Members of DC Bar file ethics complaint against Barr

The fact that the Department of Justice is used to carry out the president's broad policy preferences is neither surprising nor unusual. But allowing political considerations to influence prosecutorial decisions in individual cases is not the same thing. Attorney General William Barr properly recognized the danger of political interference during his confirmation hearing before the Senate Judiciary Committee: "Nothing could be more destructive of our system of government ... than any toleration of political interference with the enforcement of the law."

Many have publicly and privately argued that Barr has not lived up to his statement about the danger of political interference. On July 22, 27 members of the District of Columbia Bar Association filed an ethics complaint alleging that Barr has violated the D.C. code of professional conduct. They argue Barr has undermined the rule of law, interfered with the administration of justice, and diminished public confidence in the legal system in violation of the rules of professional conduct. His actions as attorney general "involve dishonesty, deceit and misrepresentation; interference with the impartial administration of justice; conflict of interest; and violation of the lawyer's oath to support the Constitution." They request that a disciplinary proceeding be initiated for lawyer misconduct and for the imposition of appropriate sanctions.

Their 36-page complaint, which contains a stunning amount of detail, cites a disturbing pattern of alleged professional misconduct by Barr. It contains four principal charges.

First, the Mueller report contains supporting evidence that Trump obstructed justice. In his testimony before Congress, Mueller agreed that knowingly accepting foreign assistance during a presidential campaign was unethical "and a crime, given certain circumstances." The complaint charges Barr with obstruction of justice for asserting to Congress and the American public that the report contained insufficient evidence to establish President Donald Trump committed the crime of obstruction of justice. District Judge Reggie Walton independently threw a red warning flag about Barr's claim. In connection with the Freedom of Information Act lawsuit by the Electronic Privacy Information Center seeking the release of the unredacted version of the report, Walton opined that Barr had "caused the Court to seriously question whether Attorney General Barr made a calculated attempt to influence public discourse" in favor of Trump and contrary to the report. But the complaint puts a sharper point on Walton's concern: "Mr. Barr repeatedly engaged in dishonest and deceitful conduct. His Senate defense of his determination of insufficient evidence to prove Mr. Trump's obstruction was transparently untenable, as 1000 prosecutors publicly stated." Barr failed to report that the evidence indicated "the President wanted to protect himself from investigation into his campaign." He also misled the public by failing to mention that Trump refused to be interviewed by the special counsel.

Second, the 2019 inspector general report, which fully complied with department policy, found that the FBI had a proper predicate for launching its counterintelligence investigation. Barr's unprecedented attack on the report was "beyond unusual," but aligned with Trump's narrative that the investigation into his campaign and Russian connection was bogus and a hoax. According to the complaint, Barr's attack on the report was illegitimate, contained half-truths, mischaracterizations, and contained the deceptive concealment of facts.

Third, Barr's public comments about the FBI investigation of General Michael Flynn were that "it stinks to high heavens" and appears to be "bad." Publicly maligning the FBI investigators during an ongoing investigation into their conduct violates the department's rules and interferes with the administration of justice. When asked what would happen to senior FBI officials, or former officials, who authorized the interview and investigation of Flynn, Barr issued harmful and unnecessary prejudgments during the criminal investigation being conducted by John Durham, who was appointed by Barr. The rules of professional conduct provide: "It is professional misconduct for a lawyer to ... engage in conduct that seriously interferes with the administration of justice." DCRPC 8.4(d).

Fourth, Barr unconstitutionally ordered unidentified military clad personnel to forcefully disperse protesters peacefully demonstrating at Lafayette Square to allow Trump to pose for a photo op. Trump, who was accompanied by Barr, made no pretense of any objective other than being photographed in front of Saint John's Church holding up a bible. The next day Trump crowed on Twitter: "Many arrests. Great job done by all. Overwhelming force. Domination." Barr owes the American people the legal and professional obligation to uphold the principles and protections of the Constitution. Citizens have the constitutional right to assemble, to speak, and to petition the government for redress of their grievances.

More than 2,500 former Department of Justice attorneys have objected to Barr's unethical conduct as attorney general, and some have resigned in protest. Barr will be given the chance to respond to the charges that his conduct has improperly placed Trump's personal interests ahead of his ethical duty to solely represent the United States. In the interim, it is deeply disturbing that Barr's personal involvement in the prosecutorial decision-making affecting Trump's allies has weakened public confidence in the administration of the rule of law. 