February 17, 2020

Attorney General William Barr, or rather, opposition to his continued leadership of the Department of Justice, has dominated the news today. Barr’s apparent attempts to mold the actions of the Justice Department around the political needs of the president have prompted the nation’s legal community to sound a blaring alarm that we are losing the bedrock principle of equality before the law.

Barr has carried water for Trump since he took office in February 2019 and almost immediately helped to bury the conclusions of Special Counsel Robert Mueller’s investigation into Russian attacks on the 2016 election. But the event that has thrust Barr’s actions into the news now concerns Trump’s friend and former advisor, self-described dirty trickster Roger Stone, whom a jury found guilty of seven counts of lying to Congress and witness tampering during the investigation into Russian interference in the 2016 election.

On Monday, February 10, career prosecutors in the Justice Department recommended a sentence of from 7 to 9 years, a sentence in keeping with Federal Sentencing Guidelines. Immediately after the sentencing recommendation Trump tweeted that it was “horrible and unfair” and a “miscarriage of justice.” The next day, political appointees at the Department of Justice did an about-face and filed a new recommendation with the court suggesting a lighter sentence.

Immediately, all four of the federal prosecutors on the Stone case withdrew, and two of them resigned from the Washington U.S. Attorney’s office altogether. Days later, the former U.S. Attorney who had overseen the Stone case, and who had shifted to the Treasury Department to allow one of Barr’s hand-picked cronies to take her spot, also resigned. When challenged, those who had revised the recommendations tried to claim that their revision had been in the works long before Trump tweeted. But the next day Trump tweeted, “Congratulations to Attorney General Bill Barr for taking charge of a case that was totally out of control and perhaps should not have even been brought.”

The day after Trump’s triumphant tweet, on February 13, the New York City bar association wrote to the Inspector General of the Justice Department, as well as to the chairs and the ranking members of the House and Senate Judiciary Committees “to express our deep concerns about the impartial administration of justice in connection with the prosecution of Roger Stone in federal court in Washington, D.C.”

It called for “immediate investigations by Congress and by the Department of Justice Office of the Inspector General.” It noted that “Recent actions by the U.S. Attorney’s Office for the District of Columbia, a component of the United States Department of Justice, raise serious questions about whether the Department of Justice is making prosecutorial decisions based not on neutral principles but in order to protect President Trump’s supporters and friends. In our criminal justice system, a single standard must apply to all who are accused or convicted of violating the law — unequal treatment based on political influence is to be deplored in all cases but is especially dangerous if it emanates from the presidency.”

It went on to say that if presidential influence over the prosecution of criminal cases were tolerated, “it will undermine the rule of law on which our nation was founded and on which we rely as a foundation of our democracy.”

Recognizing that he had a firestorm on his hands, Barr did an interview with ABC News in which he claimed that Trump had never asked him to intervene in a criminal case. But the next morning, on February 14, Trump responded: “This doesn’t mean that I do not have, as President, the legal right to do so, I do, but I have so far chosen not to!”

This was too much for former Department of Justice employees. On February 16, news broke that a bipartisan group of more than 2,000 of them had signed a letter saying that “each of us strongly condemns President Trump’s and Attorney General Barr’s interference in the fair administration of justice.” “[P]olitical interference in the conduct of a criminal prosecution is anathema to the Department’s core mission and to its sacred obligation to ensure equal justice under the law,” they wrote. “And yet, President Trump and Attorney General Barr have openly and repeatedly flouted this fundamental principle.”

And then they said it: “Governments that use the enormous power of law enforcement to punish their enemies and reward their allies are not constitutional republics; they are autocracies.”

They demanded Barr resign, but, acknowledging that he was unlikely to, called upon the career officials in the Justice Department to “to take appropriate action to uphold their oaths of office and defend nonpartisan, apolitical justice.” They asked all DOJ employees to report abuses to the Inspector General, to refuse to carry out orders that undermined the principle of equal justice before the law, to withdraw from cases where that principle was undermined, and, if necessary, to resign and to make public statements about why they were resigning. “The rule of law and the survival of our Republic demand nothing less.”

Then today, in The Atlantic, Donald Ayer, the former Deputy Attorney General under President George H. W. Bush, wrote that Barr was unfit for office because of his “long-held belief in the need for a virtually autocratic executive.” Barr is replacing our fundamental principle that everyone is equal before the law with his own theory that the president is all-powerful, and cannot be checked. This theory made the United States “a banana republic where all are subject to the whims of a dictatorial president and his henchmen. To prevent that, we need a public uprising demanding that Bill Barr resign immediately, or failing that, be impeached.”

Also today, the Federal Judges’ Association called an emergency meeting to respond to the intervention of Attorney General Barr into the sentencing of Roger Stone. The Federal Judges Association is a bipartisan group of more than 1000 federal judges, whose mission is “to protect the independence of the judiciary and to explain its significance to a free society.”

As a voluntary organization, the Federal Judges’ Association has no legal authority to remove Barr, but it has important moral authority. Harvard Professor Laurence Tribe tweeted: “This is rolling thunder. One stuffed goose named Barr is cooked. 2000 DOJ alumni he can ignore. 1000 federal judges? That’s an altogether different kettle of fish.” He elaborated: “Moral suasion shouldn’t be discounted — at least not yet. It won’t move Trump or Barr directly but could build pressure for more resignations down the line and thereby indirectly affect the electorate in November…. And in any event discrediting those who deserve to be discredited is good in itself.”

Meanwhile, Roger Stone is scheduled to be sentenced on Thursday, and Judge Amy Berman Jackson, who is overseeing the case, has called a special hearing for tomorrow. What, exactly, the hearing is about is not yet clear, but Jackson does have the authority to order the relevant players to appear and testify to the reasons behind their actions.

It seems that the fight over the independence of the Department of Justice is rapidly becoming a showdown over whether or not we will manage to preserve American democracy.