After the worst week in the history of an independent Justice Department since Watergate, on Tuesday, Donald Trump pardoned or commuted the sentences of 11 grifters, white-collar criminals, and liars. Declaring himself “the chief law enforcement officer of the country” (he isn’t), the president continued to tweet at the federal judge who will sentence his buddy, Roger Stone, on Thursday, even though his own Attorney General William Barr has said that Trump tweeting about ongoing criminal investigations and cases make it “impossible for me to do my job.” On Tuesday night, Barr leaked to the press that he is contemplating quitting the DOJ if Trump continues to insert himself publicly into ongoing matters of federal criminal law enforcement. This would be a shame for Barr, since both he and Trump seek to create a banana republic in the United States—the only difference is that Barr wants it to have the vestigial trappings of a constitutional democracy and the president’s outbursts keep getting in his way.
The crisis at the Justice Department began in earnest last week. Four federal prosecutors quit the Roger Stone case (and one departed the Justice Department altogether) after Barr withdrew their proposed sentencing recommendation following Trump’s tweet demanding a lesser punishment for Stone. Barr, insisting that he had undermined the career prosecutors in the case despite Trump’s tweets and not because of them, did an astonishing ABC interview in which he asked the president to stop interfering with the cases he was already ably undermining himself. “I’m not going to be bullied or influenced by anybody,” he said.
Barr has already installed politically supportive U.S. attorneys to review the DOJ’s work in several high-profile cases that involved the president, including the Michael Flynn prosecution and the Russia probe completed by Robert Mueller. Barr also just announced that he would like to conscript local sheriffs in his efforts to retaliate against so-called sanctuary cities. In other words, he is working assiduously to cast doubt on any prosecutions that touch Trump and also to intimidate the president’s alleged enemies. All he is asking in exchange is for the president’s quiet compliance with the program. But Trump continues to tweet about his grudges and imaginary persecutions, now going after a juror in an overt effort to chill juries that do not support him. This is not a good look for Barr, as it undermines his ability to quietly complete the job, and Barr knows it.
Over the weekend, more than 2,000 former DOJ employees signed a public letter urging Barr to resign over his handling of the Stone sentencing, and Donald Ayer, who served as deputy attorney general under President George H.W. Bush, called for Barr’s resignation in the Atlantic. “Bill Barr’s America is not a place that anyone, including Trump voters, should want to go,” Ayer wrote. “It is 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.” Last week, the president of the American Bar Association, Judy Perry Martinez, issued an abrupt statement in support of prosecutorial independence. On Tuesday, the Federal Judges Association, an independent organization of U.S. judges, held an emergency meeting to address the politicization of the Justice Department. Also on Tuesday, Trump tweeted inchoate threats to sue the Mueller team and further commentary about the Stone judge and a juror in the Stone trial, presumably leading to Barr’s Tuesday night signaling that he is considering quitting, possibly to add his name to the long list of concerned Trump enablers who signal independence by way of lucrative publishing deals and memos to the file.
As has happened in the case of every high-profile departure from the mayhem that is Donald Trump as president, there is an argument to be made that Barr’s departure would not solve the root problem. After all, as Joel Mathis notes in the Week, the fish rots from the head, and if Barr resigns, “Trump will either pick a replacement attorney general who is all too happy to do the president’s bidding and continue the degradation of justice at the federal level—or he will accidentally pick a lawyer with integrity, then bully that person into complying with his wishes. Neither scenario is great for the independence and reputation of the Department of Justice.” The solution, to be sure, is for Trump to be voted out of office in November and for DOJ norms and practices around independence to be formally reinstated after he is gone. But in the meantime, the Justice Department or the American legal apparatus should not continue grinding away doing Trump’s bidding, in the hopes that it can be made to look more democratic or legalistic, when the end product remains the systematic terrorizing of the president’s enemies and the offering of succor to his allies.
The question, then, for the American legal system today is simple: Is it time for more dramatic measures? Why is it that only two city bar associations have called for congressional oversight of the attorney general’s actions? (New York City did so last week, and the Boston Bar followed with a demand that his actions be explained.) On Tuesday evening, Walter Dellinger, acting solicitor general in the Clinton administration, suggested on MSNBC, that 2,000 signatures on a letter may not be sufficient pushback from former federal prosecutors; instead, if they really want to stop this pernicious politicization of the department, they should be prepared to be arrested outside the Justice Department.
By far the most chilling moment in the largely incoherent interview Donald Trump offered Geraldo Rivera last week came when, in direct contradiction of his November statement, he insisted that he had sent Rudy Giuliani as his personal lawyer to Ukraine to dig up dirt on the Bidens, because, as he put it, “Here’s my choice: I deal with the [James] Comeys of the world, or I deal with it another way.” Donald Trump has no faith in his own intelligence services unless they are confirming his predetermined conclusions; he has no faith in his Justice Department, unless it is prosecuting his opponents; he has no faith in his own attorney general, unless he is using the sprawling apparatus of the federal criminal justice system to prosecute his enemies. That is how he understands the Constitution, as a mirror for his self-obsessed worldview. Donald Trump doesn’t understand that the DOJ isn’t his personal law firm. As Ayer meticulously explained, Bill Barr scored his job as attorney general in no small part by insisting that this is precisely what the Justice Department should be, and in the post, Barr has done his best to deliver precisely the Justice Department his boss believes to be his due.
This entire weaponization of DOJ investigations, prosecutions, and sentences to punish perceived enemies and to reward loyal factotums is a threat to the rule of law in America. Every judge and every lawyer in the country understands this intuitively. Despite Barr’s insistence, the ominous fault line isn’t between the president’s tweeted threats at the sentencing judge in the Stone trial and his silence. The real fault line is between what has happened, in the aggregate, on Barr’s cheerful watch—the Department of Justice has become another corner of the government that protects not the rule of law but this president, and not just this specific president, but this specific kind of president, the kind who believes himself immune to legal accountability. As Adam Serwer points out in the Atlantic:
But keeping Trump in office is not the ultimate goal, despite party members’ obsequious public performances toward Trump. Rather, the purpose is to preserve the authoritarian structure Trump and Barr are building, so that it can be inherited by the next Republican president. To be more specific, the Trump administration is not fighting a “deep state”; it is seeking to build one that will outlast him.
The only remaining question is what to do about it, and specifically what lawyers, judges, and law students, all of whom know in their bones what is happening, should do about it. If ever there were a time for the American legal profession to put down its yellow pads and stand up for the rule of law, it’s today, en masse, and without waiting for someone, more senior, somewhere, to lead the way. The catastrophe unfolding at the DOJ transcends Barr and his TV spat with Trump. We are watching what happens when the law is warped to please a man who believes himself to actually be the law, and what happens when his enabler agrees with that project, and disagrees only on appearances.
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