Powered by LawFuel – Statement of the New York City Bar Association
October 23, 2019
The United States Department of Justice (DOJ) has a unique role in safeguarding the rule of law under the Constitution. By failing to recuse himself from DOJ’s review of the Ukraine Matter, Attorney General William P. Barr has undermined that role. To help remedy that failure, the New York City Bar Association urges that Mr. Barr recuse himself from any ongoing or future review by DOJ of Ukraine-related issues in which Mr. Barr is allegedly involved. If he fails to do so, he should resign or, failing that, be subject to sanctions, including possible removal, by Congress.
The Office of the Attorney General
Since our democracy’s inception in 1789, its foundation has been the rule of law. Our leaders are selected and exercise their powers under law, beginning with our Constitution. Although our courts have primary responsibility for interpreting and applying our laws, both the Congress and the Executive – including the President – are subject to, and accountable under, the Constitution and the laws enacted thereunder. Because respect for law is central to our nation’s governance, the Attorney General of the United States bears a special responsibility to see that our laws are justly administered for the benefit of the American people. The Attorney General is, and must be seen as, the representative of the nation in advising the President and other federal officers and must demonstrate an unquestioned commitment to compliance with law by all who exercise the powers of government.
The modern DOJ was established by Congress in the Judiciary Act of 1870. Even before that, however, the office of the Attorney General was seen as having a uniquely important role in our federal system. As Attorney General Cushing observed in an 1854 opinion, the Attorney General is not simply “a counsel giving advice to the Government as his client, but a public officer, acting judicially, under all the solemn responsibilities of conscience and of legal obligation.” For the same reason that the Attorney General’s obligations are not owed solely to “the Government as his client,” they are not owed to the President in his individual capacity.
As noted by William Barr at the time of his nomination as Attorney General in 1991, the Attorney General “holds in trust the fair and impartial administration of justice. It is the attorney general’s responsibility to enforce the law evenhandedly and with integrity. The attorney general must ensure that the administration of justice, the enforcement of the law is above and away from politics. Nothing could be more destructive of our system of government, of the rule of law or the Department of Justice as an institution than any toleration of political interference with the enforcement of the law.”
Mr. Barr repeated these words at the time of his 2019 nomination for his current position as Attorney General and added that “the American people have to know that there are places in the government where the rule of law, not politics, holds sway and where they will be treated fairly based solely on the facts and the evenhanded application of the law. The Department of Justice must be that place.”
Mr. Barr’s Performance
Despite this commitment to the role of the Attorney General, Mr. Barr’s actions in office have failed in precisely the role that he described with eloquence when nominated. That failure has jeopardized the confidence that the public can reasonably have in the DOJ as the place “where the rule of law, not politics, holds sway.” His actions during his brief tenure in office have demonstrated to us that, contrary to the responsibilities of his office, he appears to view his primary obligation as loyalty to the President individually rather than to the nation. In serving the President, he has been willing to take or countenance actions that are contrary to the professional standards of the DOJ, his oath of office and his own obligations as an attorney.
Our concern has been brought to a head by Mr. Barr’s failure to recuse himself from the DOJ’s review—itself of uncertain propriety—of the ongoing “whistleblower” complaint with respect to the President’s efforts during his July 25, 2019 telephone call to request the Republic of Ukraine to investigate Mr. Trump’s allegations of Ukrainian interference in the 2016 U.S. elections and former Vice-President Biden and his son (the “Ukraine Matter”). As White House records made clear, the President told his Ukrainian counterpart, Volodymyr Zelensky, that Mr. Barr “would be in touch with him” to follow up on the President’s requests. The whistleblower found this telephone call to be of “urgent concern” because of the President’s apparent intermingling of U.S. foreign policy interests with his personal political interests in apparent violation of U.S. law.
Our focus here is not on the legality of the President’s actions or even on the merits of the whistleblower’s complaint, which the Intelligence Community’s Inspector General found to be “credible.” Nor do we take a position at this time on whether DOJ’s review of this action was justified.
We do, however, believe it was, and is, incumbent on the Attorney General to recuse himself from any participation, direct or indirect, in DOJ’s review of the whistleblower complaint. Regardless of whether Mr. Barr was in fact aware of or part of the President’s plans, either before, at the time of, or after the July 25, 2019 telephone call, it is clear that Mr. Barr was obligated to recuse himself from any involvement in DOJ’s review of either the whistleblower complaint or the substance of the President’s actions once the President offered Mr. Barr’s services to President Zelensky.
Federal regulations (28 CFR 45.2) for DOJ prosecutors require recusal whenever a lawyer “has a personal or political relationship with any person . . . substantially included in the conduct that is the subject of the investigation.” The DOJ Manual for U.S. Attorneys requires (section 3-2.170, 2.220) recusal of U.S. Attorneys and Assistant U.S. Attorneys where “a conflict of interest exists or there is an appearance of a conflict of interest or loss of impartiality.” Executive Branch ethics rules also provide (5 C.F.R. 2635.502) that recusal is appropriate if “a reasonable person with knowledge of the relevant facts would be likely to question the employee’s impartiality in the matter.”
Mr. Barr also was specifically mentioned by the President as a participant in the activity under investigation. Moreover, he appears to have participated in the DOJ review of the whistleblower’s complaint and its decision not to forward that complaint to Congress. That he failed to recuse himself from that review, and still has not yet (to our knowledge) recused himself from any ongoing DOJ review of other aspects of the Ukraine Matter, is a serious violation of his obligation to protect the DOJ from reasonable questions as to its impartiality in the investigation of the Ukraine Matter.
Recusal by the Attorney General is by no means rare. There have been at least 16 such recusals since 1989, including two previous recusals by Mr. Barr himself (one in 1993 during his first term as Attorney General and one in 2019 in connection with the Jeffrey Epstein review) and the 2017 recusal by Attorney General Sessions because of his potential role as a witness to Russian interference in the 2016 election. In addition, six other Attorneys General recused themselves during this period. The whistleblower complaint against the President and others (potentially involving Mr. Barr either as a witness or, conceivably, an accomplice) clearly rose to the levels that required recusal in these earlier investigations and should have led Mr. Barr to similar action in this instance.
A nation founded on a commitment to the rule of law cannot have an Attorney General who by his actions appears to undermine the bedrock principle on which our nation relies—that all federal officials, including the President, are subject to the rule of law. Mr. Barr’s failure to recuse himself from any involvement in the DOJ’s review of the whistleblower complaint and its disclosure to Congress undermined that principle. In order to limit the impact of his earlier failure to recuse, we call upon Mr. Barr to immediately recuse himself from all further DOJ investigations of Ukraine-related issues in which he is or was allegedly involved, including any continuing or future investigations into alleged Ukrainian involvement in the 2016 election, allegations relating to Mr. Biden or his family members or the President’s efforts to pursue those allegations in connection with U.S. assistance to Ukraine or to other nations.
We hope that Mr. Barr will act promptly to remedy, at least in part, his prior failure to recuse himself from the Ukraine Matter. If, however, he chooses not to do so, we believe he must resign his position as Attorney General. If he fails either to recuse himself or to resign, Mr. Barr should be subject to appropriate Congressional sanctions, including possible removal from office, in order to restore the Office of the Attorney General and the DOJ to their historic roles as defender of the law on behalf of the American people.
October 23, 2019
Roger Juan Maldonado
New York City Bar Association