Jurisprudence

The Supreme Court May Be Tired of Bill Barr

The attorney general seems unstoppable in all but one important venue.

Bill Barr sits at a table, hand to his head.
Saul Loeb/Getty Images

How much further can Bill Barr push it? Having repurposed the august Department of Justice to serve as Donald Trump’s personal sanitation staff and all-out vengeance machine, the attorney general has fallen so low that his single overriding purpose now seems to be to protect the president’s friends and persecute his enemies. He has yet to face any consequences for his actions, though they are more appalling by the day. Rep. Jerry Nadler on Sunday dismissed impeachment of Barr as “a waste of time.” But there are at least tentative signs that the disgrace that Barr has brought upon himself and his Justice Department is starting to wear on the one institution that can hold him to account: the U.S. Supreme Court, or more precisely, on Chief Justice John Roberts, whose fifth vote is essential to most of Barr’s dreams.

Barr’s quick descent from “Washington insider” to authoritarian bag man has been ably chronicled by my colleague Jeremy Stahl. It began when he lied extravagantly about the contents of the Mueller report, over Robert Mueller’s own objections, and had seemingly bottomed out with his interference in both the Roger Stone sentencing this winter and the abrupt dropping of the case against Michael Flynn. In both instances, career lawyers at the Justice Department walked off the job, and both actions aroused massive internal dissension that took the form of a letter by hundreds of former DOJ attorneys seeking his resignation. Barr’s involvement to “assume battlefield control” in the decision to gas and attack peaceful protesters outside the White House earlier this month so that President Donald Trump could walk to a church for a photo-op resulted in another open letter from former DOJ officials, this time seeking to have the department’s Inspector General investigate him. But for most Americans, the erosion of norms at DOJ is like horticulture studies on distant planets. It’s abstract and esoteric and fails to command attention within the news hurricane.

But Barr is consolidating his prosecutorial power and it’s profoundly dangerous. Barr’s removal of Jessie Liu, the former U.S. attorney for the District of Columbia, this winter allowed Barr and his loyalists to seize control of the D.C. U.S. attorney’s office that is still cleaning up the indictments and charges against Trump’s associates launched by the Mueller probe. That was followed this past weekend with the sudden removal of Geoffrey Berman, the U.S. attorney for the Southern District of New York. The removal itself was achieved by a lie from Barr, who announced Friday night that Berman had resigned, when he had not, and was followed by a second lie on Saturday, after Berman refused to step down, when Barr sent Berman a letter telling him that he’d asked Trump to fire him. Trump later said that he was “not involved” in the Berman firing.

Berman is a registered Republican who donated to the Trump campaign. But Trump has been affronted by the SDNY’s prosecution of his former lawyer Michael Cohen and Trump’s inaugural committee, by the decision to bring indictments against two close associates of Rudy Giuliani, and by an alleged ongoing investigation into Giuliani himself for his work trying to dig up dirt on Hunter Biden in Ukraine. Barr announced Friday night that Jay Clayton, the chairman of the Securities and Exchange Commission, would be nominated to replace Berman, although Clayton has never been a litigator or a prosecutor and has no connection to SDNY. Berman ultimately stepped aside on Saturday night after Barr agreed to “respect the normal operation of law and have Deputy U.S. Attorney Audrey Strauss become Acting U.S. Attorney,” instead of Barr’s handpicked temporary replacement, Craig Carpenito, the U.S. attorney for New Jersey, who would have taken over until Clayton won Senate confirmation.

Barr’s falsehoods over the Berman firing were highlighted over the weekend as excerpts from former national security adviser John Bolton’s book were released. Bolton recounts an exchange between Trump and Turkish President Recep Tayyip Erdogan about the Southern District in 2018, in which Erdogan insisted that a Turkish bank under investigation by SDNY was innocent, to which Trump replied that “he would take care of things, explaining that the Southern District prosecutors were not his people, but were Obama people, a problem that would be fixed when they were replaced by his people.” The Wall Street Journal further reported this weekend that Berman had recently refused to sign a letter from the Justice Department that had criticized New York Mayor Bill de Blasio for the city’s enforcement of social distancing rules to block religious gatherings but not for recent street protests over racialized policing.

In other words, it’s certainly possible, although the DOJ spokesman denies it, that yet again Barr has gotten crossways with his own department over religious liberty. But while this particular Friday Night Massacre appears to have backfired, that doesn’t get us any closer to a Barr resignation or a Barr impeachment. And as Barr himself has made plain, anything short of his departure as the nation’s top lawyer means he wins, day after gruesome day.

Still, the disgust Bill Barr has amassed is widespread and bipartisan. Lindsey Graham expressed dismay at the way the Berman firing was handled. This Tuesday, over 80 percent of the George Washington University law faculty signed a letter condemning Barr, a GWU alum and member of the law school’s Board of Advisors, for a long series of lawless actions, from distorting the Mueller findings to the clearing of Lafayette Square. “Since 2019 Attorney General Barr has made the Department of Justice unrecognizable to those of us who prize its independence from politics and its commitment to the highest standards of the legal profession,” these signatories note in the letter. “We cannot remain silent in the wake of the damage he has done to the integrity of the Department, the rule of law, and the constitutional order.” This letter, on top of the previous letters from DOJ alums, reveals the extent to which the famously reserved legal profession has recoiled in horror at Barr’s complete contempt for the legal and institutional values that the department traditionally privileged above partisanship.

The Supreme Court may also be paying attention to the legal profession’s rejection of the attorney general. After all, the signatories to the letters are educators and lawyers with handprints all over the federal court system. The Berman firing and ensuing GWU letter come just as Barr’s DOJ is reeling from one of its worst weeks at the U.S. Supreme Court. Landmark defeats in both the Title VII and DACA rescission cases were not merely body blows for Donald Trump, and on his signature issues of religious freedom to discriminate and immigration enforcement, but also blows for the Justice Department, even if they originated under former Attorney General Jeff Sessions. The DOJ has been relentless in seeking that the Supreme Court clean up its spills, running cases directly to John Roberts’ door. The court has gone along with these demands in many cases, frequently lifting lower court stays to allow Trump administration policies to go into effect even as they are challenged in court. But the charms of doing Trump’s bidding—particularly in cases with sloppy lawyering and quitting DOJ attorneys—may be wearing thin. Last week’s losses, plus the refusal of the court to take up the Justice Department’s attack on California’s sanctuary city laws, may signal that Barr, as much as Trump himself, has worn out his welcome at the Supreme Court.

In short, one has to begin to wonder whether Barr, a textbook zealot who cares not at all for preserving the appearance of propriety or independence, may have finally met his match in Chief Justice John Roberts, who prizes those things even above partisan outcomes. As Preet Bharara pointed out this past weekend, the slow decay of the integrity of the DOJ is not something that can be checked by laws, statutes, or rules. The Justice Department and its prized independence are the result of decadeslong norms and a post-Watergate battle for public trust. Bill Barr doesn’t give a damn about norms or public trust, but John Roberts cares about them a great deal, and he may prove to be the one man that could make a difference in their restoration.

The endless end of term will reveal the extent of Roberts’ disdain for a DOJ that wants the court to do the unpopular work of allowing LGBTQ discrimination, gutting DACA, and punishing sanctuary cities, all as DOJ lawyers turn in shoddy work and indefensible analysis. Roberts was already bored of such conduct in last year’s census cases. It remains to be seen whether he will sign off on the extreme work product behind the president’s financial records claims.

For those who were sorely disappointed by Roberts’ refusal to use the Senate impeachment trial to slap back at Trump and Trumpism, that ask was, at least in my view, always too public and too dramatic of a man who doesn’t want to be in the limelight any more than necessary. John Roberts was never one to go mano a mano against the president. But just as Barr seems to be happy to dismantle the rule of law brick by brick, in the dark of night, over years, the chief justice may be prepared to thwart him, case by case, brick by brick, in narrow opinions that draw little attention in the moment but land a body blow in the aggregate. Right now, Barr appears to be unstoppable simply because he is determined to use the power and prestige of the Justice Department to fight Trump’s most trivial and demeaning personal battles. But as lawyers inside the DOJ and throughout the country give voice to their concerns, they may have an ally on the inside who hates the corrosion of justice and law as much as they do. It’s easy to characterize Barr as unstoppable simply because no amount of public outrage seems to stop him. But at some point, Barr will possibly go too far for John Roberts, and that may be the beginning of the end—and it may have already begun.

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