The Daily Beast is out with another breathless account of the sycophantic, corrupt influence of Attorney General William Barr. The article entitled “Barr Reportedly Told DOJ Officials to Try and Undermine Michael Cohen’s Conviction” adds the subheading “The attorney general insists, meanwhile, that it’s nothing but a ‘media narrative’ to suggest he’s acting in the president’s personal interests.” The article bounced off a piece in the New York Times. The thrust of both the headlines and the story capture the total decoupling of reporting from factual or legal foundations. It could be denounced as a hit job but it completely misses its mark.
At the outset, as I have previously done, I should be clear that I have known Bill Barr as a friend and as a client for 30 years. I also testified at this confirmation hearing.
This story however is demonstrably off base but all too common in the coverage of Barr. The story states that
“The same day that Attorney General William Barr insisted there is “no pattern” of him working to advance the personal interests of President Donald Trump, several sources cited by The New York Times said one of his first moves after being sworn into office in early 2019 was trying to find ways to undermine the conviction of longtime Trump fixer Michael Cohen.”
The story says that Barr questioned whether Cohen should have faced criminal charges rather than a civil complaint in such a financial case.
Let’s take the New York Times story as true, and I have no reason to doubt its account of such sources. What would that mean?
The Daily Beast repeatedly refers to Cohen as a close friend and confident of President Trump without mentioning once that, when Barr raised these questions, Trump despised Cohen and openly celebrated the conviction of Michael Cohen. The only person who would been more upset by the undermining of Cohen’s conviction than the lead prosecutor would have been President Trump. By that point, Trump was heralding the conviction and rejoicing in the Cohen going to jail.
The coverage in both publications does not seek any opposing view on the underlying legal issue. For that reason, readers were never told that Barr has a long-standing position against such expansive reading of the criminal code on such offenses. I realize that the New York Times has apparently resolved to bar opposing views from its editorial pages but it would be heartening if a modicum of balance could be retained in its reporting.
Indeed, in the confirmation hearing, I noted to the Senate that Barr, as a private citizen, contacted the Justice Department to contest the charges against Sen. Bob Menendez (D., N.J.) on the basis that the matter should not be treated as a criminal offense. He had no connection to Menendez. He was concerned about the unwarranted extension of the criminal code.
This objection raises some of the same general issues in the criminalization of matters that Barr believes should fairly be addressed as civil matters. As I have previously stated, Barr is someone obsessed with the law and its proper administration. He is liked by many of us because he is honest and direct. When he believes that there is an error in legal interpretation, he will tell you.
Now let’s get to the Southern District of New York. In a recent exchange with former acting Attorney General Stuart Gerson on Barr’s tenure as Attorney General, my friend Stuart made a true and telling observation. He said that some of these disputes are likely the result of Barr’s view of central control of Main Justice over U.S. Attorney offices. That is true. The New York Times article suggests that there is something terribly alarming about an Attorney General or Main Justice questioning the legal interpretation used by trial attorneys in a high-profile case. Barr, who previously served as Attorney General, does not buy that these offices are some form of independent contractors or that the SDNY is somehow an anointed “special” place within the department. Neither does the U.S. Attorney’s manual. The Department rules clearly lay out that these offices must follow the directives of Main Justice on the interpretation of laws and the coordination of cases. Period.
Now back to the Daily Beast article. The article highlights that “Despite insisting he treats all cases equally, [Barr] apparently could not name a single case not tied to the president’s inner circle where he had staged a last-minute intervention similar to that in the Flynn case.” The suggestion is that this is another such case. Again, the story outruns the law.
In Flynn, Barr and Main Justice intervened at the sentencing stage, a move that is rare. I have already addressed my view that the prosecutors were wildly off base in their original sentencing and the ultimate sentence of 40 months fell in line with amended recommendation. The original sentencing memorandum asked for 108 months. That was a last minute change. Cohen was not. Barr allegedly asked the prosecutors to reconsider their interpretation. There was no filing with the court or “intervention” to scuttle the case.
The main problem however is the fact that the article is suggesting that such an inquiry would please Trump. While Trump did originally speak in defense of Cohen, he had become persona non grata in the White House. Trump would have been furious to know that Barr was doing anything that might question Cohen going to jail. Barr was raising the same type of finance issues and code interpretation that he raised with regard to the Sen. Menendez. Was he also currying favor with Trump on the Menendez case when he was seeking to raise such issues before he became Attorney General?
For over a year, Trump was calling for a long prison term for Cohen and mocking efforts to reduce his time in jail. In December 2018, he tweeted “Michael Cohen asks judge for no Prison Time.” You mean he can do all of the TERRIBLE, unrelated to Trump, things having to do with fraud, big loans, Taxis, etc., and not serve a long prison term? He makes up stories to get a GREAT & ALREADY reduced deal for himself.”
Barr was confirmed on February 14, 2019. Just a week later, Trump was denouncing Cohen as “lying in order to reduce his prison time.” Barr however was not convinced that Cohen should go to jail on the financial counts. He was so slavishly trying to please Trump that he was questioning the prison time that Trump was celebrating and seeking “a legal memo casting doubt on the legitimacy of Cohen’s conviction.”
Notably, the more interesting question was not addressed. Rather than ask whether such questions would help a friend of Trump (who was actually his greatest nemesis), it is fair to ask whether it could help Trump. That case however would be attenuated and complex to make. Trump has always contested that such campaign finance violations are crimes. He is not alone however in that view. There was a great deal of debate among lawyers as to the case law supporting such claims. Barr’s position however has much longer and deeper roots than Trump (who has argued that a wide range of conduct is not only noncriminal but entirely appropriate over the objections of many, including myself). That would seem relevant to these stories.
Moreover, I have previously stated that Cohen’s plea to the campaign finance violation could be used against Trump. Yet, the fact is that such a risk is limited. First, the statute of limitations is five years which could conceivably allow a charge after the President leaves office (I have maintained for many years that presidents can be charged with crimes in office). Yet, it would be difficult to nail a client on such a violation when lawyers have told him that it was an appropriate payment. It is also not likely to present a serious threat of jail time. His sentence was driven largely by the tax counts. Cohen plead guilty after being charged with eight counts tax evasion (Counts One through Five), making false statements to a financial institution (Count Six), and campaign finance offenses (Count Seven and Eight). (He was separately charged with one count with making false statements to Congress) in another action. Prosecutors sought enhancement of the sentence because of the “sophisticated means” used as a lawyer to conceal with crimes, including the campaign finance violations, as a “special skill” aggravator. The campaign finance plea was widely viewed as an add-on to the primary prosecution for evasion. There is a risk to Trump in campaign finance but it remains comparatively slight on the current record. The failed prosecution involving former Democratic presidential candidate John Edwards illustrates the difficult of such cases.
The point is not that my view is the only possible take on this story. The point is that it is a countervailing view that is entirely missing from the New York Times article and the Daily Beast column. Instead, the Daily Beast suggests that Barr was seeking to please Trump by questioning the prosecution of the man most despised by Trump. That simply did not fit the narrative and thus it was deemed not relevant by either publication.
This is the daily beast that Barr faces from the media. There are ample objections that can be made to Barr’s policies. I have criticized him for some of those policies and, as I detailed in my testimony, we have disagreed for decades over aspects of constitutional law and executive power. However, this story is another example of the narrative out running the facts and the law in coverage.