I recently received a letter contesting my statements concerning Attorney General Bill Barr in columns (here and here and here and here) and congressional testimony (here and here). The letter is from Ralph Nader, Lou Fisher, and Bruce Fein. I have known all three signatories for many years and I have the utmost respect for them. They offer detailed and thoughtful disagreements with my past statements and the record of Attorney General Bill Barr. I asked them if they would allow me to share their arguments with the blog and they have agreed to do so. As with the prior posting of Professor Morrison, I strongly encourage you to consider the analysis from three of the most influential minds in Washington.
These are figures who require little introduction. They are well known throughout the world for their contributions to the law and public policy. Ralph Nader is as legendary figure who has fought his entire life for consumer protection, environmental protection and good government. He has run for president repeatedly (indeed I voted for him) and is widely viewed as one of the most influential figures in the world on public policy. Lou Fisher spent four decades at the Congressional Research Service and is widely regarded as one of the most influential figures in the shaping of congressional legislation and policies. He is widely regarded as one of the foremost experts on constitutional and congressional issues. Bruce Fein was a high ranking Justice Department figure in the Reagan Administration and has been one of the most influential conservative voices in print and television for decades. He is known for his independent and principled analysis of legal and constitutional issues.
As I stated in Attorney General Barr’s confirmation, he comes to this position with long-established and robust views of executive privilege and powers. While I have long disagreed with him on many of these issues, I view many of the current controversies to reflect policy and interpretative differences, not ethical or criminal or impeachable misconduct. I do not agree with presumptions made about his improper motivations or designs in carrying out his duties, for a second time, as Attorney General of the United States. Despite my many friends on the other side, my view has not changed. Nevertheless, people of good-faith can disagree and that is precisely what is offered by Messrs. Nader, Fisher, and Fein (sounds like a great law firm!)
Here is their letter for your consideration:
Dear Professor Turley,
We highly respect your intellect, productivity, and integrity over the years.
We are convinced, however, that the crabbed views of bribery elaborated in your July 12, 2020 internet posting, “When ‘Awfully Close’ Is Just Awful: Nadler Raises Invalid Bribery Theory In Call For Barr Investigation,” are misplaced. You focused narrowly on the definition of bribery under the federal criminal code as expounded the United States Supreme Court and subordinate tribunals.
But “bribery” as an impeachable offense in Article II, section 4 is not so circumscribed. It does not require proof of a crime. Indeed, when the Constitution was adopted and ratified, there was no federal criminal code. And the Constitution did not create common law crimes. United States v. Hudson & Goodwin, 11 U.S. 32 (1812). Thus, bribery in the context of impeachment could not have been anchored to a federal crime. In contrast to treason, the Constitution refrains from any definition of bribery. Accordingly, Congress might rationally conclude that Attorney General Barr’s offering a promotion to Geoffrey Berman exchange for his non-noisy resignation as United States Attorney for the Southern District of New York constituted impeachable bribery even if not a violation of the federal criminal code. The reasonably suspected ulterior motive was the hope that Berman’s successor, SEC Chairman Jay Clayton, clueless about criminal justice, and interim Acting United States Attorney for the Southern District, Craig Carpenito, United States Attorney for New Jersey, would be less aggressive in investigating targets tied to President Trump. As you know, an investigation running on twenty cylinders as opposed to one cylinder is the difference between night and day, even if both are equally uncompromised. Simply because Mr. Barr’s hope was thwarted and Berman’s professional deputy became Acting U.S. Attorney does not make the solicitation of Berman’s quiet resignation in exchange for a promotion any less impeachable as non-criminal bribery under Article II, section 4.
Ask yourself, Professor Turley, if you were in Mr. Barr’s place, would you have done what he did with his motives? If not, isn’t that a cogent clue that the Attorney General did something wrong in soliciting Mr. Berman’s quiet resignation in exchange for a promotion?
We submit that in your multiple writings, testimonies, or articles a much wider lens might have been employed in evaluating Attorney General Barr: namely, serial violations of his constitutional duty to faithfully and evenhandedly execute the laws to inspire public trust in the administration of justice. The abuse or violation of a public trust, Alexander Hamilton explained in Federalist 65, is an impeachable high crime and misdemeanor.
Mr. Barr has shattered public trust in a non-partisan, uncompromised administration of justice by implementing or condoning President Donald Trump’s partisan, chronically lawless political agenda. The following enumeration is inexhaustive:
- Seeking to void former national security adviser’s Michael Flynn’s guilty pleas in the United States District Court for the District of Columbia for reasons never afforded any other criminal defendant.
- Second-guessing the sentencing recommendations of the Department’s schooled lawyers for President Trump’s personal and political confidant Roger Stone, found guilty of lying to Congress and witness tampering.
- Condoning President Trump’s commutation of Stone’s sentence, which will encourage congressional witnesses during Trump’s tenure to lie in expectation of a presidential sanctuary. James Madison instructed at the Virginia Ratification Convention: “There is one security in this case [a misuse of the pardon power by the president] to which gentlemen may not have adverted: if the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty…”
- Gratuitously casting aspersion on the Mueller Report by unilaterally proclaiming in the manner of a papal encyclical that President Trump was innocent of obstruction of justice. The Report chronicled multiple instances of evidence of obstruction but refrained from opining on whether they met the threshold for criminal prosecution. Mr. Mueller inexplicably balked at seeking to depose Mr. Trump or even compel him to answer written questions about his conduct as President.
- Making deceitful redactions in the public release of the Mueller report that provoked United States District Judge Reginald Walton in FOIA litigation to write that Barr may have “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.”
- Condoned unconstitutional defiance of scores of congressional subpoenas or requests for information by executive officials that handcuffed the congressional power of oversight and investigation. In 1974, without judicial blessing, the House Judiciary Committee voted an article of impeachment against President Richard Nixon for flouting a single committee subpoena. Congress does not need judicial permission to find that disobedience to a congressional subpoena is an impeachable offense.
- Condoned or supported President Trump’s June 4, 2020, Executive Order 13927 declaring a special economic national emergency based on COVID-19 as a pretext to waive environmental laws, such as the National Environmental Policy Act and the Endangered Species Act, to accelerate federal approval of new mines, highways, pipelines, and other federal projects as reported in The Washington Post (“Trump signs order to waive environmental reviews for key projects,” by Juliet Eilperin and Jeff Stein, June 4, 2020). Notwithstanding the alleged national emergency, President Trump has refrained from promulgating a national blueprint to fight COVID-19, and proclaimed we are witnessing “the greatest [economic] comeback in history.”
- Condoned or supported President Trump’s Executive Order 13294 instructing federal government agencies to rescind, modify, or cease enforcing regulations temporarily or permanently if they “may inhibit economic recovery” as reported in The Washington Post (“Citing an economic emergency, Trump directs agencies across government to waive federal regulations,” by Steven Mufson, Julie Eilperin, Jeff Stein, and Renae Merle, June 26, 2020). Compare the English Bill of Rights of 1689 condemning King James II for“assuming and exercising a power of dispensing with and suspending of laws and the execution of laws without consent of Parliament.” Standing alone, such industrial scale derelictions in failing faithfully to execute the laws justifies the impeachment of Mr. Barr.
- Condoned Mr. Trump’s criminal violations of the Hatch Act by directing federal employees to place his name on checks to CARES beneficiaries and to send White House letters to direct deposit CARES beneficiaries to advance his 2020 presidential campaign. Mr. Barr has refused to respond to our letter pointing out the substantial credible evidence of violations and urging the appointment of a special counsel under Department of Justice regulations.
- We take guidance from your splendid January 13, 2012 article in The Washington Post entitled, “10 reasons the U.S. is no longer the land of the free.” Attorney General Barr has championed or endorsed every one of those 10 violations and more.
He has championed President Trump’s authority to play prosecutor, judge, jury, and executioner to kill any American citizen deemed a past or future threat to national security based on secret, unsubstantiated suspicion without accountability to Congress, the courts, or the American people. President Trump has weakened internal inhibitions on assassinations that he inherited from President Obama. They also violate Executive Order 12333, section 2.11
He has endorsed indefinite detention without trial of terrorism suspects not charged with crimes at Guantanamo Bay or elsewhere.
He has endorsed presidential power to decide between military or civilian justice. French Premier Georges Clemenceau quipped that “Military justice is to justice what military music is to music.”
He supports the secret Foreign Intelligence Surveillance Court to approve arbitrary targeting of organizations and American citizens for non-criminal justice purposes for political advantage. He supports the national security letters issued by the FBI with no judicial vetting which have chronically abused according to the DOJ’s Office of Inspector General and others.
He has endorsed secret evidence and secret law to justify detentions and dismissals of civil suits for government assassinations, torture, or kidnappings. The secrecy invites government deceit, as confirmed by the Supreme Court’s decision in United States v. Reynolds, 345 U.S. 1 (1953) enabling a false Air Force affidavit to scuttle a wrongful death suit under the Federal Tort Claims Act.
He has endorsed blocking war crimes investigations of the American military by the International Criminal Court, including in Afghanistan, and issued asset freezes and denied visas to ICC investigators as punishment. (Although the United States is not an ICC signatory, Afghanistan is. Under the Rome Statute of the ICC, it has jurisdiction over war crimes perpetrated by the American military in a signatory nation).
He has endorsed limitless use of the secret Foreign Intelligence Surveillance Court to target any person within the rearview mirror of an alleged suspected terrorist.
He has endorsed judicial immunity for companies complicit with the government in warrantless surveillance of citizens; and, sought to enlist the judiciary under the All Writs Act of 1789 to compel companies like Apple to become arms of the FBI in breaking privacy codes on cell phones.
He endorsed the warrantless use of surveillance drones to monitor American citizens, including protestors demonstrating over George Floyd’s homicide.
In the past before the practice was abandoned by President Obama, he endorsed extraordinary rendition to send U.S. detainees to countries notorious for torture or murder, for example, innocent Mahar Arar dispatched to Syria for torture. Extraordinary rendition is a lesser presidential power than the limitless presidential power to assassinate that Mr. Barr champions.
In addition to the ten violations referenced above, the Attorney General supports unbridled presidential power to initiate and continue war (including use of WMD) on his say-so alone in flagrant violation of the Declare War Clause. As you know, James Madison wrote to Thomas Jefferson on behalf of every participant in the making and ratification of the Constitution: “The constitution supposes, what the History of all Govts. demonstrates, that the Ex. is the branch of power most interested in war, & most prone to it. It has accordingly with studied care, vested the question of war in the Legisl…”
Thus, Mr. Barr supports our ongoing, never-ending unconstitutional presidential wars never declared or initiated by Congress: Libya, Somalia, Yemen, Syria, Iraq, Afghanistan, and Pakistan. Many wrongly believe the war against Iraq is constitutional under the Authorization for Use of Military Force Against Iraq Resolution of 2002. It is not because Congress abdicated its responsibility for war to the President, an abdication prohibited by the Declare War Clause. Only Congress can take the nation from peace to war, and it did not make that decision in the 2002 AUMF. It handed off that decision to the President, who waited more than five months to attack.
Neither by treaty nor by statute may the Senate or Congress surrender the war power to the President. The League of Nations was defeated in the Senate over that issue. And the United Nations Charter, learning from history, requires a congressional declaration of war before the President may employ the military to enforce a Security Council resolution under Chapter 7. Congress is prohibited from delegating certain legislative authorities to the President to preserve separation of powers, which is a structural bill of rights to protect the people from tyranny. Clinton v. New York, 524 U.S. 417 (1998).
You appreciate the enormity of the constitutional violations of presidential wars because you represented Members of Congress in a 2011 lawsuit challenging President Barack Obama’s unconstitutional war in Libya, which continues to this very day with Mr. Barr as Attorney General.
The gravity of the Attorney General’s constitutional derelictions cannot be overstated. Do you not think his taking a wrecking ball to our constitutional order warrants impeachment and removal from office?
We look forward to a thoughtful response.
Very truly yours,
Ralph Nader Lou Fisher Bruce Fein
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