Democracy 21 Files DOJ Complaint Against Attorney General Barr

April 15, 2019 – In a complaint sent today to the Justice Department Office of Professional Responsibility (OPR), Democracy 21 President Fred Wertheimer wrote that Attorney General William Barr has violated Justice Department norms and standards of conduct by “publicly testifying, without any substantiation, that FBI and Justice Department officials had engaged in ‘spying’ on the Trump campaign during the 2016 election.”

Democracy 21 called on OPR to uphold the DOJ’s commitment to the highest standards of conduct for all its officials, and especially the Attorney General, by finding that Attorney General Barr had engaged in improper conduct.

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The complaint noted that there is precedent for OPR investigating and making findings regarding an Attorney General, citing a 1988 OPR investigation of Attorney General Edward Meese following a complaint filed by Wertheimer on behalf of Common Cause.

“It is improper conduct for the Attorney General of the United States to charge the FBI and the Justice Department with ‘spying’ while offering not a scintilla of evidence to back up his allegation,” according to Wertheimer.

“Attorney General Barr had to know that his inflammatory claim of ‘spying’ by the FBI and DOJ would be used by President Trump as validation for his false attacks on the Mueller investigation as illegal. And that is precisely what President Trump has done,” Wertheimer said.

The complaint stated:

The remarks of the Attorney General and his explosive allegation that “spying” occurred did not take place in a vacuum.  Instead, they were made in the context of a heated political attack by President Trump and his allies on the lawfulness of the Special Counsel investigation into whether a hostile foreign power illegally interfered in the 2016 presidential election to benefit the Trump campaign, and whether it did so in coordination with members of the Trump campaign.

Attorney General Barr knew or certainly should have known that his unsubstantiated allegation would be publicly used by President Trump to validate his claim that illegal “spying” had occurred and tainted the whole Mueller investigation.

The complaint continued:

Attorney General Barr’s use of the alternative term “unauthorized surveillance” later in his testimony did not cure the problem he created. Barr still left standing the public impression that he believed improper conduct had occurred, while providing no evidence to back up this view. In doing so, he questioned the honesty and integrity of the FBI and of the Justice Department which he leads, without providing any basis for his allegations, and provided ammunition for President Trump to use to attack the legitimacy of the Mueller investigation.

Furthermore, the Attorney General never retracted his unsubstantiated claim that “spying” had occurred, leaving President Trump to use the Attorney General’s testimony as support for his false attacks on the Mueller investigation as illegal.

This is not a proper role for an Attorney General to play. Attorney General Barr has injected himself into a fierce public debate in a way can only be interpreted as siding with President Trump in the President’s repeated false attacks on the legality of the Mueller investigation.

The complaint said:

Whatever “clarifying” comments Attorney General Barr made following his use of the word “spying,” he has left standing his statement that “spying” occurred, enabling President Trump and his allies to cite the Attorney General as support for their continuing unsubstantiated and unproven claims.

In light of this backdrop, we urge you to conclude that the Attorney General’s remarks were improper and did not comply with the norms and standards of conduct that apply to Justice Department officials, and especially to the nation’s chief law enforcement official.

According to the complaint:

First, in response to a question about whether he had “evidence that there was anything improper in those investigations,” Barr responded, “I have no specific evidence that I would cite right now.  I do have questions about it.”

Thus, Barr made remarks that he knew or should have known would be used by the President and his allies as a public finding by the Attorney General that improper “spying” on the Trump campaign had occurred. Barr also knew or should have known that his remarks would be used as a political weapon to attack the legitimacy of the Special Counsel investigation, the Justice Department and the FBI — when Barr himself said he had “no specific evidence” to support those remarks.

The complaint continued:

Second, the Attorney General’s remarks were particularly inappropriate because they were not only inflammatory, but also unnecessary.

The gravamen of the Attorney General’s position is that “spying” occurred and that he wants to investigate “[t]he question [of] whether it was adequately predicated.”  According to The Washingon Post, the Attorney General “told House lawmakers that he would review how the FBI launched a counterintelligence investigation in its effort to determine whether Trump’s associates were conspiring with Russians to interfere in the election.”  He said he was assembling a “team” to conduct this investigation.

Yet, the Department’s Inspector General is already conducting an investigation into the origins of the FBI counterintelligence inquiry.

The complaint said:

Instead of announcing that he was undertaking his own separate investigation into the legality of the FBI’s “spying” on the Trump campaign, the responsible course of action would have been for the Attorney General simply to state that there is a pending Inspector General investigation of the FISA process that is almost complete, and that he will wait for “some answers” from that investigation.

The complaint continued:

Finally, the Attorney General wrongly created the public impression that there may have been an extensive practice of domestic spying on the Trump campaign.  As discussed above, the Inspector General is already reviewing the origins of the FBI investigation and the Special Counsel appointment.

Given that, and in advance of the results of the Inspector General investigation, there was no good reason for the Attorney General to announce that “spying” on the Trump campaign had occurred, thereby providing partisan political ammunition to the President, and no good reason to announce the creation of his own additional investigation.

The complaint concluded:

Democracy 21 urges OPR to investigate our complaint and to find that the Attorney General has engaged in improper conduct that fails to comply with the norms and standards of conduct applicable to all Justice Department officials, and most importantly to the Attorney General himself.

We urge you to uphold the Department’s commitment to the highest standards of conduct for all officials of the Justice Department by finding that it was improper for the Attorney General to publicly charge, without any evidence to support the charge, that the FBI and Justice Department had engaged in “spying” on the Trump campaign, and then to fail to retract this unsubstantiated and inflammatory charge.

Read the full complaint here.