The Washington pundit corps should spare us the lamentations about how poor William Barr, Donald Trump’s loyal but beleaguered attorney general, had destroyed his own great reputation and honor by lying and misrepresenting the Mueller report on Russian interference in the 2016 presidential election, giving the president a period of grace and vindication before the truth came out.
After he fired Attorney General Jeff Sessions, Trump needed a lawyer who was willing to step across the bright line separating the rule of law from political inveigling, a line that even the loyal Sessions had not been willing to cross to protect the boss. President Nixon’s attorney general, Elliot Richardson, and his deputy, William Ruckelshaus, had resigned in 1973 rather than cross that line. Robert Bork leaped at the chance to rescue Nixon and fired the independent counsel investigating the Watergate burglary. Bork was dead this winter when Trump needed him to replace Sessions.
He had announced his availability for the Trump job by writing that the Justice Department should not be investigating the president and also by offering a legal theory that was pretty close to Nixon’s premise that “if the president does it, it is not illegal.”
Barr performed the same service for an earlier president, not once but three times, the last one in some secret finagling in 1992 to try to blunt the presidential campaign of Bill Clinton, who was about to oust Barr’s boss, President George H.W. Bush. Arkansans have no reason to remember Barr’s role in trying to use the Justice Department and the judicial system to damage the Arkansas governor on the eve of the presidential election. Barr’s role was not divulged at the time, but it became transparent years later in the voluminous reports of the Whitewater independent counsel and of a Senate committee that spent years investigating the score of “scandals” that the original Whitewater inquiry produced.
At least one Arkansas Republican knew about it and now remembers it ruefully. Chuck Banks, who had lost a race for Congress for the GOP in East Arkansas 10 years earlier, was the U.S. attorney for the Eastern District of Arkansas in 1992, having been appointed five years earlier by President Reagan. As the presidential election neared, Bush nominated Banks for a vacancy on the federal district court, but because it was close to the election Banks’ nomination, like several others, was held up in the Senate, to see which party would control the White House and judicial appointments.
Both Banks’ job as the federal prosecutor and his elevation to the federal bench depended upon Bush’s defeating Clinton, as polls during the spring and summer showed was a near certainty. But Clinton had survived the Republicans’ big torpedo in the spring — Gennifer Flowers’ claim at a Waldorf hotel press conference to have had a 12-year fling with the governor — and by fall Clinton was in a virtual tie with Bush.
Barr, who was elevated to attorney general in 1991, had already rescued Bush from legal jeopardy in the Iran-Contra and Iraqgate criminal investigations. Reagan’s defense secretary, Caspar Weinberger, and five others were charged with complicity in the illegal shipment of arms and missiles to Iran and supporting right-wing rebels in Nicaragua or else lying about it all. Barr, who had been critical of the entire Iran investigation, urged Bush to pardon them all and especially Weinberger, who, hoping to stay out of jail, was about to testify that Bush, as vice president, had been aware of and involved in the Iranian arms deal. Bush then would have had to testify, but his pardon of Weinberger ended the investigation. Barr solemnly defended the pardons as the correct thing for the president to do. (Bush, like Reagan, would admit in his diary that he had been aware all along of the illegal Iranian and Nicaraguan deals.) As the AG, Barr also quashed a federal investigation of the Reagan and Bush administrations’ financial support of Iraqi dictator Saddam Hussein — specifically whether agricultural loans to Saddam were used, with Bush’s knowledge, to purchase weapons.
Thanks to Barr, Bush would never have to face something like a Mueller Report, a subpoena, a perjury trap or impeachment.
In the early months of 1992, as Clinton was launching his presidential campaign, Jeff Gerth, an investigative reporter for The New York Times, came to Arkansas to write a series of articles suggesting that the Clintons ran state government in the service of rich interests like the energy and financial barons Witt and Jack Stephens and Tyson Foods. “Wealthy Investment Family a Big Help to Clinton,” said the first Times story. Another, on the Times’ front page on March 8, reported that the Clintons had borrowed money and joined Jim and Susan McDougal in a venture to develop vacation property on the White River in remote Marion County. The article and the headline (“Clintons Joined S. & L. Operator In an Ozark Real-Estate Venture”) suggested there was something unethical about it because Clinton was governor and McDougal ran a big bank regulated by the state. Clinton was not governor at the time and McDougal was not a banker but a teacher at Ouachita Baptist College.
L. Jean Lewis, a low-level Republican employee of the Resolution Trust Corp., saw Gerth’s story and pulled up the files of McDougal’s by-then-defunct thrift. Banks had already prosecuted McDougal on multiple counts of bank fraud for his circuitous efforts to salvage the bankrupt company, but a federal jury had acquitted him in 1990. Lewis detected five checks that were written when the thrift did not seem to have sufficient funds to cover them and she thought that McDougal and his wife should be charged with check kiting. The RTC agreed to send the referral to Banks along with Lewis’ suggestion that the Clintons should be indicted, too, because she figured they probably knew about McDougal’s deceits. She named other Arkansas Democrats, including former U.S. Sen. J. William Fulbright and Lt. Gov. Jim Guy Tucker, as people of suspicion.
Banks passed on forming a grand jury. He had failed to convict McDougal for real crimes and he saw nothing remotely prosecutable in the referral. When Banks did not form a grand jury for the McDougal-Clinton crimes, the Resolution Trust Corp. contacted the White House. Bush’s Cabinet secretary and White House counsel Boyden Gray appealed to Barr, who, according to his own testimony later, was furious that Banks had not alerted him of a potentially criminal matter involving the Democratic nominee for president as the election was approaching. There were exchanges between the U.S. attorney, the Little Rock FBI office and the Justice Department with Banks explaining to the Justice Department on Oct. 7 that nothing in Lewis’s referral was prosecutable.
Clinton had moved ahead of Bush in polls. Barr gave Banks an Oct. 16 deadline — 18 days before the election — to take action or give him a convincing explanation for not doing it. Simultaneously, the Criminal Division of the Justice Department — run by Robert Mueller (yes, that one) — ordered the Little Rock FBI office to look into the matter.
Banks had recognized from the first that the object was political, not a question of justice. On Oct. 16, Banks sent a letter to the Justice Department and the FBI. This is what it said:
“The insistence of urgency in this case appears to suggest an intentional or unintentional attempt to intervene in the political process of the upcoming presidential election. You and I know that in investigations of this type the first steps, such as issuance of grand jury subpoenas for records, will lead to media and public inquiries about matters that are subject to absolute privacy. Even media questions . . . all too often publicly purport to ‘legitimize’ what can’t be proven.
“For me personally to participate in an investigation . . . amounts to prosecutorial misconduct and violates the most basic fundamental rule of Department of Justice policy. I cannot be a party to such actions.”
Subsequent investigations concluded that Banks was right that Jean Lewis’ complaint had no merit.
Banks knew that his letter to Barr ended his career as a prosecutor or a judge, regardless of whether Bush or Clinton won the election. It still rankles that Barr had said Banks had submarined a Republican president, but he is satisfied that he preserved his honor. For William Barr, not so much.