Barr Still On The Hot Seat

Ken AshfordCourts/Law, Trump & AdministrationLeave a Comment

More than 1,100 former Department of Justice officials are calling on Attorney General William Barr to resign after his department lowered the prison sentence recommendation for Roger Stone, a longtime ally of President Trump, in a move that’s led to accusations of political interference.

The letter was released yesterday. It was signed by former DOJ officials who have worked across Republican and Democratic administrations. They write that Barr’s intervention in the Stone case has tarnished the department’s reputation:

We, the undersigned, are alumni of the United States Department of Justice (DOJ) who have collectively served both Republican and Democratic administrations. Each of us strongly condemns President Trump’s and Attorney General Barr’s interference in the fair administration of justice.

As former DOJ officials, we each proudly took an oath to support and defend our Constitution and faithfully execute the duties of our offices. The very first of these duties is to apply the law equally to all Americans. This obligation flows directly from the Constitution, and it is embedded in countless rules and laws governing the conduct of DOJ lawyers. The Justice Manual — the DOJ’s rulebook for its lawyers — states that “the rule of law depends on the evenhanded administration of justice”; that the Department’s legal decisions “must be impartial and insulated from political influence”; and that the Department’s prosecutorial powers, in particular, must be “exercised free from partisan consideration.”

All DOJ lawyers are well-versed in these rules, regulations, and constitutional commands. They stand for the proposition that political interference in the conduct of a criminal prosecution is anathema to the Department’s core mission and to its sacred obligation to ensure equal justice under the law.

And yet, President Trump and Attorney General Barr have openly and repeatedly flouted this fundamental principle, most recently in connection with the sentencing of President Trump’s close associate, Roger Stone, who was convicted of serious crimes. The Department has a long-standing practice in which political appointees set broad policies that line prosecutors apply to individual cases. That practice exists to animate the constitutional principles regarding the even-handed application of the law. Although there are times when political leadership appropriately weighs in on individual prosecutions, it is unheard of for the Department’s top leaders to overrule line prosecutors, who are following established policies, in order to give preferential treatment to a close associate of the President, as Attorney General Barr did in the Stone case. It is even more outrageous for the Attorney General to intervene as he did here — after the President publicly condemned the sentencing recommendation that line prosecutors had already filed in court.

Such behavior is a grave threat to the fair administration of justice. In this nation, we are all equal before the law. A person should not be given special treatment in a criminal prosecution because they are a close political ally of the President. Governments that use the enormous power of law enforcement to punish their enemies and reward their allies are not constitutional republics; they are autocracies.

We welcome Attorney General Barr’s belated acknowledgment that the DOJ’s law enforcement decisions must be independent of politics; that it is wrong for the President to interfere in specific enforcement matters, either to punish his opponents or to help his friends; and that the President’s public comments on DOJ matters have gravely damaged the Department’s credibility. But Mr. Barr’s actions in doing the President’s personal bidding unfortunately speak louder than his words. Those actions, and the damage they have done to the Department of Justice’s reputation for integrity and the rule of law, require Mr. Barr to resign. But because we have little expectation he will do so, it falls to the Department’s career officials to take appropriate action to uphold their oaths of office and defend nonpartisan, apolitical justice.

For these reasons, we support and commend the four career prosecutors who upheld their oaths and stood up for the Department’s independence by withdrawing from the Stone case and/or resigning from the Department. Our simple message to them is that we — and millions of other Americans — stand with them. And we call on every DOJ employee to follow their heroic example and be prepared to report future abuses to the Inspector General, the Office of Professional Responsibility, and Congress; to refuse to carry out directives that are inconsistent with their oaths of office; to withdraw from cases that involve such directives or other misconduct; and, if necessary, to resign and report publicly — in a manner consistent with professional ethics — to the American people the reasons for their resignation. We likewise call on the other branches of government to protect from retaliation those employees who uphold their oaths in the face of unlawful directives. The rule of law and the survival of our Republic demand nothing less.

The fundamental problem with Barr is that he does not believe in the central tenet of our system of government—that no person is above the law. In chilling terms, Barr’s own words make clear his long-held belief in the need for a virtually autocratic executive who is not constrained by countervailing powers within our government under the constitutional system of checks and balances.  

The system that Barr is working to tear down was built up in the aftermath of the Watergate scandals, during which the Justice Department’s leadership was compromised by its support of a president who sought to use the machinery of government to advance his personal interests and prospects for reelection. As Richard Nixon later told David Frost, he believed that “when the President does it, that means it is not illegal.” But the system held, and after two attorneys general and numerous other government officials were convicted for their conduct in these scandals, the Ford administration turned to the task of restoring public trust in government.

President Gerald Ford chose as his attorney general Edward Levi, a distinguished legal scholar and professor who was then president of the University of Chicago. “Levi took restoring faith in the legitimacy of government and adherence to the rule of law as his very highest priority,” his special assistant at the time, Jack Fuller, later recalled. Levi said at his swearing-in that the central goal of the Justice Department must be to sustain “a government of laws and not men,” which he knew would take “dedicated men and women to accomplish this through their zeal and determination, and also their concern for fairness and impartiality.”

In two short years, Levi enshrined these ideas at the Department of Justice, turning them into articles of faith for its employees. He created new mechanisms of accountability to ensure their endurance, such as the Office of Professional Responsibility, an ethics watchdog for the department. His reforms substantially restored public trust in our justice system. For the past 45 years, the vision he articulated has also inspired thousands of Justice Department lawyers. This was the department that I served, as an assistant U.S. attorney, United States attorney, principal deputy solicitor general, and deputy attorney general in the Carter, Reagan, and first Bush administrations.

Barr’s frontal attack on this system begins with an assault on Levi’s central premise, that ours must be a “government of laws and not men,” in which no person is above the law. Far from emphasizing thorough, transparent, and evenhanded processes—like the investigations presided over by former Special Counsel Mueller and Inspector General of the Department of Justice Michael Horowitz—Barr has done whatever he can to suppress findings adverse to the president, and to endorse conclusions more favorable to Donald Trump.

His views on that point were set forth with breathtaking clarity in June 2018, in an unsolicited 19-page memorandum that Barr sent to then–Deputy Attorney General Rod Rosenstein, arguing that Mueller’s investigation of the president for obstruction of justice was fundamentally misconceived. The president “alone is the Executive Branch,” he wrote, and “the Constitution vests [in him personally] all Federal law enforcement power, and hence prosecutorial discretion.” (The emphasis is his.) Thus, as a matter of constitutional law, Barr concluded that Congress is without any power to bar the president from “[exercising] supervisory authority over cases in which his own conduct might be at issue.” It followed, according to Barr, that the whole idea of a prosecutor within the executive branch operating beyond the president’s direct oversight—even a special counsel like Mueller—was a constitutional nonstarter. So the president’s recent statement that he has a “legal right” to interfere in criminal investigations just repeats what Bill Barr has told him.

The benefit of the doubt that many were ready to extend to Barr a year ago—as among the best of a bad lot of nominees who had previously served in high office without disgrace—has now run out. He has told us in great detail who he is, what he believes, and where he would like to take us. For whatever twisted reasons, he believes that the president should be above the law, and he has as his foil in pursuit of that goal a president who, uniquely in our history, actually aspires to that status. And Barr has acted repeatedly on those beliefs in ways that are more damaging at every turn. Presently he is moving forward with active misuse of the criminal sanction, as one more tool of the president’s personal interests.

Bill Barr’s America is not a place that anyone, including Trump voters, should want to go. It is a banana republic where all are subject to the whims of a dictatorial president and his henchmen. To prevent that, we need a public uprising demanding that Bill Barr resign immediately, or failing that, be impeached.