Small “d” democracy

Setting the Bar(r) Too Low

As I pen this blog, William Barr has just been confirmed as the second attorney general of the Trump/Pence administration, on a mainly party line Senate vote, just as most of Trump’s other judiciary and Department of Justice appointments have been.

There are a couple of arguments why, despite what we already know about Mr. Barr (and what we don’t know), a long-time corporate lawyer and former attorney general for President George H. W. Bush, even liberals and progressives might be tempted to acquiesce in this action.

The biggest reason – the G.O.P. elephant in the room – is, “We’re not going to get a better nominee out of Trump and Pence” -- and he is preferable to Trump’s manifestly pliant and incompetent acting Attorney General Matthew Whitaker.

The bulk of public commentary has focused on Barr’s potential role in the Mueller investigation, which is, naturally, of extreme concern, since the president and his allies’ frequent attacks on the probe always threaten to turn the matter into a full-blown constitutional crisis.  The jury is still out on what to expect from Barr in that regard, despite his testimony that Robert Mueller is a personal friend and that he, Barr, favors letting the probe complete its work.

A friend of Mueller's, but....

Barr did not allow himself to be pinned down during his confirmation hearings on how much he would permit the American people and Congress to see from Mueller's final report, though he stated that he favored release of information “as far as possible”.  At one point, he criticized former AG Jeff Sessions for following the advice of the professional ethics staff of the Justice Department by recusing himself with regard to overseeing the Mueller probe (He “abdicated his responsibility”, stated Barr.) and said that he himself would not abide by such an ethics recommendation “if I disagreed with it.”  

It's also disturbing, given President Trump’s constant hints that he might pardon his convicted former campaign chairman, Paul Manafort and other convicted and indicted associates, that the confirmation hearings did not focus on Barr’s role, during his time as George H.W. Bush’s attorney general, in securing pardons for former Secretary of Defense Casper Weinberger and five others accused of wrongdoing in the “Iran-Contra” scandal.

And of course, there is the absence of any persuasive explanation from Mr. Barr for why he felt impelled to send an unsolicited 19-page memo in June 2018 to high level Justice Department officials attacking what he said he expected to be Robert Mueller’s legal theory on investigating a potential obstruction of justice charge against Trump -- and promoting a theory of executive power under which there is “no legal prohibition … against the President’s acting on a matter in which he has a personal stake.”  Barr admitted during his confirmation hearings that Mr. Mueller had not in fact advanced the obstruction theory he had attacked, acknowledging to Senator Dianne Feinstein, “I was speculating. I was writing in the dark…”

An unrepentant architect of mass incarceration

Suspected executive branch criminality aside, California Senator Kamala Harris and New Jersey’s Cory Booker got to the heart of Barr’s fitness to serve as the nation’s chief law enforcement officer -- exposing his lack of engagement, current knowledge, or empathy with respect to mass incarceration and the impact of the criminal justice system on the country’s minority communities.  Hearing Barr’s responses on these issues, one would not know that the United States, home to 5% of the world's people, incarcerates almost 25% of the world's prisoners.

Barr’s deficiency on these issues might not be so surprising if we recall that his approach to criminal justice during the George H. W. Bush presidency was summarized in a 1992 paper, “The Case for More Incarceration.” U.S, incarceration rates skyrocketed during Barr’s early tenure and afterward.  While Barr’s advocacy for mass incarceration in theory emphasized targeting violent offenders, the huge increases in incarceration rates during the Reagan/Bush years and afterward have actually been driven heavily by non-violent offenders, especially those caught up for drug offenses.  While Barr was not the author of the Reagan/Bush “war on drugs” -- which extended with full force into the Clinton administration -- he was an uncritical supporter.

During his first tenure as attorney general, The Los Angeles Times asked Barr to account for the large number of blacks in prison. “Our system is fair and does not treat people differently,” he claimed. He added that the five-year mandatory minimum sentence for the distribution of five grams of crack cocaine, a Reagan era law, a sentence equal to that of distributing 500 grams of powder cocaine – a chemically virtually identical drug - “not because of discriminatory intent,” but that the law simply “has disparate impact…because of the use patterns and distribution patterns” in minority communities.

In the same 1992 interview, Barr asserted that the disproportionate number of African Americans in confinement also stems from “differences in the laws among different geographic regions and states.  Many of the large cities, with a high proportion of minorities, are in states that have heavier penalties or tougher criminal-justice systems and are less apt to grant probation, more apt to impose stiffer prison sentences.” One would perhaps be more willing to credit this type of answer as a good intentioned disinterested response if we didn’t also know that in 1994, less than two years after he left the Justice Department, Barr served as co-chair of a commission created by the governor of Virginia, which recommended abolition of parole and construction of dozens of additional prisons in that state.

Continuing Down a Vengeful Path

It seems unlikely that Barr has moderated his views appreciably over the years.  Before and during his confirmation hearings, Mr. Barr has celebrated the “get tough” policies of Jeff Sessions, his predecessor in the Trump administration, including Sessions' abandonment of the Obama administration’s practice of negotiating consent decrees to reform local police departments with patterns of racial profiling and violence against civilians.  Although he has said he will support the recently passed First Step Act, which makes modest reforms to the federal sentencing guidelines, as recently as 2015 he was one of only two former attorneys general to campaign against the bipartisan Sentencing Reform and Corrections Act, which sought to address the currently excessive federal mandatory minimum sentences.  

As Senator Booker told a recent committee hearing, Barr responded to a written question on implicit bias in law enforcement by stating that he simply “had not studied the issue”, even though conducting routine training to recognize and overcome implicit bias has been part of the regular DOJ curricula for agents of the FBI, DEA, ATF and all the agency’s attorneys since 2016.  Booker pointed out that “there is no difference between blacks and whites in terms of using drugs and dealing drugs, and yet blacks are almost four times more likely to be incarcerated for it,” which makes Barr’s admitted ignorance [or perhaps, more properly, his unconcern] on this subject extremely distressing.

Sadly, the Barr ascension comes at a time when a large number of modest initiatives to influence our excessively punitive and bloated federal and state criminal justice system in the direction of common sense and human rights have grown increasingly popular, and have received significant bipartisan support at the grass roots level and among many public officeholders.  These include limitations on “stop and frisk” policing, significant progress in states to decriminalize marijuana use and expunge marijuana conviction records, abolition of the death penalty, diversion of those suffering from drug addiction from incarceration and into treatment, increased accountability of police forces to the public, as well as sentencing reforms, among other measures.

The appointment of William Barr tells us that Mr. Trump and his Republican enablers in the Senate are quite willing to reverse recent progress in easing the punitive and racist character of our justice system, which is to say, setting the bar for our nation’s chief law enforcement officer way too low.

Under the blog title Small “d” democracy, we will continue to weigh in on the current issues that define how our country can become a more just, equal and democratic society.

Mark Lurinsky Mark Lurinsky has been an activist on matters of public policy since 1968.  He is currently a member of BlueWaveNJ’s Electoral Reform Working Group and is co-chair of the Healthcare Committee.