Justice Department norms are under siege.
On Tuesday, four career prosecutors quit a case after Attorney General William Barr intervened to demand a lighter sentence for Roger Stone, a longtime associate of President Donald Trump. Then, on Friday, The New York Times reported that, early this month, Barr quietly “installed a phalanx of outside lawyers to re-examine national security cases with the possibility of overruling career prosecutors.” The cases include that of Michael Flynn, another Trump associate whose prosecution the president has long criticized.
Newsweek asked legal historian Jed Shugerman, an expert on the Justice Department, to put these controversies in historical context. We also asked him about four Supreme Court cases being argued next month that could actually further beef up presidential power.
In this interview, Shugerman faults Barr for refusing to use special counsels, and calls for structural reforms to ensure greater Justice Department independence in the future.
Barr’s intervention in Roger Stone’s case, he says, was “yet another breach of norms in a pattern with Trump and Barr.” He adds that Barr’s “aggressively partisan” speeches at Notre Dame and before the Federalist Society, which Barr has posted on the Justice Department website, are “remarkably not normal” and “affect the legitimacy of everything the attorney general does.”
As for Barr’s recent public complaint that Trump’s tweets “make it impossible for me to do my job,” Shugerman questions what Barr thinks his job is. “To do justice impartially? Or to keep protecting Trump behind the scenes without losing more Justice Department lawyers to rebuking resignations?”
A professor at Fordham Law School, Shugerman obtained his B.A. (1996), law degree (2002), and Ph.D. in history (2008) from Yale.
Newsweek: Let’s talk about Barr installing his own team of lawyers to reevaluate the way career prosecutors have handled politically sensitive cases. Have we seen this before in history, and what does it mean for the Justice Department and the country?
Jed Shugerman: On the one hand, this process of bringing in prosecutors from other offices is not unprecedented, and in fact, the DOJ should be doing this more often. Prosecutors generally have too much discretion and power. We need more supervision and transparency in an era of partisanship, mass incarceration and prosecutorial overreach.
But the risk here, especially with Barr’s extensive track record of bias and an agenda, is that this outside supervision is being cherry-picked to create a team of prosecutors under Barr’s supervision and Barr’s obvious partisan agenda.
This is precisely why we have independent special counsels. But this is also why the special counsel regulations are insufficient. It is time to pass legislation to re-enact a truly independent counsel and, even more importantly, to adopt structures of formal independencelike a long term of years, protections from removal, and a bipartisan commission structurefor parts of the DOJ like the Office of Legal Counsel, the Inspector General, and perhaps the DOJ overall.
How unusual was Barr’s intervention in Roger Stone’s case?
I think you’d have to say that the closest thing we have seen to this was President Nixon and the Saturday Night Massacre. That was more severe, because Nixon actually fired people to stop or obstruct an investigation. Trump and Barr could’ve shut down the Stone prosecution before the jury came back, and they didn’t do it.
On the other hand, it is yet another breach of norms in a pattern with Trump and Barr. And even though they didn’t shut down this investigation, we now have, reportedly and allegedly, somewhere between a half dozen to a dozen other criminal investigations that Barr may have shut down.
What are you referring to?
Connecting dots between what the Mueller Report said it was spinning off and other reported investigations.
For example, Michael Cohen pleads guilty to aiding and abetting an unindicted co-conspirator in campaign finance violations. It’s kind of surprising that you have the aider and abetter sitting in jail, and while we know the identity of the principal, that principal has still not been indicted. Why is that?
Isn’t the answer that he’s president and so we’re waiting till he leaves office?
That might be true. But we also had other alleged or potential co-conspirators in that case, who were mentioned in either the indictment or in Michael Cohen’s recordings of his calls with Trump.
Then there’s the investigation of whether the Trump inaugural committee misspent money from donations. A lot of strong evidence of felonies has led nowhere so far.
There was an unnamed foreign corporation that unsuccessfully fought a Mueller subpoena, behind closed doors, all the way to the Supreme Court last March. We’ve heard no more about it.
There’s also Erik Prince, being investigated for whether he lied to Congress and other matters.
There may be innocent explanations. But it’s a lot of investigations that seem to have just gone dark. So when you line up this Roger Stone interference, you have to put that in the larger context.
On Thursday, in an interview with ABC News, Barr ostensibly pushed back against Trump, saying he would not be “bullied or influenced by anybody.” What do you make of that?
Barr said Trump’s tweets “make it impossible for me to do my job.” That begs the question of what Barr thinks his job is. To be the nation’s top law enforcement official? To do justice impartially? Or to keep protecting Trump behind the scenes without losing more DOJ lawyers to resignations? His track record is a clue as to which he means. Yes, Trump’s tweets would make his partisan work more difficult.
Rudolph Giuliani is reportedly under investigation…
So that’s another great example. The Ukraine conspiracy was, among other things, a conspiracy to solicit a foreign campaign finance donation, in kind. There’s ample evidence that Giuliani was part of a campaign finance felony conspiracy.
But Barr’s Justice Department has already said the Ukraine affair couldn’t be prosecuted as a campaign finance felony, because the “value” of Ukraine’s announcing an investigation of Hunter Biden wasn’t quantifiable. Do you find that implausible?
This is exactly what the special counsel is for. William Barr is named in the whistleblower’s report, and he’s named repeatedly in the call summary of Trump’s call with [Ukrainian] President Zelensky. It raises an obvious appearance that it’s not just Giuliani who’s a co-conspirator in a campaign finance and bribery conspiracy, but William Barr who is a co-conspirator. It doesn’t mean he’s guilty, but it raises that appearance. That’s why you have a special counsel. Barr should not be involved at all.
Although Barr’s Justice Department decided that campaign finance charge was inappropriate, it never addressed a solicitation of bribery charge. What do you make of that?
The first step is just procedural. This is exactly when a special counsel needs to be involved.
The claim of federal extortion is a stretch. But bribery, honest services fraud, campaign finance violationsthat’s a closer question. Are there arguments against the interpretation of these acts as crimes? Sure. But Barr’s so infected with conflict of interest, it’s not credible. If a special counsel came up with those conclusions, at least you’d have some degree of credibility.
Trump has talked about firing the intelligence community inspector general who found the whistleblower’s complaint to be “credible” and “urgent.” He has the right to do that, right?
It’s important how to talk about this. Many people will say the president has absolute power to fire anyone he wants. That’s exaggerated.
The Constitution never mentions explicitly the removal power. It was a gap in the Constitution. There was this long debate during the first Congress in 1789. They decided that the Constitution implicitly gave the president a removal power.
But the Constitution also says that the president “shall take care that the laws are faithfully executed.” Removal for corrupt reasons is in bad faith. In a paper with my Fordham colleagues Andrew Kent and Ethan Leib, we argue that the president can have a removal power, but it can’t be used in bad faith and for corrupt reasons.
Has any court accepted that argument?
This is new research. We published that article a year ago.
So this notion we have today, that prosecutors are supposed to be independent of political influencehow far does that go back?
Let me put that differently. Prosecutors have to balance politics with professionalism.
Our U.S. attorneys are appointed by presidents and confirmed by the Senate and then offer to resign from one administration to the next. So that’s political. Our state prosecutors, in 46 out of our 50 states, run for popular votes as members of political parties. That is even more partisan and political.
But the flip side is that we also have norms of professionalism that are all the more important to insulate those prosecutors from partisanship.
When, historically, do we start seeing those norms set in?
We have a set of norms over the 20th century that evolve around conflicts of interest. For both judges and prosecutors, they’re supposed to recuse if there’s an appearance of a conflict of interest. It’s about preserving legitimacy in a political system.
Another major change was the creation of the Department of Justice in 1870. Up until then, you had an attorney general who was more or less counsel to the president, a little like White House counsel. But federal prosecutors bounced back and forth between being housed under the State Department and the Treasury Department. That’s because the main federal crimes at the time related to customs and import taxes and duties.
Department heads had their own sets of lawyers, and they’d hire cronies. There was a lot of corruption and patronage.
So in 1870 they tried to create this more lawyerly, professionalized Department of Justice.
Who was the worst attorney general in history?
In the 20th century, there were several. A. Mitchell Palmer, a Democrat, toward the end of Woodrow Wilson’s term, led the Palmer Raids. There was this post-World War I fear of immigrants and communism. Palmer was famous for these xenophobic, racist raids to roundup southern and eastern European immigrants.
The one that followed him, Harry Daugherty, a Republican under Warren Harding, oversaw a tremendous amount of corruption.
Then, under Democratic presidents, there were a lot of cronies. Then John F. Kennedy brought in Robert F. Kennedy, his brother, which was pretty stunning. But RFK later wound up moving the DOJ in the direction of civil rights and fighting organized crime, so some now consider him among the best.
Then you have Nixon. He had two attorneys general who were convicted of crimes. You have John Mitchell, who was directly involved with Watergate, and went to jail. And then Richard Kleindienst, who pled guilty to a misdemeanor for lying about political favors relating to regulation.
So there are a lot of bad AGs.
And where does Bill Barr fit in?
Given how Barr has intervened to minimize the significance of the Mueller Report, to arguably misrepresent the Mueller Report, and to perhaps aid and abet an international bribery conspiracy and campaign finance violation…
But wait, we don’t know that. He denies any involvement.
We don’t know. And we do have to be skeptical of what Lev Parnas says. But the whistleblower’s complaint and the call summary itself raise significant questions about Barr’s involvement.
California Senator Kamala Harris asked Barr if the president had suggested investigations to him, and he didn’t really answer. Do we know yet for sure?
When he comes back to testify in late March, I’m sure Democrats will ask questions in a precise way to give him less wiggle room about how the president has been involved.
Barr has posted some very combative speeches on the Justice Department website. In October he gave one at Notre Dame, attacking “secularists and their allies among the ‘progressives,'” and he gave a speech before the Federalist Society in November attacking “the Left,” meaning Democrats. Is that normal?
It’s remarkably not normal. The language he’s used was deliberately inflammatory. Those words affect the legitimacy of everything the attorney general does. When he attacks the Left and portrays the Left as being a threat to Americans, it then undermines …
He said, “In waging a scorched earth, no-holds-barred war of ‘Resistance’ against this Administration, it is the Left that is engaged in the systematic shredding of norms and the undermining of the rule of law.”
And there’s more than that. He said the language of “resistance” is the language of revolution.
Yes, he said: “‘Resistance’ is the language used to describe insurgency against rule imposed by an occupying military power. … They see themselves as engaged in a war to cripple, by any means necessary, a duly elected government.”
He frames the Left’s behavior in ways that, explicitly or implicitly, suggests that they’re involved with potential violence.
One has to ask why he would get up in front of the Federalist Society or at Notre Dame and give fire-and-brimstone, aggressively partisan speeches. I wonder if he wants to frame himself as both hero and martyr. It’s bizarre behavior. It’s so unprecedented that it seems to be deliberate and strategic. There is almost no precedent for an attorney general to give such partisan speeches.
Let’s turn to the Supreme Court. There are four cases being argued next month that could either expand or constrain presidential powers. The first, being heard March 3, is Seila Law v. The Consumer Financial Protection Bureau. It explores the degree to which Congress can insulate leaders of the independent agencies it creates within the executive branch from removal at will by the president.
So the compromise we’ve reached over the last 130-ish years is that Congress can constitutionally create executive branch agencies that are independentlike the Federal Reserve Board, Securities and Exchange Commission, the Federal Trade Commissionwith leaders who are protected from at-will removal by the president. It can only do so under certain circumstances, though.
Almost all of these independent agencies have been set up as commissions. Sometimes they are explicitly bipartisan. They usually have staggered terms that last longer than a presidency. No one person controls the mix of executive, quasi-legislative and quasi-judicial power that these agencies wield.
The Consumer Financial Protection Bureau was the brainchild of Elizabeth Warren. Just as we protect consumers from toaster ovens that blow up, she said, we also want to protect consumers from financial products that blow up. So early in the Obama administration, in the aftermath of the financial collapse, this watchdog group was created.
But instead of being led by a commission, it’s led by a single person whom the president can’t remove except for good cause.
This is the salient problem. That gives a lot of power to a single person who comes from a single party.
If I had to predict, I think the Supreme Court will issue a narrow ruling that says that this structurean independent agency with a single director, removable only for good causeis unconstitutional.
It doesn’t sound like the president would gain an enormous amount of power from such a ruling.
Not if it’s narrow, like that. But the Trump Department of Justicethe solicitor generalhas asked the Court to strike down the entire set of casesgoing back to Humphrey’s Executor v. United States in 1935that allow for independent agencies like the Federal Reserve to be insulated from at-will removal by the president, and to overturn them.
Even the commissions?
Even the commissions. So, to be clear, if that were to happen, it’s not like the Federal Reserve Board would disappear, but the job protections for board members would disappear.
So if the Court accepted the Trump Justice Department’s argument, a future president could fire all Federal Reserve Board members on day one of his presidency?
Yes. Or on day 1,000. So, as you’re entering into an election year and the president wants to lower interest rates to prop up the economy through the election, and they wouldn’t do it, he could fire them all, the Federal Reserve Board members, without any notice or cause.
But it’s more likely that this Court will narrowly decide the case, based on the single director.
The other three cases are subpoena cases, which will be heard March 31. In Trump v. Vance, Trump argues that he’s absolutely immune from a New York State grand jury subpoena seeking his tax returns in connection with a criminal inquiry. In Trump v. Mazars and Trump v. Deutsche Bank, he is challenging the breadth of Congressional oversight subpoenas issued to his accounting firm and banks, which seek financial records of him, his family, and his businesses.
In Trump v. Vance, there’s no constitutional argument that the president is above the law. There’s no letter by Alexander Hamilton or James Madison or some Federalist Paper that says the president can’t be investigated.
On the other hand, you have to recognize the practical problem. State criminal investigations are a distraction and can be used for partisan purposes. If the shoe were on the other foot, and we had President Obama, there might be investigations about birth certificates, and state prosecutors demanding birth certificates, and potentially indictments for fraud about birth certificates and so on.
I think the Trump lawyers were right to say that federal courts must have jurisdiction to review state criminal subpoenas to ensure that a state prosecutor isn’t abusing his power. On the other hand, once federal courts play that role, then they can examine the prosecutor’s motives and how intrusive the requests are, to make sure it’s not a fishing expedition and not harassment. Then they can decide whether, in this case, it’s relevant for the grand jury to look at the tax returns because of specific questions raised and allegations.
Similarly, many people assume Congress automatically had the right to demand Trump’s financial records. But I think that’s myopic. One could imagine all kinds of scenarios where a bad-faith Congress says, “We have power to request financial records, and it’s automatic, and the people we want them from are Elizabeth Warren and Amy Klobuchar and Bernie Sanders.” Or, on the flip side, from Marco Rubio and Jeb Bush, and so on.
So we have to be careful about partisan, bad-faith subpoenas.
Justice Department norms are under siege.