William Barr’s tenure as attorney general under President George H.W. Bush 25 years ago is receiving fresh scrutiny for clues about how he might lead the Department of Justice a second time if he is approved by the Senate.
President Donald Trump tapped Barr on Friday to fill the post left empty by his firing of Jeff Sessions last month. Matthew Whitaker has served as acting attorney general since Sessions’ ouster.
Whitaker was initially seen as a possible candidate to replace Sessions, but his track record of criticizing special counsel Robert Mueller’s investigation, as well as continued questions about the legality of his appointment, appeared to sink his chances.
Instead, Trump turned to a Washington insider with a long public service career that was capped by his stint as attorney general from 1991 to 1993. Trump told reporters Friday that he did not know Barr until “recently” but that the former attorney general was his “first choice from day one.”
Barr is “one of the most highly respected lawyers and legal minds in the Country, he will be a great addition to our team,” Trump wrote Friday on Twitter.
Before joining the Bush administration as attorney general, Barr worked at the CIA, at a private law firm and on the domestic policy staff in the Reagan White House.
Barr became known as a strong defender of presidential power while at the Justice Department and has expressed similar views recently as well.
Trump, who held a grudge against Sessions for recusing himself from the Russia investigation, reportedly asked associates for Barr’s views on the Mueller probe in recent days when he was considering nominating him for attorney general.
As deputy attorney general, Barr advised Bush that he had broad authority to use the military even without the support of Congress for actions like the invasion of Panama, which led to the arrest of dictator Manuel Antonio Noriega; later, as attorney general, Barr issued the same recommendation for the United States’ humanitarian mission in Somalia.
Barr weighed in on the issue of executive branch authority in other ways during his time at the Justice Department. In 1989, for example, Bush found himself at odds with lawmakers over the use of the so-called “pocket veto,” the term used for vetoes made when when Congress is not in session and cannot override the president.
Barr, who was assistant attorney general at the time, argued both at a congressional hearing and in a later C-SPAN interview that the president had the legal authority to use the veto broadly.
More recently, Barr wrote an op-ed in The Washington Post in 2017 backing Trump’s decision to fire then-Acting Attorney General Sally Yates. Yates had directed the Justice Department not to defend the president’s executive order to block immigrants from seven majority Muslim countries from entering the U.S.
In the same article, Barr said Trump’s order was “squarely within both the president’s constitutional authority and his explicit statutory immigration powers.” The Supreme Court later upheld a more limited version of the travel ban.
In 1991, Barr sailed through the confirmation process as the attorney general nominee: he received strong bipartisan support from the Senate Judiciary Committee and was ultimately confirmed on a voice vote by the full Senate. But he did stir some controversy with his views on abortion.
During his confirmation hearings, Barr said he did not believe the constitutional right to privacy “extends to abortion,” comments widely seen as a rebuke of the Supreme Court’s 1973 Roe v. Wade ruling.
But Barr also said at the hearings that Roe v. Wade was “the law of the land” and claimed he did not have “fixed or settled views” on abortion.
Joe Biden, the chairman of the Senate Judiciary Committee at the time, praised Barr’s candor on the topic at the confirmation hearings, noting that most nominees skirted abortion-related questions. “You should be complimented,” Biden told Barr.
Abortion policy was not a focal point during Barr’s tenure as attorney general, but his comments could resurface when Barr goes through the confirmation process again. The exchange could also cause problems for Biden, who is reportedly weighing a run for president in 2020 and has already come under fresh criticism for his handling of the Anita Hill hearings in 1991.
Criminal justice reform
During his time as attorney general, Barr established himself as a hardliner on crime, continuing policies that began in the Reagan administration and lasted into the 1990s under President Bill Clinton. Critics have long argued that the policies led to mass incarceration.
In 1992, for example, Barr’s Justice Department circulated a working paper titled, “The Case for More Incarceration.”
The New York Times reported at the time that Barr wanted the Justice Department to take a more aggressive stance and shift its resources to crack down on violent crime, with a focus on gangs, drugs and guns.
Barr’s views on the subject appear not to have changed over time. In 2015, Barr, along with 39 other former federal law enforcement officials, wrote a letter to the Senate urging lawmakers to reject sentencing reform on the grounds that it represented a threat to public safety.
His record has sparked concern from criminal reform advocates.
“It’s hard to imagine an attorney general as bad as Jeff Sessions when it comes to criminal justice and the drug war, but Trump seems to have found one,” Michael Collins, the director of national affairs for the Drug Policy Alliance, said in a statement.
But others praised Barr’s tenure at the Justice Department. Benjamin Wittes, a senior fellow at the Brookings Institution and an outspoken critic of Trump’s decision to fire James Comey, said despite some of his unpopular views, Barr was a “very fine AG.”
“He is a strident and ideological conservative but he is also a very fine lawyer and someone who I think would make judgments on the merits,” Wittes tweeted.
Barr’s views could put him at odds with Trump on criminal justice issues, though it’s unclear how any personal differences on policy would impact his handling of the job.
The president has backed a criminal justice reform package that would change the nation’s sentencing laws and reduced prison terms for some inmates. The chances the bill will pass before the end of the year are slim, however, and the issue could fade from the spotlight next year if lawmakers don’t reach a compromise before the new Congress.
Barr’s record on immigration is, in part, the result of the 1990 Immigration Act, which raised the limit of legal immigrants allowed into the country but also made it easier to deport people who were convicted of a crime.
Barr stepped up efforts to deport immigrants with a criminal record, turning the issue into a priority at the Justice Department under his watch.
“We will not tolerate aliens who come here to prey on the American people,” Barr said at a town hall event in 1992, according to the Los Angeles Times.
Barr also proved he was willing to use force when, in 1991, he ordered federal assault teams to storm a prison in Alabama where 121 Cuban inmates had taken hostages in an attempt to stop their deportation. The incident grabbed national headlines and became a test of the Justice Department’s handling of immigration and crime.
In the early 1990s, when Haitian refugees, some of who were infected with HIV, fled the violence caused by a coup d’etat and sought asylum in the U.S, Barr was an outspoken advocate for a policy banning them from coming to the U.S.
Congress had passed a law in 1987 barring HIV-positive people from entering the U.S. As a way to keep the refugees from entering the U.S. but also to avoid violating international agreements that require the U.S. to accept asylum seekers, the U.S. sent the refugees to a camp in Guantanamo. In 1993, a judge ordered the government to release the refugees.