Rebuilding trust in the Justice Department starts — but doesn't end — with Biden's choice of attorney general

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Before Attorney General William Barr assumed office in February 2019, a startling memorandum on Robert Mueller’s Russia investigation that Barr composed and sent, unsolicited, to the Department of Justice surfaced around the time of his nomination.

Barr, in his 2018 memo, asserted that the U.S. Constitution “places no limits on the president’s authority to act on matters which concern him or his own conduct,” revealing for some legal scholars a troubling view of the scope of presidential power, or at least of Trump’s.

The tersely worded brief prompted Neil Kinkopf, a law professor at Georgia State University and former special assistant in the Office of Legal Counsel at the DOJ, to testify against Barr’s appointment, sending a warning that Barr’s vision of executive power exalts the presidency, clashes with the constitutional system of checks and balances and is “too dangerous for any president to wield.”

Now, almost two years later, Kinkopf says that was an understatement. “In fact,” he told Yahoo News, “I would say I wasn’t alarmist enough.”

Barr replaced, after a brief interregnum, Trump’s first attorney general, Jeff Sessions, who was essentially fired by the president for insufficient loyalty in not stopping the investigation by special counsel Mueller.

Historically, presidents have sought out loyalists to serve as attorney general, arguably the one Cabinet member with the power to bring down an administration. John F. Kennedy put his own brother Robert in the job; Richard Nixon entrusted it to his hatchet man John Mitchell. Eric Holder, Barack Obama’s attorney general, was often accused (by Republicans) of furthering Obama’s political interests.

President Trump with Attorney General William Barr in the Oval Office on July 15. (Nicholas Kamm/AFP via Getty Images)
President Trump with Attorney General William Barr in the Oval Office on July 15. (Nicholas Kamm/AFP via Getty Images)

After Watergate — the scandal that led to Nixon’s resignation and landed Mitchell in jail — structural reforms were enacted to help ensure the department’s independence. The independent counsel law, passed in 1978 but allowed to expire in 1999, was one such reform. Also in 1978, President Jimmy Carter’s attorney general, Griffin Bell, established the rule that all communications with DOJ officials or line prosecutors about a particular case from Congress or White House staff should come through the attorney general’s office to avoid any improper influence. Subsequent administrations have generally abided by that rule.

A 2009 memo from Holder reiterated that stance, stating that “initial communications” between the department and the White House concerning criminal investigations and White House requests for legal opinions will involve only the attorney general or the deputy attorney general. Requests from the White House for legal opinions are to go through the attorney general and the assistant attorney general, who is in charge of the Office of Legal Counsel.

In 1994, Bill Clinton’s attorney general, Janet Reno, set in motion the process that would end with his impeachment, appointing an independent counsel to look into two Republican obsessions of the early Clinton administration: the Whitewater land deal and the death by suicide of deputy White House counsel Vince Foster. (Reno’s original choice, career Justice official Robert Fiske, was later replaced by order of a panel of federal judges with the veteran Republican operative Ken Starr, who eventually steered the investigation into Clinton’s personal behavior in office.)

Then-Attorney General Jeff Sessions in October 2018. (Alex Brandon/AP)
Then-Attorney General Jeff Sessions in October 2018. (Alex Brandon/AP)

Trump, though, in this as in so many other areas, would not be bound by the norms and traditions of either the presidency or the Justice Department, viewing the attorney general as another subordinate required to do his bidding. Besieged by investigators, he reportedly demanded, “Where’s my Roy Cohn?” — a reference to his longtime attorney and political mentor, the notoriously corrupt, bare-knuckled political infighter who died in 1986.

Revitalizing the Justice Department will depend on President-elect Joe Biden’s willingness to entrust it to a strong and independent attorney general — who will inherit, among other potentially explosive projects, an investigation into Biden’s son Hunter — and also on a reassessment and potential strengthening of the post-Watergate reforms, former DOJ employees told Yahoo News.

Philip Halpern, a 36-year department veteran who in October publicly resigned from his position as an assistant U.S. attorney in San Diego in protest of the way Barr was handling the department, believes there should be structural changes to ensure that investigations don’t become politicized. In an interview with Yahoo News, he suggested more independence for the inspector general and Office of Legal Counsel, and a commission to study how the DOJ handled cases during Trump’s presidency and make recommendations on what changes should be implemented to “insulate the attorney general as much as one can.”

Along similar lines, the American Constitution Society, a progressive legal advocacy group, said in an October report that when the Office of Legal Counsel gets new leadership, it should conduct a review of the office’s recent work, to “identify opinions or advice that fail to promote a legitimate interpretation of the law at issue, or that advance a conception of the separation of powers that unduly shields the president or the executive branch from scrutiny and accountability.”

The report, which emphasized the importance of the office’s independence from partisanship, also said the office should be bound by its past advice and decisions, unless such advice is “formally withdrawn,” so it doesn’t appear to cater to “policy and political pressures” in its opinions.

U.S. Attorney General William Barr, flanked by Acting Principal Associate Deputy Attorney General Edward O'Callaghan and Deputy Attorney General Rod Rosenstein, speaks at a news conference to discuss Special Counsel Robert Mueller's report on Russian interference in the 2016 U.S. presidential race, in Washington, U.S., April 18, 2019. REUTERS/Jonathan Ernst
Barr, flanked by acting Principal Associate Deputy Attorney General Edward O'Callaghan and Deputy Attorney General Rod Rosenstein, discussing the Mueller report on April 18, 2019. (Jonathan Ernst/Reuters)

Another change, suggested in a book by Robert Bauer, senior counsel for Biden’s campaign, and Jack Goldsmith, a Harvard Law School professor who served as assistant attorney general under George W. Bush, is to have special counsels who, like Mueller, are appointed to investigate the president report their findings directly to Congress and the public without going through the Justice Department, the New York Times reported. Bauer and Goldsmith’s book, about post-Trump reforms, is titled “After Trump: Reconstructing the Presidency.”

Asked about Barr’s tenure at the DOJ, Kinkopf and other department veterans of both Democratic and Republican administrations told Yahoo News they believe he eroded the agency’s reputation as fair and independent of partisan interests — catering more to Trump’s political whims than the rule of law — and emphasized that new leadership must uphold the traditions and culture of the department.

“Inept and vulgar political leadership has undermined how the department is perceived,” Chuck Rosenberg, a former U.S. attorney and former acting administrator of the Drug Enforcement Administration, told Yahoo News. “I worry about the perception of [the department] because I know the overwhelming majority of people who work there — career folks who care deeply about the institution — are actually fair.”

Although there are reports of shortlist contenders, such as Alabama Sen. Doug Jones, former Deputy Attorney General Sally Yates and federal Appeals Judge Merrick Garland (whose nomination to the Supreme Court by outgoing President Obama was stalled for nearly a year in the Senate), Biden has yet to announce his pick. Biden’s transition team did not respond to questions from Yahoo News. The Justice Department also did not respond to a request for comment.

On Monday, Trump announced on Twitter that Barr had resigned, effective Dec. 23, according to a letter he wrote to the president. His deputy, Jeffrey Rosen, will become acting attorney general. “Our relationship has been a very good one,” Trump said of Barr. “He has done an outstanding job!”

Barr, who previously served as attorney general under George H.W. Bush, led the department under Trump for just under two years. But his time as the nation’s top legal officer was long and tumultuous enough to rankle thousands of U.S. prosecutors, spark multiple resignations and mire the department in political controversies.

Barr testifies before the Senate Judiciary Committee on May 1, 2019. (Jahi Chikwendiu/The Washington Post via Getty Images)
Barr testifies before the Senate Judiciary Committee on May 1, 2019. (Jahi Chikwendiu/The Washington Post via Getty Images)

His tenure was marked by a series of polarizing decisions that raised doubts about his motivations. Kicking off these perceived missteps was Barr’s representation last year of Mueller’s report on his investigation of Russian interference in the 2016 presidential election, which concluded in March 2019. At a news conference that April, Barr said Mueller’s report stated that his investigation “did not establish that members of the Trump campaign conspired or coordinated with the Russian government in its election interference activities.”

Mueller, according to the Associated Press, privately told Barr that the attorney general’s public summary didn’t convey a key conclusion of the report — that the absence of a recommendation to bring criminal charges against Trump did not mean he was exonerated of allegations that he obstructed justice by interfering in Mueller’s investigation. Mueller testified before the House Judiciary Committee in July 2019 that DOJ policy does not allow a prosecutor to charge a sitting president.

Additionally, in a case involving the complete, unredacted release of Mueller’s report (a redacted version was released to the public), U.S. District Judge Reggie Walton said in March that Barr “failed to provide a thorough representation of the findings set forth in the Mueller report,” causing the court “to question whether Attorney General Barr’s intent was to create a one-sided narrative,” according to court documents.

Barr’s summary of the report troubled Halpern, who told Yahoo News he was “disgusted.”

“The [report] clearly shows significant ties between the campaign and coordination with Russia (Trump and the campaign have denied this),” he said, “but Barr characterized that as exonerating the president.”

After the Mueller incident, Halpern noticed what he described in an October op-ed in the San Diego Union-Tribune as “selective meddling” in cases that touched the president, including Barr’s February involvement in the criminal case against Roger Stone, a Trump loyalist. Barr overruled a recommendation from prosecutors that Stone serve seven to nine years in federal prison for obstruction, witness tampering and making false statements. Stone ultimately was sentenced to 40 months behind bars, but Trump commuted his sentence days before he was scheduled to begin serving it.

President-elect Joe Biden speaks as Vice President-elect Kamala Harris stands by in Wilmington, Del., on Nov. 16, 2020. (REUTERS/Kevin Lamarque/File Photo)
President-elect Joe Biden with Vice President-elect Kamala Harris in Wilmington, Del., on Nov. 16. (Kevin Lamarque/File Photo/Reuters)

In June, Aaron S.J. Zelinsky, a federal prosecutor in Maryland, wrote in a statement to the House Judiciary Committee that the Justice Department exerted “significant pressure” on prosecutors handling Stone’s case to “water down” his criminal conduct.

“I believe people who come into office have the right to set general policy,” Halpern told Yahoo News. “And that clearly happens in every administration. Just as Donald Trump, [through] Jeff Sessions, had the ability to say, ‘I’m going to arrest and charge every single person trying to come into this country [illegally].’ He had the right to do that. He even had the right, I believe, to say, ‘Under the asylum process, I will not let them in the country.’ He did both of those things. Personally, I found both of those reprehensible, but that’s policy.”

Halpern drew a distinction between an attorney general abiding by the general policy objectives of the administration in which he serves, which is how he characterized Sessions’s tenure — however distasteful he personally found it — and what he believes Barr did, which he says went beyond setting general goals and into “taking on individual issues,” or individual cases, that were germane to the president’s political interests.

Halpern’s public departure and the reasons behind it weren’t unprecedented. Bill Weld, who would later become governor of Massachusetts, found himself in a similar position as assistant attorney general in March 1988, when he and five other DOJ employees resigned over the leadership of then-Attorney General Edwin Meese during the administration of Ronald Reagan.

“I spent seven years in the Justice Department trying to keep the politics out of law enforcement,” Weld told Yahoo News. “I resigned from the department, along with five other people, because we thought that [Meese], who’s a perfectly fine guy, came from the White House and never really took off his White House hat. And that’s inconsistent with the best traditions of the Justice Department.”

Barr, Weld said, “had on a White House hat for entirely too much of the time.”

Senator Doug Jones, Sally Yates and Judge Merrick Garland. (Alex Edelman/Pool/AFP via Getty Images, Victor J. Blue/Bloomberg via Getty Images, Chip Somodevilla/Getty Images)
Sen. Doug Jones, Sally Yates and Judge Merrick Garland. (Alex Edelman/Pool/AFP via Getty Images, Victor J. Blue/Bloomberg via Getty Images, Chip Somodevilla/Getty Images)

One of Barr’s last acts as attorney general, however, was to tell the AP that the department did not uncover any evidence of widespread voter fraud that would affect the outcome of the presidential election, a statement that challenged the Trump campaign’s postelection legal crusade against the validity of the results. He also kept secret, as required by department policy, an ongoing federal tax investigation into Hunter Biden, who was a frequent surrogate target of the Trump campaign.

“Barr did what every other attorney general has always done,” Kinkopf said. “And on his way out the door, instead of decrying the president’s attempts to subvert democracy, he writes this obsequious resignation letter. So I find it hard to think of his [tenure] as anything other than an unmitigated disgrace.”

Now the onus seems to be on Biden to choose a leader who will be viewed as impartial. In an interview with CNN’s Jake Tapper, Biden said he won’t tell officials “what they have to do and don’t have to do. I’m not going to be saying go prosecute A, B or C — I’m not going to be telling them. That’s not the role. It’s not my Justice Department, it’s the people’s Justice Department.”

“The Department of Justice needs to be fair and it needs to be perceived as fair,” Rosenberg said. “It cannot be one or the other. It must be both.”

Thumbnail credit: Chip Somodevilla/Pool via Reuters


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