Bill Barr Bids Adieu to the Rule of Law

Attorney General Bill Barr’s audacious abuse of the power of the Department of Justice in the service of Donald Trump’s personal and political interests reached new heights this week. Barr’s busy week removed the final blocks in the wall that once prevented political players in the White House from influencing prosecutorial decisions. The wall collapsed as Trump, with Barr’s assistance, intensified his campaign of retribution against every government official who ever slighted him.

In two episodes, Barr flaunted his rejection of the now seemingly quaint notion that Justice Department law enforcement should be conducted independently of the occupant of the White House. First, Barr confirmed that he had established a special procedure to facilitate Rudy Giuliani’s submission to DOJ of material collected in his continuing efforts to investigate Hunter and Joe Biden. In other words, Barr legitimized and promoted continuation of the very conduct by Trump’s personal lawyer that led to Trump’s impeachment.

By encouraging Giuliani, Barr failed fundamentally as a federal prosecutor. Former Attorney General (and subsequently Justice) Robert Jackson warned that “[t]he prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations.”

Jackson continued that the most dangerous abuse of the power occurs when a prosecutor starts by picking a target for prosecution, rather than first identifying a crime and then investigating to learn who committed it. That’s precisely what Barr is doing by openly encouraging Giuliani to target Trump’s political opponent, even though no crime to prosecute has been identified. Barr’s conduct is straight out of the handbook of authoritarian governments that routinely abuse prosecutorial authority to eliminate political competition.

Barr topped this abuse with an episode so disturbing that it drowned out concern over his Giuliani pipeline. The DOJ had filed a recommendation urging Judge Amy Berman Jackson to sentence Roger Stone, who was convicted of seven felonies by a jury, to seven to nine years in prison, a sentence within the guidelines that inform federal sentences. Trump exploded by tweet, expressing his contempt for the recommendation’s “miscarriage of justice.” The next day, in a move that is unprecedented in my experience, the Department, without any other intervening event, filed a new memorandum renouncing its prior recommendation as excessive. Meanwhile four DOJ prosecutors withdrew from the case, one of whom resigned from DOJ.

DOJ contends implausibly that the sentencing revision was in the works before Trump tweeted. Either DOJ is lying or its internal processes have failed. Each possibility provokes major concern.

Barr has agreed to appear before the House Judiciary Committee on March 31, after stiffing the Committee for over a year. That’s an important start, but the Committee will face challenges in producing true accountability. The Committee’s oversight hearings traditionally feature uncoordinated five-minute rounds of questioning and repetitive speeches by Members. Barr will have the advantage of superior knowledge of DOJ and a supportive chorus of sycophantic Republican members.

Most importantly, Barr is likely to refuse to answer any specific questions about the internal decision-making process surrounding the Stone sentencing. He will assert that the deliberative process privilege, which applies with added force to criminal law enforcement, prohibits such disclosures.

Fortunately, there is a speedier and more effective way to call Barr to account. Judge Jackson should order Barr and everyone at DOJ in the chain of command on the Stone case to appear in court to answer questions under oath. Before sentencing Stone, Judge Jackson should develop all of the facts in an effort to understand DOJ’s position and what is driving it. That understanding is important to the imposition of a just sentence.

Here are just a few of the major questions that need answers. Some are appropriate for Judge Jackson to ask. All should be pursued by the House Judiciary Committee.

1. What was the precise sequence of events leading to the Department’s rejection of its own sentencing recommendation for Roger Stone? DOJ prosecutors in court recommended a sentence between seven and nine years. Trump responded with an outraged tweet. The next day, DOJ returned to court to reject its own recommendation. DOJ’s statement that it was not responding to Trump’s outrage defies belief. Please explain who was involved in and knew about the initial recommendation and who was involved in its withdrawal. Did the initial recommendation pass through regular channels? Did the decision to change the recommendation? Describe your personal role.

2. Did the four career DOJ prosecutors, who informed the sentencing court that they would no longer participate in the Stone case, act because of the reduced sentence recommendation? Jonathan Kravis resigned from DOJ, and Aaron Zelinsky, a prosecutor on Mueller’s team, resigned his special D.C. assignment to return to the U.S. Attorney’s office in Maryland. Adam Jed, another Mueller prosecutor, and Michael Marando withdrew from the case. Did they act voluntarily? If so, why? Were they pressured to leave? If so, why and by whom? Has there been any retaliation against them? Can you assure us that there will not be any in the future?

3. Has there been any communication between anyone in the White House and anyone at DOJ regarding the sentencing recommendation or a pardon for Roger Stone? Stone was convicted of lying to Congress about his dealings with Russian operatives regarding Hillary Clinton’s emails, tampering with a witness, and obstructing the House Intelligence Committee’s investigation. Trump has a continuing interest in Stone’s silence. Was the revised sentencing recommendation intended to influence Stone or signal that help is on the way? Please produce any written communications regarding Stone’s sentencing or discussing a pardon.

4. Why would you set up a separate channel for Rudy Giuliani to communicate with DOJ? Two of Giuliani’s associates have been indicted by the U.S. Attorney’s Office for the Southern District of New York and it has been reported that Giuliani is also under investigation by that office. After Senator Lindsay Graham spilled the beans, you confirmed that you had established a special channel for Giuliani to feed the fruits of his bogus Ukraine-based investigation of Hunter and Joe Biden to DOJ. Why isn’t Giuliani sharing his information with the SDNY as part of its investigation?

5. Your decision to override the sentencing recommendation of the D.C. U.S. Attorney’s office for Roger Stone raises concern that you will not hesitate to intervene in other investigations and prosecutions being conducted by U.S. Attorney offices, especially those arising from the Mueller investigation. Reporting suggests that there was similar intervention in the sentencing of Michael Flynn. Can you assure us that you will not intervene – and have not done so – regarding SDNY’s investigation of Rudy Giuliani? Have you discussed these investigations with anyone at the White House?

6. Robert Mueller reported that his team had referred fourteen matters to U.S. Attorney offices. Please describe each of those matters and their resolution.

7. Why did Jesse Liu leave her position as U.S. Attorney for D.C. abruptly, before she was confirmed as an undersecretary at the Treasury Department? Why was her nomination withdrawn the same day DOJ revised its sentencing recommendation for Roger Stone and shortly before her confirmation hearing? Was the withdrawal of her nomination an effort to prevent her from testifying before the Senate regarding her supervision as U.S. Attorney of the Stone prosecution and other matters arising from the Mueller investigation?

8. Why did you designate the Pittsburgh U.S. Attorney office to receive Giuliani’s information?

9. Is there an open investigation? What specific crimes are under investigation? Is there a preliminary inquiry or a full investigation?

10. If there is no ongoing investigation, what is happening to Giuliani’s information? Is DOJ retaining it? Under what authority? Because this process is so extraordinary and the Department’s recent activities have appeared highly political, concern is legitimate that DOJ has opened this channel so that it can receive and feed politically damaging information to interested parties.

11. Why did you announce that you would now personally approve investigations and prosecutions involving political candidates or their campaigns for the 2020 election cycle? The requirement on its face would sound reasonable if it were announced by previous Attorneys General, but your repeated use of your office to protect Trump undermines its legitimacy. You have given yourself the ability to block investigations into Trump or other Republican candidates, while green-lighting investigations into your political opponents. Can you assure us this will not happen? What process will you establish to handle these matters? Who will be involved?

12. Why haven’t you recused yourself from matters involving Rudy Giuliani and Ukraine? Have you consulted DOJ ethics officials and, if so, is there a written opinion? If so, please produce it. In his phone call with President Zelensky, President Trump referred to you repeatedly as a point of contact for the bogus investigations he wanted Zelensky to announce. DOJ subsequently tried to block the whistleblower complaint from going to Congress and summarily dismissed an Inspector General referral for a criminal campaign finance investigation of the effort to obtain Ukraine’s assistance. Did you participate in these matters?

Undoubtedly, Trump and Barr will assault the rule of law multiple more times before Barr appears before the Committee, but these questions should remain relevant and help to lay a foundation for examining abuses to come.

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Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He currently serves as Lecturer in Law at Columbia Law School, and previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He also served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. For three years, Bill served as Sen. Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee, and has also held positions at AFJ and the American Constitution Society. The opinions of the writer are his own and do not necessarily represent the positions of Alliance for Justice.