Statement of Senator Patrick Leahy (D-Vermont)
On Attorney General William Barr and the Future of the Department of Justice
December 19, 2020
As William Barr’s second tenure as Attorney General is coming to an end, it is important for the Senate to reflect upon his legacy, and upon the challenges now facing the Department of Justice.
The Office of Attorney General fills a unique role within our system of government. Created by the Judiciary Act of 1789, an Attorney General is not a traditional member of the President’s cabinet. As Supreme Court Justice James Iredell observed in 1792, the position “is not called the Attorney General of the President, but Attorney General of the United States.” This is because an Attorney General’s client is not the president, but the American people. An Attorney General’s duty is not to defend the president, but to uphold the rule of law — and do so with integrity and independence.
President Trump has a very different view. He views the Office of Attorney General as an extension of his political power, to be wielded like a weapon to further his agenda. He believes it exists to benefit him personally, to target his opponents and protect him and his friends. His view stands in stark contrast to everything the Attorney General is supposed to represent.
It came as no surprise, then, that during his nomination hearing Mr. Barr was questioned about which type of Attorney General he would be: the president’s lawyer, or an impartial pursuer of justice. He was adamant that while he may sympathize with the President’s policy choices, his role as a policy advisor would be distinct from that of the nation’s chief law enforcement officer. If confirmed, he assured us, his job would not be to protect the President.
Thirty years ago I voted for Mr. Barr to serve as Attorney General to then-President George HW Bush. I had my disagreements with him then, several in fact. But when I heard in late 2018 that President Trump intended to nominate him for a second tenure as Attorney General, I was hopeful. After the short, yet disastrous tenure of an unqualified Acting Attorney General who eagerly bent to the will of President Trump, I was hopeful that Mr. Barr would restore some independence to the office.
After careful consideration, however, I voted “no” on his confirmation. Mr. Barr has long-held, expansive views of executive power. Prior to his nomination, he shared those views with the President in a bizarre, 19-page memorandum making the case that a president can obstruct a criminal investigation with near impunity. It was clear to me that Mr. Barr’s views would be weaponized by President Trump, a man who derides any limits on his authority. The President, I said at the time, needed a much tighter leash.
By any measure, the last two years have been worse than I feared. Time and again, Attorney General Barr has acted in the best interests of Donald Trump, not the country. He has intervened and overruled career prosecutors only in cases to benefit the President and his friends. He has departed from Department norms, misrepresented the Department’s work, and eroded public trust in the Department as a result. I will speak to just a handful of examples.
United States v. Roger Stone
In late 2019, a jury convicted former Trump campaign advisor Roger Stone for obstructing a bipartisan congressional investigation, lying under oath, and witness tampering. Consistent with sentencing guidelines, prosecutors recommended a seven to nine-year sentence. President Trump immediately took to Twitter to criticize the prosecution. Attorney General Barr intervened just hours later, overruling the prosecutors and disregarding the sentencing guidelines.
What happened next reminded me of something Judge Michael Mukasey said when testifying in support of Mr. Barr at his confirmation hearing. Judge Mukasey said if Mr. Barr ever failed to serve with independence, he would “find a mound of resignations on his desk.” Well, in this instance, all four career prosecutors withdrew from the case. Two resigned from the Justice Department altogether. At sentencing, Judge Amy Berman Jackson took the rare step of defending both the career prosecutors and their sentencing recommendation, stating that it was “true to the record” and “in accordance with law and DOJ policy.”
Attorney General Barr’s intervention left me with one question: Could anyone other than the President’s close friend — a man who, according to Judge Jackson, “was prosecuted for covering up for the President” — receive such leniency from the Attorney General?
United States v. Flynn
Then there is former National Security Advisor Michael Flynn. The Attorney General’s intervention in the Flynn case went a step further: Despite the fact that Flynn had twice pleaded guilty to lying to the FBI, Barr’s Justice Department moved to dismiss the case altogether, prompting the lead prosecutor to withdraw.
The sentencing judge, Emmet Sullivan, ordered a review of the motion to drop the charges, and appointed a former federal judge, John Gleeson, to serve as an amicus curiae. Judge Gleeson did not mince words: He advised the court that Barr’s grounds for seeking dismissal were “conclusively disproven” and amounted to an “unconvincing effort to disguise as legitimate a decision to dismiss that is based solely on the fact that Flynn is a political ally of President Trump.” Not long after President Trump fully pardoned Flynn.
The Mueller Report
Many of Attorney General Barr’s departures from Department norms originated with his now-infamous handling of the Special Counsel’s report on Russian interference. The Mueller report amounted to a 448 page presentment of misconduct that reached the highest levels of the Trump campaign and administration. Yet the Attorney General’s summary of the report — the only information he allowed the public to see for weeks — left Americans with the opposite impression: that the report effectively exonerated the President. Special Counsel Mueller wrote to the Attorney General at the time, concerned that the Attorney General failed to capture his conclusions and created confusion that undermined public confidence in the investigation.
Indeed, that appears to have been the Attorney General’s intent. Many others agree. Federal Judge Reggie Walton wrote that the inconsistencies between his statements and the report “cause the Court to seriously question whether Attorney General Barr made a calculated attempt to influence public discourse about the Mueller Report in favor of President Trump despite certain findings in the redacted version of the Mueller Report to the contrary.” That statement, from a sitting federal judge about a sitting Attorney General, is as damning as it gets.
Soon after, the Attorney General began falsely claiming that the investigation was started “without any basis” and was politically motivated. This is despite the fact that an exhaustive Inspector General’s report refuted both claims.
The Attorney General was not content with simply mischaracterizing the Russia investigation. He launched counter-investigations into the Justice Department’s own investigators. He personally travelled to Italy in a desperate attempt to dig up exculpatory evidence. Ignoring Department policies, he regularly commented on the ongoing investigation led by U.S. Attorney John Durham. Documents from the Durham investigation were even shared with the White House, according to the President’s chief of staff. Then Durham’s top aide abruptly resigned, reportedly due to pressure to release their findings before the election.
The Attorney General did all of this while ignoring a subpoena from the House of Representatives to obtain an unredacted copy of the Mueller report.
Impeding Congressional Oversight
In fact, Attorney General Barr has evaded transparency and impeded once-standard congressional oversight no matter the topic. He refused to testify before the House. He was held in contempt for refusing to respond to House subpoenas related to the administration’s pretextual justification for adding a citizenship question to the Census. He supported efforts to cover-up the President’s Ukraine scandal, for which the President was impeached. He supported the unprecedented purging of multiple inspectors general. And he rebuffed congressional oversight at every turn. This may not bother my Republican friends now. But the political winds have already shifted. And it harms all of us when congressional prerogatives are so blatantly disregarded.
Defending Trump Personally
While Attorney General Barr has defended President Trump at seemingly every turn, he went a step further in September by attempting to literally defend the President’s personal interests. The Attorney General moved to intervene and dismiss a civil defamation case that alleged that the President lied about a decades-old sexual assault. A federal court flatly rejected the attempt.
Lafayette Square Protestors
Attorney General Barr’s interventions on behalf of the President extended beyond legal issues, to PR issues as well. At the height of a national reckoning on issues of racial injustice, the White House stated that it was the Attorney General who ordered the clearing of peaceful protestors at Lafayette Square. Barr denied he gave the order, but did not deny that he encouraged it. Peaceful protestors were cleared with rubber bullets and tear gas so that the President could stage a photo-op in front of St. John’s Church. It was a grotesque display of unnecessary force.
Sowing Doubt About the Election
Most recently, the Attorney General’s obedience to the President resulted in him falsely claiming that mail-in ballots — used since the Civil War and relied upon by millions of Americans during this pandemic — “opened the floodgates” to widespread fraud. Voting experts described his claims as farcical. In echoing the President’s conspiracy theories, the Attorney General revealed how little he knew about basic election laws and the safeguards in place. His apparent intent was not to inform the public, but to sow doubt among the public in the integrity of their vote.
Attorney General Barr then re-wrote the Department’s policy on election-related investigations, prompting the head of the Department’s Election Crimes Branch to resign his post in protest.
Need For New Leadership
For each of these actions, Attorney General Barr was publicly badgered by President Trump to act. It may be that Attorney General Barr believes he withstood the pressure. There may be some lines that he declined to cross — such as fabricating evidence of widespread voter fraud. But we must never excuse the many lines that he did cross. Critically, when a President pressures an Attorney General to serve their personal interests, it is all the more incumbent on the nation’s top law enforcement officer to avoid any appearance of impropriety, and to refuse the request — not meet him half way.
It brings me no joy to say this. I have known Attorney General Barr for a long time. But he has failed in his duty to impartially and equally uphold the rule of law. The Attorney General represents the United States, and all of its 330 million Americans. Too often, Attorney General Barr represented the interests of just one. By serving as a yes man when the law, the country, and the Department needed him to say no, Attorney General Barr has damaged the hallowed office he has temporarily occupied.
Now the hard work to repair the damage must begin. In November, the American people elected to take the country in a different direction. I served alongside President-Elect Biden for decades in the Senate and on the Judiciary Committee. He understands the unique role of the Justice Department. He will not rely on it to do his personal bidding. No matter who the President-Elect chooses as the next Attorney General, I have no doubt that he or she will operate with the utmost integrity, guided by the law and the facts.
As we begin to close the book on this dark chapter in our nation’s history — with a pandemic that has left more than 310,000 Americans dead, and with the outgoing President’s relentless attacks on the foundations of our democracy — I am hopeful that brighter days are ahead. I am confident we will have leaders focused on following the evidence, adhering to the rule of law, pursuing equal justice, and acting in the best interests of the nation, not just of one man.
The thousands of hardworking and dedicated men and women of the Justice Department deserve at least this much. As do all Americans. And indeed the founding principles and traditions of the 230 year-old Office of the Attorney General demand nothing less.