The Rush Of Judgment: How Recent Stories On Barr Left The Relevant Facts And Law Behind

Below is my column in The Hill newspaper that looks at three different stories attacking Attorney General Bill Barr as acting unethically and corruptly from the Flynn case to the Berman decision to the Cohen case.  I have not hesitated to criticize Barr on his policies or actions. However, these are based on long-standing differences over constitutional and legal issues.  It is the character attacks that I found notable in last week’s stories particularly in the absence of supporting evidence.

Here is the column:

I criticized President Trump two years ago for all his ruthless and endless attacks on former Attorney General Jeff Sessions. Today Attorney General William Barr is being similarly attacked by critics of the administration, as some media shows the same kind of blind rage without reason.

While I have publicly criticized Barr for some of his policies and actions, he is someone I have known personally for years and even represented with other attorneys general during the impeachment trial of Bill Clinton. Piling on Barr has never been more popular today, but the basis for this criticism has never been weaker. Three stories last week seemed to entirely break free from factual or legal moorings, and no one seemed to care.

THE FLYNN CASE

The case of Michael Flynn has been in the media, including the hearing exploring the involvement of Barr. Of course, for Barr to be immoral, the case must be portrayed as virtually immaculate. The media coverage has steadfastly ignored disclosures about officials pushing unrelentingly for any criminal charge to use on Flynn, allegedly withholding exculpatory evidence, and giving misleading statements to the trial court.

Confirming the facts seems irrelevant to the criticism. My colleagues at George Washington University signed a letter denouncing him over the case despite new developments. The letter is written well and raises a number of legitimate issues. But some of us felt it reached conclusions before establishing any facts. It praised the work of retired Judge John Gleeson, an appointment by Judge Emmet Sullivan that some criticized. Gleeson argued against the dismissal of the case against Flynn. It noted that the brief by Gleeson showed “gross prosecutorial abuse.”

The faculty concluded that it was therefore established that “The Attorney General once again sought to do a favor for the President.” One day after the letter was signed, the D.C. Circuit issued a virtually unprecedented opinion ordering Sullivan to dismiss the case and specifically criticized the Gleeson brief as an example of Sullivan’s “irregular” course of conduct and “suggests anything but a circumscribed review.”  It noted that the brief was based on little more than “news stories, tweets, and other facts outside the record to contrast the government’s grounds for dismissal here with its rationales for prosecution in other cases.”

Two days later, new evidence further supported the Justice Department’s position that there was no legitimate investigation tied to the interview of Flynn, a key element for a prosecution. The Justice Department has long maintained that a false statement must be connected to such an investigation and not simply used to trap an individual. The notes from fired FBI Special Agent Peter Stryok reveal that former FBI Director James Comey told President Barack Obama and Vice President Joe Biden that Flynn’s call with the Russian was viewed as “legit” from the start. Thus, not only had agents sought to end the investigation in December for a lack of evidence of any crime, but even Comey agreed that Flynn’s call with the Russian diplomats was legitimate.  Yet, they still continued to discuss a way to charge Flynn on any crime, including the Logan Act, a law that is widely viewed as unconstitutional.

THE BERMAN MATTER

The next story appeared on Friday night, when Barr announced that Manhattan U.S. Attorney Geoffrey Berman was “stepping down” to make way for the appointment of Jay Clayton, chairman of the U.S. Securities and Exchange Commission. Clayton wanted to return to New York and expressed an interest in the position. Barr told Berman that he and President Trump wanted the two men to swap positions, or Berman could take over the DOJ’s civil division. Berman said he wanted to think about it, but Barr went ahead and announced the change.

Barr told Berman that he and the President wanted the two men to swap positions or Berman could take over the civil division at the Justice Department. Berman said that he wanted to think about it, but Barr went ahead in announcing the change.

         Berman issued a public statement with a final line that strongly suggested that his removal was an effort to influence pending investigations including those into Trump associates as Rudy Giuliani. The media exploded and various people called for Barr’s immediate impeachment.  In the meantime, serious journalists like Pete Williams at NBC were confirming sources as saying that the move had nothing to do with the investigations. Indeed, there has been no allegation that Barr has hampered those investigations since becoming Attorney General and he told attorneys to report any such interference to the Inspector General.

         It may be true that Barr has a better relationship with Clayton. However, the substantive question is whether, as reported, he was trying to influence the Trump investigations.  There is no evidence (but much coverage) to support that proposition.

THE COHEN CASE

Finally, the attacks on Barr returned to the case of Michael Cohen. The Daily Beast derided the insistence of Barr that it is nothing but a “media narrative” to suggest he has been acting in the interests of the president. The Daily Beast refers to Cohen as a close confidant of Trump without any mention that, by the time Barr had raised questions about the case, the president despised Cohen and celebrated his conviction. The only person who would have been more upset with undermining the conviction of Cohen than the lead prosecutor would have been Trump.

This entire “scandal” is due to Barr reportedly asking whether aspects of the Cohen prosecution were based on flawed interpretations of the underlying federal law. He started an internal discussion about the scope of the interpretation. The United States attorneys’ manual reaffirms the control of Main Justice over such interpretative policies, even though Barr apparently let it drop. Readers were never told that Barr takes the position against an expansive reading of the criminal code on offenses like those with which Cohen was charged.  Indeed, in Barr’s confirmation hearing, I noted that Barr, as a private citizen, contacted the Justice Department to contest the charges against Sen. Bob Menendez (D., N.J.) on such broad interpretations. He had no connection to Menendez.  Was he also currying favor with Trump on the Menendez case when he was seeking to raise such issues before he became Attorney General?

Barr was confirmed on February 14, 2019.  Just a week later, Trump was denouncing Cohen as “lying in order to reduce his prison time.”  Barr was so slavishly trying to please Trump that he was questioning the prison time that Trump was celebrating and seeking “a legal memo casting doubt on the legitimacy of Cohen’s conviction.”

Legitimate objections can be raised about certain policies of Barr. I have criticized him for some of those, and we have disagreed for decades over constitutional law and the power of the executive branch. However, I have never known a more honest and direct individual in Washington. His real flaw is a lack of concern over the optics of his actions. Barr spends much time thinking about the right move to make but little time about how it is seen.

That is a fair criticism. However, last week’s stories show that, to take a line from King Lear, Barr remains “a man more sinned against than sinning.”

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.