This is how an authoritarian works to subvert justice.
By Paul Rosenzweig
This article originally appeared in The Atlantic on June 21, 2020.
Late Friday evening, Attorney General Bill Barr claimed that the United States attorney for the Southern District of New York had resigned, and announced his replacement on an interim basis by the current U.S. attorney for New Jersey—a man who served as Chris Christie’s defense attorney in the Bridgegate scandal and who seems ill-equipped to handle the Manhattan caseload.
That was a lie. A few hours later, the SDNY attorney, Geoffrey Berman, issued a public statement saying that he had not resigned, had no intention of doing so, and was staying on the job. Then, Saturday, Barr sent Berman a letter telling him that Barr had asked President Donald Trump to fire Berman—and that Trump had done so. That letter, too, may have been a lie. Shortly after it was published, Trump said that he was “not involved” in the Berman firing and that it was up to Barr. In something of a bind, Barr is allowing the SDNY deputy, an experienced prosecutor, to step into Berman’s role until the Senate can confirm a permanent replacement; Trump intends to nominate Jay Clayton, the chairman of the Securities and Exchange Commission.
One supposes that, eventually, Barr and Trump will get their stories straightened out. And Berman has now left, so the main goal has been achieved.
But the real question is: Why? Why replace Berman now, just five months before the election?
The answer lies in the firing earlier this year of Jessie Liu, the former U.S. Attorney for the District of Columbia. By firing Liu, Barr and his team took control of the Washington, D.C., U.S. attorney’s office. Until they did that, the office was following up on various indictments and charges that had been brought against Trump’s associates. Once they seized control, Barr’s team intervened to short-circuit that process. They interceded in the sentencing of Roger Stone, and more recently, they have made an effort to dismiss the case against Michael Flynn. In both circumstances, career prosecutors were so outraged that they withdrew from the case, and some resigned from the Department of Justice altogether.
This is how an authoritarian works to subvert justice. He purports to uphold the forms of justice (in this case, the formal rule that the attorney general and the president exercise hierarchical control over the U.S. attorneys) while undermining the substance of justice. In the Flynn case, for example, Barr has asserted an absolute, unreviewable authority to bring and dismiss cases at will—a power that, even if legally well founded, is a subversion of justice when misused.
That may be the game plan for New York as well. Barr may want Berman out so that he can use his newly enhanced control to dismiss or short-circuit all of the pending cases in Manhattan that implicate Trump or his associates.
We know those are many. We know that Trump’s various organizations, including his inauguration committee, are under investigation. We know that Trump attorney Rudy Giuliani is under investigation. We know that Trump’s bank, Deutsche Bank, is under investigation.
Since taking office, Barr has repeatedly intervened to protect Trump. In addition to the behavior already mentioned, we might identify his attempt to protect Trump’s tax records from disclosure, or the way he distorted the true contents of the Mueller report. Barr’s actions are more like those of a consigliere to Don Trump than those of an attorney general of the United States, working for the American people.
Even that characterization is too kind to Barr. The attorney general’s apparent goal is to turn the Department of Justice into an arm of the president’s personal interests. He seems to have no regard for the department’s independence, and is doing long-term damage to the fabric of American justice.
Given the authoritarian structure of what Barr is attempting to achieve—preserving the forms of liberty while destroying their substantive content—we might call this the Orbánification of the American system of governance. Like strongmen everywhere, Barr (and Trump) seek to exalt their interests over those of the nation. And this latest effort—seemingly to short-circuit the ongoing criminal investigation of Trump’s affiliates and associates—is only the most recent evidence. As he continues down this road, Barr is doing his best to make John Mitchell, President Richard Nixon’s disgraced attorney general, look like a man of principle.
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