Daily Dicta: Lowering the Barr
Bill Barr is gunning for a place in history as one of the worst attorneys general. What a disappointment he has turned out to be.
June 11, 2020 at 12:30 AM
6 minute read
Once upon a time, Bill Barr seemed like such a solid choice to serve as attorney general.
What a resume! Who could be more qualified? After all, he was the attorney general under President George H.W. Bush. He'd been general counsel of Verizon and of counsel at Kirkland & Ellis.
He ticked all the boxes—and he said all the right things.
"I did not pursue this position," Barr told the Senate Judiciary Committee during his confirmation hearing in January of 2019. "But ultimately, I agreed to serve because I believe strongly in public service, I revere the law, and I love the Department of Justice and the dedicated professionals who serve there."
"In the current environment, the American people have to know that there are places in the government where the rule of law—not politics—holds sway," Barr testified.
I don't know now whether to laugh or cry.
On Wednesday, more than 1,250 former DOJ alumni sent a letter to the agency's inspector general, Michael Horowitz. They urged him to immediately open an investigation into Barr's "possible role in ordering law enforcement personnel to suppress a peaceful domestic protest in Lafayette Square on June 1, 2020, for the purpose of enabling President Trump to walk across the street from the White House and stage a photo op at St. John's Church, a politically motivated event in which Attorney General Barr participated."
"We are also disturbed by the Attorney General's deployment of federal law enforcement officers throughout the country, and especially within the District of Columbia, to participate in quelling lawful First Amendment activity," the letter continues. "If the Attorney General or any other DOJ employee has directly participated in actions that have deprived Americans of their constitutional rights or that physically injured Americans lawfully exercising their rights, that would be misconduct of the utmost seriousness, the details of which must be shared with the American people."
It wasn't the only blast of criticism yesterday.
Debevoise & Plimpton partner John Gleeson, a former federal judge who was appointed by U.S. District Judge Emmet Sullivan of the District of Columbia to oppose DOJ's move to dismiss the Michael Flynn prosecution, weighed in with a withering brief.
"The government has engaged in highly irregular conduct to benefit a political ally of the president," wrote Gleeson, who has been lauded by members of the bar for his "unimpeachable character."
"The government's ostensible grounds for seeking dismissal are conclusively disproven by its own briefs filed earlier in this very proceeding," Gleeson wrote. "They contradict and ignore this court's prior orders, which constitute law of the case. They are riddled with inexplicable and elementary errors of law and fact. And they depart from positions that the government has taken in other cases."
Ouch.
Over the next 82 pages, Gleeson shredded Flynn's conduct, arguing that he "told outright lies" and that his "guilt is plain."
Still, in some ways you can't blame a defendant for trying to weasel out of a plea that he later regrets.
What's so troubling, as Gleeson notes, is that DOJ took Flynn's side, filing a motion to dismiss the false statement charges and asking the court to rubber stamp the petition.
It's a move that the former judge sees as stemming from the "severe breakdown in the traditional independence of the Justice Department from the president."
Over the course of our nation's history, there have been some disgraceful attorneys general.
Nixon's AG John Mitchell was linked to the Watergate cover-up, for example, and spent 19 months in prison after being convicted of conspiracy, perjury and obstruction of justice.
Warren Harding's AG, Harry M. Daugherty, was complicit in the Teapot Dome scandal. He was indicted and tried twice for graft and fraud (the juries hung).
Woodrow Wilson's AG, A. Mitchell Palmer, oversaw the "Palmer Raids" during the Red Scare, when 3,000 suspected socialists and communists across the country were arrested, many on invalid warrants, and detained for weeks or months.
These AGs set a low bar. (Or should we say Barr?)
But since his confirmation, Barr time and again has crossed the line into partisan politics, appearing to put his thumb on the scales of justice to please the president.
Remember his preemptive summary of the Mueller report? Or the Roger Stone case, when every prosecutor withdrew after Main Justice overrode their initial sentencing recommendation? Or when Barr disputed IG Horowitz's finding that the FBI was in fact justified in opening the Russia investigation?
Add the Lafayette Square photo op and the Flynn prosecution to the list.
As Gleeson wrote, DOJ has a solemn responsibility to prosecute cases "without fear or favor and, to quote the department's motto, solely 'on behalf of justice.' It has abdicated that responsibility through a gross abuse of prosecutorial power, attempting to provide special treatment to a favored friend and political ally of the president of the United States. It has treated the case like no other, and in doing so has undermined the public's confidence in the rule of law."
Moves like this will secure Barr a place in history among the worst of our attorneys general. I'm truly disappointed—I expected so much better from him.
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