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Why Are DOJ Alums, Bar Leaders Speaking Out for Conscience Now?

Oct. 15, 2020, 8:00 AM

Three former American Bar Association presidents and eight former federal judges, along with more than 800 lawyers, signed an open letter, sponsored by Lawyers Defending American Democracy, expressing support for Department of Justice attorneys who stand up to overtly partisan actions by Attorney General William Barr. As a Justice Department alum, I was proudly among the signers on the Oct. 8 letter.

Every lawyer for whom the halls of the DOJ have been a professional home knows the calling to a greater good. From the Criminal Division to the Lands and Natural Resources Division, to everything in-between, DOJ lawyers are taught that the bar is higher for them. As the U.S. Supreme Court said in Berger v. United States: “The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation [is] to govern impartially ... and whose interest ... is ... that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law ... .”

Thus, DOJ lawyers toil not only to prevail in their cases, but to represent the American people in serving fair and impartial application of law. They must be certain that any case they bring is supported by overwhelming facts and the law. Most importantly, as the Justice Manual says: “The rule of law depends upon the evenhanded administration of justice. The legal judgments of the Department of Justice must be impartial and insulated from political influence.”

Career DOJ lawyers historically have navigated the transitions from one political party to the other. Long-serving professionals often face policy positions that shift from administration to administration on issues ranging from antitrust enforcement to school desegregation and voting rights. Government lawyers understand that presidents are entitled to their person at the helm of the DOJ. But leadership changes and policy differences did not, in my experience, mean retreat from the core responsibility of DOJ attorneys, and certainly did not present themselves as levers to promote the re-election of a sitting president.

What makes these times different, and why is this letter warranted now?

Voting Must Remain Unimpeded

It is clear that Barr has not simply crossed a line but has trampled it. He threatens our democratic system’s foundation by using his governmental power not to serve the people, but the re-election of his sponsor. DOJ alumni like me fear not only for the credibility of an institution we revere, but for the people’s right to express their will through their unimpeded vote.

Most troubling among Barr’s many abuses is justifying the president’s suggestion that law enforcement be directed to appear at polling places, not to protect the right to vote (a longstanding DOJ role under the 1965 Voting Rights Act), but to neutralize alleged voter fraud, a spurious charge supported, per Barr, only by “logic.”

Experts, including Republican lawyer and voting strategist Benjamin Ginsburg, have written that no evidence supports the speculation. In fact, history is replete with instances of voter intimidation at polling places, which is being encouraged by the president.

DOJ’s Integrity and Credibility Is Threatened

If the AG could defend his approach with any substantial evidence, it would be one thing. But Barr’s partisan motive is clear. He recently stated that “we are going to find ourselves irrevocably committed to the socialist path ... if Trump loses this election.” Using DOJ lawyers to help ensure Trump’s re-election abuses the attorney general’s office and threatens the integrity and the credibility of the Justice Department.

This is nothing new for Barr. In the last year and a half, he has placed his political thumb on the scales by presenting what U.S. District Court Judge Reggie B. Walton found to be a “distorted” and “misleading” account of the Mueller Report; undoing the recommendations of DOJ career prosecutors in the Michael Flynn and Roger Stone cases; overseeing the use of pepper balls on peaceful protesters in Lafayette Park; rejecting the findings of his own, independent inspector general that the FBI legitimately opened its investigation into the 2016 Trump campaign; and suggesting that safety measures initiated by governors to protect citizens from Covid-19 somehow constitute a civil liberties threat comparable in our history only to slavery.

Former federal judges, national bar leaders, and ordinary lawyers attached their names to the open letter to help preserve public trust that Justice Department professionals are not simply pawns of whatever administration occupies the White House. It is to these lawyers, agents, and staff that the open letter’s statement of support is addressed.

As signatories, we do not underestimate how profoundly difficult it is for DOJ attorneys to speak out, based on conscience and ethical responsibility, with the attorney general’s unbridled power bearing down on them.

Nor can anyone miss how meaningful it is, in this historically exceptional moment, for those professionals who choose to stand up to partisan actions by an attorney general who has abandoned his duty to oversee impartial justice in pursuit of his and the president’s political agenda.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Joshua P. Bogin was lead trial attorney for the Department of Justice in the landmark school and housing discrimination case, United States v. Yonkers Board of Education, a case initiated during the Carter administration and successfully litigated during the Reagan administration. He teaches constitutional law and civil liberties at Springfield College in Springfield, Mass.