"You've chosen to be the president's lawyer," declared Hawaii Senator Mazie Hirono to Bill Barr in the Senate Judiciary Committee when the Attorney General testified on his handling of the Mueller Report. Since his appointment in 2019 after the firing of Jeff Sessions, Barr has led the US Department of Justice and acted as the nation's top law enforcement official for his second time, after a two-year tenure under George H W Bush. His expansive view of executive powers and his apparent partisan actions have drawn a great deal of criticism, particularly in his last congressional hearing two days ago on the current unrest across the US following the murder of George Floyd earlier in the year. Barr's direction to federal officers to use chemical weapons, including tear gas and pepper bombs, and violent tactics against protestors, most infamously to move demonstrators away from Lafayette Park to allow for the President's photo op, drew particular ire from Rep. Jayapal, and questions were raised again regarding his proclivity to do the political bidding of the President.
But is this a problem? While the Hatch Act and other legislation prohibits cabinet officials from actively engaging in partisan activities, surely the office of the Attorney General should be expected to carry out the President's legal agenda for the nation? A deeper examination of this issue, however, reveals a much more compelling case for why the Attorney General should be held to a higher standard of independence than his cabinet colleagues.
Firstly, it is important to note that the Attorney General was established by the Judiciary Act 1789 to "prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned, and to give his advice on questions of law when required by the President." Nowhere in the legislation creating this office does it require the Attorney General to do the bidding of the President, but rather represent the US in the Supreme Court, and advise the executive branch on questions of law. Indeed, while earlier drafts of the Act written by the framers of the Constitution suggested that the Attorney General be appointed by the Supreme Court, the final Act remained silent on this issue, leaving the President to fill the void and appoint Attorneys General himself. Not only this, but Attorneys General are present in all 50 US states, and only in two of them (or 4% nationwide) can the Governor of that state dismiss the Attorney General at will. In other words, forty-eight American states uphold the office of the Attorney General as something more than a political appointment, and the silence of federal legislation does not imply agreement to the President's hiring or firing of the nation's top law enforcement official.
The question of the Attorney General's level of independence from the presidency has been raised on many occasions, but the current holder of the office is perhaps unique in the intensity and width of the criticism. Some of his more controversial acts are detailed below:
- Barr sent a letter to the leaders of the House and Senate judiciary committees on March 24th, 2019 summarising the purported "principal conclusions" of the Mueller Report. This letter was harshly criticised by individuals including Speaker of the House Nancy Pelosi, Senate Minority Leader Chuck Schumer, and then-Republican Congressman Justin Amash as a deliberate mischaracterization of the report and an attempt to undermine the investigation. Notably, Mueller himself stated that the letter inadequately portrayed the conclusions of his report.
- The House of Representatives held Barr in criminal contempt of Congress after refusing to produce documents subpoenaed by Congress in July 2019. The Department of Justice refused to prosecute the Attorney General after being directed to do so by the House of Representatives.
- In a series of more transparently partisan actions, Barr requested the White House Office of Legal Counsel draft a memo to help former Trump personal lawyer Michael Cohen in his criminal case in 2019; Barr also recommended a lighter sentence for Trump ally Roger Stone in 2020, leading to the resignation of the entire prosecutorial team; in 2020, charges were dropped against former National Security Advisor Michael Flynn at the request of Barr; and Barr fired Geoffrey Berman, the US Attorney for the Southern District of New York, who was actively pursuing criminal investigations into the President's business activities.
In response to these actions, and more, 2,000 former DOJ officials signed a letter calling for Barr's resignation, as well as the New York City Bar Association. Elected officials, judges, and others have also heavily criticised Barr for his lack of independence, providing the basis for Hirono's accusation that he is "the president's lawyer" rather than the nation's lawyer, as intended by the Founding Fathers.
It would be naive to assume that, as an accidental political appointee, the Attorney General would not be aligned with the legal philosophy of the President. When President Nixon was elected on a "law and order" platform in 1968, his Attorney General would, and arguably should have endorsed this position, and directed the Department of Justice accordingly. Indeed, even necessarily apolitical appointments, such as those to the federal judiciary and Supreme Court, are appointed in part because of the synergy between the judicial philosophy of the judge in question and the President who appointed them. However, there is a crucial difference between acting in accordance with one's outlook on legal issues, and acting to advance the political wishes of the President.
The Justice Manual for Department of Justice employees states that legal decisions "must be impartial and insulated from political influence," and it is a necessary result of a large administrative structure that the Attorney General deals with nothing but the most important cases. As a result, an otherwise routine prosecution against Michael Flynn for lying to the FBI would surely not have crossed Barr's desk without the political pressure of a case against a Trump appointee, and while high-profile cases are of course more likely to receive the attention of the Attorney General, they must be as insulated as the most mundane prosecutions from political interference, and this is not what happened in this case.
A clear precedent of law has been set that even the appearance of impropriety in the administration of justice is a grave issue, and one that needs to be rectified by the recusal of the judge in question. The parallel in the instance of William Barr would be his refusal to get involved in politically-charged cases, as Jeff Sessions did when he recused himself from oversight of the Mueller investigation. As it has happened, Barr has neglected to distance himself from the appearance of impropriety, or indeed actual impropriety, and as a result, it is the necessary conclusion that he must resign the office of the Attorney General to protect the comparative independence of the office, and maintain the rule of law's demand that prosecutions be undertaken apolitically. Anything other than this simple criterion is nothing less than an oligarchical police state, and the first symptom of this was when the President referred to himself, and not his Attorney General, as the nation's top law enforcement official.
The assumption, however benign the setting, of the mantle of the Attorney General sets a dangerous precedent for future administrations, and Presidents who may wish to 'activate' the powers of the Department of Justice to obtain something quite different to justice indeed, and Bill Barr's duty to guard against this was forgotten by him long ago. Instead, the law applies to all, bar the President.
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Another interesting read, packed with info I had not picked up on before.
ReplyDeleteThank you! It's definitely a bizarre situation - even by Trumpian standards!
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