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August 30, 2020 – James D. Zirin, a former federal prosecutor, is the author of the recently published book Plaintiff in Chief-A Portrait of Donald Trump in 3500 Lawsuits.

William Barr, the 85th Attorney General of the United States has much to answer for. His loyalties have been divided. He has consistently seen his duty as owing to Donald Trump rather than to the public. He has so evinced a propensity to bend justice in Trump’s favor, and so politicized the Justice Department that House Judiciary Committee Chairman Jerry Nadler has said he “deserves to be impeached.” 

The independence of the Justice Department is of signal importance for all who care about justice and the rule of law. Since Watergate, Justice has enjoyed a certain independence from the President, particularly in criminal matters involving him and his political associates. In Trump v. Vance, the case about the effort of Manhattan District Attorney Cy Vance’s effort to subpoena Donald Trump’s tax returns, Chief Justice Roberts reminded us of 200 years of jurisprudence reaffirming that, as concurring Justice Brett Kavanaugh put it, “In our system of government… no one is above the law.” In the corrupt Venezuela banana republic of Maduro, the Turkey autocracy of Erdogan and the monolithic China of Xi, cronies of the leader are untouched by the law. Here, we pride ourselves on a rule of law, and a legal system where guilt rests upon what you did, not whom you know. The President and his political allies can claim no immunity from prosecution, which does not belong equally to the humblest citizen.

At least until William Barr.

Barr has overruled his own line prosecutors by tampering with the sentencing of Roger Stone, convicted of seven counts of lying to Congress, obstruction of justice and jury tampering. The issue of Stone’s punishment is now academic as Trump has commuted his sentence. He has again overruled his prosecutors in the case of  Michael Flynn, convicted of lying to the FBI. Flynn pleaded guilty twice only to see the Attorney General Bill Barr move the court at the eleventh hour  dismiss all charges. The issue of whether he can lawfully do this is before the appellate court.

And then there is “Bermangate.” The Southern District of New York, where I once served as a prosecutor under the legendary Robert M. Morgenthau, has long prided itself in its prosecutorial independence from the Justice Department when it came to charging decisions. The office was headed by the independently minded Geoffrey Berman, a seasoned litigator appointed not only by Trump, but by the judges of the Southern District. Berman’s office had brought several high-profile cases that involved Trump associates, including the president’s former personal attorney Michael Cohen—convicted of tax evasion, campaign finance violations and lying to Congress—and Trump’s sometime attorney Rudy Giuliani. Last October, Southern District prosecutors charged two Trump and Giuliani associates, Lev Parnas and Igor Fruman, with scheming to funnel foreign money to U.S. politicians while trying to influence U.S.-Ukraine relations. There was also the prosecution of a Turkish bank close to Turkey’s strongman President Recep Erdogan, for whom Trump had expressed admiration. Those investigations were said to be continuing. 

Trump leaned on Barr to replace Berman. Accordingly, on June 19, Barr summoned Berman to his hotel suite in New York, and said he “wanted to make a change in the Southern District.” Barr never said that Berman had done a bad job. Indeed, he ultimately praised Berman in a press release, stating that: “With tenacity and savvy, Geoff has done an excellent job leading [the Southern District].” Instead, he offered to kick Berman upstairs to head of the civil division of the Justice Department in Washington, an overture that Nadler said came “awfully close to bribery.”

Barr said he wanted to replace Berman with SEC Chairman Jay Clayton, a Trump loyalist, who had no criminal or litigation experience. Berman refused Barr’s offer, and stated that he wished to remain until a successor was confirmed by the Senate, and that “there were important investigations in the Office that I wanted to see through to completion.” Barr told Berman that if he did not resign, he would be fired, which “would not be good for my resumé or future job prospects.” Berman adamantly refused to resign, telling Barr that there was “no job offer that would entice me to resign from my position.”

Later, Barr contacted Berman, and sweetened the pot, offering Berman chairman of the SEC. Berman told Barr his position was unchanged. What did Barr do? He lied, publicly announcing that Berman had agreed to step down. When Berman pushed back and refused to quit, Barr asked Trump to fire him as he had Berman’s predecessor Preet Bharara. Berman has told his entire story to the House Judiciary Committee behind closed doors. Public speculation over Barr’s role in “Bermangate” continues. 

As Americans, we have always prided ourselves that we are governed by the “rule of law.” The United States is a “government of laws, and not of men,” Chief Justice John Marshall proclaimed in 1803, but he was not the first to use the aphorism. He cribbed the line from John Adams, who turned the phrase in 1775. Today, they might have said “men and women.”

Adams and Marshall were both wrong. The individual who is the Attorney General has enormous power to bend and shape law enforcement to the will of the President who appoints him.

William Barr has cynically reminded us that the Attorney General may do far more than carry out the policy preferences of the President. At the direction of the President, he has the ability to influence prosecutorial decisions in individual cases, and his power to do so is essentially unchecked. Such power, when misused, undermines any concept of equal justice, and smacks of corruption. Staff members may resign, former prosecutors may sign letters of protest, Congress may threaten impeachment, inspectors general may inspect and write reports before they are fired, offices of public integrity may raise their eyebrows, the free press may rail against him, but the Attorney General can put his politically entrenched thumb on the scales of justice, and remain in the wheelhouse of the Department of Justice to do it again. If prosecutorial decisions depend on how susceptible the Attorney General is to the wishes of a corrupt and tyrannical President, and not on the facts and the law, what is law anyway? 

Attorneys General have been of varying caliber. Some were legal lions like William Evarts, George W. Wickersham, Homer Cummings, and Griffin Bell; others were political hacks. Some have been profiles in courage like Robert F. Kennedy and Eliot Richardson; others, rogues like Harry M. Daugherty and John N. Mitchell or babes in the woods like Janet Reno. Past Attorneys General had differing views of their ethical obligations. Some thought their obligations to the President had primacy over their obligations to the public; others rose above partisan politics to follow the rule of law and the Constitution. 

Lawyers are always obligated to represent their client’s best legal interests; they must do so of course within the rules of professional responsibility. A lawyer is a headless horseman unless he has a client whose legal interests he is ethically bound to advance. It goes without saying that the Attorney General of the United States is a lawyer, that’s easy. But he is no ordinary lawyer. Under the authority of the Constitution, Congress has vested in the Attorney General the virtually unfettered discretion to conduct the criminal litigation of the United States.

But who is his client supposed to be? Is the client the government, the Constitution, the public or the President who appointed him? What duty of loyalty does he owe to whoever is his client? Normally, his loyalties are not in conflict. As Brandeis observed, “Multiple loyalties are objectionable only if they are inconsistent.” But it  is considered objectionable for a lawyer to serve conflicting interests. The Good Book teaches that no man can serve two masters. When conflicts arise, he must relinquish one, and remain loyal to the other or else, in appropriate cases, withdraw completely from the representation. This poses the riddle of the office. Is the Attorney General supposed to be the President’s lawyer? Is he supposed to protect the President personally from legal challenge? Or is he supposed to be an “independent” servant of the law, like Hebrew National Kosher hot dogs,  only answering to some “higher authority?” 

The question has never been fully settled.

The Attorney General’s independence is often more honored in the breach than the observance. The President appoints him and his top deputies, and they all serve at his pleasure. So, do the 93 United States Attorneys who represent the government around the country. Eliot Richardson resigned when he found himself in such an ethical dilemma over the Watergate scandal, but he has been the only Attorney General to do so. Barr found himself inextricably mired in conflict, complaining in one instance that the President’s tweets about a pending case “make it impossible for me to do my job.” Yet, he stayed on. 

There have been 85 Attorneys General in our history. Virginia bookends the list. The first was Edmund Randolph of Virginia appointed in 1789; the last, Barr, appointed in 2019. Some have shown a streak of independence from the Presidents who have appointed them; others have been toadies like Barr, showing more deference to the politics that brought them to office than to the Constitution that they are sworn to serve. 

The United States Constitution makes no mention of the office of Attorney General, and no law says he must be independent of the President. Clearly, among other things, his job is to represent the United States in legal matters and to furnish advice and opinions, to the President and the Cabinet. There is an aspirational  statement emblazoned on the rotunda outside the office of the Attorney General in Washington, “The United States wins its point whenever justice is done itscitizens in the courts.” But, what is this funny thing called justice? And how can we tell if the United States has really won its point if the Attorney General refuses to press it, pulls his punches, fires a prosecutor who is getting too close to an uncomfortable truth,  or drops a case against some political ally of the President because he is  blind to where his true duties lie?

Congress created the Attorney General’s office in the Judiciary Act of 1789, not in the executive branch statutes. It modeled the position after the English Attorney General and those of the several states. The Attorney General was not considered a political member of the administration but the government officer responsible for representing the United States in court. 

From the founding of the republic, the Attorney General was viewed as having a quasi-judicial responsibility. The duty of the Attorney General [was] to:

               act as professional custodian of the law for the executive

               departments…. [T]here is [a] separate responsibility that

               the Attorney General has, and that no other cabinet

               department has, to uphold and preserve the law and to do so

               according to legal standards[,] not political ones.
 

All well and good, but how does all that play out where the responsibility is to investigate or perhaps even prosecute the President or his close political associates? How can the Attorney General remain independent and do justice to such an inquiry in a way that will command public confidence in the proceeding or its outcome? We have inherited a constitutional structure of separation of powers, popularly known as a system of “checks and balances.”

Justice Antonin Scalia reminded us that it is not the bill of rights that protects our basic liberties. As he said, any banana republic can have a bill of rights. It is, he thought, the separation of powers. But what does the separation of powers do for us if we have a rogue President prepared to obstruct justice to achieve his ends, aided and abetted by a Senate that will not stand up to him, and an Attorney General who believes he owes no duty to the law or to the public, but is an extension of the President himself?

In 1854, Attorney General Caleb Cushing provided President Franklin Pierce with a detailed and highly influential opinion on the executive functions of the various departments, the powers enjoyed by the President as the chief executive of the nation, and the role and duties of the Attorney General. Cushing’s opinion is the first formal explanation, by an Attorney General, on the “quasi-judicial” nature of the office. Cushing thought that the position of Attorney General was created, not as a separate government department like the departments of State, War, and Treasury. The creation of the Attorney General within the Judiciary Act was to provide the President and his department heads with authoritative, independent and final determinations on the meaning of the law. 

In an 1853 opinion, Cushing described the role of the Attorney General within the executive branch as follows:

               It frequently happens that questions of great importance, submitted

               to him for determination, are elaborately argued by counsel; and

               whether it be so or not, he feels, in the performance of this part

               of his duty, that he is not a counsel giving advice to the

               Government as his client, but a public officer, acting judicially,

               under all the solemn responsibilities of conscience and of legal

               obligation. 

True, the “semi- independence” of the Attorney General is not absolute. The Constitution makes the Attorney General, in appearance and reality, an instrumentality of the President, by the President, and for the President. It is the President who appoints him, and he serves at the President’s pleasure. 

Some believe that the Constitution  has created a “unitary executive,” or an imperial President. For those contrarians who buy into the unitary executive theory, the Constitution vests the “executive power” in the President alone, and he alone can exercise it. This is not necessarily a hard-right view of the presidency. It was the progressive Woodrow Wilson who said that a President is the “unifying force in our complex system.” His power is virtually limitless. “His office is anything he has the sagacity and force to make it.” On this view, the Presidential authority to direct and control an administration is especially clear with respect to law enforcement and national security, since the President himself has a constitutional duty to “take Care that the Laws be faithfully executed,” and is the “Commander in Chief.” 

So where does anyone find authority for the independence of the Attorney General? Professor Jack Goldsmith of Harvard Law School, himself a top-ranking Justice official in the second Bush administration, finds that the post-Watergate practice is instructive: 

The most important [legal] “guarantees of …[Department of Justice independence] come not from the Constitution or statutes, but from norms and practices that since Watergate have emerged within the Executive branch. Every President since Watergate has continued policies for preserving Justice’s independence in certain law enforcement and intelligence matters. These internal practices, confirm the President’s ultimate power and responsibility for law enforcement and intelligence while at the same time recognizing that in certain matters, it is desirable for the executive branch to have internal divisions of authority that achieve a type of independence from Presidential control. 

In the post-Watergate era, most Attorneys General and their staffs have rigorously guarded their remove from politics. By law, none of them can engage in partisan political activity. Griffin Bell, Jimmy Carter’s first Attorney General screened all communications from the White House “to ensure that any improper attempts to influence a decision” did not reach line prosecutors. Loretta Lynch, Obama’s second Attorney General, promised senators during her confirmation hearings complete independence. 

After Watergate, Congress considered legislation to make the AG’s office and the Justice Department into an independent agency, shielded by statute from the President’s political control to ensure that the President would not be above the law. 

The only guidance in our constitutional traditions that the President is not above the law comes from Magna Carta. When King James in the 1620s insisted on his “sovereignty”—a hoary doctrine by which the monarch is above the law—Sir Edward Coke, said to be the greatest jurist of his era, who was himself for a time the Attorney General of England, Scotland and Wales, blew the dust off Magna Carta of 1215, and insisted that it was the other way ‘round: the law was above the king. “Magna Carta is such a fellow,” said Coke, “that he will have no sovereign.”

Accordingly, in 1974 Chief Justice Burger, speaking for a unanimous Supreme Court in United States v. Nixon reaffirmed the proposition when he reflected on John Marshall’s statement that, “[i]n no case of this kind would a court be required to proceed against the President as against an ordinary individual.’ Burger added in unmistakable terms that Marshall’s statement “cannot be read to mean in any sense that a President is above the law.” Decidedly, the President is not above the law. Nor is the Attorney General.

Congress did not go so far as to create an independent agency, potentially empowered to investigate and prosecute the President.  Instead, it adopted a more modest reform when it passed the 1978 independent counsel statute, which protected a category of prosecutions from Presidential control. Under the measure, the “independent counsel” was to be selected not by the Attorney General, but by the judges. That statute was upheld by the court in an 8-to-1 opinion written by Chief Justice William Rehnquist in Morrison vs. Olson (1988). Scalia wrote a sizzling dissent in the case arguing that the separation of powers precluded the judges from appointing a prosecutor, whom he saw as performing an exclusively executive function. Although Congress did not reauthorize the independent counsel law in 1999, Morrison and Nixon remain controlling legal precedents, upholding Congress’s ability to protect federal law enforcement authority from the dominating influence of the President on the wheels of justice.

Next week, read the conclusion of James Zirin’s assessment of William Barr’s tenure as Attorney General.

Republished from the History News Network: https://historynewsnetwork.org/article/177130