Editor’s Note: Donald Ayer, an adjunct professor of law at Georgetown University Law School, served as a Deputy Attorney General under President George H.W. Bush, as an Assistant US Attorney under President Jimmy Carter, and as United States Attorney and Principal Deputy Solicitor General under President Ronald Reagan. The opinions expressed here are his own. Read more opinion articles at CNN.
I recently had the privilege of appearing before the House Judiciary Committee alongside current Department of Justice lawyers Aaron Zelinsky and John Elias, who put their careers on the line to speak up about political interference in cases in which they were personally involved. Zelinsky and Elias spoke in detail, and with total credibility, about the Department’s efforts to lighten the sentence of President Donald Trump’s longtime friend Roger Stone. and about two instances where antitrust investigations appear to have been pursued for political reasons without any sound policy reasons for doing so.
My own testimony focused on why I believe that Attorney General Bill Barr is a major threat to our legal system and to public trust in it. He does not believe in the central tenet of our system – that no person is above the law – and he has been working full time to confer extraordinary powers on the President that have no place in our system of government.
Here is why I am making such a strong statement. The United States has long had a system of laws that exist independent of any one person. This “rule of law” is far different from the situation in many countries where dictatorial regimes simply make up or change the law as they go along to suit their desires, favor themselves or their friends, or punish their enemies. And it has given Americans a high level of public trust that the laws will be applied fairly and equally to everyone – even to the President.
But the system that prevents the President from assuming arbitrary powers, and that engenders public trust, depends on a number of critical conditions. These include: our system of checks and balances by which the president’s ability to act is restrained in various ways by the powers of the legislative and judicial branches; reliance within the Department of Justice, in taking law enforcement actions, upon independent decision making processes that utilize disinterested career officials and orderly review processes; and a clear and very public commitment to avoid even the appearance of personal or political interference in such decisions. Trust in the law also depends on the nation’s leaders – especially the President and the Attorney General – not being seen to make willful misstatements about the performance of their duties.
But Barr as Attorney General has worked systematically, in numerous respects, to undermine all of these essential pre-conditions for our rule of law and Americans’ trust in it. In the face of this conduct by Barr, the defenses offered by some of his supporters have been quite unresponsive. First, focusing on just a few specific cases, they have argued that his actions there were justified under the particular facts and circumstances. Thus former Attorney General Michael Mukasey at the hearing defended the reduced sentencing recommendation for Stone on the ground that the initial recommendation had been overly harsh, and argued that the motion to dismiss the case against Michael Flynn was justified by irregularities in its handling that recently came to the Department’s attention. Another Barr defender, Jonathan Turley, has questioned the propriety of attacks on Barr by offering his own thoughts justifying the motion to dismiss the Flynn case, the firing of US Attorney Geoffrey Berman, and Barr’s involvement in the case of Trump’s former lawyer Michael Cohen.
Second, Barr’s recent defenders give their personal assurances of his virtue and good faith. Based on his years-long personal knowledge of Barr, Mukasey said that he has “no doubt that the welfare of this country, upheld through the evenhanded application of law so as to achieve justice, is what motivates his decisions as Attorney General.” Turley goes a step further, speculating that Barr, who he has known for years, is so focused on doing the right thing that he is inattentive to the way things look: “I’ve never known a more honest, direct person in Washington. Barr’s real flaw is his lack of concern over the optics of his actions.”
But Barr’s fitness for office does not turn on disputed facts about several individual cases, or his ability to produce character witnesses to vouch for his uprightness. It rather depends on his beliefs and goals, and the broad sweep of the actions he has taken since assuming office. Barr’s agenda is no mystery. It is totally clear from a June 2018 memorandum he submitted when being considered for his current job, and from the speech he delivered to the Federalist Society on November 15, 2019 on the subject of executive power. His explicit goals are that the president should have virtually unchecked powers, free from any limitations that might arise within the Executive Branch, and also free from nearly all limitations by the other branches, as by congressional oversight or judicial review. As would suit a president with virtually autocratic powers, Barr expresses little concern for the maintenance of independent, evenhanded decision-making processes, or the avoidance of politics and personal influence in making sensitive individual decisions within the Department of Justice.
A root and branch attack
Given these views, it is not surprising that Bill Barr’s service since last February has been a root and branch attack on the ideas that have guided the Justice Department since the Watergate reforms that were put in place by Attorney General Edward Levi in the 1970s – indeed on the very idea that no person is above the law.
Here are some of the things that Barr has done:
He has worked to defeat Congress’s ability to receive information and conduct oversight hearings, to illuminate just what the executive branch is up to and why. And he has himself refused multiple times to show up when requested to appear by Congress.
He has also argued for and acted in the courts to seek a greatly reduced ability of the courts to conduct judicial review of executive branch action.
He has worked to undermine Congress’s appropriation power by litigating the President’s right to divert funds to pay for his border wall which Congress refused repeatedly to fund.
He has regularly undermined the authority of independent decision making processes and career professionals, whose disinterested integrity has long been a critical element justifying public trust. He has done this through his own statements, such as last March when he publicly whitewashed the Mueller Report’s extensive findings on obstruction of justice, and last December when he publicly contradicted key conclusions reached by Inspector General Michael Horowitz in his FBI election interference probe.
Barr has also done it by enlisting various political cronies to review and reverse the decisions of experienced career attorneys, or by simply replacing them in handling matters of personal interest to the president. This is how he accomplished the reversals of long-held department positions in the cases of Trump associates Stone and Flynn, urging a much lighter sentence in Stone’s case, and outright dismissal in the Flynn case.
In a number of other matters – such as the intake of information from Trump confidant Rudy Giuliani, and investigation of unmasking requests during the Obama administration – Barr has set aside certain subject matter to be handled by people in his political inner circle, rather than by the career officials who would typically deal with it.
Finally, Barr has willingly supported removal of officials when their attention to duty proves politically inconvenient to the president. One example is the treatment of US Attorney Jesse Liu in the District of Columbia. Liu was induced to leave her position as US Attorney to accept a presidential appointment in the Treasury Department, thus making way for Barr confidant Timothy Shea to change the government’s position in both the Stone and Flynn cases, only to have her nomination withdrawn a few weeks later. The firing of Berman, whose New York office prosecuted Trump’s former attorney Michael Cohen and is investigating Giuliani, is another blatant example. So is Barr’s standing by and voicing support as Trump, during April and May, removed five Inspectors General from roles that have long served as an important check on executive branch corruption.
Narrow political interests
To an ever greater and quite shocking extent this spring, Barr has used the great powers of the Department of Justice to advance the president’s narrow political interests, and gravely undermine constitutional rights and the functioning of our democracy.
Consider his apparent role in overseeing law enforcement action on June 1 to deny the right of peaceful protest in Lafayette Square, and clear the way for the president’s photo opportunity in front of St. John’s Church. Or the plainly frivolous motion the Department recently filed, only to have it denied one day later, to enjoin publication of former national security adviser John Bolton’s book, claiming that it contained classified information. In reality, the book disclosed facts embarrassing to the President and suppressing it would have denied the people critical information about his behavior.
Or, worst of all, his flamboyant media discussions of the facts supposedly unearthed by the specially commissioned investigation he is personally conducting with the help of US Attorney John Durham. Repeatedly, Barr has echoed the President’s tweets and conclusively characterized the FBI investigation of Russian interference in the 2016 election as an effort to spy on the Trump campaign without any basis, indeed as “one of the greatest travesties in American history.” Barr has indicated that indictments are likely.
This conduct is a textbook violation of Justice Manual Rule 1-7.400, which bars public comment on a criminal investigation before charges are filed. Here, though, the wrong is much worse, as Barr is using a criminal investigation to produce fodder for the President’s campaign propaganda mill, which can have its effect even though it is false.
Get our free weekly newsletter
Lastly, it is highly relevant to Barr’s fitness for office that, in connection with official actions, he regularly makes statements that appear highly questionable. Along with his continuing media discussions to make Americans believe that the FBI conspired against Trump, his statements about the Mueller report, his assertion that US Attorney Berman had supposedly resigned, and Barr’s own role in the events at Lafayette Park, come quickly to mind. So does his practice of regularly shrouding himself in the rhetoric and trappings of the rule of law, even as he desecrates and undermines the institutions that make it possible.
All of this conduct, which flies in the face of our national commitment to a rule of law that is evenhanded and independent of the will of any one person, gives substantial reason to conclude that Barr is unfit to serve as Attorney General. It also is cause for great concern about what he may do next.