The US Bar versus William Barr

Michael Goldhaber, IBA US CorrespondentFriday 2 October 2020

Accused of politicising justice, Attorney General William Barr has pushed United States lawyers to the barricades.

‘When the history of periods of upheaval like the last few years is written, the historians will be justified in asking, “Where were the lawyers?”’ says the former New York City Bar President John Kiernan. ‘[Many lawyers] have been remarkably active in trying to attach a positive answer to that question.’

During Donald Trump’s fourth year in office, the NYC Bar, in lockstep with an army of Department of Justice alumni, has veritably revolted against Attorney General William Barr. Although pushback by other segments of the US legal profession has been sporadic, it too has focused on the Department of Justice. In advancing the President’s political interests – above all, to discredit the Mueller Report – Barr has provided endless opportunities for outrage.

Enter Barr, stage right

At the start of the Trump era, civic-minded lawyers rushed to the airports to resist the xenophobic policies of the President’s first Attorney General. Few imagined that they’d recall Jeff Sessions fondly. But Sessions respected institutions enough to recuse himself from the probe into Russian campaign interference. This act of professionalism enraged President Trump, who openly pined for a fixer in the same mould as his disgraced personal lawyer Roy Cohn. ‘The saddest thing is, because I'm the President of the United States, I am not supposed to be involved in the Justice Department,’ he tellingly complained in 2017. ‘I'm not supposed to be doing the kind of things that I would love to be doing and I'm very frustrated by it.’

Watching loudly from the sidelines, private citizen Barr was frustrated too. From the Reagan White House through his stint as Attorney General under George H W Bush, Barr has favoured a strong executive. As President Trump encouraged chants of ‘Lock her up’ – and pushed the US Department of Justice to investigate Hillary Clinton – Barr offered the lonely opinion that there was ‘nothing inherently wrong’ with that. As Robert Mueller assembled a team to probe Russia’s ties to the Trump campaign, Barr said he risked looking like ‘an entirely political operation to overthrow the President’. When Mueller asked if the President was obstructing him, Barr called the question ‘asinine’ and took it upon himself to advise the White House. Firing or pressuring an FBI Director couldn’t obstruct justice, Barr volunteered, because it fell within a President’s powers. Then Deputy Attorney General Rod Rosenstein – who was ‘supervising Mueller because of Sessions’ recusal’ – coldly responded that Barr didn’t know all the details. Constitutionalists scorned Barr’s memo as a dangerous outlier. Politicos saw it as a shrewd audition.

Delighted with his demonstrated tolerance for politicised justice, the President installed Barr as Attorney General in February 2019, just in time for the Special Counsel’s filing in March. The new Attorney General initially released only a short misleading summary – concluding that the President had not obstructed justice – which distorted the media narrative, and let the President claim exoneration. After Barr finally showed the public the report a month later, over 1,000 Department of Justice alumni wrote a letter that captured its spirit more faithfully. The conduct described by Mueller would surely support multiple obstruction charges, they wrote – if not for the Department of Justice policy against indicting a sitting President. 

Rolling back Mueller

Though Mueller exited the stage without doing the terminal damage to the Trump administration that some thought he might, the Attorney General remains determined to discredit him. In autumn 2019, the Department of Justice Inspector General was set to report whether the FBI had reason enough to probe the Trump campaign’s ties to Russia. Evidently fearing an unacceptable answer, Barr preemptively tapped prosecutor John Durham to criminally investigate the very same question. Then, to ensure that he’d control the story in 2020, Barr issued a new policy requiring his approval to probe a presidential campaign, or its foreign financial support.

In a 434-page report, drawing on a million documents and 100 witnesses, the Inspector General concluded that the Russia probe was justified and unbiased (at the same time, he identified and condemned errors in the FBI’s wiretap applications). Barr and Durham each took the extraordinary step of stating that the Inspector General’s main conclusion was wrong and the FBI had acted without justification – pre-judging their own investigation of the Russia probe.

William Barr testifies before the House Judiciary Committee in the Congressional Auditorium at the US Capitol Visitors Center, Washington, DC, July 2020. Chip Somodevilla/Pool via REUTERS

But how could the Russia probe be baseless if National Security Adviser Michael Flynn had pleaded guilty of lying about his private meetings with Russia’s ambassador? How could it be unjustified when a jury found that Trump ally Roger Stone had secretly dealt with WikiLeaks as a conduit for Russia, and convicted him of crimes with a guideline sentence of seven to nine years in prison? These awkward realities became alterable when Barr pushed out the US Attorney for the District of Colombia, Jessie Liu, who supervised both the Stone and Flynn cases, and handpicked her successor as opposed to elevating her deputy.

Unbeknown to Barr and the President, the Department of Justice requested the standard guideline sentence for Stone on 10 February. On learning of it late that night, the President tweeted: 'This is a horrible and very unfair situation…. Cannot allow this miscarriage of justice!' The Sessions Department of Justice had ignored similar tweets on its failure to probe Hillary Clinton. But Barr’s Department of Justice jumped, asking for a ‘far lower’ sentence in a terse superseding memo the next day. All four Stone prosecutors resigned from the case. Lead prosecutor Aaron Zelinsky later told the House Judiciary Committee that there was ‘pressure from the highest levels of the Department of Justice to cut Stone a break’ due to ‘his relationship to the President’, and because the US Attorney was ‘afraid of the President’. One supervisor, Zelinsky, testified and warned the prosecutors they could be fired if they resisted.

On 7 May, the Department of Justice took the utterly unprecedented step of dropping its criminal case against Flynn – 30 months after he pleaded guilty. Barr’s team argued that Flynn’s lie to the FBI about his Russia contacts was not ‘material’, because the FBI at the time had no legitimate basis for a counterintelligence investigation against Flynn. Observers were left to wonder how a lie could not be material if it exposed the National Security Adviser to blackmail by Russia.

Ultimately, the President would commute Stone’s sentence altogether in mid-summer. In the Flynn case, the flabbergasted judge appointed an amicus to oppose the Department of Justice’s motion for withdrawal. After a hiccup on first appeal, the US Court of Appeals for the District of Columbia Circuit ruled en banc at summer’s end to let the Flynn case proceed in this unprecedented fashion.

Backlash in the legal profession

Undoing the results of the Mueller probe prompted even the consensus-driven American Bar Association (ABA) to speak out. A week after Barr intervened in the Stone sentencing, ABA President Judy Perry Martinez told her House of Delegates: ‘No one, no one should interfere with the fair administration of justice.’ After the President commuted Stone’s sentence, she stated that the ABA was ‘deeply troubled’, and that the pardon power should only be used via an orderly process with careful consideration given to the Rule of Law, rather than to undermine justice.

Swathes of the Bar moved into open rebellion. Over 2,000 Department of Justice alumni joined an open letter to protest the shift on Stone’s sentence. Over 2,500 joined an open letter to protest the abandonment of Flynn’s guilty pleas. ‘The numbers of Department of Justice alumni signing on to these letters are extraordinary,’ says Ben Berwick of Protect Democracy, who helped organise the alumni. ‘The vast majority are apolitical career civil servants.’ Ex-prosecutor Dianne Sanford emailed: ‘Those of us who signed those letters believe that the freedom of the Department of Justice from political influence, whether from the right or the left, is foundational for the future of democracy in America.’

The Department of Justice alumni went back to the basics. In their Stone letter, they cited the Justice Manual’s imperatives that legal decisions be ‘insulated from political influence’ – and prosecutions ‘free from partisan consideration’. Politicised prosecution is ‘anathema to the Department’s core mission,’ they noted. Yet the Attorney General had ‘openly and repeatedly flouted this fundamental principle.’  

Both the Stone and Flynn letters called on Barr to resign as Attorney General. In the Stone letter, the alumni also urged current Department of Justice lawyers to resist unlawful directives, and implored the other branches to shield those lawyers from retaliation. In the Flynn letter, they also beseeched Congress to censure Barr ‘for his repeated assaults on the rule of law in doing the President’s personal bidding.’ Democracy, they explained, ‘depends on a Department of Justice that acts as an independent arbiter of equal justice, not as an arm of the president’s political apparatus.’ As both letters underscored: ‘Governments that use the enormous power of law enforcement to punish their enemies and reward their allies are not constitutional republics; they are autocracies.’

The accusations of politicised justice went well beyond the Mueller cases. In late June, the Department of Justice’s Antitrust Chief of Staff told Congress that the Antitrust Division pursued ten baseless full-scale reviews of small cannabis mergers last year (about a third of its caseload) – simply because the Attorney General didn’t like their business. The cannabis scandal renews suspicions that the Antitrust Division has favoured the Trump-friendly Facebook and Fox Broadcasting Company, while hindering Amazon (whose Chief Executive Officer owns the Washington Post) and Time Warner (parent of CNN).

Perhaps the most spectacular account of politicisation at the Trump Department of Justice came from ex-National Security Adviser John Bolton. In his memoir, Bolton relates that Turkey’s President Recep Tayyip Erdogan asked President Trump to halt the investigation of Turkey’s Halkbank for evading US economic sanctions. According to Bolton, President Trump replied that ‘he would take care of things’ after placing ‘his people’ at the Manhattan US Attorney's office. In fact, Barr abruptly pushed out the US Attorney in Manhattan on 19 June. Geoffrey Berman told Congress that Barr tried mightily to handpick his successor (as with the US Attorney in DC).

Special Counsel Robert Mueller

But Berman refused to resign unless his deputy took over his investigations. With jurisdiction over global financial institutions – not to mention the Trump Organization and the 2016 Trump campaign – the Southern District of New York has countless potential cases of interest.

In fact, Barr abruptly pushed out the US Attorney in Manhattan on 19 June. Geoffrey Berman told Congress that Barr tried mightily to handpick his successor (as with the US Attorney in DC). But Berman refused to resign unless his deputy took over his investigations. With jurisdiction over global financial institutions – not to mention the Trump Organization and the 2016 Trump campaign – the Southern District of New York has countless potential cases of interest.

For starters, it is reportedly investigating Trump ally Rudy Giuliani for soliciting a Ukrainian probe of the Biden family in return for US aid. Indicted Giuliani associate Lev Parnas publicly accused Giuliani of directing him to do so after meeting with the President, which might implicate all three in a bribery conspiracy. Barr has denied political motives, saying that ‘even if one were interested in trying to influence a case you wouldn’t do it by removing the head of the office.’

Before Barr backed off his demand to handpick Berman’s replacement as US Attorney, leading New York lawyers were prepared to mobilise, quite literally. David W Rivkin, former IBA President and a partner at Debevoise & Plimpton, says that he and two former NYC Bar presidents, Roger Maldonado and John Kiernan, discussed mounting a ‘lawyers’ march’ on the US courthouse in Foley Square, New York, on the model of the Lawyer’s Movement march mounted by Pakistani lawyers to protest President Pervez Musharraf’s purge of Pakistan’s Chief Justice in 2007.

Also in June, the Attorney General enraged civil libertarians by reportedly playing a leading part in clearing Lafayette Square of protests, to make way for a Presidential photo op at a church near the White House. Barr, however, denies giving the tactical order. This was the last straw for over 100 bipartisan members of the US Supreme Court Bar, who have collectively argued 650 high court cases. Echoing the call for Barr’s resignation, they concluded in a public letter that the Attorney General ‘violated his oath by overseeing violence against peaceful protesters exercising their First Amendment rights’.

June’s drama triggered still more damning indictments. Over two dozen leading DC attorneys – including four ex-presidents of the DC Bar Association and four legal ethics professors – petitioned the DC Bar to discipline the Attorney General. In a 40-page letter, they concluded that Barr had violated his ethical duties to uphold the Constitution; and to avoid dishonesty, deceit, misrepresentation or serious interference with the administration of justice. Most pointedly, they concluded that the Attorney General had breached his duty to zealously represent his client’s interests – because his ‘client is the United States, and not the President’. The former DC Bar presidents stressed Barr’s role in clearing Lafayette Park, his critique of the Inspector General report and his mischaracterisation of Mueller.

At about the same time, 80 per cent of the faculty at Barr’s alma mater, George Washington Law School, called on the Attorney General to resign. Their recitation of Barr’s sins reads like the liturgy for the Day of Atonement: He ‘misled the American public about the results of the Mueller investigation. He wrongfully interfered in the day-to-day activities of career prosecutors, and continues to do so, bending the criminal justice system to benefit the President’s friends and target those perceived to be his enemies. He participated in the forcible removal from public space of peaceful protesters, exercising their First Amendment rights of speech and assembly.’

But the most comprehensive and morally authoritative reply came from the 24,000-strong New York City Bar. Astonishingly, it was the sixth time in six months that the Attorney General earned a public rebuke from the nation’s leading city bar. On 23 June, the President of the NYC Bar and the Chair of its Task Force on the Rule of Law wrote to Congress saying that Barr is ‘unfit’ for his position – and called on him to resign. Among other incidents, they noted Barr’s distortion of Mueller, his meddling in Stone’s sentencing, his attempt to drop the Flynn case, the dispersal of protesters at Lafayette Park and the apparent purge of US Attorney Berman. ‘Each of these actions,’ they concluded, ‘raised serious concerns about Mr Barr’s stewardship of the Department of Justice. Cumulatively, they form an overwhelming public impression of an [Attorney General] whose primary loyalty is to the President who appointed him, not to the American public or the rule of law.’

Barr doubles down

The Attorney General has responded to this barrage of criticism pugnaciously. On Fox News in April, Barr called the Russia probe ‘one of the greatest travesties in American history’ – launched ‘without any basis’ and aiming ‘to sabotage the presidency’. In Senate testimony on 29 July, he called ‘Russiagate’ a ‘bogus’ scandal. Barr denied ‘interfering’ in any US District Court for the Southern District of New York cases, while admitting that he had ‘raised questions about certain matters’. As for the Stone and Flynn cases, he had intruded only to ensure that each received ‘equal treatment’ before the law. (Much like fair and balanced news, equal justice is in the eye of the beholder).

In private life, Barr had noted with dismay ‘the increasing use of the criminal justice process as a political weapon’. He had returned to his beloved Department of Justice to rescue her from politics – because he believed his ‘independence’ would allow her to ‘enforce the law even-handedly without partisan considerations’. Ironically, Barr invoked rule of law only to condemn the ‘anarchy’ that he associated with racial justice protests – conflating ‘rule of law’ with ‘law and order’.

Since his Senate testimony, Barr has compulsively politicised the Department of Justice in the name of depoliticising it. He began investigating four Democratic governors, including New York’s Andrew Cuomo and Michigan’s Gretchen Whitmer, for spreading Covid-19 in nursing homes. The President empowered the Attorney General to designate any locality as ‘anarchic’ based on its restraint in policing, or other factors he ‘deems appropriate’ and to strip ‘anarchic jurisdictions’ of federal funding. (The memo cited no legal authority and named four Democratic cities that the President loves to vilify). The Department of Justice took over the President’s personal defence in the defamation case brought by the columnist E Jean Carroll, on the remarkable rationale that the President was performing executive duties when he denied having raped her. Finally, in advance of the election, Barr removed the longstanding Deputy Assistant Attorney General who serves as the watchdog for counterintelligence, and replaced him with an inexperienced political appointee. Ryan Goodman of New York University School of Law, who edits the Just Security blog, perceives a ‘highly-orchestrated plan to deploy the Department of Justice’ as a weapon in the 2020 presidential campaign.

Is Barr saving Durham’s critique of the Russia investigation for an October surprise? The Department of Justice traditionally honours a ‘rule of forbearance’ before elections. But Barr interprets it mainly as tying his hands from indicting a candidate before Election Day. In connection with Durham’s probe of the probe, Barr said on 13 August that ‘we’re not going to do anything for the purposes of a affecting an election, but we are trying to get some things accomplished before the election’. The next day he clarified that Durham’s disclosures would be dictated by ‘developments in the case’. That day, Durham charged an FBI lawyer with a false statement and forgery for altering a CIA email to expedite an application to wiretap Carter Page, a foreign policy adviser to the Trump campaign. This is certainly chargeable misconduct. But it had already been revealed by the Inspector General. It does not support a ‘deep state’ conspiracy, nor does it make Russiagate a hoax.

A fuller Russia story begins to emerge

The extent of Russiagate became clearer a few days later, with the publication of a 1,000-page report by the Republican-chaired Senate Select Committee on Intelligence. The searing Senate report is a rare model of bipartisanship (marred only by irrelevant duelling appendices on the semantics of ‘collusion’). It vividly reaffirms that Russia coordinated with the Trump campaign.

The Senate’s report pushes well beyond Mueller’s. It concludes without hedging that Konstantin Kilimnik – the professional alter ego of Trump campaign chair Paul Manafort – is a Russian spy. Manafort owed millions to the Kremlin-tied oligarch Oleg Deripaska, and signaled through Kilimnik that he’d use the campaign to make himself valuable again. Manafort spoke with Kilimnik almost daily during the campaign, and bought a pay-as-you-go phone t­o keep speaking even after they were indicted. During the campaign, Manafort shared with Kilimnik confidential polling data and discussed the Upper Midwest as the path to victory. Kilimnik was possibly tied to the well-targeted election interference campaign that ensued. Kilimnik used Manafort to spread the mutually-convenient lie that the Ukraine was the election meddler. The Senate reveals that Roger Stone arranged for WikiLeaks to post the Democratic National Committee emails after learning that Trump’s ‘Access Hollywood’ scandal was imminent. The Senate report finds that Trump spoke with Stone about WikiLeaks (one of 34 points where the President’s memory failed him in response to Mueller’s queries). So much for Barr’s ‘bogus’ scandal.

That we learn so much from the Senate report is a reprimand to Mueller, who by both direction and inclination confined himself to legal questions; and to the narrow prosecutions that followed. (See Global Insight October/November 2018, Trump’s Presidency: the trials of Paul Manafort). As the Senate report justly notes, electoral interference is ‘inherently a counter-intelligence matter and not one well-suited to criminal prosecution’.

Bipartisan or not, the right-wing infosphere dismisses the Senate report as a second-order hoax. President Trump is champing at the bit for Barr to release the Durham Report and back his own narrative before the election. When Fox News asked him about the Durham Report’s release, the President answered none-too-subtly: ‘Bill Barr can go down as the greatest Attorney General in the history of our country. Or he can go down as just an average guy. We’ll see what happens.’

The President’s remark (reminiscent of his carping about his first Attorney General’s recusal) may suggest that Barr is belatedly resisting some political demands. At the same time, it makes a mockery of Barr’s testimony that the President has never ‘pressured me to do anything in a criminal case’. Like ‘collusion’, the word ‘pressured’ lends itself to obfuscation because it’s legally undefined. Barr can sincerely swear that his criminal decisions are ‘my own’, because, at least until now, he has always agreed with the President about Russia. That’s precisely why he was appointed Attorney General.

The duty to speak out

When the justice system becomes politicised, ‘lawyers and bar associations have a special obligation to speak out,’says Rivkin. ‘The fact that our Justice Department appears simply to be doing the President’s bidding undermines the ability of lawyers to fight for impartial justice around the world. When the shining model of impartial justice becomes simply a pawn of the President, it’s hard to explain to other countries that they need to behave differently.’

The serial norm violations of the Trump era have sooner or later prompted an outcry in many professional communities, perhaps most consequentially in the military after Lafayette Square. This year’s pushback by the legal profession has been extraordinary, yet far from universal, with the American Bar Association lagging far behind the NYC Bar, and most bar groups remaining conspicuously silent.

‘The questions get harder when there is no consensus within an organisation about how to proceed,’ says Kiernan, but ‘when behaviour becomes clearly inconsistent with the rule of law, informed people should individually and collectively speak out’.

Ambassador Charlene Barshefsky, Senior International Partner at WilmerHale goes so far as to argue that, in general, ‘bar associations, have not been vocal enough’. As Chair of the NYC Bar’s Task Force on the Rule of Law, Stephen Kass has been perhaps the single most vocal exception. ‘I do hope,’ he says, ‘that we can provide a responsible lead for other bar associations’.

Michael Goldhaber is the IBA’s US Correspondent. He can be contacted at michael.goldhaber@int-bar.org

Header pic: US Attorney General William Barr is sworn in ahead of testifying before the House Judiciary Committee on Capitol Hill, in Washington, DC, July 2020. Chip Somodevilla/Pool via REUTERS