WHEN PRESIDENT DONALD TRUMP announced in December 2018 that William Barr would be his next attorney-general, much of Washington was relieved. Unlike his predecessors—Jeff Sessions, a former senator from Alabama denied a federal judgeship in 1986 over accusations of racist remarks; and his underqualified acting successor, Matthew Whitaker—Mr Barr was a mainstream figure, amply experienced. He worked in Ronald Reagan’s White House and was George H.W. Bush’s attorney-general in the early 1990s.
During his confirmation hearing, he told the Senate Judiciary Committee that “nothing could be more destructive of our system of government…than any toleration of political interference with the enforcement of the law.” Many believe Mr Barr has failed to live up to those words, and that he has turned his Justice Department (DoJ) into a political instrument to protect Mr Trump and his allies.
The DoJ is not entirely independent. Presidents nominate the attorney-general, and make broad policy decisions regarding the DoJ’s direction and use of resources. Some choose to prioritise religious-liberty, others voting-rights cases. Those decisions stem from presidential policy preferences that are put before voters. That is not the same thing as allowing political considerations to influence prosecutorial decisions in individual cases.
Two career prosecutors told the House Judiciary Committee on June 24th that Mr Barr’s DoJ has done just that. John Elias, who has spent 14 years as a federal prosecutor, alleged that Mr Barr ordered the DoJ’s antitrust division to perform thorough antitrust investigations of cannabis-related mergers simply because Mr Barr “did not like the nature of their underlying business”. Small firms had to respond to “burdensome administrative subpoenas” and produce hundreds of thousands of documents for mergers that “appeared unlikely to raise significant competitive concerns,” while DoJ staff were “not permitted to take customary fact-finding steps”.
Aaron Zelinsky, the second prosecutor, argued that political considerations governed the DoJ’s approach to the sentencing of Roger Stone. Mr Stone, a longtime adviser to Mr Trump, was convicted of witness-tampering and multiple counts of lying to Congress. Prosecutors recommended he be sentenced to 87-108 months in prison, in line with federal sentencing guidelines. But Mr Zelinsky alleged that Timothy Shea—a senior counsellor to Mr Barr who headed the federal prosecutor’s office in Washington, DC—“was receiving heavy pressure from the highest levels of the Department of Justice to cut Stone a break”.
Rather than bow to that pressure, Mr Zelinsky and the three other career prosecutors who argued the case against Mr Stone withdrew. The DoJ filed a new sentencing memo, without a line prosecutor’s signature, which Mr Zelinsky called “virtually unprecedented”. Equally “unheard of”, said Mr Zelinsky, was the DoJ’s decision “to seek a sentence below the Guidelines in a case where the defendant went to trial and remained unrepentant”, as Mr Stone did.
At least the DoJ asked for jail time—around three years—for Mr Stone. They moved to dismiss altogether the case against Michael Flynn, Mr Trump’s former national security adviser, who pleaded guilty to lying to federal investigators. Emmet Sullivan, the judge sentencing Mr Flynn, did not immediately agree to the DoJ’s dismissal motion. John Gleeson, a former judge whom Mr Sullivan appointed to argue against the government’s motion, said it constituted “highly irregular conduct to benefit a political ally of the president”. He also argued that the DoJ’s ostensible reasons for dismissal were “pretextual…riddled with inexplicable and elementary errors of law and fact”, and “conclusively disproven by [the DoJ’s] own briefs filed earlier in this very proceeding.”
That opinion may now be irrelevant: on June 24th, a panel of three federal appellate judges—in an opinion written by Neomi Rao, whom Mr Trump appointed to the bench—ordered the lower court judge to dismiss the charges against Mr Flynn. Mr Sullivan can ask for the full court, which comprises 17 judges, to review the panel’s decision, but has not yet done so.
Messrs Trump and Barr also intervened, somewhat ham-handedly, farther north, when they removed Geoffrey Berman from his post as chief prosecutor for the Southern District of New York (SDNY). On June 19th, the DoJ announced that Mr Berman was stepping down, so that Mr Trump could replace him with Jay Clayton, a corporate lawyer without prosecutorial experience who currently heads the Securities and Exchange Commission.
Mr Berman released a combative statement announcing that in fact he had “no intention of resigning” before a Senate-confirmed appointee took his place. Mr Trump then sacked him. In what many view as a final victory for Mr Berman, he will be replaced not by Mr Clayton, who is unlikely to be confirmed by the Senate before November’s election, but by his deputy, Audrey Strauss, who has a reputation for toughness and independence.
The reason for Mr Berman’s ouster remains unclear. Under Mr Berman, the SDNY—popularly known as the Sovereign District of New York for its independence and predilection for high-profile cases—wrung a guilty plea out of Michael Cohen, Mr Trump’s former lawyer; charged two associates of Rudy Giuliani, another of Mr Trump’s lawyers, with campaign-finance violations; indicted a Turkish state-owned bank, causing friction between Mr Trump and Turkey’s president; and is reportedly investigating Mr Giuliani for lobbying-law violations.
Even if these investigations continue, Mr Barr’s action sends a troubling message: that pursuing investigations that discomfit the president can end a prosecutor’s career. Recently, Mr Barr has taken to parroting Mr Trump’s unfounded warnings that voting by mail risks widespread fraud. Despite longstanding DoJ policy against commenting on ongoing cases, Mr Barr has talked up “developments” in an investigation into what he referred to as “the so-called Russiagate scandal.”
During the prosecutors’ testimony on June 24th, Steve Cohen, a Democratic representative from Tennessee, called for Mr Barr’s impeachment. That seems unlikely to happen, and would be a poor use of political capital. But Mr Barr’s tenure has made his predecessor, Mr Sessions, look like King Solomon. Donald Ayer, a deputy attorney-general in George H.W. Bush’s administration, called Mr Barr “the greatest threat in my lifetime to our rule of law and to public trust in it.”
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