By Noah Feldman
When senators get to grill William Barr next week, they shouldn’t waste much time on whether President Donald Trump’s nominee for attorney general would fire special counsel Robert Mueller. The key question should be something different: Under what circumstances would Barr advise the president to pardon the targets of Mueller’s investigation?
Here’s why: The most significant single act of Barr’s career in the Department of Justice was to advise President George H.W. Bush to pardon six officials from Ronald Reagan’s administration, including Secretary of Defense Caspar Weinberger, for crimes associated with the Iran-contra affair. At the time, Barr was — you guessed it — attorney general. His recommendation gave Bush the cover he needed to issue the pardons.
And Bush needed the cover. The investigation led by independent prosecutor Lawrence Walsh was closing in on the president himself. Walsh had demanded that Bush turn over a campaign diary that he kept in 1986. Bush failed to do so, presumably because the diary showed he knew more about Iran-contra than he had let on. Walsh publicly condemned Bush’s failure to produce the diary as “misconduct” by the sitting president.
Issuing the pardons killed Walsh’s investigation — and saved Bush. When the targets of the investigation were off the hook, Walsh had no leverage to continue.
Don’t take my word for it. When the pardons came, Walsh went on ABC’s “Nightline” and said that Bush had “succeeded in a sort of Saturday Night Massacre.” The comparison was intended. Walsh was saying that Bush had saved himself by effectively ending an investigation that was leading to the Oval Office — the aim that Nixon failed to accomplish when he fired Watergate special prosecutor Archibald Cox.
Leaving little to the imagination, Walsh also said at the time that he had “evidence of a conspiracy among the highest ranking Reagan administration officials to lie to Congress and the American public.”
The architect of this pardon strategy was Barr. In an oral history interview he gave in 2001, Barr said he didn’t consult with the pardon office at his own Department of Justice, which was playing its “usual role — naysayers” against issuing pardons.
Instead, Barr said he spoke to “some seasoned professionals” at Justice. Then, “based on those discussions, I went over and told the President I thought he should not only pardon Caspar Weinberger, but while he was at it, he should pardon about five others.”
To be sure, Bush was angry at Walsh already. The independent prosecutor, showing none of Mueller’s restraint, had indicted Weinberger four days before the 1992 election. According to Barr, Bush “did say to me that he felt that that indictment had cost him the election. He was very infuriated by it.”
But Bush, angry as he was, probably would not have issued the pardons without the attorney general’s recommendation. He would have been afraid for his reputation, something common to presidents in the pre-Trump era.
In his oral history, Barr made some gestures at trying to justify his judgment. And those efforts should be a focal point for senators’ questions during his confirmation hearings Tuesday and Wednesday.
For example, Barr said that as attorney general, he “suggested some standards of my own” with respect to who should be pardoned. According to Barr, he “said that they should look at the little people,” meaning anyone who was taking orders in the scandal.
And Barr added in the interview that “He wrote a little note saying, ‘Look at the little people, not just the people with influence.’”
If there really existed such a “note” on when pardons are appropriate, written by the attorney general who advised and gave cover to the Iran-Contra pardons, the Senate should demand to see it.
The senators should also ask Barr what his views are right now about pardons.
And if Barr cared so much about the “little people,” why did he support the pardon of Weinberger, the secretary of defense?
The senators should ask whether Barr would recommend that Trump issue pardons, and when. They shouldn’t let the nominee avoid answering. There’s no legal reason he couldn’t speak about a pardon recommendation, and no executive privilege for advice not yet given.
All this background about Barr and pardons is so important because it’s a lesson for Trump on how he can address the Mueller investigation.
Firing Mueller would be politically foolish. It would lead the public to invoke Nixon’s Saturday Night Massacre firing of Cox. And it would invite charges of obstruction of justice and even impeachment.
But pardons, skillfully applied, might be able to thwart Mueller’s investigation without paying the same political price. For example, Barr could recommend pardons for everyone targeted by Mueller, then shut down the investigation by saying there was no one left to investigate or prosecute. Barr knows that — because Bush followed his advice, and got away with his own investigation-ending maneuver.
Barr could give Trump the same cover that he gave Bush. If Trump can say that the attorney general recommended the pardons, it would help shield him from the charge that he is issuing pardons to save himself.
And Barr could talk about the value of pardoning the “little guys,” as he did in discussing his recommendations to Bush.
Barr worked alongside Mueller in the Department of Justice. He’s not likely to make the mistake of firing his former colleague.
Not when pardoning is so much cleaner, cleverer and more effective.
Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. This column does not necessarily reflect the opinion of Minnesota Lawyer, the Bloomberg editorial board or Bloomberg LP and its owners.