Good government requires transparency. It’s why we have a free press, enshrined in the First Amendment. It’s why Supreme Court Justice Louis Brandeis once wrote, “Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.”
And it’s why U.S. District Judge Amy Berman Jackson’s 35-page opinion in Citizens for Responsibility and Ethics in Washington v. U.S. Department of Justice is so important. In a move that drew only passing attention at the time, CREW filed a Freedom of Information Act request in April 2019 seeking guidance documents the DOJ’s Office of Legal Counsel provided to newly confirmed Attorney General William Barr in connection with Robert Mueller’s investigation. CREW filed its request after Barr told Congress he’d concluded, in consultation with OLC and other DOJ lawyers, that then-President Donald Trump should not be indicted.
The problem here is that the former president wasn't looking for honesty and public service from his appointees, but for loyalty.
Accountability for a Cabinet secretary should come at the hands of the president who appoints them: losing their position. The problem here is that the former president wasn't looking for honesty and public service from his appointees, but for loyalty. He expected Barr to help him stay in power. That’s the role Barr played throughout his tenure as attorney general, and that’s why it’s important to learn the truth. Jackson has opened the door to that possibility.
The FOIA request ended up in litigation. DOJ and CREW both filed briefs in October 2020, while Barr was still attorney general. This week, Jackson ordered the DOJ to turn over a document to CREW that remained in dispute. And from her opinion, the document sounds like a zinger.
Perhaps that’s why DOJ officials went to such lengths to protect it from disclosure. Berman’s sharp rebuke echoed that of U.S. District Judge Reggie Walton, who had previously criticized Barr for a “lack of candor” concerning his handling of the Mueller report. But Jackson’s frustration is perhaps more telling: She clearly believes there was misconduct serious enough that even with Barr out of office, it needed to be addressed in the strongest terms.
Jackson was highly critical of the government’s position that the memo fell under deliberative privilege. This privilege protects the integrity of legal advice provided to the attorney general. But to be protected as part of the deliberative process, advice must be offered before the attorney general makes a decision. Jackson concluded that wasn’t the case here, suggesting the memo was more post-decision strategy than pre-decision legal counsel. Similarly, she rejected claims the memo was protected by attorney-client privilege.
Importantly, Jackson’s opinion does not reveal the memo’s contents, so we still don’t know precisely what happened. While she questioned Barr’s conduct, it may very well have been technically permissible. On the other hand, the memo could suggest there was professional or even criminal misconduct.
We already know Barr’s characterization of the evidence and findings contained in the Mueller report when he spoke to the American people — and later to Congress — was deceptive. In fact, Jackson noted that Barr “hardly had time to skim, much less, study closely” Mueller’s hundreds of pages of investigative work before “summarizing” it for Congress. Meanwhile, Barr’s claim that the evidence didn’t support indicting Trump — even as he withheld the report from the public for several weeks — allowed Trump to proclaim he was fully exonerated. All of which is to say, it would be fair to presume the memo that Jackson has ordered the DOJ to disclose portrays Barr in a less than favorable light.
We already know Barr’s characterization of the evidence and findings contained in the Mueller report when he spoke to the American people — and later to Congress — was deceptive.
The DOJ is still free to appeal the judge’s order. But in this instance, they should permit the memo to become public. Sunlight is the best approach. Barr is no longer a DOJ employee and Trump is no longer president, but accountability is essential to rebuilding confidence in our justice system and our democratic institutions.
There are four possibilities for holding an attorney general accountable if evidence suggests he did abuse his office to protect a president.
The first possibility is referring the matter to the DOJ’s Office of Professional Responsibility, which investigates allegations of professional misconduct made against DOJ lawyers, including political appointees. The OPR can review alleged misconduct during an investigation, prosecution or in the provision of legal advice, which seems like a precise fit with Jackson’s concerns. OPR has the ability to investigate the behavior of department attorneys, including attorneys general, and could determine whether Barr’s conduct warrants some type of sanction.
While OPR’s range of punishment is limited to employment actions, and firing Barr would be meaningless at this point, it can also recommend misconduct be referred to a state bar association for disciplinary action or that evidence of potential criminal conduct be referred to a division with prosecutive authority.
OPR is frequently criticized. It falls under the authority of the attorney general, meaning any decision would have to be signed off by — at minimum — the deputy attorney general. OPR’s conclusions typically remain unpublicized because of privacy rules, but they can be made public in cases of national interest. Such was the case in the recent investigation into former Labor Secretary Alex Acosta, whose sweetheart plea deal with Jeffrey Epstein when Acosta was a U.S. attorney in southern Florida drew outrage. OPR’s findings in that case are published on its website. Something similar could be done if there was an OPR-led Barr investigation.
The second option involves the DOJ’s inspector general, which has more independence. The IG often provides notice to, and consults with, DOJ leadership on investigations, but it’s ultimately free to conduct investigations and issue its own public reports. The IG's jurisdiction is more limited than OPR’s; it cannot investigate attorneys' conduct of investigations and cases like OPR can. But the IG could initiate a broader investigation, referring misconduct findings to a division with authority to act on them.
Ultimately, however, neither the OPR nor the IG can prosecute if it uncovers evidence of a crime. Both typically refer criminal matters to the DOJ’s Public Integrity Section, but a case involving the most recent former attorney general would almost inevitably require the appointment of a special counsel. We saw some of the limitations of that process during Mueller’s investigation, but Merrick Garland’s leadership suggests it would be possible to appoint a highly respected individual with prosecutorial credentials to conduct an independent investigation unhindered by political pressure.
These four mechanisms have one thing in common: They all have the potential to reveal the truth.
The administration would likely prefer to avoid this kind of entanglement, because it would inevitably be accompanied by allegations of political witch hunt. But after a singular four years in this country’s history, we deserve the truth, and Barr should be held accountable if his conduct merits it, after a full investigation. If the document Jackson has ordered released suggests Barr lied to Congress, those allegations should be pursued.
Finally, Barr, like all lawyers, is obligated to follow the rules of professional conduct for lawyers. Bar associations have disciplinary processes for lawyers who violate them, and at least one such complaint has already been filed against Barr in the District of Columbia. Bar grievance committees are themselves criticized as slow and opaque at best and unwilling to discipline lawyers at worst, particularly powerful ones. But serious disciplinary action, potentially including disbarment, would be significant for Barr, even at this late stage in his career.
These four mechanisms have one thing in common: They all have the potential to reveal the truth. There is a distinction between disliking an attorney general’s policy choices or personal style and uncovering evidence of misconduct. When credible allegations surface, they should be pursued through appropriate channels. Investigation and findings by any of these authorities would be a starting point for restoring confidence in our institutions.