William Barr: A Failed Attorney General Unfit to Serve – Just Security op-ed by Wertheimer
Enclosed for your information is an article by Democracy 21 President Fred Wertheimer entitled “William Barr: A Failed Attorney General Unfit to Serve,” which was published here in Just Security on February 4, 2020.
According to the piece:
In sum, Barr, as attorney general, engaged in a pattern of biased actions to support and validate repeated false claims and improper actions by Trump, and Barr failed to comply with the norms, rules and standards of conduct of the Justice Department.
Barr’s actions have been in stark conflict with his duty to administer the “impartial administration of justice on behalf of all Americans.” He has seriously and repeatedly undermined the integrity and credibility of the Justice Department.
William Barr has failed the American people and is unfit to serve as attorney general.
Read the full piece here or below.
William Barr: A Failed Attorney General Unfit to Serve
Fred Wertheimer | February 4, 2020 | Just Security
During the tenure of Attorney General Jeff Sessions, President Donald Trump complained that Sessions was not protecting him. “Where is my Roy Cohn?” Trump would ask, referring to the legendary protect-your-client-at-all-costs (and ultimately disbarred) attorney, who represented Trump for years.
Trump eventually got rid of Sessions and named William Barr as his new attorney general, clearly with the goal of having Barr serve as Trump’s personal defense attorney, not as the nation’s chief law enforcement official. And that is what Barr has done.
The core mission of the Department of Justice is “to ensure fair and impartial administration of justice for all Americans.” This has not been Barr’s mission, however, as he has repeatedly abused his office to provide personal and political protection for Trump at the expense of the integrity and credibility of the department.
On January 17, Democracy 21 filed a complaint with the Justice Department’s Office of Professional Responsibility and the Departmental Ethics Office that detailed Barr’s pattern of biased actions and his failure to comply with Justice Department norms, rules and standards of conduct. The complaint requested these offices to investigate and take appropriate action regarding Barr’s improprieties. (You can read the most recent complaint as well as previous complaints filed by Democracy 21 against Barr here, here and here).
Similar concerns about Barr were raised by the New York City Bar Association in a Jan. 8 letter to the Republican and Democratic leaders of the House and Senate. The letter expressed “serious concerns about the propriety of Barr’s recent actions and statements.” It urged Congress “to commence formal inquiries into a pattern of conduct by Attorney General William P. Barr that threatens public confidence in the fair and impartial administration of justice.”
Barr as Private Citizen Attacked the Mueller investigation
Barr signaled that both he and Trump saw Barr’s role as that of legal and political defender of the president when, as a private citizen, he sent an unsolicited 19-page memo to the White House and Justice Department on June 8, 2018. The memo attacked Special Counsel Robert Mueller’s investigation of the Trump campaign’s involvement with Russia in the 2016 presidential election.
According to The Washington Post, the Barr memo criticized “special counsel Robert S. Mueller III for a ‘fatally misconceived’ legal theory of how President Trump may have obstructed justice.” Barr issued a grave warning that if Mueller’s view was accepted by the Justice Department, “it would do lasting damage to the presidency and to the administration of law within the executive branch.”
In retrospect, the memo appears to have been, among other things, Barr’s job application for the position of attorney general. He got the job.
Barr Misrepresented the Mueller Report and Manipulated its Release to Benefit Trump
In July 2016, well before Barr became attorney general, the FBI opened an investigation into Russian interference in the 2016 presidential election and whether Trump campaign officials coordinated or conspired with Russia. In May 2017, former FBI Director Robert Mueller was appointed as special counsel to conduct this investigation.
From the beginning, Trump attacked the Justice Department, the FBI and the Mueller investigation — using a nonstop mantra of “no collusion,” “no obstruction,” “hoax,” and “witch hunt.” The New York Times characterized Trump’s views as “his long obsession with the origins of the Russia inquiry.”
Barr supported Trump’s attacks by testifying to Congress that FBI and Justice Department officials engaged in “spying” on the Trump campaign during the 2016 presidential election. But when he was asked about evidence to support his claim, Barr said, “I have no specific evidence that I would cite right now. I do have questions about it.” Barr knew or certainly should have known that his unsubstantiated allegation would be publicly used by the president to validate Trump’s unsubstantiated claim that illegal “spying” on his campaign had occurred.
In July 2019, after Barr became attorney general, Mueller released a full report on the findings of his investigation.
Upon receiving the final report from the special counsel and before it was released to the public, Barr sent a four-page letter to Congress on March 24, 2019, mischaracterizing the Mueller report. Barr then left this mischaracterization as the only information available for almost a month before he finally released the full report to Congress and the public.
Mueller himself sent a letter to Barr on March 27 protesting Barr’s characterization of the report and urging him to release the summaries contained in the report itself. Mueller said that releasing the summaries at that time “would alleviate the misunderstandings that have arisen and would answer congressional and public questions about the nature and outcome of our investigation.” Barr refused to release the summaries.
Barr’s March 24 letter combined with his almost month-long delay in publicly releasing the report allowed Trump to falsely claim that the Mueller report exonerated him on charges of “collusion” and obstruction of justice.
In fact, the report did not exonerate Trump on “collusion” at all. It did not even deal with the subject, but only dealt with the issues of conspiracy and coordination. While Mueller did not find sufficient evidence to charge these matters, the investigation found “multiple links between Trump Campaign officials and individuals tied to the Russian government,” including links that were lied about. The report also explicitly did not exonerate President Trump on obstruction of justice. The report found “10 instances where President Donald Trump’s conduct raised issues of possible obstruction of justice.”
The report stated that the special counsel could not seek an indictment of Trump because of a Justice Department policy that prohibited indictment of a sitting president.
On April 18, 2019, hours before the release of the redacted report to Congress and the public, Barr held a lengthy press conference in which he continued to mischaracterize the Mueller report. Barr said the Mueller report found there was “no collusion” between the Trump campaign and Russia even though Barr knew the report said it was not addressing the question of “collusion.”
Barr’s knowing mischaracterization of the Mueller report served to validate Trump’s false claim that the report exonerated him in finding “no collusion.”
Barr Attacked the Inspector General’s Report that Validated the Russia Investigation; He Failed to Comply with DOJ Rules
In March 2018, Justice Department Inspector General (IG) Michael Horowitz announced that he was undertaking an independent investigation into the origins and conduct of the Justice Department’s investigation of the 2016 Trump campaign.
In May, notwithstanding the fact that the inspector general’s independent investigation had been underway for well over a year, Barr announced his own separate investigation into the origins of the Justice Department’s 2016 investigation, the same matter being looked at by the IG.
Barr appointed U.S. Attorney John Durham to head his investigation, under Barr’s direct control and supervision. In October, the Durham investigation was switched from “an administrative review of the Russia investigation overseen by Attorney General William P. Barr to a criminal inquiry.”
On December 9, the IG released his report finding that the Justice Department had had sufficient basis to initiate the 2016 investigation and that FBI and Justice Department officials had acted without political bias in conducting the investigation.
While the report also found that the FBI committed a number of errors in dealing with the FISA court to seek and renew wiretap warrants related to Carter Page, a former Trump campaign adviser, the report concluded that “under the AG Guidelines and the [FBI Guidelines], the FBI had an authorized purpose” in opening the investigation.
Barr immediately attacked the report. He rejected the key finding by the IG, stating that “the FBI launched an intrusive investigation of a U.S. presidential campaign on the thinnest of suspicions that, in my view, were insufficient to justify the steps taken.” (Emphasis added).
Durham also publicly challenged the IG report, stating that he “advised the Inspector General that we do not agree with some of the report’s conclusions as to predication and how the FBI case was opened.”
These statements challenging the IG report gave cover to Trump and his repeated attacks on the Mueller investigation
Barr and Durham apparently used their ongoing criminal investigation as a basis for attacking the findings of the IG. DOJ rules, however, prohibit Department officials from publicly commenting on open criminal investigations.
Justice Department personnel may not “confirm the existence of or otherwise comment about ongoing investigations” and may not comment on “the nature or progress” of an “ongoing investigation.” USAM § 1-7.400 (April 2018). This provision forbids Department officials, including the attorney general, from engaging in any discussion about active criminal investigations, except in limited, specific circumstances that are not applicable here.
Barr’s attacks on the IG report did not serve the interests of the Department of Justice, whose officials were vindicated by the report’s conclusions, nor did Barr’s statements further the interests of the American people, who were well served by the inspector general’s thorough, independent and non-partisan review of this matter.
Barr’s attacks, however, did, serve the personal and political interests of President Trump.
Barr Wrongly Failed to Recuse Himself from the Ukraine Affair
On August 12, 2019, a whistleblower complaint was filed with the Inspector General of the Intelligence Community accusing Trump of “using the power of his office to solicit interference from a foreign country in the 2020 U.S. election.” The complaint went to Congress and a redacted version was made public by the House Intelligence Committee on September 26.
This whistleblower complaint triggered a House investigation and ultimately led to passage of the first Article of the Impeachment resolution, which charged Trump with abuse of power.
On July 25, Trump called Ukraine President Volodymyr Zelenskyy. In the conversation, Trump specifically mentioned Barr five times as the person who, along with Trump’s personal attorney Rudy Giuliani, would follow up with Zelenskyy in Trump’s attempt to have Zelenskyy announce an investigation into former Vice President Joe Biden.
Trump’s goals were to have Ukraine announce an investigation and to have the country provide derogatory information on a leading, potential opponent of his in the 2020 presidential election. Just announcing an investigation would alone have served Trump’s purpose of damaging Biden’s candidacy.
According to the White House transcript of the Zelenskyy call, Trump said (emphases added):
“I would like to have the Attorney General call you or your people and I would like you to get to the bottom of it.”
“I will ask him [Giuliani] to call you along with the Attorney General.”
“There’s a lot of talk about Biden’s son, that Biden stopped the prosecution and a lot of people want to find out about that so whatever you can do with the Attorney General would be great.”
“I will have Mr. Giuliani give you a call and I am also going to have Attorney General Barr call and we will get to the bottom of it.”
“I will tell Rudy and Attorney General Barr to call. . . .”
Thus, Trump repeatedly told Zelenskyy to deal with Barr on a potential Ukrainian investigation of Biden, and in so doing, implicated Barr in a matter involving a gross abuse of presidential power.
The whistleblower complaint, which was eventually shared with the Justice Department, stated that Barr “appears to be involved” in the allegations made in the complaint. The transcript of the Trump call to Zelenskyy clearly implicates Barr in the Ukraine matter.
Barr should have formally and publicly recused himself from any discussions and decisions regarding the Department’s handling of any aspect of this matter, including the whistleblower complaint itself. Barr’s participation in or oversight of the Department’s handling of the complaint, at a minimum, “create[d] an appearance of a conflict of interest likely to affect the public perception of the integrity of the investigation or prosecution.” 28 C.F.R. § 45.2(b)(2).
According to published reports, however, Barr never consulted with DOJ ethics officials about whether he should recuse himself from matters dealing with the whistleblower complaint. Published reports also said that Barr was “generally knowledgeable” of discussions in the Justice Department about the whistleblower complaint, thus indicating that he did not recuse himself from the Department’s handling of this matter.
The Justice Department determined that the law did not require the whistleblower complaint to be forwarded to Congress and did not present any potential violations of federal law that warranted investigation. Thus, the Department made two separate decisions that collectively would have shielded the complaint from Congress or the public and which, if successful, would have buried the whistleblower complaint in the Justice Department.
The actions taken by the Justice Department to prevent the explosive whistleblower complaint from reaching Congress ultimately were unsuccessful, but this in no way mitigates the improper failure by Barr to recuse himself from the matter.
Barr apparently also has not recused himself from the investigation by the U.S. Attorney for the Southern District of New York (SDNY) into Lev Parnas and Igor Fruman, two key players in the Ukraine affair.
In addition, there are published reports that the SDNY is investigating Rudy Giuliani, a central player in the Ukraine affair, who like Barr, is repeatedly mentioned in the July 25th call from Trump to the Ukrainian president. If Giuliani is being investigated, there is no public knowledge that Barr has recused himself from this matter.
In sum, Barr, as attorney general, engaged in a pattern of biased actions to support and validate repeated false claims and improper actions by Trump, and Barr failed to comply with the norms, rules and standards of conduct of the Justice Department.
Barr’s actions have been in stark conflict with his duty to administer the “impartial administration of justice on behalf of all Americans.” He has seriously and repeatedly undermined the integrity and credibility of the Justice Department.
William Barr has failed the American people and is unfit to serve as attorney general.
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