The inspector general concluded that given the overwhelming evidence that Russia had interfered in the 2016 election, seeking to help Trump’s campaign, the FBI was justified in opening the investigation.

And, in August 2020, the Republican-led Senate Intelligence Committee issued the last of five reports summarizing its investigation of Russian interference in the 2016 election and the U.S. government’s response and ensuing counterintelligence and criminal investigations. Capping an investigation that had launched over three years before, the committee found that Russia had interfered with the 2016 election and that members of the Trump campaign had had extensive contacts with Russian nationals, including Russian intelligence operatives. Like Mueller and the inspector general, the Senate Committee confirmed that there had been ample basis for U.S. intelligence and law enforcement officials to investigate.

Yet, in May 2019, less than two weeks after his Senate testimony and the grilling by Harris—even with three other Republican-led or nonpartisan investigations already concluded (the Mueller investigation) or well under way (the inspector general and Senate Intelligence Committee investigations)—Barr assigned Trump-nominated Connecticut U.S. attorney John Durham, a widely respected veteran DOJ prosecutor, to take a fourth look into the origins of the Russia investigation. He named Durham to conduct this specific inquest right in the midst of weeks’ worth of public venting by Trump about the FBI investigation of Russian election interference, including Trump’s newly adopted rallying cry to “investigate the investigators.”

Barr, for his part, reciprocated, pointedly testifying in the Senate that “I think spying did occur.” His use of the word “spying” was both curious and conspicuous. It showed either a lack of prosecutorial sense or a political predisposition (or both). Prosecutors know that surveillance of investigative subjects—wiretapping a phone, wiring up an informant (as we did with Howie Santos, the disaffected Gambino Family driver who ended up cooperating against his former Mob pals), or placing a bug in a physical location (as we did in the Don Peppe restaurant in the aforementioned Ann Chiarovano case)—involves routine and highly regulated legal processes, in some instances requiring approval from a judge. Pros call this “surveillance”; amateurs and fiction novelists call it “spying.” Of course, Barr’s terminology also was politically loaded, suggesting that he already had concluded that the FBI’s surveillance was improper.

Barr even took to the investigative trail himself in support of Durham’s quest. He traveled to Italy, where he and Durham together personally requested assistance from Italian officials. He also directly solicited investigative aid from British officials. And, as if it weren’t already overkill to have the attorney general himself working like a line-level investigator, personally globetrotting to smooth Durham’s passage, “[a]t Attorney General Barr’s request, the President has contacted other countries to ask them to introduce the Attorney General and Mr. Durham to appropriate officials,” the Justice Department confirmed. At times, I’d struggle to get a second FBI agent, even a newbie, assigned to help out on a growing criminal case—the real kind, involving murders and racketeering and witness tampering and drug trafficking. Yet, when it came to Durham’s quest to find something, anything wrong with the Russia investigation, the attorney general himself and the president of the United States both jumped directly onto the investigative front lines, playacting like investigators and bringing unimaginable political force to bear behind their mission.

When the DOJ inspector general’s report landed in December 2019 (while Durham’s investigation was ongoing), its findings did not meet Barr’s hopes and expectations. He quickly registered his objections. In a public statement issued just hours after the inspector general released his report, Barr undermined the report’s bottom-line conclusion that there had been ample factual basis for the FBI to investigate Russian interference in the 2016 election and that, while the FBI had made several errors in its investigation, those mistakes did not provably reflect political bias. “The inspector general’s report now makes clear that the FBI launched an intrusive investigation of a U.S. presidential campaign on the thinnest of suspicions, that, in my view, were insufficient to justify the steps taken,” Barr declared. “In my view” is the key phrase here; Barr cited nothing to support his dissent from the IG’s amply documented conclusion beyond his own personal opinion based on undisclosed information. Durham offered an amen chorus, disputing the IG’s findings: “[W]e do not agree with some of the report’s conclusions as to predication and how the FBI case was opened.”

Barr would escalate his rhetoric. He publicly decried the “bogus ‘Russiagate’ scandal” and claimed the Mueller investigation was an effort to “sabotage the presidency.” He later claimed, in an interview for a Wall Street Journal opinion piece in December 2020, during his final days in office, that “[of] course the Russians did bad things in the election. But the idea that this was done with the collusion of the Trump campaign—there was never any evidence. It was entirely made up.” Again, as in his original four-page letter distorting the Mueller Report, Barr simply ignored the evidence: that Russia committed crimes to help Trump win, that the Trump campaign knew about and expected to benefit from those illegal efforts, and that Trump campaign members and associates had made dozens of efforts to contact Russians relating to the campaign. Again, Barr found himself in opposition to Mueller, the Justice Department IG, and the Republican-led Senate Intelligence Committee, all of which had concluded that the Russia investigation was amply predicated.

Worse, Barr made these statements in public before Durham had made any official findings on the matter. In the process, Barr shattered the Justice Department’s long-standing policy and practice against commenting on pending investigations. The Justice Manual lays out the reasons for this “no comment” practice. First, DOJ must protect the confidentiality and secrecy of its own investigations; when word of a probe gets out, that’s when subjects tend to flee, emails tend to disappear, and stories tend to get straightened out. Second, the Justice Department owes a duty to protect the subject’s privacy and right to a fair trial. Sometimes, Justice Department investigations do not result in criminal charges. But it can be devastating to a person’s reputation, career, finances, and family if the public learns that he is even under investigation. Accordingly, the Justice Manual explicitly prohibits public disclosure of information about ongoing investigations, except in extraordinary situations.

Not only did Barr violate formal DOJ policy by openly discussing Durham’s ongoing investigation in the press, but he also characterized the end result ahead of time, openly forecasting that he believed Durham would reach a politically explosive conclusion about how the FBI had wronged the president. So much for following the facts and letting the investigation play out to a conclusion.

Shortly after Barr violated the Justice Department policy against commenting publicly on a pending case, he made clear that he also would flout the long-standing practice of refraining from making a politically charged public announcement on the eve of an election.

Traditionally, unless it is absolutely unavoidable, the Justice Department refrains from announcing new criminal charges or from taking overt investigative steps (such as executing a search warrant) during the run-up to an election. There is no law or formal provision in the Justice Manual memorializing this practice, but attorneys general of both parties—from Republican-appointed Michael Mukasey in 2008 to Democratic-appointed Eric Holder in 2012 and Loretta Lynch in 2016 to Barr himself in 2020—have issued department-wide memos reminding prosecutors to abide by this blackout practice. The policy goal is straightforward: the Justice Department should steer clear of politically charged announcements shortly before an election. As Mukasey phrased it in his department-wide memo, “Simply put, politics must play no role in the decisions of federal investigators or prosecutors regarding any investigations or criminal charges.”

While these attorney general memos do not specify precisely when this blackout period begins, DOJ prosecutors generally observe the prohibition on politically charged announcements, depending on whom you ask, either sixty or ninety days before an election. (In my experience, the rule is more commonly understood to apply sixty days before an election, but other DOJ alums, including widely respected former deputy attorney general Sally Yates, place the line of demarcation ninety days out.)

For an example of the perils created by violation of the blackout rule, look no further than the 2016 election. FBI director James Comey announced the outcome of the Hillary Clinton email investigation in July 2016 and then announced a reopening of the investigation in October 2016, just days before the election—a move the Justice Department inspector general later found to be a “serious error of judgment” that violated “longstanding Department practice.” There’s no way to know for sure, but the analytics whizzes at FiveThirtyEight later concluded that Comey’s announcement “probably cost Clinton the election.”

Barr himself embraced the blackout policy, at least superficially, issuing his own memo, titled “Election Year Sensitivities,” to all DOJ employees in May 2020. But when asked during his House Judiciary Committee testimony in July 2020 whether he would observe the blackout rule with regard to the Durham investigation, Barr responded flatly, “No.” He reiterated weeks later in an interview that he was aware of the blackout rule but did not believe it applied to the Durham investigation. He said, “I will handle these cases as appropriate, and I do not think anything we do in the Durham investigation . . . is going to be affecting the election.”

Barr seemed to draw a tortured distinction: yes, the blackout rule prohibits the announcement of new indictments close to an election if those cases are political, but in his apparent logic, any indictments or developments resulting from the Durham investigation would not qualify as “political.” That rationale was difficult to square with the president’s frequent public harping on the Durham investigation.

Not only did Barr twist common sense to reach his potentially pro-Trump conclusion, but he also knew better. As Just Security’s Ryan Goodman noted, Barr himself took a broad view of the blackout rule during his first term as attorney general in the early 1990s. Back then, he said essentially that any case even peripherally touching on a candidate falls within the rule. But in 2020, he took a much narrower view that limited the rule to cases that directly charged an actual candidate or somebody close to that candidate. The old rule, as interpreted by Barr, would have precluded public announcements about Durham’s findings, but Barr’s new twist on the rule kept open the possibility of a pre-election Durham announcement.

On August 19, 2020—within the ninety-day period before Election Day but outside the sixty-day time frame—Durham formally announced the criminal charge and guilty plea of Kevin Clinesmith, an FBI lawyer who admitted that he had altered an email used in an application to conduct surveillance in the early stages of the Russia investigation. This was a serious charge against an FBI official, and it lent fuel to Trump’s fire. Trump didn’t even wait for the formal charge to be filed; five days before, on August 14, he talked about the case at a press conference, his remarks based, apparently, on media reporting on Clinesmith’s expected plea. Trump called Clinesmith a “corrupt FBI attorney” in “James Comey’s very corrupt FBI.” “Fact is, they spied on my campaign and they got caught,” Trump declared triumphantly. “And you’ll be hearing more.”

By all public indications, including his own public statements, Barr seemed to be positioning himself to deliver on Trump’s expectations for an even bigger pre-election bombshell. But shortly after Barr made clear to the public that he intended to announce Durham’s potentially explosive findings, blackout rule be damned, signs started to emerge that he might not get the dynamic outcome he had previously forecasted to the public—the outcome that Trump openly pined for on the campaign trail.

First, one of Durham’s top deputies, Nora Dannehy, abruptly resigned from the Justice Department in September 2020, less than two months before Election Day. Dannehy’s resignation made national news and sounded alarm bells. In many ways, she was the Platonic ideal of the dedicated, apolitical DOJ prosecutor. She had worked at DOJ for nearly twenty years, from 1991 to 2010, rising through the ranks until she became acting U.S. attorney for the District of Connecticut. As a prosecutor, Dannehy had investigated high-level political corruption across party lines. A colleague publicly described her as “apolitical, incorruptible.”

In fact, Durham had specifically recruited Dannehy to return to DOJ from her private sector job to help run his investigation of the origins of the Russia investigation. Dannehy made no public statement about her abrupt departure from DOJ, but her colleagues told the Hartford Courant that she resigned “at least partly out of concern that the investigative team is being pressed for political reasons to produce a report before its work is done.” For anyone who has worked at the Justice Department, there was no need to read the tea leaves. It’s not every day you see an apolitical, veteran prosecutor of two decades leave a private sector job, rejoin the department to work on one particularly sensitive political investigation, and then resign midstream. Later reporting confirmed what seemed obvious at the time: Dannehy had resigned at least in part because Barr had applied pressure on Durham to deliver results before Election Day and because Barr had misrepresented the probe’s findings in his public commentary.

Durham reportedly spoke with Barr shortly after Dannehy’s resignation. According to Murray Waas of New York magazine, “[Durham] forcefully told the attorney general that his office would not be releasing a report or taking any other significant public actions before Election Day, according to a person with knowledge of the phone call. Dannehy’s resignation constituted an implied but unspoken threat to Barr that Durham or others on his team might resign if the attorney general attempted to force the issue, according to a person familiar with Durham’s thinking.”

Durham took a stand, leaving Barr in a difficult position. Either accept the simple truth—that Durham had not uncovered additional information supporting Trump’s “investigate the investigators” rallying cry, or at least that he would be unable to deliver any such findings before Election Day—or risk that Durham would follow Dannehy out the door, an obvious public indication that the entire investigation had collapsed under (and revolted against) political pressure. A Durham resignation would have been disastrous for Barr, and Trump.

Barr soon began alerting leading Republican lawmakers that, contrary to his prior public insinuations, there would be no indictments, or even a public report, on the Durham probe before Election Day. That Barr would single out and inform only Republican members of Congress, but not Democrats, says much about the political intentions behind the Durham probe. And the fact that the Durham investigation turned out to be a political dud was devastating to the Republican electoral strategy. As one Republican congressional aide bluntly told Axios, “This is the nightmare scenario. Essentially, the year and a half of arguably the number one issue for the Republican base is virtually meaningless if this doesn’t happen before the election.”

Prosecutors will do just about anything—miss birthdays, skip vacations, blow off anniversaries—to stay on a case that looks promising. If the case involves strong evidence, or powerful targets, or potential media attention, then prosecutors will fight like mad to stay on it and try it before a jury.

But if a case looks bad—a “dog,” as we’d say about those cases with shaky evidence or boring fact patterns or problematic witnesses—watch how fast prosecutors run away. I’ve seen prosecutors invoke the flimsiest excuse to get away from those dreaded dogs. When I was new at the SDNY, I hadn’t quite learned this lesson (and I didn’t have enough seniority to say no), so I received a slew of cases that had already been assigned to and then dumped by more senior prosecutors. It was always a bad sign when you’d get a Redweld folder with the names of two or three other prosecutors written on the outside under “assigned to” and then crossed out with a marker. A particularly mercenary and blunt senior prosecutor once dumped an especially decrepit dog of a case on me, explaining casually that he needed to “focus on other things.”

As Barr’s term in office wound down, he engaged in the ultimate case dump when he effectively foisted the remainder of the Durham investigation on his successor as attorney general. In December 2020, with Barr just weeks away from leaving office, the public learned for the first time that in October 2020, shortly before the election, Barr had formally appointed Durham as special counsel under the same federal regulations pursuant to which Mueller had been appointed. In so doing, Barr flatly violated the legal requirement that “[t]he Special Counsel shall be selected from outside the United States Government.” At the time of his appointment, Durham was already working for the government as a federal prosecutor in Connecticut. No matter; Barr plowed ahead with a patently unlawful appointment.

While Durham had been working on the “investigate the investigators” matter ever since Barr assigned the task to him in May 2019, this new, formal special counsel designation had the practical effect of ensuring that the Durham probe would wind up as a mess to be handled by Barr’s successor as attorney general in the Biden administration. Now, all the same special counsel rules that had applied to Mueller would apply to Durham. The next attorney general could remove Durham only for good cause. The next attorney general would have to report to Congress if he overruled Durham on any significant matter. Durham would have to file a written report to the next attorney general (who, ideally, would not follow Barr’s lead on the Mueller case and publicly misrepresent the report to the public). Barr later confirmed in the December 2020 Journal interview that he designated Durham as special counsel at least in part because “the force of circumstances will ensure it goes public.”

Barr’s appointment of Durham as special counsel prompted one obvious question: Why so late in the game? Why designate Durham as special counsel—in plain violation of federal law, given that Durham already worked for DOJ—only after he had been investigating for nearly a year and a half? If Durham’s work merited a special counsel appointment, Barr should have made the designation back in 2019, at the start. Yet Barr didn’t slap the “Special Counsel” tag on Durham until just weeks before the presidential election, when public polling pointed toward a likely Trump defeat, which soon came to pass. By that point, of course, Barr was fully aware that Durham would not deliver the October surprise that Trump had hoped for. Yet it would have been politically perilous simply to pull the plug on Durham. So, Barr did what many shortsighted, self-interested prosecutors do when they face an ugly mess of a case: he just kicked it over to the new guy.

The Prosecutor’s Code
Own It, Fix It

I’ll always remember the withering look on then-Judge Sonia Sotomayor’s face as she cut me off and asked a question I knew was coming. This was a few years before Sotomayor ascended to the Supreme Court and became a justice. She was sitting on the Second Circuit Court of Appeals at the time, and I was arguing to defend an extortion conviction we had earned against two Gambino Family mobsters. I was midway through the standard preamble—“May it please the court, Elie Honig for the government”—when Sotomayor jumped in. “I have a bone to pick with you,” she said. (Here we go, I thought.) “Was that you who asked that question at trial?”

I already knew which question Sotomayor meant, and she knew that I knew. The trial focused on the Gambino Family’s extortion of a Manhattan strip club. They shook down the club’s owner for monthly cash payments and generally used the business as a racketeering clubhouse. (Think the Bada Bing! on The Sopranos.) One of our trial defendants, Salvatore Scala (creatively nicknamed “Fat Sal” by his Gambino colleagues), also had a prior conviction for a similar crime: shaking down an adult video store in Brooklyn. The trial judge had ruled that we could not introduce evidence of Scala’s prior conviction because it might have been too inflammatory and caused the jury to convict on the current crime (the strip club extortion) just because Scala had previously been convicted of a similar crime (the video store extortion).

But during the trial, my trial partner got into a heated exchange with a witness, an attorney who had represented Scala before, about whether the attorney knew that Scala was paying his legal fees with criminal proceeds. The witness pushed back aggressively. I remember sitting silently at the prosecution trial table trying to communicate telepathically with my trial partner, Don’t do it, don’t do it. He did it. He just blurted out, in front of the jury, “But you knew Mr. Scala had no job and you knew he had been convicted of extorting an adult video store in Brooklyn, right?” The judge snapped to attention and directed all attorneys to the sidebar. The judge ripped into my trial partner and then did his best to fix the damage, instructing the jury to disregard the question and to decide the case only on the evidence in the trial at hand.

The jury ended up convicting Scala and the other defendant, but we knew we’d have a tough issue on appeal. As it turned out, my trial partner conveniently scheduled a vacation in Europe for the date of our appellate argument. So, guess who got to stand up and take credit for his work in front of the widely esteemed Second Circuit Court of Appeals?

Here’s how I answered Sotomayor’s question about whether it was I who had asked “that question” (and yes, I rehearsed this many times): “Your Honor, that was my trial partner. But I take one hundred percent responsibility for everything that both of us did throughout the trial, and it was wrong.” Sotomayor seemed satisfied enough, if still displeased. The Second Circuit eventually upheld the trial convictions—we had plenty of other, proper evidence to sustain the guilty verdicts—but the court had harsh words for my trial partner’s tactic.

I took away this lesson: We all mess up sometimes. We all get things wrong, we all misstate things, we all do things in the heat of battle that we later regret. When a prosecutor does that, it’s a very big deal, given the stakes—most important, another person’s liberty. So, when you do mess up, you need to own up and, if possible, fix it. That’s not to suggest that prosecutors can make a mistake and just say, “Oops, sorry,” and make it all right again. Sometimes a prosecutor’s error is simply too serious to overlook, and consequences follow: reversal of a conviction, potential discipline to the prosecutor. But usually it’s sufficient, legally and in life in general, to own up to the mistake and do your best to fix it.

This is another lesson Barr never learned, or once knew and forgot. And that deficiency led him to publicly embarrass himself and the Justice Department on an issue at the heart of our democracy: voting.

The 2020 Election
Endgame

When Bill Barr sat for an interview with CNN’s Wolf Blitzer in early September 2020, with Election Day right around the bend, he had a chance to own up and correct himself on the crucial issue of mail-in ballots.

In the weeks preceding the interview, Barr had gotten caught repeatedly spinning fantastical yarns about the threat of widespread fraud in mail-in balloting. Starting in the spring of 2020, it became clear that the COVID-19 pandemic would cause record numbers of voters to cast their ballots by mail, which likely would favor Democratic nominee Joe Biden. President Trump promptly launched a Twitter blitz seeking to discredit mail-in ballots: “Tremendous potential for voter fraud,” “‘RIPE for FRAUD’, and shouldn’t be allowed,” “Mail in ballots substantially increases the risk of crime and VOTER FRAUD!” and the like, endlessly. “No mail ballots, they cheat,” Trump proclaimed at a press conference purportedly about his administration’s COVID-19 response. “Okay, people cheat. Mail ballots are a very dangerous thing for this country because they are cheaters.”

Barr quickly picked up on the president’s escalating rhetoric. In a June 2020 interview with NPR’s Steve Inskeep, Barr offered up a familiar-sounding rant about the looming threat of massive voter fraud in the 2020 election. Barr opined that mail-in ballots present “so many occasions for fraud there that cannot be policed. I think it would be very bad.” He also raised “the possibility of counterfeiting.” But when pressed on whether he had evidence to support this claim, he responded, “No, it’s obvious.”

And in congressional testimony weeks later, in July 2020, Barr tried and failed again to conjure the demon of massive voter fraud. After he pushed the notion that foreign countries might generate fraudulent mail-in ballots, Democratic representative Mary Gay Scanlon of Pennsylvania pushed back, sensibly asking, “But, in fact, you have no evidence that foreign countries can successfully sway our elections with counterfeit ballots, do you?” “No, I don’t,” Barr conceded, before adding this non sequitur of a rejoinder: “But I have common sense.”

Let’s take a moment to appreciate the audacity of Barr’s responses. When asked (twice) for evidence of dramatic claims he had just made, he conceded that he did not have any such support, but then decreed that his conclusory assertions were “obvious” and “common sense.” How does that work? Aren’t things that are “obvious” and “common sense” the easiest to prove? If I told you that the sun sets at the end of every day—well, that’s obvious and, hence, eminently provable. I’m trying to envision what would have happened if, back at the SDNY, I had made an important factual assertion about a case, a judge had asked me for evidence to support it, and I had replied, “No—but it’s obvious.” I’m confident it would’ve been ugly. It’s a good thing real Justice Department prosecutors didn’t follow the boss’s lead, or else an awful lot of cases would have been tossed out.

Barr’s public assertions about voter fraud were, first and foremost, just plain wrong. As the director of MIT’s Election Data and Science Lab put it with refreshing bluntness in NPR’s own postmortem on the Barr interview, “He was talking about very specific things, and they were nuts.” Another NPR recap quoted election law experts who derided Barr’s theories as “preposterous” and “false.”

Indeed, as early as 2017, the Trump administration itself, seemingly with fingers crossed and hoping for a preferred result, formed a Presidential Advisory Commission on Election Integrity to study voter fraud, including “improper” and “fraudulent” voter registration and voting. No such luck. After finding nothing of note, the commission disbanded the following year. The ghost of its website lives on, populated by links to a sad smattering of empty “readouts,” statements, and remarks—a digital testament to an effort to find something that simply never was.

For more proof of the paucity of mail-in voting fraud cases, just look at Barr’s Justice Department. It is a federal crime to commit fraud involving voting or elections. DOJ’s own statistics break down its annual prosecutions according to subject matter. For fiscal year 2019 (which included the November 2018 midterm elections, in which more than one hundred million Americans voted), DOJ under Barr charged more than 69,000 federal criminal cases against over 87,000 total defendants. Care to guess how many of those cases involved fraud relating to mail-in ballots? Well, Barr certainly never pointed to one publicly, and heaven knows that if he had had a good poster child to support his claims, he’d have used it. Nor did DOJ charge any such cases during the run-up to or immediate aftermath of the 2020 election. Indeed, DOJ’s stats don’t even list voter fraud or election fraud as a recognized category of offenses—though the statistics do list categories as narrow as Corruption—Pension Benefit, with a grand total of three cases charged during the year. Yet, in the accounting by Barr’s Justice Department of its own caseload, voter fraud doesn’t even rate its own line item, or even a mention.

Of course there have been instances of ballot fraud, but they are so infrequent that they hardly even register mathematically. According to a study by the Washington Post and the nonprofit Electronic Registration Information Center, only 0.0025 percent of all votes cast in 2016 and 2018 were even potentially fraudulent. That’s one instance of potential fraud for approximately every 40,000 ballots cast. Not surprisingly, given this paucity of cases, FBI director Christopher Wray confirmed in September 2020 congressional testimony that “[n]ow, we have not seen, historically, any kind of coordinated national voter fraud effort in a major election, whether it’s by mail or otherwise.”

None of these facts deterred Barr in his pre-election quest to make the fraud narrative stick. By the time he sat down for the September 2020 interview with Wolf Blitzer, Barr had to know the mail-in ballot question was coming. And it seemed, for a moment, that he had for once armed himself with some actual proof. Barr proudly declared that “[e]lections that have been held with mail have found substantial fraud and coercion. For example, we indicted someone in Texas, 1,700 ballots collected from people who could vote, he made them out and voted for the person he wanted to. Okay?” This was a serious and alarming claim, but Barr did not expand on it.

He then ran out of ammo, quickly. Blitzer asked, “During your tenure as attorney general of the United States, how many indictments have you brought against people committing voter fraud?” Barr responded, “I couldn’t tell you off the top of my head, but several I know of.” When Blitzer asked for specifics—remember, Barr had just said “several I know of”—Barr fell back: “Well, I don’t know. I don’t know how many we have. I know there are a number of investigations right now.” So, Barr followed his claim of “several” indictments that “I know of”—Blitzer specified “indictments”—by admitting that (1) he didn’t know how many, and (2) he was actually talking about investigations, not actual criminal charges.

Still, it seemed, momentarily, that Barr had offered up at least one piece of compelling evidence in the Texas case, involving, he publicly claimed, 1,700 ballots. But after the interview ended, his claim was quickly exposed as wildly misleading. First, despite Barr’s proclamation that “we” indicted someone, it turns out that there was no such federal prosecution by DOJ. Rather, Barr was referring to a state-level prosecution in Texas. This was no slip of the tongue. Take it from somebody who has worked on both the federal side and the state side: no federal prosecutor ever refers to a state-level prosecution as something “we” did (or vice versa).

It also turned out that Barr wildly mischaracterized what the case was actually about. “That’s not what happened at all,” the former Texas state prosecutor on the case bluntly assessed in reference to Barr’s outrageous claim. In fact, the case involved a far smaller number of ballots. Another former prosecutor who oversaw the Texas case said the initial investigation focused on “potentially 1,700 fraudulent ballots, but we did not uncover that at all.” He explained, “We actually thought there was voter fraud initially, and we couldn’t find it except that little tiny case” involving a single ballot. According to Barr: 1,700 ballots. According to reality: a single ballot.

The Justice Department’s public relations apparatus sprang into blame-shifting mode. DOJ’s official explanation for Barr’s embarrassing performance: “Prior to his interview, the Attorney General was provided a memo prepared within the Department that contained an inaccurate summary about the case which he relied upon when using the case as an example.” Way to stand tall and own up, Mr. Attorney General—just point your finger downstream at some poor staffer who mucked it up. Of course, we don’t know how much of the blame truly fell on the unnamed staffer and how much was owed to Barr’s own oft-displayed tendency to exaggerate in service of Trump’s public claims about voter fraud. Also: note how Barr’s errors, here and elsewhere, always went the same way—in favor of overplaying the political narrative that Trump sought to promote.

When Barr walked into the Blitzer interview, he had several options. He could have corrected his prior misstatements and exaggerations about mail-in ballot fraud. He could have come equipped with proof (the accurate, truthful kind). He could have been straight with Blitzer and the American public and said something like “Voter fraud does exist, but it is exceedingly rare, and the Justice Department will do everything we can to address any instances that we uncover.” Instead, Barr compounded his errors. He offered up a new but false account of one case that he claimed supported his contention about voter fraud. He was squishy about “several” ongoing investigations that never resulted in charges. And then, to top it off, he publicly deflected blame for his abysmal, dishonest performance onto some unnamed lower-level DOJ staffer. Barr was simply wrong, repeatedly, in blind fealty to Trump’s ginned-up narrative. Barr and the Justice Department would have been much better off if he had simply owned up to his original mistakes and set the record straight.

Just weeks after Barr’s flubbed effort to lend some credence to Trump’s narrative about massive mail-in ballot fraud, the Justice Department gave it another go. This time, the U.S. attorney for the Middle District of Pennsylvania issued a bizarre press release announcing an ongoing investigation into “discarded” ballots. This inquest, according to DOJ’s initial public statement, had uncovered nine discarded ballots, all of which had been cast for Trump.

Right off the bat, the announcement raised red flags. Anyone who has spent a day working in the Justice Department, or any prosecutor’s office, knows it is a core principle (on the books and informally) that you never speak publicly about a pending investigation. The Justice Manual provides specifically that “DOJ generally will not confirm the existence of or otherwise comment about ongoing investigations,” subject only to very rare exceptions. At the SDNY, I was so well trained that when I’d get an occasional call directly from a reporter, I’d reflexively intone, “No comment. Call the press office” (which, in turn, would second my “No comment”). At the Division of Criminal Justice, we got so used to saying this that it became an inside joke, a monotonal, rote mantra: “As a matter of policy, we will neither confirm nor deny the existence or nature of any investigation.”

The reasons for this policy are fundamental, Prosecution 101 stuff. Public disclosure of a pending investigation undermines the secrecy and efficacy of the investigation itself. It’s a bright-line rule, firmly grounded in basic concepts of law enforcement and justice, and it’s quite easy to apply. Just don’t make a public statement about a pending investigation. Done and done.

Yet, just six weeks before a general election, the Justice Department flouted its own policy by issuing a press release confirming the Pennsylvania ballot investigation. Worse, DOJ publicly dished on the details, even specifying that all the ballots at issue had been cast for Trump—a nugget that would be irrelevant to any criminal case but that was quite handy to one of the candidates.

Beyond the impropriety of issuing this kind of a press release, the Justice Department, yet again, got its facts wrong. In yet another embarrassing walk back, DOJ had to issue a “Revised Statement,” amending its numbers from nine Trump votes down to seven (again, the accounting errors always seemed to go one way). And the alleged conduct, upon further examination, was found to have been more bureaucratic than sinister. The investigation reportedly focused not on partisan election officials sneaking Trump ballots into garbage cans for electoral advantage, as Matthew Broderick’s character does in the movie Election. Rather, some voters apparently had mistakenly sent in ballots using the envelopes designated for ballot requests. Election workers opened those envelopes, expecting to find ballot requests, but instead found actual filled-in ballots, which were rendered invalid under state rules. This was nowhere nearly as evil, or even intentional, as originally advertised.

Now, why would Barr’s Justice Department break protocol in this one particular case? And why would prosecutors specify in the press release that some (shifting) number of the ballots in question were for Trump? Could it be because it happened to lend support—flimsy support, but something—for Trump’s election fraud narrative? Barr answered that question himself when he briefed Trump, in person, on the piddling investigation of plainly noncriminal conduct. Sure enough, White House chief of staff Mark Meadows, Press Secretary Kayleigh McEnany, and Trump himself all jumped on the Justice Department announcement within hours of its issuance, citing it as an example of fraud run amok—breach of DOJ policy and factual inaccuracies be damned.

The Justice Department, not surprisingly, never brought criminal charges in the Pennsylvania case that it publicly touted. It never even filed a civil action, which requires less proof than a criminal case. It never filed anything on the case at all, other than an incorrect press release that served as fodder for the baseless conspiracy theories of Trump and his enablers.

In fact, DOJ’s announcement eventually became ammunition for Trump’s effort to contest the results of the 2020 election. In a federal court filing in Pennsylvania seeking to prevent certification of the election results, Trump’s legal team cited the DOJ press release about the purportedly discarded ballots, pointing to the announcement itself as evidence of widespread irregularity and fraud. Remember: DOJ’s original press release was factually wrong, and the investigation never resulted in criminal charges or any other legal action—but the mere existence of the Justice Department announcement propped up in a tangible way Trump’s efforts to overturn the election results.

The Pennsylvania ballot announcement broke not only the long-standing Justice Department rule and practice against commenting publicly on pending investigations, but also the general prohibition on announcing political or election-related cases shortly before an election. But, as to the latter point, Barr quickly came up with an ingenious solution: just change the rules.

Two weeks after the Pennsylvania ballot announcement fiasco, the Justice Department issued new guidance carving out a convenient exception: no political or election-related announcements, as usual—except where the investigation involved conduct by federal postal workers or military personnel.

Just days later, New Jersey federal prosecutors announced the indictment of a mail carrier who had discarded more than 1,800 pieces of mail, including 99 ballots. The New Jersey case didn’t quite fit the Trump-Barr narrative about massive fraud. The discarded ballots were blank, on their way out to voters, not filled in and on their way back to election officials. And the conduct smacked less of fraud than of the Seinfeld episode in which Newman, the lazy postal carrier, dumps crates of mail in a storage locker and relaxes rather than making his appointed rounds. Nonetheless, fodder is fodder: Trump immediately retweeted an article about the New Jersey case and added his own, one-word exclamatory comment: “Rigged!”

Barr’s work didn’t end at propping up Trump’s fantasy making on mail-in ballots. Barr also humiliated himself, and the Justice Department, by repeatedly playing dumb to avoid undermining Trump’s most obviously ridiculous election-related claims. In his September 2020 interview with Wolf Blitzer, Barr bizarrely refused to say on the record whether it would be a crime for a person to vote twice in the same election—just hours after Trump had publicly floated the notion. Three separate times, Blitzer asked whether the law permitted a person to vote twice in the same election, and Barr demurred with “I don’t know what the law is” or some variation. After Barr’s first claim of ignorance, Blitzer deadpanned incredulously, “You can’t vote twice.” (Fact check: you can’t.) Either Barr genuinely did not know that the law prohibits a person from voting twice in the same election (which would be an utter embarrassment coming from the attorney general), or he was willing to debase himself and the entire Justice Department by feigning ignorance to avoid saying anything that might undermine Trump’s preferred campaign narrative.

And at his congressional testimony in July 2020, when asked whether the president holds the legal power to delay the election, Barr responded, “I haven’t looked into that question, under the Constitution.” It wouldn’t have taken much looking into. The president holds no such power, and it’s right there on the face of Article II, which specifically gives Congress (not the president) the power to set a uniform nationwide election date.

Maybe Barr really did not know this. Maybe he was clueless on the issue. But a few days later, Trump himself tweeted, “With Universal Mail-In Voting (not Absentee Voting, which is good), 2020 will be the most INACCURATE & FRAUDULENT Election in history. It will be a great embarrassment to the USA. Delay the Election until people can properly, securely and safely vote???” Secretary of State Mike Pompeo also got in on the misinformation (or perhaps disinformation) campaign, declaring that the Justice Department would “make a legal determination” about the election date. President, attorney general, secretary of state—wrong, wrong, and wrong; a mutually reinforcing triumvirate of ignorance, real or feigned. Either these were grievously underinformed leaders or this was a coordinated political misinformation campaign. Could’ve been both.

As the date for the 2020 election drew nearer, and the polling pointed at trouble for Trump, the president turned up the public pressure on Barr to do something, anything, to give his flagging campaign a boost.

At the same time that the Durham probe seemed to fizzle—or at least to have fallen short of Trump’s explicit hope for some game-changing, pre-election revelation—another Barr-initiated inquiry shot a blank. In late May 2020, DOJ publicly announced that Barr had appointed John Bash, the U.S. attorney for the Western District of Texas, to investigate whether any Obama administration officials had improperly requested the identity of American public officials, including Michael Flynn, who had been identified in intelligence reports during the Trump transition. This process of obtaining the actual names of American officials that had been redacted from intelligence reports (to better understand those reports) is common and not inherently improper, despite the vaguely sinister connotation of the colloquial descriptive term “unmasking.”

Barr’s appointment of Bash followed Trump’s extended public rampage about the purported evils of the “unmasking” of Flynn. Just weeks before Barr tapped Bash, Trump tweeted that the Obama administration’s investigation of Flynn was “[t]he biggest political crime in American history, by far!” It was the old Trump-and-Barr call-and-response: Trump rails publicly about some perceived scandal on the campaign trail, and Barr mobilizes DOJ to make it real—or, at least, to lend DOJ’s imprimatur to Trump’s allegations, giving them some heft beyond a tweet into the void.

Turns out, Bash found nothing wrong. He brought no criminal charges relating to the “unmasking” of Flynn, and the Justice Department declined to make any statement at all about what he did find, despite having publicly trumpeted Bash’s appointment by Barr four months before.

Trump, however, was hardly so reticent. He had publicly thrown down an ultimatum to Barr: “To be honest, Bill Barr is going to go down as either the greatest attorney general in the history of the country or he’s going to go down as, you know, a very sad situation,” he declared to Fox Business when discussing the pending probes. The president tried to seize on the “unmasking” story as a blockbuster scandal. As he put it, with characteristic overstatement, the scandal was “the biggest thing since Watergate,” the “greatest political crime in this history of our country. And that includes Obama, it includes Biden.” He even went so far as to explicitly call for the prosecution of his political rivals: “These people should be indicted,” he declared.

The president’s directive to Barr lacked subtlety: either come through for me before Election Day and ensure your legacy, or come up short and go down as a failure. And when it became clear that Barr could not, or would not, deliver the political goods before Election Day, Trump was so dismayed that he began to give Barr the Jeff Sessions treatment—public second-guessing spiked with degradation. Trump called the failure of the Durham investigation to bring juicy indictments a “disgrace” and an “embarrassment,” exclaiming, “I think it’s a terrible thing. And I’ll say it to [Barr’s] face.” (What’s Barr gonna do, throw a punch?) Trump even declined to commit to bringing Barr back for a (hypothetical, it turned out) second term. “I’m not happy” with Barr, he proclaimed.

Down the stretch of the 2020 election, Trump took things to a new level of desperation, openly calling on Barr to go after his political rivals: “Unless Bill Barr indicts these people for crimes, the greatest political crime in the history of our country, then we’re going to get little satisfaction unless I win and we’ll just have to go, because I won’t forget it.” Trump later fumed, “We’ve got to get the attorney general to act. He’s got to act. And he’s got to act fast . . . This is major corruption and this has to be known about before the election.”

Yet, this time, Barr did not jump to action. He did not seek to indict Obama or Biden or any other top officials from the prior administration on the eve of the 2020 election. Was Barr finally taking a stand? Had Trump finally pushed him past his outer limits? Yes and no. To be sure, Barr did not satisfy Trump’s dictatorial wish to see his predecessor and electoral opponent cuffed on the eve of Election Day.

But, then again, Barr simply had nothing at all to work with. He certainly was sufficiently interested in lending heft to the president’s wild accusations that he appointed Bash specifically to investigate the “unmasking” issue. But when Bash’s investigation came up empty, Barr was left with nothing in the evidence cart; remember, he did not even have Bash issue a public report on his findings, never mind an indictment. It’s one thing to distort the facts (as Barr did with the Mueller investigation, the firing of Geoffrey Berman, and in other instances) and to twist the law (as he did on Mueller, Ukraine, and Michael Flynn), but it’s quite another to fabricate facts out of nothing.

Barr still had one last gasp in his effort to revive the voting fraud narrative. On November 9, 2020—less than a week after Election Day and just two days after major media outlets called the election for Biden—Barr suddenly announced a change in long-standing Justice Department practice regarding election fraud cases. Established DOJ policy, authored by veteran DOJ election law expert Richard Pilger, provided that “[t]he Department does not have a role in determining which candidate won a particular election, or whether another election should be held because of the impact of the alleged fraud on the election.” Accordingly, DOJ instructed its prosecutors that “overt criminal investigative measures should not ordinarily be taken in matters involving alleged fraud in the manner in which votes were cast or counted until the election in question has been concluded, its results certified, and all recounts and election contests concluded.” Simply put: don’t get publicly involved in election-related cases until the election is over, certified, and finalized. The policy reflected the most basic principle of independence: keep electoral politics out of prosecution, and keep prosecution out of electoral politics.

As Trump cast about for some basis on which to contest the outcome, Barr instructed prosecutors that they were now free to pursue election fraud cases even while certification of election results was still pending: “I authorize you to pursue substantial allegations of voting and vote tabulation irregularities prior to the certification of elections in your jurisdictions in certain cases, as I have already done in specific instances.” Now it would be game on for DOJ prosecutors to look into election fraud cases immediately, even before certification of the results. The timing was conspicuous. Barr had been in office for nearly two years before he made this announcement, which came at the very moment Trump and his team were scrambling to challenge or at least delay certification of the election results. If this policy change was the right thing to do, and not motivated by partisan political considerations, Barr easily could have, and should have, announced it well before the election.

Trump’s advisors immediately seized on Barr’s policy change itself as evidence of voter fraud. Rudy Giuliani, who was among the leaders of the Trump campaign’s effort to contest the election results, retweeted a media account of Barr’s policy change as part of a frantic string of tweets aimed at casting doubt on the election results. As with the prior DOJ announcement about the Pennsylvania ballots, Trump’s supporters again tried to hold up Barr’s public statements as a substitute for actual evidence of widespread voter fraud.

The fallout was immediate. Pilger—the same veteran prosecutor who had written the DOJ policy on election matters—resigned from his position as director of DOJ’s Election Crimes Branch. Pilger minced no words. In his resignation letter, he called out Barr’s sudden policy change: “Having familiarized myself with the new policy and its ramifications, and in accord with the best tradition of the John C. Keeney Award for Exceptional Integrity and Professionalism (my most cherished Departmental recognition), I must regretfully resign from my role as Director of the Election Crimes Branch.” Pilger’s resignation ran the total to seven veteran prosecutors who had resigned from four separate matters: the Michael Flynn case, the Roger Stone case (from which all four prosecutors resigned), the Durham investigation, and now Barr’s policy change on election cases.

Days later, a group of sixteen federal prosecutors assigned to monitor potential fraud in the 2020 election sent a letter to Barr—by then a lame duck, following Trump’s election defeat—notifying him that they had found no evidence of fraud. The prosecutors further called on Barr to rescind his policy revision because, they noted, “the policy change was not based in fact” and “thrusts career prosecutors into partisan politics.” This letter had the same effect as the string of resignations by veteran prosecutors: to set the factual record straight and to call out Barr’s political weaponization of the Justice Department.

Finally, Barr broke. Three weeks after he issued his memo revising DOJ’s long-standing policy regarding election-related investigations, he made perhaps the most stunning public statement of his entire tenure as attorney general. In an interview with the Associated Press on December 1, 2020, Barr said that, while federal prosecutors and law enforcement agencies across the country had been investigating various election-related complaints and other information, “to date, we have not seen fraud on a scale that could have effected a different outcome in the election.” He emphasized that the Justice Department had been working diligently and had not found any actionable results: “Most claims of fraud are very particularized to a particular set of circumstances or actors or conduct. . . . And those have been run down; they are being run down. Some have been broad and potentially cover a few thousand votes. They have been followed up on.” Axios later reported that on the same day as Barr’s public statement, he privately had told Trump that his election fraud claims were “bullshit.”

The Justice Department quickly tried to mitigate the impact of Barr’s Associated Press interview, issuing a public statement emphasizing that the attorney general had not “announced an affirmative finding of no fraud in the election” and noting that DOJ would continue to investigate any “specific and credible” allegations of fraud. But the damage had been done. For all practical purposes, Barr had gutted Trump’s wild public claims, and his own prior claims, about pervasive voter fraud.

You could practically hear the needle scratch. Barr had spent the better part of the preceding two years exploring the outer reaches of his power and discretion to help and protect Trump. And as discussed earlier in this chapter, just months before his Associated Press interview, during the run-up to the November 2020 election, he had repeatedly gone out of his way in media interviews and congressional testimony to amplify Trump’s public narrative—almost entirely without proof, but backed by DOJ’s institutional weight—about the potential for massive voter fraud.

Barr’s abrupt turnaround drew fire from Trump’s most loyal defenders. Right-wing media exploded, calling Barr everything from a “deep state” operative to “a liar or a fool or both.” The attorneys leading Trump’s comically hapless efforts to contest the election results, Giuliani and Jenna Ellis, objected. “With all due respect to the Attorney General, there hasn’t been any semblance of a Department of Justice investigation,” they declared—as if they would know what DOJ had and had not done.

Giuliani and Ellis’s self-proclaimed “elite strike force team”—that’s not me being sarcastic; that’s what they unironically called themselves—further declared that Barr’s “opinion appears to be without any knowledge or investigation of the substantial irregularities and evidence of systemic fraud.” (Giuliani and Ellis, it bears noting, never did win a single significant election-related court dispute, utterly failing to produce the evidence they brashly had promised at various circus-like press conferences.)

Of course, Barr offered up far more than merely his “opinion.” His statement conveyed the results of the investigative efforts of DOJ prosecutors and law enforcement agents across the country. And on December 21, 2020, during his final week in office, Barr reiterated the department’s findings—or, lack of findings—when he publicly opposed the potential appointment of a special counsel to investigate voter fraud allegations (which, according to public reporting, Trump had been considering). Contrary to Trump’s oft-stated hopes, and consistent with the embarrassing blizzard of dismissals of Trump campaign–related lawsuits, the facts spoke clearly and were beyond rational dispute: there simply was no evidence of widespread voter fraud.

The week after Barr made his surprising statements to the Associated Press, Hunter Biden, the son of President-elect Joe Biden, announced publicly that he had learned that he was under federal criminal investigation relating to his taxes. The Hunter Biden investigation had begun in the Delaware U.S. Attorney’s Office as early as 2018, before Barr’s arrival as attorney general.

Hunter Biden had long been an object of obsession for Trump. Most notably, Trump got himself impeached the first time by reaching out to the president of Ukraine in 2019 to try to dig up dirt on Biden. Trump also tweeted dozens of times about Biden, often calling for his investigation. And in October 2020, shortly before the election, Trump openly called on Barr to appoint a special counsel to investigate Biden: “He’s got to act fast. He’s got to appoint somebody. This is major corruption, and this has to be known about before the election.”

Yet Barr did not appoint a special counsel to investigate Hunter Biden. Further, the Wall Street Journal reported in December 2020 (based on a single “person familiar with the matter”) that Barr knew about two Justice Department investigations of Hunter Biden—the one in Delaware plus another in the SDNY. According to the Journal, Barr had “worked to avoid their public disclosure during the heated election campaign.” Days later, at his December 21, 2020, farewell press conference during his last week in office, Barr said that he had faith in the normal DOJ investigative process to run its course on Hunter Biden and that he did not favor appointment of a special counsel: “If I thought a special counsel at this stage was a right tool and was appropriate, I would name one, but I haven’t and I’m not going to.”

Immediately after the Journal’s initial revelations, Trump lashed out, tweeting, “Why didn’t the Fake News Media, the FBI and the DOJ report the Biden matter BEFORE the election.” He quickly escalated his rhetoric, heaping Sessions-level public scorn on Barr. Trump retweeted a comment about the Journal story and added his own pithy remark: “A big disappointment!” He followed up with another tweet blasting Barr: “IF Biden gets in, nothing will happen to Hunter or Joe. Barr will do nothing, and the new group of partisan killers coming in will quickly kill it all.”

If the Journal’s reporting was true—it certainly stands to reason that the attorney general would have known about DOJ’s potentially explosive investigations of Hunter Biden, and in fact, those investigations were not publicly disclosed before the election—then, in this instance, Barr hewed to DOJ’s long-standing “blackout rule” against public disclosure of politically charged matters during the immediate run-up to an election. This was a stark turnabout from Barr’s other pre-election actions that served Trump’s wishes: Barr’s bold but factually unsupported public statements echoing Trump’s rhetoric about the possibility of massive voter fraud, his refusal to publicly contradict even Trump’s most far-flung claims about whether the law permitted voters to cast multiple ballots in the same election, his relaxation of the blackout rule to allow public announcements about certain types of ballot fraud, and his indulgence of Trump’s wishes by appointing Bash to investigate the “unmasking” of Michael Flynn. Yet, when it came to the Hunter Biden investigation, Barr held the line and adhered to a crucial DOJ policy against injecting its investigative and prosecutorial functions into electoral politics.

What was behind Barr’s surprising endgame turnabout in the weeks preceding his departure? I offer three possible explanations.

First, with respect to his postelection public contradiction of Trump’s election fraud narrative, Barr demonstrated throughout his time as attorney general that facts can be twisted, shaded, and selectively included or omitted. But facts cannot simply be conjured out of thin air—particularly if those facts are to become the basis for an indictment and subject to rigorous testing in the courts. Barr was a habitual dissembler, but he was no wizard.

Even if Barr had wanted to satisfy Trump’s whim and return a series of voter fraud indictments, or to indulge Trump’s fantastical, publicly stated desire to see Obama and Biden in handcuffs over the unmasking of Flynn, he simply had no raw material. Whenever a prosecutor seeks an indictment, he must first present evidence to a grand jury. The legal bar is low. All the prosecutor must do is establish probable cause, meaning that it’s more likely than not that a crime has been committed. But even the most motivated prosecutor can’t walk into a grand jury room with absolutely nothing and still walk out with an indictment. And even if a prosecutor somehow managed to do so, the case would quickly flame out under scrutiny from a judge and jury. Trump might as well have asked Barr to dunk a basketball on a ten-foot rim: even if Barr had wanted to do so, it simply would have been impossible.

This leads to my second explanation for Barr’s about-face. As the November 2020 election drew near, public polling indicated that Trump likely would lose. On the eve of the election, the data analytics experts at FiveThirtyEight gave Trump a meager 10 percent chance of winning, and for months, most other mainstream public polling had Biden firmly ahead. Barr himself had said months before that “[h]istory is written by the winners”; it was clear that Trump would soon be on the losing side, so Barr had good cause to mitigate his own reputational damage.

With Trump’s electoral defeat looming (and, after Election Day, assured), Barr made a series of self-interested, rational decisions. He took steps to protect his own legacy—or at least to minimize further damage to it—by upholding the long-standing DOJ policy against making politically loaded public announcements shortly before an election with respect to the Hunter Biden investigation. Then he deliberately distanced himself from Trump’s increasingly unhinged, almost hallucinogenic rhetoric about massive voter fraud and other unfounded conspiracy theories. By the time Barr made his postelection public statement about the lack of evidence of voter fraud, it was apparent to any rational person—and Barr certainly qualifies—that the game was over and that Trump and his administration would be out of office at noon on January 20, 2021. Key swing states had certified their electoral votes for Biden, and judges were openly ridiculing and dismissing the lawsuits filed by Trump’s supporters almost as quickly as they could be filed. It was, to any semi-rational observer, over. And those who followed the pre-election polling (which consistently favored Biden) could have anticipated even earlier that the end was near for Trump.

Remember: Barr did not have to say anything about voter fraud. He could have remained silent and let the dispute play out without his involvement. But by speaking out publicly against Trump’s election fraud claims, he put some distance between himself and the dwindling number of discredited laughingstocks—like Giuliani and Ellis—who still clung to the voter fraud narrative, even in the face of all credible evidence. This ship was going down, and there was no reason for Barr to go down with it. His time as attorney general would soon be up, and the last thing he needed was to be lumped in, in public perception and historical memory, with the likes of the last true believers, the most fervent and delusional of the Trump worshippers. Barr was now on the losing side—the side that would not be writing the history—and he knew it. It was time to save face, to the extent still possible.

Barr continued his image-rehabilitation campaign in January 2021, after he had left office. In a public statement in the immediate aftermath of the January 6, 2021, storming of the U.S. Capitol by violent pro-Trump rioters, Barr declared that “orchestrating a mob to pressure Congress is inexcusable” and that Trump’s behavior was “a betrayal of his office and supporters.” Pretty rich coming from Barr, who had spent months before the election brashly parroting and lending public ballast to Trump’s baseless, paranoid theories about the threat of massive voter fraud. Notwithstanding his belated, postelection turnabout, Barr himself bears significant fault for fueling the “rigged election” lie that motivated the Capitol riots in the first place.

This brings us to the third explanation for Barr’s about-face: Plainly put, he did the right thing, at least in some part (but also, too late). He unequivocally did the right thing when he reportedly made sure the Justice Department did not announce (or leak) news about the Hunter Biden investigation, consistent with DOJ policy and contrary to Trump’s frequent public yearnings. And he did the right thing when he publicly (albeit belatedly) corrected Trump’s false voter fraud narrative, contradicting the president’s efforts to shake public faith in the election and the American democratic process writ large.

Perhaps Barr acted out of self-interest, or maybe from an abiding sense of responsibility—perhaps even guilt—for what he had helped to wreak. And his late-breaking actions by no means canceled out all his malfeasance over the preceding two years, or even made a major dent. In these instances, however, he deserves some credit for doing the right thing.

But, after his initial public statement that DOJ had not discovered evidence of widespread voter fraud, Barr promptly began undoing the impact of his momentary display of independence and principle.

After his endgame defection from Team Trump on election fraud and the Hunter Biden investigations evoked public fury from the president, only one question remained: Would Trump fire Barr, or would Barr call it quits first?

The answer, it turned out, landed somewhere in the hazy middle. On December 14, 2020, Trump announced by Twitter that, after “a very nice meeting . . . Bill will be leaving just before Christmas to spend the holidays with his family.” The president declared in an uncharacteristically syrupy-sweet tone that “[o]ur relationship has been a very good one, he has done an outstanding job!” He tweeted that Barr’s deputy, Jeffrey Rosen, would take over temporarily as acting attorney general.

Nearly simultaneously, Barr submitted a formal resignation letter that was remarkable for its slobbering sycophancy and its angry broadsides against Trump’s perceived political enemies. He started the letter with a gratuitous detour that partially undid his principled public statement of just a few weeks before about the lack of evidence of election fraud. Barr opened the letter by noting, “I appreciate the opportunity to update you this afternoon on the Department’s review of voter fraud allegations in the 2020 election and how these allegations will continue to be pursued.” There is absolutely no legitimate purpose to include this information in a resignation letter. Why would Barr conspicuously memorialize an “update” that he had given Trump just moments before the letter’s submission? This was a parting gift to Trump, an Easter egg that would enable Trump to say, essentially, “Hey, DOJ is still investigating. There still could be voter fraud out there.” Not much, but enough for Trump to claim the book was not yet closed on the issue.

Barr then turned to the object of his affection, Trump himself. He gushed about “the many successes and unprecedented achievements you have delivered for the American people” and touted Trump’s “historic” record. But Barr’s letter quickly shifted from mawkish to hawkish as he turned his fire on Trump’s supposed tormentors. He claimed that Trump had weathered a “partisan onslaught against you in which no tactic, no matter how abusive or deceitful, was out of bounds.” He intoned that “[t]he nadir of this campaign was the effort to cripple, if not oust, your Administration with frenzied and baseless accusations of collusion with Russia.” Barr then genuflected, writing that “[f]ew could have weathered these attacks, much less forged ahead with a positive program for the country.”

Here’s where Barr crossed a line. It’s one thing for an attorney general to praise the president; it’s quite another to overtly attack the president’s perceived political enemies. The Justice Department should have no role, ever, in any partisan political beef. Yet, in his farewell letter, Barr eagerly jumped into the fray and threw haymakers at Trump’s adversaries.

Barr also used the letter to reprise his original sin: his dishonest public manipulation of the Mueller investigation. Once again, he falsely claimed that Mueller’s investigation was “baseless”—contrary to the findings of Mueller himself, the DOJ inspector general, and the Republican-led Senate Intelligence Committee that the investigation was both appropriate and necessary. And Barr echoed his own prior claims that there had been false “accusations of collusion with Russia” when, in fact, Mueller had concluded that the evidence established dozens of efforts by Trump campaign members to coordinate with Russia, even if those efforts did not quite constitute a specific federal crime. Barr punctuated this passage by heaping scorn on those “partisan” players who were so “abusive and deceitful” to have the gall to investigate the president in the first place.

Barr’s resignation letter was both characteristic and telling. For all the praise he lavished on Trump, and all the fury directed at Trump’s political opponents, Barr didn’t get around to acknowledging the Justice Department’s thousands of dedicated career public servants until the very end of the letter’s last substantive paragraph. The letter is evidence that, to Barr, the core mission of the Justice Department, to protect the Constitution and the American public, was almost an afterthought. Instead, as his farewell missive made clear, Barr continued to the end to perceive his job as attorney general largely in us-versus-them terms. The letter was, in a way, a perfect encapsulation of his public worldview: it’s not about doing right—it’s about propping up Trump and vanquishing the enemy.

Culture Warrior

Here’s a common question about William Barr: Why? Why would he have sought and agreed to serve as Donald Trump’s attorney general in the first place? And what did he stand to gain?

Barr didn’t need the professional laurel. After all, he already had done the job decades before, for President George H. W. Bush, and had left with a generally positive reputation as a stable, serious institutionalist (as reflected by my own cautiously positive public comments and by the generally supportive reactions of others who often criticized the Trump administration, upon the initial announcement of Barr’s nomination in late 2018, discussed earlier, in chapter 2). With or without the Trump gig, Barr would go down in history as among the select few who had served as attorney general of the United States. Doing it a second time would make Barr part of the answer to a nifty trivia question, but he had already secured his legacy.

Barr didn’t need the money. In 2018, when Trump tapped him for the job and its fairly modest annual salary of $219,200, Barr was sixty-eight years old and worth tens of millions of dollars. He agreed to step out of comfortable semiretirement and into the maelstrom of the Trump administration—right after the Republicans had taken a beating in the 2018 midterm elections, immediately on the heels of Trump publicly humiliating the prior attorney general, Jeff Sessions, and chasing him out of office. Barr himself even played up this angle at his confirmation hearing, adopting a tenor of indifference: “I did not pursue this position, and when my name was first raised, I was reluctant to be considered and, indeed, proposed a number of alternative candidates. I am 68 years old, partially retired, and nearing the end of a long legal career. My wife and I were looking forward to a peaceful and cherished time with our daughters and grandchildren. And I have had this job before.”

Yet Barr’s claim that he did not “pursue” the job simply does not line up with the facts. He didn’t merely accept the attorney general job, reluctantly but selflessly heeding the call of public service. He actively sought the job. Remember: just six months before his nomination by Trump, with Sessions on the ropes and the attorney general job almost certain to open up, Barr wrote and sent in to the Trump administration his audition memo, in which he declared that Robert Mueller’s apparent theory that Trump might have obstructed justice was “fatally misconceived.” He did this right at the moment when it seemed the Mueller investigation posed an existential threat to Trump’s presidency; Mueller already had racked up indictments of half a dozen key Trump advisors, some of whom (including, at that point, Michael Flynn and Rick Gates) had flipped and were cooperating with the Justice Department. And the media widely reported that Trump had openly pined for an attorney general who would make the Mueller threat go away. The New York Times reported that Trump had wailed, “Where’s my Roy Cohn?” referring to his notoriously unethical (long-deceased) personal attorney and fixer.

Into this fray stepped Barr. Nobody asked him for his view on the Mueller investigation. He unilaterally put it out there for public consumption—and for Trump’s consumption, right as he considered replacements for the doomed Sessions. Indeed, word of Barr’s memo reportedly reached Trump before the nomination, and Trump liked what he saw. And despite Barr’s claim that he had written the memo purely out of a sense of civic duty, to quietly give DOJ the benefit of his wisdom, he also took his talking points public, through the media. In an interview with The Hill, Barr took a preemptive hatchet to the Mueller investigation, calling it “asinine” and fretting that Mueller risked “taking on the look of an entirely political operation to overthrow the president.”

So, why did Barr want the job? Why would he thrust himself into a chaotic administration that already was under heavy fire from opposition Democrats, prosecutors, and the media? And why would Barr not merely accept the job, but actively seek it?

I offer two theories, mutually reinforcing. The first one is simple: power.

Prosecutors hold dizzying power. Former attorney general Robert Jackson put it this way in a famous 1940 speech: “The prosecutor has more control over life, liberty, and reputation than any other person in America.”

Eighty-plus years later, this remains true. Even as a line-level prosecutor, you routinely decide who gets charged with federal crimes and who doesn’t. You decide whether to offer a plea deal or take a defendant to trial. It’s up to you whether to seek a monster sentence or cut a guy a break. You can launch investigations that can ruin careers, families, reputations. Accomplished defense attorneys, some of them twenty or thirty years your senior, seek your favor. Defendants beg for mercy, literally. In one case of mine, a defendant had rejected our plea offer but then had second thoughts; before a pretrial conference, he screamed my name from the U.S. Marshals’ holding area adjacent to the courtroom—“Mr. Elie, please talk to me! I’ll take that plea now!”—so many times, while sobbing so hard, that he threw up all over the holding cell. Even as a rookie prosecutor, you hold the power to take away another person’s liberty. And that power can spin even the most even-keeled person. It takes conscious effort, and the occasional reminder through a hard-learned lesson, to keep yourself in check.

Now, imagine being the attorney general of the United States. You’re in charge of more than 110,000 employees—including all federal prosecutors, plus the FBI, DEA, ATF, U.S. Marshals Service, and the Bureau of Prisons—with an annual budget of over $28 billion. The entire Justice Department apparatus hangs on your every word and carries out your will. You’re driven everywhere, you have an around-the-clock security detail, you go to cabinet meetings in the White House. Everyone calls you “General” and stands up when you walk into the room. When you speak at U.S. Attorney’s Offices, federal prosecutors wait on long lines for the honor of shaking your hand and getting a photo with you in front of the American flag.

This is not necessarily a criticism of Barr. Many people crave and seek out power. I readily admit: as a prosecutor with the SDNY, I found it intoxicating to hold even the tiny fraction of power that Barr held as attorney general. I sought out more authority as I moved up the supervisory chain at the SDNY and then at the New Jersey Division of Criminal Justice. At times at DCJ, I even felt like a low-level dignitary of some kind, with responsibility for supervising more than five hundred people. Yet that’s a small fraction of the power held by the U.S. attorney general.

In mid-2018, Barr, verging on permanent public irrelevance, saw a lane open up to pursue a rarefied level of power that few people ever obtain—that he himself had once tasted, decades before—and he went for it. And once he got that second jolt of power, he wanted still more. When asked by Wolf Blitzer on CNN in September 2020 if he wanted to remain attorney general for a potential second Trump term, Barr demurred but did allow that the job was “satisfying.” According to the Washington Post, he told friends that he hoped to stay on as attorney general if Trump won reelection, and he later confirmed to the Wall Street Journal that he “had planned to stay on in a second Trump term.” There’s nothing inherently wrong or evil about this. But don’t buy into the notion, advanced at times by Barr himself, that he was somehow above it all, that he was the humble, reluctant public servant compelled back into the fray entirely by the call of patriotism and at great personal sacrifice. Civic duty undoubtedly played some part. At the same time, the man sought power, and he got it.

This leads to the second reason why, I propose, Barr pursued the attorney general position. The job, and its attendant power, gave him a potent means to amplify and implement his extreme view of executive authority. And, beyond the realm of legal doctrine, Barr is and long has been a devout culture warrior. The attorney general job afforded him a unique opportunity to impose on the country his own fervently anti-secularist worldview.

There never has been any mystery about Barr’s expansive legal view of executive power. Throughout his career, he has espoused a strong view of the executive branch’s powers, and of the president’s unique role as the leader and sole official responsible for exercising that executive authority—often paired with a limited view of the role that courts should play in public decision making. Barr has long been a member of the Federalist Society, which, by its own description, is “a group of conservatives and libertarians dedicated to reforming the current legal order. We are committed to the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.” The Federalist Society publicly listed Barr as a “contributor” (in the academic and intellectual, not necessarily financial, sense), even during his tenure as attorney general.

Indeed, Barr endorsed standard, Federalist Society–approved positions before and during his tenure as attorney general. For example, in his June 2018 pre-nomination audition memo, he argued that the president holds expansive powers and generally cannot commit a crime if he exercises a constitutional imperative. Barr wrote that “[w]hen the President exercises these discretionary powers, it is presumed he does so lawfully, and his decisions are generally non-reviewable.” He also echoed the Federalist Society–endorsed view that “[c]onstitutionally, it is wrong to conceive of the President as simply the highest officer within the Executive branch hierarchy. He alone is the Executive branch.”

While in office as attorney general, Barr articulated a consistent view of the primacy of executive power as vested in the president. In a keynote lecture at the Federalist Society’s November 2019 meeting, he criticized Congress for “making broad delegations to a modern administrative state that they increasingly seek to insulate from Presidential control.” And he aimed especially pointed scorn at the judicial branch, which, he claimed, was “steadily encroaching on Executive responsibilities in a way that has substantially undercut the functioning of the Presidency.” In Barr’s view, “the courts have increasingly engaged directly in usurping Presidential decision-making authority for themselves.”

He closed his Federalist Society speech with a flourish: “At every critical juncture where the country has faced a great challenge . . . [o]ne would have to say that it has been the Presidency that has stepped to the fore and provided the leadership, consistency, energy and perseverance that allowed us to surmount the challenge and brought us success. In so many areas, it is critical to our Nation’s future that we restore and preserve in their full vigor our Founding principles. Not the least of these is the Framers’ vision of a strong, independent Executive, chosen by the country as a whole.”

In Trump, Barr had a president who shared his fundamental belief in virtually unfettered executive power. Trump memorably declared, “I have an Article II, where I have the right to do whatever I want as president.” Trump was less scholarly than Barr in articulating the principle, but the two men aligned in their view of expansive presidential powers. If Barr wanted a soul mate in the Oval Office to actualize his own long-held view of executive power, he could not have found a better partner than Trump.

To be sure, Barr’s view of strong (at times, virtually unlimited) executive power drove his handling of the most controversial matters to come before him as attorney general. For example, he wrote in his audition memo that Mueller’s theory of obstruction was “fatally misconceived” primarily because it presumptively cannot be a crime for the president to exercise a constitutional power vested in the chief executive. Barr eventually cleared Trump altogether of any potential obstruction of justice crime, contrary to the evidence presented by Mueller.

The Justice Department’s Office of Legal Counsel under Barr later issued an opinion endorsing the president’s claim of “absolute immunity” from congressional or prosecutorial oversight while in office; that extreme pro–executive branch notion eventually was roundly rejected by the federal courts, including the U.S. Supreme Court.

Barr also elevated the presidency during the Ukraine scandal. OLC attempted to prevent Congress from learning of the scandal by reasoning that the federal law requiring the intelligence community inspector general to disclose an urgent and credible whistleblower’s complaint to Congress applied to all members of the intelligence community . . . except the president (despite the absence of any such limitation in the law itself).

Barr similarly took an aggressive view of the president’s power when he called on Trump to fire Geoffrey Berman as U.S. attorney for the SDNY. Barr also acted on an expansive interpretation of the scope of the president’s duties when he interjected DOJ to represent Trump on the E. Jean Carroll lawsuit, reasoning that it was within the president’s official duties to attack Carroll verbally after she had accused him of rape. (Again, a federal district court rejected Barr’s broad view of the president’s authority.) And Barr’s selective and unapologetic intervention in the Michael Flynn and Roger Stone cases—following Trump’s public raging against those particular prosecutions—was, at a minimum, consistent with the view stated in his audition memo that “the President’s law enforcement powers extend to all matters, including those in which he has a personal stake.”

Barr’s Federalist Society–endorsed beliefs drove many of his most important decisions as attorney general. But it went even deeper for him. His legal worldview fell solidly on the right-leaning side of the political and ideological spectrum, but well within the mainstream. But he also held—and more problematically as attorney general, articulated and acted on—a strident personal belief in the evils of secularism. In Barr’s rarely stated but long-held view, religion was the answer to virtually all things: its proper role was to guide public life and impose order on society, and its absence caused widespread societal ills. (Despite persistent rumors, Barr is not and never has been a member of the controversial religious group Opus Dei.)

In a remarkable October 2019 speech at the University of Notre Dame, Barr expounded on the need for religious values to guide American social order. He gave the speech in his official capacity as attorney general—DOJ published a transcript of his remarks on its website—but his words more resemble those of an anti-secularist ideologue than the chief law enforcement officer of the United States.

Barr railed at length about the evils of secularism, opining that the country’s founders believed that “to control willful human beings, with an infinite capacity to rationalize, those moral values must rest on authority independent of men’s will—they must flow from a transcendent Supreme Being.” Thus, Barr declared, “in the Framers’ view, free government was only suitable and sustainable for a religious people.” These are remarkable statements coming from any government official, never mind the nation’s top law enforcement officer: only “religious people” can sustain free government. Religion, Barr continued, “gives us the right rules to live by.” And in his view, it’s not so much religion itself that must prevail, but only a certain type of religion: “In fact, Judeo-Christian moral standards are the ultimate utilitarian rules for human conduct.”

Barr then went on a rampage against the dangers of secularism and liberalism. He decried “militant secularists,” whom he deemed “so-called ‘progressives.’ But where is the progress?” He then blamed secularism for various “social patholog[ies,]” including “the wreckage of the family, we are seeing record levels of depression and mental illness, dispirited young people, soaring suicide rates, increasing numbers of angry and alienated young males, an increase in senseless violence, and a deadly drug epidemic.” If secularism is the cause of these social ills, then, logically—and in Barr’s own words—religiosity is the solution.

The 2019 Notre Dame speech was decades in the making. Twenty-seven years before, during his first stint as attorney general in 1992, Barr spoke to the Catholic League for Religious and Civil Rights, where he touted “God’s Law.” “Because human nature is fallen, we will not automatically conform ourselves to God’s law, but because we can know what is good . . . we are not doomed to be slaves to our passions and wants. To the extent that a society’s moral culture is based on God’s law, it will guide men towards the best possible life.” Also in 1992, Barr blamed the absence of religion as a cause of juvenile crime: “Moreover, there has been an effort—largely successful—to drive out of schools and public education any kind of moral perspective or moral content. This moral lobotomy of public schools has been based on extremist notions of separation of church and state or on theories of moral relativism which reject the notion that there are standards of right or wrong to which the community can demand adherence.”

In 1995, Barr wrote an article for The Catholic Lawyer, a scholarly journal, titled “Legal Issues in a New Political Order.” But the dry, academic title belied the article’s bellicose tone. Barr opened with an attack on secularism, casting religion as a victim of gathering hostile forces: “We live in an increasingly militant, secular age. We see an emerging philosophy that government is expected to play an ever greater role in addressing social problems in our society. It is also expected to override various private interests as it goes about this work. As part of this philosophy, we see a growing hostility toward religion, particularly Catholicism. This form of bigotry has always been fashionable in the United States. There are, today, even greater efforts to marginalize or ‘ghettoize’ orthodox religion.”

He then issued a rousing (or, depending on your perspective, startling) call to action: “We are being pushed steadily off the battlefield, or have been for the last few decades. Occasionally, we are jabbing back and poking back as we backpeddle [sic] off the field. What is our larger strategy for preserving the Church and seeing it prevail? How will we get back on the battlefield? How are we going to see the Church transform the world for the better? We are locked in a historic struggle between two fundamentally different systems of values.” Indeed, Barr long perceived the struggle of religion versus secularism in militant terms: the Church must “prevail” in a “historic struggle” playing out “on the battlefield” of public life.

Finally, he called on Catholics to mobilize, while railing against “the homosexual movement,” among other perceived secular threats. He wrote:

Failing to prepare Catholics to hold their own has led to an erosion of the Catholic base. In a sense, the power of our numbers is dwindling. . . . What good is it for us to charge up a hill and fight issues—whether abortion, tax exemption, or foster care—when there are fewer and fewer people following the leadership of the Church? This seems to have grave consequences for the Church as a whole. If the Catholic faithful do not take the hierarchy seriously, why should anybody else in the political structure? It is no accident that the homosexual movement, at one or two percent of the population, gets treated with such solicitude while the Catholic population, which is over a quarter of the country, is given the back of the hand. How has that come to be? We need to go back to basics and reassemble the flock.

More warlike imagery here from Barr—“[c]harge up a hill,” “grave consequences,” “reassemble the flock.” Years later, at his 2019 confirmation hearing, Barr tried to soften the impact of his earlier statements, but only partially: “I am perfectly fine with the law as it is, for example, with gay marriage, perfectly fine, but I want accommodation to religion”—meaning that private individuals generally should be permitted to discriminate on the basis of sexual orientation, if their religious views so dictate.

But by 2019, Barr already had made his long-held worldview known. According to his passionate (if rarely articulated) belief, the defining struggle of the United States and civil society more broadly pitted the forces of order (religiosity) against those fanning chaos (secularism). And the attorney general position presented Barr with a rare opportunity to promote and enact his deeply held beliefs on both government and religion.

Sure enough, when Barr exercised his vast power as attorney general, he frequently layered his extreme anti-secularist beliefs over his views on executive power. He articulated and acted on his dystopic vision in which the government, driven by a quasi-religious sense of mission, must tamp down the chaotic turpitude of the masses.

For example, Barr deployed armed federal agents who teargassed protesters outside the White House—and then fibbed about it. He railed about nationwide protests following the killing of George Floyd that “[g]roups of outside radicals and agitators are exploiting the situation to pursue their own separate and violent agenda. In many places, it appears the violence is planned, organized, and driven by anarchistic and far left extremists, using Antifa-like tactics.” He urged prosecutors to consider charging protesters with sedition; none took him up. He later played along with Trump’s performative denunciation of protesters by officially classifying New York, Portland, and Seattle as “anarchist cities,” even though no such designation exists in the law.

And Barr’s dogmatic religious views manifested in the Justice Department’s positions on key issues before the Supreme Court. Under Barr, DOJ argued that the Civil Rights Act of 1964 did not prohibit discrimination by private employers based on sexual orientation. (Recall his earlier broadside against “the homosexual movement.”) The Supreme Court rejected this position by a 6–3 vote, with typically conservative Chief Justice John Roberts and even Trump-appointed staunch conservative Justice Neil Gorsuch joining the four-justice liberal bloc at the time. Also under Barr, DOJ argued to uphold a Louisiana state law that would severely restrict access to abortion. The Supreme Court rejected that position, too, this time by a 5–4 vote, with Roberts (but not Gorsuch) joining with the Court’s liberals.

Barr’s thirst for power, fueled by a religious certitude in his duty and right to impose order on the world, crested when he rushed to carry out a series of executions during his final days in office as attorney general. In July 2019, Barr announced that for the first time in nearly two decades, the Justice Department would resume executing prisoners who had been convicted and sentenced to death. (While federal law provided for the death penalty in certain circumstances, no federal inmate had actually been executed since 2003.) Following Barr’s orders, DOJ carried out ten executions from July 2020 through the end of Barr’s tenure in late December, all by lethal injection administered at the Bureau of Prisons facility in Terre Haute, Indiana.

After Trump’s election loss, the string of executions plainly was near its end. The incoming Biden administration already had made clear it intended to at least pause federal executions; Biden’s criminal justice platform explicitly called for the elimination of the death penalty. And in late November 2020, Barr, knowing he had only weeks left in office and understanding the policy change that the new administration would implement, ordered one last batch of executions. Accordingly, the federal government carried out three more executions after Barr left office but before the end of Trump’s presidency, on January 13, 14, and 16, 2021. These people would have been spared once Biden took office just hours later. But Barr made sure to flex the full might of his office, in the most dramatic manner, on his way out the door.

There is no doubt Barr served and protected Trump, as demonstrated throughout this book. He saved Trump’s political hide (or tried to) on everything from Mueller to Ukraine to E. Jean Carroll to the 2020 election. No doubt, Barr faithfully and eagerly supported Trump. But unlike many top Trump officials and advisors, he did not regard Trump with starry-eyed sycophancy. Rather, for Barr, Trump was a vessel, a means to an end: to make his own personal vision of government, and the wider social order, a reality.

The Road Back

The Justice Department is different. It is the only federal agency whose very name is an abstract concept, an aspiration—not Agriculture or Treasury or Defense, but Justice. During his relatively brief tenure (just under two years in total), Barr undermined that foundational ideal and inflicted deep and structural damage on the Justice Department and its core principles. As an institution, it has a long road back.

Cultural change—a return to those unwritten prosecutorial values of independence and credibility—is a necessary starting point for the Justice Department’s rehabilitation. But restoration of norms is not enough, standing alone, to repair the damage Barr has done. The Justice Department (and other public decision makers) also must enact new, on-the-books policies to pull DOJ out of the ditch where Barr left it and to prevent similar abuses by future leaders who might share Barr’s disdain for its institutional norms.

Here, I propose nine specific reforms that will help the Justice Department restore its standing as a unique bulwark of independence in American government.

1. Explicitly reject Barr’s stated view of complete presidential prosecutorial power.

The Justice Department should unambiguously reject the position Barr took in his pre-nomination audition memo, that the president has “complete authority to start or stop a law enforcement proceeding” and that “the President’s law enforcement powers extend to all matters, including those in which he has a personal stake.” As discussed earlier, in chapter 2, this view is legally flawed and conflicts with the DOJ’s existing prohibition of partisan considerations and restrictions on communications between its prosecutors and political actors.

Taken at face value, Barr’s position could lead to absurd and patently dangerous outcomes. The president would have every right (“complete authority,” as Barr put it) to order that his friends and allies not be charged even if they committed crimes. Worse, the president would have that same unfettered authority to instruct the Justice Department to charge, arrest, and potentially imprison the president’s political rivals, even if solely for personal or retributive purposes (limited, as a practical matter, by the evidentiary requirements necessary to obtain an indictment and conviction). This may sound extreme, but Barr’s words were unequivocal and unqualified. DOJ should explicitly reject his view of limitless presidential prosecutorial power and encode that rejection in the Justice Manual. The Justice Department should affirm that it does its work independent of the president and his or her political or personal desires. As Barr’s Senate-confirmed successor, Merrick Garland, pointedly noted in his opening statement at his February 2021 confirmation hearing, “[t]he President nominates the Attorney General to be the lawyer—not for any individual, but for the people of the United States.” Garland committed to pursue “[p]olicies that protect the independence of the Department from partisan influence in law enforcement investigations.”

2. Adopt specific rules limiting communication with the president and White House staff.

The Justice Manual already provides that “[t]he legal judgments of the Department of Justice must be impartial and insulated from political influence. It is imperative that the Department’s investigatory and prosecutorial powers be exercised free from partisan consideration. It is a fundamental duty of every employee of the Department to ensure that these principles are upheld in all of the Department’s legal endeavors.” The Manual also rightly notes that even the appearance of political influence in DOJ business is unacceptable. Accordingly, the Manual sets forth strict guidelines limiting communications of DOJ staff with Congress and requiring the disclosure of any such contacts to, and their review by, DOJ’s Office of Legislative Affairs.

DOJ should explicitly limit communications between DOJ staff and White House officials. Previous attorneys general have issued memoranda laying out limitations on White House communications, but these rules have not been formally incorporated into the Justice Manual. The current Justice Manual does contain headers for “Communications with the White House” and “Reporting White House Contacts with the Department,” but both are followed by notations reading “[TBD],” with no substantive rules. The Manual already regulates communications between Justice Department employees and Congress, and it should adopt parallel guidance that limits and requires reporting of any communications between DOJ employees and White House staff. In particular, a new rule should explicitly ban (or at least regulate) discussions between DOJ employees and the White House about pending criminal matters. Garland at his confirmation hearing underscored the need for policies that “strictly regulate communications with the White House.”

Congress also can take action here. The proposed (but never passed) Security from Political Interference in Justice Act of 2019 would require that DOJ and the White House log all communications between them that pertain to ongoing criminal investigations and turn those documents over to the Justice Department’s inspector general and ethics experts (who, in turn, must notify Congress of any improper communications). Such legislation, if passed, would reinforce the wall of separation between the president and the attorney general on specific criminal matters.

3. Restore integrity to the ethics and recusal process.

During Barr’s tenure, we saw two recurrent problems when he received advice from DOJ ethics officials: that advice was (1) bad and (2) inconsistent, predictably in service of Barr’s non-recusal from cases presenting at least potential conflicts of interest. Justice Department ethics officials recommended that Matthew Whitaker, who had publicly criticized the Mueller investigation before taking office, recuse himself from that case. (Whitaker defied the advice.) Yet DOJ ethics officials reached the opposite result when they cleared Barr to stay on the case—even though, if anything, he had expressed even more definitive hostility to Mueller’s investigation than Whitaker had. And Barr decided not to recuse himself from the Ukraine matter even though he became a potential fact witness after Trump repeatedly invoked his name to the Ukrainian president on the July 25 phone call.

It is difficult to prescriptively micromanage the Justice Department’s ethics review process. But at a minimum, DOJ should formally encode and enforce in its Ethics Handbook a rule requiring recusal in two of the most obvious circumstances presenting conflicts of interest (or, at a minimum, the appearance of a conflict): (1) where the official has already publicly taken a position on the merits of a case and (2) where the official is a potential witness. This is, or should be, textbook stuff. Yet Barr ignored these guardrails in DOJ’s highest-stakes matters, blessed (somehow) by career ethics officials who were either incompetent or hesitant to give him a recommendation he might not like.

4. Revise the special counsel regulations.

In 2017, then–Deputy Attorney General Rod Rosenstein, serving as acting attorney general in the wake of Jeff Sessions’s recusal, appointed Robert Mueller to investigate Russian interference in the 2016 election under a specific set of special counsel regulations. The regulations, adopted in 1999, were designed to provide a special counsel with some degree of independence from the Justice Department, but also to keep the special counsel within the purview of the attorney general. As demonstrated by the Mueller investigation and Barr’s opportunistic distortion of it, however, the regulations do not provide the special counsel with adequate independence or mission clarity.

A special counsel like Robert Mueller functions much like any of the ninety-three U.S. attorneys across the country. The regulations provide specifically that the special counsel shall “exercise all investigative and prosecutorial functions of any United States Attorney.” So, like any U.S. attorney, the special counsel has the power to investigate, issue subpoenas, obtain search warrants, bring indictments, and try cases. And, like any U.S. attorney, the special counsel ultimately reports to the attorney general.

The regulations do build in some safeguards unique to the special counsel. For example, if the attorney general overrules the special counsel on a significant case-related decision, the attorney general must report that decision to Congress (whereas the attorney general need not report to Congress if he overrules a U.S. attorney). But, in other respects, the regulations subject the special counsel to more control by the attorney general than the typical U.S. attorney faces. For example, the regulations provide that, every year, the special counsel must update the attorney general on the status of the investigation and provide a budget request for the coming year, which the attorney general can grant or deny. While the attorney general does have some budgetary authority over U.S. Attorneys’ Offices, he cannot cut off funding for an entire U.S. Attorney’s Office or cut off funding to end a specific investigation. But he can do either to kneecap a special counsel.

The regulations should be revised to give the special counsel more independence than the typical U.S. attorney and more independence from DOJ as a whole. For example, the special counsel might report not to the attorney general but, instead, to a federal judge or panel of judges, a setup mirroring the structure of the independent counsel law that expired in 1999. The regulations also should give the special counsel financial independence from the attorney general.

The regulations further must clarify the end goal: in cases involving the president (who cannot be indicted under current DOJ policy), the special counsel should state clearly whether he believes the president has committed any federal crime. Arguably, the regulations already require this; they specify that the special counsel must submit a report “explaining the prosecution or declination decisions reached by the Special Counsel.” But this command was not clear enough for Mueller, whose report offered only confusing, ambiguous conclusions, neither clearly stating that Trump had committed a crime nor exonerating him. The special counsel is a prosecutor and should do what prosecutors do every day: make a call. Crime or no crime. This will provide clarity to the American public, to Congress (which likely will look to the special counsel’s conclusions in determining whether to exercise the impeachment power), and to other prosecutors (who could indict a president after he leaves office). And it will prevent politically driven dissemblers from jumping into the void and distorting the special counsel’s findings, as Barr did with Mueller’s investigation.

5. Revoke discredited OLC opinions and restore OLC independence.

During Barr’s tenure, the Justice Department’s Office of Legal Counsel (the attorneys who provide guidance to the executive branch on thorny and high-stakes constitutional and legal issues) issued key opinions that (1) shielded the president from potential political and legal danger and (2) withstand no meaningful legal scrutiny.

First, recall that OLC issued a broad opinion that blessed Trump’s “we’re fighting all the subpoenas” strategy under cover of the legal fiction of “absolute immunity.” The Trump administration used this opinion to defy, and instruct others to defy, congressional subpoenas relating to the Mueller investigation and the Ukraine impeachment investigation. The federal courts—ranging from the district court judge who called the theory a “fiction” that gets separation of powers “exactly backwards” to the U.S. Supreme Court, where Trump’s own nominees, Justices Neil Gorsuch and Brett Kavanaugh, were part of a 7–2 majority rejecting the administration’s position—thoroughly trashed this “absolute immunity” argument.

In a similarly infirm legal opinion, OLC concluded that, while the law requires that the director of national intelligence “shall” forward a credible and urgent whistleblower’s complaint to Congress, that “shall” does not apply if the subject of the complaint is the president himself. If followed, this opinion—issued in September 2019, just as the Ukraine whistleblower complaint threatened to break into public awareness—could have suppressed the Ukraine scandal and kept it from the view of Congress and the public.

The Justice Department should revoke both these discredited and potentially dangerous decisions. DOJ should not give legal cover to efforts by the president to categorically insulate the executive branch from meaningful congressional oversight. Nor should the Justice Department countenance an opinion that places the president above the plainspoken law regarding whistleblowers, a key source of governmental accountability.

While DOJ should start with these particularly egregious, repudiated OLC opinions, it also should adopt a rule that once any OLC position has been rejected in a final ruling by the federal courts, that opinion is a goner—though, it should be kept on the books, so future generations can see where things went wrong. It’s a simple, bright-line rule: the bad opinions must go so they cannot be used even for superficial cover or as a delay tactic.

Bigger picture: DOJ needs to restore OLC to its traditional role as a nonpolitical purveyor of the most sensitive legal advice. While OLC has historically had an ideological bent mirroring that of the administration in power, it crossed a line with these utterly indefensible, politically opportunistic opinions. Leaders of the Justice Department must reinforce to OLC that they want and need objective legal advice, no matter who might stand to win or lose politically.

6. Protect and strengthen the inspector general.

Like every major federal agency, the Justice Department has an inspector general, an internal watchdog tasked with investigating potential fraud, waste, or abuse within the agency. IGs cannot bring criminal charges on their own, but they can and at times do refer cases to DOJ for potential prosecution. Federal IGs are presidentially appointed, but they are supposed to do their jobs without regard for partisan politics. New presidents often appoint some of their own IGs, but they also typically leave others in place. For example, several IGs served during the Trump administration who were first appointed to their posts by Presidents Barack Obama (including Michael Horowitz at DOJ, and others), George W. Bush (including the IGs of the Agriculture Department and Internal Revenue Service), and even Bill Clinton (the IG of the Railroad Retirement Board, who was first appointed in 1994). IGs are supposed to be about accountability, not politics.

During his presidency, Trump removed or replaced IGs who dared take actions that potentially hurt him politically. Recall, for example, that in April 2020 he fired intelligence community IG Michael Atkinson months after Atkinson notified Congress about the Ukraine whistleblower complaint that eventually led to Trump’s first impeachment. Trump also removed the Health and Human Services acting IG (who approved a report detailing the dire circumstances of frontline medical staff responding to COVID-19) and the State Department IG (who reportedly had begun an investigation of possible wrongdoing by Secretary of State Mike Pompeo), among others. Both Trump and Barr publicly took issue with the findings of DOJ IG Michael Horowitz—most notably, the conclusion that there was an adequate basis to start the Russia investigation—but Trump did not remove him from office.

While the law empowers the president to appoint and remove IGs, that power is not unlimited. The law requires the president to notify Congress in writing of the reasons for a removal, and it is legally debatable whether a mere “loss of confidence” is sufficient. Congress should clarify the law to provide that the president can fire an IG only for specific, written cause and that a generalized “loss of confidence” is insufficient. Indeed, during Trump’s tenure, the House introduced a bill to do just this, permitting the president to fire an IG only for specific reasons, including “neglect of duty,” “malfeasance,” and “gross mismanagement.” (That bill was never passed into law.) Congress also should consider giving IGs a specific term of years in office.

Within DOJ, as a general matter, the attorney general should refrain from any public comment regarding the IG’s findings, for or against. The core principle behind the post of IG is that they have complete independence to make their findings and recommendations without fear or favor to the leaders of the agency itself. Any public commentary on an IG’s findings, positive or negative, undermines that principle.

7. Clarify the prohibition on foreign election aid.

Federal law already prohibits solicitation from a foreign national of a “thing of value” relating to a political campaign. But the law leaves entirely too much gray area: Does potentially damaging information about a campaign opponent qualify as a “thing of value”? I argue in this book that it does, and it must. (Recall the example of a campaign that solicited a used van from a foreign national; clearly the van would qualify as a “thing of value,” so why shouldn’t opposition research?)

This question tripped up Mueller, who found that various Trump campaign officials had attempted to solicit dirt on Hillary Clinton in 2016, notably at a June 2016 Trump Tower meeting attended by Donald Trump Jr., Jared Kushner (and others), and a team of Russian nationals. Mueller noted the uncertainty in the law and then punted, reaching no conclusion—letting Trump Jr., among others, off the hook. Barr followed suit when he declined even to open an investigation of the president’s solicitation of dirt on Joe Biden and others from the Ukrainian president, rationalizing that the “thing of value” element of federal law could not be met.

Ideally, Congress would revise the statute to clarify that a “thing of value” includes opposition research (or, more broadly, anything that a political campaign commonly seeks and pays for). Failing such an amendment, DOJ can revise its own legal position to disavow the “see no evil” approach of Barr (and, to an extent, Mueller). To do this, the department would have to charge a case involving solicitation of election dirt from a foreign national and then argue it out in the federal courts, perhaps including the Supreme Court. If the Justice Department takes this tack, we’ll eventually get an answer on the issue, one way or the other, from the courts.

8. Reinforce the policy restricting public commentary on pending investigations.

This shouldn’t need reinforcing, because it is already on the books. You wouldn’t know it from Barr’s proactive, substantive pronouncements on the then-pending Durham investigation and the investigation of purportedly discarded Trump ballots in Pennsylvania, but Justice Department policy has long provided that “DOJ generally will not confirm the existence of or otherwise comment about ongoing investigations.”

All that a new attorney general can do is to state unambiguously, in word and deed, that he values that principle and will uphold it. This falls under the “it starts at the top” header. When an attorney general like Barr (or Matthew Whitaker before him) opportunistically yaps to the press about pending matters, he breaks policy and sets a terrible example for the entire department. A new attorney general can correct this simply by supporting and following the long-existing rules and norms. Indeed, in March 2021, early in Merrick Garland’s tenure as attorney general, DOJ prosecutor Michael Sherwin commented publicly to 60 Minutes on the merits of a pending investigation of the January 6 Capitol insurrection; Sherwin was promptly referred for investigation by the Justice Department’s in-house Office of Professional Responsibility.

9. Formally adopt the pre-election “blackout rule.”

DOJ should formally adopt the “blackout rule” prohibiting public announcement of political cases or overt investigative actions that could influence an election within sixty (or ninety) days of any election. Until now, the policy has been memorialized in department-wide letters by attorneys general ranging from Michael Mukasey in 2008 to Barr himself in 2020. The Justice Department now needs to formally add the policy to the Justice Manual. The policy also should clarify its scope to include not only cases directly involving candidates themselves or people close to a candidate, but any case with a potential impact on the election, even if not directly implicating an actual candidate. Barr himself took this broader view during his first tenure as attorney general in 1992, but then adopted a narrower view when rationalizing DOJ’s election-related public announcements down the stretch of the 2020 race.

These reforms will do much to restore the Justice Department to its rightful station. Policy change is vital. But to fully repair DOJ, these new on-the-books policies must be accompanied by a return to the prosecutor’s code.

The Prosecutor’s Code
Humility

Three times, SDNY prosecutors—people I knew, respected, and admired—had tried John A. Gotti, aka “Junior.” Three times, they failed.

The jury hung each time—meaning they could not come to a unanimous verdict either way, to convict or acquit—and after strike three, the office dismissed the case and accepted defeat. I was a newbie at the time, not yet assigned to the Organized Crime Unit, observing from a safe distance, in awe. I would go over to the courtroom and watch as my more senior colleagues presented testimony from mobsters turned cooperators who detailed their gruesome lives of crime and their conversions to government witnesses. I’d watch, riveted, as they gave firsthand accounts of Gotti’s reign. It was like a movie, but better. This was real.

Four years later, I was firmly entrenched in the Organized Crime Unit, soon to become deputy chief. The three Gotti trials were a distant memory. But a different federal prosecutor’s office, the U.S. Attorney’s Office for the Middle District of Florida, was gearing up to take its shot at Junior. (Technically, he wasn’t a “Junior”; the father was John J. Gotti and the son is John A. Gotti, but everyone on the streets and in law enforcement has long called the son “Junior.”) The Florida prosecutors had flipped John Alite, Gotti’s longtime right-hand man and borderline psychotic enforcer. I knew that Florida was preparing to take a new run at Gotti, and occasionally I’d send them information from our old files as they prepared to charge. Good luck and godspeed, I’d think.

On a scorching day in August, the FBI agents on the Florida case arrested Gotti at his home on Long Island. Under the federal rules, he had to make his first appearance in the district of his arrest or an adjacent district, and even though the FBI had arrested him in the Eastern District of New York, they asked if I would handle that first appearance in the SDNY (an adjacent district). Sure, I said; I’ll be a small footnote in Gotti history.

That afternoon, in front of a packed courtroom, I argued to keep Gotti behind bars pending trial. The proceeding took hours, much longer than a typical bail hearing, and Gotti’s lawyers put on a spirited argument. This one felt like a toss-up until the moment the judge announced his ruling: remanded, no bail. Gotti would have to await trial behind bars.

A few weeks later, Gotti made a motion in the Florida court to move the case back to the SDNY, where he had survived three trials years before. These motions almost never succeed. But on the day of the argument down in Florida, I saw articles on the internet suggesting that the judge seemed sympathetic to Gotti’s effort to send the case to New York. I called Ted Otto, the lead FBI agent on the case, who was down at the Florida hearing, and asked him, beseechingly, to please, please, please tell me this mess wasn’t heading north. Otto chuckled and assured me, “Don’t worry, I saw the judge in action, and there’s no way she’s sending it back to New York.” I breathed a sigh of relief. I knew that if the case did come back to the SDNY, I’d be the one trying it, and I had enough on my plate as it was.

Two weeks later, I received a four-word email from Otto: “Gotti coming your way.” The Florida judge had granted the motion and sent Gotti back to the SDNY for his fourth trial. Good call, Otto.

I can admit it now: In my heart of hearts, I thought I’d be the one to get it done. We had tried Gotti three times before, with some of the SDNY’s best prosecutors going to battle and emerging without a guilty verdict. But I was riding high. I had reeled off a series of wins in big mob trials and a groundbreaking human trafficking trial, and now I was ready to pull the sword out of the stone. Bring him on.

The trial was a daily drama. The New York City tabloids covered it, thirsty for intrigue. Gotti’s family and various hangers-on packed the gallery every day and hissed at us as we walked out of the courtroom. At one point, Gotti and Alite had to be physically restrained by the U.S Marshals in the courtroom, with Gotti yelling at Alite from the defendant’s table, “You fag . . . You’re a punk! You’re a dog. You’re a dog. You always were a dog your whole life, you punk dog!” I sat almost directly in between the two men during this outburst, maybe ten feet away from each of them, and I’m proud to say I was seasoned enough by that point that I didn’t flinch.

Despite the dramatics, our case came in clean and strong. After I gave my closing argument to the jury, a usually surly reporter said to me quietly in the men’s room, “You crushed that. I think you guys got him.” Gotti himself later said on 60 Minutes that he thought we had him beat. Interviewer Steve Kroft asked Gotti about our trial, “Were you confident you were going to win?” The normally self-assured Gotti responded, “No. No. Not at all. In fact, it was quite the opposite.” And as the jury began deliberating, our whole trial team felt cautiously optimistic and perhaps a bit more.

And then a strange thing happened: nothing. Usually a jury will send out notes as it deliberates, asking legal questions, requesting to see certain pieces of evidence, or announcing that it has reached a verdict. Juries often go hours, or sometimes even a day or two, without sending a note. But our jury deliberated for eight interminable days without a peep. Not a single note. Every day, all day, we killed time in our trial prep “war room,” a few floors down from the actual courtroom, waiting for the call telling us that the jury had a question or, we hoped, a verdict. We played twenty questions and blackjack. We watched Goodfellas (of course), Dazed and Confused, and dumb YouTube clips. We celebrated my trial partner’s fiftieth birthday in the war room with a sad little cake and paper plates. We tried to do other work, but it’s impossible to focus when you’re waiting on a jury. At times during those eight days, I’d stare at the phone reserved for calls from the courtroom—nobody was allowed to use that particular phone—trying to will it to ring so we could claim our guilty verdict and then go have a beer. More than once, we checked to make sure its ringer wasn’t broken: “Somebody go outside and call the number just to make sure we can hear it ring.”

When the phone finally did ring, my heart skipped a beat, literally. The caller ID screen showed the call was coming from the courtroom. I picked up the receiver—remember those?—and said hello. It was the judge’s clerk.

“We have a note from the jury,” she said.

I couldn’t help myself. I asked the court clerk expectantly, “Is it a verdict?”

She sighed in a way that tipped me off that I might not like what was about to happen. “No,” she said. “It’s longer than that.”

“Can you read it to me?” I asked in a slightly conspiratorial manner.

The rules aren’t exactly clear on whether the clerk is supposed to read the jury note to the prosecutors over the phone before they come to the courtroom—some will, some won’t—and this clerk was hesitant.

“Do you really want to hear it?”

“Yes,” I said as the trial team gathered around, quickly discerning what was happening.

“Okay,” she said, exhaling. “It says, ‘We are hopelessly deadlocked. We cannot reach a verdict either way, and we want to go home.’”

The trial team could read my face. This wasn’t just bad news. It was a stunner.

Instant deflation. Top of the world to loser number four. And that’s how it went. Once again, for the fourth time, the Gotti jury had hung.

Theoretically, we could have tried Gotti yet again, but I knew it was over. We never wanted the fourth trial—remember, Florida started this case before it got dumped on us—never mind a potential fifth. There was only one thing left to do. Gotti had been in prison since his arrest over a year before, since the day I won the argument to get him locked up without bail. But now that the jury hadn’t convicted and we knew we would not retry him, we had to let him out. But before anyone gets out of prison, the prosecutor first has to sign some papers with the clerk.

It was around 9 p.m. when I walked into the clerk’s office. Gotti’s family and friends milled around, jubilant. And Gotti was there, waiting with the U.S. Marshals to be released once I signed. I went to the clerk’s window, signed the papers, and then turned around. I shook the hands of the marshals, who had worked long hours throughout the trial, thanking each one individually. Then, before I knew it, I was face-to-face with Gotti. I didn’t think about it. I simply put out my hand and, as we shook hands, said, “John, best of luck with your family.” He had six kids to take care of, and I knew the case was over. It took about ten seconds for me to think, Oh my goodness, what did I just do? I’m going to be a pariah for shaking this guy’s hand.

Thankfully, I was wrong. A couple of reporters were in the clerk’s office and saw the handshake. The New York Times called it a “gentlemanly step.” The New York Daily News wrote that “He [Honig] proved himself worthy of his position as he held out his hand, a gesture that more than anything signaled his respect for the system. He had lost, and he accepted the outcome as determined by the jurors.”

Truth is, in the moment, I didn’t think about it in quite those terms. The outcome hurt, and I believed it was an injustice. But it was over. The jury had spoken; the system had run its course.

A few days later, I went to meet with the trial judge, in keeping with SDNY tradition. On the bench, the judge was tough, demanding, and hot-tempered. But in chambers, he was kind and reflective. And he said to me, in essence, I know this one stings, but this is our system, and you can’t always control what a jury does. This isn’t about your ego or your stats or your win-loss record, he said, echoing one of the most important lessons I learned on the job, from Rich Sullivan, in my very first trial, years before. This is about our criminal justice system at work, and sometimes things don’t go your way. Let it be a lesson. A little humility can be a good thing.

During his tenure as attorney general, William Barr at times displayed jaw-dropping arrogance. No doubt, he held enormous power as attorney general. No doubt, he felt every ounce of that power, and at times he brayed about it in grotesque fashion.

Barr’s arrogance grew as his tenure progressed. He gave a hint of his swelling hubris in May 2020, when he responded to a question from Catherine Herridge of CBS about his handling of the Michael Flynn case. With a self-satisfied chuckle, he said, “History is written by the winners, so it largely depends on who’s writing the history.”

As Barr pursued his vision of the law as a means to exert social control and root out the evils of secularism, his arrogance crested. When he spoke to a crowd at the conservative Hillsdale College on Constitution Day in September 2020, he declared that, as attorney general, he and other top DOJ brass held “ultimate authority” over Justice Department matters (true) and that “[l]ine prosecutors, by contrast, are generally part of the permanent bureaucracy. They do not have the political legitimacy to be the public face for tough decisions . . .”

It’s one thing to remind the world that, as attorney general, you’re extremely powerful—though it’s also a point so obvious that it hardly bears repeating from behind a lectern. But it’s another thing entirely to denigrate line prosecutors—the kind who, unlike Barr, actually try cases—as “part of the permanent bureaucracy.” With these remarks, Barr disrespected the thousands of people who do battle for the Justice Department every day, as if the job required merely the mindless filling out of forms and checking of boxes. And his comments carried a distinct ribbon of the paranoid “deep state” conspiracy theory favored by Trump: the notion that faceless pencil pushers actually run the government while seeking to undermine elected officials.

But Barr was just getting warmed up. Not content merely to compare Justice Department prosecutors to politically illegitimate bureaucrats, he next just straight up called them babies: “Name one successful organization or institution where the lowest-level employees’ decisions are deemed sacrosanct. There aren’t any. Letting the most junior members set the agenda might be a good philosophy for a Montessori preschool, but it is no way to run a federal agency.” It is difficult to think of a more arrogant thing a leader in any field could do than to infantilize his subordinates. Keep in mind: here you have Barr, who had never tried a case in his life, belittling the men and women who fought for justice (and for Justice) on the front lines every day across this country. Prosecutors get pretty good at shutting out the noise, but these words had to have been devastating to Justice Department morale. DOJ officials reportedly recoiled at Barr’s remarks, and I received plenty of emails and texts from friends in the Department confirming the same.

Barr then went completely off the rails when he declared imperially, “[A]ll prosecutorial power is vested in the attorney general. And these people are agents of the attorney general. As I say to FBI agents, ‘Whose agent do you think you are?’ Now, I don’t say this in a pompous way, but that is the chain of authority and legitimacy in the Department of Justice.” Sounds quite pompous to me, despite Barr’s preemptive protestation. For the record, when FBI agents and federal prosecutors take the oath of office, they do not swear allegiance to the attorney general (or to William Barr), but to the Constitution. Nor do they serve the attorney general; they serve the American people.

Barr echoed a similar disdain for DOJ’s rank and file during his final days in office, in his December 2020 interview with the Wall Street Journal. “Nobody wants to take responsibility anymore,” he griped. “They wring their hands and push issues around the bureaucracy and trade memos for months.” It’s unclear who the “they” is here. If Barr meant to refer to DOJ’s top decision makers, the suits around him at Main Justice, then he had only himself and the administration to blame for having chosen them in the first place and for abiding their recalcitrance. But if he meant “they” to refer to the prosecutors and law enforcement agents on the line, then he was simply dead wrong. Real prosecutors and real cops don’t merely “wring their hands and push issues around.” They investigate cases on the streets and fight them out in front of judges and juries at trial—unlike Barr himself, who, it cannot be said often enough, has never set foot in a courtroom as a prosecutor.

From the attorney general’s suite all the way down to the cramped hallways of the SDNY’s first-year unit, the entire Justice Department must begin its recovery with something exceedingly simple: humility. I’m not concerned about the real prosecutors, the rank and file. There was no visible degradation in the quality or integrity of their work during Barr’s tenure. And humility is built into the job. Line prosecutors take their licks in the courtroom, like I did. And it never hurts to remember (or be reminded) that, for all the power you hold as a prosecutor, it’s not about you—it’s about the criminal justice system and our democratic institutions, first and foremost.

But it’s tougher, naturally, for the attorney general—any attorney general—to stay humble. The same forces that keep prosecutors in check generally don’t reach the attorney general. Attorneys general don’t have to mix it up in the courtroom. Judges don’t yell at the attorney general, defense lawyers don’t try to undercut everything the attorney general says, and attorneys general don’t have to face judgment from unpredictable juries of everyday citizens. Those natural checks, those forces that can keep a line prosecutor grounded, don’t apply to the boss. As a result, much of the impetus falls on the attorney general as an individual, as a human being, to keep perspective.

The Justice Department has an awful lot of work to do to restore its standing. It begins with a bit of humility, starting at the very top. Indeed, DOJ’s post-Barr recovery must start with organizational culture. As detailed throughout this book, Barr has shattered long-standing norms—at times, perhaps unwittingly, and at others, defiantly—consistently in service of his own political and ideological agenda.

The leadership of the post-Barr Justice Department must restore respect for and adherence to the prosecutor’s code. Get back to those norms and practices that real prosecutors learn on the job, on the front lines. Because Barr never tried a case, he simply never internalized the prosecutor’s most fundamental principles: Tell the truth. If you get it wrong, own up. Keep politics out of prosecution. Know your role and understand what prosecutors can and cannot do. Be aggressive and take a shot if you’ve got something to go on, but accept the facts as they are and adjust your legal theory as necessary. Keep your personal money out of the office. If there’s a conflict of interest, get off the case. Don’t publicly backstab your colleagues.

No doubt, Barr leaves behind a track record that could set a tempting precedent for his successors. Future attorneys general might look at Barr’s practices and conclude that, while he undermined DOJ’s integrity and independence, he also realized powerful, if fleeting, benefits, including expediency and political self-aggrandization (and Trump-aggrandization). Barr played dirty, but he also got away with an awful lot, and he helped the president dodge several bullets.

Future attorneys general simply must do better. Barr lowered the bar (no pun intended), and those who lead DOJ now and moving forward must raise it back up—even if that makes life more difficult for the executive branch, the president, the attorney general, and the Justice Department as a whole. Real prosecutors do not seek simply to do what’s expedient, or convenient, or self-serving. Real prosecutors take the job—with all its attendant rewards, challenges, and sacrifices—to do things right.

Acknowledgments

A confession: this book was born as a Twitter direct message. It’s true. Not even the regular kind—the kind that lands in the spammy “message requests” file. Somewhere in the mishmash of DMs from fans, haters, bots, and Nigerian princes seeking bank routing numbers came this seventeen-word pitch from a stranger: “Have you ever thought about writing a book? Perhaps about Bill Barr? It’s a book editor asking.”

That book editor was Eric Nelson at HarperCollins, and it took us all of about a weekend to work out a vision and agree to give this thing a shot. Thank you, Eric, for seeing the potential for this book, for helping to shape it, and for encouraging me to pull no punches. Thanks also to Hannah Long, Victor Hendrickson, Tom Hopke, Tracy Locke, and Jenna Dolan for your help throughout this process.

I have many others to thank. Here we go.

Thanks to Yaffa Fredrick, my remarkably eagle-eyed editor and fact-checker (who, from time to time, helpfully reminds me to check myself). Your diligent work spotting even the tiniest misstep let me sleep better at night.

Thanks to Jess Graham and Anu Chugh, two of Rutgers University’s finest recent grads and future legal superstars, for your deep research dives and for your energy and enthusiasm. We’re all the children of Professor Milt Heumann, who first sparked my interest in criminal justice and who has brought together generations of students who now uplift one another.

I am deeply grateful to Jeff Zucker and Rebecca Kutler for giving me a shot and constantly supporting me at CNN. Members of the CNN family—I’m big on families, as you’ll see—who helped, advised, encouraged, and supported me on this book (and elsewhere) are almost too many to name. I’ll try: Christiane Amanpour, Becky Anderson, Robert Aouad, John Avlon, Brooke Baldwin, Dana Bash, John Berman, Elan Bird, Victor Blackwell, Wolf Blitzer, Kate Bolduan, Max Boot, Erin Burnett, Ana Cabrera, Alisyn Camerota, Josh Campbell, Jane Carr, Laura Coates, Jay Conroy, Anderson Cooper, Chris Cuomo, S. E. Cupp, Oliver Darcy, Bruce Dunkins, Mike Figliola, Tonju Francois, Jenna Fratello, Randi Furman, Jim Gagliano, Richard Galant, David Gergen, Arlene Getz, Kirsi Goldynia, Bianna Golodryga, David Goodman, Hala Gorani, Garrett Graff, Nyja Greene, Janelle Griffin-Butts, Jackson Grigsby, Angelica Grimaldi, Eric Hall, Poppy Harlow, Mark Hertling, Erica Hill, Bill Hinkle, Joey Jackson, Laura Jarrett, Jessica Jezewski, Omar Jimenez, Van Jones, Padraic Judge, Laura Juncadella, Mitra Kalita, Don Lemon, Adam Levine, Joe Lockhart, Marie Malzberg, Kuae Mattox, Ed Meagher, Lisa Mirando, Javi Morgado, Christi Paul, Abby Phillip, Izzy Povich, Shimon Procupecz, Manu Raju, Asha Rangappa, Meredith Richards, Kara Scannell, Jim Sciutto, Michael Smerconish, Gena Somra, Maria Spinella, Brian Stelter, Jake Tapper, Adam Thomas, Jeffrey Toobin, Sophie Varon, Mariella Vaudo, Sam Vinograd, Jonathan Wackrow, Emily Welch, Pat Wiedenkeller, Elliot Williams, Jhodie-Ann Williams, and Jamie Zahn-Liebes. There’s nothing like being surrounded by accomplished journalists, authors, and producers who are so generous with their wisdom and support for a first-timer like me. This group’s tenacity, loyalty, and commitment to truth rivals the best of what I saw at DOJ.

Preet Bharara was my boss at the SDNY, and now he’s a friend and role model (and, still, a boss). Thank you for your guidance, spirit, and humor. As the other Boss has said, “It ain’t no sin to be glad you’re alive.” Thank you also to the growing Cafe family: Vin Bharara, Tamara Sepper, Adam Waller, Geoff Isenman, David Tatasciore, Matthew Billy, David Kurlander, Nat Weiner, Sam Ozer-Staton, Noa Azulai, Jake Kaplan, Anne Milgram, Joyce Vance, Barb McQuade, and the crew.

I’m grateful to Dan Abrams for his support and counsel and for generously taking the time to encourage me at every turn in this new and strange media world. Thanks also to Sunny Hostin and Ari Melber for your guidance and support.

I wrote this book in large part to honor the dedicated public servants who made DOJ everything it was before Barr and will be once again. Thank you to those who taught me, and learned with me, at the SDNY: Mimi Rocah, Ronnie Abrams, David Anders, Julien Barbey, Andrew Beaty, Ari Berg, Kim Berger, Laura Birger, Jenn Burns, Dan Chung, Rich Daddario, Lev Dassin, Kate Failla, Michael Farbiarz, Jesse Furman, Mike Garcia, Dan Gitner, Dan Goldman, Katie Goldstein, Jason Halperin, Caitlin Higgins, Boyd Johnson, David Kelley, Natalie Lamarque, Mark Lanpher, Josh Levine, Ray Lohier, John McEnany, Nick McQuaid, Marc Mukasey, Danya Perry, Guy Petrillo, Ken Polite, Jason Richman, Jen Rodgers, Richard Sullivan, Tim Treanor, Jay Trezevant, Rich Zabel, Lisa Zornberg, and many more.

The same sentiments go for my Jersey-side law enforcement family: Tom Calcagni, Jeff Chiesa, John Farmer, Gurbir Grewal, Christine Hoffman, John Hoffman, Chris Iu, Jill Mayer, Robbie Miller, Paul Morris, Chris Porrino, Chris Romanyshyn, Jen Stonerod, Ron Susswein, Mike Williams, and countless others.

And my gratitude goes out to the hundreds of courageous, dedicated law enforcement officers who have stood with me over the years and, more important, who put themselves on the line for others. I wrote about a few of them here, and I hope those stories ably represent the best of what our police and federal agents do to protect us all.

Thanks to Jennifer Campanile, Lia Aponte, Pilar Queen, and A. J. Leone at United Talent Agency for always looking out.

I need to recognize the great teachers I had in the New Jersey public schools: Ms. Wigand, Mr. Taylor, Mr. Schultz, Ms. Rocchino, Ms. Saltzer, Ms. Dooneif, Ms. Linton, Mr. Carr, and more than I could name here. I remember and am grateful for each of you. You made a difference.

Mom and Dad, you got the dedication. Not that I could ever begin to even the scales.

A quick memory of my grandmother Janet, who worked as a copy editor back when there were far too few women in the field. I can still see your handwritten blue-ink notations. My grandma Gusta wasn’t much of an editor, but that tenacity lives on. And I’m remembering my babysitter, Gloria Mastripolito, who bought me a set of pencils imprinted with “Elie Honig, Future Author” about forty years ago.

Next to my brothers, Pete and Ben, the boys who have shared life with me, and of course Erica, Dana, Alice, Molly, and Micah: Pete, your love of books and “the written word” has inspired me. Please be kind in your book review. Ben, while you’re not as much of a reader, I am always driven and lifted up by your unqualified love, support, and enthusiasm.

Love and thanks to my wife for miraculously managing to, well, be my wife and to work at the very same Justice Department whose leadership I constantly flayed on national TV. You are everything good about DOJ. And a hell of a wife.

And love to my kids. I secretly cherished being locked down with you, and I’ll try not to embarrass you when I see this book on display at the bookstore. (I said I’ll try; no guarantees.)

Index

A specific form of pagination for this digital edition has been developed to match the print edition from which the index was created. If the application you are reading this on supports this feature, the page references noted in this index should align. At this time, however, not all digital devices support this functionality. Therefore, we encourage you to please use your device’s search capabilities to locate a specific entry.

ABC News, 113, 140, 141
abortion, 232

“absolute immunity” claim, 54–55, 67, 71–72, 153, 240–41

Acosta, Alex, 14
Agriculture Department, 242
Albanian crime group, 116

Alcohol, Tobacco, and Firearms Bureau (ATF), 223

Alite, John, 247, 248
Amalgamated Transit Union, Local 1181, 37–39
Americans, The (TV show), 118
“anarchist cities,” 169–70, 231
Antifa, 167–68, 171, 231
Apple Store robbery, 58–59, 106
Arillotta, Anthony, 157–59
arms trafficking, 118

“As Good and Attorney General as We’re Likely to Get” (Wittes), 13

Ashcroft, John, 34
Associated Press (AP), 210–12
Atkinson, Michael, 66–68, 242
Atlantic, 13
Axios, 25, 167, 189, 210

balance of powers, 10
Bannon, Steve, 138, 143
Barr, William Pelham
abuse of power by, 9
as AG under elder Bush, 13–14, 245
“anarchist cities” and, 169–70
arrogance of, 194, 251–52
audition memo of 2018 and, 24–31, 33–36, 39, 49, 221–22, 225–27
balance of powers undermined by, 10
Carpenito and, 128–29
Carroll lawsuit and, 154–55, 227
Catholic Lawyer article by, 229–30
Clayton and, 127–28
Comey on, 12
congressional subpoenas stonewalled by, 52–54
congressional testimony of July 2020 by, 196, 204–5
departure of, as AG, 212–15

DOJ comments on pending investigations and, 23–24, 244

DOJ communication between elected officials and, 27–28

DOJ used as political tool by, 9–11, 255

Durham “investigation of investigators” and, 176, 181–84, 186–91, 207
early career of, 14–15, 220
education and background of, 177
elections of 2020 and, 185–86, 195–204, 208–13, 215, 245
ethics officials and, 237
executions and, 232–33
finances of, 14–15, 221

Flynn case and, 63, 75–77, 101, 112–13, 251–52

Flynn dismissal motion and, 88–95
Flynn “unmasking” and, 205–7
Halkbank and, 137
homosexuality and, 232

House Judiciary Committee and, 103–7, 109, 186

IG and, 182–83, 242
image rehabilitation campaign of, 216
insurrection of January 6, 2021, and, 216
Iran-Contra and, 14
Italy trip with Durham and, 182
Lafayette Square Park protests and, 162–66
lying and scheming by, 9, 39, 179
motivations of, 220–33

Mueller investigation and, 24–27, 30, 35–36, 101–2, 182–83, 218, 237–40

Mueller report distorted by, 39–52, 55–56, 69
Mueller’s early friendship with, 29
Mueller’s private letter to, 40–41
obstruction crimes downplayed by, 29, 31, 39, 50–52, 101–2

Operation Legend and, 171–72
power sought by, 222–24, 232, 252
presidential power, and “absolute immunity” claim, 54–55, 71–72, 226–27, 240-41
presidential power expanded by, 27–28, 224–27, 231–32, 235–36
prosecutorial experience lacked by, 5–9, 160, 255
prosecutors not respected by, 8–9, 63, 75–77, 95, 252–53
prosecutors resign in protest vs., 76, 209
protests vs. police violence and, 162–70, 231
recusal requirements ignored by, 33–36, 69–70, 158, 237–38
resignation letter of, 217–19
right-wing extremism and, 171–72
Rosen and, 5

SDNY and Berman ouster by, 125–29, 132–34, 140–43, 207, 227
secularism opposed by, 10, 224–25, 227–32, 252

Senate confirmation hearing of, 28–31, 34–36, 221, 230–31

Senate testimony of May 2019 by, 177–81
special counsel rules bent by, 39
speech to Catholic League and, 229
speech to Federalist Society and, 225–26
speech to Hillsdale College and, 252
speech to Notre Dame and, 228–29
Stone case and, 63, 75–77, 101
Stone sentencing and, 103–10, 112–13
Trump as means to an end for, 10, 233

Trump calls to “investigate the investigators” and, 178–80

Trump commutation of Stone sentence and, 105–7

Trump election loss of 2020 and, 214–15
Trump Hotel holiday party thrown by, 146–49
Trump nominates as AG, 5, 12–13, 15
Trump pressures, on 2020 election eve, 206–7

Trump pressures, on Hunter Biden, 212–13, 215–16

Trump rhetoric echoed by, 30–31, 56
Trump tactics used by, 86
Trump tweets and, 113–14

Ukraine scandal and, 60–72, 158, 207, 227, 237, 241, 244

Walton questions credibility of, 45–46
Whitaker and, 22–23
Whitmer kidnapping case and, 171–72
Bash, John, 205–7, 213
Benczkowski, Brian, 6–7, 62

Berman, Geoffrey, 126–29, 132–34, 137–43, 207, 227

Berman, Richard, 137–38

Bharara, Preet, 28, 117, 123–24, 127, 130–32, 137, 139

Biden, Hunter
Delaware investigation of, 212, 215–16
Ukraine and, 63–65, 68–70
Biden, Joe, 63, 68–69, 89, 167, 190
death penalty and, 232–33
election of 2020 and, 195, 207, 213–14, 244
Erdoğan and, 137
Billions (TV show), 118
Blitzer, Wolf, 195, 198–200, 204, 224
blue slips, 129
Boesky, Ivan, 118
Bolton, John, 14, 71–72, 137
Boogaloo Bois, 167, 171
Bout, Viktor, 118
Brennan, Margaret, 164–65
Breyer, Stephen, 54
bribery, 62–64
Britain, 182
Broderick, Matthew, 202
Bronx, 116
Bruno, Al, 156–57
Bureau of Prisons, 159, 223, 232

Bush, George H. W. (elder), 13–14, 81, 177, 220

Bush, George W. (younger), 17, 20, 23, 34, 45, 81, 123, 242
torture memos and, 53

U.S. Attorneys fired by, 132

cabinet, 223
Cage, Nicolas, 118
campaign finance crimes, 124
Captain Phillips (film), 118
Carpenito, Craig, 128–29, 141
Carroll, E. Jean, 153–55
Catholic Church, 229–30
Catholic Lawyer, The, 229–30

Catholic League for Religious and Civil Rights, 229

CBS News, 91, 164–65, 251
Central Intelligence Agency (CIA), 34
Cheney, Dick, 34, 151
Chiarovano, Ann, 37–39, 51, 182
child separation, 15–18
Chinese gangs, 116–17
Christie, Chris, 28, 85–85
Civil Division (DOJ), 133
Civil Rights Act (1964), 232
Clayton, Jay, 127–29, 133, 140, 142–43
Clinesmith, Kevin, 186–87
Clinton, Bill, 13, 34, 81, 123, 242
Clinton, Hillary, 47, 178, 185, 243
CNN, 13, 22, 110, 127, 195, 224
Code of Federal Regulations, 146
Cohen, Michael, 100, 102, 124, 133–34
Cohn, Roy, 25, 222
Collins, Chris, 124, 133–34
“collusion” language, 30, 42–43, 47–48
Comey, James, 12, 187
Flynn and, 85–86
Hillary Clinton’s emails and, 185
SDNY and, 117
conflict-of-interest, 69–70
Corozzo, Joseph, 57
Council on American-Islamic Relations, 154

“Count Me as One Democrat Who Things Trump Mad an Excellent Choice” (Litman), 13

COVID-19 pandemic, 195–96, 242
Covington & Burling, 85
Crabb, John, Jr., 107–8
Credico, Randy, 111
Criminal Division (DOJ)
Benczkowski heads, 6, 62
Crabb as acting head of, 107–8
Ukraine and, 62
Crist, Charlie, 40–41
Crittenden, John, 13
Cuomo, Andrew, 124

Daily Beast, 100
D’Angelo, Joey, 174–76
Dannehy, Nora, 109, 187–88
Dazed and Confused (film), 249
death penalty, 232–33
Democrats
Barr confirmation and, 31
SDNY prosecution vs., 123–24
Sessions and, 15
De Niro, Robert, 118
Den of Thieves (book), 118
deportations, 17
Dershowitz, Alan, 102
DiLeonardo, Michael “Mikey Scars,” 79–80, 81

Director of National Intelligence (DNI), 66–67, 241

District of Columbia, U.S. Attorney’s Office, 89, 107

District of Connecticut, U.S. Attorney’s Office, 187

District of New Jersey, U.S. Attorney’s Office, 28, 128

DNA samples, 153–54
Don Peppe restaurant, 38, 182
Dowd, John, 84–85, 87

Drug Enforcement Administration (DEA), 151, 223
drug trafficking cases, 151–52, 174

Duetsche Bank, 139

Durham, John, 109, 176, 181–84, 186–91, 205, 207, 209, 244

Eastern District of New York, U.S. Attorney’s Office, 121–22, 247

Election Crimes Branch (DOJ), Pilger resignation from, 209

Election (film), 202
election laws, 109
foreign contributions and, 64–65, 243–44
mail-in balloting and voter fraud issue, 195–204
power to set election dates, 204–5
elections of 2008, 185
elections of 2012, 185
elections of 2016
Bannon and, 138
Comey and, 185
Russia and, 18, 83, 103, 180–81, 244
Sessions and, 18
elections of 2018, 20, 221
elections of 2020, 195–219
Berman ouster on eve of, 135–36, 139–42
blackout rule and Durham probe, 184–89, 245
Carroll lawsuit and, 155
election fraud investigations prior to certification and, 208–9
foreign campaign contributions and, 135–36
Trump pardons Flynn after losing, 93
whistleblower on Ukraine and, 66
“Election Year Sensitivities” (Barr), 185

Electronic Registration Information Center, 198

Ellis, Jenna, 211, 215
Epstein, Jeffrey, 14, 139
Erdoğan, Recep, 137–38
extortion, 62, 64, 97–99, 192

Face the Nation (TV show), 164–65
Farmer, John, 162
Fear City (TV series), 118

Federal Bureau of Investigation (FBI), 12, 160, 223

Antifa and, 168
Barr on power of AG over, 253
Chiarovano and, 38–39
Comey and, 85–86
Durham and, 182–87
Flynn and, 83, 85–86, 89, 90–91, 101
Gambino Squad, 57–58
Genovese Family dig for corpse and, 156–59
Gotti “Junior” and, 247–48
Holder and, 69
Hunter Biden and, 213
Nicosia and, 98
predication and, 62
protests of 2020 and, 168
right-wing extremists and, 171–72

Russia investigation by, and DOJ IG report, 180–83
safe houses and, 159
SDNY and, 117, 122
takedowns and, 165–66
Trump and, 30, 39, 85–86
voter fraud and, 198
Whitmer kidnapping plot and, 170–72
Federalist Society, 10, 225–27
federal sentencing guidelines, 7, 110–12
Federal Trade Commission, 21
Fiske, Robert, 135
Fitzgerald, Patrick, 151
5K letter (sentencing letter), 79–80, 82
FiveThirtyEight (website), 185, 214
Floyd, George, 162–63, 167–68, 231
Flynn, Michael, 63, 75–96, 205

Barr’s meddling in case vs., 75–77, 89–96, 101, 108–9, 112, 227, 251–52
dismissal motion and, 87–96

Dowd and, 84–85, 87
guilty plea and cooperation deal, 78–83, 86–87, 221
guilty plea withdrawn by, 87
lies to FBI and, 90–91
Kislyak and, 83, 90–91
“process crimes” defense and, 101
prosecutors’ resignations in protest and, 76, 94–95, 108–9, 209
sentencing and, 82
Trump-Comey meetings on, 85–86
Trump pardons, 93
Trump’s efforts to silence, 86–87
unmasking and, 205–6, 213–14
Forbes, 15
foreign election aid
prohibition on, 243–44
Parnas and Fruman and, 135–36
Ukraine scandal and, 62, 64–65
foreign lobbying registration laws, 82
Frankfurter, Felix, 117
Fraud Guarantee company, 136
Freedom Tower, 117
Freeh, Louis, 117
Fruman, Igor, 135–36

Gambino Family, 57–60, 79, 115, 119, 170, 173–76, 182, 192–93

Garland, Merrick, 6, 236–37

Gates, Rick, 221

Genovese Family, 37–38, 97–99, 117, 122, 156–57, 170

Gillibrand, Kirsten, 129–30
Ginsburg, Ruth Bader, 54, 55
Girl Scout Cookie drives, 146
Giuliani, Rudy, 43, 65–66, 69–70
Cohen “process crimes” and, 100, 102
election of 2020 certification and, 209, 211, 215

Halkbank and, 137–38

January 6 insurrection and, 134

Parnas and Fruman indictments and, 135–36, 138

SDNY investigation of, 134–37
SNDY headed by, 100, 117, 135
Ukraine and, 65–66, 69–71, 134, 136
Gleeson, John, 90, 91, 92
global plea deal, 115
Gonzales, Alberto, 34
Goodfellas (film), 249
Goodman, Ryan, 186
Gorsuch, Neil, 54–55, 232, 240–41

Gotti, John A. (younger) “Junior,” 90, 175–76, 246–51

Gotti, John J. (elder), 90, 174–75, 247
Graham, Lindsey, 29, 102
Gravano, Sammy “the Bull,” 79
GTE, 14
Guam, 21
Guardian Angels, 173
guilty pleas
cooperation deals and, 79–80, 157
straight, 79

Halkbank, 136–38
Hanks, Tom, 118
Harris, Kamala, 35, 177–79
Hartford Courant, 187–88
Health and Human Services Department, 242
Herbster, Rob, 57–59
Herridge, Catherine, 251
Hill, Fiona, 71
Hill, The (website), 25, 222
Hillsdale College, 252
Hirono, Mazie, 30, 31
Hoffman, John, 28
Holder, Eric, 6, 69, 185
Holmes, David, 64
homosexuality, 230–32
Horowitz, Michael, 180, 242
Hubbell, Webster, 34
Hunter, Duncan, 124

immigration, 15–18
child separation and, 15–17
illegal reentry cases, 17
zero-tolerance on, 15
independent counsel law, 239
Inskeep, Steve, 196

Inspectors General, recommended reforms, 242–43. See also specific agencies and departments

Intelligence Community (IC), Inspector General (IG), 66, 227, 242–43

Internal Revenue Service, 242
Iran-Contra scandal, 14
Iran sanctions, 137
Italy, Barr trip with Durham to, 182

Jackson, Amy Berman, 109–10
Jackson, Robert, 222
jailhouse lawyers, 152
January 6, 2021, insurrection, 66, 216
JFK airport, 122
judicial branch, presidential power vs., 10, 225

Judiciary Act (1789), 117

Justice Department (DOJ; Main Justice). See also Criminal Division; Office of Legal Counsel; Organized Crime and Racketeering Section; and specific Attorney Generals; divisions; and U.S. Attorney’s District Offices

AG addressed as “General,” 161–62

AG control of special counsel and, 238–40

AG control of U.S. Attorney’s Offices and, 238–39

AG’s power and, 223–24, 252–53
Barr’s anti-secularism and, 231–32
Barr’s audition memo and, 24–28, 39

Barr’s damage to, 9–11, 46, 72, 95–96, 219, 234–35

Barr’s party at Trump hotel and, 148
Barr’s predecessors at, 6
Barr’s refusal to recuse and, 34–36, 148
Bash unmasking investigation and, 205–6
blackout rule before elections and, 184–87, 203, 213, 215, 245

Carroll lawsuit vs. Trump and, 154–55, 227

Comey on, 12
comments on pending investigations prohibition and, 23–24, 201, 202, 244–45

Congress and, limits on communications, 236

Dannehy resignation and, 187–88
elections of 2020 and voter fraud issues and, 197–203, 208–10

Ethics Handbook, 145–46, 238
ethics officials and policies, 23, 34–36, 147–49, 237–38
executions of 2020 and, 232
Flynn case and, 63, 76, 87–96, 108–9, 221
Flynn motion to dismiss and, 89–93
foreign election aid rules and, 244
Garland as AG and, 236–37
Gates case and, 221
guilty pleas and cooperation deals and, 80, 221
humility and, 254

Hunter Biden investigations and, 212–13, 215–16

IG and, 180–83, 218, 242–43
immigration and, 15–18
jailhouse lawsuits and, 152
Mueller and, 34–35, 148
Mueller report distorted by, 40–44, 49
Pennsylvania ballots and, 203
personal business at office prohibition and, 145–46

Pilger resignation and, 209
president and, limits on communication, 27–28, 235–37
president and, rule vs. indicting sitting, 49, 65
presidential prosecutorial power and, 27–28, 235–36

“process” crimes and, 102
prosecutions per year and, 87, 112
prosecutors and
Barr’s disrespect for, 63, 253
Barr’s election fraud policy, 209–10
Barr’s lack of experience and, 5–9
power of vs. AG, 252–53
resignations under Barr, 94–95, 108–9, 187–88, 209
protests of 2020 and, 168
recusals and, 23, 33–36, 148, 237–38
reform of, to prevent future abuses, 234–45
Russia investigation and, 18, 180–83, 218
SDNY independence and, 115–16, 119–20, 123
Sessions as AG and, 15–20, 24
special counsel regulations and, 49, 238–40
Stone case and, 63, 76
Stone sentencing and, 103, 107–9
Trump shielded by, 71–72
Ukraine and, 62, 63, 65–72, 148
Van Gracken resignation and, 94–95, 108–9
Whitaker as AG and, 20–24
Whitaker refusals to recuse and, 23, 35–36
Whitmer kidnapping case and, 172
“Justice Is Supposed to Be Blind” (Comey), 12

Justice Manual, 22, 27–28, 33, 120, 184, 201, 235–36, 245

Just Security, 186

Kagan, Elena, 54
Kaplan, Lewis, 155
Katyal, Neal, 23
Kavanaugh, Brett, 14, 54–55, 240–41
Kennedy, John F., 154
Kenya, U.S. embassy bombing, 122
Kian, Bijan, 82
Kim, Jooh, 131
Kirkland & Ellis, 14–15
Kislyak, Sergey, 18, 83, 90–91
Kravis, Jonathan, 108–9
Kroft, Steve, 248

Lafayette Square Park protests, 162–66, 231
LaGuardia airport, 122
Lawfare (website), 13
Leahy, Patrick, 35, 41

“Legal Issues in a New Political Order” (Barr), 229–30

Libby, Scooter, 34, 51, 151
Limbaugh, Rush, 102
Litman, Harry, 13
Lord of War (film), 118
Lost Angeles Times, 13
Lynch, Loretta, 6, 185

Madoff, Bernie, 118

Mafia, 37–39, 57–60, 97–100, 111, 116, 118, 147, 156–57, 170, 173–76, 182, 246–49

Maguire, Joseph, 66–68
Major League Baseball, 84
Manchin, Joe, 15
Manhattan, 116, 121
Manhattan District Attorney’s Office, 54, 55
Marshall, Josh, 128
Martha Behind Bars (film), 118

Massachusetts Institute of Technology (MIT), Election Data and Science Lab, 197
materiality, 90–91, 93
Maxwell, Ghislaine, 139
Mazars USA, 54
McCarthy, Kevin, 43
McConnell, Mitch, 42
McEnany, John, 32–33
McEnany, Kayleigh, 202
McGahn, Don, 27, 51–52, 55
Meadows, Mark, 202

Middle District of Florida, U.S. Attorney’s Office, 247, 250

Middle District of Pennsylvania, U.S. Attorney’s Office, 201

Milkien, Michael, 118
Miller, Robbie, 144–45
Minneapolis protests of 2020, 166–67
Morgenthau, Robert, 135
MS-13 gang, 171
Mueller, Robert, 18
appointed special counsel, 18, 238
Barr’s friendship with, 29
letter of March 27, 2019 and, criticizing Barr, 40–42, 44
testimony to Congress and, 180
Trump orders McGahn to fire, 51–52
Mueller investigation
Barr attacks on, 222

Barr audition memo on, 24–26, 29, 33–36, 221–22, 226

Barr confirmation hearings and, 31, 34–36
Barr fails to recuse from, 33–36, 237
Barr minimizes importance of, 101–2

Durham “investigation of the investigators” and, 183–84

Flynn cooperation deal and, 78–81, 83, 85–87
Flynn indictment and, 101–2
Flynn stops cooperating with, 94
foreign election aid issue and, 243–44
indictments by, 221
obstruction of justice and, 25–26, 29, 31, 39, 86–87, 101–2
propriety and necessity of, 180–81
Russia and, 18, 34, 333–34
Sessions and, 18–19
Stone indictment and, 101–2
Trump attacks on, 30, 114
Trump attempt to fire Mueller and, 39

Trump call to “investigate investigators” and, 178, 180

Trump efforts to silence Flynn and, 86–87
Trump’s written responses to, 105
Whitaker and, 22–25, 35
Mueller Report, 39
“absolute immunity” claim and, 67, 71, 240
Barr memo of March 2019 on, 39–42, 46–47
Barr questions propriety of, 183

Barr’s distortions and withholding of, 40–48, 50–51, 55, 207, 218

Barr testimony to Congress on, 42
confusing conclusions of, 48–50, 86, 97–98, 240
congressional subpoenas on, stonewalled, 53–54, 240
executive summaries and, 44–45, 55
obstruction of justice findings (volume II), 44, 45, 49–52, 86–87
policy prohibiting indicting sitting president and, 48–50
redactions of, 43–45
release of, in April 2019, 42–43, 47

Russian interference findings (volume I), 42–48, 50–51

Trump not impeached despite, 55–56

Walton on, 45

“Mueller’s Investigation of Trump Is Going Too Far” (Whitaker), 22

Mukasey, Michael, 6, 117, 185, 245
Mulvaney, Mick, 64–65, 71
Murray, Claire McCusker, 5–7
Muse, Abduwali Abdulkhadir, 118

National Advocacy Center (NAC), 119–20
National Guard, 163
Nemazee, Hassan, 123
Netflix, 118

New Jersey Division of Criminal Justice (NJDCJ), 4, 28, 201
ethics and, 144–45
power of, 223–24
New Jersey mail carrier ballot case, 203–4

New Jersey State Attorney General’s Office, 4, 150, 162

New York City, 169
New York Daily News, 251
New Yorker, 119
New York magazine, 139, 188
New York Police Department, 2–3
New York State Assembly, 123
New York State Senate, 124
New York Times, 12, 16, 222, 251
Nicosia, Angelo, 97–99
9/11 Commission, 162
9/11 Memorial Museum, 117
Northern Mariana Islands, 21
Notre Dame, University of, 228–29
NPR, 13, 196, 197

Obama, Barack, 17, 23, 82–83, 123, 131, 180, 205, 207, 214, 242
obstruction of justice
Barr audition memo on, 221, 226
Barr claim of no underlying crime and, 51–52
Barr disregard for, 101
Chiarovano case and, 38–39
Flynn and, 97–98
Mueller report on, 49–52, 87
as “process crime,” 100
Trump and, 39, 97–98
Office of Legal Counsel (OLC; DOJ)

“absolute immunity” claim and, 53–54, 67, 226–27, 240–41
torture memos and, 53
Ukraine whistleblower and, 67–68, 227, 241
Operation Legend, 171–72
Opus Dei, 228

Organized Crime and Racketeering Section (OCRS; DOJ), 115–16

Ortiz, Robert, 2–4

Otto, Ted, 247–48

Papadopoulos, George, 102
pardons
Flynn-Dowd discussions and, 85
Bush, elder, and, 14
Trump dangling of, 39
Trump issues, 51, 93, 105, 110, 124, 138
Park Police, 163, 165
Parnas, Lev, 135–36, 138
Paul, Rand, 31
Pence, Mike, 91

Pennsylvania, elections of 2020 and, 201–3, 209

Percoco, Joseph, 124
perjury, 100–101
Perry, Rick, 71
Pilger, Richard, 109, 208–9
Plame, Valerie, 34
podium privilege, 75, 94, 96
Pompeo, Mike, 71, 205, 242
Portland, Oregon, 169
Powell, Sidney, 92–93
predication, 62
presidency

Barr’s expansive view of, 10, 26–27, 204–5, 224–27
communication with DOJ and, 131, 236–37
election dates and, 204–5
IGs and, 242–43
prosecutorial power and, 27, 235–36
special counsel law and, 239–40

Presidential Advisory Commission on Election Integrity, 197

“process crimes,” 100–102
Mafia and, 100
minimization of, 100–102
prosecutors
active crime scene not attended by, 158–60
bad cases avoided by, 189
Barr’s disrespect for, 8–9, 94, 108–9, 251–54
Barr’s lack of experience as, 5–11
Clayton’s lack of experience as, 128
comments on pending investigations and, 201
communication between elected officials and, 27–28
courtroom vibe and, 75
credibility and, 11, 45–46, 234
decisions on charging and, 16–18, 57–62
DOJ’s need to restore respect for, 254–55
early lessons as, at SDNY, 1–5
errors and, 192–94
grand jury and, 214
humility and, 246–51, 254
impartiality and, 32–33
importance of experience and, 7–8
importance of process crimes for, 97–102
independence and, 11, 27–28, 115–25, 234
integrity and, 11
justice as goal of, not wins and losses, 4
lawsuits vs., 152–53
learning curve and, 4–5, 8
moots and jury addresses by, 73–75
personal life kept separate from office by, 144–49
podium privilege and, 74–77
as potential witness, 158
power of, 222–23
predication and, 61–62
recusals and, 32–33, 158
resignations in protest by, 76, 108–9
role and limitations of, 158–60
salaries of, 150–52
simultaneous arrests and, 165–66
taking the world as you find it, 176
Trump tweets criticizing, 114
undercutting of other prosecutors avoided by, 75–76
unnecessary prosecutions avoided by, 17–18
unwritten rules in court and, 1–5, 7–8
use of office for private gain and, 21–22
witnesses’ fear of testifying and, 97–99
protests of 2020, 163–70, 231
Proud Boys, 171
Putin, Vladimir, 83

QAnon, 87

Queens mobsters, 121

racism, 15
Railroad Retirement Board, 242
rape, 153
Reagan, Ronald, 81, 177
recusals

Barr resists, 23, 33–36, 69–70, 148, 158, 237–38
previous AGs and, 23, 34-36
SDNY and, 32–33
Reno, Janet, 34
Republican National Convention of 2016, 79
Republican Party
Alabama primary of 2020, 19
Barr memo on Mueller report and, 42–43
Barr confirmation and, 31
Durham and, 188–89
Iowa primary of 2014, 21
midterms of 2018 and, 221
SDNY prosecutions vs., 124–25
Sessions and, 15
Trump campaign and, 15
Ukraine impeachment and, 72
Rich, Marc, 123
right-wing extremists, 167–68, 170–71
Roberts, John, 54, 232
Roche, Frankie, 156

Room Where It Happened, The (Bolton), 71–72, 137

Rose, Pete, 84
Rosen, Jeffery, 5–7, 217
Rosenstein, Rod, 16–18, 50–51, 238
Russia investigation, 244
Barr and, 33–34, 42, 176, 181–83, 218
Barr distortions of Mueller report on, 46–47
DOJ IG report on, 182–83, 242

Durham “investigates the investigators,” 109, 176, 181–85

Flynn and, 81, 83, 90
Mueller and, 81, 180–81
McConnell on, 42
Mueller report on, 44–47
Obama sanctions and, 82–83
Sessions recusal and, 18, 34
Stone lies to Congress about, 46–48, 103, 105
Russian Mafia, 116
Russian spying cases, 118

Santos, Howie, 57–60, 106, 182
Saunders, Verna, 153
Scala, Salvatore “Fat Sal,” 193–94
Scanlon, Mary Gay, 196
Schiff, Adam, 67–68, 70–72
Schumer, Chuck, 129–30
Seattle, 169
Secret Service, 163
secularism, 10, 224–25, 227–31, 252

Securities and Exchange Commission (SEC), 128, 133

Security from Political Interference in Justice Act (proposed), 237
sedition, 169, 231
separation of powers, 240

Sessions, Jeff, 6, 25, 34, 130, 206–7, 213, 221

DOJ headed by, 15–20
election of 2016 and, 18
immigration and, 15–18
recusal and, 18–19, 25, 34, 134, 238
Trump attacks, 19–20, 34
Trump fires, 20, 222
Senate campaign of 2020 and, 19
Senate confirmation hearing and, 18–19
Shea, Timothy, 89
Showtime, 118
Silver, Sheldon, 123–24
60 Minutes (TV show), 245, 248
Skelos, Dean, 124
Sliwa, Curtis, 173–76
Sondland, Gordon, 64, 71
Sopranos, The (TV show), 193
Sotomayor, Sonia, 54–55, 192–94

Southern District of Iowa, U.S. Attorney’s Office, 20–21

Southern District of New York, U.S. Attorney’s Office (SDNY)

bad cases avoided by, 189
Bannon indictment and, 138, 143
Barr and Trump attempt to muzzle, 125–43
Berman appointed head at, 131–32

Berman ousted from, 126–29, 132–36, 138–43, 227

Bharara as head at, 28
Bharara fired from, 130–31, 139
Carpenito named as acting head at, 128–29
Carroll lawsuit vs. Trump and, 155
Chris Collins indictment and, 133

Clayton named as acting head at, 127–28, 133, 140, 142–43
cocaine seizures and, 151–52
Cohen prosecution and, 124, 133
Comey and, 86, 117
cooperation as all-or-nothing at, 79–80, 157
cooperator blow ups and, 82
core principles of, 7
criminal case load of, 21
Dowd client convicted by, 84
Epstein indictment and, 139
Erdoğan and, 137
famous alumni of, 117–18
founding of, 117
General Crimes unit, 73
Giuliani as former head and, 100, 117, 135
Giuliani investigated by, 134–38
Gotti Junior indictments and, 175–76, 246–51
Halkbank and, 136–38
history of, 117–18, 135
humility and, 254
Hunter Biden investigations and, 212
immigration cases and, 17–18
impartiality at, 32–34
independence of, 115–26
international arrests and, 121–22
jurisdiction of, 116
Kim as head at, 131

Mafia prosecutions and, 37–38, 51, 57–59, 123, 156–59

Maxwell indictment and, 139
moots at, 73–75
Organized Crime Unit, 246
Ortiz trial and, 1–5
Parnas and Fruman and, 135–36, 138
partisan politics taboo at, 122–24
podium privilege and, 76–77
political corruption cases brought by, 123–24
political partisanship avoided by, 123–25
power and geographical reach, 116, 121–22, 151, 223
professional ethics and, 21–22
prohibition against speaking on pending investigation, 201
prohibition on personal fund-raising at, 146
prosecutorial experience at, 1–5, 7, 11
Queens-based mobsters case and, 121
recusals and, 32–33
resistance to supervision from Main Justice and, 116, 119–20
salaries at, 150–51
Strauss as temporary head at, 138–39, 143
Trump Organization and, 132
Trump’s fear of, 131–32
unwritten rules and, 1–5, 8, 11
Westerman search and, 156–59
special counsel regulations, 238–40
Starr, Kenneth, 14
State Department, IG at, 242
Stewart, Martha, 51, 118
Stimson, Henry, 117

St. John’s Church, Trump photo op at, 163–64, 166

Stone, Roger, 51, 63, 103–14
Barr and, 75–77, 88, 101, 103–10, 112–14, 227
conviction of, 101–3
Giuliani on, 102
House Judiciary Committee hearings on, 109
prosecutor resignations and, 76, 103–4, 108–9, 209

“process crimes” and, 101
sentencing and, 75–77, 101, 103–14
Trump commutes sentence of, 102, 105–7
Trump pardons, 106, 110
Trump tweets and, 113–14
witness tampering and, 103
Strauss, Audry, 129, 138–39, 143
Sullivan, Emmet, 81, 90, 92–93
Sullivan, Rich, 1–5, 8, 251
surveillance
“spying” vs., 182
wire on Mafia member, 59
Swalwell, Eric, 104–6, 108
Swan, Jonathan, 25, 167

takedowns, 165–66
Talking Points Memo, 128
Tanzania, U.S. embassy bombing, 122
Taylor, William, 64, 71
terrorism, 116, 118, 122, 168
domestic, 168
Texas voter fraud case, 198–99
Thomas, Pierre, 140
Times Square bombing attempt, 118
torture, 23
torture memos, 53
Trump, Donald J., 5
“absolute immunity” and, 53–55, 240
“anarchist cities” and, 169–70, 231
Atkinson fired by, 68
Bannon and, 138
Barr and, 224
Barr attacked by, 211, 213
Barr audition memo and, 25, 221–22
Barr confirmation hearings and, 30
Barr echoes rhetoric of, 55
Barr mentioned by, in Zelensky call, 69–70
Barr nominated by, 12–15
Barr pressured by, on election of 2020, 206–7
Barr resignation and, 217–19

Barr’s holiday party at Trump hotel and, 146–49

Barr’s protection of, 5, 9, 26, 39, 42–43, 52, 62–66, 69, 71–72, 77, 101

Barr uses, as means to an end, 9–10, 220–21, 233

Bharara and, 28, 130–32
bribery and, 63
Carroll lawsuit vs., 153–55, 227
Chris Collins and, 124
Cohen and, 124, 133–34
“collusion” and, 30–31
Comey meetings on Flynn and, 85–86
“deep state” and, 252
DOJ communications and, 27

DOJ policy vs. indicting sitting president, 49

Dowd and, 84–85
Durham investigation and, 188, 207
elections of 2016 and, 18
elections of 2020 and, 63, 208–12, 214–16, 232
fraud allegations, 195–97, 200–205, 208–12, 214–15
lawsuits dismissed, 215
Epstein and, 139
executions and, 232–33
FBI and, 30, 187
Flynn and, 77, 79, 83–86, 88, 90–93
Flynn “unmasking” and, 206
foreigners solicited for dirt during campaign of, 243–44

Giuliani and, 100, 134, 135, 136, 138
Halkbank and, 137–38
House subpoenas stonewalled by, 53–55
Hunter Biden targeted by, 63, 71–72, 212–14
IGs and, 242–43
impeachment of, 55
on January 6 insurrection, 66, 134, 216
on Ukraine, 14, 61, 64, 71–72, 134, 242

“investigate the investigators” and, 178–80, 186–87

Lafayette Square Park protests and, 163–66
McGahn ordered to fire Mueller by, 51–52
Mexican Border Wall and, 138
MS-13 gang and, 171

Mueller investigation and, 22, 24–26, 30, 39, 79, 84, 114

Mueller report and, 42–45, 49–52, 55–56, 240
obstruction of justice and, 26, 39, 45, 49, 50–52, 101
pardons
Bannon, 138
Chris Collins, 124
Duncan Hunter, 124
Flynn, 93
Libby, 51
Stone, 51, 106, 110
Parnas and Fruman and, 136, 138
presidency of, 14
presidential powers and, 226
“process crimes” defense of, 102
protests vs. police violence and, 163–69

Russia and, 18, 19, 24–25, 42–48, 50, 90–91, 103, 105–6, 181, 183

SDNY feared by, 124–25, 127, 129–43

Sessions and, 15–16, 18–20, 24–25, 34, 134, 221

Sessions fired by, 222
Stone and, 75, 77, 103, 105–6, 108–10, 113–14
Stone’s sentence commuted by, 102, 105–7
tax returns and, 54
tweets by, 105, 108, 113–14, 167, 195–96
Ukraine and, 61–66, 71–72, 134, 136, 212
military aid held back by, 63, 71–72
predication, 62–66
whistleblower complaint on, 66–68

Zelensky call of July 25, 2019, 62, 66–70, 238

U.S. Attorneys nonconfirmed status and, 129–30

Whitaker and, 22–24
witch hunt terminology and, 31
witness retaliation and, 71
Trump, Donald J., Jr., 244
Trump International Hotel, 146–49
Trump Organization, 132
Trump Tower meeting of June 2016, 243
Tuberville, Tommy, 19
Turkey, 136–37

Twitter, 20, 49, 86, 92–93, 105, 108, 113–14, 167, 195

Tyson, Mike, 75

Ukraine scandal and impeachment, 14, 55, 61–72, 207

Barr fails to investigate, 60–63

Barr fails to recuse on, 69–70, 237–38
congressional subpoenas and “absolute immunity” claim, 71–72, 240

DNI and, 241–42
“do us a favor though” language, 70
extortion and, 64
federal crimes and, 62–65
foreign solicitation of election aid and, 63–65, 244

Giuliani and, 134
House investigation on, 70–71
Hunter Biden allegations and, 64, 212
military aid delay and, 63–64
Parnas and, 136
predication and, 62–63
Russia and, 64
Trump-Zelensky call and, 62–63, 66–70, 238
whistleblower’s complaint, 66–68, 70, 227, 241–42
witnesses testifying and, 64, 71

U.S. Attorneys’ Offices. See also Southern District of New York, U.S. Attorney’s Office; and other specific districts

Justice Manual and policy guidance for, 22
presidents institutional separation from, 131
importance of experience gained at, 7–8
independence and pride of, 117
unwritten rules of, 1–5, 8
U.S. Congress
Barr and, 52–53
Barr on Mueller report and, 39, 42, 48, 55

Barr places presidency beyond reach of, 10, 225

Berman and, 133
Durham and, 188–89
foreign election aid and, 244
communications between White House and DOJ and, 237
communications of, with DOJ, 27, 236
election dates set by, 204–5
IGs and, 242–43
Stone and, 103, 105
subpoena power of, vs. presidency and, 54–55, 67, 240–41
whistleblower complaint on Ukraine and, 67–68, 70, 241–42

U.S. Constitution, 99, 117, 204, 225, 253

U.S. Court of Appeals, Second Circuit, 4, 192–94

U.S. embassy bombings, 122
U.S. House of Representatives
IGs and 243
Trump subpoenas and, 53–54
U.S. House of Representatives, Committees
Appropriations, 40–42
Intelligence, 67, 70
Judiciary, 103–7, 109, 168, 186
U.S. intelligence, 181
U.S. Marshalls, 106, 223, 248, 250
U.S. Senate, 5
Barr and, 31, 41–42
Sessions and, 15, 18–19
Ukraine impeachment and, 72
Whitaker and, 20
U.S. Senate, Committees
Intelligence, 181, 183, 218
Judiciary, 28–31, 34–36, 177–81, 221, 230–31

U.S. Supreme Court, 14, 53–55, 110, 117, 227, 232, 240–41, 244

van der Zwaan, Alex, 102
Van Grack, Brandon, 94–95, 109
Verizon, 14
Vindman, Alexander, 71
Vindman, Eugene, 71
voter fraud allegations, 197–212

Waas, Murray, 188

Wall Street, 116–18

Wall Street Journal, 89, 112, 183, 190, 212–13, 224, 253

Walton, Reggie, 45–46

Washington, George, 117

Washington Post, 13, 43, 102, 108, 163, 198, 224

Watts, Clint, 167–68
“We Build the Wall” fund-raising effort, 138
Wehelie, Abdirizak Jaji Raghe, 51
Weinberer, Caspar, 14
Weissmann, Andrew, 49
Westchester County Airport, 122
Westerman, Gary, 157–59

Western District of Texas, U.S. Attorney’s Office, 205

Whitaker, Matthew, 15, 20–25, 35–36, 124–25, 237, 245

White, Mary Jo, 117, 123
Whitehouse, Sheldon, 41
Whitmer, Gretchen, 170–72
Willard Hotel, 148
witnesses tampering, 97–101, 105, 111
Witness Security Program, 159
Wittes, Ben, 13
Wizard of Lies (film), 118
World Patent Marketing, 21
World Trade Center bombing of 1993, 118
Wray, Chris, 168, 198

Yannotti, Michael, 174–76
Yates, Sally, 185
Yoo, John, 23
Yovanovitch, Marie, 71, 136

Zelensky, Volodymyr, 62–65, 68–70
Zelinsky, Aaron, 109
Zornberg, Lisa, 99

About the Author

Elie Honig is a CNN legal analyst who previously worked for fourteen years as a federal and state prosecutor. From 2004 to 2012, he was an assistant United States attorney for the Southern District of New York, prosecuting and trying federal cases involving organized crime, human trafficking, public corruption, and violent crime. As an AUSA, Honig successfully prosecuted over one hundred members and associates of the Mafia, including bosses and other high-ranking members, on murder, racketeering, and other charges. From 2012 to 2018, Honig served as deputy director, and then director, of the New Jersey Division of Criminal Justice, where he supervised a staff of more than five hundred law enforcement professionals and approximately a thousand cases per year. In addition to his current work for CNN, Honig hosts podcasts and writes for CAFÉ, works as executive director of the Rutgers Institute for Secure Communities, and is Special Counsel to the law firm Lowenstein Sandler. Honig graduated from Rutgers College in 1997 and Harvard Law School in 2000.

Discover great authors, exclusive offers, and more at hc.com.

Copyright

hatchet man. Copyright © 2021 by Elie Honig. All rights reserved under International and Pan-American Copyright Conventions. By payment of the required fees, you have been granted the nonexclusive, nontransferable right to access and read the text of this e-book on-screen. No part of this text may be reproduced, transmitted, downloaded, decompiled, reverse-engineered, or stored in or introduced into any information storage and retrieval system, in any form or by any means, whether electronic or mechanical, now known or hereafter invented, without the express written permission of HarperCollins e-books.

first edition

Library of Congress Cataloging-in-Publication Data

Names: Honig, Elie, author.

Title: Hatchet man : how Bill Barr broke the prosecutor’s code and corrupted the Justice Department / Elie Honig.

Description: First edition. | New York, NY : Harper, an imprint of HarperCollins Publishers, [2021] | Includes index.

Identifiers: LCCN 2021014660 | ISBN 9780063092365 (hardcover) | ISBN 9780063092372 (ebook)

Subjects: LCSH: Misconduct in office—United States. | Political corruption—United States. | Barr, William Pelham, 1950– | United States. Department of Justice. Office of the Attorney General—Officials and employees. | Trump, Donald, 1946–

Classification: LCC KF9409 .H66 2021 | DDC 353.4/2293092 [B]—dc23

LC record available at https://lccn.loc.gov/2021014660

Cover design by Andrea Guinn
Cover photograph © Bloomberg/Getty Images

Digital Edition JULY 2021 ISBN: 978-0-06-309237-2

Print ISBN: 978-0-06-309236-5

About the Publisher

Australia
HarperCollins Publishers Australia Pty. Ltd.
Level 13, 201 Elizabeth Street
Sydney, NSW 2000, Australia
www.harpercollins.com.au
Canada
HarperCollins Publishers Ltd
Bay Adelaide Centre, East Tower
22 Adelaide Street West, 41st Floor
Toronto, Ontario, M5H 4E3
www.harpercollins.ca
India
HarperCollins India
A 75, Sector 57
Noida
Uttar Pradesh 201 301
www.harpercollins.co.in
New Zealand
HarperCollins Publishers New Zealand
Unit D1, 63 Apollo Drive
Rosedale 0632
Auckland, New Zealand
www.harpercollins.co.nz
United Kingdom
HarperCollins Publishers Ltd.
1 London Bridge Street
London SE1 9GF, UK
www.harpercollins.co.uk
United States
HarperCollins Publishers Inc.
195 Broadway
New York, NY 10007
www.harpercollins.com

Table of Contents

- Page 1

- Contents