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Top 5 Takeaways from Bill Barr’s Heated NPR Interview: ‘I Mean, Even the President Can’t Change Facts’

WASHINGTON, DC - JUNE 08: Attorney General William Barr looks on as U.S. President Donald Trump makes remarks as he participates in a roundtable with law enforcement officials in the State Dining Room of the White House, June, 8, 2020 in Washington, DC.

In a wide-ranging interview with NPR on Thursday, Attorney General Bill Barr assumed responsibility for actions taken in the Roger Stone and Michael Flynn cases and the firing of Geoffrey Berman in the Southern District of New York. He also waved away the so-called whistleblower testimony of former Mueller prosecutor Aaron Zelinsky as “double hearsay.” The back-and-forth was at times a little snippy (listen to it for yourself here).

Here are the top five takeaways.

1. Barr takes ownership of the Stone, Flynn, and Berman controversies.

NPR’s Steve Inskeep began by asking about the limits President Donald Trump’s authority to get involved in cases where he has personal interests (e.g., former National Security Advisor, longtime friend and advisor, U.S. Attorney in SDNY whose office prosecuted Michael Cohen and has been investigating Rudy Giuliani). Barr slammed on the brakes and made one thing clear: “these were cases of me acting.”

Barr went on to say that “[t]here was a lot of hinky stuff in the Flynn case” and “Everyone knew that.”

“Everyone was wondering, why was this case ever brought?” Barr said. “We actually went back and found documents that showed that there were a lot of irregularities in what the FBI did. And in fact, when this case was being argued in the appellate court, the appeals panel pointed out, ‘Hey, if there were irregularities here, it isn’t what Justice Department is doing now, it’s what they did when they indicted Flynn.’ So I would say that justice was, is being done in that case. I would also say that the same is true in the other case you mentioned, the Stone case. He got the sentence that everyone else would have gotten for that conduct. That’s justice. That’s the rule of law, treating like people alike.”

As for Berman? Barr said that Berman was “living on borrowed time the beginning.” Therefore, when a “really strong, powerful” man who has never been prosecutor “raised his hand” it was a virtual no-brainer to send Berman packing.

“The president had never made an appointment to that office. Geoffrey Berman was interim. He was appointed by the court as a temporary U.S. attorney holding the fort,” Barr said, inaccurately describing the nature of Berman’s appointment in the SDNY. “He was living on borrowed time from the beginning.”

“And when a really strong, powerful candidate raised his hand, that is Jay Clayton, currently the chairman of the S.E.C., a prominent New York lawyer from Sullivan and Cromwell, very well-known and highly regarded, an independent, and he said that he was prepared to leave the government, was going back up, wanted to go back up to New York but very much would desire this job, I view that as an opportunity to put in a very strong person as a presidential appointment to that office,” Barr said.

Barr said that people who think there was an ulterior to the Berman personnel decision are “conspiracy theorists.”

“I certainly was aware that given the current environment, anytime you make a personnel move, you know, conspiracy theorists will suggest that there’s something, there’s some ulterior motive involved. But I felt this was actually a good time to do it because I was not aware of anything that should in reality, give rise to that,” Barr said.

This brings us to Roger Stone and Aaron Zelinsky’s account of DOJ’s intervention in the Stone sentencing recommendations.

2. Barr dismissed Zelinsky’s Wednesday testimony as “double hearsay,” calling much of what he said “simply false.”

In his opening statement, Zelinsky said that the Roger Stone case was the only case he’d ever seen political influence play a role in prosecutorial decision-making, that former Barr aide and then-interim U.S. Attorney Timothy Shea was “afraid” of the president, and that Stone was treated “differently and more leniently” because of his relationship with the president.

Barr said Zelinsky didn’t really bring anything to the table.

“Right. Well, the supervisors have said that much of what he said simply false. So, [crosstalk] and the statements he made, he said were, he admitted were double hearsay. He had no direct information. He had never talked to anyone involved in the decision, whereas I actually made the decision,” Barr said. “I was the decision maker in that case because there was a dispute. And usually what happens is, disputes, especially in high profile cases, come up to the attorney general. It’s not unusual for there to be a dispute in a high-profile case and for it to be resolved by the attorney general.”

Barr said he never discussed the Stone sentencing with Trump and that the decision to modify the sentencing recommendations came before Trump angrily tweeted about a “miscarriage of justice!”

Barr said that Stone “doesn’t deserve a break, but he certainly doesn’t deserve to be treated, and singled out, and treated more harshly than everyone else.”

3. Barr, when asked about his view on the unitary executive theory, says: What about governors?

Barr said that his understanding of presidential power is that it’s a “limited office,” on which there are many checks. He wondered why people are so concerned about federal executive power but silent on the subject of state executive power.

That was, what most experts on the Constitution would say, is that they, what was unusual is they actually created a very strong office, but they hedged it in with a lot of limitations. It’s not a king. It’s four years. It’s the only office elected by all the people of the United States, not just by a congressional district, but by all the people. It has inherently limited powers. Congress has most of the powers in the federal government. The president can’t raise money or anything like that. So all the limitations that the Whigs, the English Whigs, wanted to put on the king have been put on the office of [the] president, it’s a limited office. But in emergencies such as war, it has broad powers. And I have to say, Steve, one of the things that perplexes me about all these people who challenged me on the idea of executive power and its nature, they seem perfectly content to sit back and let governors, who are executives and have constitutions, make the most sweeping decisions about people’s livelihood. Basically, putting the entire population in home detention and telling people that they have to shut down their livelihood and their business. And they leave that to the discretionary decision of governors. And I haven’t heard the media at all saying, ‘Hmm this is a pretty broad use of power. Where does it say in the Constitution they have that power?’

4. Barr says Durham isn’t investigating Barack Obama or Joe Biden, dismisses idea that Trump will in any way determine the outcome of the probe.

U.S. Attorney John Durham has been tasked by Barr with investigating the Russiagate investigators. Barr said before that Durham’s investigation wouldn’t touch Barack Obama or leading Democratic candidate Joe Biden. Barr said that again on Thursday.

“All right. Well, as I’ve said a few times, no one under investigation in the Durham matter is running for president,” Barr said. “And I’ve said publicly that neither President Obama or Vice President Biden are under investigation. And I’ve also said I’m committed to having the American people have a free choice in this election between the candidates and I don’t want the Department of Justice to be interfering in that.”

Inskeep then asked if Trump, through his supervisory authority, would be pulling the strings on the outcome of the Durham investigation. Barr basically said it was an absurd question.

“To tell us how the investigation comes out? [crosstalk] An investigation of facts is an investigation of facts. I mean, even the president can’t change facts,” Barr said.

Barr said that it would be a “grave abuse” of presidential power for President Trump to direct an attorney general to indict someone without a predicate for doing so.

“And no attorney general would carry that out and be worth their salt. And I’ve said this in my confirmation. The president tells you to do something that has no legal basis like that, can’t be justified under the law, then the attorney general shouldn’t do it. The attorney general’s responsibility is to make sure that the laws are faithfully executed,” he said.

5. Barr, after pointing out the importance of legitimate predicates, was asked about widespread mail-in ballot fraud. He asserted that it was possible. Asked for evidence, he offered none and said it’s “obvious” because the ballots are “primitive.”

Attorney General Barr has repeatedly echoed and amplified the president’s opposition to mail-in ballots, suggesting that this would open the door to widespread fraud. While elections experts have said this is unfounded, Barr said that a scenario where “all ballots are essentially mail-in” would be “very bad.”

“Well, I think there’s a range of concerns about mail-in ballots. And let me just clarify here. I’m not talking about a mail-in ballot for a limited number of cases where somebody, you know, is going to be traveling around the world, and the way that the state has provided for that is, you mail in your ballot,” he said. “I’m talking about a comprehensive rule where all the ballots are essentially mail-in, and there’s so many occasions for fraud there that cannot be policed. I think it would be very bad. But one of the things I mentioned was the possibility of counterfeiting.”

Inskeep asked if Barr had evidence to support that. That attorney general said, “No, it’s obvious” because the ballots are “pretty primitive.” The exchange:

Inskeep: It’s obvious that it can be done.

Barr: Of course, we got to a lot of, why do you think we go to the problems we do in crafting single dollar bills?

Inskeep: Sure.

Barr: Because, make it hard to counterfeit. Now–

Inskeep: Do they not also go through procedures like that with mail-in ballots?

Barr: You’ve seen them. They’re pretty primitive.

Barr went on to suggest that botched stimulus check deliveries should make one ask: if you can’t even get stimulus checks right, how are we going to get mail-in ballots right?

“Personally, no. I mean, we just mailed out checks under this program. And what is it? I heard something like 20 percent or something were misdirected,” Barr said, before warning of people stealing ballots from mailboxes. “I know things can happen like that. Because I know people move, a very high percentage in the United States, people move all the time. And I also know that you can easily take things out of mailboxes.”

Bonus: Barr says many of the people currently under investigation by DOJ for rioting and destruction “do identify as Antifa.”

Inskeep referred to NPR reporting that said there was no record in DOJ proceedings of an Antifa connection to violence, despite Barr’s public statement that “there is evidence that antifa and other similar extremist groups, as well as actors of a variety of different political persuasions have been involved in instigating and participating in the violent activity.”

Barr said that the DOJ doesn’t charge people for “being a member of Antifa.”

“Yes, but when we arrest people and charge them at this stage anyway, we don’t charge them for being a member of Antifa. We charge them for throwing a Molotov cocktail, or we charge them for possession of a gun, or possession of gasoline and things to make bombs with,” he said. “Those are the kinds of charges that are filed. Even less sensational charges, such as battery. But we are building, we are obtaining information and intelligence about the operations of these people. Do you really? I mean, do watch the videotapes of these demonstrations?”

Barr said that videos showed “agitators in hoodies with earpieces, you know, distributing things to throw and things like that?”

“You don’t see that?” he asked Inskeep. “You don’t see people walking through districts with high-end stores, methodically breaking out the windows with sledgehammers or skateboards? Who are they?”

“Not break-ins and looting. This was not looting. No, no. You obviously haven’t been watching these videos as we have been watching them,” Barr said. The attorney general said there are around 300 active probes right now and that many of the individuals under investigation “do identify as Antifa”:

Well, at this stage, being a member of a group, and Antifa is really sort of an umbrella term [crosstalk] used for a number of groups. There are a number of groups that have specific names that we’re aware of that are Anti– that’s why I’ve said Antifa-type groups, that some of the people that have been arrested and some of the people that have been charged and some of the people that are under investigation, we have approximately 300 investigations right now, nationwide, do identify as Antifa. So I’m not sure, you know.

[Image via Doug Mills-Pool/Getty Images]

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Matt Naham is managing editor of Law&Crime. He formerly worked as news editor and weekend editor at Rare.