Failure Is a Contagion
The blunders of the president and his ideological attorney general are destroying any illusion of control.
By the time Attorney General William Barr tried to fire Geoffrey Berman, the United States attorney for the Southern District of New York, over the weekend, the Department of Justice had become an extension of the financial and political interests of President Donald Trump. No act of politicization was too blatant for the country’s top law-enforcement officer. In a little more than a year in office, Barr has used his authority to protect Trump from two investigations: that of Special Counsel Robert Mueller, and then the House impeachment inquiry. He hatched his own investigation to discredit the first, personally traveling abroad to dig up evidence of a United States government conspiracy against the president. He intervened in prosecutions to try to keep the heat on a perceived Trump enemy, the former Acting FBI Director Andrew McCabe; reduce the prison sentence of one Trump loyalist, Roger Stone; and drop the case against another, Michael Flynn. He put his thumb on the scale of a civil case to hide Trump’s personal finances from investigators.
Finally, during nationwide protests earlier this month, he set up a command post in downtown Washington and ordered police to use force on largely peaceful protesters near the White House, clearing the way for the president to have his picture taken in front of a historic church.
When Barr became attorney general in February 2019, Washington insiders welcomed him as a return to professionalism after the chaotic tenure of his predecessor, Jeff Sessions. It was generally assumed that a lawyer who had served as attorney general under President George H. W. Bush, then spent two decades in the corporate world, would provide the steady hand of a mainstream conservative. The conventional wisdom was wrong, for two reasons. The first can be read in Barr’s own words, a long trail of speeches and writings leading up to his current turn as attorney general. As I explained in “How to Destroy a Government,” Barr’s views have always been extreme, in several ways. His idea of presidential power is so sweeping that he sees almost any independence within the executive branch as unconstitutional. But he is also a partisan, who’s willing to suspend this expansive idea of executive power when a Democrat is president. And his conservative Catholic worldview envisions a titanic struggle in contemporary America between Christian belief and nihilistic secularism, a struggle that requires law and justice to get off the sidelines and join the forces of light. This mix is volatile because it turns democratic politics into a clash of total systems, and compromise into acquiescence with evil.
The second reason so many experienced people got Barr wrong has to do with what happened to the Republican Party between the presidencies of George H. W. Bush and Donald Trump—its migration from “law and order” to the “deep state,” from The Wall Street Journal’s op-ed page to QAnon. As the base drifted into the fever swamps, some establishment Republicans moved with it, and conspiratorial thinking took root at Main Justice.
Trump’s aspiration to rank among the world’s strongmen has always been hindered by his own weaknesses of character—laziness, ignorance, lack of self-control—and the ineptitude of his henchmen. For a year, Barr seemed to be the most competent of them. Spinning the Mueller report as an exoneration of Trump with some success was a masterpiece of propaganda disguised as legal reasoning. But in the past two months, Barr has made mistake after mistake. His meddling in the Stone and Flynn cases was clumsy and transparently political. His role as secret police chief in Lafayette Square was a public-relations disaster that forced even him to make excuses. And when it came to getting rid of the U.S. attorney in Manhattan, Barr mismanaged the job so badly that he’s ended up with a replacement who, from his point of view, might be even worse.
In early 2017, Trump fired Preet Bharara, the longtime U.S. attorney in Manhattan. Berman, a former prosecutor and Republican donor to Trump’s 2016 campaign, was later named to the job on an interim basis by Sessions. But Berman’s nomination was never submitted to the Senate, in keeping with the Trump administration’s deep aversion to the exposure and independence that come with Senate confirmation. Instead, the appointment was made indefinite by order of the district court in Manhattan. Whether or not Trump thought he was hiring a loyalist (he always seems to think so), Berman turned out to be an apolitical prosecutor. He went after Michael Cohen in the Stormy Daniels hush-money scheme, and then, even more perilous for the president, he apparently opened an investigation into Rudy Giuliani’s activities on Trump’s behalf in Ukraine.
A long line of FBI officials, inspectors general, intelligence-community members, federal prosecutors, and National Security Council staffers can testify that Trump relishes the appearance of political meddling in legitimate investigations and will end the career of officials he regards as disloyal. Perhaps Trump wanted to get rid of Berman before the Southern District could issue subpoenas, or even announce charges against Giuliani, in the period leading up to November 3. If so, any U.S. attorney who succeeds him is unlikely to be able to destroy every trace of an ongoing investigation with career federal prosecutors looking on. Perhaps Trump was just fed up with Berman for not being loyal, and demanded his head. Trump always has more impulses than strategies.
Last Friday night, Barr claimed, falsely, that Berman had resigned. Jay Clayton, a golfing buddy of Trump’s who is the chairman of the Securities and Exchange Commission, would be the nominee to replace Berman, Barr said; in the interim, the job would go to Craig Carpenito, the U.S. attorney for New Jersey. But Berman replied that he had not resigned and would not resign. Because the attorney general has no power to get rid of a court-appointed U.S. attorney, Barr had to backpedal and enlist the president’s help. On Saturday, Barr announced that Trump was firing Berman at his request. Trump tried to sidestep the mess: “I’m not involved,” he told reporters.
As the president and his attorney general passed this bag of waste back and forth, their plan for the Southern District fell through. Because Berman is court-appointed, his interim replacement has to be his deputy, Audrey Strauss, the first assistant U.S. attorney. Strauss is a veteran prosecutor, respected by her peers, thoroughly versed in the cases that threaten Trump, and—though it should be irrelevant—a Democrat who donated to Hillary Clinton in 2016. Trump and Barr are stuck with her. It isn’t clear that either of them understood or foresaw this. The administration’s actions have always reflected a mix of malevolence and incompetence; these days, the balance is shifting toward the latter.
Even if Berman testifies before the House Judiciary Committee, we might never find out exactly why he was fired. But the reasons are less important than the implications: A president who aspired, with the help of an ideological attorney general, to exercise authoritarian power over his government is stumbling into blunders that are destroying any illusion of control, and with it the grounds for fearing him. The triple crisis of the spring of 2020—the coronavirus, unemployment, protests—and the elusive basement campaign of his Democratic challenger have Trump swinging wildly and connecting with his own face. All the tricks that once kept him on the offensive—rallies and purges, insults and race-baiting—are no longer working. Barr, who seemed so formidable just a few months ago, is flailing. Accomplices such as Senator Lindsey Graham (who made it clear he won’t allow Trump to ram a replacement U.S. attorney through the Senate Judiciary Committee) might be taking early steps to extricate themselves from a presidency that’s beginning to smell like defeat.
None of this means that Trump is going to lose in November, or that he will leave quietly if he does. Nor does it mean that the government he’s spent the past three and a half years trying to destroy is actually in good health and fighting back. Incidents such as the bungled Friday-night massacre are signs that the federal bureaucracy is still alive, not that it is well. But Berman’s defiance, like that of the retired military officers who recently criticized Trump, seems part of a larger collapse that will build its own momentum. Failure is a contagion.
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