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April 16, 2020

Note From Elie: Bill Barr’s ‘Injustice’ Manual

By Elie Honig

Every federal prosecutor in the country has on his or her desk a copy of the Justice Manual.  Whenever a newly-minted Assistant United States Attorney walks into an empty office for the first time, a copy awaits, part of the standard if unspectacular federal government starter decor: desk, chair, bookshelf, computer, Justice Manual.  I didn’t take much with me when I left the Southern District of New York, but I did grab my thick binder containing the Manual (an unnecessary keepsake, given that the entire document is online — but nostalgia prevails).

I realize now that, to an outsider, it might seem amusingly aspirational — or perhaps mildly delusional — to purport to reduce a concept so grand and abstract as “Justice” to a written document.  It’s like trying to create a “Peace Catalog” or a “Happiness Guide.”

Despite its grandiose title, the Justice Manual is at first glance a typical government document.  It is long. It has sub-parts upon sub-headers upon sub-sections, with plenty of citations and cross-references.  It addresses topics as painfully bureaucratic as “Type and Scope of Supervisory Approvals Necessary to Obtain a Search Warrant in a Tax Fraud Case.”  (Don’t wait, pre-order your copy now!) 

It’s easy to look askance at the Justice Manual as just so much bureaucratic gibberish.  But over my time as a prosecutor, that hefty binder took on real meaning. The Manual combines hands-on legal instruction about federal law and rules of procedure with helpful guidance on how to exercise the discretion that guides a prosecutor’s work.  The document itself embodies good-government principles: transparency (it is publicly available), flexibility (it is regularly revised to meet evolving needs and trends), and consistency (it is issued to, and guides, every prosecutor in every district in the country).  The Justice Manual is, in short, nearly what it purports to be — the federal government’s best crack at guiding prosecutors on how to do the job, correctly and fairly.

When Attorney General William Barr sat down with Fox News for a recent interview, he reminded us once again of his fundamental unfitness to serve as the nation’s top prosecutor.  As I watched Barr, I could not stop thinking to myself: “This is everything a prosecutor should never do.”  Throughout the interview, Barr set a real-life example of how not to do the job — an Injustice Manual personified, if you will.

Don’t be lulled by Barr’s monotonal, non-threatening, hangdog demeanor.  He was absolutely off the rails in this interview. Over and over, he violated core tenets of the Justice Manual and the underlying principles on which it is built.  Let’s review.

Barr publicly discussed, and pre-judged, a pending investigation.  The Justice Manual sensibly prohibits prosecutors from making substantive public statements about a pending investigation or any subject’s guilt.  Yet, even while the Justice Department continues to investigate the origins of the Russia investigation — once again, seemingly hellbent on reaching an outcome that best serves President Donald Trump’s political wishes — Barr declared that “My own view is that the evidence shows that we are not dealing with just mistakes or sloppiness.  There was something far more troubling here.”  Any Justice Department prosecutor would rightly be disciplined — potentially fired — for this kind of conclusory, public commentary on a pending investigation.


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Barr misrepresented the facts.  Barr called the Justice Department’s investigation of Russian interference in the 2016 election “one of the great travesties in American history,” claiming it was started “without any basis” in order “to sabotage the presidency.”  Yet Barr’s own Inspector General already concluded after a thorough review that the investigation was properly initiated.  And both Robert Mueller and a Republican-appointed federal judge have publicly flayed Barr for distorting the investigation and its findings.

Barr mis-stated the law.  Barr defended Trump’s firing of Intelligence Community Inspector General Michael Atkinson, who in August 2019 tried to forward to Congress a whistleblower complaint about Trump’s effort to shake down Ukraine.  At the time, Barr tried to prevent Atkinson from sending the complaint to Congress (and, not coincidentally, to protect Trump’s flank; ultimately, the complaint led to Trump’s impeachment).  Yet the law itself could hardly be clearer: when the IG finds that a complaint is credible and urgent, as Atkinson did, he “shall transmit” it to Congress.  In the Fox interview, Barr again publicly distorted the law, claiming Trump was right to fire Atkinson because Atkinson had violated the law.  (Funny how all of Barr’s fudging — all of it, always — comes out in Trump’s favor. Imagine that.)

Barr injected politics into Justice Department business.  Longstanding Justice Department policy counsels extreme caution about making any public move that might influence an approaching election.  It’s a simple proposition: prosecution and politics do not mix. Yet Barr might as well have held pom-poms as he led cheers for Trump who, you may have heard, is up for election in a few months.  Most cringeworthy, Barr gushed about Trump’s “really statesmanlike” approach to the Coronavirus crisis.  Apparently Barr considers it “really statesmanlike” for the President of the United States — at press conferences about a pandemic that has claimed tens of thousands of lives — to joke about fooling around with “models” (get it?), to whinge about reporters asking him “nasty” questions, and to lash out at his perceived political enemies.  FDR, Nelson Mandela, and Winston Churchill could only aspire to such  heights of statesmanship. 

Barr veered out of his lane as the nation’s top law enforcement officer.  Barr — a juris doctor, but not a medical one — offered up his decidedly non-expert opinion on whether it would soon be safe for the country to resume normal activity, criticizing certain precautionary measures as “draconian” and arguing that “the cure cannot be worse than the disease” (notably parroting one of Trump’s favorite refrains).  This one is basic: prosecutors are prosecutors. They are not, and should not purport to be, epidemiologists or emergency room doctors or public policymakers.

Barr’s performance on Fox was more of what we’ve seen from him in the past.  He is dishonest, he is manipulative, and he eagerly jumps to whatever position best serves Trump.  He defies the most basic principles by which the Justice Department expects its prosecutors to conduct themselves.

As a federal prosecutor, I worked under four attorneys general — three Republicans and one Democrat.  Although I was miles removed from the big boss on the org chart and only ever met the AGs for quick ceremonial handshakes, it mattered to me who was in charge.  I didn’t always like or agree with the policy agendas of the AGs under whom I worked. But I never questioned any of their core commitments to shooting straight, to playing by the rules, and to keeping criminal justice out of electoral politics.

Each of those prior AGs stood for and defended the principles underlying the Justice Manual.  Barr stands for little beyond whatever, in the moment, best serves his political allegiance to Trump.  That’s why, as he reminded us yet again this week, Barr remains dangerously unfit for the exalted office he holds.

Stay safe and stay informed,

Elie

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