Fred Wertheimer: Unfit to Serve: The Case Against William Barr

May 23, 2019 – Just who appointed William Barr to be President Trump’s guardian and his avenging angel?

Oh, that’s right – it was President Trump who finally got his Roy Cohn-type Attorney General to protect him and his lawless ways, and the mandate of Barr’s position as Attorney General be damned.

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Barr has repeatedly demonstrated his bias and favoritism to President Trump as Attorney General. He has made clear to the President and the country that he sees his role as the President’s attorney and not as the nation’s chief law enforcement official.

Barr’s actions have destroyed his credibility and dishonored the Justice Department’s stated mission “to ensure fair and impartial administration of justice for all Americans.”

He is unfit to serve as Attorney General.

Barr’s misuse of his office began on the day he was sworn in as Attorney General when he should have immediately recused himself from playing any role in the Mueller investigation. He certainly should not be playing any role today in the 14 pending criminal matters stemming from the Mueller investigation that the Special Counsel has referred to other Justice Department offices. But because he did not recuse himself, Barr currently acts as the final decision-maker on these matters as well.

In June 2018, before he became Attorney General, private citizen Barr sent an unsolicited memo to the Justice Department about the Mueller investigation. At the time, Barr had no non-public information about the work of the Mueller investigation. In his memo, Barr emphatically pronounced that “Mueller’s obstruction theory is fatally misconceived,” and said that if accepted it “would do lasting damage to the Presidency and to the administration of law with the Executive branch.”

Barr had thus prejudged the outcome of the Mueller investigation before he ever got to the Justice Department. And he made abundantly clear that as Attorney General he would reject any claim that Trump had obstructed justice, no matter what evidence of obstruction Special Counsel Mueller found. That is precisely what Attorney General Barr later did, despite Mueller’s detailed findings about 10 potential cases of obstruction of justice by Trump.

On March 24, Attorney General Barr sent Congress a four page letter describing the Mueller report and released a copy of the letter to the public. In the letter, Barr mischaracterized the report. Then, he left his mischaracterization as the only information available to Congress and the public for almost a month before finally sending the report itself to Congress.

Barr’s misleading and inaccurate description of the Mueller report in his March 24 letter resulted in Mueller sending a letter to Barr three days later on March 27 protesting Barr’s characterization of the report.  In his letter, Mueller said that the Barr letter “did not fully capture the context, nature and substance of this office’s work and conclusions,” and that “there is now public confusion about critical aspects of the results of our investigation.”

Mueller urged Barr to release the summaries of the Special Counsel report contained in the report itself, which would have provided Congress and the public with an accurate picture of the contents of the report.  Barr refused Mueller’s request.

Barr’s misleading March 24 letter to Congress allowed him and President Trump to publicly disseminate an inaccurate and incomplete narrative about the Mueller report until Barr finally sent the report to Congress, almost a month later.

This permitted Trump to make false and misleading claims about the findings of the Mueller report, and for a month those claims could not be contradicted by Congress, the media or the public because they had not seen the actual report.

The President, for example, repeatedly claimed that the Special Counsel report exonerated him on collusion and obstruction of justice. When the report was finally released, it became clear that Trump’s claims were not true.

The Mueller report did not even address the issue of collusion, which is not a specifically defined legal term, but instead dealt only with the legal issues of criminal conspiracy and coordination.

More importantly, the report did the very opposite of exonerating Trump on obstruction. It explicitly stated that President Trump was not exonerated on obstruction of justice and listed 10 examples of potential obstruction by President Trump.

The report stated that Mueller had accepted the Justice Department policy position that a sitting President could not be indicted and thus the Special Counsel office never reached the stage of making a decision on whether to indict the president for obstruction of justice.

Barr’s pronounced exoneration of President Trump from obstruction of justice was rejected in an extraordinary public statement issued by more than 900 former Justice Department prosecutors who worked in every Republican and Democratic presidential administration since President Eisenhower.

The prosecutors flatly rejected Barr’s conclusion that Trump had not committed obstruction, stating that the evidence shown in the Mueller report would “result in multiple felony charges for obstruction of justice” for “any other person not covered by the Office of Legal Counsel policy against indicting a sitting President.”

On April 9 and April 10, 2019, Barr stated in public testimony to two congressional committees that he did not know if Mueller and his office disagreed with the portrayal of the Mueller report set forth in Barr’s March 24 letter to Congress. This was not true.

Barr clearly did know at the time of his testimony that Mueller objected to his characterization of the report. Mueller had expressed his concerns directly to Barr in the letter Mueller sent him on March 27, just three days after Barr’s misleading letter to Congress.

On April 18, 2019, hours before the public release of the redacted Mueller report, Barr held a lengthy press conference in which he again mischaracterized and misrepresented the Mueller report.

In his press conference, Barr mimicked the President’s false claim that the Mueller report found “no collusion” between the Trump campaign and Russia.  Barr used Trump’s code words to serve the President rather than the truth.

Barr knew the report explicitly said it was not addressing “collusion,” but that did not stop him   from misrepresenting the Mueller report in order to validate Trump’s false “no collusion” claim about the report.

In his testimony before the Senate Judiciary Committee on May 1, Barr disingenuously portrayed the President as having “fully cooperated” with the Mueller investigation, when this was patently untrue.

President Trump refused to be interviewed by the Special Counsel and instead provided written responses to limited questions submitted by the Special Counsel under terms demanded by Trump that prohibited the Special Counsel from asking any questions about obstruction. This was anything but full cooperation.

Furthermore, the Mueller report lays out in detail multiple acts of apparent obstruction that Trump engaged in to frustrate or derail the investigation. Whether these acts meet the criminal standard for prosecutable obstruction of justice, and more than 900 former prosecutors state they do, Trump’s actions certainly constitute efforts to obstruct the investigation. They also demonstrate that Trump’s conduct was anything but full cooperation.

Barr also belied reality in his convoluted description of Trump’s instruction to former White House Counsel Donald McGahn to have Special Counsel Mueller removed on grounds of  conflict of interest.

In Barr’s view, this was not an instruction to “fire” Mueller because removal for reasons of conflict would “presumably” lead to appointment of another Special Counsel while “firing” Mueller would not.

McGahn, however, certainly believed Trump was directing him to fire Mueller, because he was ready to resign rather than carry out an instruction that he feared would be a second Saturday Night Massacre, which involved the firing of Watergate Special Prosecutor Archibald Cox.

Barr’s claim that Trump’s directive to remove Mueller was not really an effort to fire Mueller is pure sophistry that does not pass the laugh test.

Another Barr abuse of his office involves one of President Trump’s pet attack lines: unsubstantiated allegations of “spying” and illegal activity by officials in the Justice Department and FBI regarding the origins of the Russia investigation in 2016.

Bizarrely, Barr has opened his own investigation into these claims even though the Justice Department Inspector General has already been conducting the same investigation and is supposed to conclude his inquiry in the next couple of months. Barr opening his own separate investigation of the same matters makes no sense except as a gift to President Trump, who has been demanding such an investigation.

To justify his investigation, Barr has been using Trump’s code words to smear the FBI. Barr has been claiming that Americans were “spied” on during the Russia investigation even though he has provided no evidence to back up that inflammatory allegation. He is using “spying,” furthermore, to imply illegal action while duplicitously claiming he is not doing so.

In an interview with The Wall Street Journal, for example, Barr claimed that “government power was used to spy on American citizens” using the word “spy” to imply illegal conduct by the FBI. Barr also said on Fox News about his investigation, “A lot of the answers have been inadequate and some of the explanations I’ve gotten don’t hang together.”

So just how do Barr’s statements comply with the Justice Department policy of not making ad hoc pronouncements about matters currently under investigation?

And how do those statements comply with the Justice Department policy of not publicly alleging illegal conduct unless it is done as part of the filing of an indictment?

Carrie Cordero, a former Justice Department national security official and prosecutor, has pointed out about Barr, “His framing ‘spying on Americans’ at this point is intentional, conspiratorial and damaging to the public’s understanding of what DOJ/FBI do.” Cordero noted that Barr is “pandering to the president’s worst accusations, and at the same time undercutting what actually could be a credible and useful review of counterintelligence authorities in advance of 2020.”

President Trump has gone so far as to claim that the alleged spying on his campaign is treason. Attorney General Barr has not contradicted this claim.

President Trump also has been demanding that Barr conduct criminal investigations of his political opponents including former Secretaries of State Hillary Clinton and John Kerry and  2020 Democratic presidential candidate Joe Biden.

According to Jack Goldsmith, an assistant attorney general under President George W. Bush “It’s a terrible breach of norms for the president to publicly advocate prosecutions of his opponents.”

Attorney General Barr has stood silent about these irresponsible demands from President Trump.

Barr also went on Fox News and amazingly equated possible government misconduct at the outset of the Russia investigation with Russia’s cyber invasion of our elections.  According to Barr, “If we’re worried about foreign influence, for the very same reason we should be worried about whether government officials abused their power and put their thumb on the scale.”

To equate these two matters, one unquestionably established by the Mueller report and the other asserted without evidence, massively underplays the threat to our democracy posed by Russia’s attempt to manipulate and influence our elections.

According to a recent Fox News Poll, voters by 45 to 33 percent think Barr is “covering up” for the president rather than “being transparent with the American people.” They also trust Special Counsel Mueller over Attorney General Barr by 40 to 22 percent to tell the truth.

Barr’s actions have seriously undermined his credibility and the credibility of the Justice Department with the American people.

Benjamin Wittes, editor-in-chief of Lawfare and a highly respected observer of the Justice Department has described Barr’s statements about the Mueller report as “a disinformation campaign being run by the senior leadership of the Justice Department” that is “utterly beneath the United States Department of Justice.” Wittes has said about Barr, “Not in my memory has a sitting attorney general more diminished the credibility of his department on any subject.”

Attorney General Barr’s record makes the compelling case that his fealty is to President Trump and not to the duties of his office nor to the Justice Department’s mission “to ensure fair and impartial administration of justice for all Americans.”

Barr has disgraced his office.

He is unfit to serve as Attorney General of the United States.

This piece was originally published here on Medium.

Democracy 21 is a nonprofit, nonpartisan organization dedicated to making democracy work for all Americans. www.democracy21.org