Yeomans Work

If Bill Barr Won’t Step Aside, Congress Must Demand Transparency

October 31, 2019

Bill Barr has had a tough couple of weeks. Democratic Members of the Senate Judiciary Committee called for his recusalfrom anything having to do with Ukraine or Rudy Giuliani and his associates. The New York City Bar Association labeledBarr more loyal to Trump than to the country and called for his recusal. Twitter is reverberating with renewed calls for his impeachment.

Barr, however has been undeterred in his quest to use the full force of his office to legitimize Trump’s ravings that the Russia investigation was a sham, concocted by the deep state for political purposes. Barr forges ahead, abandoning the traditional independence of attorneys general to serve as Trump’s fixer.

Barr’s latest abuse of his office stems from an orchestrated leak revealing that the Department of Justice has opened a criminal investigation, led by Connecticut U.S. Attorney John Durham, into something unspecified that is connected to the conduct of the Russia investigation. The news is alarming, but not wholly surprising. In an unconventional move, Barr had appointed Durham to lead an administrative review of the conduct of intelligence officials, even though the Department’s Inspector General’s review of the Russia investigation isnearly completed. Traditionally, Barr would receive the IG report, which might or might not contain criminal referrals, before assigning the matter to a U.S. Attorney — whose job is to investigate crimes, not perform administrative reviews.

The DOJ leak gave no details about when Durham’s investigation graduated from administrative to criminal or what crimes might be under investigation.  While unsupported conspiracy theories abound, no reliable public information has emerged suggesting criminal conduct.  A criminal investigation requires only a reasonable indication that a crime has occurred, a far easier standard than pertains to charging crimes or finding guilt.  In context, the principal purpose of the leak appears to have been to give Trump a positive news hit in the middle of a disastrous week. As Trump demonstrated in his dealings with Ukraine, the announcement of an investigation — regardless of its shaky foundation — is important to him as political fuel to fire up his base.

Trump’s disregard for the independence of law enforcement and Barr’s embrace of the role of Trump’s protector has damaged public trust in any investigation led by Barr that touches Trump or his political interests. Among other things, Barr’s squelching of the Ukraine whistleblower’s complaint and DOJ’s summary refusal to investigate the IG’s criminal referral have further shattered his credibility. To top it off, Trump mentioned Barr five times in his Ukraine phone call as a point person and resource for the Ukrainian corruption investigation. Barr denies involvement, but remains a potential witness in the Ukraine investigation. At the very least, his participation creates the appearance of a conflict inconsistent with the impartial administration of justice.

Barr has attempted to minimize his involvement in Durham’s investigation, saying that he engaged only in preliminary discussions and spoke with foreign leaders (he traveled to Italy and Britain) only to open avenues for Durham. That is substantial personal involvement for an Attorney General in an investigation. Barr retains authority to overrule Durham’s recommendations. He can shape the direction of the investigation, demand or squelch indictments, and, as we have seen, control the final narrative. His continued involvement inflicts an unacceptable blow on the fair enforcement of the law.

Barr, however, will not recuse himself. He watched Trump pillory and exile Jeff Sessions after he stepped aside from the Russia investigation. Trump will not tolerate an Attorney General who will choose principle over serving as Trump’s protector and Barr has shown himself eager to stay in Trump’s good graces.

Transparency can buttress public trust, but it is rare in criminal investigations, both because it can make them less effective, and can be unfair to people who are investigated and never charged. Regardless, Barr’s behavior has generated calls for enhanced transparency in Durham’s investigation, even from former DOJ officials steeped in the importance of secrecy in investigations. These calls pose the danger that Barr will control the release of information and once again distort the narrative, as he did with the Mueller report. On balance, however, it seems intolerable to allow DOJ to hide behind a veil of silence in conducting this investigation, particularly when the existence of the investigation is being exploited for political gain. The Administration should not be allowed to dangle the notion of an investigation without explaining its scope.

DOJ raises its shade in exceptional situations. The Civil Rights Division, for example, often announces high profile investigations and makes public the details of its findings, regardless whether it pursues charges, though it limits communication along the way. Because civil rights investigations frequently address tense situations that threaten the peace of communities, DOJ believes that the interest in reassuring the public that it has conducted a full and fair investigation outweighs traditional interests in concealing the details of an investigation. Attorney General Holder, for example, traveled to Ferguson, Missouri during civic unrest to announce the federal investigation into the shooting of Michael Brown. DOJ eventually issued a lengthy report detailing its investigation and findings.

A similar respect for transparency is built into DOJ’s regulations governing Special Counsels, which require the Attorney General to report to Congress any overruling of the Special Counsel and to make a final report to Congress. Durham, as a DOJ employee, cannot be a Special Counsel, but his role is similar. Special Counsels can be appointed when 1) a criminal investigation is warranted, 2) investigation by a unit of DOJ would pose a conflict of interest or there are “other extraordinary circumstances,” and 3) appointment would serve the public interest. Here, if a criminal investigation truly is warranted, a conflict of interest may exist (DOJ investigating itself), though the selection of Durham – a D.C. outsider — lessens that risk. Regardless, “extraordinary circumstances” surely exist in the appearance that the Department of Justice is pursuing an investigation at the repeated insistence of the President, who wants an investigation for political benefit.

Barr will not step aside unless he is prepared to resign. Given the public’s faltering trust in the Barr-led Department of Justice, Congress must press for maximum transparency regarding the scope, progress, and results of Durham’s investigation and Barr’s role in it.

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Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He currently serves as Lecturer in Law at Columbia Law School, and previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He also served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. For three years, Bill served as Sen. Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee, and has also held positions at AFJ and the American Constitution Society. The opinions of the writer are his own and do not necessarily represent the positions of Alliance for Justice.