June 24, 2020

Today the politicization of the United States Department of Justice was on the table in Congress.

The Justice Department, which is part of the government’s executive branch, is responsible for enforcing the laws and administering justice in America. It prosecutes federal crimes, and represents the United States in court. It also supervises all 93 of the U.S. Attorneys, who are the lawyers for the federal government, prosecuting crimes, defending federal programs, and guarding the financial interests of the federal government. In certain circumstances, the DOJ also has some responsibilities for law enforcement.

The DOJ is overseen by the Attorney General, who is the chief lawyer for the federal government (not the president) and is appointed by the president and confirmed by the Senate. Under Trump, the position has become dangerously politicized in an apparent effort to defend the president from investigations into his 2016 campaign’s ties to Russian operatives.

Trump’s first Attorney General was Jeff Sessions, a former Senator from Alabama, who drew the president’s wrath when he recused himself from the Russia investigation after it came out that he had lied in his confirmation hearings about his own contacts with Russian officials during the campaign. On November 7, 2018, the day after voters handed the House of Representatives to a Democratic majority in the midterm elections, Sessions resigned from his position as Attorney General at Trump’s request.

Trump replaced Sessions not with his deputy attorney general, Rod Rosenstein-- who had appointed Special Counsel Robert Mueller to investigate Russian interference in the 2016 election-- but instead with Sessions’s former chief of staff Matthew Whitaker. Whitaker had caught Trump’s eye with his attacks on Mueller’s investigation and his insistence that there was no collusion between the Trump campaign and Russian operatives. Once in as the acting AG, Whitaker oversaw Mueller. People close to the president told New York Times reporters that Whitaker was supposed to shut down the Russia investigation.

Whitaker’s appointment drew criticism because Trump had avoided Senate confirmation by installing Whitaker as an acting AG. Finally, Trump let go of Whitaker and nominated William P. Barr. In his confirmation hearing, asked explicitly about the Mueller investigation, Barr pledged that he would not impede the investigation and that he would disclose as much as he could of Mueller’s forthcoming Report.

Barr took office on February 14, 2019.

On March 22, Barr notified Congress that Mueller’s investigation was complete, and on March 24, wrote a letter claiming that Mueller’s report exonerated the president and his team. In fact, the report established that the Russian government had illegally intervened in the election to benefit Trump, and that the campaign “expected it would benefit electorally from information stolen and released through Russian efforts.” Mueller wrote to Barr saying that his letter “did not fully capture the context, nature, and substance” of the Report. But on April 18, Barr held a press conference in which he said that Mueller cleared the president of “collusion” with the Russians. (“Collusion” is not a legal term, and Mueller said explicitly that they did not look at it.)

Barr’s undermining of the Mueller investigation continued in late January 2020, when Trump offered a new job in the Treasury Department to the U.S. Attorney for Washington, D.C., Jessie Liu, who had overseen the prosecution of Roger Stone, a friend and former advisor to the president. A jury found Stone guilty of seven counts of lying to Congress and witness tampering during the Russia investigation. Liu resigned to take the Treasury job. In her place, Barr put his counsellor Timothy Shea, who was now in a position to oversee a number of the cases begun under Mueller, including those of Stone and Trump's former national security adviser Michael Flynn.

Within days, Shea undermined the Stone case. On Monday, February 10, DOJ prosecutors wrote to Judge Amy Berman Jackson recommending 7 to 9 years of jail time-- standard department guidelines. Immediately after the sentencing recommendation, Trump tweeted that it was “horrible and unfair” and a “miscarriage of justice.” The DOJ then reversed itself, saying its own prosecutors had failed to be “reasonable.”

In response, all four of the federal prosecutors responsible for Stone’s case withdrew from it, including Aaron S.J. Zelinsky, who had worked on Mueller’s team. The administration promptly withdrew Liu’s nomination for the Treasury Department position, suggesting it was offered simply to get her out of the US Attorney office.

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. Evidence now clearly shows that the Mueller Scam was improperly brought & tainted. Even Bob Mueller lied to Congress!” (The charge that Mueller lied to Congress is astonishing, and Trump has provided no evidence to back it up.)

More than 1100 former DOJ officials called for Barr to resign over his handling of the Stone case, accusing him of politicizing the DOJ and undermining the rule of law.

Next up was the Flynn case. Flynn pleaded guilty to lying to the FBI about his contacts with Russian Ambassador Sergey Kislyak before Trump’s inauguration and was waiting for his sentence when in May, Shea abruptly abandoned the case. He wrote that the “continued prosecution of this case would not serve the interests of justice,” and that Flynn’s lies to the FBI were not material because the investigation itself was improper. Shea’s was the only name on the filing; career DOJ lawyers refused to sign it. Barr went further, telling CBS News that prosecutors did not establish that a crime had been committed.

U.S. District Judge Emmet G. Sullivan appointed a former judge to evaluate the unusual request to drop a case after a guilty plea.

Then, last weekend, Barr tried to remove and replace the interim US Attorney for the Southern District of New York, falsely saying Geoffrey Berman had resigned. Today more than 80% of the faculty at George Washington University Law School where Barr got his law degree called for Barr’s resignation in the wake of that attempt. Barr has “undermined the rule of law, damaged public confidence that the law applies equally and fairly to all persons, and demonstrated contempt for basic constitutional rights,” they wrote.

Today also saw new developments in the Flynn and Stone cases.

In a rare and surprising move, a panel of judges on a federal appeals court overseen by Trump appointee Neomi Rao ordered Sullivan to dismiss the Flynn case immediately without further review. Sullivan did not; he simply suspended deadlines as he waits for a review by the full court.

Also today, two attorneys from the DOJ testified before the House Judiciary Committee, saying that the DOJ has become dangerously politicized. John W. Elias, a whistleblower from the Antitrust Division of the DOJ, told Congress that Barr personally ordered investigations of industries that he or the president disliked, even though there was no legal reason to do so.

Zelinsky, now an Assistant U.S. Attorney in the U.S. Attorney’s Office for the District of Maryland, explained what had happened back in February. He said his superiors ordered a reduction in the sentencing recommendation for Roger Stone because Shea “was giving Stone a break because he was afraid of the president of the United States.” Zelinsky said the prosecutors were warned they could be fired if they didn’t go along. “I was repeatedly told the department’s actions were not based on the law or the facts, but rather on political considerations, Mr. Stone’s political relationships, and that the acting U.S. attorney was afraid of the president.”

When Zelinsky threatened to withdraw, he and his colleagues were allowed to file a correct sentencing memorandum. As soon as the sentencing recommendation went out, however, the president tweeted that the sentence was unfair, and the DOJ wrote a new memo asking for a lighter sentence. Zelinsky withdrew from the case, “because following orders would have violated the oath I swore when I took my job,” he said.

This was a message the Republicans on the Judiciary Committee did not want to hear—literally. They tried to disrupt the proceedings. First Jim Jordan (R-OH) objected that witnesses could not testify over video. Then, after witness Donald Ayer said “I believe that William Barr poses the greatest threat in my lifetime to our rule of law,” Louie Gohmert (R-TX) began tapping on the microphone to drown out the witnesses.

Ayer is no wild leftist; he was Deputy AG under President George H.W. Bush.

In an article in February, just after the Stone sentencing crisis, Ayer warned that Barr "is working to destroy the integrity and independence of the Justice Department, in order to make Donald Trump a president who can operate above the law.... Bill Barr’s America is not a place that anyone, including Trump voters, should want to go. It is a banana republic where all are subject to the whims of a dictatorial president and his henchmen."

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Notes:

Whitaker: https://www.nytimes.com/2018/11/09/us/politics/matthew-whitaker-acting-attorney-general.html

https://www.nytimes.com/2018/11/07/us/politics/sessions-resigns.html

https://www.reuters.com/article/us-usa-trump-whitaker-idUSKBN1OF0HN

Flynn: https://www.washingtonpost.com/local/legal-issues/justice-dept-moves-to-void-michael-flynns-conviction-in-muellers-russia-probe/2020/05/07/9bd7885e-679d-11ea-b313-df458622c2cc_story.html

Shea: https://www.washingtonpost.com/local/public-safety/attorney-general-william-p-barr-names-timothy-shea-one-of-his-counselors-as-the-districts-interim-us-attorney/2020/01/30/446fe6a6-4303-11ea-b503-2b077c436617_story.html

https://www.washingtonpost.com/local/legal-issues/us-attorney-timothy-sheas-role-in-roger-stone-sentencing-storm-remains-in-question/2020/02/14/947c6c30-4dc8-11ea-9b5c-eac5b16dafaa_story.html

Testimony: https://www.washingtonpost.com/national-security/2020/06/24/barr-roger-stone-mueller-doj/

Gohmert: https://www.theguardian.com/us-news/video/2020/jun/25/republican-congressman-louie-gohmert-repeatedly-bangs-on-desk-during-house-hearing-on-barr-video

Rao: https://www.nytimes.com/2019/03/13/us/politics/neomi-rao-confirmed.html

https://www.nytimes.com/2020/06/24/us/politics/michael-flynn-appeals-court.html

Jackson:

GW: https://lawandcrime.com/high-profile/in-scathing-letter-more-than-80-percent-of-active-faculty-at-bill-barrs-law-school-call-for-his-censure-and-resignation/

https://lawandcrime.com/high-profile/more-than-1100-former-doj-officials-call-on-william-barr-to-resign-over-roger-stone-case/

https://www.theatlantic.com/ideas/archive/2020/02/donald-ayer-bill-barr-must-resign/606670/

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