Did Bill Barr Break the Justice Department?
S1: If you ask Donald Eyre about his political affiliation, I think he’d be just as likely to describe himself as a former prosecutor as anything else, a good guy.
S2: D.O.J. Was, you know, you know, maybe the best place I ever worked. So I have a lot of lot of really warm feelings about it.
S1: You were a prosecutor for how many years?
S2: Well, I had multiple jobs in the Justice Department, and altogether it adds up to about 10 years.
S1: Donald Air hasn’t worked at the Department of Justice for decades, but he served under President Bush, the first one, and he still considers himself a DOJ alarm.
S3: So where all of you former prosecutors talking, you have a Facebook group or a text thread?
S2: No, I you know, I know a few I have a few friends who are former prosecutors, but I don’t we don’t have a, you know, like an AA group or something like that that we sit around and meet with regularly.
S4: They may not be sitting around a church basement with stale coffee.
S3: But these prosecutors are keeping in touch, commiserating, especially as they watch Bill Bar set to work in their old offices.
S5: They’ve started releasing these letters of dissent earlier this month.
S3: They flat out called on Bill Bar to resign, saying he’s enabling authoritarianism for someone like Donald Ayre who believes in the system. These are harsh words.
S2: It’s just I think it’s a spontaneous feeling that a lot of different people have by virtue of the experiences they’ve had.
S6: I just wondered, do you. Do you worry at some point that maybe these letters that they aren’t making a difference, they aren’t breaking through?
S2: Well, I don’t know. I mean, I think I think it’s pretty hard to judge that. You know, I think consequences of things people do or unfold over time, and I’m hopeful that will kind of correct course and get back on the course that we were on for quite a number of years in terms of the way justice is administered. But, you know, that’s not a sure bet. I just have to wait and see.
S1: Donald’s got this long view because he feels like he’s been here before. The DOJ he worked in, it was different. In fact, it had been purposefully reassembled in the wake of Watergate to avoid exactly what’s happening right now.
S7: Part of what you’re saying is we’ve corrected course before, right. We’ve done this. Certainly. Definitely so.
S4: So today on the show, we’re going to talk about some very recent history that the Department of Justice seems to have forgotten because we’ve fixed this agency before and Donald Air thinks we could do it again. It’s just not entirely clear how. I’m Mary Harris. You’re listening to what next. Stick with us.
S1: Recently, Donald Eyre wrote an essay for The Atlantic that was called Bill Bar Must Resign. In this essay, Donald says Bill Barr’s approach to justice is akin to running a banana republic. He says Barr’s un-American and understand this sort of language. You have to know that Donald Aird joined the DOJ at a pivotal time for the agency right after Richard Nixon resigned from the White House in the wake of the Watergate scandal.
S2: Yeah. So what occurred after Watergate? Bad things happened in Watergate. And a lot of people know about Richard Nixon resigning and the Watergate break in. And a number of people were prosecuted, a lot of them for lying about things to attorneys general, were convicted of crimes. And the Justice Department became the focus of a loss of faith for a variety of reasons. And Gerald Ford, who took over vice president under Nixon, took over and and saw the need to try to restore trust in government and the Justice Department. And he appointed a man named Edward Leavy, who was at the time the president of the University of Chicago and a distinguished law professor who came in and recognized the need to restore trust and saw it in terms of, you know, this is a government of laws and not men. No person. You know, Richard Nixon or any other president or anyone else. No person is above the law.
S1: It’s kind of hard to get a picture in your mind of this guy, Edward Leavy, but this might help we track down some audio from a panel of years back. A bunch of law professors were discussing what Leavey meant to them. Here’s Harvard Law Professor Vicki Jackson. She was in law school when Leavey was picked to run the Department of Justice in 1975, was appointed.
S8: And I didn’t come from Chicago and I didn’t know Edward Leavy except what I read in the papers about him.
S1: But it was such a relief.
S8: This was a serious person. This was a person with integrity. This was very rare, very respected scholar from the University of Chicago. He believed in law. He believed and I quote unquote, basic decency and concern for each citizen. He believed the world was a complicated place. He believed, as you’ve heard in government by discussion, and he believed in much more transparency than had been the case.
S1: He was reading some of Edward Leaving’s writing.
S5: And it just struck me as so prescient to hear how he thought about the law and the DOJ and how it is supposed to work and how he just approached political work. He talked about how we have this propensity in this country to have these cycles of bitterness, which, of course, rang really true right now. But instead of like leaning into that and talking about, you know, there being right and wrong, he talked about how a lot of times we assume people are making choices so that they can gain power and how that is corrosive and how he went into the DOJ with a different mindset.
S1: Can you talk about that a little bit?
S2: Well, I think I think what he recognized was that the system itself needed to be trustworthy. It needed to be operated in a way that was evenhanded. And, you know, one of one of the innovations that that he, I think, introduced and which has been in place ever since is one that was apparently violated by the events of last week. And that is there is a wall of separation when it comes to issues like criminal charges being filed or sentencing decisions or things like that. Most of the issues related to specific criminal matters are held separate and apart from the political branches of the government. It isn’t that the president, as the head of the executive branch, lacks the power to weigh in if he wants to. It’s that. Why is people in the interval since Leavey was there, have all recognized that that’s a very harmful thing to do, and it’s going to create a lot of a lot of suspicion and it’s especially going to create well-founded suspicion if the interferences on behalf either in favor of or against individuals that the president has had dealings with.
S1: But that’s a norm. Of course, that is a norm. That’s right. And Leavey also established the Office of Professional Responsibility. How did that change the Department of Justice?
S2: I think it was a very important change. And I think that office sat as a kind of a watchdog. It wasn’t just a disciplinary operation. It also was a source of guidance to people in terms of ethical choices and ethical decisions and proprieties by lawyers. But it but it did have a watchdog function. And so the idea that the Department of Justice in the legal area is policing itself and its own conduct to give some assurance that it really cares about the fairness and the propriety of what’s going on. I think it’s been a very important institution really for the last. I guess it’s been 45 years or so.
S1: Can you lay out a case where it’s really made a difference?
S2: The office now the investigations are done in a confidential way and often their outcomes are not made public. Sometimes they are, but often they’re not. It’s done its work very quietly. And I think it’s got a great reputation for respect and decency and care. But hard nosed, hard nosed in its in its demand that the ethics be adhered to.
S1: So it’s interesting hearing you talk because you’re laying out leaves vision, which was so ethical and all of these norms and procedures he put into place. But at the same time, the work was kept quite quiet. And you can see how a system like that, if someone comes in and doesn’t have the same moral leadership. It would be a very different outcome.
S2: Well, it would. But I think that, you know, I think the system itself is well institutionalized and well in place and it lives in the it lives in the hearts and the minds of the employees of the Department of Justice, among other things. And the problem is that at the heart of of Attorney General Leaving’s IDM, when he when he was sworn in, he started here by saying you need a system where no one is above the law and people believe it. People know that no one is above the law. And this system of laws and rules has its own internal discipline that isn’t subject to being undermined and interfered with because we’ve set it up in such a way that it has a lot of internal checks to make sure that doesn’t happen.
S9: The problem here and the reason that I said the somewhat striking thing in the article I wrote that that Bill Barr is un-American is that it is 100 percent clear and I can prove that if you want me to. That Bill Barr believes that the president should be above the law. And that’s the crux of it right there.
S3: Well, let’s let’s talk about this proof, because we can look at what Bill Barr’s done and there are many examples of Bill Barr boosting the executive branch. Whether that means when Robert Mueller’s report came out, he withheld it and he released his own summary, whether that means giving an OK to additional funding for the border wall. There are a bunch of things he’s done to support the president. But you really focus in on this speech he gave in November at the Federalist Society where he laid out his vision. Right. He walks in and what does he say?
S10: He basically uses this speech, which ran a little over an hour to talk about the state of executive power under the Constitution, the constitutional provisions with regard to the power of the chief executive and the executive branch.
S11: One of the more amusing aspects of modern progressive polemic is their breathless attacks on the unitary executive theory.
S2: His thesis is that the founding fathers and he lays out a history of our supposed founding era, which doesn’t bear a lot of resemblance to what the reality was.
S11: By the time of the American Revolution, the Patriots well understood that their prime antagonist was an overweening parliament.
S3: But he literally says, you know, most Americans have a grammar school civics class version of history where we don’t understand that even though, you know, Americans were revolting against a king, really, they were concerned about an overreaching parliament.
S10: Right. There was concern about parliament and there was concern and there was a decision made ultimately after some debate to have a single president. And he extrapolates from those facts to the inference that what they really had in mind was a president who was quite powerful, a president who was intended to have extremely broad and quite sweeping powers. And then he goes on to suggest that that’s actually been the pattern of our government in the interval since. So why is that wrong? Well, I think it’s wrong because historians, I think, will say that for the most part, with a few exceptions, like like Lincoln and TR and Teddy Roosevelt and Wilson and and the early founders, George Washington, of course, most of the presidents throughout that early part of our history were quite weak. And in Congress really was the dominant branch at that time. And it was really more in the 20th century, starting with the New Deal and on into the era of the imperial president later in the 20th century, that presidential power has really become dominant.
S3: And it’s interesting hearing him talk because it’s this kind of defensive approach to executive power where he’s saying, you know, you guys are all attacking the executive. But really, he should have much more strength. And so even though the president is powerful, he’s saying he should be even more powerful and you guys are holding him back.
S10: That’s right. And what what he really says is that in the last several decades and he does make mention of Watergate as part of this. But in the last several decades, there’s been a cutting back on the power of the executive.
S11: I’m concerned that the deck has become stacked against the executive and that since the mid 60s there, this is sort of echoing something that he wrote a little over a year ago, back in June of 2018.
S10: Perhaps, I don’t know, kind of auditioning to become attorney general. In any event, he submitted a memo to Rod Rosenstein, the then deputy attorney general, extremely critical of the Mueller report and really suggesting that some of the grounds that Mueller was looking into were totally inappropriate. And he lays out on a constitutional theory level, a view of the president under the constitution, saying that in the constitution, the president is the executive branch. And he goes on right there in that memo to and to extrapolate and say. So he has total control over the Department of Justice among every other executive branch agency, and thus is totally acting properly to whatever degree he makes decisions about ongoing criminal investigations. And he even went on to say there would be no way that Congress or anyone else could properly limit or prevent the president from making decisions in a an investigation of himself that was going on. There is a specific statement that he’s beyond the law. And then with that as the premise in this speech, he starts out saying things were pretty much along the lines of a very strong executive until the last several decades. And then he spends the latter half of the speech talking about how in the last several decades both the Congress and a variety of ways. And even more seriously, the courts have been cutting into and undermining the president’s authority such that the president is no longer able to work effectively.
S3: Well, it’s interesting that he’s talking about the judiciary at this Federalist Society meeting, because the Federalist Society, of course, has been very involved in getting quite conservative justices appointed to courts all around the country. And so he’s speaking to people who you would think would want to strengthen the judiciary. But Bill bars instead making this argument that, by the way, the judiciary should not constrain the executive.
S2: Right. I think what bar would probably say or what he would hope is that the judges they’re putting in, our judges who are less likely to play a role in any way in in limiting the role of the president. What is so striking about. His views with regard to how limited the role of courts should be is that he actually goes through in that speech and he he itemizes the areas where he wants the courts to keep their noses out of it.
S1: You’ve said that Bill Barr’s un-American. But I listen to this speech and I see someone kind of pushing the American system to the max. Right. Just sort of seeing any kind of loopholes or wiggle room and squeezing right through. And Bill Barr would probably say, well, the Department of Justice is an outgrowth of the executive branch.
S2: So it is the executive branch. It’s part of the executive branch. Absolutely. That’s true. But but the traditions that grew out of Watergate and the institutions that grew out of Watergate, you know, have have taught us that it functions within a broader context. One idea which is clear is that there’s there’s a norm of restraint and not interfering so that the public can have trust.
S1: Well, I guess I guess I wonder listening to you whether traditions are good enough. There is this suggestion in an Op-Ed in The Times this weekend that the Department of Justice should be severed from the executive branch. And of course, you know, under the current administration, this this won’t happen. But I wonder what you thought of that, whether you thought that was a potential solution or a good idea?
S2: Well, it’s a sorry thing if it’s necessary, because we’ve done really well. The real problem here. The real problem here is you’re never going to get to a place where a government in a democracy can work effectively without being overseen by people of goodwill and character who believe in the system. So, I mean, I see the argument. I think it’s it’s a half a loaf sort of proposed solution. And ultimately, the problem is leadership that is not living up to the ideals of the country. It is un-American to want a government where certain people and maybe one in particular don’t have to play by the rules and are above the law. And that is so far from the founding ideals of our country. I mean, really, that’s why we had a revolution was because we didn’t like being ordered around by people who were not not accountable to us.
S1: Yeah, I mean, I agree with you because I found myself thinking about all of the different institutions that we have tried to make a political that have become political anyway, like whether you’re talking about the Federal Elections Commission or whether you’re talking about the CFP. You know, politics will be there. That’s whether you sever it or not. But after reading about Edward Leavy, I couldn’t get that idea of cycles of bitterness out of my head because it feels like we’re in one. And I wondered if we were in for another sort of re up of that cycle.
S2: Well, I don’t know. I mean, I I I’m I’m a little more simple minded maybe than Edward Leavy in understanding all of this. I. My perception is that there are some things that are going on now that are obviously going on and they’re going on in a systematic way. This this is this it’s been a year. It was a year on the 15th of February. I think when Mr. Barr took took his position and the number of things he has done and the distance we have traveled down the road to a Justice Department that is subject to political interference, that is actively intervening in order to prevent the rest of the government from impinging as it traditionally should and has on the president’s powers. He’s gone a very far distance down that road.
S6: Is there one thing and Ed Leavy put into place that could have prevented Barr from doing what he’s doing?
S10: I don’t think so. No, I think I think I think the key thing is the goodwill and integrity of people. And if you are able to put in place a person who essentially wants to dismantle the system and doesn’t believe in the whole lie and the whole set of ideas that that Edward Lavie put in place, then if he’s in charge of that department, he he can render it pretty ineffectual.
S1: And you know, the problem and a huge problem.
S10: An absolute huge problem. I couldn’t agree more.
S6: Would you say that the work of Leavey went unfinished?
S10: I wouldn’t say that, no, I think, you know, only in the sense that that life never hopefully lost life. Life in general never ends. I think he did a very effective job of putting in place an approach and a structure. It’s like it’s like what Benjamin Franklin said, something like, you know, somebody said, what kind of government is this? And he said, it’s a republic if you can keep it. Well, I think Edward Leavy put in place a trustworthy Department of Justice as the capstone of our legal system. If you can keep it. And I think we’re at the place now. We’re going to find out if we can keep it.
S3: So Leavey gave us the vaccine, but we need a booster shot.
S7: That’s maybe one way to think about it.
S12: Donald Eyre, thank you so much for joining me. Thank you. Thanks for having me.
S3: Donald, there was a U.S. attorney and a principal deputy solicitor general in the Reagan administration. He also worked as a federal prosecutor under George H.W. Bush. And that’s the show. What next is produced by Mary Wilson. Jason de Leon Morris Silvers and Danielle Hewitt. We had help today from producer Rosemary Bellson down in D.C. Allison Benedikt is our den mother. Thanks for listening. I’m Mary Harris. I will catch you back here tomorrow.
