NY City Bar Call for US AG William Barr's Recusal in Ukraine Matter Draws Variety of Reactions
Maldonado acknowledged the politically charged nature of an ongoing congressional impeachment inquiry that has focused on the Trump administration's contacts with Ukraine, but said the message was specifically "drafted and revised with an eye toward not being a political statement."
October 29, 2019 at 02:48 PM
6 minute read
The New York City Bar Association's call last week for U.S. Attorney General William Barr to recuse himself from investigations pertaining to the Trump administration's dealings with Ukraine has drawn both applause and criticism from lawyers and ethics experts.
The Oct. 23 statement, originally drafted by the bar's task force on the rule of law, said Barr should "resign or, failing that, be subject to sanctions, including possible removal, by Congress," over his involvement in a July 25 phone call between President Donald Trump and Ukrainian President Volodymyr Zelensky.
According to a whistleblower complaint, Trump said Barr would be in touch with Zelensky to follow up on his request that Ukraine initiate an investigation of former Vice President Joe Biden and Hunter Biden, who sat on the board of a Ukrainian natural gas company.
The city bar took no position on the legality of the phone call or merits of the whistleblower's complaint. But it said the mention of Barr's name was enough to require his recusal from the probe.
"Regardless of whether Mr. Barr was in fact aware of or part of the president's plans, either before, at the time of, or after the July 25, 2019 telephone call, it is clear that Mr. Barr was obligated to recuse himself from any involvement in DOJ's review of either the whistleblower complaint or the substance of the president's actions once the president offered Mr. Barr's services to President Zelensky," the statement said.
Ethics experts and practitioners who spoke to the New York Law Journal disagreed over whether the bar group's message was well- or ill-advised.
Bar association president Roger Maldonado said Tuesday that, since making its statement, the city bar has been flooded with responses, ranging from messages of full-throated support to "thoughtful comments" disagreeing with the bar's position and those that said the statement didn't go far enough. Some of the responses, Maldonado said, were "profane" in their opposition to the statement.
The Department of Justice has not commented on the demand.
Maldonado acknowledged the politically charged nature of an ongoing congressional impeachment inquiry that has focused on the Trump administration's contacts with Ukraine, but said the message was specifically "drafted and revised with an eye toward not being a political statement."
Rather, he said, the bar intended to call attention to apparent conflicts in the attorney general's office, which it views as "absolutely essential" to the proper functioning of the federal government. In fact, the statement noted that recusal is not rare, and that Barr himself had stepped aside twice as AG—once in 1993 during his term as attorney general in the George H.W. Bush administration and then again earlier this year in the matter of Jeffrey Epstein.
"We did not see it as a political statement," Maldonado said. "We think, given the facts recorded, the appearance of a conflict, if not an actual conflict, warrants recusal."
Still, Rebecca Roiphe, a legal ethics professor at the New York Law School, said the statement could be perceived as politically motivated and expose the bar to "credible allegations" that it was acting out of political animus.
"I think it opens them up to that charge, and therefore I think it was a mistake," Roiphe said.
"I actually feel like it's a pretty inappropriate statement to come out with," she said.
Roiphe said the best way to address the appearance of a conflict of interest would be for Barr to first take the issue to ethics experts within the Justice Department and then make a decision on recusal.
However, she said there was no indication from the DOJ that Barr had followed that protocol. And while Barr had likely contributed to a growing distrust of American institutions, so too did the city bar, Roiphe said.
"I think there's a value in waiting" for all the facts to come out, she said. "This is way too soon to come out with such a strong statement."
But others, like University of Minnesota Law School professor Richard Painter, were effusive in their praise. Painter said that Barr's role at the center of the swirling controversy "clearly violates ethics rules," but also made him an easy target for impeachment himself.
"The attorney general is right in the middle of this thing," Painter said.
"It's a faster case [to make] with Barr because there's less moving parts than with Donald Trump," he said.
The bar, meanwhile, has picked up the endorsement of Lawyers Defending American Democracy, which last week called the statement a "clarion call for the attorney general to fulfill his ethical and legal obligations to his office and to the country."
LDAD, whose members include former Massachusetts Attorney General Scott Harshbarger, Harvard Law professor Laurence Tribe and Charles Fried, who served as U.S. solicitor general during the Reagan administration, has written including an open letter to Congress decrying attacks on truth, rule of law, separation of powers and the independence of the judiciary.
In a statement last week, LDAD said it was in "full support" of the bar's message regarding the attorney general's recusal.
"By his actions in participating in the review of issues related to the Ukraine matter in which he is personally implicated by the text of President Trump's phone call with Ukraine's President Zelensky, Mr. Barr fails to meet the standard of behavior which he vowed to uphold when he was sworn in as attorney general," LDAD said. "Mr. Barr has abandoned those standards and his role in protecting the rule of law, despite forcefully vowing to the contrary in his confirmation hearings in 2019 and in 1991 when he first stood for the office."
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