Bill Barr unplugged

BYRON YORK: We’re talking not long after John Durham lost the second trial case that he has brought. There’s a lot of speculation about whether he’s finished bringing cases. What do you think of the Durham investigation so far?

WILLIAM BARR: Well, I thought it was an essential investigation because I thought it became very clear that the issue wasn’t whether there was collusion with Russia by the Trump campaign. The real question was how this false narrative got started and why people doubled down on it after the [2016] election and when they knew that it really was nonsense. And so I think he is getting as much to the bottom of it as anyone could and I think, ultimately, will write a report, which is what I asked him to do.

And if cases could be made along the way, then I wanted him to make those cases. I’m disappointed that we haven’t prevailed in those cases. But to me, it shows what I’ve constantly tried to remind people, which is there’s a gap between what people, based on the circumstances, may surmise happened and what you can actually prove beyond a reasonable doubt happened.

YORK: Now, there is some part of the Right who hoped to see James Comey in an orange jumpsuit. Something like that was never going to happen, but do you think these cases that were brought against Michael Sussmann and Igor Danchenko really got to the heart of the matter that Durham is investigating?

BARR: Well, you know, I was hoping that there’d be accountability at the FBI because I think the behavior of the leadership of the FBI during 2016 and the first part of 2017 has been catastrophic. It harmed the country, it was completely unfair to the president, and it has completely undercut the FBI.

So I was hoping for accountability there. I don’t agree it would never happen. I just tried to explain to people that when you’re going to charge — in order to pursue a government official for a crime when that official is performing their duties and doesn’t do anything that is facially criminal, you need very strong proof of corrupt motives. And absent that, there wasn’t going to be any case.

YORK: You just said there was terrible behavior at the FBI. Could you give me the short version of what it was?

BARR: Well, in July [2016], before the election, they pounced on the flimsiest pretext, on the idea that there was collusion between Trump and the Russians, which is something the Clinton campaign was trying to whip up. And they jumped on it. I don’t think there was a predicate for them to do it. And they started this investigation of the campaign.

YORK: The Crossfire Hurricane investigation.

BARR: Crossfire Hurricane. And then they used what they should have known was a deeply flawed document, the so-called Steele dossier, to go and get a FISA application. And they ignored exculpatory information prior to the election.

But I think the most serious activity happened after the election. By that time, it had become clear to them that the dossier was garbage. And they doubled down on this case. And Comey announc[ed] pretentiously to the Congress that he had Trump, the campaign, under investigation. It throttled the administration, and I still believe that it’s inexplicable behavior. It’s hard to explain that.

YORK: And what are the top two or three things that you’ve learned specifically from the Durham investigation?

BARR: I don’t know if I want to get into the details, but I think he fleshed out the role that the Clinton campaign played and the responsiveness of the FBI to this dirty trick, essentially. And I think he also exposed, in both of these cases, very troubling behavior by the FBI in essentially trying to explain away information that didn’t fit into their apparently preformed narrative. And so it was very troubling, but troubling doesn’t mean you can actually get a guilty verdict, which I think people have to understand.

YORK: Last thing about this case. You talked about these acts taken by people at the highest level of the FBI, which really did create, certainly in Trump supporters, a lot of distrust of the FBI, hostility toward the FBI. Do you think there has been any accountability for that?

BARR: No.

YORK: Do you think there will be any accountability?

BARR: Accountability in the sense of criminal or civil penalties? No.

YORK: Even reputational damage? Some sort of accountability?

BARR: Well, reputation in this country is largely under the control of the mainstream media, which likes to overlook these kinds of sins. But I think the story will be told, and maybe in a more sober age (laughs), people will appreciate how destructive and damaging to the country this was.

I also feel that Durham’s case shows that the politicization doesn’t necessarily stop at the top. Like most institutions in our country, like most agencies in the government, like many professional organizations, press, medical, science, [the FBI is] being slowly politicized. And I think it is ruinous to the country, and the next Republican administration is going to have to clean things out.

YORK: I want to switch now to the Jan. 6 investigation, the biggest investigation the Justice Department has ever brought — more than 800 people charged so far. Is this the way they should have gone about it? Do you have any concerns about the charges or the sentences or anything that you know about?

BARR: I think people who use violence against police officers, people who used violence to breach the Capitol, didn’t leave when they were told to, and so forth — those people should be prosecuted. I don’t know enough about the individual cases to know how much overkill there is, but what I will say is my criticism has more to do with the differential treatment. In other words, it’s hard for me to criticize an aggressive effort to punish people who did what they did in the Capitol if they were involved in violence and knowingly entered the Capitol when they knew they shouldn’t do that. But why wasn’t this done with the same glee after the riots in the summer of 2020, where we were pushing elements of the Department of Justice to arrest and prosecute the ringleaders of what was going on? For example, in Portland, where the media were absolutely silent, the Democrats on Capitol Hill were absolutely silent, but you had over 100 days of vicious attacks on a federal building, the attempt to maim and hurt and blind U.S. Marshals, a handful of U.S. Marshals who were protecting the court building. And this was represented as a federal invasion of Portland. But anyway, part of the double standard in the department, and there is one, is the energy and vigor which they will release whenever they’re going after people that they perceive on the Right and the excuses and inertia to constantly explain away the same kind of conduct on the Left, which they don’t pursue or it’s very hard to get them to pursue.

YORK: Well, you were the attorney general until December of 2020. As far as these riots from the summer of 2020 are concerned, did you push as hard as you could have as the attorney general … to prosecute these people?

BARR: Yes, I did. Part of the problem also was making the arrests stick because most of the judges out there, both state and federal judges out there, were completely against any tough enforcement effort. There was also a difference, by the way, which is antifa knows how to play the seam between the First Amendment activity and rioting. And they disguised themselves, they go out in the middle of the night, they’re all wearing the same outfit, they have masks and so forth, and sometimes it’s very hard to get probable cause to arrest the right person who’s been throwing a brick or something. The people on Jan. 6 go marching into the most highly photographed place in the United States, all wearing distinctive clothing and most of them not having masks on, so it was relatively easy to make those cases. Had the antifa people did that in Portland, it would have been much easier to prosecute them.

I’m just saying that the vigor — you know, “This is the greatest effort in prosecution in Justice Department history,” throwing millions of dollars on it — they don’t pay the same attention to left-wing rioters and threats.

YORK: Now let me switch to the other part of the Jan. 6 investigation, and that is the people in the extended Trump team. You’re familiar with the Eastman memo, the idea of getting competing slates of electors, and the elections in several states where Republican officials created alternate slates of electors in the event that, somehow, Donald Trump prevailed in his court challenges, which never happened. Do you think there’s a crime in all that?

BARR: What I’ve said on that is that if there’s a crime on Jan. 6, other than the people who went up to the Hill and used force to get in, it would be in the nature of a conspiracy to use force, violence, to delay or stop the count, to disrupt the normal process. And if that conspiracy can be shown, if there were people other than the ones who went up to the Hill that had this idea that they were going to rely on the violence to stop the count, then there could be a crime.

YORK: And the crime would be —

BARR: Obstruction of the governmental process. And seditious conspiracy. Seditious conspiracy includes not just overthrow of the government, which I don’t think was — you know, I think it’s a little bit melodramatic in this context, but I think it also includes the use of force to disrupt a government process.

YORK: Have you seen any evidence of that from Trump or members of his team at that time?

BARR: I’m not going to speculate about that. I haven’t seen sufficient evidence at this point. It hasn’t been made public — because I don’t have inside information.

YORK: Well, we know what the rioters were doing, and we know that a lot of the violence seemed to have just sprung up of the moment. That is, they picked up something and hit somebody with it — it was an organized attack. And we do know that President Trump was watching this and that a lot of people around him were sending him messages, “Please, come out. Tell them to stop. Tell them to leave.” But he didn’t do that for a long time because he liked that they were fighting on his behalf. So, how does that fit into the description of a possible crime that you just made?

BARR: Basically, I think to get a crime out of this, outside of the people that were actually up on the Hill doing this, you would have to show a conspiracy to disrupt the count. Now, I actually think from a political standpoint, and from a moral standpoint, the apparent behavior of the president while he sat there and did nothing while he knew this was going on is very discreditable, but it doesn’t necessarily amount to a crime.

This, again, shows the difficulty when you use the criminal justice process within the political context. A lot of the Democratic base believes that this thing was horrible and involved criminal activity, and they want a scalp and they want the president prosecuted. And the job of the attorney general and the Justice Department is to not bring cases unless they actually have good evidence that’s sufficient to sustain a conviction for a crime, and that’s going to be the difficulty facing Merrick Garland. At the end of the day, I’ll be surprised if they bring a case against President Trump for Jan. 6.

YORK: Others, perhaps?

BARR: Perhaps others, yes.

YORK: Now, you just mentioned Merrick Garland, who was going to be my next question. How do you assess his performance so far?

BARR: I basically have sworn off any assessment of his performance. I just think he should not have a former AG sniping at him or criticizing him. Unless something really significant pops up, I’m just not going to comment or give him a grade or anything like that.

YORK: Should Christopher Wray remain as the director of the FBI?

BARR: The question really is always: Who will be put in that office rather than Chris Wray? Now, I will say that I thought Chris Wray did a good job as FBI director when I was the attorney general, and I don’t have problems with his performance. I also felt that even if I did, the alternative was to try to find someone who could be confirmed as a third director in three years for the FBI, and who would have been confirmed at that juncture after the election? After the 2018 election, who would have been confirmed? Who would have been a net improvement? I can’t think of anybody. So, as I always tell people, as opposed to what? Right now, I’m not sure what we would get if [Wray] were to step down as the FBI director.

Chris Wray was a Republican, held office, understood Republican administrations, and I think he is trying to do the best he can with a very difficult agency to run. You have to remember that he’s the only political person, political appointee, in that building. The rest of them are career FBI agents. Now, I do think that there has to be some change there, and the time to assess that is if and when the Republicans win the next presidential election. And part of the agenda is to make sure there’s a plan of action for restoring integrity to the FBI.

YORK: There are multiple investigations of former President Trump going on. I think there have been news reports of three in the Justice Department — the documents investigation, the Jan. 6 investigation, and perhaps one into his post-presidential fundraising. Then you have an investigation going on by the Fulton County district attorney in Georgia. You have the big lawsuit in New York state. You have the Jan. 6 committee. Is this overkill?

BARR: Yes. I mean, collectively, of course it’s overkill.

YORK: But if each one of [the investigations] is legitimate in its own sense, are they still collectively overkill?

BARR: I do think there’s a legitimate basis to look into Jan. 6 and to see if there was a plan to disrupt Congress. That’s a legitimate inquiry. I don’t think that’s going to get to the president, myself, President Trump, but I don’t know all the facts. On Mar-a-Lago, I think there was a basis to look into that, too. The civil action in New York was a political hit job. It’s ridiculous. It was clearly an abuse of the process because [New York Attorney General Letitia James] was announcing she was going to get rid of Trump or go after Trump during her election. And they spent three years and millions of dollars on this thing when this is a real estate company getting loans from a big commercial bank that assesses the property itself. So I think that’s just a political hit job.

I think that’s overkill myself. I also am a little worried about going after the so-called false slate of electors because if this was, in fact, putting together people who would be ready if the challenge to the election results in that state had some merit and made some progress and that they would have an alternative slate ready to go — that doesn’t strike me as criminal.

No one was deceived by setting up these alternates. There was no official group that challenged the accreditation. You know, this wasn’t a situation where you had two different groups and it was hard to tell which one was legitimate under state law. So I think we have to be careful that we don’t try to make it a crime to contest election results. … You have to draw that line: legitimate First Amendment activity versus actual criminal conduct.

YORK: I want to talk a little bit about 2024, about who you think might be in the Republican field and what they might do in the area of the Justice Department. First of all, you have talked about the possibility of Donald Trump running again, right?

BARR: Yes, I think he is tentatively planning on running. I think that’s his default position. I have no insight into that other than just my assessment from afar. And I’ve made clear that I think that would be too bad for the Republican Party. I think he played an important role in 2016, and his style, his disruptive sort of wrecking ball style, actually helped stop the march that the progressives had been on under Obama. But I think we have a huge opportunity, looking ahead to ’24, because the Democrats have moved so far to the Left.

We showed our frustration and anger at what was happening in 2016, and we disrupted the progressive establishment, but how do we actually make America great again? That will take more than a lame-duck 78-year-old coming into office who obviously seems to put a premium on revenge and payback and who, in my mind, doesn’t have the strategic sense to really construct a unified party and a subsequent agenda that will provide durable results.

YORK: Do you think a Trump run for the nomination would tear the party apart?

BARR: I think it potentially could, not because it has to — parties can have primaries without tearing themselves apart. But Trump, you know his game is essentially to say, “Look, I control a hardcore 30% of the Republican Party, and if you don’t give me the nomination, I’m going to take my ball and go home.” It’s essentially extortion. That’s how he leverages his base. And so I think there is the possibility of division.

YORK: Do you have a favorite in the current possible field out there?

BARR: No, because I like all of them, really, and I think all would do a great job. As a practical matter, I think the one at this point in best position to keep the party together, substitute for Trump, would be [Ron] DeSantis. Because I don’t think Trump can play the extortion card and say, you know, “You’re a RINO,” and try to get his base to reject a nominee. I don’t think he can pull that off on DeSantis.

YORK: Last question. If there is a Republican president after 2024, what needs to be done with the Justice Department?

BARR: Well, I think it has to be done with all agencies in government. There has to be a look at the civil service laws and other things that give a new administration much more latitude in moving people around and putting them deeper into the organization. And I think we have to move parts of agencies, including the Department of Justice, out of Washington, D.C.

YORK: In the Justice Department, what would you move out of Washington?

BARR: Oh, we already have. A lot of the FBI has moved down to Huntsville, Alabama — significant facilities down there. You keep the C-suite in Washington, D.C., so to speak. But companies do this all the time. There’s no need for a lot of these agencies’ rank and file to be in the Washington metropolitan area.

But at the end of the day, I think it takes a president who understands the problems of the department, picks an attorney general who can deal with them, and an attorney general who is strong enough to start taking the steps necessary to depoliticize the department. There has to be more latitude to shift people around. But you also have to remember that a lot of this is societal. The young people who go into law and go through American law schools have been taught that they have to use the law to achieve certain social goals. They come in with that attitude, and some of them are willing to put political objectives ahead of the institutional goals of the department, which are to be even-handed and not results-oriented.