On May 18, after President Trump tried for several days to push the public’s attention away from his administration’s response to COVID-19 and toward the so-called “Obamagate,” whatever that is, Attorney General Barr seemed to draw a line in the sand.
Barr insisted that the United States cannot allow its electoral process “to be hijacked by efforts to drum up criminal investigations of either candidate,” emphasizing that “any effort to pursue an investigation of either candidate has to be approved by me.” He went so far as to say that he didn’t see President Obama or former vice president Joe Biden, the Democrats’ presumptive nominee, being prosecuted under his watch.
Yes, while Barr may have been willing to do nearly anything to protect Trump from Robert Mueller’s findings about Russian interference in the 2016 election or the president’s apparent efforts to inveigle the Ukrainian president into investigating Biden, the attorney general now has drawn a line, seemingly speaking to his audience of one — the president.
Why, though, did he draw that line here? Hard to say. It would be unfair to suggest that Barr is the first attorney general to take positions intended to advance the personal agenda of the president he serves — although Barr has been far more obvious about it. John F. Kennedy, for example, appointed his own brother as attorney general. Yet Barr has proven to be even more loyal than Robert F. Kennedy ever was — that is, until now. Even a Kennedy admirer, as I am, can’t imagine RFK having told his president (publicly, that is) that he wouldn’t be investigating or prosecuting Richard Nixon any time soon if the Kennedys thought that Nixon may have committed a crime but was intending to run again in 1964. So what’s up with Barr?
Now, it can’t be that this “line-drawing” was actually a “commissioned” statement of principle by Barr — that he had gotten the okay from the president who wanted America to know that his attorney general was not his political puppet. And it can’t be that the president believed that it was strategically wise to demonstrate to the electorate that his attorney general was totally non-political. After all, Trump’s immovably loyal base likely has no interest in his attorney general making decisions that appear to be totally down the middle.
So maybe it’s something different altogether. Maybe, reading the tea leaves, the attorney general is actually doing the president a favor, whether the president appreciates it or not. He is laying down a placeholder for what has been the history of the United States: Unlike in banana republics, the United States simply doesn’t prosecute its former presidents once they leave office.
George H.W. Bush wasn’t investigated by the Clinton Justice Department for any role he might have had in Iran-Contra; Bill Clinton wasn’t prosecuted for his role in any numbers of crimes (although he was indeed investigated post-presidency over his midnight pardons); George W. Bush wasn’t investigated for misleading the nation over supposed weapons of mass destruction in Iraq; and, of course, Nixon was pardoned by Gerald Ford after a mere month in office and never had to face an attorney general appointed by a Democrat successor.
If Barr were to choose to pursue Obama for any perceived involvement in the origins of the Trump-Russia investigation and then Trump is defeated in November, where would that potentially leave Trump? Possibly, it would be climbing the steps at Foley Square headed toward an arraignment with a new U.S. attorney nominated by Trump’s successor — presumably Biden, who announced last week he wouldn’t pardon Trump. And this is where Barr may have had true foresight — a “principled” statement of refusal to investigate Obama paves the way for a refusal to investigate Trump when he leaves the White House. Was this all a coincidence?
This may sound very cynical, basically accusing the attorney general of being strategic in making a public statement about which Obama/Biden supporters must be ecstatic. After all, they can take comfort in no elongated investigations that would place everything Obama or Biden have done, publicly or privately, under a microscope — with constant leaks to the media about the investigators’ findings.
Truthfully, I tend — or want — to accept that Barr sincerely drew a line in the sand this time around. The problem he must overcome, though, is the public’s suspicion about why he drew a line so close to the water’s edge that easily could be overrun by an incoming tide of the president’s reaction. Will the line turn out to have been drawn on shifting sand? We’ll have to see how the president reacts — as he certainly will in some way — and whether Barr’s position will in fact shift.
Joel Cohen, a former state and federal prosecutor, practices white-collar criminal defense law as senior counsel at Stroock & Stroock & Lavan. He is an adjunct professor at both Fordham and Cardozo Law Schools in New York.