This article appears in the Fall 2020 issue of Litigation – The Journal of the Section of Litigation of the American Bar Association.
“With your law degrees, you will have immense power to do great harm,” Harvard Law Professor Duncan Kennedy admonished our one-L torts class in 1976.
A few months later, former President Richard M. Nixon (JD, Duke, ’37) — who thought Watergate had been a political “witch hunt” — uttered his infamous line, “Well, when the president does it, that means it is not illegal.” And his former attorney general, John N. Mitchell (JD, Fordham, ’38), was headed to prison.
More than 40 years after that class, United States Attorney General William P. Barr (JD, George Washington, ’77) has driven home the gravity of Prof. Kennedy’s admonition. When the story of the Trump era is written, history will pose a single defining question to every American lawyer: In the fight to preserve the rule of law, which side were you on?
America has seen which side William Barr is on. As the nation’s top law enforcement officer, the attorney general represents the “People of the United States.” Early in his tenure, Barr jettisoned that role.
Operating as Trump’s personal advocate, Barr has abused the power of his office to undermine the Trump-Russia investigation. Although troublesome, Barr’s actions are best viewed as a case study in his modus operandi. What Barr has done to that investigation and its key players, he can do to anything and anyone. That makes Barr’s methods ominous for the rule of law itself.
Hiring Barr was no accident. Early in 2017, before special counsel Robert Mueller’s appointment, Trump feared that he was losing control of the Trump-Russia investigation. He was furious at then-Attorney General Jeff Sessions’ (JD, Alabama, 73) for recusing himself from the ongoing probe. Referring to his former personal attorney, notorious fixer, and top aide to Sen. Joseph R. McCarthy (R-WI) during the investigations of communist activity in the 1950s, Trump lamented, “Where’s my Roy Cohn?”
A year later, he got his answer. Barr sent Deputy Attorney General Rod Rosenstein (JD, Harvard, ’89) an unsolicited 19-page memo challenging the premise of Mueller’s obstruction of justice investigation and urging that the special counsel should not even be permitted to question Trump. In William Barr, Trump had finally found his Roy Cohn.
First came the lies and deceptions. According to The Washington Post, as of July 9, 2020, Trump had made more than 20,000 “false or misleading claims” since assuming office. Like Trump, Barr understands the rhetorical and psychological concepts of primacy and repetition. Whoever speaks first and most frequently on an important topic has the upper hand in controlling the resulting narrative, regardless of its veracity.
From his first days in office, Barr has reinforced Trump’s false assertions that the Trump-Russia investigation never should have happened. In the maelstrom that followed, truth became a casualty. So it’s important to start with a brief reprise of the Mueller report’s key conclusions:
“[T]he Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome.” (Vol. I, p. 5)
The Trump campaign “expected it would benefit electorally from information stolen and released through Russian efforts.” (Vol. I, p. 5)
Trump tried repeatedly to obstruct the investigation into his campaign ties to Russia.
And Mueller concluded, “[I]f we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, however, we are unable to reach that judgment… Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.” (Vol. II, p. 2)
Barr’s dissembling prevented the truth from gaining traction. Two days after Mueller gave Barr his final report confidentially — including summaries suitable for public dissemination — Barr sent a letter to Congress with his own misleading “summary” of Mueller’s findings. It was so deceptive that Mueller himself complained to Barr immediately, saying that Barr’s letter “did not fully capture the context, nature, and substance of this Office’s work and conclusions.” The result, Mueller wrote, “is public confusion about critical aspects of the results of our investigation.”
But public confusion was the objective because it led to public indifference. For another three weeks, Barr did not release even a redacted version of Mueller’s report, and Mueller’s dissenting letter to Barr did not surface until two weeks after that. During the intervening month-and-a-half, Barr’s mischaracterizations became the only story of Mueller’s findings, and they stuck. Primacy gave Barr the edge and repetition then took over.
Immediately, Trump used Barr’s spin to reinforce his big lie. “No collusion, No obstruction, Complete and Total EXONERATION,” Trump tweeted — three lies in a single post.
Then Barr made things worse — or from Trump’s perspective, better. Two hours before releasing a redacted version of Mueller’s report, Barr held a press conference to spin its conclusions again. He repeated Trump’s false “no collusion” meme four times.
On obstruction, Barr also made this disingenuous claim: “The White House fully cooperated with the special counsel’s investigation, providing unfettered access to campaign and White House documents, directing senior aides to testify freely, and asserting no privilege claims. And at the same time, the president took no act that in fact deprived the special counsel of the documents and witnesses necessary to complete his investigation.”
Here’s the truth:
From its inception, Trump attacked Mueller’s investigation and repeatedly pressured then-Attorney General Jeff Sessions and White House counsel Don McGahn (JD, Widener, ’94) to curtail or terminate it. (Vol. II, pp. 77-120)
Trump refused Mueller’s requests for an interview. (Vol. II, pp. C-1-2)
Mueller said Trump’s written answers to his questions were “inadequate.” (Vol. II, C-2)
Trump dangled pardons aimed at influencing key witnesses, including his former national security adviser Mike Flynn, former campaign chairman Paul Manafort (JD, Georgetown, ’74), and a person whose name was initially redacted from Mueller’s report but who we now know is Trump’s longtime confidant, Roger Stone. Trump also tried to influence and intimidate his former personal attorney, Michael Cohen (JD, Thomas M. Cooley, ’91). (Vol. II, pp. 120-156)
The Rule of Law
In 1789, Thomas Jefferson wrote that a well-informed electorate is a prerequisite to democracy. Barr kneecapped the truth. When the redacted version of Mueller’s report finally appeared, The Washington Post awarded him “Three Pinocchios” for his “incomplete or misleading” descriptions of Mueller’s investigation and conclusions. But Barr had withheld even a redacted version so long that his false spin had irrevocably infected the body politic.
Fortunately, the rule of law has courageous defenders who honor the oath that every attorney takes to uphold the rule of law. In an opinion on a Freedom of Information Act request for an unredacted copy of Mueller’s report, U.S. District Court Judge Reggie B. Walton blasted Barr’s pre-release “distortions” and “lack of candor.” In a remarkable ruling, the respected federal judge wrote that he could not trust the attorney general of the United States:
“The speed by which Attorney General Barr released to the public the summary of Special Counsel Mueller’s principal conclusions, coupled with the fact that Attorney General Barr failed to provide a thorough representation of the findings in the Mueller Report, causes the Court to question whether Attorney General Barr’s intent was to create a one-sided narrative about the Mueller Report — a narrative that is clearly in some respects substantively at odds with the redacted version of the Mueller Report.” (Elec. Privacy Info. Ctr. v. US Dept. of Justice, No-19-810 RBW, slip op. p. 17-18 (D.D.C. Mar 5, 2020)
Judge Walton could not reconcile “certain public representations made by Attorney General Barr with the findings in the Mueller Report.” The inconsistencies caused him “to seriously question whether Attorney General Barr made a calculated attempt to influence public discourse about the Mueller Report in favor of President Trump despite certain findings in the redacted version of the Mueller Report to the contrary.” (Op. p. 19)
The court’s Mar. 5, 2020 rebuke came a year too late. As Jonathan Swift wrote more than two centuries ago, “Falsehood flies, and truth comes limping after it.” With Barr’s help, Trump created a narrative that was at odds with the evidence set forth in Mueller’s report. Barr had fired his first bullet at the rule of law and it was a bulls-eye.
But lies and false spin were just Barr’s opening gambit. Trump wanted the entire investigation discredited — destroyed root and branch. Barr quickly weaponized the Justice Department. He used his prosecutorial powers as a vehicle to pursue Trump’s attacks on those responsible for launching the investigation in the first place.
In a revealing exchange on May 1, 2019, Sen. Kamala Harris (D-CA, California-Hasting, ’89) asked Barr if “the president or anyone at the White House ever asked or suggested that you open an investigation of anyone.”
Barr stuttered, stammered, and asked her to repeat the question.
“It seems you’d remember something like that and be able to tell us,” she pressed.
“I’m trying to grapple with the word ‘suggest,’” Barr said. “I mean there have been discussions of, of matters out there, that, uh, they’ve not asked me to open an investigation.”
“Perhaps they suggested?” Harris offered.
“I don’t know. I wouldn’t say ‘suggest’,” Barr hesitated.
“Hinted?” she continued.
“I don’t know,” he replied.
Barr didn’t answer.
“You don’t know,” Harris said.
“No,” Barr mumbled.
Delegitimizing the Investigators
Sen. Harris might have sensed where Trump and Barr were heading. Unable to erase the proof that Mueller had found, they focused on undermining the investigation itself as illegitimate and attacking the investigators as “corrupt.”
Immediately after Trump fired FBI Director James Comey in May 2017, acting Director Andrew McCabe (JD, Washington Univ. – St. Louis, ’93) authorized the Trump-Russia counterintelligence probe. Two years later, McCabe became a poster child for Trump and Barr’s abuse of power. Even prior to Barr’s appointment, a team of prosecutors had investigated whether McCabe had lied to investigators about improper media leaks concerning an FBI investigation into the Clinton Foundation. Those prosecutors concluded that they could not win a conviction, so Trump’s chosen US attorney for the District of Columbia, Jessie Liu (JD, Yale, ’98), brought in another team to go after McCabe.
For months, Liu’s office asked the judge handling the matter — U.S. District Court Judge Reggie Walton once again — for more time. By then, Barr was the attorney general. In a closed-door session on Sept. 30, 2019, Walton warned prosecutors to stop stringing McCabe along:
“I don’t think people like the fact that you got somebody at the top basically trying to dictate whether somebody should be prosecuted. I just think it’s a banana republic when we go down that road…”
Judge Walton added, “I just think the integrity of the process is being unduly undermined by inappropriate comments and actions by people at the top of our government. I think it’s very unfortunate. And I think as a government and as a society we’re going to pay a price at some point for this.” (9/30/2019 Tr., p. 5)
Eventually, the case against McCabe fell apart again and a grand jury refused to indict him. But for months, Barr left McCabe twisting in the wind of legal uncertainty. Once again, defenders of the rule of law rose to the challenge. The Citizens for Responsibility and Ethics in Washington (CREW) won a court order requiring the release of the devastating Sept. 30 transcript of Judge Walton’s earlier comments. On Feb. 14, 2020 — the day that transcript became public — the Justice Department finally informed McCabe that he would not face charges.
As Barr’s efforts to investigate the investigators failed to produce Trump’s desired outcome, he assigned new teams to keep trying. For example, Mueller had concluded that the FBI had opened its Trump-Russia investigation appropriately in late July 2016. (Mueller Rep., Vol. I, pp. 88-89, fn. 465) Despite knowing Mueller and claiming to respect him as a friend and colleague for years, Barr appointed U.S. Attorney John Durham (JD, Connecticut, ’75) to second-guess that finding. Barr also asked foreign leaders in the United Kingdom and Italy for help in gathering information that Trump hoped would discredit Mueller’s work. Trump personally made such a request of the Australian prime minister.
Likewise, in December 2019, the Justice Department’s inspector general, Michael Horowitz (JD, Harvard, ’87), completed an 18-month investigation into the origins of the Trump-Russia investigation. Although his 400-page report found that the FBI had adequate reasons for opening the probe, Barr nevertheless asserted that the FBI’s reasons were insufficient and publicly attacked Horowitz’s conclusion.
Undermining the Convictions
Finally, beyond using the power of his office to pursue Trump’s perceived enemies, Barr has deployed the Justice Department to help Trump’s convicted friends. It was the final step in wiping the Russia investigation from the history books altogether. But Barr’s manipulations also have profound implications for the rule of law.
When Mueller closed up shop in 2019, then-U.S. Attorney Liu (whose office supervised the McCabe investigation) assumed control of several special counsel prosecutions and earlier referrals, including cases against Roger Stone and Mike Flynn. But after Liu failed to get McCabe indicted, Barr replaced her with his old friend and confidant, Timothy Shea (JD, Georgetown ’91) — just as the Justice Department was finalizing its sentencing recommendation in Stone’s case.
In 2017, Stone had lied to the House Intelligence Committee about his role concerning Trump campaign contacts with Russia. Then he threatened a witness who was going to expose him. A jury deliberated for about seven hours before convicting Stone on all seven counts of lying to Congress and witness tampering.
As Shea replaced Liu in the District of Columbia U.S. attorney’s office, career prosecutors handling Stone’s case filed a brief that followed federal sentencing guidelines recommending seven to nine years in prison. Immediately, Trump tweeted that Stone’s plight was “horrible,” “unfair,” and a “miscarriage of justice.” Hours later, an official at Justice Department headquarters said that the DC office’s recommendation was “extreme” and “excessive” and that a new memorandum would outline the government’s revised position.
Defending the rule of law, four of the federal prosecutors who signed the sentencing memorandum resigned immediately from the case. Jonathan Kravis (Yale, JD, ’04) — one of Stone’s prosecutors at trial — resigned from the Justice Department altogether. That left Shea and his assistant who was newly assigned to the Stone case to file a revised memorandum asserting that the government’s previously recommended sentence “could be considered excessive and unwarranted.”
The following day, Trump congratulated Barr for “taking charge” of the Stone case, “which perhaps should not even been brought.”
Defenders of the rule of law fought back. Appearing on national television, the former chief of the criminal fraud section of the Justice Department, Andrew Weissmann (JD, Columbia, ’84) — an appointee of President George H. W. Bush — said he could think of no instance where he had even heard of the attorney general reaching into a single criminal case to weigh in on a sentencing submission. Former Attorney General Eric Holder (JD, Columbia, ’76) called Barr’s direct intervention “unprecedented, wrong, and ultimately dangerous.”
“Public confusion was the objective, because it led to public indifference”
The most damning criticism came from Donald Ayer (JD, Harvard, ’75), who had served as President George H. W. Bush’s deputy attorney general and Barr’s boss at one point. On Feb. 17, 2020, Ayer wrote in The Atlantic:
“All of this conduct — including Barr’s personal interventions to influence or negate independent investigations or the pursuit of criminal cases, and his use of the department’s resources to frustrate the checks and balances provided by other branches — is incompatible with the rule of law as we know it…”
Ayer concluded: “Bill Barr’s America is not a place that anyone, including Trump voters, should want to go. It is a banana republic where all are subject to the whims of a dictatorial president and his henchmen. To prevent that, we need a public uprising demanding that Bill Barr resign immediately, or failing that, be impeached.”
Trump and Barr were undeterred. Trump attacked Stone’s judge, Amy Berman Jackson (JD, Harvard, JD ’79), calling her “the Judge that put Paul Manafort in SOLITARY CONFINEMENT, something that not even mobster Al Capone had to endure.” That was another Trump lie. Prison officials had made the decision about Manafort’s federal housing. But Barr did not defend Jackson against Trump’s attack, and the Judicial Code of Conduct prevented her from defending herself.
Instead, Barr gave an interview during which he sent Trump a message — the tweets were making it “impossible” for him to do his job. Since then, Barr’s view of his job has become even clearer: obliterate all trace of the Russia investigation. Mike Flynn became a stunning example of Barr’s methods.
Moving to Drop Charges After a Guilty Plea
On Dec. 1, 2017, Flynn pled guilty to lying to the FBI about his conversations with the Russian ambassador during the presidential transition and agreed to cooperate with prosecutors. On Dec. 18, 2018, he again acknowledged his crimes in open court. Judge Emmett G. Sullivan (JD, Howard Univ., ’71) did not hide his disgust.
“[Y]ou lied to the FBI about three different topics, and you made those false statements while you were serving as the national security advisor, the President of the United States’ most senior national security aid. I can’t minimize that,” the judge said. “Two months later you again made false statements in multiple documents filed pursuant to the Foreign Agents Registration Act. So, all along you were an unregistered agent of a foreign country, while serving as the national security advisor to the President of the United States. I mean, arguably, that undermines everything this flag over here stands for. Arguably, you sold your country out.”
But after Barr became attorney general two months later, he appointed the U.S. attorney in St. Louis, Jeff Jensen (JD, St. Louis Univ., ’98), to review Flynn’s case. In June 2019, Flynn retained new a lawyer — Sidney Powell (JD, North Carolina, ’78), a far-right conspiracy theorist. Powell wrote directly to Barr, urging him to conduct an internal review and throw out Flynn’s conviction. A week later, Trump congratulated Flynn for retaining Powell, tweeting that she was a “GREAT LAWYER.”
Shortly before the July 2019 trial at which Flynn was supposed to be a cooperating witness against his former business associate, he suddenly became uncooperative and prosecutors did not call him to testify. Powell then asked Judge Sullivan to nullify Flynn’s conviction on the grounds that prosecutors had engaged in misconduct — claims that the judge rejected. As Flynn’s sentencing approached in early January 2020, prosecutors withdrew their earlier recommendation of probation and urged Flynn’s incarceration for as long as six months.
As with Roger Stone, things then changed abruptly and mysteriously in Flynn’s favor. And as with Stone, Barr and his confidant, interim US Attorney for the District of Columbia Timothy Shea, made it happen. On May 7, Shea’s office took the unprecedented step of moving to drop all charges against Flynn. Shea alone signed the motion with no line prosecutors joining. It included no affidavits or declarations supporting its many new factual allegations. No motion to vacate the government’s prior, contrary filings and representations accompanied the filing.
The defenders of the rule of law stepped forward again. One of Flynn’s prosecutors withdrew from the case and Judge Sullivan invited amicus briefs on the unusual motion. Then he assigned a former federal judge to oppose the Justice Department’s move and to determine whether Flynn should be found in criminal contempt for lying to the court when he had pled guilty — twice.
Flynn’s attorney sought a writ of mandamus in the District of Columbia circuit court of appeals. That, in turn, forced Judge Sullivan to hire an attorney, Beth Wilkinson (JD, Virginia, ’87), to answer the mandamus petition. The circle was complete: A judge defending the rule of law now needed his own lawyer to defend himself.
In her brief on Judge Sullivan’s behalf, Wilkinson wrote, “It is unprecedented for an Acting U.S. Attorney to contradict the solemn representations that career prosecutors made time and again, and undermine the district court’s legal and factual findings, in moving on his own to dismiss the charge years after two different federal judges accepted the defendant’s plea.”
What began in March 2019 with Barr’s false spin and outright lies to assuage a president’s obsession with the Russia investigation had exploded into a multidimensional assault on the rule of law itself. No limiting principle has guided Barr’s abuses, but he has encountered resistance. Individually and together, attorneys — especially litigators — have stepped forward:
More than 1,000 former federal prosecutors from Republican and Democratic administrations signed an open letter stating that, but for the fact that Trump was a sitting president, Mueller’s proof would have led to Trump’s indictment for obstruction of justice.
In connection with Roger Stone’s sentencing, more than 2,600 former prosecutors and other DOJ attorneys from Republican and Democratic administrations signed an open letter condemning Barr for “interference in the fair administration of justice,” “openly and repeatedly flouting” the fundamental principle of “equal justice under law,” and calling on Barr to resign. They wrote, “Governments that use the enormous power of law enforcement to punish their enemies and reward their allies are not constitutional republics; they are autocracies.”
The president of the New York State Bar Ass’n issued a statement saying, “The intervention by senior Department of Justice officials in the sentencing of Roger Stone is an assault on a bedrock principle of the rule of law — the apolitical administration of justice. Our nation was founded on the principle that everyone must be treated equally in the eyes of the law…”
More than 2,000 former Justice Department officials from Republican and Democratic administrations signed an open letter stating that Barr had “once again assaulted the rule of law” in seeking the dismissal of Flynn’s case. “Attorney General Barr’s repeated actions to use the Department as a tool to further President Trump’s personal and political interests have undermined any claim to the deference that courts usually apply to the Department’s decisions about whether or not to prosecute a case,” they wrote.
Judge Sullivan and the appeals court received numerous amicus briefs supporting the district court’s exercise of judgment when deciding whether to accept the government’s motion to dismiss the federal criminal charges against Flynn. Filings in support of the judge came from former federal judges, former Watergate prosecutors, legal scholars, and the New York City Bar Ass’n.
ABA President Judy Perry Martinez issued a statement declaring, “Public officials who personally attack judges or prosecutors can create a perception that the system is serving a political or other purpose rather than the fair administration of justice. It is incumbent upon public officials and members of the legal profession, whose sworn duty it is to uphold the law, to do everything in their power to preserve the integrity of the justice system.”
What’s next? Federal judges enjoy lifetime tenure that prevents Trump from purging the bench of his perceived judicial enemies. But Trump and his key Senate enabler with a law degree, Sen. Mitch McConnell (JD, Kentucky, ’67), have boasted about filling federal judgeships at a brisk pace. Those judges must demonstrate their independence. With their actions, they have a unique opportunity to reaffirm that “equal justice under law” and “no one is above the law” are not empty platitudes, but guiding principles of our democracy.
Pundits often understate Barr’s conduct as violating “norms.” It is more accurate to say that he and Trump are at war with the rule of law. Federal judges and litigators throughout the country have become first-responders in the fight. The front lines have formed in courtrooms throughout the country, but lawyers away from the immediate field of battle are also making a difference.
So which side are you on?
In this war, there are no bystanders.