Everyone Hates William Barr-- And For Good Reason

 

1,612 former Justice Department lawyers and judges have signed an open letter to Trump consiglieri William Barr, calling him out for using the Department as an auxiliary of the Trump reelection campaign (which is illegal). They have served both Democratic and Republican administrations and each took the same oath that Barr did "to defend the Constitution and pursue the evenhanded administration of justice free from partisan consideration. Many of us," they wrote, "have spoken out in previous statements, motivated by an ongoing concern that President Trump and Attorney General Barr are weaponizing the DOJ in the service of Trump’s personal interests, thereby doing grave damage to the rule of law, to the foundational principle that the law should be applied equally to all Americans, and to the DOJ’s institutional credibility as an independent law enforcement agency."

We speak out again now because we fear that Attorney General Barr intends to use the DOJ’s vast law enforcement powers to undermine our most fundamental democratic value: free and fair elections. He has signalled this intention in myriad ways, from making false statements about the security of mail-in voting from foreign hackers to falsely suggesting that mail-in ballots are subject to widespread fraud and coercion. Most recently, the Department made a premature and improper announcement of a mail-in ballot tampering investigation that the White House immediately used as a talking point in its campaign to discredit mail-in voting and to further the claim it will be rigged against President Trump.

And based on Attorney General Barr’s public statements and other evidence, it appears that he will use the ongoing inquiry into the origins of the investigation of Russian interference in the 2016 election-- known as the “Durham investigation” after John Durham, the U.S. Attorney in Connecticut tapped by Barr to lead it-- to help President Trump’s reelection chances. There are serious questions about whether there is a legitimate basis for the Durham investigation. It has been repeatedly politicized and tainted by President Trump, and both the DOJ’s Inspector General and the bipartisan Senate Select Committee on Intelligence have concluded that the Russian interference investigation was wholly appropriate and methodologically sound. But even if there is a legitimate predicate for the Durham investigation, there is clearly no justification for taking public action on it in such close proximity to the November election. Such a blatant politicization and abuse of federal law enforcement power risks immense and lasting harm to our democracy and to the integrity and reputation of the DOJ.

The core principle of federal law enforcement-- familiar to all DOJ lawyers-- is that the law should be applied equally and impartially, free from partisan considerations. It is embodied in the Constitution and countless laws and rules governing the conduct of federal prosecutors, including DOJ policies-- both written and unwritten-- designed to avoid interference with an election. One such unwritten policy-- sometimes called the “60-Day Rule”-- creates a presumption that DOJ personnel should not take public steps or make public statements about a criminal investigation in the period immediately before an election if doing so could influence the vote.

Attorney General Barr is well aware of the 60-Day Rule and the longstanding policies and traditions it serves. Indeed, he endorsed it during his own Senate confirmation hearing, explaining that it exists because “the incumbent party has their hands on … the levers of the law enforcement apparatus of the country, and you do not want it used against the opposing political party.” Earlier this year, Attorney General Barr issued a memorandum to DOJ personnel in which he reiterated that “the Department has long recognized that it must exercise particular care regarding sensitive investigations and prosecutions that relate to political candidates, campaigns, and other politically sensitive individuals and organizations-- especially in an election year.” In doing so, he acknowledged the importance of “ensur[ing] that the Department’s actions do not unnecessarily advantage or disadvantage any candidate or political party.” During his first tour as Attorney General, Barr criticized just such an action, when Iran-Contra independent counsel Lawrence Walsh indicted former Secretary of Defense Caspar Weinberger days before the 1992 election, thereby damaging President George H.W. Bush’s re-election campaign.

But now, Attorney General Barr seems to be ignoring the principle altogether in his handling of the Durham investigation, which he has continued in spite of President Trump’s repeated efforts to use it as a political weapon. President Trump has publicly insisted on prosecutions of numerous persons associated with what he calls the “Russia Witch Hunt,” including former President Obama and former Vice President Biden, and has bluntly stated that Attorney General Barr’s ability to be considered “the greatest attorney general in our history,” versus just “an average guy,” hinges on whether he prosecutes them. President Trump’s Chief of Staff Mark Meadows suggested that he has reviewed documents related to the investigation that demonstrate that “it’s time for people to go to jail.” Far from distancing himself from these abuses of power, Attorney General Barr has repeatedly violated DOJ policy by commenting on the investigation, to include opining that its subjects committed crimes constituting “one of the greatest travesties in American history” and “sabotage” of President Trump’s 2016 campaign. Such improper political influence from the White House and guilt-presuming comments not only violate DOJ policy, they undermine fundamental fairness and due process.

While the 60-Day Rule’s presumption against pre-election action can sometimes be overcome for legitimate law enforcement purposes-- such as the need to enforce a subpoena when a prosecutor fears evidence will be destroyed or the need to make an arrest when a suspect may flee-- we are aware of no such exigencies here. The recent resignation of Nora Dannehy, one of prosecutors on the Durham investigation-- in apparent protest of pressure to produce unprecedented pre-indictment findings before the election-- further suggests that the Durham investigation is being used as a means of partisan interference in the election on President Trump’s behalf.

In recent remarks, Attorney General Barr criticized DOJ career prosecutors for being insufficiently deferential to the Trump administration and the political leadership at DOJ. Attorney General Barr’s comments display a fundamental misunderstanding of the role of career prosecutors and why many of them have openly resisted his interventions on President Trump’s behalf. While it is of course true that the DOJ is managed by its political leaders, when those leaders violate their oath to faithfully execute the law, the career staff is obligated by their own oaths of office to uphold the principle of equal justice under law. All DOJ officials, including Mr. Durham himself, should respond to any improper efforts to influence the election by: reporting misconduct; refusing to carry out improper directives; and following the lead of Ms. Dannehy and others and resigning rather than violate their oaths of office. The Inspector General should protect the DOJ’s integrity by answering the call of the House of Representatives to open his own investigation into election interference. And given Attorney General Barr’s demonstrated willingness to use the Department to help President Trump politically, the media and the public should view any election-related activity by the DOJ-- including any announcement or findings related to the Durham investigation-- with appropriate skepticism.

BONUS: Do You Find Melania To Be A Sympathetic Figure?

Don't. She isn't. She's no prisoner of Zenda. A really disgusting leaked tape that's been circulating (until she caught COVID):