Statement of Donald B. Ayer
Former Deputy Attorney General under George H.W. Bush
Adjunct Professor of Law
Georgetown University Law School
Before the House Committee on the Judiciary
June 24, 2020
Good morning. Thank you very much for inviting me to appear before you today to
address the current administration of the Department of Justice and its effect on the rule of law
in this country. As I will explain, I believe that Attorney General Barr is a major threat to our
legal system and to public trust in it. That is because he does not believe in its central tenet –
that no person is above the law. For the past sixteen months, he has been working hard to free
the president from accountability under a broad range of checks and balances that have played
a critical role in our system for many decades. He has also grossly misused his powers as
Attorney General to advance the president’s personal and political interests, and to protect his
friends. Based on events that have occurred over the last several months, I think that even
more disturbing actions may lie ahead.
I am here today in part because I happened to be in law school while the Watergate
scandal was unfolding. In the summer of 1973, while in Washington for the summer working
at a law firm, I spent many hours in a steamy apartment watching the hearings on Capitol Hill. I
had been an active supporter of Richard Nixon, and was appalled to learn of the ways that his
administration had violated the public trust. Today Watergate is mostly remembered – by
those who think about it at all – as a bungled burglary of democratic national headquarters by a
group of bumblers, followed by elaborate efforts to cover it up. The lesson that people now
mostly draw from it is that when bad things are done, there may be more peril in efforts to
cover up the consequences than in facing up to the acts themselves. But much more than a
bungled burglary and a failed cover-up were at issue.
While Richard Nixon did not invent the practice of misusing the powers of the Executive
Branch to advance his own political fortunes, he did it on a broad scale and provided us with
ample evidence and even a sound track demonstrating how the levers of power could be pulled
to punish one’s enemies and advance one’s own political cause. Today we remember the
clandestine group of “plumbers” who operated out of the White House Executive Office
1

 Building, with the aid of a slush fund misdirected from campaign donations, and under the aegis
of the president’s closest aides – including a former Attorney General.
But the official channels of government, including the FBI, the CIA, and the IRS, were
also brought to bear to conduct bogus investigations of political opponents and people viewed
with suspicion. These agencies of the United States engaged for political reasons in covert and
unlawful spying, illegal wire-tapping, and improper use of tax information and the tax audit
process. And the Department of Justice itself was severely compromised by political pressure
from the White House, including but not limited to the Saturday night massacre that resulted in
the firing of Independent Counsel Archibald Cox. In all, the Watergate investigation resulted in
convictions of 48 people, including two former Attorney Generals. And it led to a great loss of
public trust in a government and legal system that most people had assumed was doing the
public’s business in an upright manner.
The Watergate Reforms
Nixon’s successor, Gerald Ford, chose as his Attorney General Edward Levi, a
distinguished legal scholar and professor who was then president of the University of Chicago.
As Attorney General Levi’s special assistant at the time, Jack Fuller, has said, “Levi took
restoring faith in the legitimacy of government and adherence to the rule of law as his very
highest priority.”1 Doing so demanded, again in Levi’s words, that ours be “a government of
laws and not men,”2 and that people believe in their guts that no person is above the law.
Given the extensive abuses that had been perpetrated, a great deal of attention was focused on
the creation of mechanisms by which corrupt uses of executive power could be prevented
while leaving the institutions in a position to function for the common good. This was a difficult
challenge, and demanded both complex institutional reforms, and a new spirit, committed to
doing everything necessary to restore public trust. That would only be possible, Levi stated,
through the efforts of “dedicated men and women [working] to accomplish this through their
zeal and determination, and also their concern for fairness and impartiality.” 3

1

https://today.law.harvard.edu/restoring-justice-the-legacy-of-edward-levi/ (comments of Jack Fuller).
https://www.amacad.org/news/restoring-justice-legacy-edward-h-levi (comments of Mark Wolf).
3
https://www.amacad.org/news/restoring-justice-legacy-edward-h-levi (comments of Jack Fuller).
2

2

 Numerous government-wide reforms emerged during Attorney General Levi’s two year
term of service and in the years that followed. These initiatives used a combination of
prohibitions, procedures, and requirements of transparency to prevent people in and out of
power from making government a tool of private or political advantage. Among them were
statutes imposing campaign finance limitations, an ethics-in-government act, an act creating
Inspectors General in major Federal agencies to act as watch-dogs within the executive branch
who also report to Congress, a special counsel statute, amendments to expand citizen rights
under the Freedom of Information Act, the Foreign Intelligence Surveillance Act, a statute
providing for congressional oversight of intelligence activities, a Foreign Corrupt Practices Act
outlawing bribes to foreign governments, and during the 1980s, the Whistleblower Protection
Act.
For the Justice Department itself, Levi’s leadership was transformative. He created
guidelines to limit the FBI’s use of intrusive investigative tactics. He also created new
institutions, including a Department’s Office of Professional Responsibility focused on the
proper ethical conduct of those within Department itself, and a Public Integrity Section within
the Department’s Criminal Division, whose entire job was to police criminal conduct by
government officials at all levels. But most of all, he inspired the men and women of the
Department of Justice, at that time and for decades to come, to a new ideal of service.
Levi recognized that given the Department’s extraordinary powers to affect lives, and
often to do so long before any case goes to court, its actions should be viewed as having a
“judicial nature,”4 and extraordinary efforts were necessary to protect against errant judgments
and the injection of improper personal or political influences. His concept of “government by
discussion” saw the making of important decisions as a collective endeavor in which the best
thinking of multiple people is brought to bear, and decisions at one level must stand up to the
scrutiny of both colleagues and higher-ups.5 He also recognized that the handling of sensitive
matters such as criminal prosecutions must be scrupulously insulated from political or personal
influence. Presidents since then, up until the current one, have respected the need for this
separation, which consistently has been implemented through written policies guiding and
4
5

https://www.amacad.org/news/restoring-justice-legacy-edward-h-levi (comments of Virginia Seitz).
Restoring Justice: The Speeches of Attorney General Edward H. Levi (Jack Fuller, Ed. 2013) Ch. 3

3

 limiting the nature of any contacts that take place between the White House and the
Department.6
Ultimately, Levi recognized that the trustworthiness and integrity of the Department of
Justice depended on the hearts and minds of the people who work there. Pursuing truth and
fairness and equal justice under law is no easy thing, but the first steps are believing it is an
essential goal and inspiring dedication to the hard work of achieving it. The pursuit of Edward
Levi’s goal of a legal system in which these are the goals and everyone knows that no person is
above the law, has inspired the lives of thousands of Department of Justice lawyers during the
intervening decades. It also restored public trust in our system of justice.
This Watergate settlement – by which I mean the way we settled the national angst that
resulted from the scandals of Watergate – has dominated our legal system for my entire
professional life. For me it was an inspiration and a career-shaping force. It inspired me to
become a prosecutor – and not just any prosecutor but an Assistant United States Attorney in
the Department of Justice. I chose that goal because, as I have said to many people at the time
and since, I could go to work every day and just strive to do what is right. For most of the next
dozen plus years, during the administrations of Jimmy Carter, Ronald Reagan, and George H.W.
Bush, I was privileged to hold a series of very satisfying jobs in the Department, and while
things got more complicated the higher I rose, my basic goal always remained the same. In the
end, my decision to leave my position as deputy attorney general was as easy as had been my
decision to go to the Department in the first place. In May of 1990, I was directed by the
Attorney General to take an action that I believed was wrong, and, in the face of that, I decided
to resign rather than to comply.7
Barr’s Beliefs Concerning Executive Power
Clearly, Bill Barr experienced Watergate and its resolution differently than I did. By
sometime in the 1980s, if not well before, he had formulated a concept of the presidency that
would have cheered Nixon in his heyday. Discounting Levi’s Watergate lesson that public trust
depends on having a system of “laws and not men” in which no person is above the law, it is

6
7

https://www.lawfareblog.com/importance-limiting-white-house-doj-contacts-its-not-just-about-obstruction
https://www.latimes.com/archives/la-xpm-1990-05-20-mn-162-story.html

4

 apparent from his advocacy and action when in government that Barr has long believed that
the president’s power should be virtually unchecked.
One aspect of those beliefs is his extreme reading of the unitary executive theory – the
undisputed idea that the president is the head of a single executive branch and thus
constitutionally entitled to wield substantial control over all activities of that branch. The
critical question is how much control is enough, and the Supreme Court in a string of cases has
made clear that presidential control may be limited in some ways when other legitimate goals
demand it. For example, in Morrison v. Olson, a case that Bill Barr has expressly attacked, the
Reagan Supreme Court ruled by a vote of 7-1 that the ability to remove an independent counsel
for “good cause shown” is enough presidential control to satisfy the constitutional mandate.
For Barr, any compromise of the president’s total control in order to achieve the measure of
independence necessary if the special counsel was to be more than a puppet, has always been
anathema.
For many years, Barr has also argued much more broadly against the very idea that the
president’s prerogative to exercise unchecked discretion can be restricted in any way –
including by the concept that some powers are “shared” by multiple branches, or through the
mechanisms of congressional oversight and judicial review. As head of the Office of Legal
Counsel in 1989 and 1990, Barr wrote opinions advancing his views on many of these topics,
including one well-known memo, in which he sought to rally the heads of the Executive Branch
departments to resist what he viewed as myriad incursions by congress upon their freedom to
act.8 Happily, though, President George H.W. Bush had no aspirations to autocracy, and Barr’s
intellectual gambits did not at that time result in the radical expansions of presidential power
that were his goal. Less happily, that fact allowed Bill Barr to emerge from his fourteen months
as Attorney General with a totally unjustified reputation as an institutionalist who could be
counted on to restrain another president’s more extreme impulses.
So today we find ourselves in a difficult spot, completely unique in our history. We have
a president who openly aspires – indeed expressly claims that his “Article II” gives him the right

8

https://www.justice.gov/file/24286/download

5

 – to “do anything he wants to.”9 And we have an Attorney General who has told him he is so
entitled under the Constitution, and is working overtime to make real Nixon’s misconception
that “when the president does it, that means it is not illegal.”
Don’t take my word for this. Just listen to what Barr has said and look at what he has
been doing. First, he is emphatic that it is simply not possible for legal rules adopted by either
congress or internally within the executive branch to restrain in any way the power of the
president to make any and all Executive Branch decisions. As Barr said in the unsolicited 19page memorandum that he submitted in June 2018 10 addressing the impropriety of the Mueller
investigation then under way, the president “alone is the Executive Branch” (all italics are his),
and “the Constitution vests” in him personally all powers that belong to that branch. Barr made
explicit that this necessarily includes “all Federal law enforcement power, and hence
prosecutorial discretion.” Accordingly, there is no constitutional way that the law can foreclose
the president even from “[exercising] supervisory authority over cases in which his own
conduct might be at issue.”
How Attorney General Barr Has Worked To Create An Authoritarian President
It is thus no surprise that Barr’s current service as Attorney General has been filled with
flagrant personal interventions carefully crafted to neuter the Watergate reforms and
attendant institutions that have made the Department of Justice a trustworthy steward of a
rule of law which no one, not even the president, can subvert.
Undermining the work of independent factfinders
Within a few weeks of taking office, Barr began leveling repeated accusations that the
FBI investigation of Russian interference in our 2016 election involved improper “spying” on the
Trump campaign, which he has said he regards as a “big deal.”11 From that initial attack on the
work of his own agency, he entered upon a pattern of conduct involving outright contradiction
and active subversion of independent fact finders who had been given the job of exploring and
examining the evidence relating to those issues. Last March, Barr’s written and verbal

9

https://www.c-span.org/video/?c4809509/user-clip-trump-constitution-i-president
https://int.nyt.com/data/documenthelper/549-june-2018-barr-memo-to-dojmue/b4c05e39318dd2d136b3/optimized/full.pdf
11
https://www.cnn.com/2019/04/10/politics/barr-doj-investiation-fbi-russia/index.html
10

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 whitewashing of the report by Special Counsel Mueller, and especially its findings relating to
obstruction of justice, was the first really rude shock that showed us where Barr was coming
from.12 But he quickly confirmed our worst fears, when in May, rather than rely on the longunderway DOJ Inspector General inquiry about the FBI investigation into Russian interference
and possible Trump campaign involvement, Barr initiated a substantially redundant
investigation of his own.13 When Barr’s separate investigation was later denominated as
criminal,14 and Barr was seen to be flying overseas apparently to question witnesses personally,
his complete distrust of truly independent factual inquiries by unbiased professional
investigators became even clearer. Then, in December, when Inspector General Horowitz
announced his findings,15 including stating that there was ample factual basis for the initiation
of the FBI investigation and that no evidence was found of bias in the FBI’s oversight function,
Barr and U.S. Attorney John Durham, who he had enlisted to run his investigation, each publicly
announced their disagreement with that finding.16
Ignoring the Appropriation Clause
Beyond these direct personal intrusions by Barr to denigrate and subvert the legitimacy
of independent fact finding processes of his own department, from the very start of his service,
Barr has actively used the resources of the Department of Justice, and his own rhetorical
megaphone, to negate the traditional checks and balances that have long constrained the
president. Take for example the constitutional power of the legislature to appropriate (or
withhold) funds for particular purposes. On February 15, 2019, the day after Barr was
confirmed, the President issued an emergency declaration to justify the diversion of funds from
other purposes to build the border wall.17 Congress had repeatedly refused to appropriate
money for that purpose, and the President had personally confirmed that he “didn’t need to do

12

https://www.nytimes.com/interactive/2019/03/24/us/politics/barr-letter-mueller-report.html;
https://www.washingtonpost.com/politics/2019/04/19/what-attorney-general-barr-said-vs-what-mueller-reportsaid/
13
https://www.nytimes.com/2019/05/13/us/politics/russia-investigation-justice-department-review.html
14
https://www.nytimes.com/2019/10/24/us/politics/john-durham-criminal-investigation.html
15
https://www.nytimes.com/2019/05/13/us/politics/russia-investigation-justice-department-review.html
16
https://www.nytimes.com/2019/12/09/us/politics/barr-durham-ig-report-russia-investigation.html
17
https://en.wikipedia.org/wiki/National_Emergency_Concerning_the_Southern_Border_of_the_United_States

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 this, . . . [but] just wanted to get it done faster, that’s all.”18 But never mind. Barr’s DOJ has
actively litigated the president’s right to divert the funds and thus frustrate this explicit
constitutional check on his power.
Stonewalling congressional oversight and state criminal subpoenas
More generally, Trump’s total stone-walling of congress’s traditional oversight power,
normally exercised through subpoenaing documents and calling witnesses, has only been
possible with the complicity of the Department of Justice, in the form of multiple Office of Legal
Counsel opinions, and vigorous litigation in the courts. Barr’s prior opinions as the head of the
Office of Legal Counsel have played a prominent role in providing “authority” for new opinions
issued by Barr’s OLC to support many of his current initiatives.19
These outrageous assertions include the idea that executive branch officials need not
raise a specific claim of executive privilege with regard to particular information, but rather can
simply assert a sweeping prophylactic absolute immunity which excuses their need even to
appear or raise any specific objection.20 The department has also stone-walled, so far
successfully, the House Ways and Means Committee’s request to the Treasury Department to
turn over the President’s tax returns, despite a statute that requires the Treasury to do so. 21
And in a case now pending before the Supreme Court, this claim of immunity from any
obligation of transparency is asserted to include a sweeping absolute immunity from process
issued by State grand juries to investigate crimes under their laws, for records in the hands of a
third party reflecting the President’s personal affairs.22 Thus, as the department’s lawyer
memorably argued in court, such State investigative efforts should be flatly barred even if the
President shot someone in the middle of Fifth Avenue.23
Undermining the inspectors general
In recent months, a severe conflict has developed between the administration’s
autocratic aspirations, and many elements of the Inspector General community whose basic job
18

https://www.nytimes.com/2019/02/15/us/politics/national-emergency-trump.html
See https://prospect.org/power/40-year-war-bill-barr-oversight/
20
https://assets.documentcloud.org/documents/6018928/OLC-McGahn-Opinion.pdf
21
https://www.lawfareblog.com/olc-opinion-treasurys-refusal-provide-trump-tax-returns
22
https://www.scotusblog.com/case-files/cases/trump-v-vance/
23
https://www.usatoday.com/story/news/politics/2019/10/23/president-donald-trump-could-shoot-someonewithout-prosecution/4073405002/
19

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 is to review for propriety the conduct of affairs within agencies of the Executive Branch. During
April and May, a total of five IG’s were fired.24 As the chief legal officer of the government, Barr
is very likely to have at least been consulted in connection with all of these. But our lack of
information about what goes on behind closed doors makes it impossible to say for sure what
precise role he played in most of them. We do know that in September 2019, OLC issued an
opinion directing the Inspector General for the Intelligence Community that the whistleblower
complaint relating to the June 2019 phone call with the president of Ukraine was not a matter
of urgent concern that was required by statute to be referred to the House Intelligence
Committee.25 That implausible conclusion was met by a letter of stern rebuke from the entire
Federal inspector general community.26 We also know that when Trump fired that same IG in
April of this year, apparently just for doing his job, Barr spoke up publicly to endorse the action
as justified.27
Curtailing judicial review of the executive branch
The Department has also asserted the position – which Barr made a centerpiece of the
November 2019 speech that he gave to the Federalist Society28 – that courts have no
jurisdiction to consider suits by congress to compel compliance with oversight subpoenas. Barr
in that speech actually went beyond this extreme position to argue that the courts should have
no role at all in constitutional disputes between the other two branches. Further, according to
him, courts should never sit in review of executive action based on the exercise of “prudential
judgment,” in areas of law that “cannot be reduced to tidy evidentiary standards and specific
quantums of proof,” or that would involve any inquiry into the “motivation behind government
action.” Such radically constrained judicial review would leave the President free, as he asserts
he is, to do pretty much anything he wants to.
Barr’s many abuses of authority, perhaps coupled with his explicit assertions that court’s
have no business inquiring about them, have even caused some Judge’s to speak out. As U.S.
24

https://en.wikipedia.org/wiki/2020_dismissal_of_inspectors_general
https://www.justice.gov/olc/opinion/urgent-concern-determination-inspector-general-intelligence-community
26
https://www.documentcloud.org/documents/6523365-CIGIE-Letter-to-OLC-Whistleblower-Disclosure.html
27
https://www.nytimes.com/2020/04/10/us/politics/barr-inspector-general-firing.html
28
https://www.youtube.com/watch?reload=9&v=MeMwdtbPR6g;
https://www.americanrhetoric.com/speeches/williambarrfederalistsociety.htm
25

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 District Judge Reggie Walton noted in March of this year, reflecting on the incongruities
between Barr’s comments on the Mueller report, and the report itself as it finally was released
some weeks later, Barr’s conduct had “cause[d] the Court to seriously question whether
Attorney General Barr made a calculated attempt to influence public discourse” in favor of
President Trump contrary to the actual content of the report.
Using political cronies to review or decide issues of special interest to the President
Perhaps not coincidentally, Judge Walton’s comments came as Barr this Spring has
taken a number of steps to dismantle and defy the principles of the Watergate reforms that
Levi put in place. First, he has now settled into a well-developed, scalable process for
systematically subverting the independent decision making processes of the Department, which
were central to Levi’s reforms to secure evenhanded treatment of cases. He does it by using a
cadre of ambitious conservative lawyers to second-guess or completely take over decision
making from experienced career attorneys. By playing ball with Barr, these aspiring lawyers can
look forward to the rewards of career advancement, including greater responsibilities, higher
positions, and ultimately in more than a few cases the reward of a life-tenured federal
judgeship. While there is no way to know the full extent of this abuse, it clearly has been
instrumental in the Roger Stone and Michael Flynn cases. It is also admittedly being used to
receive information from Rudy Giuliani relating to the Ukraine situation, 29 to evaluate possible
investigations of presidential candidates or campaigns,30 and to inquire into “unmasking”
requests during the latter part of the Obama administration.31
Reversing the government’s position in the Stone and Flynn cases
To achieve the 180-degree reversal of the government’s position in the cases of Trump
loyalists, Roger Stone and Michael Flynn, Barr had to go to the extreme length of engineering
the removal and replacement of Trump appointee District of Columbia United States Attorney
Jesse Liu, who had been vigorously pursuing those cases, and who also ended the investigation
of Andrew McCabe in January of this year based on insufficient evidence. The machiavellian
29

https://www.washingtonpost.com/national-security/barr-acknowledges-justice-dept-has-created-intakeprocess-to-vet-giulianis-information-on-bidens/2020/02/10/0fba553a-4c1e-11ea-bf44-f5043eb3918a_story.html
30
https://www.nytimes.com/2020/02/05/us/politics/barr-2020-investigations.html
31
https://www.wsj.com/articles/barr-names-prosecutor-to-investigate-unmasking-11590674190;
https://www.cnn.com/2020/05/27/politics/william-barr-unmasking-investigation/index.html

10

 path of her removal involved the President first nominating her to a Treasury Undersecretary
position in December, having her move, apparently voluntarily, to Treasury to await
confirmation, and then withdrawing the Treasury nomination in February. Meanwhle, her
departure as U.S. Attorney had cleared the way for Barr to make an interim appointment of Tim
Shea, who Fox News described as “Barr’s right-hand man.”32
In the instance of the Roger Stone sentencing, the government undertook to reverse the
position it had reached through a routine, unbiased and thoroughly-reviewed sentencing
recommendation process. While this botched effort gave rise to such overwhelming uproar
that the government was obliged to actually withdraw its reduced sentencing
recommendation,33 Barr was not deterred – in the face of presidential tweeting – from again
reversing course in the Flynn case. This time, following review of the case by Missouri U.S.
Attorney Jeffrey Jensen, the government filed a motion to dismiss the case, on which Shea’s
name and signature appears as the only government attorney. After two guilty pleas, and
many months during which Liu’s U.S. Attorney’s Office argued vigorously that Flynn is guilty of a
crime with serious implications for the national interest, the government now advances the
position that the prosecution is unfair and also not one that it would be able to prove in court.
Meanwhile, as that litigation proceeds, Shea has left the scene, having been promoted to the
position of head of the Drug Enforcement Administration.34
How Barr Is Using The Department of Justice As A Tool Of The President’s Election Campaign
Even more alarming than this institutionalization of a process to achieve political
outcomes in sensitive cases, is the fact that Barr has now clearly signed on as an active
participant in the Trump campaign. I mean that in the usual sense – that he is serving as a
spokesman and advocate for campaign positions being advanced by the President. It is
troubling in general that the nation’s chief law enforcement officer would attempt to double as
a campaign spokesman. But here it is far more pernicious, since Barr is also using the
Departments litigation and other tools to advance the President’s narrow political interests.
32

https://www.foxnews.com/politics/william-barr-timothy-shea-top-prosecutor-dc
https://talkingpointsmemo.com/muckraker/read-doj-files-new-watered-down-sentencing-memo-for-rogerstone
34
https://www.providencejournal.com/news/20200520/timothy-shea-fall-river-native-named-to-head-drugenforcement-administration
33

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 Trying to add a citizenship question to the census
One of the first and still the among the most egregious instances of such abuse involved
DOJ handling of the lawsuit about the proposed citizenship question to be added to the 2020
census. Plaintiffs had complained that doing so would discourage responses and result in an
undercount and underrepresentation in apportionment of areas where many Hispanics live. 35
The government denied any such political purpose, and claimed that it was acting in order to
comply with Voting Rights Act. Chief Justice Roberts June 2019 opinion for the Court ruled for
the plaintiffs, saying that the “evidence showed that [Secretary Wilbur Ross] was determined to
reinstate a citizenship question from the time he entered office,” and that the supposed Voting
Rights Act rationale was a “contrived” “pretext.”36
Undeterred that the only justification ever offered by the government had been found
by the Supreme Court to be an invalid, made-up reason, Barr stated publicly a few weeks later
that he still saw a way that the question could be added, and proceeded to replace the original
litigation team.37 He also continued to stonewall the House’s demands for documents showing
what in fact occurred, and on July 17, the House held Barr and Ross in contempt.38 Evidence
continued to accumulate for the rest of the year, and ultimately made it quite clear that
Department lawyers had been complicit in helping Commerce concoct the phony rationale in
response to Commerce’s explicit request to come up with a legal justification. The stench of
these events appears to have resulted in abandonment of the effort to include the question.
Interfering with state decisions concerning reopening the country
Recently Barr has made repeated statements in support of Trump’s urgent priority to
get the economy reopened. Conduct limitations to protect the public safety in a health crisis
are uniquely within the province of state and municipal government, and the choices here are
highly local and tragically difficult. But that has not stopped Barr from using his powers as
Attorney General to actively meddle. Back in April, when virtually the entire country was under

35

https://slate.com/news-and-politics/2019/11/hofeller-document-census-citizenship-question-supreme-courtconsequences.html
36
https://www.supremecourt.gov/opinions/18pdf/18-966_bq7c.pdf
37
https://www.cbsnews.com/news/barr-census-citizenship-question-sees-legal-way-to-add-it/
38
https://www.nytimes.com/2019/07/17/us/politics/barr-ross-contempt-vote.html

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 orders to shelter in place, Barr went on Hugh Hewitt’s radio show39 to say that "the idea that
you have to stay in your house is disturbingly close to house arrest. . . . We're looking carefully
at a number of these rules that are being put into place.” He said that if they saw rules in place
which “we think . . . go too far,” DOJ would “jawbone the governors” or side in court with any
plaintiffs complaining that these emergency measures violate their constitutional rights. The
Department actually intervened in some cases where churches brought claims challenging the
limitations.40 It is unclear whether they are still considering such actions, following a ruling by
the Supreme Court rejecting one such challenge at the end of May.41
Disputing the utility of mail-in voting
Another sensitive area where Barr has seen fit to weigh in publicly concerns voting by
mail, which could be an important way that more Americans can be afforded a realistic
opportunity to vote, especially in these Coronavirus times when standing in line at the polls can
present a very real risk of exposure. While voting by mail is already used to some degree in
virtually every state, and is the way everyone votes in five states, Barr nonetheless has seen fit
recently to express his own unsupported view that voting by mail is susceptible to fraud and
manipulation by foreign governments. In doing so, he echoed a recent unsubstantiated tweets
issued by the President.42
Clearing peaceful protestors from Lafayette Park
Probably the abuse of Barr’s powers in support of Trump’s campaign efforts that has
most shocked the public conscience up to now has been his role in directing law enforcement
forces on June 1 to violate the First Amendment rights of peaceful protestors by forcibly
clearing them out of Lafayette Park and making way to stage a media event with the President

39

https://www.npr.org/sections/coronavirus-live-updates/2020/04/21/840262570/barr-open-to-legal-action-ifgovernors-restrictions-go-too-far
40
https://www.washingtonpost.com/local/legal-issues/doj-claims-virginia-governor-is-violating-religious-freedomwith-pandemic-order/2020/05/04/2c083b18-8e35-11ea-9e23-6914ee410a5f_story.html;
https://www.usatoday.com/story/news/politics/2020/04/14/coronavirus-doj-sides-miss-church-amid-coronavirusrestrictions/2990975001/
41
https://www.npr.org/sections/coronavirus-live-updates/2020/05/30/866097231/supreme-court-rejectschurchs-challenge-of-california-s-coronavirus-rules
42
https://lawandcrime.com/high-profile/ag-barr-casually-floated-new-mail-in-ballot-fraud-conspiracy-theory-thatexperts-say-just-couldnt-happen/

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 holding a Bible for pictures in front of St. John’s Church.43 Barr did this by amalgamating a
collection of enforcement officers from various agencies, including some that wore unmarked
uniforms so that their identity was not discernible. The officers on hand included many from
components of the Department of Justice – including the FBI, the Bureau of Prisons, the Bureau
of Alcohol Tobacco and Firearms, and the Drug Enforcement Administration. 44 The disturbing
events of that evening unleashed a wave of outraged responses from the likes of James Mattis,
John Kelly, Colin Powell, and others. Barr has disputed the evidence that demonstrators
conduct that night was peaceful, and echoed the President’s unsupported assertions blaming
“Antifa” for violent behavior while making no mention of the presence of violent right-wing
groups. He also denied that he ordered the enforcement action in order to facilitate a photo
opportunity – even though it occurred just minutes before the President walked across the
square – and quibbled about the difference between pepper balls and tear gas, at least the first
of which was undeniably used by police.45
Suing to keep John Bolton’s information secret and firing Geoffrey Berman
Just last Friday, the Department went to court with a facially meritless motion seeking a
prior restraint on the publication of John Bolton’s book. Such action would be a clear violation
of the First Amendment, and would deny the public information central to their role as citizens.
Thus the motion was denied the next day.46 And also last Friday, apparently following a
meeting with SDNY U.S. Attorney Geoffrey Berman, who has been actively pursuing
investigations and prosecutions embarrassing to the President, Barr took action to have
Berman removed.47 In both respects, Barr used his powers as Attorney General in an effort to
prevent information politically detrimental to the President and his campaign from coming to
light.
43

https://www.nbcnews.com/politics/white-house/memo-front-lines-different-america-n1222066
By the June 1, the head of DEA was Barr’s “right-hand man” Timothy Shea, and by executive order, the agency
had been given a broad array of extraordinary powers not conferred by statute, including the right to conduct
“covert surveillance” in connection with the demonstrations.
https://www.documentcloud.org/documents/6935297-LEOPOLD-DEA-Memo-George-Floyd-Protests.html
45
https://www.washingtonpost.com/politics/2020/06/08/attorney-general-barrs-dishonest-defense-clearinglafayette-square/
46
https://www.washingtonpost.com/local/legal-issues/us-judge-declines-to-block-release-of-book-by-formernational-security-adviser-john-bolton/2020/06/20/e14842f2-b301-11ea-8758-bfd1d045525a_story.html
47
https://www.nytimes.com/2020/06/19/nyregion/us-attorney-manhattan-trump.html
44

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 Misusing the Durham investigation to support the President’s deep-state campaign narrative
Even more disturbing than these misuses of power to keep the American people in the
dark, is the role that Barr has assumed this Spring as the primary spokesman advancing Trump’s
conspiratorial vision of the FBI investigation that uncovered clear Russian interference in our
2016 election. Barr has been headed down this road since shortly after he took office, with his
repeated assertions of “spying” on the President’s campaign. But in recent weeks, those
allegations have become a frequent, high-profile drumbeat, no doubt intended to give
substance to the President’s tweeted “Obamagate” narrative, and to expressly foreshadow
retribution ahead for unnamed wrongdoers. Barr seems totally obsessed with the need to get
the attention of the American people focused on Trump’s allegations that he was done a grave
wrong by the 2016 investigation, and he is doing it through grossly inappropriate claims that an
on-going DOJ investigation has so concluded.
In an early-April interview with Fox News’s Laura Ingraham, Barr called the Russianinterference investigation “one of the greatest travesties in American history,” and said that it
was undertaken “without any basis” by investigators who were trying “to sabotage the
presidency.”48 “We’re not dealing with just mistakes or sloppiness. There is something far more
troubling here, and we’re going to get to the bottom of it.” Over the next several weeks, Barr
spoke on the same subjects with the radio host Hugh Hewitt49 and CBS’s Catherine Herridge,50
including noting that there would be no limitation on bringing charges to avoid influencing the
election, since he did not envision indicting any candidate.51 On June 8, in an extended

48

https://www.realclearpolitics.com/video/2020/04/09/ag_bill_barr_media_on_a_jihad_to_discredit_trump_and_
hydroxychloroquine.html
49
https://www.hughhewitt.com/attorney-general-william-barr-on-the-crisis/
50
https://www.cbsnews.com/news/attorney-general-william-barr-on-michael-flynn-obamacare-and-coronavirusrestrictions-transcript/
51
On May 18, 2020, a day on which he made headlines by stating he did not anticipate investigating either
President Obama or Vice President Biden, https://www.cnn.com/2020/05/18/politics/william-barr-obama-bideninvestigation-durham/index.html, Barr also stated that “what happened to the president, and I’ve said this many
times, . . . in the 2016 election and throughout the first two years of his administration was abhorrent. It was a
grave injustice and it was unprecedented in American history. . . . The proper investigative and prosecutive
standards of the department of justice were abused, in my view, in order to reach a particular result. We saw two
different standards of justice emerge, one that applied to President Trump and his associates and the other that
applied to everybody else. We can’t allow this ever to happen again.” https://kerrypicket.com/william-barr-obamaadmin-actions-against-trump-were-unprecedented-and-abhorrent/

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 interview with Fox News’ Bret Baier,52 he expanded further: ""For the first time in American
history, police organizations and the national security organizations were used to spy on a
campaign, and there was no basis for it. . . . We can't discuss future charges. . . .But people
should not draw from the fact that no action has been taken yet, that that means that people
are going to get away with wrongdoing." Indeed, he said that they are “looking at” some
people whose names some may find familiar, though, he noted, they don’t include President
Obama or Vice President Biden.
Then again, just last Sunday, June 21, talking with Fox’s Maria Bartiromo, Barr quite
amazingly complained that not enough people seem to be paying attention to his efforts to
alarm them.53 “So that has been surprising to me, that people aren't concerned about civil
liberties and the integrity of our governmental process in terms of the future of Durham's
investigation. You know, he's pressing ahead as hard as he can. And I expect that, you know,
we will have some developments hopefully before the end of the summer."
So much for not discussing future charges, or adhering to established rules about the
confidentiality of on-going investigations. Here, the basis for all of Barr’s claims is
acknowledged to be the ongoing criminal probe into the Russian-interference investigation,
which he is personally overseeing with the help of U.S. Attorney John Durham. Thus his entire
public discussion including the flamboyant innuendos of still-uncharged wrongdoing plainly
violates Rule 1-7.400 of the Justice Manual, which prohibits comment on “the existence of an
ongoing [criminal] investigation” or on “its nature or progress before charges are publicly filed.”
In pursuing this running narrative to reinforce Trump’s tweeted claim of a conspiracy against
him, Barr is in blatant violation of not just time-honored norms of political detachment and
evenhandedness, but of an explicit, long-standing department rule. Clearly he wants us all to
believe that between now and the election, charges will be filed “bringing to justice people who
were engaged in abuses.” Whether that will actually happen, or rather is simply a PR bluff
advanced at the President’s insistence for campaign effect, it is plainly one more gross abuse of

52
53

https://www.foxnews.com/politics/barr-says-familiar-names-among-those-doj-is-investigating-in-durham-probe
https://www.foxnews.com/politics/barr-durham-probe-should-have-some-developments-this-summer

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 the broad powers that the Attorney General is able to exercise long before his actions ever
come before a court of law for judicial review.54
Conclusion
Barr’s current behavior brings to mind the speech that then-Attorney General Robert H.
Jackson gave in 1940 to the assembled United States Attorneys: 55
The prosecutor has more control over life, liberty, and reputation than any other person
in America. His discretion is tremendous. He can have citizens investigated and, if he is
that kind of person, he can have this done to the tune of public statements and veiled or
unveiled intimations.
...
With the law books filled with a great assortment of crimes, a prosecutor stands a fair
chance of finding at least a technical violation of some act on the part of almost anyone.
. . . It is in this realm – in which the prosecutor picks some person whom he dislikes or
desires to embarrass, or selects some group of unpopular persons and then looks for an
offense, that the greatest danger of abuse of prosecuting power lies. . . . [T]he real crime
becomes that of being unpopular with the predominant or governing group, being
attached to the wrong political views, or being personally obnoxious to or in the way of
the prosecutor himself.
It was precisely to avoid fears of such abusive conduct that Edward Levi in the wake of
Watergate put in place a broad array of reforms and thus restore public trust in the justice
system and inspire several generations of Department lawyers to an ideal of evenhanded
justice. It is now entirely clear that Bill Barr is Edward Levi’s polar opposite, and is working
diligently to dismantle what Levi and his successors put in place. Levi’s overriding concern was
to create a government of laws that apply equally to everyone, and to make clear to all that no
person, not even the president, is above the law. Barr’s central goal is the opposite – to
systematically dismantle the system of checks and balances that stand between this President
and unchecked power.
Where Levi insisted on orderly deliberative processes and respect for the integrity of a
dedicated professional staff working within a clear oversight framework, Barr has relied without
hesitation on irregular processes and ad hoc decision making by his personal confidantes.
54

I learned after this testimony was finalized that Barr brought up the subject again with Fox’s Maria Bartiromo on
June 21.
55
https://www.roberthjackson.org/speech-and-writing/the-federal-prosecutor/

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 Where Levi emphasized the need for clear detachment of sensitive matters – especially those
of a criminal nature – from political and personal influence, Barr has repeatedly allowed just
such influence to be brought to bear, and in the most flagrant cases of personal associates of
the President. Where Levi emphasized transparency and accountability for one’s views as
necessary to be deserving of trust, Barr’s long record of opaque, conclusory pronouncements,
and assertions that do not to square with the facts as they become known, have justly made
him a figure of widespread distrust.
Bill Barr regularly shrouds himself in the rhetoric and trappings of the rule of law, even
as he desecrates and undermines the institutions that make it possible. To me, his crowning
deception to date is the portrait of Edward Levi that a June 1, 2020 New York Times article
showed hanging on the wall of Barr’s conference room, as though the current incumbent had
anything but disdain for the great achievements of his predecessor. 56

56

https://www.nytimes.com/2020/06/01/magazine/william-barr-attorney-general.html

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