One of the most frequently used words, including by me, to describe William Barr when he was nominated for attorney general was “institutionalist.”
Barr himself explained at his confirmation hearing that his goal in accepting the nomination was to “provide the leadership necessary to protect the independence and the reputation of the department. … I love the department and all its components, including the FBI - I think they’re critical institutions that are essential to preserving the rule of law.”
But Barr didn’t act much like an institutionalist this week.
Rather than “protect the independence” of the department, Barr dragged it into the middle of a political minefield Wednesday when he testified before the Senate that he believed the department had engaged in “spying” on Donald Trump’s campaign and that he had decided to reexamine it personally.
Barr’s attempts to walk back his mal mot did little to reduce the damage. That’s partly because the problem was more than a slip of the tongue. It was also his decision, however described, to reexamine the individual conduct of FBI and Justice Department officials who initiated the counterintelligence investigation.
Barr’s declaration signaled that he viewed that conduct as suspect - even though he said he had no evidence to support the suggestion. That gave a huge shot in the arm to Trump and Trump loyalists who have attempted to argue that Mueller’s probe was a meritless witch hunt ginned up by deep-state antagonists to the president.
It’s not that Barr’s review of how the counterintelligence investigation came to pass is necessarily illegitimate. If, for example, Barr wanted to convene a group within the department to review the procedures for launching a counterintelligence investigation, that would be consistent with the attorney general’s institutional role. Barr averred, however, that he had something very different, and dear to Trump, in mind - namely, “investigating the investigators.”
And predictably, Trump immediately took to the White House lawn to proclaim that the probe had been an “illegal investigation” conducted by “dirty cops.”
Another problem with Barr’s project is that the Justice Department is already doing its own investigation of the investigators, and this one is being carried out according to the established procedures for such oversight. The department’s inspector general has nearly completed his report on the conduct of the decision-makers. One would expect an institutionalist to respect and adhere to the department’s processes for determining facts and recommending action. But Barr apparently has decided to undertake his own ill-defined inquiry.
This self-manned mission, in addition to being irregular, threatens to cast a shadow on the work of the inspector general, who will be hard-pressed not to look over his shoulder in the expectation of what the boss is likely to conclude.
Finally, and not least, an institutionalist sticks up for his troops against unwarranted criticism. While Trump and company were lambasting the Justice Department and FBI frequently with attacks that were both toxic and bogus, Barr’s predecessor, Jeff Sessions, stood largely silent, provoking dismay among the career staff there. Barr’s arrival at the department augured a hard stop to the outrageous attacks.
Instead, Barr has breathed new life into them.
Barr’s testimony was a terrible self-inflicted wound. It let Trump and Trump loyalists at once trumpet the president’s innocence and smear the Justice Department and FBI with unsubstantiated charges. That is the opposite of his pledge to protect the independence and the reputation of the department. We can now expect a reinvigorated campaign from Trump partisans to respond to every damning detail in the Mueller report with broadsides against the probe and the department itself.
That can only distract from - or worse, undermine - the critical evaluation in Congress and the public of the conduct laid out in the soon-to-issued Mueller report.
Harry Litman is a columnist with The Washington Post.