June 28, 2021
March 27, 2020
Editorial credit: Rick Beauregard / Shutterstock.com
We are attorneys from across the United States united in calling for the resignation of Attorney General William Barr. We have taken our oaths to support the Constitution of the United States and to faithfully discharge our duties as officers of the courts. We write in support of the 2000+ U.S. Department of Justice alumni and our colleagues of the Boston Bar Association and the New York City Bar Association concerned about the efforts of Attorney General Barr and President Donald Trump to interfere with the prosecutors’ sentencing recommendation for Roger Stone. Barr’s behavior, by rewarding the President’s friend and ally, undermines both the appearance of impartial justice and impartial justice itself, central to our system of government.
We are a liberal democratic nation. We are governed by the “rule of law,” not the “law of the ruler.“ In America, “no person is above the law.” Our courts guarantee every person “equal justice under law,” without fear or favor. Our system of justice is in total contrast to autocracies where rulers may arbitrarily dictate how and to whom the law will be applied, favoring friends and punishing enemies.
Yet, Attorney General Barr avows that the President has absolute and unfettered discretion to make any and all decisions about all law enforcement matters, even in those cases in which the President or his team are under investigation. For example, he’s written: “The Constitution itself places no limit on the President’s authority to act on matters which concern him or his own conduct.” Memorandum from Bill Barr to Deputy Attorney General Rod Rosenstein, et al., “Mueller’s ‘Obstruction’ Theory,” 8 June 2018, [link] Barr’s reasoning seems to be that, since the Constitution’s Article II gives the President the power to execute federal criminal law, therefore it also necessarily gives him the power to base his law enforcement decisions on any motivation, however nefarious.
This is a fundamental logical fallacy. Whether a person has authority to decide a matter is a totally separate question from what grounds are permissible for decision. Just because the President has ultimate constitutional authority and responsibility for overseeing federal law enforcement, in no way means that he is constitutionally authorized to make any law enforcement decision based on nefarious motivations, such as racial discrimination or wanting to protect himself from others disclosing his own wrongdoing.
Barr’s position that the President is constitutionally empowered to base his law enforcement decisions on any motivation, necessarily including protecting himself from potential disclosure of his own wrongdoing, is not only logically fallacious. It is contrary to the fundamental American principles of fair and impartial justice and the age-old principle, deeply embedded in our legal system, that “one cannot be a judge in one’s own case.” Article II, far from authorizing the President to exercise the law enforcement power to serve his own self-interest, specifies that his duty is to “take care that the laws be faithfully executed [.]”
When Stone was convicted of lying to Congress and federal investigators, Department of Justice prosecutors followed agency policy and recommended a stiff sentence within the sentencing guidelines established for crimes such as Stone’s. Trump tweeted that Stone was being unfairly prosecuted and sentenced. Attorney General Barr quickly withdrew the sentencing recommendation made by the prosecutors who tried the case and knew the circumstances of Stone’s conduct. Barr substituted his own, more lenient, sentencing recommendations, more in accord with the President’s.
Since the Watergate scandal, there has been a bright line insulating the Department of Justice from politically motivated decision-making. Barr’s intervention in the Stone prosecution raises red flags that that line has been crossed.
Likewise, Barr’s treatment of the extensive obstruction of justice evidence in the Mueller Report was unjustifiable and extremely harmful.
Barr publicly asserted that the Report did not contain enough evidence to charge the President with obstruction of justice. “What Mueller, Barr Say About Obstruction of Justice,” Factcheck.org (5/29/19) [link]. To the contrary, however, more than 1,000 former U.S. Department of Justice prosecutors categorically rejected Barr’s determination. They unanimously stated that the Report’s evidence of the President’s obstruction of justice “would result in multiple felony charges for obstruction of justice” against anybody other than “a sitting President” (who was immune from prosecution while in office.)
Making the Attorney General’s above abuses of power even more grave, a federal judge has just found that Barr publicly “distorted [certain] findings in the Mueller Report[,]” Electronic Privacy Information Center v. United States Department of Justice, Civ. Action No, 19-957 (RBW) (U.S. D. Ct., D.C, 3/6/20), Slip Op. 16-17 [link], and made “public representations” – purportedly describing the Report – “that conflict with [it.]” Id., 19-20. Barr’s misleading and false statements were not haphazard; they all favored the President. Decades of building institutional knowledge and integrity at the Department of Justice could be eviscerated if Barr remains in office.
Lawyers Defending American Democracy formed more than a year ago with the goal of enlisting our fellow lawyers to speak out for the fundamental principles of American constitutional democracy that we saw under attack by President Trump and his administration. One year later, an enabling Attorney General makes the threat to our American democracy even greater and the need for action greater still.
We believe it is imperative that the nation’s lawyers – including the leaders of the American Bar Association and state and local bar associations – stand up against the efforts by Attorney General Barr to support the President’s creation of an imperial executive, undermining our constitutional system of separation of powers and checks and balances.
That is the path toward tyranny.
If we fail to make our voices heard now, we will have only ourselves to blame. Given the danger to our constitutional democracy posed by Attorney General Barr’s radical legal views and harmful behavior, we ask him to resign his office now.
PRESS RELEASE: "Distinguished Attorneys, including former Judges, State and Federal Officials, Publish Open Letter Calling for Attorney General Barr’s Resignation"