From the outset, the independence and integrity of the U.S. Department of Justice (DOJ) has been in rapid decay under the Trump administration. Early in his presidency, Trump berated then-Attorney General Jeff Sessions, accusing him of political “disloyalty,” for Sessions’ decision to recuse himself from the Mueller investigation. Later, after pushing Sessions out, he installed an acting attorney general, Matthew Whitaker, who was widely seen as a partisan actor willing to be an “attack dog” for Trump. This appointment was done without confirmation from the Senate, invoking serious constitutional concerns.
Since taking the helm of the department, Attorney General William Barr has become an active accomplice in the Trump administration’s efforts to politicize the DOJ. When armed protestors stormed the Michigan state legislature to protest public health orders, for example, Barr was largely quiet—a stark contrast to his willingness to quickly denounce the Black Lives Matter protests occurring throughout the country as “hijacked” by far-left extremists without providing evidence to back up his claim. In fact, despite the vulnerable state of the country amidst the coronavirus epidemic, Barr appears to be ramping up the partisan nature of the DOJ.
These actions provide a dangerous illustration of the lengths that Barr may be willing to go.
Dropping criminal charges against a Trump ally
Most recently and dramatically, Barr’s DOJ moved to drop the criminal charges against Michael Flynn—Trump’s first national security adviser and political ally.
Flynn, who admitted he lied to the FBI about his ties and communications with Russia during the investigations into foreign interference in U.S. elections, pled guilty to the charges. Indeed, there is virtually no dispute Flynn is guilty, though he is now trying to withdraw his guilty plea. President Trump, however, has often complained Flynn should be considered a “hero,” prompting frequent speculation he would ultimately pardon his ally. Barr’s decision to drop Flynn’s criminal charges kept Trump from personally facing the political blowback that a pardon would have brought.
The DOJ’s actions regarding Flynn were foreshadowed well in advance. DOJ political appointees overruled career DOJ attorney’s recommended sentencing for another former Trump political aide—Roger Stone. That interference came after Trump publicly urged the Department to act in such a manner as well.
The lack of oversight at the DOJ
Each federal agency has a watchdog, officially known as an inspector general (IG), responsible for investigating and reporting on serious allegations of wrongdoing within their agency. But despite evidence of clear impropriety conducted by Trump officials at the DOJ—and in marked contrast to other agency IGs—there have been no major findings released on the Trump administration.
DOJ Inspector General Michael Horowitz has confoundingly prioritized issuing reports on right-wing conspiracy theories related to the Obama administration. This is despite ongoing scandals at the DOJ, such as the department’s role in the Trump administration’s controversial zero-tolerance policy—the implementation of which all other relevant IGs have investigated and released findings into.
Unfortunately, for the time being, Horowitz appears to be falling in line with Barr’s desire to shield the Trump administration from any meaningful oversight.
Former DOJ attorneys and staff from both Democratic and Republican administrations wrote an open letter to try to explain the seriousness of Barr’s abuse of power:
Make no mistake: The Department’s action is extraordinarily rare, if not unprecedented. If any of us, or anyone reading this statement who is not a friend of the President, were to lie to federal investigators in the course of a properly predicated counterintelligence investigation, and admit we did so under oath, we would be prosecuted for it.
Supporting far-right conservative activists over public health
Just days after Trump specifically ramped up attacks on Democratic governors for their public health orders aimed at ending the spread of COVID-19, Barr announced that the DOJ would formally begin reviewing and challenging state public health orders.
During the pandemic, the idea of flouting public health measures and protesting “stay-at-home” orders has become linked with support for the Trump administration itself. Trump has even tweeted that people should “liberate” themselves in states with such protections in place, stating individuals’ rights were under “siege” due to the public health measures. On May 24, the president went so far as to ignore public health experts and demand that governors allow churches reopen.
In Barr’s announcement of the new policy, the attorney general made it clear that public health orders affecting religious gatherings would be of particular interest to the department. There is a clear link between this focus and right-wing ideologues. Extremist activists have launched an effort to challenge restrictions designed to prevent the spread of the virus within worship settings, which occurred at significant rates in the earliest days of the pandemic. Furthermore, in-person gatherings continue to pose significant public health risks, as demonstrated by infections stemming from in-person religious gatherings held despite stay-at-home orders.
This legal strategy is a continuation of long-standing efforts to twist the meaning of “religious liberty” in order to give far-right ideologies special legal standing. An early case making such an argument was filed by an anti-LGBTQ activist with a political action committee identified as a hate group by the Southern Poverty Law Center. Even as the coronavirus crisis took hold, Barr hosted “religious liberty” workshops that, according to some career DOJ attorneys, promoted ways to enable discrimination against LGBTQ people. Thankfully, though efforts continue, the Supreme Court recently rejected a request by one California church to block the enforcement of the state’s public health order.
The first suit, however, that Barr’s department moved to support after the new policy’s announcement arose out of Virginia and underscores the ideology motivating these legal requests. It is being argued by Liberty Counsel—a far-right group that the Southern Poverty Law Center identifies as “legal organization advocating for anti-LGBT discrimination under the guise of religious liberty.” The head of that organization and former Liberty University president, Mat Staver, is a notable Trump supporter who has claimed the media has sided with Satan to attack the president.
In reaction to the DOJ filing a statement in support of the suit, Staver announced he was “very pleased” by Barr’s involvement in the case.
Seeking to hold American citizens in detention indefinitely
Finally, given what these actions suggest regarding Barr’s willingness to use the might of the Department of Justice to support Trump’s political allies, it is important to keep in mind that the DOJ has recently requested emergency powers from Congress.
While Congress did not give in to Barr’s request, the scope of what the attorney general sought was sweeping. Under the proposal, the DOJ would have been able to petition individual judges at the district court level to indefinitely suspend certain court proceedings—effectively, giving the department wide latitude to significantly delay certain arrested individuals’ ability to appear in court.
Conservative activists on the judiciary
While the requested emergency powers would have relied on judicial cooperation to execute, Barr would likely have been able to find support among the many ideologically driven federal judges the Trump administration has installed—including some who went directly from the White House to the bench. At both the district level, where the policy would be first implemented, and at the appellate level, where any challenge to the policy surely would have been eventually heard, far-right judicial activists have an increasing hold on the bench.
Trump outpaces any other modern president in terms of the number of judicial appointments made at this point in their respective administrations, with 1 in every 4 appellate judge being a Trump nominee.
Such a policy would have allowed for the Sixth Amendment, which guarantees a “speedy and public trial,” to be circumvented. Furthermore, the proposed policy appeared to give Barr’s department near-total discretion in eliminating these core constitutional protections.
The executive director of the National Association of Criminal Defense Lawyers, Norman L. Reimer, called Barr’s request “absolutely terrifying” and something that “should not happen in a democracy.”
Barr’s recent actions demonstrate his loyalty and adherence to the president’s personal interests as well as his brazenness while furthering those interests. As the pandemic continues, there are likely to be increasing threats to Americans’ rights and safety that the DOJ will play a role in responding to. Currently, however, there is little to indicate that Attorney General Barr will be willing to prioritize the protection of ordinary people over the protection of the Trump administration.
Maggie Jo Buchanan is the director of legal progress at the Center for American Progress.
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