We have a president in the White House, ill with COVID-19 and violating his own Centers for Disease Control and Prevention guidelines, who cares more about his public image and reelection campaign than safeguarding the health of his White House staff, Secret Service detail, and even donors. And we have an attorney general — the nation’s chief law enforcement officer who took an oath to “support, protect, and defend the Constitution of the United States” — actively directing the Department of Justice to serve whatever partisan end the president wants, rather than the American people or their Constitution.
As the election approaches, that partnership risks the very bedrock of our Republic.
This danger led three former American Bar Association presidents and six former presidents of state and local bar associations, along with eight former federal judges, to release an open letter Thursday to Department of Justice professionals and the American people. The letter, sponsored by Lawyers Defending American Democracy, which I lead, expresses the legal profession’s support for DOJ professionals who stand up to partisan actions by Attorney General William Barr related to the election.
The letter’s signatories include more than 700 lawyers from across the political spectrum and across the country.
Why the heightened concern?
I know the power of an attorney general’s office, having led the office in Massachusetts. The US Department of Justice is revered by those who have served there. It is a centerpiece of American jurisprudence. The Justice Department manual unequivocally states: “The rule of law depends upon the evenhanded administration of justice. The legal judgments of the Department of Justice must be impartial and insulated from political influence.”
But, as Thursday’s letter states, Barr has repeatedly defiled that honored principle. In response to Barr’s unprecedented intervention in DOJ cases against presidential allies Roger Stone and Michael Flynn earlier this year, more than 2,000 DOJ alumni signed public statements in protest. As stated in a July 22 professional disciplinary complaint against Barr, filed with the DC Bar by four of its former presidents, “Mr. Barr has consistently made decisions and taken action to serve the personal and political self-interests of President Donald Trump, rather than the interest of the United States.”
And Barr’s politicization of DOJ has only accelerated. In a radio interview on Sept. 14, he said, “As an attorney general, I’m not supposed to get into politics.” In the next breath, he spoke like a bare-knuckled Trump operative: “We [are] going to find ourselves irrevocably committed to the socialist path … if Trump loses this election. …”
Two days later, The New York Times reported that Barr had asked DOJ prosecutors to consider filing criminal charges against Seattle’s mayor, whom Trump recently attacked. A day later, Barr amplified a signature Trump campaign theme with a shocking statement, asserting that state stay-at-home measures to control the spread of the coronavirus constituted the “greatest intrusion on civil liberties” in history “other than slavery.”
So what might the AG do to damage American democracy? If mobilized to favor one candidate’s election success, the DOJ’s army of lawyers and agents could swing the outcome of a contested national vote against the people’s will. Just this week, investigative news outlet ProPublica reported that Barr has changed DOJ rules to allow for election interference.
Barr previously announced he is ready to abandon the longstanding DOJ tradition to avoid actions that might affect an election in its run-up period. His pressure on his hand-picked prosecutor, John Durham, to issue an irregular, partisan “report” close to the election is the reported cause for the September resignation of Durham’s chief aide, the highly regarded Nora Dannehy. (Barr has now surrendered on issuing a pre-election report.)
Still, Barr has echoed Trump’s threat to send law enforcement to polling places on Election Day — historically done to intimidate voters. Barr endorsing the president’s misinformation campaign that mail-in ballots aren’t secure raises warning signals about deploying DOJ lawyers in post-election litigation to undermine the vote. Though on Wednesday, Trump took to Twitter to urge his supporters in Arizona to request mail-in ballots, demonstrating he’s not at all concerned with voter fraud but with losing the election.
On Thursday, Barr’s continuing election interference actions led law community leaders to issue their statement backing dedicated DOJ professionals who sound the alarm against any politicization of DOJ in the coming weeks. Doing so would pose significant risks to their job security in an administration led by a vindictive chief executive. Still, that path of bravery has been led by the actions of the prosecutors who withdrew from the Flynn and Stone cases and by veteran Boston federal prosecutor James Herbert, who in a recent letter to the Globe wrote that the “unprecedented politicization of the office of the attorney general” has “brought shame upon the Department of Justice.”
Such courage upholds the finest traditions of America and its legal community. During the challenging period ahead, the willingness to sacrifice personal security for our democracy should inspire all Americans to follow these DOJ professionals' footsteps and take a nonviolent stand, if needed, to protect a free and fair election.
Scott Harshbarger is the former, two-term attorney general of Massachusetts, a former president of the National Association of Attorneys General, and the co-founder of Lawyers Defending American Democracy.