In defense of William Barr
In the story by Franz Kafka, “In the Penal Colony,” an officer was standing next to a lethal punishing machine. When asked about his qualifications, he explained simply, “My guiding principle is this: Guilt is never to be doubted.” It seems many in Washington can claim the same Kafkaesque qualification this week when it comes to Attorney General William Barr.
After a Justice Department sentencing recommendation was withdrawn and replaced in the case of Roger Stone, Senator Elizabeth Warren said, “If that guy will not resign, then the House should start impeachment proceedings against him.” Not to be outdone, Representative Maxine Waters declared, “Bill Barr should not only be disbarred, but he, Donald Trump, and Roger Stone should be sharing a jail cell.”
What is most astonishing about the calls for impeachment, incarceration, and disbarment is that they ignore any countervailing information other than raw political manipulation of the Justice Department. Even more importantly, they ignore even the slightest possibility that the Justice Department may have done the right thing for the right reason.
More than 1,100 former Justice Department officials are calling on Barr to resign due to allegations of political interference. Notably, in expressing alarm over the threat to professional ethics, these lawyers did not feel it was necessary to learn critical details about the underlying controversy before warning of “future abuses” and “unlawful orders.” They show the same lack of interest in a fair process they accuse Barr of committing.
I have been a friend of Barr for years, and I also testified in favor of his confirmation before the Senate. Nevertheless, when this controversy erupted, I immediately stated that these concerns were legitimate and that an investigation is warranted. I still believe that. However, the calls for summary judgment ignore three key elements in reaching any conclusion, which are the timing, the merits, and the process.
The calls for impeachment and incarceration began as most scandals do in the Trump administration with irresponsible tweets from the president. It was not surprising or unreasonable for critics to latch on to the timing of the tweets followed by the withdrawal of the sentencing recommendation and resignations of prosecutors in the Stone case.
However, both the White House and the Justice Department quickly stated that there was no communication between Trump and Barr regarding the case and that the decision to withdraw the recommendation was made previously. If true, Trump showed his uncanny ability to undermine his own administration and then magnified that damage with a type of “atta boy” for Barr after the recommendation was withdrawn.
Barr then gave a television interview criticizing tweets by the president about pending federal criminal cases as “making it impossible to do my job.” Critics seemed caught off guard for about five minutes, and then resumed their calls for his utter destruction. The interview did not fit their narrative of Barr being a witless Trump troll so it was ignored.
(Just for the record, also ignored in the coverage is how the Justice Department under Barr allowed the Russia investigations to proceed unimpeded despite continual tweets by the president, prosecuted and convicted various Trump associates, including Stone, over objections by the president, declined to charge either James Comey or Andrew McCabe despite demands by the president, continued to investigate Trump figures and related businesses, and has not only prosecuted but expanded the investigation of close associates of Trump attorney Rudy Giuliani.)
Worse yet, many media analysts and legal experts ignored one relevant point, which is that Barr was correct. Justice Department prosecutors were wildly off base in their initial draconian recommendation of seven to nine years in prison for Stone. It was on the high end of the sentencing guidelines range, but only because prosecutors “stacked” counts against Stone, who is generally viewed as a clownish political provocateur. This time, what he has called his “performance art” went too far.
Before this controversy erupted, many of us, including critics of the Trump administration, described the sentencing recommendation as excessive. The new recommendation got it correct. It recommended that Stone be given prison time but not a maximum sentence. That is precisely what the court should do. In other words, the prosecutors got it wrong and the new recommendation did precisely what the Justice Department is supposed to do in advising a court honestly and fairly.
There are good faith reasons to question a Justice Department process that led to the resignation of multiple prosecutors after the lowering of a recommended sentence for a friend of the president. There also stands a legitimate question of why it was necessary to intervene in this particular case over a sentencing recommendation. However, there are reasons to be skeptical of the portrayals of a Justice Department commissariat slavishly carrying out orders by the president.
First and foremost, there is indeed nothing uncommon about the Justice Department criminal division supervising or even dictating the moves within a high profile federal case. You see, Main Justice has prosecutors too. The United States Attorney manual states, “If primary prosecutorial responsibility for a matter has been assumed by the criminal division or higher authority, the United States Attorney shall consult with the persons having primary responsibility before conducting grand jury proceedings, seeking indictment, or filing an information.”
It is not unprecedented for Main Justice to overrule local prosecutors. For example, in 2008 when President Obama was first running for the White House, prosecutors wanted to bring charges against Black Panthers who stood in front of polling places brandishing weapons. Attorney General Eric Holder and the Justice Department overruled them, despite a rather widespread view that the men were trying to intimidate voters. There were no calls to impeach or incarcerate Holder, who was widely viewed as one of the most political attorney generals in modern history.
Barr has explained that there was a “miscommunication” after a meeting at Main Justice where he believed it was understood that “we should not affirmatively recommend seven to nine years.” Instead, the prosecutors recommended that extreme sentence. According to some accounts, they made it over the objection of interim United States Attorney Tim Shea, a veteran prosecutor, who told Main Justice that he and other prosecutors considered the sentencing recommendation to be too harsh.
None of this means that there was no political interference or that there should not be an investigation. There are serious credible concerns to be investigated, and Barr has agreed to appear before Congress to answer those questions. However, the critics have shown the very same disregard for the facts, the merits, and the process that they ascribe to Barr.
I have my own presumptions and bias regarding Barr, based on decades of friendship. Yet neither affinity nor hostility should shape our analysis of this episode. So here is a novel suggestion. Before we impeach, disbar, and incarcerate Barr, maybe we should hear from him.
Jonathan Turley is the Shapiro Professor of Public Interest Law for George Washington University and served as the last lead counsel during a Senate impeachment trial. He testified as a witness expert in the House Judiciary Committee hearing during the impeachment inquiry of President Trump.