US Attorney General William Barr has resigned with a little more than a month left in President Donald Trump’s administration. This seems to suggest that Barr thinks what happens in the next five weeks could irretrievably tarnish his legacy. If so, that’s pretty stunning, considering how much Barr has already diminished his reputation and that of the Justice Department with his shenanigans.
What’s the January surprise Barr wants no part of? One possibility is that Barr wants to create bureaucratic distance between himself and the president so that he can say he resigned rather than serving out his term. But this seems implausible, even for a canny bureaucrat like Barr, given how close he has been to the presidency. And it certainly seems at odds with the fawning tone of his resignation letter.
An inauguration without Trump
Another option is that Barr realises that Trump plans to continue challenging the election outcome. Barr has been willing to tolerate Trump’s arguments thus far, even if he himself has refused to say that Justice has evidence of meaningful fraud. Yet the prospect of increasingly wild claims of conspiracy and an inauguration without Trump in attendance might perhaps be enough for Barr to prefer to be out of town -- and out of the administration -- for the next few weeks.
The most likely possibility, however, involves presidential pardons, and perhaps legally questionable orders designed to make more permanent some of Trump’s policies.
The president can issue pardons without the attorney general or the Department of Justice. The Constitution gives the pardon power to the chief executive alone. But there is a pardon office in Justice, and a president who entirely ignores or sidesteps its recommendations could taint his attorney general.
Barr knows all about late-term pardons. He made his own reputation at the end of George H.W. Bush’s administration by recommending pardons for Iran-Contra figures. Those pardons effectively ended the investigation into the scandal — and didn’t go down well with Bush, who might have been implicated had the investigation continued.
Back then, Barr’s recommendation for the pardon helped insulate the president from the criticism that he was being self-serving. But things would be different now.
Weighing up the odds
Say Trump issues a blanket pardon for all ICE agents during his presidency. Or for his family members. Or for himself. There would be no way Barr could avoid looking like he had gone along with it -- short of resigning in protest.
In other words, instead of the attorney general insulating the president by recommending pardons, the president would be discrediting the attorney general by issuing pardons without the top lawyer’s consent.
The same would be true of any executive orders issued by the White House over the objections of the Office of Legal Counsel at Justice. Barr would look ineffectual “- which is worse, in some quarters, than looking like the president’s man.
Whatever Barr’s reasoning, we may not hear the full story of his resignation for some time -- not unless and until he decides to share it.
Barr has done some lasting harm to the Department of Justice and the rule of law. What Trump does next, however, might give us a hint about what spooked Barr, someone tried to scuttle Robert Mueller’s investigation by appointing a special counsel to investigate the investigators of Trump-Russia collusion; and spread false claims about election fraud before the vote.
Noah Feldman is a noted columnist. He is a professor of law at Harvard University.