Ethics Groups Say Barr’s Use of DOJ Is Shredding Its Essential Independence

A new report from two independent, non-partisan groups focused on ethics in government excoriates the operation of the Justice Department during the tenure of Attorney General William Barr. In their report, titled “Report on the Department of Justice and the Rule of Law Under the Tenure of Attorney General William Barr (the “Report”), the Center for Ethics and the Rule of Law (CERL), affiliated with the University of Pennsylvania Law School, and Citizens for Responsibility and Ethics in Washington (CREW) decry the politicization that’s taken place under Barr. The groups accuse Barr of misusing his office to further the partisan political goals of President Donald Trump and, in the most draconian of a series of proffered “Recommendations,” call for the House of Representatives to begin a formal impeachment inquiry into the conduct of the attorney general.

The Report was undertaken “to address serious concerns about the activities of the Department of Justice (“the DOJ”) under the leadership of Attorney General William Barr with respect to the rule of law,” and represents a deep dive into multiple incidents where the DOJ has been used to further the personal and political objectives of Trump in a manner not seen since the days of Watergate. The Report presents a veritable laundry list of questionable actions initiated by Barr that have repeatedly compromised the independence, both real and perceived, of the DOJ including:

  • the attorney general’s handling of, and commentary on, the Mueller Report in the spring of 2018;
  • Barr’s authorization of, and repeated public commentary on, the “counter” investigations conducted by U.S. Attorneys John Durham and John Bash that appear intended only as partisan tools to undermine the well-founded conclusions and extensive work performed by, respectively, Special Counsel Robert Mueller and DOJ Inspector General Michael Horowitz, the Intelligence Community in its January 2017 Intelligence Community Assessment, and even the detailed inquiry on Russian election interference conducted by the Senate Intelligence Committee;
  • the politicization of DOJ with respect to criminal prosecutions of Trump political allies like Michael Flynn and Roger Stone,
  • the attorney general’s abuse of federal emergency powers in connection with activities affecting the southern border and the aggressive federal responses to civil protests;
  • the firing of politically independent federal employees like inspectors general and U.S. Attorneys;
  • the attorney general’s almost contemptuous disregard for legitimate congressional oversight and his support, both tacit and explicit, for actions that undermine the separation of powers; and
  • numerous incidents that, individually and, certainly, collectively, reflect the attorney general’s effort to mobilize the DOJ to pursue the personal legal and political interests of the president.

Barr’s controversial tenure began with his effort to preempt the actual content of the Mueller Report using the four-page summary he sent to Congress in March 2018 that was so detached from the report’s actual contents that Mueller felt compelled to write that the attorney general’s summary “did not fully capture the context, nature, and substance of this [Special Counsel] Office’s work and conclusions.” As a result, Mueller continued, “there is now public confusion about critical aspects of the investigation [which] threatens to undermine a central purpose for which the Department appointed the Special Counsel: to assure public confidence in the outcome of the investigations.”

The Report notes that Mueller was not alone in his questioning of Barr’s actions. In ensuing litigation over the legitimacy of the redactions that Barr’s DOJ made to the publicly released version of Mueller Report, U.S. District Court Judge Reggie Walton, a George W. Bush appointee and former presiding judge of the Foreign Intelligence Surveillance Court (FISC), noted that Barr’s summary produced “a narrative that is clearly in some respects at odds with the redacted version of the Report.” Calling Barr’s commentary “distorted,” Judge Walton found himself unable to “reconcile representations made by Attorney General Barr with the findings in the Mueller Report.” The differences between the actual report and the commentary proffered by Barr were so marked that they “caused the court to seriously question whether Attorney General Barr made a calculated attempt to influence public discourse about the Mueller report in favor of President Trump despite certain findings in the redacted version of the Mueller report to the contrary.”

As events unfolded, it turned out that Barr’s handing of the Mueller Report was mere prelude. In what The Washington Post describes as its “meatiest” section, the CERL/CREW report meticulously examines the circumstances of the “Durham Investigation”: Barr’s effort to use Durham, the U.S. Attorney for the District of Connecticut, to engage in a wide-ranging criminal probe which, based on media reports and Barr’s own extensive public commentary, is devoted to reexamining (read: undermining) the work of Special Counsel Mueller, Inspector General Horowitz, and the U.S. Intelligence Community.

The Report carefully tracks the meandering Durham probe through each expansion of its investigative mandate. A particular focus is on Durham’s inquiries into the January 2017 U.S. Intelligence Community Assessment (ICA) on Russian interference in the 2016 presidential election. The ICA concluded, with “high confidence,” that the Russians had acted to interfere in the election, sought to harm the electoral chances of Hillary Clinton, and developed a “clear preference” for the election of Trump.  The last assessment, in particular, has long been a bête noire of Trump’s who has sought to equip Barr with any tool necessary to undermine what Trump persistently calls the “Russia Hoax” – including the unprecedented authority to declassify any intelligence information that Barr views as “relating to his review.” With a stroke of the pen, the president conveyed what The Wall Street Journal described as “a dramatic escalation in power for the attorney general” while consigning the protection of the nation’s intelligence sources and methods to the whim of an attorney general devoted to serving his political interests.

The Report cogently describes the dangers of exposing the nation’s intelligence activities to such blatantly partisan actions, observing that:

Barr’s willingness to unleash Durham to probe the very processes by which the Intelligence Community produces and analyzes foreign intelligence poses the danger of a potentially fundamental reshaping of executive branch relationships that may cause intelligence professionals to recalculate their priorities in a way that undermines the integrity of their work.

To date, Durham’s lengthy inquiry has produced nothing more tangible than the guilty plea of Kevin Clinesmith, the disgraced former FBI counsel who admitted to altering an email that was used to support the last of the Carter Page FISA renewals. Clinesmith, who was actually first identified through the investigative work of DOJ IG Horowitz, represents decidedly low-hanging fruit, but there is little to suggest that Durham will generate anything materially more substantial. Much like the recently concluded effort of former U.S. Attorney John Bash, whose investigation into Barr’s concocted concerns about “unmasking” closed with no tangible results, Durham’s probe seems unlikely to verify the shrill squealing about “OBAMAGATE” that has been a staple of Trump’s tweets. Ultimately, as the Report concludes, the Durham Investigation

undertaken for political reasons, ceaselessly promoted by the vocal partisan commentary of the attorney general, and pursued with little appreciation for the environment in which foreign intelligence analysis is conducted, [has] needlessly risk[ed] the compromise of the nation’s secrets while undermining the fair administration of justice and the rule of law.

Strenuously seeking to validate the president’s paranoid obsession with the “Russia Hoax” hardly represents the limits of this attorney general’s partisan activities. He has interceded in the criminal prosecutions of Stone and Flynn, noted allies of the president’s, in an effort to secure more favorable outcomes for these defendants. His relationship with current and former Assistant U.S. Attorneys (AUSAs) is notably fraught. Over 1,100 former DOJ prosecutors have called for his resignation; and career AUSAs in Massachusetts and California have publicly repudiated his tenure. For his part, Barr has fired back saying career prosecutors seek glory for themselves by hunting prominent public figures, and need to be restrained by political appointees.

An extreme view of presidential power

The Report examines Barr’s actions in connection with critical matters going to the very heart of the separation of powers and federalism. According to the Report, “Barr appears to embrace an autocratic view of the power of the executive branch, specifically presidential power, and he views his own extensive authority as flowing from this nearly unbounded view of presidential power.” Consistent with this extreme view of executive authority, Barr has used the power of the DOJ to:

  • aggressively employ federal law enforcement personnel in response to citizen protests even where local officials and law enforcement have resisted federal involvement – including the egregious use of federal officers to clear Lafayette Park in Washington, D.C., so that Trump could make his pilgrimage to St. John’s Church for a photo op that concluded with him awkwardly hoisting a Bible;
  • passively accept the president’s extreme interpretation of the National Emergencies Act to justify the transfer of congressionally appropriated funds to build Trump’s border wall over the objections of Congress;
  • persistently support the president’s baseless claim that mail-in voting increases the risk of voter fraud when existing research and the FBI director have repeatedly rejected such assertions; and
  • undermine emergency steps taken by governors and local officials to contain the COVID pandemic while parroting the president’s own rejection of quarantine measures, even as Barr, himself, offensively compared COVID lockdown orders with slavery. In each instance, as the Report describes it, “one deeply concerning common thread is the attorney general’s inconsistent positions on core constitutional rights. For this DOJ, whose ox is being gored appears more important than whether a particular federal action is legal or illegal.”

The Report also proceeds through a discussion of the multiple other examples of Barr’s abusive tenure at the Justice Department including his selective firing of U.S. Attorneys, his acquiescence in Trump’s dismissal of department IGs, his repeated violations of DOJ guidelines prohibiting public commentary on matters like the Durham and Bash investigations, and his studious passivity in the face of the Trump administration’s cavalier, almost insulting, disregard for the restrictions of the Hatch Act.

Barr’s distorting manipulation of the Justice Department for Trump’s personal benefit continues unabated. Recently, the DOJ intervened in a defamation lawsuit filed against Trump stemming from Trump’s alleged mid-1990s sexual assault of E. Jean Carroll in a Bergdorf Goodman’s dressing room. According to Barr’s DOJ, Trump’s was “acting within the scope of his official duties” when, in a 2019 interview, he denied Carroll’s accusations of sexual assault which, in Barr’s view, warranted not only providing Trump with a taxpayer-funded defense by the government but also substituting the United States, for Trump, as the defendant in the case.

Even more recently, DOJ filed suit to seize the profits of a “tell-all” memoir about Melania Trump, accusing the author and former senior aide to the first lady of violating a White House nondisclosure agreement. Again, according to Barr’s DOJ, although the first lady is not a government employee, the federal courts have jurisdiction given the “national nature of the interests and operations related to the [first lady]” and because the contract concerned services in Washington memorialized on official White House stationery.

These latest examples of DOJ intervention in civil litigation involving essentially private disputes between the Trumps and non-government parties continue the erasure of the post-Watergate line of demarcation, which was carefully erected to keep the Justice Department independent from the personal legal issues and political interests of a sitting president. They amplify the serious concerns expressed in the Report demonstrating that, by almost any objective measure, the DOJ has become Trump’s personal law firm and, as the Report concludes, in every sense, Barr “has become a law unto himself.”

Yet, even this unprecedented obeisance to presidential whim has proven inadequate for this chief executive. With Barr having already acknowledged to anxious Republicans that any report produced by his “Durham Investigation” will not be ready before the election, the president is reportedly criticizing his attorney general and FBI director for their failure to publicly announce that Joe Biden, his son, Hunter, and/or other Biden associates are under investigation. According to media reports, Trump is chafing at Barr’s inability to deliver a last-minute boost similar to that provided by the October 2016 announcement, 11 days before the 2016 election, by then-FBI Director James Comey that the FBI had reopened an investigation into Hillary Clinton’s use of a private email server while she served as secretary of state. That a president could issue such an open call to his attorney general demanding the initiation of a blatantly politicized law enforcement action for the obvious purpose of abetting the president’s reelection campaign illustrates just how much distance Barr has put between the operation of his DOJ and the standard of independence the American public has come to expect of the Justice Department in the years since Watergate. It is precisely this chasm between the fair administration of justice and Barr’s DOJ that prompted the efforts that produced the CERL/CREW Report.

Its careful examination of Barr’s conduct as attorney general led the working group that produced the Report to

reach the dismaying conclusion that Mr. Barr regards the DOJ as limited in its operations by nothing other than contrary political power. There is no evidence that Mr. Barr seeks to constrain the operations of the DOJ in accordance with a view of law as a limiting principle on its authority. Law serves at best as a rhetorical tool for enhancing power rather than as a source of constraint on that power.

Expanding on this conclusion, the Report opines that “Mr. Barr is using the powers of the DOJ as a vehicle for supporting the political objectives of President Donald Trump.”

Indeed, so grave are the “Findings” expressed in the Report regarding the operation of the DOJ under Barr, that the “Recommendations” proffered by the working group that assembled the Report lead off with a call “that the House of Representatives open a formal impeachment inquiry into the conduct of Attorney General Barr.” Other recommendations follow, including calls for: (1) strengthening the independence of the special counsel, (2) appointing both U.S. Attorneys and departmental inspectors general to staggered 10-year terms, (3) strengthening the independence of career DOJ attorneys in all departments, and (4) strengthening the independence of the Intelligence Community including, specifically, the Office of the Director of National Intelligence.

At his first confirmation hearing in 1991, Barr told the Senate Judiciary Committee that the attorney general “holds in trust the fair and impartial administration of justice” and bears responsibility “to enforce the law evenhandedly and with integrity.” Now, in his second tenure as the nation’s chief law enforcement officer, this new report charts just how far Barr has strayed from those lofty goals to assume, instead, the role of partisan factotum for an authoritarian president who measures national interest through the warped prism of what serves his thirst for individual power and personal gain. Given his general dismissive disdain for critics, there is no reason to believe that any of the Report’s suggested “Recommendations” are likely to be implemented, or even considered, by a Justice Department managed by Barr; so, perhaps, the most important unspoken message delivered by this report lies in its timing. Issued less than one month before Election Day, the Report, in meticulous detail, reminds all who prize an independent DOJ that the return to a Justice Department devoted to the fair administration of justice and the rule of law is on the ballot just as clearly as the election of the nation’s next chief executive. Indeed, many would argue that the selection is one and the same.

Image: President Donald Trump and Attorney General William Barr step off Air Force One upon arrival at Andrews Air Force Base in Maryland on September 1, 2020. Photo by MANDEL NGAN/AFP via Getty Images

 

About the Author(s)

George Croner

Former principal litigation counsel at the National Security Agency. He is a Senior Fellow at the Foreign Policy Research Institute, and a member of the Advisory Council at the Center for Ethics and the Rule of Law (CERL) at the University of Pennsylvania Law School. Follow him on Twitter @GeorgeCroner.