Yesterday I wrote a column in the Hill criticizing hair-triggered responses to the controversy over the sentencing recommendation in the case of Roger Stone. This included former prosecutors who did not see the need to confirm critical facts before demanding the resignation of Barr. Former Deputy Attorney General Donald Ayer called Barr, his former colleague in the Bush Administration, “unAmerican.” It is a disgraceful attack on someone who has served his country for decades with distinction. Just as many (including myself) have denounced President Donald Trump for calling opponents disloyal or traitorous, this personal attack should also be roundly denounced by all sides in this controversy.
Ayer went on CNN with Wolf Blitzer to question not just the judgment and integrity but the patriotism of Barr. He stated “The reason I say he’s un-American…is that the central tenet of our legal system and our justice system is that no person is above the law. Bill Barr’s vision is that there is one man—one person—who needs to be above the law and that is the president.” The statement is wildly unfair and inaccurate. Indeed, Barr has repeatedly stated that he believes a president can be impeached for abuse of power as well as obstruction and other violations. He has also stated that a president can be criminally prosecuted after he leaves office.
Ayer has previously shown similar quick judgment in such controversies. In October, just as the Ukrainian scandal was emerging, Ayer signed a letter with George Conway and others demanding a rapid impeachment. There were only a few weeks of stories on the developing scandal. However, this was before the testimony of key witnesses were even heard by Congress. Nevertheless, Ayer declared with his co-signers that “These acts, based on what has been revealed to date, are a legitimate basis for an expeditious impeachment investigation, vote in the House of Representatives and potential trial in the Senate.”
It was an extraordinarily premature conclusion — much like the pattern shown in the current controversy. Even in the hearing in December, I cautioned against the rush to impeach in December. The only two impeachable offenses that I saw as conceptually and constitutionally viable were abuse of power and obstruction of Congress but testified that the record would not currently support such claims. Ultimately, the Committee dropped the other counts that I testified against and went with the two that I discussed. However, it has unwisely kept to its pledge to impeach by Christmas despite the obvious gaps and conflicts in the record.
Ayers however had reached his conclusion months before on the need to move quickly to impeachment. Before even hearing from Barr, he now feels certain enough to call not just for Barr’s resignation but to denounce him as “unAmerican.” For its part, CNN correctly calls out Trump for such irresponsible rhetoric but did not even question the basis or propriety of such an ad hominem on Barr.
Ayer also signed a letter claiming that Trump was clearly guilty of obstruction of justice, a claim that I addressed in my testimony before the Judiciary Committee as unsupportable on the basis of the code and the case law. That count was also rejected in favor of an obstruction of Congress claim, which itself was prematurely approved by the House and ultimately rejected by the Senate.
As I stated in yesterday’s column, there are legitimate questions raised by the change in the recommendation and the resignation of the prosecutors. However, there is also countervailing information supporting Barr that has been uniformly ignored, including disclosures that he made in this ABC interview where he criticized the President for his tweets.
Perhaps Ayer has inside information proving such allegations. If so, he should share it. If not, he should exercise a modicum of restraint in assuming unethical conduct. It is even more unprofessional to not just declare such acts to be unethical but also declare a person as “unAmerican” on such limited information.