Specific Questions for Congress (and News Media) to Ask Attorney General Barr

Originally published on Feb. 18, 2020. Updated on June 22, 2020

Attorney General William Barr has a lot to answer for.  Roger Stone.  Michael Flynn.  Geoffrey Berman.  Robert Mueller.  The names alone are enough to spark recollection of how Barr has raised profound concerns about his performance at the helm of the Justice Department.  Now he has a chance to explain himself.

With the shocking and still unexplained removal of Geoffrey Berman from serving as head of the U.S. Attorney’s Office for the Southern District of New York, the House Judiciary Committee Chairman said he’s inviting Barr to testify at a hearing on Wednesday addressing the state of affairs at the Justice Department.  We’re not naïve. We doubt Barr will show up.  But it’s important nonetheless to understand just how much he has to answer for, whether it’s on Wednesday or on other occasions—and whether it’s before congressional representatives or journalists. It’s also important to specify what questions should be asked.

Barr has become ever more central to Donald Trump’s presidency. He has reportedly or by his own admission become directly involved in six major investigative and prosecutorial matters that coincide with the President’s personal interests: 1) the Special Counsel investigation into Russia’s 2016 election interference; 2) the whistleblower complaint outlining Trump’s actions with Ukraine; 3) the investigation into the investigators of the 2016 election; 4) the prosecutions resulting from Mueller’s investigation, including Michael Flynn and Roger Stone; 5) the indictment of a Turkish bank in alignment with Trump’s personal and financial interests; and 6) Berman’s abrupt departure. And these prosecutorial matters don’t cover his questionable conduct concerning areas that are arguably not even in his jurisdiction, like his advocacy of the drug hydroxychloroquine as a cure for COVID-19, or bringing in armed and unidentified federal agents, against the wishes of the D.C. mayor, during the recent Black Lives Matter protests in D.C.

Here are a few—well, maybe more than a few—questions for members of Congress and the media to ask him.  This is our third iteration of this list.  Few, if any, of the questions previously on the list have been satisfactorily answered by Barr—while additional ones have arisen.

At the very heart of the concerns about the current Attorney General is his apparent failure as the nation’s top law enforcement officer to apply the law equally to all Americans. His most sacred duties include avoiding dispensing justice disproportionately for the President’s political friends and imposing scrutiny disproportionately to the President’s perceived political adversaries. Many of our questions go to this core concern—the equal application of the law—by asking Barr whether the treatment he gave to Roger Stone, Michael Flynn, Paul Manafort, and others is unusual, and whether he can even name other cases in which he made similar interventions on behalf of any American, let alone Trump’s perceived adversaries. The answer to those and other questions will reveal the degree to which Barr has damaged the Department by the appearance and reality of political interference.

A. Geoffrey Berman’s Departure

1. Do you hereby testify—under penalty of perjury—that your June 19 statement that Mr. Berman had resigned was true when you issued it?

2. On what basis did you seek Mr. Berman’s resignation, especially when he clearly continued to have the trust of the Trump administration given the senior leadership roles at the Justice Department he’d been offered at the time?

3. With whom in the White House or Justice Department did you discuss the decision to seek to oust Mr. Berman before you met with him on Friday, June 19?

4. On what legal grounds did you initially announce that you could and would install the U.S. Attorney for the District of New Jersey as Mr. Berman’s successor? Did you consult the Justice Department’s Office of Legal Counsel, and regardless how did you reconcile your approach with the OLC opinion by (now Justice) Samuel Alito, which concludes that the Office of the Attorney General could not select a successor under the relevant statute? What led you to change course and provide for Mr. Berman’s deputy, Audrey Strauss, to become his successor instead?

5. Before you made your statement on June 19 saying that Mr. Carpenito would replace Mr. Berman, what had you told Mr. Carpenito about Mr. Berman’s views on remaining in his position? Did you tell Mr. Carpenito that Mr. Berman had decided to step down?

6. What additional assurances, beyond your letter of June 20 to Mr. Berman, can you give that you will allow Ms. Strauss to serve in office until a Senate-confirmed successor is in place?

7. On June 20, you wrote a letter to Mr. Berman indicating that President Trump had sought his departure—that is, fired him. But, soon thereafter, President Trump said publicly that he was “not involved” in the matter and that it was entirely in your hands. Which was it?

8. Without publicly identifying any particular investigation, are you aware of any matters whose investigation is being overseen by the Southern District of New York involving President Trump or his business, charities, or other such entities linked to him personally?

9. Have you ever discussed any of these cases with the President?

10. Have you ever sought to have the Southern District of New York not pursue a criminal investigation or prosecution that Mr. Berman wanted to pursue?

11. Would it have been inappropriate for you to try to have Mr. Berman stop the Southern District’s criminal investigation or prosecution of Turkey’s Halkbank? Under what circumstances would it have been inappropriate? (For more on Halkbank, see #55 below.) Would it have been inappropriate for you to try to have Mr. Berman stop the Southern District’s criminal investigation or prosecution into Rudy Giuliani? Under what circumstances would it have been inappropriate?

12. Regardless of whether the president had good reasons to nominate Jay Clayton to head the Southern District, why would you take the unusual step of removing Mr. Berman before the Senate confirmed his successor?

13. Are you of the opinion that because a sitting president is immune from indictment, federal prosecutors should not investigate the president while he is still in office for any matters such as insurance fraud?

14. You testified before the Senate that Robert Mueller should have made a recommendation for or against indictment of President Trump. Does the same apply to federal prosecutors (including the Southern District) as well? If they were to conduct a criminal investigation of the president, should they also reach a formal conclusion as to whether he is indictable for the relevant criminal offenses? (see also #58 below)

B. Michael Flynn’s Prosecution

15. Are you aware of any other case in which the Justice Department, after obtaining a guilty plea from a defendant and without a court identifying any error, sought to dismiss the charges to which that defendant pleaded guilty?

16. The analysis of materiality provided by the Justice Department in its motion to dismiss the charges against General Flynn and in subsequent court filings is novel. Have you applied it to any other pending cases?  [The answer should be “no.”]  Have you analyzed methodically to which other pending cases that analysis applies? Or another way of pursuing this same issue: A week before the Justice Department filed its motion to dismiss the charges against Flynn, the Department submitted a brief in another case setting forth the standard definition of materiality, which differed dramatically from what was said in the Flynn case. How do you explain this discrepancy?

17. The Justice Department’s abrupt decision to drop the charges against Flynn prompted the career prosecutor who’d been handling the case to withdraw from the matter, much as the Department’s abrupt change in a sentencing recommendation for Stone caused the career prosecutors who’d been handling that case to withdraw (and, for one of them, to leave the Department entirely). Why do you think that is?  What does it say to you when decisions being made in a very small number of cases involving the President’s close associates are prompting these very unusual reactions from the Department’s career workforce?

18. How would you characterize the FBI’s counterintelligence mission? If the FBI becomes aware of a close associate of the president—such as his national security advisor—having lied to another close associate of the President—such as his vice president—about his interactions with foreign powers, do you think that the FBI should simply remain a passive bystander, or do you regard some further action as appropriate?

19. It’s clear, from his own words, that President Trump doesn’t believe that General Flynn should be punished for what he did. The President has the authority to make that so through the pardon power.  Why did your Justice Department seek to dismiss the charges to which General Flynn had already pleaded guilty—an unprecedented step, as noted above—rather than simply advise the president about the proper way to achieve the result he’s seeking in the matter?

C. Roger Stone’s Sentencing

20. Do you hereby testify that everything you said in your interview with ABC News on February 13 is true and accurate – including your description of the events related to the Roger Stone sentencing and your more general statement that “the president has never asked me to do anything in a criminal case”?

21. You redacted significant portions of the Special Counsel Report which had to do with Roger Stone, specifically those portions that pertained to the President’s knowledge of releases by Wikileaks, including that Mueller “established that the Trump Campaign expressed an interest in the Wikileaks releases, and that former Campaign member Roger Stone was in touch about those releases, claiming advance knowledge of more to come.” Why did you redact this part of the Special Counsel Report?

Even after Stone was sentenced, your department still did not unredact the above information. Why not?

22. Before Stone’s sentencing, have you ever (as Attorney General now or previously, or as Deputy Attorney General before that) overruled line prosecutors on a sentencing recommendation that was within the guidelines range?

23. Have you ever prosecuted a case? [The answer will be “no.”] On whose prosecutorial expertise did you rely on coming to your conclusion that the recommended sentencing range in Stone’s case was too high?

24. In general, what justifies overruling line prosecutors on a sentencing recommendation within the guidelines range? What standard do you apply, and is it written down anywhere? Isn’t it against your Justice Department’s policy not to seek a sentence within the guidelines range and indeed not to seek the maximum for Stone?

25. Given that you’ve criticized district attorneys around the country for advocating for lower sentences, what makes the Stone sentence one that you regarded as too high rather than too low? How do you justify overturning the career prosecutors’ sentencing recommendation and asking the judge to depart from the guidelines in this case, especially given (1) the universally accepted emphasis on the role of the guidelines in providing uniformity in sentencing and (2) the inescapable facts that the defendant in this case is a close friend of the President and associate of his own presidential campaign?

26. Do you believe that, when as here a case involves a personal associate of the president, there may be an appearance of partiality in your intervention? Did you consider delegating this decision to a non-political official at the Justice Department?

27. Can you provide this committee with specific instances, since you have been the Attorney General under President Trump, where you have intervened in a sentencing recommendation on a case that did not personally affect or involve the president or someone he knows personally?

28. Senator Lindsey Graham said that the revised sentence was in fact within the guidelines range because the victim allegedly didn’t feel threatened. But the guidelines range depends on whether the threat included violence, not whether the person threatened did or didn’t feel threatened; and, given that Stone’s threat did include violence, the original sentence was the one actually within the guidelines range. So isn’t Senator Graham simply incorrect?

29. The revised sentencing recommendation asks the judge to take into account Stone’s age and health. However, the guidelines allow health to be considered only for “an extraordinary physical impairment” such as “in the case of a seriously infirm defendant, home detention may be as efficient as, and less costly than, imprisonment.” And age can be a consideration only if it creates conditions that are of “an unusual degree and distinguish the case from the typical cases covered by the guidelines.” What extraordinary or unusual conditions does Stone have that meet these tests set out in the guidelines?

30. Isn’t it against the policy of the U.S. Attorney’s Office for the District of Columbia not to give a specific recommendation to the court, and hasn’t the judge said she wants a specific recommendation? So how is it consistent with that policy and direction for you to say in your ABC News interview that you personally decided not to give a recommendation? When has that happened other than in Stone’s case?

D. Handling of the Ukraine Whistleblower Complaint

31. Do you hereby testify that everything said in Department of Justice statements about your involvement in the President’s and Rudy Giuliani’s actions toward Ukraine are true and accurate – including the following:

(i) “The President has not spoken with the Attorney General about having Ukraine investigate anything relating to former Vice President Biden or his son. The President has not asked the Attorney General to contact Ukraine — on this or any other matter. The Attorney General has not communicated with Ukraine on this or any other subject. Nor has the Attorney General discussed this matter, or anything relating to Ukraine, with Rudy Giuliani.” (Justice Department Statement, Sept. 25, 2019)

(ii) “Mr. Bolton also said that after the president’s July phone call with the president of Ukraine, he raised with Attorney General William P. Barr his concerns about Mr. Giuliani, who was pursuing a shadow Ukraine policy encouraged by the president, and told Mr. Barr that the president had mentioned him on the call. A spokeswoman for Mr. Barr denied that he learned of the call from Mr. Bolton; the Justice Department has said he learned about it only in mid-August.” (New York Times, Jan. 28, 2020)

(iii) “The Attorney General was first notified of the President’s conversation with Ukrainian President Zelensky several weeks after the call took place, when the Department of Justice learned of a potential referral. The President has not spoken with the Attorney General about having Ukraine investigate anything relating to former Vice President Biden or his son. The President has not asked the Attorney General to contact Ukraine — on this or any other matter. The Attorney General has not communicated with Ukraine — on this or any other subject. Nor has the Attorney General discussed this matter, or anything relating to Ukraine, with Rudy Giuliani.
A Department of Justice team led by U.S. Attorney John Durham is separately exploring the extent to which a number of countries, including Ukraine, played a role in the counterintelligence investigation directed at the Trump campaign during the 2016 election. While the Attorney General has yet to contact Ukraine in connection with this investigation, certain Ukrainians who are not members of the government have volunteered information to Mr. Durham, which he is evaluating.”
(Statement of Kerri Kupec, Spokesperson, Department of Justice (Sept. 25, 2019), as emailed by the Department of Justice to the House Permanent Select Committee on Intelligence).

32. When you saw that your name was included in the call memorandum at the center of the Ukraine whistleblower’s complaint and in the complaint itself, did you consider recusing yourself from anything related to the complaint? Whom did you consult about a potential recusal? What led you to decide not to recuse?

33. There is a longstanding rule, still in effect, that requires that possible election-law violations, like the one raised by the whistleblower’s complaint, be referred by the Justice Department to the Federal Election Commission. Why didn’t you order such a referral in this case? If you weren’t aware of this rule, you are now, thanks to this question—so will you be making the required referral?

34. Why was it appropriate for a whistleblower complaint that addressed behavior by the President and his National Security Council lawyers to be shared with the White House?

35. What role did you play in overseeing the Office of Legal Counsel opinion that concluded the whistleblower complaint should not be provided to Congress, despite the finding by the intelligence community’s inspector general that the complaint was required by law to be shared with Congress?

36. Did you consider that separation-of-powers concerns might warrant advising the House and Senate Intelligence Committees of the existence of a complaint filed with the ICIG, even if you believed that the substance of that complaint did not warrant forwarding it per relevant law? If not, how do you believe your interpretation of the law could have been adjudicated, given that it encroached on the interests of a coequal branch of government?

37. The Council of the Inspectors General on Integrity and Efficiency sent your head of the Office of Legal Counsel, Steven Engel, a letter roundly rejecting his legal analysis and requesting that he withdraw or modify his opinion. Has he done so? If not, is it your position that the Department of Justice can unilaterally overrule an IG’s conclusion that a whistleblower complaint involving the President is a matter of “urgent concern,” without informing Congress?

38. Have there been other whistleblower complaints forwarded to you that your department has concluded do not warrant forwarding to the appropriate members of Congress?

39. What would you say to members of Congress who publicly use the name of individuals alleged to be whistleblowers, given the legal protections afforded to whistleblowers and the emphasis on the anonymity available to them?

E. Investigating the Investigators: The Durham Investigation and More

40. After the Justice Department inspector general issued his report on the 2016 counterintelligence investigation, U.S. Attorney John Durham issued a statement casting doubt on the report’s findings (a stark departure from typical practice) and commenting on Durham’s own ongoing criminal investigation (another stark departure from typical practice)? What communications did you have with Durham before he issued his statement? Regardless of any communications with Durham then, do you regard his statement as appropriate, and if so why? You also made statements about Durham’s ongoing investigation in interviews with the press. Have you ever commented on an ongoing criminal investigation before?

41. Reports indicate that Durham is considering criminal charges based on his reassessment of the work of intelligence community analysts in 2016. What precedent does the Department have for considering criminal charges against intelligence community analysts based on later second-guessing of their analysis? If there’s no precedent, what standards will be applied to this novel approach?

42. Reports indicate that you’ve installed DOJ prosecutors to review the work of other DOJ prosecutors who successfully obtained a guilty plea from former National Security Advisor Michael Flynn, even as the case remains ongoing and the prosecutors on the case need to appear before a federal judge for Flynn’s long-awaited sentencing. What precedent is there for this type of second-guessing of prosecutors even as a criminal prosecution remains ongoing, especially in the absence of any apparent improprieties or misdeeds? What standards did you apply when determining that this particular case deserved this unusual scrutiny? Even if you cannot discuss an ongoing review, under what conditions would you bring in an outside prosecutor to review an existing or prior criminal case for wrongdoing rather than the Inspector General?

43. The same reports indicated that you have or are planning to have DOJ lawyers second-guess other cases of particular interest to the president. What other cases are those? What standards did you apply and will you apply to identifying them? What historical precedent is there for this approach?

44. Does your theory of essentially unlimited and unreviewable executive power apply to presidents who have previously occupied the Oval Office? If so, didn’t President Obama clearly have the authority to investigate allegations of election interference by a hostile foreign intelligence service, including evidence that the service may have been in contact with a presidential campaign—in which case isn’t Durham’s entire investigation moot, and perhaps even inappropriate?

45. Has the President every communicated with you about his view on the speed of the Durham investigation, including (1) when Durham will conclude his work and/or (2) how that timing relates to Election Day 2020?

46. On June 21, you told Fox News that, with respect to the Durham investigation, “what happens after the election may depend on who wins.” That seems a pretty candid acknowledge that the investigation is politically tinged—after all, Attorneys General generally assume that the Justice Department’s investigations won’t be affected by election results precisely because they regard those investigations are not  Aren’t your remarks an acknowledgment of your own awareness that the investigation is so political in nature that it very well might not survive into a different administration?

47. George J. Terwilliger III, a deputy attorney general under President George H.W. Bush, correctly stated , “There’s a long-standing [Justice Department] policy of not doing anything that could influence an election.” In a recent radio interview, you inappropriately suggested that the department’s policy of non-interference in elections applies only to indictments against candidates or their close aides. Can you assure Congress and the public that you will abide by the long-standing policy in the run up to the November elections? Do you acknowledge that the Durham investigation (including the issue of unmasking) has been explicitly—though misleadingly—framed by the president and some Republican members of Congress as though it implicates Joe Biden, such that the related investigations is certainly covered by the policy of non-interference in elections? (see also Part F below)

F. New Policy for Opening Campaign-Related Investigations

48. Is there any precedent for requiring the personal approval of the Attorney General himself for the FBI simply to take the initial step of opening an investigation?

49. Is there any precedent for requiring FBI notification to the Assistant Attorney General simply “upon opening an assessment” or “taking exploratory investigative steps”?

50. The Senate Intelligence Community recently published the third volume of its report on 2016 Russian election interference, and its central conclusion is that too little was done in 2016 to investigate the very real penetration of American democracy that the Kremlin achieved through the vulnerabilities offered by the Trump campaign. The natural additional conclusion is that, in the future, more must be done; yet your new policy would make it harder to do more. Why do that?

51. Your Criminal Division concluded that Trump’s request to President Zelensky to open an investigation of Joe and Hunter Biden did not constitute solicitation of a campaign contribution warranting any further investigation. Is there an OLC opinion on that? If not, how did you arrive at that legal conclusion?

52. Are there circumstances under which the same behavior could be legal if done by the president, but illegal if done by a “regular” presidential campaign? For example, if President Trump were to solicit directly from a foreign intelligence service the hacking of a rival presidential candidate’s emails, would any possible criminal or civil liability that would attach to a regular presidential campaign disappear because Trump is the president?

53. You told ABC News, “If [the President] were to say, you know, go investigate somebody because – and you sense it’s because they’re a political opponent, then an attorney general shouldn’t carry that out, wouldn’t carry that out.” What standard exactly is it you’re proposing to apply in such circumstances? Would it be met by a request by President Trump to you to investigate Joe or Hunter Biden right now? (See also # 47 above).

G. Miscellaneous

54. Manafort: For whom else other than Paul Manafort have you or your Deputy Attorney General interceded to change prison conditions? What was your personal role in that decision? Did you have any communication with the president or White House staff about Manafort’s transfer to Rikers before the Justice Department’s leadership intervened on Manafort’s behalf?

55. Halkbank: Did you have any communications with the President or White House staff about the criminal investigation of Turkey’s Halkbank? Did you try to avoid criminal indictment of the bank in the Southern District of New York? Why would the President or you try to avoid a criminal indictment of the bank given the serious allegations that it engaged in a multi-billion dollar scheme to violate U.S. sanctions against Iran?

Do you hereby testify that everything said in Department of Justice statements about the Halkbank investigation are true and accurate – including the following:

“While the Department of Justice has not reviewed Mr. Bolton’s manuscript, the New York Times’ account of this conversation grossly mischaracterizes what Attorney General Barr and Mr. Bolton discussed. There was no discussion of ‘personal favors’ or ‘undue influence’ on investigations, nor did Attorney General Barr state that the President’s conversations with foreign leaders was improper,” the statement said. “If this is truly what Mr. Bolton has written, then it seems he is attributing to Attorney General Barr his own current views — views with which Attorney General Barr does not agree.” (Justice Department Statement, Jan. 28, 2020)

56. Hush-Money Payments: Did you have any involvement in the Southern District of New York’s decision to close the investigation of hush-money payments that implicated the president?

57. Crossfire Hurricane: Do you have any reason to dispute Inspector General Michael Horowitz’s testimony in which he stated, “We did meet with Mr. Durham. … He said during the meeting that the information from the friendly foreign government was, in his view, sufficient to support the preliminary investigation”?

58. Possible Investigation of Trump: Is it your view that, if the Justice Department cannot indict a sitting president, the Department cannot criminally investigate a sitting president? Does that mean your Justice Department will not investigate President Trump even if there is evidence that he very likely engaged in criminal conduct, and even if investigation now may be necessary to preserve that evidence for possible future prosecution when he is out of office? (see also #14 above). 

About the Author(s)

Joshua Geltzer

Executive Editor. Founding Executive Director of the Institute for Constitutional Advocacy and Protection and Visiting Professor of Law at Georgetown University Law Center. Former Senior Director for Counterterrorism at the National Security Council, former Deputy Legal Advisor to the National Security Council, and former Counsel to the Assistant Attorney General for National Security at the Department of Justice. Follow him on Twitter (@jgeltzer).

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016). Follow him on Twitter (@rgoodlaw).

Asha Rangappa

Senior Lecturer at Yale’s Jackson Institute for Global Affairs. She served as an FBI counterintelligence agent from 2002 to 2005. Member of the editorial board of Just Security. Follow her on Twitter @AshaRangappa_.