William Barr : A ‘Caretaker’ Attorney General Proves Agenda-Setting Conservative

In seven months as U.S. attorney general, William P. Barr has converted the Justice Department into an agenda-setting agency from a reactive institution, focusing on cutting-edge issues high on many Americans’ minds. These include violent crime, gangs, health-care fraud, tighter immigration controls and competition-stifling foreign cartels. He had a running start, serving as deputy to Atty. Gen. Dick Thornburgh for a year and a half and quieting the bitterness that marked Thornburgh’s management style.

Expectations were that Barr would be a caretaker during an election year, making few waves. Instead, one of his programs--weeding out criminal elements in a community and then seeding with social reform--has been elevated to a leading domestic policy. He does not avoid controversy, most noteworthy being the opinion he wrote, in 1989, saying there was nothing illegal about U.S. agents seizing fugitives overseas without the host country’s permission. When the Supreme Court recently upheld this, Barr gave the State Department and White House fits in hailing the ruling, while Mexico writhed.

Barr was 41 when he took over the nation’s top law job. During the modern era, only a President’s brother and the son of a Supreme Court justice managed to assume the nation’s top law post when that young. Barr, a bookish-looking son of educators who speaks with a muted New York accent, brought no special credentials. He earned bachelor’s and master’s degrees in Chinese studies and picked up his law degree at night school while working at the CIA.

He landed this powerful job through a combination of genuine smarts, his effectiveness as a idea-generating conservative and his winning way with people, especially those on the other side of policy arguments. But Barr also happened to be in the right place at the right time.

He has stumbled along the way: Taking part in a hyped press conference on gangs that resurrected a long-standing investigation, for example. His training as a lawyer gives him difficulty in responding to questions with short answers. But overall, he has won plus marks inside the Administration and has managed to re-establish civilized relations with Senate and House overseers.

Barr takes his favorite form of relaxation--playing the bagpipes--seriously. He takes pride in his reputation for veracity, but sometimes risks it--claiming, for example, that his wife and three daughters enjoy the pipe-playing.

Question: More than any attorney general since Elliot Richardson nearly 20 years ago, you came into office with a specific agenda. Have the developments in Los Angeles and the possibility of urban unrest across the country changed your priorities?

Answer: Not at all. In fact, I think the riot in Los Angeles underscored the importance of those priorities.

Q: You don’t find yourself making any shifts?

A: No. Violent crime is a high priority, the role of gangs, the problem we have in the juvenile justice system. These are things that obviously were related to the riots in Los Angeles and the whole problem we have in the inner cities. The importance of prosecuting the war on drugs, similarly, I think, is responsive to one of the real problems we have in our cities in the United States. Even in the civil-rights area, where one of my chief priorities has been in fair housing and in lending practices and mortgage practices, that’s very important to rehabilitate in the inner cities. The problem of immigration enforcement--making sure we have a fair set of rules and then enforce them--I think that’s certainly relevant to the problems we’re seeing in Los Angeles.

Q: Is the civil unrest in Los Angeles an aberration--one city with its particular pressures, perhaps police department style and a chief immune from the normal political process? Or is it symptomatic of urban unrest throughout the nation?

A: I wouldn’t want to predict similar incidents of urban unrest throughout the nation. I think the problems in the inner cities are nationwide. There is, in fact, frustration and, in some segments of our population, a certain hopelessness over circumstances. I think there was anger and frustration over the verdict in the Rodney King incident that certainly wasn’t limited to Los Angeles, but I do think that there were a lot of unique circumstances in Los Angeles that came together in a way that added to the combustibility of the post-verdict hours and contributed to the intensity and the scale of the violence in Los Angeles.

Q: On the Rodney King investigation, we’re hearing it’s taking longer than first anticipated and it will be not until at least August that anything is presented to the grand jury or there’s any kind of decision. Is this timetable on the mark?

A: I can’t specify how much time I think it would take. If we decide to go forward with indictments, then we want to be sure we have built a strong case that will prevail in court. Any time we’re taking now would be necessary to developing such a case. I am in contact with the prosecution team, have talked to them about the investigation they’re conducting and am convinced that they are proceeding as expeditiously as possible.

Q: What we ‘ re hearing is the investigators have encountered Garrity problems (officers being required to answer questions for an earlier internal inquiry with the guarantee that the information cannot be used against them as evidence or leads to evidence in a criminal prosecution).

A: I won’t comment on that.

Q: My reason for asking is the theory that there might have been some deliberate use of an administrative inquiry to stonewall the criminal--

A: I have no comment.

Q: I wanted to ask you about fairness and justice as they’re perceived in the minority communities. You testified recently that you did not see the nation’s criminal-justice system as purposely discriminatory or biased. How do you account for the large number of blacks in prison?

A: . . . My view is that, overall, I think our system is fair and does not treat people differently. Obviously, our national criminal-justice system is a diverse broad one, and incorporates state systems and county systems.

I’m not suggesting that somewhere in the system there are not people who are biased. But I’m saying, taken in its totality, the system seems to operate fairly. We should be vigilant and look for potential discrimination, and you can always make improvements in the system. But the empirical studies I see suggest that people are treated equally in the system. That is, if a black and a white are charged with the same offense, generally they will get the same treatment in the system, and ultimately the same penalty. There are some laws that may have a disparate impact on minorities--laws that are not intentionally discriminatory, but as a practical matter, impact minority populations more than others.

Let me give you two examples. One would be the mandatory minimum for crack cocaine, which is a very low threshold. Five grams of crack cocaine gets you a five-year mandatory minimum sentence. Because of the use patterns and distribution patterns of crack cocaine, that penalty falls heavily on minority populations. But it’s not because of discriminatory intent. It has a disparate impact.

Another example are the differences in the laws among different geographic regions or states. Many of the large cities, with a high proportion of minorities, are in states that have heavier penalties or tougher criminal-justice systems and are less apt to grant probation, more apt to impose stiffer prison sentences. The application of those laws in those states may have a disparate impact on minorities because there are more minorities. . . .

Q: Along with every other attorney general since the Ethics in Government Act was passed in ‘78, you’re no fan of appointing outside prosecutors. Yet you have named two special counsels of your own in particularly sensitive matters. Does this appointment by you of people who report to you, but nevertheless are outside the mechanism of the department, does that undercut your argument?

A: No, in fact I think it highlights the weaknesses of the independent counsel statute as it presently is structured. I think the problem with the statute now is that there’s no accountability. An individual is set up as a power unto themselves . . . I think there have to be some constraints.

Part of the constraints that exist in the Department of Justice are a set of policies, an institutional ethos about the proper role of a prosecutor, and the fact that we have here experienced prosecutors who see many cases and well understand the proper functioning of a prosecutor. What the statute does is set someone outside that milieu, not necessarily controlled by policies, not controlled or influenced by the ethos of the department, and with no accountability. No supervisor or anyone to make sure there’s no abuse of power going on. And unlimited resources. I think that any person concerned about civil liberties should be concerned about that kind of a structure.

I think what we’ve done here in the department, by appointing outsiders to come in and conduct independent investigations, is that on the one hand we’ve gotten a degree of independence to provide some additional assurance that an investigation is not going to be a whitewash or a cover-up, but at the same time, we’ve at least provided some degree of accountability by assuring that the attorney general still retains ultimate power to remove an individual who’s engaged in abuse, and also the individual has the ability of drawing resources from existing prosecutors who are familiar with the policies and the standards of the department. So you’re more likely to get professionally run investigations that are the same as what other citizens are subject to.

Q: When the act comes up for reauthorization later this year, will you oppose it?

A: No, I’ve already said I’m concerned about its current structure and we would be seeking changes to it, both to the trigger mechanism and also to the issue of accountability, also the selection methods, to be sure that people selected are familiar with the role of a prosecutor.

Q: You have certain qualifications, certain requisites which--

A: I haven’t drafted up a counterproposal, but I think we should look at something like that.

Q: The minute you try and solve the problem of accountability, aren’t you then on the edge of political control? Control by the attorney general, control by an appointee of the President committed to establish that accountability, and doesn’t that then defeat the purpose of the independent counsel in the first place?

A: I think it’s a question of striking the right balance. Also allowing, to some extent, political checks and balances.

Q: Could you be a little more --

A: For example, the Watergate independent counsel was also appointed by the attorney general and was not statutorily independent. Ultimately, the political process ensures that such an independent counsel will have independence.

Q: One thing you hadn’t mentioned, do you think the independent counsel should cover the legislative branch as well as the executive?

A: I think the same rules should apply to both branches.

Q: In the wake of the Machain decision, does the Supreme Court’s decision regarding the authorization of U.S. agents to seize fugitives overseas make these operations now more likely?

A: No, there’s been no change in policy. The Supreme Court opinion does not reflect any change in policy. As we’ve said all along, our policy generally is to cooperate with foreign governments.

Q: Were there any operations in this period since you wrote the rendition opinion as an assistant attorney general and the Supreme Court decision that you might have conducted but decided not to because it was up in the air?

A: No. None at all.

Q: Has the Administration ever considered implementing the rendition opinion?

A: There have been circumstances where we considered the feasibility of arresting someone overseas under circumstances that were governed by that opinion, but those situations were never really circulated outside of the department because they were not feasible.