The latest casualty of Bill Barr’s 16-month rampage through the Justice Department is Geoffrey Berman, who until Saturday had been the U.S. Attorney for the Southern District of New York. That office has been investigating Trump’s personal lawyer, Rudy Giuliani, among other cases of interest to the president.
On Friday, Barr tried to bamboozle the country (and, apparently, bully Berman himself) into believing that Berman had resigned his post. Berman’s day-long standoff with Barr, in which he refused to resign, included a public letter that was an S.O.S. to anyone paying attention, as he assured the public that the “office’s important cases would continue unimpeded”—suggesting that Barr was attempting to obstruct justice by removing him, which Barr ultimately succeeded in doing.
The problem is that even if Barr is attempting to obstruct justice, the current legal landscape essentially gives him a vacuum in which to do so unimpeded—unless he is impeached.
ADVERTISEMENT
Normally, any action that raises the possibility of the commission of a federal crime would provide a legal justification for opening a criminal investigation. We saw this happen when Donald Trump fired James Comey—the FBI immediately opened a case into whether the president obstructed justice, an inquiry that was later picked up by Special Counsel Robert Mueller. However, because the case involved a political official and a sensitive matter (to say the least), it was approved by the highest levels of the Justice Department—in this case then-Deputy Attorney General Rod Rosenstein since Attorney General Jeff Sessions had recused himself from all matters pertaining to Trump and Russia. Rosenstein, for all his flaws, at least had the good judgment to understand that he had just entered the biggest cluster of his professional career and the temperament to want to get out of the crossfires.
You can see the dead end that arises when the subject of the investigation is the attorney general himself. If, say, the Southern District of New York—now under the direction of former Deputy U.S. Attorney Audrey Strauss—decided to open an obstruction investigation into whether Barr was trying to remove Berman in order to stymie or interfere with its sensitive cases involving Trump’s associates or other interests, such an investigation would ultimately need to be approved by… the attorney general.
Unlike Sessions, Barr has not recused himself from any matter involving Trump, nor is he likely to do so. And Barr’s own legal view, as he detailed in an unsolicited memo to the Justice Department before his appointment, is that it is unconstitutional to inquire into the motives of any facially valid actions by the president, including the firing one of his officers. Since Barr states that he was acting at the behest of the president in removing Berman, the same reasoning would apply—and as a result he would claim that there is no legal basis for an obstruction of justice investigation into the firing.
Barr’s refusal to recuse also precludes the second avenue to hold Barr accountable: the appointment of a special counsel. The Barr-Berman fiasco echoes in many ways the facts leading up to the firing of James Comey. Just as with Comey, Trump has fired a prosecutor who has uncovered evidence of his own misconduct (remember Individual-1 from the illegal campaign contribution stemming from Stormy Daniels?) and who is now reportedly investigating conduct by his personal attorney who is potentially soliciting foreign election assistance on his behalf. And just like Rosenstein in the Comey firing, Barr is, by his conflicting statement and public lies, a self-interested party.
The special counsel regulations contemplate the appointment of a special counsel when an investigation into a matter would present a conflict of interest by the Justice Department. However, those same regulations place the determination of whether this situation exists in the hands of… the attorney general. Barr has demonstrated, by his refusal to recuse from any matter involving the president—including the Ukraine scandal, where his own Office of Legal Counsel was responsible for preventing the whistleblower complaint from reaching Congress—that he intends to stay in charge of his department, regardless of his conflicts. As noted above, his legal philosophy would also support his belief that there is nothing to investigate in the first place. In short, the special counsel regulations clearly don’t contemplate how to get an independent prosecutor to investigate a potentially corrupt attorney general—because a corrupt attorney general would never invoke the regulations to investigate himself.
What about the Justice Department’s inspector general? Although not itself a criminal investigation, a probe into the attorney general’s actions by an independent IG could be the third-best option—since those findings would become public and could then lead to pressure to resign or the appointment of a special counsel. Don’t hold your breath. In December 2019, the current DOJ IG, Michael Horowitz, testified that he was unable to act on requests from Congress to investigate Barr’s (mis)handling of the Mueller Report because Section 8E of the Inspector General Act of 1978 “carves out from authority the ability to look at misconduct by department lawyers from the line lawyer all the way to the top and the Attorney General.” That section places the IG under “the authority, direction, and control” of—that’s right—the attorney general, and gives the AG the ability to prohibit investigations which may require access to or disclosure of ongoing investigations, an issue that would surely arise in an investigation asking whether the AG was trying to stymie current cases in the Southern District. (It’s worth noting that former DOJ IG Michael Bromowich has suggested on Twitter that Horowitz is not under any such limitation to investigate Barr—though that point, if true, is of no utility if Horowitz is acting under the impression that he is.)
We’re now on *checks notes* plan D. This would involve the House Judiciary Committee conducting its own oversight investigation into Barr’s conduct and issuing him a subpoena to testify. As we know, however, this administration is fond of ignoring subpoenas, and there is no reason to believe that Barr would comply with one. The remedy for that is a citation for criminal contempt. But enforcing a congressional criminal contempt citation is ultimately referred to the D.C. U.S. Attorney’s office, the same office now headed by Timothy Shea, who is a close associate of… the attorney general. In fact, Shea was put in place last January after Barr executed a Berman-like move with the former U.S. Attorney for D.C., Jessie Liu, whose office had prosecuted Trump’s campaign associate Roger Stone. Shea’s office has since moved to drop the charges that came out of the special counsel’s investigation against Trump’s former national security adviser, Michael Flynn. Since the executive branch has always reserved the right to determine whether criminal contempt citations issued by Congress should be enforced, it’s safe to assume that this route won’t go anywhere, either.
That leaves just one last option: impeachment. House Judiciary Committee Chairman Jerry Nadler has stated that pursuing impeachment against Barr would be a “waste of time” because the Senate would never vote to remove him. That may be true. It may also seem pointless to begin impeachment with an election only five months away. But that approach misses the point, and the urgency. Barr’s actions have the potential to conceal attempts by the president to corrupt the very electoral processes we are relying on to hold him accountable—and it is in Barr’s interest to assist Trump in this effort, since his own political survival (and avoidance of accountability) depends on it.
Put another way, Barr has the potential to inflict more damage on the U.S. than even the president because he can use the levers of justice to stonewall investigations, bury evidence, and provide a veneer of legality to illegal acts. Even if he isn’t ultimately removed, an impeachment hearing brings some measure of accountability to Barr, by making public the myriad ways he has subverted the administration of justice by acting as Trump’s legal goon. And because impeachment invokes a plenary and explicit constitutional authority, elevating its power beyond mere oversight, Barr’s refusal to comply with the House’s subpoenas in this process could themselves become impeachable acts of obstruction, as they did in the articles of impeachment against President Trump.
Most importantly, impeachment is simply the right thing to do. Impeachment is an exercise of Congress’ constitutional power to check the abuse of power by the executive. It declares for the historical record that there are actions by public officials which cannot be tolerated in a democracy that believes in the rule of law, and sets an important precedent for the future. As Rep. Adam Schiff stated in his closing statement in the Senate’s impeachment trial for President Trump, “No constitution can protect us if right doesn’t matter anymore.” Right matters. It’s time to impeach Bill Barr.
