At first glance, William Barr is a far more conventional choice for attorney general than Matthew Whitaker, who has been temporarily filling the role since Jeff Sessions resigned at President Trump’s request. Whitaker’s month in office has been marred by questions about whether he would interfere with special counsel Robert Mueller’s investigation into Russian interference in the 2016 election, which he had previously criticized. If Barr is confirmed quickly, his nomination will also end an ongoing legal debate about whether Whitaker’s appointment, which bypassed the usual succession order, was legitimate. Barr is an established figure in Washington politics, and if confirmed, this will be his second stint at the helm of the Department of Justice — he previously served as attorney general from 1991 to 1993.
But Barr’s appointment could still have big implications for Mueller’s investigation and criminal justice issues more broadly — depending on how similar he is to his two predecessors, both of whom will loom over Barr’s confirmation hearings. Barr, who has deep roots in the drug wars and has a history of pushing for tougher criminal penalties, might seem like an odd choice to lead the Justice Department at a moment when a bipartisan group of senators just succeeded in pushing Senate Majority Leader Mitch McConnell to bring a long-awaited sentencing reform bill up for a vote — an effort that the president has supported. But overriding concern about how Barr will supervise the Mueller investigation could allow him to escape significant scrutiny about the issues that will make up the bulk of his job.
How similar is Barr to Sessions?
As far as the Mueller investigation goes, Barr seems unlikely to follow in the footsteps of Sessions, who endured months of attacks from the president because of his decision to recuse himself from the Russia investigation. But there’s good reason to believe that Barr will continue and perhaps even expand Sessions’s hardline criminal justice tactics.
Over his 21 months as attorney general, Sessions embraced a “tough-on-crime” strategy, reversing Obama-era efforts to dial down the war on drugs and reduce the number of people in federal prison. Federal death penalty cases increased under his leadership. Criminal justice experts and advocates complained that Sessions was drawing from an outdated playbook that was unlikely to be successful at curbing crime or violence, but Sessions’ strategy persisted until the very end. On his last day as attorney general, he signed off on a policy that reduced the federal government’s oversight over local law enforcement agencies accused of misconduct.
Polling has shown that the public seems weary of these hardline strategies, which have also been largely undermined by decades of social scientific research.
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Shrinking support for a ‘tough on crime’ justice system
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Not tough enough
But Barr, who served as attorney general at the height of the tough-on-crime era, seems to have much in common with Sessions on this issue; Barr pushed for funding for border barriers and argued that the country was incarcerating too few criminals. And his views don’t seem to have changed over the years. In 2015, he signed a letter warning Senate leaders against a sentencing reform bill (a predecessor of the one currently pending in Congress), and just last month, Barr co-authored an op-ed “saluting” Sessions’s record.
All of this means that on criminal justice policy, at least, Barr will likely represent a continuation of Sessions’s tenure.
How similar is Barr to Whitaker?
When Trump announced that he would temporarily appoint Whitaker, Sessions’s chief of staff, to serve as acting attorney general, reporters quickly uncovered a wide range of critical comments made by Whitaker about Mueller’s probe, which he was suddenly tasked with overseeing. Then there was the matter of Whitaker’s background and qualifications — although he had previously been a federal prosecutor, his history with a Florida company accused of fraud raised some eyebrows. Reports that he had close ties to the Trump White House also fueled speculation that Whitaker was first and foremost a Trump loyalist who was appointed to stymie Mueller’s investigation.
Barr, in contrast, doesn’t appear to be as intimately connected with Trump. And there are no real questions about his qualifications to be attorney general, since he held the job once before. Like Whitaker, though, Barr has made critical comments about the Russia probe — most notably in the summer of 2017, when he suggested to The Washington Post that Mueller had chosen too many lawyers for his team who had made donations to Democratic candidates. He also defended Trump’s firing of former FBI director James Comey, which precipitated Mueller’s appointment, and said that there was more basis to investigate Hillary Clinton for potential wrongdoing around a uranium deal than there was to investigate Trump for coordinating with Russia.
Barr is sure to face questions about these comments at his confirmation hearings.18 It’s hard to know, though, how he might affect Mueller’s work. Some prominent legal experts have said they think that Barr is unlikely to stymie Mueller — regardless of his personal feelings about the legitimacy of the probe — because of his respect for institutional norms. But he is also known for a broad view of executive power, which may mean he has a limited view of whether a prosecutor can, for example, subpoena the president.
Arguably, Barr doesn’t have a completely clean record when it comes to supervising investigations like Mueller’s. He oversaw two independent counsel probes when he was attorney general, including the Iran-Contra investigation, which examined whether Reagan administration officials illegally sold arms to Iran and then covered it up. Barr reportedly considered firing the independent counsel in that investigation. And Barr later urged Bush to pardon six high-level officials implicated in Iran-Contra, one of whom was slated to go on trial for allegedly lying to Congress about the coverup. The pardons, coming in the waning days of Bush’s presidency, effectively ended the investigation. (Barr seems to have had a more hands-off relationship with the second probe, which examined influence-peddling under Reagan’s Housing and Urban Development Secretary, Samuel Pierce, and didn’t conclude until 1998.)
But let’s say Barr was chosen because he seems likely to take views about the investigation that favor the president. That was the apparent rationale behind Whitaker’s appointment too, and he seems to have been unable or unwilling to stop Mueller’s investigation, which appears to be moving full steam ahead.
At another political moment, the fact that Trump has nominated another criminal justice hardliner just when several prominent Republican senators have thrown their weight behind a sentencing reform bill would raise some red flags. It would likely also raise questions about Trump’s commitment to criminal justice reform — which some have argued is shallow at best. But so far, discussions of how Barr would oversee the Mueller investigation have mostly overshadowed his record on criminal justice issues. That is to say, we can expect plenty of questioning about Barr’s stance on Mueller at his confirmation hearings — and maybe even some callbacks to Iran-Contra — and probably fewer questions about whether and how he’ll continue Sessions’ legacy.