A Call for the Resignation of United States Attorney General William Barr
As attorneys from in the United States we take an oath to support the Constitution of the United States and to faithfully discharge our duties as officers of the courts. I write in support of the 2000+ alumni of the United States Department of Justice and in support of our colleagues of the Boston Bar Association and the New York City Bar Association who have publicly expressed concern about the efforts of Attorney General Barr and President Trump to use the Justice Department to reward the President’s friends and allies[1] and to punish the President’s political enemies.[2]
We live in a highly unusual moment in time where President Trump’s campaign was investigated for colluding with Russian election interference; several of campaign staff were convicted of criminal offenses, and several close associates are serving jail time. On top of that the President has been impeached by the House and acquitted by the Senate for his efforts to involve the Ukraine in investigating his potential electoral opponent. This leaves many scars, many highly charged enmities and desires for revenge.
We live in a nation divided by partisan loyalties, and we are in the middle of an election cycle. The role of the United States Department of Justice is to enforce the rule of law in an evenhanded manner. This is especially important in these polarized times.
During the Nixon era, the Justice Department, the FBI, the CIA, the NSA and the Treasury Departments were sought to be widely used by the President to persecute his political enemies and protect himself and his allies in order to secure his re-election.[3] Since the Watergate investigation, there has been a bright red line insulating the US criminal justice system from politically motivated decision-making that emanates from the President and the White House to target individual Americans.[4]
The Justice Department’s authority to initiate investigations and criminal prosecutions must never be used to advance a President’s election or re-election as it was by Attorney General John Mitchell during and after the 1972 election.[5] Likewise the FBI’s powers must never again be misused for political ends (or his own enemies’ list) as they were through the Counter Intelligence Program (COINTELPRO) during the latter years of the directorship of J. Edgar Hoover.[6]
We are a nation of laws not of men; we are a nation dedicated to the rule of law. A shining keystone of our democracy is the American judicial system, which must decide tough cases well argued by able attorneys for both sides. That lustre is deeply tarnished when the President tweets that his friend and political ally, Roger Stone, is being unfairly prosecuted and sentenced, and his Attorney General promptly withdraws the sentencing recommendations of the line prosecutors who tried the case and are deeply familiar with the circumstances of the Defendant’s conduct and then substitutes his own sentencing recommendations that are more concordant with the President’s and defense counsels’ wishes.
The conduct is especially troubling because this defendant, Roger Stone, lied to Congress and to federal investigators about his role as conduit between the Trump campaign and Wikileaks about the release of politically damaging e-mails stolen by the Russian intelligence services.[7] Roger Stone is therefore not a random Presidential friend, but was a key witness in the Mueller investigation on Russian electoral interference who chose to lie about his role.[8] The President has attacked and continues to attack the prosecutors, the judge and even the jurors for convicting and sentencing the President’s friend and political ally. While Judge Amy Berman Jackson has stood firm, condemned Roger Stone’s conduct, sentenced the President’s friend to 40 months in jail and defended the trial jury, Attorney General Barr, although complaining that the President’s tweeting habits makes his job harder, has stood by mostly mute in defending the prosecutors, judge, jury and the integrity of the American criminal justice system.
Unfortunately, this is not an isolated incident of President Trump using the Department of Justice to reward the President’s allies and to persecute the President’s perceived political adversaries. Since nearly his first days in office, President has been adamant and persistent in seeking to protect his campaign advisor and short term National Security Advisor, General Michael Flynn, who lied to federal investigators about his contacts with Russian government officials on behalf of President Trump.[9] Within the last month, the Justice Department intervened to eliminate a recommendation of 6 months of jail time for General Flynn.[10] Attorney General Barr has just appointed special outside counsel to review General Flynn’s prosecution and guilty plea. [11]
The President wants to whitewash Russian interference in the 2016 Presidential elections, wants to implicate The Ukraine, and wants Attorney General Barr and the Justice Department to assist in that effort. The President’s personal attorney, Rudy Giuliani has been afforded ample access to the Department of Justice investigative staff and lawyers in furtherance of his efforts to exonerate the Russian government and to instead lay blame and implicate The Ukraine for interfering in the 2016 Presidential elections.[12] That theory has already been thoroughly investigated and widely debunked by US intelligence agencies and the Senate Intelligence Committee.[13] Yet another arm of the Justice Department, the US Attorney’s Office for the Southern District of New York, has been investigating the activities of and criminally charging two Giuliani associates for among other things unlawful money laundering into President Trump’s re-election campaign committees.[14]
The President has widely announced his enemies’ list of current and former office holders and officials connected to the Russian investigation, the Mueller Report and the recently concluded Ukrainian investigation, impeachment and acquittal; these include FBI officials James Comey, Andrew McCabe, Lisa Page and Peter Strzok. He identifies his enemies at campaign rallies to audience call and response cries of “lock them up”. He makes his recommendations for investigation and prosecution of his enemies via frequent tweets.
Two special targets have been James Comey and Andrew McCabe, until recently the respective Director and Deputy Director of the FBI. Ex-FBI Deputy Director Andrew McCabe played key roles in the FBI’s investigation of Hillary Clinton’s use of a private e-mail and server, and in the investigation of the Trump campaign’s coordination with Russian interference during the 2016 elections. He was fired by then Attorney General Jeff Sessions immediately before his scheduled retirement with full benefits, then criminally investigated for talking to the media.[15] A two-year investigation seeking to bring criminal charges against Mr. McCabe for talking to the press and lying about it has just concluded with no charges being brought; the federal grand jury apparently declined to indict Mr. McCabe.[16]
Ex-FBI Director James Comey played critical roles supervising the Justice Department’s investigations of Secretary Clinton’s use of her private e-mail account and server for government communications.[17] He also supervised the FBI investigation of linkages between the Trump campaign and Russia and the involvement of several key Trump campaign personnel such as Paul Manafort, Rick Gates, Michael Flynn and the President’s close friend, Roger Stone. He had the unenviable role of notifying President Trump of the investigation of his campaign’s links to Russia. He was fired at the President’s direction for “that Russia thing” after he failed to execute the President’s request to tell the press that the President himself was not under investigation.[18] After his firing, the Justice Department then initiated lengthy criminal investigations into Mr. Comey’s handling of classified information; last year it cleared Mr. Comey of an investigation of leaks of classified information to the press in 2016. [19] Now the Justice Department is apparently starting yet another investigation of Mr. Comey for press leaks during 2017.[20]
Peter Strzok participated in the FBI investigations into Hilary Clinton’s e-mails and into the Russian interference in the 2016 election and into the Trump campaign’s coordination if any with Russia. Lisa Page was a FBI attorney who worked on these issues with FBI Deputy Director Andrew McCabe. Strzok and Page were having an affair, and in some of their e-mails they discussed their political views on Candidates Clinton and Trump. The FBI investigation of the Trump campaign’s links to the Russian Intelligence Services, referred to as “Crossfire Hurricane”, focused on four individuals connected to the Trump campaign (Manafort, Flynn, Page and Papadopolous) and their relations with the Russian intelligence’s release of stolen DNC documents and e-mails through WikiLeaks during the US Presidential election of 2016. President Trump has dismissed the Russian investigation as politically motivated, tainted by the pro-Clinton, anti-Trump biases of McCabe, Strzok and Page. They became the political punching bags for President Trump’s attacks on the FBI investigation, the Mueller investigation and report. “Crossfire Hurricane” was extensively reviewed by the Attorney General’s Inspector General, Michael Horowitz a Trump appointee, to assess whether the investigation was “by the book” or whether it was distorted by the political leanings of some of its participants.[21] It found that the investigation was properly predicated (i.e. there was sufficient cause for an investigation), that Strzok and Page’s political leanings and their affair played no role in the investigation, and that the investigation was kept closely held so that it would play absolutely no role in undermining the Trump election campaign.[22] The report was very critical of FBI mistakes made in the FISA court applications for electronic surveillance of Carter Page, a foreign policy consultant to the Trump campaign who also had links to Russia and of the Steele dossier.[23] Attorney General Barr was dismissive of the Horowitz’ report’s conclusions saying "I think our nation was turned on its head for three years, I think, based on a completely bogus narrative that was largely fanned and hyped by an irresponsible press, and I think that there were gross abuses of FISA and inexplicable behavior that isn't tolerable in the FBI."[24] Page and Strzok, who are protected civil servants, were both fired by the Justice Department for their conduct, and they are each suing the Justice Department and the FBI to get their jobs back.[25]
Special Counsel Mueller’s investigation and report were initiated after the President fired FBI Director Comey and the President confirmed to Lester Holt of NBC News on a televised interview that the precipitating factor was that “Russia thing.” As a result, Rod Rosenstein, the Deputy Director of the Attorney General’s Office appointed Robert Mueller as Special Counsel to investigate and write a report. The Mueller report found that the Russians had very widely interfered in the US Presidential elections of 2016 to benefit Candidate Trump and hurt Candidate Clinton.[26] It found insufficient evidence (i.e. evidence beyond a reasonable doubt) to criminally charge the Trump campaign or its members with conspiring with the Russian intelligence services.[27] It convicted or secured guilty pleas from a number of Trump campaign operatives for lying to federal investigators and or Congress, including Manafort, Cohen, Papadopolous, Gates, Flynn and most recently Stone.[28] It caveated its findings by noting that several witnesses had lied, destroyed evidence, used encryptions, taken their 5th Amendment rights against self-incrimination or were beyond the reach of federal investigators (e.g. in Russia or whereabouts unknown).[29]
The Mueller report also includes 10 separate potential obstruction of justice charges against the President, including his firing of Comey, his efforts to remove Mueller, to block release of information about the Trump Tower meeting with the Russians, and to persuade witnesses such as Manafort, Flynn, Stone and Cohen not to cooperate with the investigations.[30] The Report stated quite specifically that it does not exonerate the President from the 10 potential obstruction of justice charges, but rather simply reports the facts it uncovered and its legal analysis for Congress to consider.[31] Attorney General Barr in a letter to Congress summarized his conclusions that the Report did not find either collusion with the Russians on the part of the Trump campaign or obstruction of justice by the President.[32] Concerned about this misleading letter, Special Counsel Robert Mueller wrote that the Attorney General’s summary failed to accurately describe the report’s findings and urged that the full Report and the Summaries prepared by the Special Counsel be released to Congress, which they were about one month later.[33]
Writing as a private citizen, Mr. Barr in a letter to the leadership of the Justice Department opined that under his unitary executive theory, the President has absolute and unfettered discretion to make any and all decisions about all law enforcement matters, including even those like the Mueller inquiry for which he or his team are under investigation.[34] Thus in his view, there was and could be no Presidential wrong doing in interfering in the Special Counsel’s investigation unless the Special Counsel first found that the President himself had first committed a crime of colluding with the Russians.[35] If the President is (as he was) successful in keeping Messrs. Manafort and Stone and Flynn or Bolton and Mulvaney from testifying about his putatively “criminal” conduct, there can be no obstruction of justice or obstruction of Congress.
In a remarkable speech to the Federalist Society this fall, Attorney General Barr penned a paean to executive power and presented his views that the federal courts and Congress are acting counter to our founders’ wishes and expectations in investigating and checking the worst excesses of the Trump presidency.[36] In its wake, even traditional conservatives have warned of the dangers of an unharnessed executive as espoused by Attorney General Barr and exemplified by President Trump.[37]
What we are dealing with is a President who has shown little to no respect for truth or adherence to the rule of law and an Attorney General who maintains that 1) Executive branch officials must comply with the President’s directives irrespective of their own separate oaths of office, and 2) Congressional oversight can be stymied by a President’s orders to all the Executive branch not to testify or produce documents requested by Congress, and 3) judicial oversight over the Executive’s actions should be sharply reduced. In that direction lies a corrupt banana republic where justice is ministry to a President’s unfettered wishes and desires.
As attorneys, we cannot lie to the court, and must withdraw rather than knowingly allow our client to lie to a court.[38] As attorneys we cannot simply stick our heads in the sand and ignore client falsehoods or fraudulent schemes.[39] I think that we have no other recourse but to ask Attorney General Barr to honorably resign his post. I hope you will join this call.
Prepared by: Lucien Wulsin
Dated: 3/2/20
[1] Department of Justice Alumni Statement on the Events Surrounding the Sentencing of Roger Stone (Feb, 13, 2020) https://medium.com/@dojalumni/doj-alumni-statement-on-the-events-surrounding-the-sentencing-of-roger-stone-c2cb75ae4937. New York City Bar Association Letter on the Prosecution of Roger Stone (Feb. 12, 2020) at https://www.nycbar.org/media-listing/media/detail/prosecution-of-roger-stone-and-related-actions-by-the-department-of-justice. Boston Bar Association Statement on the Sentencing of Roger Stone (Feb. 14, 2020) https://bostonbar.org/membership/publications/news-release?ID=441
[2] The “enemies” included James Comey, Andrew McCabe, Lisa Page and Peter Strzok.
[3] “This memorandum addresses the matter of how we can maximize the fact of our incumbency in dealing with persons known to be active in their opposition to our Administration; stated a bit more bluntly—how we can use the available federal machinery to screw our political enemies.” The original list was 20 individuals, and it eventually grew to 568 people. IRS Commissioner Donald Alexander refused to execute his responsibilities under the plan. https://en.wikipedia.org/wiki/Nixon%27s_Enemies_List The actions implemented included break-ins to the DNC and to Daniel Ellsberg’s psychiatrist’s office. An earlier and more extreme version, “the Huston plan” was dropped only when FBI Director J. Edgar Hoover refused to implement the FBI’s role in it and secured Attorney General Mitchell’s support. https://en.wikipedia.org/wiki/Huston_Plan
[4] Donald Ayer, Bill Barr Must Resign (Atlantic Magazine. Feb. 17, 2020) at https://www.theatlantic.com/ideas/archive/2020/02/donald-ayer-bill-barr-must-resign/606670/
[5] https://www.britannica.com/biography/John-Mitchell-attorney-general-of-United-States
[6] COINTELPRO conducted illicit break-ins, wiretaps, false rumors, faked narratives and burglaries of those individuals, such as Martin Luther King, and organizations considered subversive by Director Hoover. https://www.biography.com/law-figure/j-edgar-hoover
[7] Judge Amy Berman Jackson’s Sentencing of Roger Stone (Feb. 21, 2020) at https://www.law.com/nationallawjournal/2020/02/20/at-roger-stones-sentencing-an-apology-from-the-justice-department/?slreturn=20200121120721 and https://www.cnn.com/2020/02/20/politics/amy-berman-jackson-quotes/index.html
[8] Trump Deputy Campaign Manager, Rick Gates, recounted at Stone’s trial the phone conversations among Candidate Trump, Mr. Stone, Paul Manafort and himself about the release by Wikileaks of the Russian hacked e-mails from the DNC and John Podesta. https://www.vox.com/2019/11/12/20961397/roger-stone-trial-rick-gates-trump-wikileaks
[9] From his first interactions with FBI Director Comey to “go easy on General Flynn” on forward, the President has exerted enormous pressure on the Justice Department on behalf of General Flynn. https://www.cnn.com/2019/05/17/politics/donald-trump-michael-flynn/index.html
[10] Federal prosecutors reduced their sentencing recommendation for Michael Flynn from six months of jail time to probation at https://www.usatoday.com/story/news/politics/2020/01/29/probation-appropriate-sentence-michael-flynn-feds-say/4616301002/. Judge Emmet Sullivan has postponed the sentencing hearing while General Flynn seeks to withdraw his guilty plea based on inadequate assistance of counsel at https://www.politico.com/news/2020/02/10/judge-cancels-michael-flynn-sentencing-113309
[11] The Attorney General has now appointed his own team to review the US Attorney’s Office in Washington DC’s prosecution of General Flynn at https://www.nytimes.com/2020/02/14/us/politics/michael-flynn-prosecutors-barr.html
[12] The Attorney General’s Office has appointed Richard Donoghue, the US Attorney for the Eastern District of New York to receive and investigate Rudy Giuliani’s debunked claims that the Ukraine, not Russia, interfered in the 2016 Presidential elections at https://www.nydailynews.com/news/politics/ny-ny-prosecutor-doj-rudy-giuliani-ukraine-20200218-fik4e2k73reefbzxgrnqjuei24-story.html. The Attorney General’s Office contends that Rudy Giuliani is not being afforded special access and treatment. https://www.documentcloud.org/documents/6779178-DOJ-letter-to-Nadler.html
[13] Mueller Report, Investigation into the Russian Interference in the 2016 Presidential Election at https://www.justice.gov/storage/report.pdf and US Senate Select Committee on Intelligence, Russian Active Measures Campaign and Interference in the 2016 Election at https://www.intelligence.senate.gov/sites/default/files/documents/Report_Volume1.pdf
[14] https://www.cnbc.com/2019/12/02/new-criminal-charges-likely-in-case-of-rudy-giuliani-associates.html One of the defendants has requested Attorney General Barr to recuse himself from supervision of the case. https://www.axios.com/lev-parnas-criminal-case-bill-barr-recuse-request-3edb37bf-edac-465e-81d4-577c851add61.html
[15] FBI Deputy Director Andrew McCabe Fired at https://www.cnn.com/2018/03/16/politics/andrew-mccabe-fired/index.html and and DOJ Drops Probe into Andrew McCabe at https://www.politico.com/news/2020/02/14/doj-drops-case-against-former-fbi-deputy-director-andrew-mccabe-115251
[16] Ibid.
[17] https://www.fbi.gov/news/pressrel/press-releases/statement-by-fbi-director-james-b-comey-on-the-investigation-of-secretary-hillary-clinton2019s-use-of-a-personal-e-mail-system
[18] The Comey Firing as Retold in the Mueller Report at https://apnews.com/4ff1ecb621884a728b25e62661257ef0
[19] https://www.cnn.com/2020/01/17/politics/justice-department-investigation-comey/index.html
[20] Ibid.
[21] Inspector General’s report on Crossfire Hurricane at https://www.justice.gov/storage/120919-examination.pdf
[22] Ibid.
[23] Ibid.
[24] https://www.cnn.com/2019/12/10/politics/barr-ig-report-fbi-trump-russia-probe/index.html
[25] https://www.politico.com/news/2019/12/10/lisa-page-sues-doj-fbi-text-messages-081001
[26] Special Counsel Mueller Report at https://www.justice.gov/storage/report.pdf
[27] Ibid.
[28] Ibid.
[29] Ibid.
[30] Ibid.
[31] Ibid.
[32] Attorney General Barr letter to Congress at https://judiciary.house.gov/sites/democrats.judiciary.house.gov/files/documents/ag%20march%2024%202019%20letter%20to%20house%20and%20senate%20judiciary%20committees.pdf
[33] Special Counsel Mueller letter to Attorney General Barr https://apps.npr.org/documents/document.html?id=5984399-Mueller-Letter-to-Barr
[34] Barr letter to the Department of Justice at https://www.justsecurity.org/wp-content/uploads/2018/12/June-2018-Barr-Memo-to-DOJ-Muellers-Obstruction-Theory-1.2.pdf
[35] Ibid. pp. 12-14.
[36] https://www.justice.gov/opa/speech/attorney-general-william-p-barr-delivers-19th-annual-barbara-k-olson-memorial-lecture
[37] Linker, William Barr’s Chilling Vision of Unchecked Presidential Power (The Week) at https://theweek.com/articles/879112/william-barrs-chilling-vision-unchecked-presidential-power. Somin, Bill Barr is Wrong to Claim Courts Cannot Examine Government Motives (Reason Magazine) at https://reason.com/2019/11/30/bill-barr-is-wrong-to-claim-courts-cannot-examine-government-motives/. Dreher, Bill Barr’s Blindness and Our Own (American Conservative) https://www.theamericanconservative.com/dreher/bill-barr-blindness-long-twilight/ Weiner, Bill Barr’s Grand Presidency (American Enterprise Institute) at https://www.aei.org/op-eds/bill-barrs-grand-presidency/
[38] Ethical duties of counsel at https://www.americanbar.org/news/abanews/publications/youraba/2019/september-2019/what-to-do-when-your-client-lies/
[39] Ibid.