WEBVTT - How William Barr Has Changed the Justice Department 0:00:00.560 --> 0:00:05.320 This is Bloomberg Law with June Grassoe from Bloomberg Radio. 0:00:05.480 --> 0:00:09.200 Attorney General William Barr has come under intense criticism since 0:00:09.240 --> 0:00:13.680 the overall frontline prosecutors last week to reduce the recommended 0:00:13.720 --> 0:00:17.160 prison time for Roger Stone. More than two thousand former 0:00:17.239 --> 0:00:21.120 Justice Department officials signed an open letter asking that Bar 0:00:21.280 --> 0:00:24.479 stepped down over his decision in the Stone case. He's 0:00:24.520 --> 0:00:28.640 also faced criticism in recent days over other matters, for example, 0:00:28.800 --> 0:00:33.400 creating a special process for Trump's personal lawyer Rudy Giuliani 0:00:33.479 --> 0:00:37.400 to submit information to the Department about Ukraine related matters, 0:00:37.600 --> 0:00:42.080 and appointing a senior prosecutor to examine cases being handled 0:00:42.120 --> 0:00:45.320 by the U. S. Attorney's Office in d C, including 0:00:45.320 --> 0:00:48.879 the sentencing of Michael Flynn. Joining me is Neil Kincough, 0:00:48.960 --> 0:00:52.239 a professor at Georgia State University College of Law. He 0:00:52.320 --> 0:00:56.040 was formerly special assistant to the Attorney General. We're about 0:00:56.120 --> 0:01:01.760 one year into the tenure of William Bar as Attorney General. 0:01:02.120 --> 0:01:06.000 What strikes you most about the last year, Well, what's 0:01:06.040 --> 0:01:09.600 most striking to me is just how thoroughly Bill Barr 0:01:09.720 --> 0:01:14.800 has undermined and politicized the Justice Department. Um I testified 0:01:14.800 --> 0:01:18.960 at his confirmation hearing, and I testified in opposition because 0:01:19.000 --> 0:01:22.440 I thought his view of presidential power was so extreme 0:01:22.520 --> 0:01:26.479 as to be disqualifying. I think he's shown that that's true, 0:01:26.600 --> 0:01:29.240 but that's only the tip of the iceberg of reasons 0:01:29.280 --> 0:01:33.200 to be concerned about him and his tenure as Attorney General. 0:01:33.680 --> 0:01:37.000 UM I did not anticipate that he would turn the 0:01:37.080 --> 0:01:43.080 Department into a vehicle for President Trump's political ambitions. Um 0:01:43.400 --> 0:01:47.000 I worked in the Justice Department back in the ninet nineties, 0:01:47.640 --> 0:01:51.240 and what I observed was that the chief function of 0:01:51.280 --> 0:01:54.640 the political layer at the Justice Department and principally the 0:01:54.680 --> 0:01:59.240 Attorney General, was to insulate the department from political pressure. 0:01:59.440 --> 0:02:01.520 And that was true not just in the nineties. It 0:02:01.600 --> 0:02:03.840 was true in the eighties. It was true in Republican 0:02:03.880 --> 0:02:08.720 administrations and democratic administrations. UM and it's what made the 0:02:08.800 --> 0:02:13.280 Justice Department a credible institution and an institution with real 0:02:13.400 --> 0:02:18.200 integrity in upholding our criminal justice system. But Bill Barr 0:02:18.200 --> 0:02:21.359 has inverted that. He is instead of acting as an 0:02:21.360 --> 0:02:26.080 insulation against political pressure, he's turned into the conduit for 0:02:26.160 --> 0:02:30.120 political pressure. The way that the president can exert his 0:02:30.200 --> 0:02:34.840 political influence over every aspect of the Justice Department. And 0:02:34.919 --> 0:02:37.760 that's a threat that is far graver than anything I 0:02:37.840 --> 0:02:41.680 anticipated even when I was testifying against him a year ago. 0:02:42.639 --> 0:02:46.839 President Trump seems to be testing his relationship with Bar, 0:02:47.720 --> 0:02:51.960 demanding a clean house at the Justice Department and target 0:02:52.080 --> 0:02:55.680 those involved in the Russia investigation. Do you see this 0:02:55.800 --> 0:03:00.760 as real or as something for for Trump space. My 0:03:00.840 --> 0:03:03.680 concern is that that's what it is, right, that this 0:03:03.760 --> 0:03:06.880 is a show for his base. That Bill bar when 0:03:06.919 --> 0:03:11.399 he says, um, Trump's tweets make it difficult or impossible 0:03:11.440 --> 0:03:13.640 for him to do his job. That what Bar means 0:03:13.919 --> 0:03:17.600 is I'm already doing your bidding. It makes it look 0:03:17.639 --> 0:03:20.440 bad when you start telling me what to do because 0:03:20.480 --> 0:03:22.280 I already know what to do, and it's better if 0:03:22.320 --> 0:03:25.560 you just keep quiet about it. Um. And if that's 0:03:25.560 --> 0:03:30.600 the situation, then the Justice Department is far gone. Um. 0:03:30.639 --> 0:03:33.760 If that's not the situation, which is my hope, is 0:03:33.800 --> 0:03:37.280 that President Trump thinks he needs to instruct Bill Barr 0:03:37.440 --> 0:03:40.720 because behind the scenes, somehow Bill Barr is standing up 0:03:40.760 --> 0:03:44.400 to him. Um. Well, that would be encouraging. The problem 0:03:44.440 --> 0:03:47.280 is I don't really see any evidence of that. We 0:03:47.400 --> 0:03:50.800 hear a lot about well, there are career prosecutors there 0:03:50.880 --> 0:03:54.440 and they're still doing their job. Is this just in 0:03:54.480 --> 0:03:58.400 the DC office that where that we're hearing these stories, 0:03:58.520 --> 0:04:03.520 or are their problems throughout the Justice Department perhaps and 0:04:03.640 --> 0:04:07.040 concerns that career prosecutors won't want to stay there anymore. 0:04:07.720 --> 0:04:11.320 So I I have not heard anything that gives me 0:04:12.240 --> 0:04:16.479 pause about what's going on in other U S. Attorney's offices, 0:04:17.400 --> 0:04:20.360 but I think that that may be coming. Right. So 0:04:20.720 --> 0:04:23.960 I think back to UM the administration of George W. 0:04:24.200 --> 0:04:28.440 Bush and the way that Karl Rove got involved with 0:04:29.160 --> 0:04:33.800 more local but still political prosecutions. So, for example, he 0:04:33.920 --> 0:04:37.360 saw to the firing of the U S attorney who 0:04:37.400 --> 0:04:42.640 brought charges against Republican Congressman Randy Duke Cunningham, if you 0:04:42.680 --> 0:04:48.760 remember that scandal UM and other prosecutions against Republican figures. 0:04:48.839 --> 0:04:52.760 He also had fired um U S attorneys who refused 0:04:52.760 --> 0:04:59.159 to bring unwarranted prosecutions against Democratic opponents UM and you 0:04:59.160 --> 0:05:01.400 know there it was a real problem the way Karl 0:05:01.520 --> 0:05:04.919 Rove got involved. And and it's hard for me to 0:05:05.000 --> 0:05:09.039 imagine Donald Trump not at some point getting around to that, 0:05:09.800 --> 0:05:13.440 or Bill Bard doing that for him. Right one year 0:05:13.440 --> 0:05:16.320 in Bill Bard doesn't seem to have done that yet, 0:05:16.880 --> 0:05:19.560 but there are signs, right. So if you look at 0:05:19.560 --> 0:05:22.799 the way he's curbing the Southern District of New York's 0:05:23.040 --> 0:05:29.240 UM inquiry into Leve Parnis and Rudy Giuliani, UM, you 0:05:29.279 --> 0:05:33.839 know that's another district besides the District of Columbia district 0:05:34.320 --> 0:05:37.640 that could start moving into other districts throughout the country. Right, 0:05:37.680 --> 0:05:40.360 So there's there's every reason to watch it, although I 0:05:41.160 --> 0:05:43.880 don't know that it's happening yet. I've been talking to 0:05:43.960 --> 0:05:47.520 Neil Kinkoff, a professor at the Georgia State University College 0:05:47.520 --> 0:05:50.960 of Law, about William Barr's first year as Attorney General 0:05:51.040 --> 0:05:55.160 for President Donald Trump. You know, we always hear the 0:05:55.200 --> 0:05:58.719 Southern District of New York is the sovereign district and 0:05:58.800 --> 0:06:03.440 it's almost into Hendant from d C. Which doesn't make 0:06:03.440 --> 0:06:05.960 sense to me because the Attorney General is also the 0:06:05.960 --> 0:06:09.679 Attorney General over the Southern District. What is he doing 0:06:09.760 --> 0:06:14.120 there with Parnis and Frewman. So he has given UM 0:06:14.160 --> 0:06:18.760 the Eastern District of New York the ability to define 0:06:18.839 --> 0:06:24.359 the jurisdiction of the Southern District with respect to those investigations. 0:06:24.400 --> 0:06:27.600 So these two districts are our rivals with one another. 0:06:27.960 --> 0:06:31.159 It'd be a little bit like letting the head coach 0:06:31.200 --> 0:06:35.680 of the unit of Clemson do the recruiting for Alabama, right, 0:06:36.560 --> 0:06:39.560 you know, there their rivals, you know. So putting that 0:06:39.680 --> 0:06:42.680 kind of power over the Southern District into the Eastern 0:06:42.760 --> 0:06:48.719 District is itself a questionable thing. And the Eastern District 0:06:49.080 --> 0:06:51.680 I can't imagine Bill bar shows it at random. Not 0:06:51.760 --> 0:06:54.520 only are they going to be inclined to reign in 0:06:54.560 --> 0:06:57.840 the Southern district, but the U. S. Attorney in the 0:06:57.839 --> 0:07:02.080 Eastern District is much more closely aligned with Bar. So 0:07:02.160 --> 0:07:06.880 while the Southern District has this reputation for independence, Bill 0:07:06.960 --> 0:07:10.640 Barr is setting up mechanisms that will allow him to 0:07:10.760 --> 0:07:15.640 work around or overcome that independence. Looking back, does it 0:07:15.720 --> 0:07:18.040 seemed to you as he as if he had a 0:07:18.120 --> 0:07:22.400 grand plan, because if you look at what people often 0:07:22.480 --> 0:07:25.240 call his you know, his sort of resume for the 0:07:25.440 --> 0:07:29.760 job of a g he does have some very odd 0:07:29.800 --> 0:07:34.600 ideas about the president's power that even state that the 0:07:34.640 --> 0:07:39.000 Framers didn't worry so much about presidential power, right, And 0:07:39.040 --> 0:07:42.720 he's expressed that since that memo. He's expressed it in speeches. 0:07:42.880 --> 0:07:46.560 His notorious speech at the federalist society, last fault being 0:07:46.600 --> 0:07:49.559 one of them. Yeah, he has this idea that in fact, 0:07:49.600 --> 0:07:54.200 the presidency is modeled on on the monarchy. It is 0:07:54.320 --> 0:07:58.240 completely revisionist history. There is no actual support for that 0:07:58.320 --> 0:08:00.960 in the historical record, and if you go back and 0:08:01.040 --> 0:08:05.720 read documents from that era, it's impossible not to see 0:08:06.200 --> 0:08:10.280 just how committed everyone in the Founding generation was to 0:08:10.480 --> 0:08:15.040 avoiding having another king, and so political opponents would charge 0:08:15.280 --> 0:08:18.240 the other with acting like a king. It was a 0:08:18.320 --> 0:08:22.280 commonplace in in the Founding era. And so this idea 0:08:22.360 --> 0:08:25.440 that bar has that the real concern of the Constitution 0:08:26.080 --> 0:08:29.239 was with a two powerful legislature and that they meant 0:08:29.280 --> 0:08:34.360 to establish a sort of American imperial presidency as a 0:08:34.400 --> 0:08:39.120 counterbalance to that is simply contrary to everything we know 0:08:39.480 --> 0:08:43.040 about the Founding era. But you're right to ask about 0:08:43.040 --> 0:08:45.240 whether he had some kind of grand plan when he 0:08:45.320 --> 0:08:49.040 came into office. I think he did. He sees himself 0:08:49.160 --> 0:08:53.360 as trying to restore the what he regards as the 0:08:53.360 --> 0:08:57.480 original vision of the presidency, and he's completely wrong. In 0:08:57.559 --> 0:09:01.840 his original vision is a day injuriously wrong one, and 0:09:01.920 --> 0:09:05.040 we see that over and over as he enables Trump 0:09:05.320 --> 0:09:09.719 in exceeding any kind of realistic view of the president's 0:09:09.760 --> 0:09:13.760 proper role in our constitutional system. Well, I also wonder 0:09:13.880 --> 0:09:17.680 about his view of the courts, and it seems to 0:09:17.720 --> 0:09:20.760 be a strange view for the Attorney General of the 0:09:20.840 --> 0:09:24.760 United States, in that he seems to think that the 0:09:24.760 --> 0:09:29.960 courts shouldn't get involved in separation of powers issues. He 0:09:30.040 --> 0:09:33.640 said exactly that in his Federalist Society speech, and it's 0:09:33.679 --> 0:09:37.320 it's a completely bizarre view I suppose he has in 0:09:37.440 --> 0:09:41.840 mind when he says that executive privilege fights between Congress 0:09:41.840 --> 0:09:44.440 and the president, and if the courts don't get involved, 0:09:44.480 --> 0:09:48.760 what he knows full well is that the president will 0:09:48.760 --> 0:09:52.959 win because Congress has no way of forcing the president 0:09:53.080 --> 0:09:56.880 to turn over papers. In the memo that you referred to, 0:09:57.120 --> 0:10:00.719 he suggested that Congress could impeach the president. But now 0:10:00.760 --> 0:10:03.920 we've seen that in fact, Congress can't impeach the president 0:10:04.000 --> 0:10:07.079 for refusing to turn over documents. The House impeached him 0:10:07.120 --> 0:10:10.480 and the Senate refused to convict. So there's no other 0:10:10.520 --> 0:10:13.760 way of getting the president to act in a manner 0:10:13.800 --> 0:10:17.320 that's accountable and transparent. But it's also I think not 0:10:17.520 --> 0:10:21.000 in the long run interests of the executive branch, because 0:10:21.000 --> 0:10:24.000 there are a lot of situations where the president needs 0:10:24.040 --> 0:10:26.800 to go to court to vindicate what he views as 0:10:27.200 --> 0:10:30.120 his authority. Right. So, a lot of the separation of 0:10:30.160 --> 0:10:33.480 powers cases that have gone to the court are cases 0:10:33.600 --> 0:10:37.960 where the president has been the one complaining about statutory 0:10:38.080 --> 0:10:42.440 limits on his power. Let's talk a little bit about 0:10:42.840 --> 0:10:48.280 the clemency process. As President Trump just granted clemency to 0:10:48.480 --> 0:10:54.600 a group of eleven people, including several very high profile 0:10:55.200 --> 0:10:59.560 political cases. First of all, did you see a pattern 0:10:59.760 --> 0:11:03.560 in his grant of clemency. Well, the pattern seemed to 0:11:03.559 --> 0:11:08.920 be that, um, he approves of corruption. I just don't 0:11:08.920 --> 0:11:12.640 know any other way, any other way to look at it. Um. 0:11:12.679 --> 0:11:16.160 And so during the impeachment, we kept hearing his defenders say, 0:11:16.600 --> 0:11:21.160 you know, his actions in the Ukraine were all grounded 0:11:21.400 --> 0:11:25.800 on his deep concern about corruption, and I think he's 0:11:25.880 --> 0:11:29.680 just given the lie to that claim. Right. So the 0:11:29.720 --> 0:11:32.720 people that the prominent people in the group that were 0:11:32.720 --> 0:11:36.120 pardoned were each and every one of them deeply corrupt. 0:11:36.640 --> 0:11:40.640 Right ed. De Bartelow was paying off the governor of 0:11:40.640 --> 0:11:44.000 of Louisiana in order to get a license to open 0:11:44.040 --> 0:11:48.960 a casino there. Um. Michael Milken engaged in securities, fraud 0:11:48.960 --> 0:11:53.600 and insider trading and amassed great wealth not based on 0:11:54.280 --> 0:11:59.400 his value added, not based on anything that is um 0:11:59.520 --> 0:12:03.440 allege at a market reason for amassing wealth, but rather 0:12:03.600 --> 0:12:09.200 based on schemes, corrupt schemes. Um Every one of those 0:12:09.240 --> 0:12:13.839 prominent people pardon fall into that category. And Rod Blagoyevitch 0:12:14.000 --> 0:12:17.680 just takes the cake, right And and now Rod Blagoyevich 0:12:17.840 --> 0:12:21.640 is out there saying he was a political prisoner. It's 0:12:21.720 --> 0:12:25.640 just preposterous. This guy was shaking down children's hospitals for 0:12:25.720 --> 0:12:31.000 extortion payments. And in Donald Trump's world, this is all okay. 0:12:31.240 --> 0:12:35.080 He's normalizing corruption, and it I suppose makes sense if 0:12:35.120 --> 0:12:37.480 you're Donald Trump to do that, since he is so 0:12:37.600 --> 0:12:43.160 deeply corrupt himself. Describe what the normal channel is for 0:12:43.200 --> 0:12:47.080 a pardon. Sure, the normal channel is to go through 0:12:47.080 --> 0:12:50.199 the Justice Department. There is within the Justice Department and 0:12:50.320 --> 0:12:54.440 office of Pardon Attorney, and the pardon attorney reviews all 0:12:54.480 --> 0:13:00.160 applications for pardons and clemency and assesses them on the 0:13:00.200 --> 0:13:05.040 basis of sort of a uniform set of criteria and 0:13:05.080 --> 0:13:08.720 then forwards recommendations to the President. And the whole point 0:13:08.760 --> 0:13:13.040 of this process is to make it open so that 0:13:13.240 --> 0:13:17.520 it's available to anybody who wants to petition. It's also 0:13:17.800 --> 0:13:22.920 open and available to victims of crime and to prosecutors. Right, 0:13:23.080 --> 0:13:27.160 because it's not just the person seeking the pardoner clemency 0:13:27.200 --> 0:13:31.280 that's interested in the result of that application, the person 0:13:31.320 --> 0:13:37.440 who prosecuted that that person is also deeply interested. Um. 0:13:37.480 --> 0:13:40.920 The victims of their crimes are deeply interested and ought 0:13:40.920 --> 0:13:44.080 to be heard from. And the other The other reason 0:13:44.200 --> 0:13:47.400 to run the process that way is that it shouldn't 0:13:47.400 --> 0:13:50.600 be that pardons are available only to those who are 0:13:50.640 --> 0:13:54.800 well connected and can get the president's ear right. It 0:13:54.840 --> 0:13:59.080 ought to be something that is fairly available to everybody, 0:13:59.080 --> 0:14:03.000 regardless of whether or not they have wealth or power. Um. 0:14:03.000 --> 0:14:06.200 But in Donald Trump's world, what matters is whether you 0:14:06.240 --> 0:14:08.880 can get onto Fox News and plead your case in 0:14:08.920 --> 0:14:12.280 a way that he will personally hear it and then 0:14:12.600 --> 0:14:15.560 be moved or not. And so it's only those who 0:14:15.600 --> 0:14:18.439 have the kinds of connections that can get them onto 0:14:18.480 --> 0:14:21.360 Fox News or the kinds of connections that can get 0:14:21.360 --> 0:14:24.880 them in front of the president, because he is not 0:14:25.000 --> 0:14:31.160 respecting the independent, nonpartisan process that the Justice Department runs well. 0:14:31.200 --> 0:14:36.360 Apparently The Washington Post is reporting that there have been 0:14:36.400 --> 0:14:40.720 discussions within the White House about ways to revamp the 0:14:40.760 --> 0:14:46.040 clemency process and to diminish the role of the Justice Department, 0:14:46.120 --> 0:14:50.960 and apparently Trump's son in law, Jared Kushner, is central 0:14:51.040 --> 0:14:54.480 to these discussions. Does that concern you? It concerns me 0:14:54.520 --> 0:14:57.520 on many levels. First of all, on the level of 0:14:57.560 --> 0:15:00.880 the independence of the Justice Department. Right, this is another 0:15:01.000 --> 0:15:07.120 way for the White House to undermine the independent, nonpartisan 0:15:07.160 --> 0:15:11.560 administration of our justice system. Right. It is a fundamental 0:15:11.640 --> 0:15:14.640 threat to the rule of law. Um and it is 0:15:14.720 --> 0:15:18.800 one in a long litany of threats that this administration 0:15:18.880 --> 0:15:22.040 has posed to the rule of law with respect to 0:15:22.520 --> 0:15:27.440 pardons themselves. It undermines the integrity of the pardon process, 0:15:28.080 --> 0:15:31.760 It undermines the fairness of the pardon process. And so 0:15:31.880 --> 0:15:36.240 it's a terrible idea from from that perspective. And then lastly, 0:15:36.920 --> 0:15:39.320 the people who would be running this process feel like 0:15:39.400 --> 0:15:43.320 Jared Kushner and Donald Trump himself are people who seem 0:15:43.400 --> 0:15:46.800 to have a real interest in undermining the integrity of 0:15:46.800 --> 0:15:50.360 the criminal justice system. Right. It seems like Donald Trump's 0:15:50.440 --> 0:15:53.880 reason for that is that so many of his associates 0:15:54.520 --> 0:15:59.680 are themselves caught up in criminal investigations right his campaign managers, 0:16:00.080 --> 0:16:04.360 his close advisors, his political advisors, so many of them 0:16:04.400 --> 0:16:08.200 are under indictment, are under conviction, or are in prison. 0:16:08.800 --> 0:16:12.360 And so in order to sort of prop up the 0:16:12.400 --> 0:16:16.240 sense of his own integrity, he's undermining the integrity of 0:16:16.240 --> 0:16:19.960 the criminal justice system. And of course, Jared Kushner's father 0:16:20.440 --> 0:16:24.320 was also convicted of white collar crime, and so he 0:16:24.480 --> 0:16:28.760 himself is apt to be an only too willing participant 0:16:29.160 --> 0:16:32.400 in this idea of undermining the integrity of the criminal 0:16:32.480 --> 0:16:36.000 justice system. Thanks deal. That's Neil Kinkoff, a professor at 0:16:36.040 --> 0:16:39.160 the Georgia State University College of Law. And remember the 0:16:39.240 --> 0:16:42.000 tunity to the Bloomberg Law Show weeknights at ten pm 0:16:42.240 --> 0:16:43.680 right here on Bloomberg Radio.