Barr’s Abuses Of Power And How To Hold Him Accountable

President Donald Trump and Attorney General William Barr – May 15, 2019 (Office of Public Affairs from Washington DC)

On June 19, 2020, Attorney General William P. Barr announced the US Attorney for the Southern District of New York (SDNY), Geoffrey S. Berman, resigned his position. One teensy tiny problem: Berman responded he’d done no such thing.

Berman said:

“I learned in a press release from the Attorney General tonight that I was ‘stepping down’ as United States Attorney. I have not resigned, and have no intention of resigning, my position, to which I was appointed by the Judges of the United States District Court for the Southern District of New York. I will step down when a presidentially appointed nominee is confirmed by the Senate. Until then, our investigations will move forward without delay or interruption. I cherish every day that I work with the men and women of this Office to pursue justice without fear or favor – and intend to ensure that this Office’s important cases continue unimpeded.”

While Berman initially refused to resign, and reports emerged of Trump’s involvement and denial of involvement, Berman did, eventually, agree to step down, with his deputy Audrey Strauss taking his place.

This public spectacle, of course, is far from Barr’s first brush with the wrong side of impropriety. From telling law enforcement to “get it done,” resulting in peaceful protesters being brutalized for a President Trump photo op, to demanding a lighter sentence for Trump buddy Roger Stone, to pushing to dismiss charges against Trump crony Michael Flynn, which an appeals court did on June 24, the months since Trump’s “acquittal” in the Senate revealed a completely unrestrained Barr.

Chairman of the House Judiciary Committee, Congressman Jerry Nadler (D-NY), in response to Barr’s second refusal to appear before the Committee, set out a plan to “protect the integrity of the Justice Department,” which included cutting Barr’s budget and holding whistleblower hearings. The House held Barr in Contempt of Congress for his refusal to comply with subpoenas on June 11, 2019.

Nadler on Barr in that June 2 statement:

“I am not going to spend months litigating a subpoena with an Attorney General who has already spent years resisting the courts and legitimate congressional oversight—but neither will we stand by and allow Mr. Barr to continue to corrupt the Department. We do not take these actions lightly or with any sense of joy. We have both a duty and a moral obligation to protect the rule of law in our country, and we intend to do just that.”

After the Judiciary Committee Department of Justice (DOJ) Oversight Committee hearing, on June 24, 2020, however, Nadler said Democrats are “looking into” impeachment of Barr. Speaker of the House Nancy Pelosi, on June 25, said the better remedy is voting.

On June 26, CNN reported that another US Attorney appointed by Trump, Joseph Brown, the US attorney for the Eastern District of Texas, was also ousted by Barr after an expose by ProPublica revealed the DOJ nearly indicted Walmart over opioids, but Barr killed the case.

More than 2,000 former US attorneys and prosecutors called for Barr’s resignation in February, and the majority of law professors at George Washington University School of Law, Barr’s alma mater, said he “failed his oath of office.” Barr finally agreed to testify before the House Judiciary Committee on July 28, after Nadler threatened to subpoena his testimony.

Let’s take a look at Barr’s confirmed and alleged abuses of power.

What did Barr do?

The Judiciary Committee hearing on oversight for the Department of Justice on June 24 outlined four major areas of concern for Barr’s alleged abuses of power and politicization in the role of Attorney General: Cronyism in protecting people close to Trump; an antitrust case involving cars in California; an antitrust case involving the merger of some cannabis companies; and the rising specter of the Trump-manufactured “Obamagate.” Some Democratic Members also raised Barr’s involvement in the clearing of peaceful protesters for Trump’s photo op.

Since the hearing, more detail about Barr’s contentious relationship with the SDNY office, and Berman specifically, surfaced. According to The New York Times, Barr repeatedly interfered with investigations into people close to Trump, apparently leading to Berman’s ouster, which Barr denies.

Chairman Jerry Nadler’s searing opening statement summarized Barr’s actions:

There is injustice at the Department of Justice. AG Barr has abandoned the DOJ’s traditionally nonpartisan role, prioritizing the President’s interests over the American people’s. Today, @HouseJudiciary hears whistleblower testimony about his abuses.

Watch my opening statement: pic.twitter.com/w6Upkqn4nN

— Rep. Nadler (@RepJerryNadler) June 24, 2020

Witnesses called:

• Donald Ayer, Former Deputy Attorney General (George H.W. Bush)
• John W. Elias, Current career attorney, DOJ
• Michael Mukasey, Former Attorney General (George W. Bush)
• Aaron Zelinsky, current DOJ prosecutor

The hearing proceeded in the fashion typical in the Trump era, with Democrats asking serious questions of the witnesses and Republicans disrupting the proceedings. As former
Deputy Attorney General Donald Ayer attempted to finish his opening statement, Rep Louie Gohmert (R-TX) banged on the desk as though he, not Nadler, held the gavel. The stunt brings to mind the Carl Sanberg quote:

“If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell.”

“There’s no rules about when you can make noise” — Louie Gohmert tried to cut off Ayer’s opening statement, but Ayer was undeterred. pic.twitter.com/ILQrusx83g

— Aaron Rupar (@atrupar) June 24, 2020

Cronyism: Barr’s alleged favors for Stone, Giuliani, Flynn, and Cohen, and Erdogan/Halkbank

Roger Stone

DOJ prosecutor Aaron Zelinsky testified, in a move he said was “unprecedented,” that prosecutors were coerced to change sentencing recommendations for Trump’s longtime advisorRoger Stone, and the pressure came from “the highest levels.” Initially recommending the guideline sentence of between 7 and 9 years, Zelinsky and other prosecutors were ordered to recommend sentencing that could have included no jail time, with fear of Trump cited as the reason for the change.

Zelenski testified he was told to “disregard the [sentencing] guidelines entirely,” something he said had never before been done. All four prosecutors on the case, including Zelinsky, quit the case in protest, and Judge Amy Berman Jackson sentenced Stone to 40 months, which he has not yet started to serve due to the current coronavirus pandemic. On June 27, Trump retweeted a petition to pardon Roger Stone. Judge Amy Berman Jackson ordered Stone to report to prison on July 14, 2020, as the prison where he will serve his sentence has reported no COVID-19 cases.

Rudolph Giuliani

In February, Barr publicly acknowledged the Justice Department was accepting information about Ukraine from Trump’s personal lawyer, Rudolph Giuliani. Intended to damage Trump’s then-likely political opponent, former Vice President Joe Biden, the revelation concerned Nadler, who wrote to Barr at the time:

“Any official relationship between Mr. Giuliani and the Department raises serious questions about conflicts of interest—both for the Department, generally, and for you, specifically…”

Reports of investigations into Giuliani himself for campaign finance violations and failing to register as a foreign agent date back to late 2019, though after Berman’s firing in June, Giuliani denied any knowledge of being under investigation. The investigation reportedly related to Giuliani’s work in Ukraine, which also featured in the impeachment of Trump, and his interactions with Soviet-born nationals Lev Parnas and Igor Fruman. It’s unclear after Berman’s ouster whether this investigation will continue.

Michael Flynn

In 2017, former Trump national security advisor who set a record for shortest tenure and Putin’s dinner companion, Michael Flynn, pleaded guilty to lying to the FBI about his communications with Russian Ambassador Sergey Kislyak, a plea he reiterated in 2018. He’s tried to undo that plea ever since, and shortly after Mitch McConnell and the Senate refused to hold an impeachment trial for Trump, Barr’s Department of Justice set out to help him, seeking to dismiss all charges against the Trump ally in May of 2020.

While federal judge Emmet Sullivan was skeptical of the motion from the government to dismiss all charges against Flynn, the DOJ found a sympathetic ear in the DC Appellate Court, which directed Sullivan to dismiss the charges in a 2-1 decision on June 24, the same morning as the House oversight hearing. Rep. Jim Jordan (R-OH), elated, said in the hearing “We got the order,” before trying to pivot the proceedings to the fictional Obamagate.

Michael Cohen

The criminal case of Trump fixer Michael Cohen may well have sparked the conflict between Barr and Berman. According to The New York Times, Barr:

“…instructed Justice Department officials in Washington to draft a memo outlining legal arguments that could have raised questions about Mr. Cohen’s conviction and undercut similar prosecutions in the future.”

Cohen, who paid Stormy Daniels $130,000 in hush money right before the 2016 election to keep her from talking about her affair with Trump, pleaded guilty to campaign finance violations, a legal tack Barr disputed after the fact, when his tenure began. Barr likely took an interest in this case because it implicated President Trump. Berman had recused himself from Cohen’s case, which was completed by other attorneys in the SDNY office.

Erdogan/Halkbank

According to former national security advisor and current Trump regime profiteer John Bolton, Trump told Turkish President Recep Tayyip Erdogan he would stop the ongoing investigation into Turkish bank Halkbank and its alleged fraud, money laundering and aiding the evasion of US sanctions against Iran. Despite a multi-million dollar “lobbying” campaign from Turkey to avoid criminal prosecution, reports Mother Jones, Berman nonetheless filed indictments on October 15, 2019.

Though Halkbank attempted to claim some kind of special process that would allow it to avoid appearing in the case, the Second Circuit Court of Appeals ruled it had to appear to contest jurisdiction. This case is closer to Trump than it initially appears. Beyond his alleged intervention, Rudy Giuliani represented Reza Zarrab who was charged with leading the scheme and the offices of Zarrab’s shell corporation are in Trump Tower Istanbul. On April 15, 2019, Erdogan’s son-in-law Berat Albayrak met with Trump, Jared Kushner, and Steve Mnuchin in the White House. In February of 2020, Senator Ron Wyden (D-OR) wrote to Barr requesting he recuse himself from the Halkbank case, given the reports of interference. To date, Barr has not recused.

California Cars Antitrust

In Trump’s quest to reverse everything President Obama did, he sought to undo fuel economy standards implemented by the Obama administration. Without his knowledge and without including car makers close to the Trump Administration, including Toyota, Fiat Chrysler, and General Motors, the state of California struck a deal for better fuel efficiency from Honda, Ford, Volkswagen, and BMW.

In the oversight hearing, John Elias testified the deal “enraged Trump,” and on August 21, 2019, Trump tweeted about it:

….that when this Administration’s alternative is no longer available, California will squeeze them to a point of business ruin. Only reason California is now talking to them is because the Feds are giving a far better alternative, which is much better for consumers!

— Donald J. Trump (@realDonaldTrump) August 21, 2019

Said Elias in his written testimony:

“The day after the tweets, Antitrust Division political leadership instructed staff to initiate an investigation that day. Accordingly, the investigation opening memorandum is dated August 22, and the August 22 opening date is reflected in internal tracking records.”

Antitrust Division attorneys questioned whether there was a legal or factual basis for the investigation, but were forced to proceed anyway. The investigation was closed without any action against car manufacturers in February, as there was no violation of law.

Cannabis Mergers

In a move that appeared to his underlings to be motivated by his own personal distaste for the industry, rather than the law, Barr ordered investigations into 10 mergers of cannabis companies. Elias testified under questioning by Rep. Pramila Jayapal (D-WA) in this action, despite document production from the companies under investigation, some documents were never reviewed and some never even uploaded. The companies were forced to produce millions of pages in what Elias described as a “gross misuse of resources.”

While the rationale from above was that cannabis was a new industry, Elias testified:

“This rationale — standing alone, without reference to a competition problem — is not described in the Merger Guidelines as a basis for investigating a transaction.”

BLM Protests

In the midst of the George Floyd protests, on June 1, as the world watched, unidentified law enforcement sprayed peaceful protesters in Lafayette Square with, physically assaulted the press and detonated flash bangs without warning. The protesters were removed from perhaps America’s most famous “public square” so that Trump could walk across the park, stand in front of St. John Church, and hold up a Bible for a photo.

Despite initial reports that Barr gave the order to clear the protesters and the White House’s confirmation the order came from Barr, Barr denied involvement while essentially admitting involvement:

“I’m not involved in giving tactical commands like that. I was frustrated and I was also worried that as the crowd grew, it was going to be harder and harder to do. So my attitude was get it done, but I didn’t say, ‘Go do it.’”

A court may, at some point in the future, determine whether “get it done” practically differs from “go do it.” Protesters filed suit against Barr and Trump for their injuries in Lafayette Park ouster.

Obamagate

Rep. Jim Jordan (R-OH) refused to wear a mask during the DOJ whistleblower hearing, declaring, to his own delight, the problem wasn’t being not wearing a mask to prevent transmitting a deadly virus, but the “unmasking that took place at the end of the Obama administration.”

Undeterred by the fact that you cannot target someone if you do not know who they are, and you do not know who they are until after they are unmasked, Republicans continue to try to push the completely unsubstantiated made-up story that the Obama Administration somehow wrongfully targeted the Trump campaign for political reasons. As the irony of that in light of all of the above soaks in, here’s further reading on the alleged Obamagate.

Why Barr’s alleged transgressions matter

As Donald Ayer put it, the politicization of the DOJ under Barr is “worse than Watergate.”

He testified: “I am here because I believe that William Barr poses the greatest threat, in my lifetime, to our rule of law and to public trust in it.”

Donald Ayer: “I was privileged to serve in the DOJ under 2 Republican and 1 Democratic president, and I am here because I believe that William Barr poses the greatest threat in my lifetime to our rule of law and to public trust in it.” pic.twitter.com/hywNKn3vjw

— Aaron Rupar (@atrupar) June 24, 2020

As the witnesses at the oversight hearing repeatedly stated, Barr’s actions undermine public trust in the rule of law; there are two sets of rules under Barr. Ayer was most troubled, he said, by the pursuit of Obamagate, which has no basis in fact, and Barr’s public statements about his so-called investigation, which are improper under DOJ standards.

Many have likened Barr to Trump’s personal attorney rather than the Attorney General for the country, using the power of the DOJ to harass Trump’s “enemies” and grant big favors for his friends, as was the case with the dismissal of charges against Flynn despite Flynn’s guilty plea. And we haven’t even touched on how Barr lied about Special Counsel Robert Mueller’s report and subsequently launched an investigation to undermine the entire Russia investigation.

This use of the Department of Justice taints the very enforcement of law itself, with every single action stained by Trump and Barr.

Should the House impeach Barr?

As more details of Barr’s possible abuse of power emerged, so did calls for his impeachment. Walter Shaub, former director of the United States Office of Government Ethics, promoted a petition to call for Barr’s impeachment; Republican political action committee, the Lincoln Project, co-founded by KellyAnne Conway’s husband George Conway, started an “Impeach Barr. Pass it on,” campaign retweeted by none other than Luke Skywalker himself, Mark Hamill.

Rep. Steve Cohen of Tennessee also suggested impeachment during the DOJ oversight hearing. On June 30, Cohen introduced the “Resolution to Investigate and Consider the Impeachment of Attorney General William P. Barr.”

Impeachment as a remedy requires Congress to act in good faith. It’s as though a mass amnesia descended upon the nation, leaving the memory of Trump’s own impeachment in the murky distance. No one can credibly believe, after that ordeal, that Senate Republicans would even hold a trial on a Barr impeachment, let alone remove him. It’s a push the people pushing admit at the outset is fruitless. Like Trump, Barr will call a non-trial an “acquittal,” and the very behavior bringing about the impeachment will be condoned.

In the words of Rep. Veronica Escobar of Texas, “Sadly, this hearing demonstrates that Mr. Barr isn’t the only enabler of President Trump. He, unfortunately, has way too many.”

Also highlighted by the Judiciary Committee hearing, the material underlying the claims of abuse of power by Barr is highly technical. Antitrust claims, for example, aren’t exactly scintillating for most people. Loss of interest could turn to loss of importance, normalizing behaviors from Barr, similar to people largely shrugging off Trump’s demanding fealty from the States in order to provide federal aid for COVID-19.

In addition to the waste of time and taxpayer money, the risk is that, like with Trump, impeachment could backfire. The Senate’s endorsement of Trump’s behavior only emboldened him, setting him off on the same indiscriminate firing spree that wended its way through staff, through removing five watchdogs from offices of inspectors general, to the very public Berman firing. Trump’s anger at recent Supreme Court rulings protecting LGBTQ+ people’s employment rights and rebuking his action on DACA underscore just how unlimited he now believes his power to be.

Trump also got his highest approval ratings of his term in the midst of the impeachment discussion–no trial was held–in the Senate. Throw in the inevitable “witch hunt” refrain, the proximity of the election, the futility of the exercise, and the extreme fatigue of the public at large, and the only thing an attempted impeachment of Barr could possibly do is backfire.

On June 25, 2020, Speaker of the House Nancy Pelosi (D-CA) appeared to rule out impeachment of Barr, saying voting out Trump is the best possible remedy.

What Can the House do about Barr? Practical Remedies

Normally one would ask what Congress can do about Barr, but as Nadler said, the Republican-controlled Senate will not sanction Barr, and the minority of Democrats do not have the power or means to coerce them to do so. The House does have some remedies, but as noted by Speaker Pelosi, the surest remedy is voting Trump out of office.

Contempt

In June of 2019, the House held Barr in criminal contempt for his failure to comply with congressional subpoenas. Under normal circumstances, the case is then referred to a US Attorney for prosecution. The US Attorneys, however, fall under Barr’s command, and given his tendency to perform favors, and it’s no surprise they declined to prosecute him for the charge.

Congress has two other means by which it can hold someone in contempt: a civil action in court or within its own chamber. The civil action puts the facts before a judge who would then give Barr the opportunity to explain why he should not be held in contempt, with penalties including a fine, jail time or both. With all things Trump Administration, such a case is likely to end up at the Supreme Court, posing a huge risk to justice over the long term should the Court rule in Barr’s favor, especially after an appeals court ruled the House could not enforce its subpoena against former White House counsel Don McGahn.

The House can, within its own body, hold Barr in contempt, called “inherent contempt,” with the Sergeant-at-arms taking Barr into custody. This power is very rarely used, largely replaced in modern times by the two statutory powers above. On June 29, Rep. Ted Lieu introduced a rule change that, if passed, would strengthen the inherent contempt power.

License

Like every practicing attorney, Barr is licensed by the state bar, in his case in New York, Virginia, and in Washington, DC. Though the statute that empowers the president to appoint an attorney general does not specify s/he must be a licensed attorney, one must be licensed to provide legal advice and appear in court.

The New York City Bar Association, while taking no position on whether he violated the Rules of Professional Responsibility, called for an investigation into Barr’s conduct which it deemed neither fair nor impartial. Rep. Ted Lieu (D-CA) and Rep. Kathleen Rice (D-NY) asked the Virginia bar and the DC bar to open ethics investigations into Barr after his questionable handling of the Mueller Report.

In normal times, the suspension or revocation of Barr’s law license would necessitate his stepping down from the office, but these times are not normal.

Defunding

Congress controls the budget, and in June, Jerry Nadler introduced a bill to cut Barr’s budget by $50 million. In the Rantt community Adam Al-Ali, co-founder of Rantt Media, explains the appeal of this remedy:

Join the conversation on Rantt.

Unfortunately, any such legislation would have to pass both the House and the Senate, which, under Mitch McConnell’s leadership in the Senate, is unlikely.

Voting out Trump

The only surefire way to get Barr out of the Department of Justice is to vote out Trump. Whether the extensive damage he’s caused to this country and the rule of law can be repaired is another issue entirely, but it’s imperative he does not get the opportunity to inflict another term’s worth of harm.