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If William Barr Truly Believed in Rule of Law, He Would Resign

6 minute read
Vance is distinguished professor of the practice of law at the University of Alabama, a former U.S. Attorney for the Northern District of Alabama and an NBC News and MSNBC legal analyst.

“Nothing could be more destructive of our system of government, of the rule of law, or Department of Justice as an institution, than any toleration of political interference with the enforcement of the law.” Those were William Barr’s words at both his 1991 and 2019 confirmation hearings, the words of someone who claimed to respect the Justice Department and its mission.

Barr’s commitment at his most recent confirmation hearing, reaffirming that an Attorney General must prevent political influence from corrupting the course of justice in criminal cases, was important to legitimate his candidacy to lead the department, given the concerns that arose after his nomination. But he has proven himself unable or unwilling to live up to that commitment.

Since he joined the Administration just over a year ago, Barr has operated in a manner that has raised serious questions about whether he is working to benefit the President or the people. He misrepresented the conclusions of the Mueller report. On his watch, DOJ tried to protect the President from legitimate constitutional oversight by withholding the Ukraine whistleblower complaint from Congress. DOJ then summarily declined to open an investigation into the Ukraine complaint and defended Trump’s position that executive branch emails related to Ukraine did not have to be turned over to a media organization that sought unredacted versions, using the same privilege arguments Trump asserted to withhold them from Congress. Although the Department has responded to past questions about Barr’s personal involvement by saying he was aware but did not participate in decision-making, we know from his takeover of Roger Stone’s sentencing that he is fully capable of usurping a case when he does not like how it is being handled. He has also assigned a handpicked U.S. Attorney appointed by Trump to review matters the President has shown interest in.

In the sentencing of Trump friend and former campaign advisor Roger Stone, convicted on multiple charges related to obstruction of justice, career prosecutors at the Justice Department recommended a sentence of seven to nine years, the federal guideline range for Stone’s conduct. Trump tweeted in support of Stone and condemned the suggested sentence. Subsequently, DOJ filed a watered-down sentencing recommendation and the prosecutors handling the case resigned from further work on the case, and one of them, from the Department itself. On Thursday, in the wake of this debacle, Barr gave an interview in which he said the President should “stop tweeting” and that Trump’s tweets made it “impossible” to do his job as the head of federal law enforcement. He claimed Trump had never asked him to intervene in a criminal case but was concerned that the tweets damaged the department’s appearance of independence from the White House.

We’ll know whether Barr means it from how, if at all, he reacts to the President’s Friday-morning tweet. Trump responded to Barr’s interview by tweeting: “’The President has never asked me to do anything in a criminal case.’ A.G. Barr This doesn’t mean that I do not have, as President, the legal right to do so, I do, but I have so far chosen not to!”

This tweet will be a permanent stain on the Justice Department if Barr permits it to stand unrefuted. The President has plainly stated that he does not believe DOJ’s criminal work should be free from improper political interference. He believes his powers are so broad that he can direct, control or otherwise influence criminal cases if he chooses to do so. This President believes executive power puts him above the law, that he can use the Justice Department to help his friends and to punish people he has decided are his enemies. But that is not how our constitutional system works. Our system of government requires impartial justice, untainted by politics or the desires of powerful people.

So if Barr in fact disagrees with Trump’s claim that a President can intervene in criminal prosecutions, including and especially those of his own close friends and associates, he must say so. Silence in the face of so egregious a claim signals agreement. Allowing such an assertion to go unchallenged undermines the credibility of the Justice Department and our system of justice itself. If the President refuses to correct his tweet and insists that DOJ must submit its prosecutions to his control whenever he chooses to intervene, the Attorney General’s only response can be to resign. There is no way to avoid further damage to DOJ, the rule of law and the country if Trump’s view stands.

No one knows the best path forward through the havoc Trump has wreaked on our democratic institutions. Impeachment failed. Some have called for another one, but there is no reason to believe a second try would have a different outcome in the Republican-dominated Senate. People are voicing concerns about the integrity of the upcoming election.

This is a dangerous time and we should not pretend that it’s anything else. But it is no time to give up. The republic feels fragile in this moment, yet our country’s legacy of resilience should give us reason for hope and courage to forge ahead. This is the time for each of us to fulfill our greatest responsibility as Americans, what Justice Louis Brandeis called the most important public office in the land, that of private citizen, in whatever way we can. We must insist on congressional oversight, must register and vote in record numbers, must make it clear that voter suppression and election interference cannot be allowed.

In this time of uncertainty and doubt, the Attorney General too must fulfill the duties of his office and the oath he took. He must make good on what he told the Senate when he was confirmed, that political interference in the enforcement of criminal law cannot be tolerated. Those are just words until the moment comes to stand up for them. If Barr truly believes in the rule of law, this is his moment. He can resign to show the country the President is not above the law, but in the more than 48 hours since Trump’s tweet, we’ve heard nothing from Barr. No Attorney General who respects the rule of law and the men and women who serve in the department would sit idly by and acquiesce while a President abuses it.

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