Tanzina Vega: The Department of Justice has undergone a radical transformation in the Trump era. Over the past four years, President Trump has repeatedly blurred the lines between the Department of Justice and the White House, from his meddling into investigations in Russia's election interference to clashing with the department on the travel ban for Muslim majority countries to fast-tracking federal executions and more. The President has also clashed publicly with former FBI Director James Comey, current FBI Director Christopher Wray, former Attorney General Jeff Sessions, and Special Counsel Robert Mueller.
Now, President Trump is clashing with someone who's been a true loyalist to Trump's political goals, Attorney General Bill Barr. Barr is at odds with the president after stating that the 2020 presidential election showed no evidence of widespread voter fraud. With just 44 days left in the Trump administration loyalists to President Trump are going after Barr and The New York Times is reporting that Barr is considering resigning before the end of his term.
I'm Tanzina Vega, and we start the week on The Takeaway with a deep dive into the Trump Department of Justice and Bill Barr's legacy. I'm joined now by Stuart Gerson a partner at Epstein Becker Green and former Assistant Attorney General under President George H.W. Bush and former Acting Attorney General for the first four months of the Clinton administration. Stuart, great to have you with us.
Stuart Gerson: Enjoy being on.
Tanzina: Katie Benner is a reporter covering the Justice Department for The New York Times. Katie, welcome back.
Katie Benner: Thanks for having me.
Tanzina: Stuart, based on what we've seen this week, how would you categorize the relationship between Barr and Trump?
Stuart: You need to understand something. Even in your little trailer at the beginning, it views Barr as something of a tool of the President. I think you need to look at it the other way around. President Trump has a Ptolemaic view of the universe. He doesn't see much besides himself, but he's not very intelligent. He has no philosophy, no ideas, but he benefits from having somebody who does, who acts in a way consistent with what Trump would like to accomplish.
Bill Barr is vastly more intelligent than President Trump. He has a philosophy of view of the way things are, believes in an almost a natural law, hierarchical, top-down authoritarian view of government to protect the people who have gone morally astray. He's given speeches to this effect. He's able to advance that position, which has always been his position, because it's advantageous to Donald Trump. In some sense, Trump is the tail, and Barr is the dog, and that's why I think Katie's very useful reporting over the weekend makes sense.
Tanzina: Katie, let's talk about that because The Times is reporting that bill Barr could step down before the official end of the Trump administration. Where does that stand?
Katie: That's correct. I'm told that his thinking on it is changing pretty much day to day and hour to hour. At the end of the day, he really feels like there is not much left for him to do at the Department. He's come in to do what he felt was necessary. When he would say writing the relationship between the White House and the Justice Department was a very important priority, and really looking into what he thought of as an abuse of power by the FBI and investigating.
Donald Trump was another one of his goals, which he did do. Now, as Stuart says, some people interpreted this as the president pressuring Bill Barr to take these actions. In fact, I agree with Stuart, I think that Barr himself thought these things were necessary and that now that he's done them, there's really not much reason for him to continue to stay, given that Trump has lost the election.
Tanzina: Stuart, you worked with Bill Barr during the President George H.W. Bush administration. How did what you're seeing under this administration compare to what you saw then?
Stuart: The difference is the president. George H.W. Bush was one of the most experienced people ever to assume the presidency. He had a view of the way government worked, the relationship between the government and the people, and where the people who work for him fit into things. The broad agenda that Bill Barr has been able to advance under President Trump was not a viable agenda under President Bush, and that's the difference.
Barr has not changed his view of things, and understand that Barr, in many ways, is a doctrinaire conservative, indeed as am I. We probably agree on most things in the world except the relationship between the government and the people and what democracy means and what separation of powers means in order to keep us free.
Tanzina: Stuart, would you say in that sense that Attorney General Barr was more political under President Trump?
Stuart: I don't know what you mean by "political." I think he is advancing an agenda that he has and using whatever means are available.
Tanzina: What I mean by "political," I guess is, when his response to the Mueller investigation, which found that there were some dealings between President Trump and Russia and that Bill Barr essentially took President Trump's side, and many folks said that that was being political, and there were other examples of that.
Stuart: You've anticipated what I was going to get to, which is, the Mueller report is a good example. You'll recall that Barr furnished what many of us call an "application for employment" with, I believe, a 19-page memorandum gratuitously submitted to the administration denouncing the Mueller investigation. You can view it as political in the sense that Barr quibbled his way through the Mueller report, misrepresenting key aspects of what the Mueller report did and did not do.
Also, you can look at it in the philosophical sense that Barr believes that, in a sense, the president can do no wrong since he's the head of the executive branch. There's nothing in the executive branch that can be brought to bear on him while he's the president. If you want to view that as political, yes, indeed, that's political. If you want to view it as something else, that's fine too. The net of it is, though, that the public was misled, and that the rule of law was diminished.
Tanzina: Katie, based on what Stuart is saying right there, were there other unprecedented or similarly political, if you will, "moves" by Bill Barr, as he served as attorney general that might stand out, that we're different from previous attorney general?
Katie: I think certainly at least twice he's intervened in different cases that would have benefited the president's allies, so reducing the sentencing recommendation for Roger Stone, President Trump's longtime friend, and then asking the courts to please withdraw the prosecution against Michael Flynn, President Trump's first National Security Advisor, these are things that we know about, and that the Department inside the Department was really roiled when they happened.
I think it's very unusual to see people inside the Department criticize the attorney general, that is something that very rarely happens, especially to reporters, and it's happening all the time now. Even more unusual, we saw career prosecutors write letters to the editor in Seattle and Boston and San Diego and here in Washington, D.C., saying that they feel that the attorney general has run the department in a way that's irresponsible, and in a way that undermines one of the things that felt was the most important about working for the Justice Department, which is the independence from the White House that allowed to credibly say, "We prosecute everybody fairly without fear or favor."
Now, I think it's a little bit naive to say that everybody's always believed that. I think when you look at the long history of criminal justice in United States, certainly there are people, especially in some African-American communities, who would say they've never really felt that that was true, but it's a goal, and it's something that we strive toward, is what people inside the Department would say and that by having an attorney general who sits at the top and takes actions that seemingly obliterate that, in the favor of the president, it sends a message that now we really, really do not have that kind of even-handed sense of justice, nor does it matter.
Tanzina: Stuart, to Katie's point. There are many Americans who say, particularly Americans of color, Black Americans, poor Americans, who would say that the Justice Department really doesn't have their interests at heart. At least in terms of the way we think about the Justice Department, has that been altered under President Bill Barr, I'm sorry, under Attorney General Bill Barr in the Trump administration?
Stuart: I think it has, and what Katie describes, in my view, is quite accurate, which is, there was always an understanding, particularly in the United States Attorney's offices, like the Southern District of New York and the District of Columbia, and elsewhere, the major offices that there would be independence, and that people with long experienced, career people would be able to make judgments that would be backed up by their superiors, not as a rubber stamp, but dispassionately from any political interest that a given administration might have. This is a departure from that. Katie is absolutely right about that.
There are other circumstances. Attorney General getting involved in what was essentially a military operation at Lafayette Square, again, consistent with Barr's view about what he thinks is the universal power of the executive as commander-in-chief and head of the executive branch to overcome barriers by the other two branches, the sentencings that Katie noted are a good example of that, but the legislature as well. I'm one of the lead counsel in one of the big border wall cases, and there's a place where the president, with the support of the attorney general, invaded legislative appropriations powers, the powers of the purse. Ultimately, I think the Biden administration is going to move all of that. We have this matter before the Supreme court and we're arguing conservative principles against what styles itself as a conservative administration with the attorney general support.
Tanzina: Katie, mentioning the President-elect Joe Biden taking office, as Stuart just mentioned, do we have a sense for what that Justice Department might look like under a Biden presidency? Do we know who might be at the top right now?
Katie: Speaking with who- we will start with who might be at the top. I think that we're looking at almost a runoff between Sally Yates, the former Deputy Attorney General and Doug Jones, former Senator. What we're seeing is a lot of support for Yates. We know that Joe Biden really, really likes her, but because of her involvement in the early days of the Russia investigation and the investigation into Michael Flynn, there is a fear that Republicans might be hesitant to confirm her, or might want to turn her into a confirmation fight. That said, she's incredibly qualified.
She has really, really strong national security chops. She has a former prosecutor and she has a really deep commitment to civil rights issues as well. There are a lot of people who are still quietly supporting her. Doug Jones, another person who Joe Biden just very personally like, since we can see from office cabinet picks that matters a lot. Again, a good civil rights record, but there is a hesitance to say, do we want a cabinet that seems to be dominated by white men, which is what we're seeing with several of the pics?
There have been exceptions, for example, with HHS and DHS, but Justice Department is so unusual right now, the way that it has been transformed under the Trump administration seems to some people to be so extreme, especially on questions of civil rights, on questions of who to protect in this country. There was a really strong shift away from protecting the rights of minorities, protecting the rights of LBGTQ citizens to protecting the rights of religious groups of Christians who don't want to serve gay, lesbian patrons for example, moving away, trying to strike down affirmative action.
The really strong support of police rather than protesters in this long summer and fall and now winter of these cries for social justice around the treatment of African-Americans is a white man at the top of the Justice Department, the person to send the message that the Biden administration will want to send, which is, ''We are going to reverse those things," as priorities and as positions, and broadly speaking, we want to reverse those things.
Tanzina: Stuart, what do you say are some of the challenges that face the Biden administration given what the Trump administration and Barr's legacy has been so far?
Stuart: Katie talked about a number of potential initiatives. I certainly would concur with her on many of them, if not most of them, but the question is, how to bring it about? I'm an old guy. I was in the Justice Department during Watergate, and in fact, litigated the very first Watergate-related case, before the special prosecutor was appointed.
I remember, after the Saturday night massacre, the disarray that there was in the Justice Department and, it, in many ways, bears comparability to what we're seeing today. The attorney general choice by president Ford then became very important. The person who came in was Ed Levi, one of the greatest attorney generals of all time. He was able to create reforms within the building and within the Department of Justice to a transparency, restore integrity. We need that now, so that, the idea of reversing, different things that the Trump administration might have done or might be perceived as doing is on the agenda, but you have to get it done.
You need to have the building behind you if you're the attorney general. I know that from personal experience. Getting the building behind you means using the resources apolitically of the highly qualified, dedicated people that pledged their careers to the Department of Justice as the servants of the people, not of a particular president.
Tanzina: Stuart, to that point. What does the Justice Department look like internally these days? We know that there have been so many departments across Washington that have been gutted or where positions haven't been filled, or career service folk have left. What's the feeling inside the DOJ today? Do we know?
Stuart: Katie talked earlier about the fact that there are the sorts of people who don't usually talk to reporters about the people to whom they report, who are talking to her and her colleagues, throughout the media. You know there's a great deal of discontent. I hear it also, of course. I still have a lot of friends and associates who are in or affiliated with the Department, or who have left it in recent times.
I'm one of the founders of a group called "Checks and balances," which are all right of center people, most of whom have been in the Justice Department at one time or another and who have become a sounding board for a lot of these complaints. There are important positions that are unfilled or being filled by acting people, and that's true throughout the government.
There are some real issues involving preparedness for national security. One of the most damaging things that has occurred in the Barr administration was his given declassification authority which utterly undermines legitimate interests of the intelligence community and really threatens the integrity, not of people in the Justice Department, but of analysts, throughout the IC. These are things that need to be reversed and that the right reporting relationships and responsibilities need to be redefined, irrespective of the fact that there are programs to change, positions in court to alter, and the like of that, revivifying the civil rights division, which was mentioned earlier.
There are a bunch of things that need to be done, but you need to have the organization and the leadership and the dedication to principle that has been eroded in this administration.
There's a very helpful report that listeners might want to download from the University of Pennsylvania's Center for Ethics and the Rule of Law, which over 250 some odd pages, discusses many of these issues.
We know that people are reading our report and that one hopes that the Biden administration can do these structural things to enable not just the effective establishment of new programs or the reversal of bad old ones, but the respect of the people that durability of the law, that people will respect the law and act according to it.
Tanzina: Speaking of respect for the law, Katie, I want to get your thoughts on this, because one thing that outgoing presidents do is often use their pardon power. We've seen a lot of interest in President Trump in terms of pardoning, for example, retired General Michael Flynn, who was Trump's National Security Advisor. There is talk of preemptive presidential pardons for Trump's children and Rudy Giuliani. There's even been talk of reports of potential bribery, including the presidential pardon process. Where does all of that stand? We've got about two minutes to go.
Katie: Sure, you're right that there is a lot of interest in pardons right now, it is within Donald Trump's powers to pardon people. He is not trying to use certain powers that are not usually given to the president. I think people would argue that he's trying to use them a little bit unusually, and that because of the way he's run the White House, there was a sense, early on in his administration, the case that you referenced, that people felt that if they donated to the Republican Party or donated to something that Donald Trump cared about,
they could get a part in.
As we know, that would be illegal, but certainly that is the sort of atmosphere that, I think, people would argue that the president has created around his use of powers generally, and his use of the pardon power specifically. While he does have the power to pardon, I think that what we will also see, since that he is going to use that power in ways that will cause a human cry and be considered very unusual, if not crossing an ethical line, because that is really in keeping with his presidency overall.
Tanzina: Stuart, does that sound about right to you?
Stuart: The president has the power, and he has the ability to abuse that power. That will be part of his very unfortunate legacy with regard to the administration of justice and the rule of law. He has crossed the line with respect to both the judiciary and the legislature, and he's acted in an arbitrary, almost dictatorial way. That's what you'll read about.
Tanzina: There are still a number of Trump associates, Stuart, who are either facing or could face federal charges. Could they be pardoned by the president in the coming days and weeks and completely not have to face those charges?
Stuart: It is possible. The president's pardon power is very broad. We've seen that, not just in this administration, but in previous administrations, including Obama and Clinton. So, it's really hard to know what the extent of it is. The Flynn pardon is already subject to criticism as pertaining to acts that have not yet taken place, that he's being pardoned infinitely into the future. There's a question as to whether that would be a legitimate thing to do.
In terms of matters that are known, that involve Trump associates, children, family, and the like of that, the president likely does have the power to pardon them. The question with regard to that, and even the president hypothetical pardoning of himself is, how do you test it? It would take a prosecutorial act in a subsequent administration to occur, and then the subject individual challenging that pardon.
I don't know what this president is going to do. Indeed he might not even know what he's going to do from from minute to minute, but how it would be tested and adjudicated, it's hard to know. What this president does with regard to the pardon, particularly with regard to the hypothetical self-pardon, is very different from how the framers of the Constitution understood the multi-100-year history of pardons in English law. It was designed to protect an active president, and not to extend to things in the far distant future that were of an unknown nature, particularly with regard to a self-pardon.
Tanzina: That's really one of the questions I have too, is that the president himself is facing what could be criminal charges for so many things when he gets out of office. Would the pardon extend to that as well? He's in the crosshairs, in many ways, of the New York State Attorney General for a while, among others.
Stuart: Remember now that the president's pardon power extends only to matters of federal law, so that whatever Letitia James is doing, as the Attorney General of New York, or Cy Vance is doing, as the District Attorney for Manhattan, have nothing to do with the pardon power, and those investigations with regard to taxes, the valuation of real estate properties and like that, those can continue to whatever and that they take, as long as those individuals who are leading those offices stay in office. The president can't protect himself from that, and it's only federal matters.
Now, I would expect that as was the case with President Nixon, that it would not be the intention of a soon-to-be President Biden to seek the prosecution of his predecessor. It looks too much like what happens in banana republics. I think that that's unlikely, but with respect to others who might have committed cognizable crimes, we just don't know. If people were injured, financially or otherwise, by some of this conduct, it may well be that we're going to see cases. I tend to doubt it, but it's entirely possible, but the thing to keep in mind, given your question, is that none of this will protect the president from state-based or municipal-based investigations or prosecution.
Tanzina: We'll be paying close attention. Katie Benner is the reporter covering the Justice Department for The New York Times, and Stuart Gerson is former Assistant Attorney General under President George H.W. Bush and former Acting Attorney General for the Clinton administration. Stuart, Katie, thanks so much for joining us.
Katie: Thank you.
Stuart: Thank you.
New York Public Radio transcripts are created on a rush deadline, often by contractors. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of New York Public Radio’s programming is the audio record.