by Ann Woolner
Now one of 13 House Judiciary Committee members named to prosecute the president, Barr's been using his old job as a credential throughout the impeachment matter.
He mentioned it again to give weight to a specious legal argument last month in the House Judiciary Committee's impeachment hearings when he said perjury indictments need not specify the statements alleged to be lies.
And later, while debating impeachment on the floor of the House, Barr said he knows about obstruction of justice "as a former United States attorney who directed the prosecution of a Republican member of this body for obstructing justice . . . ." He was referring to ex-Rep. Patrick L. Swindall, except that Swindall was indicted and convicted for perjury, not obstruction.
Putting aside these small misstatements of fact or law, there's another notable element to all of this. In becoming one of the House's prosecutors in the Senate impeachment trial, Barr has come closer than he ever came to actually prosecuting a case.
As U.S. attorney, Barr supervised prosecutors and served as chief spokesman for his office. All indictments were returned over his name, and he rightfully takes credit for allowing the prosecution of a congressman of his own party.
But as U.S. attorney Barr oversaw prosecutions; he did not actually do them, according to three of his former assistants and to my recollection as federal court reporter at the time. A spokesman for the U.S. attorney's office researched the question and turned up a longtime staffer who recalls one time Barr made a presentation in court, in the sentencing of a public official.
As best as could be determined in the absence of a call-back from Barr on the question, he never made an opening statement or a closing argument as a prosecutor. He never examined a witness, offered an objection or defended against one. This may be why his memory of the Swindall prosecution is vague -- he didn't actually do it himself.
Whatever trial experience Barr may have would have come not as a prosecutor but as a criminal-defense lawyer. He represented accused criminals for more than a dozen years, both before and after his stint as U.S. attorney (a fact not included in press releases or on his official online biography).
For a U.S. attorney, there is no shame in leaving trial work up to assistants. It's a big job to oversee nearly 50 lawyers, and it can't be done right if the boss spends all his time in a courtroom.
And yet, four of Atlanta's last five U.S. attorneys -- going back to 1982 -- have all tried at least one case each, Barr being the exception. (The two before Barr, Larry D. Thompson and Stephen S. Cowen, both prosecuted cases, as did the two after Barr, Joe D. Whitley and Kent B. Alexander. Current U.S. Attorney Richard H. Deane Jr., who took the job in March, says he has not prosecuted a case personally in his new job but expects to.)
To become one of the president's prosecutors, one need not have been a federal prosecutor at all, of course. Of the 13 House Judiciary members named to try the case in the Senate, only three, including Barr, are former U.S. attorneys. (The other two, Reps. Edward Bryant, R-Tenn., and Asa Hutchinson, R-Ark., did courtroom time as prosecutors, according to spokesmen.)
That Barr apparently never personally prosecuted a case was a distinction that may not have come through in news reports during his stint as U.S. attorney. With no cameras in federal courtrooms -- which would have shown his assistants trying cases -- television news relied on camera-friendly press conferences in the lobby of the federal building. Barr was the first and last U.S. attorney in Atlanta to make a frequent practice of holding those.
He also instituted the regular issuing of press releases, virtually all of which opened with the words, "Robert L. Barr Jr., United States Attorney for the Northern District of Georgia, announced today . . . ."
By trumpeting (or leaking) developments ranging from convictions to mid-investigation search warrants, Barr curried favor with the two groups of folks most important to his political ambitions: the public and journalists, who served as his messengers to the public.
This is fine, as long as a prosecutor doesn't ruin investigations, sully the reputations of innocents or disclose grand jury information.
In fact, an attempt to muzzle Barr in 1987 backfired when U.S. District Court Judge J. Owen Forrester refused to set up an investigation into leaks in a federal public corruption probe, and instead specifically approved of Barr's openness.
"Mr. Barr is, after all, a public official . . . and as such is accountable to the public for the conduct of his office," Forrester wrote. "The public has a right to know, particularly where the integrity of other public officials is in question, whether the chief law enforcement officer in the district is taking the logical steps to investigate the matter."
This was Barr's philosophy, too. "There are a lot of people who would prefer for a lot of these matters to never see the light of day," Barr said at the time.
One might infer from his remark that Barr was battling powerful wrongdoers who wanted to operate in the shadows, and probably he was. But among those disgruntled with his penchant for publicity were people who were on his side of the law. Some of his AUSAs were so fearful that leaks would jeopardize their cases that they stopped telling Barr sensitive information. And the local heads of law enforcement agencies complained to Washington about Barr, sparking two internal Department of Justice investigations, the results of which were never disclosed.
The question of whether Barr ever actually leaked grand jury information was a topic of some debate, and of his consistent denials. What is clear is that early disclosure of sensitive information meant that people and corporations were widely reported to be under investigation for crimes for which they were never indicted.
I say all this not to rehash old news. Barr has not been U.S. attorney since 1990.
I say it to argue that now he is in exactly the sort of courtroom that best suits his skills and his eagerness for publicity.
For regardless of what sort of prosecutor or courtroom lawyer he was, Barr can be eloquent in political speeches about integrity. He is pointed in the sound bites he gives on network interview shows, and he can condense complicated ideas into easy-to-grasp remarks. He is much sought after for these skills.
If some of his law, if some of his facts are a tad off base, perhaps it's not quite as critical, for now he is a prosecutor in a political setting, not a court of law. And as important as is the fate of a presidency, the trial in the Senate cannot possibly resemble a courtroom trial. (When was the last time you heard of a trial where jurors were allowed to decide whether witnesses would be called?)
As for the political correctness of this trial, Barr's leadership in the impeachment matter appears to be wildly popular in his home district, which lies west of Atlanta. And if he really said what a former AUSA says he did years ago-that all publicity is good-Barr must be in his own perfect heaven now.
Now, the rules are different, and so are the values. He's in a venue where the fact that he called for an impeachment inquiry more than two months before anyone heard of Monica Lewinsky seems to have elevated his stature, not diminished it.
Now he need not worry about the ethics rules that constrain prosecutors. Now, no judge will chew him out, as U.S. District Court Judge William C. O'Kelley did in 1989 for appearing on every possible network news and interview show discussing his then-big case.
Barr may not be a statesman, but what he is now is what he always was: a politician of superior talent. Now those talents are appropriate for the job.
Now those skills have brought him near to his beginnings in public office. Only this time, he will actually help prosecute a case. And this time, the accused is the president of the United States.
In all ways, this is Bob Barr's biggest case yet.
Ann Woolner is a columnist for American Lawyer Media.
This piece has also appeared in the Law News Network