Speaker 1: This is Bloomberg Law with June Grassoe from Bloomberg Radio.
Speaker 1: Attorney General William Barr has come under intense criticism since
Speaker 1: the overall frontline prosecutors last week to reduce the recommended
Speaker 1: prison time for Roger Stone. More than two thousand former
Speaker 1: Justice Department officials signed an open letter asking that Bar
Speaker 1: stepped down over his decision in the Stone case. He's
Speaker 1: also faced criticism in recent days over other matters, for example,
Speaker 1: creating a special process for Trump's personal lawyer Rudy Giuliani
Speaker 1: to submit information to the Department about Ukraine related matters,
Speaker 1: and appointing a senior prosecutor to examine cases being handled
Speaker 1: by the U. S. Attorney's Office in d C, including
Speaker 1: the sentencing of Michael Flynn. Joining me is Neil Kincough,
Speaker 1: a professor at Georgia State University College of Law. He
Speaker 1: was formerly special assistant to the Attorney General. We're about
Speaker 1: one year into the tenure of William Bar as Attorney General.
Speaker 1: What strikes you most about the last year, Well, what's
Speaker 1: most striking to me is just how thoroughly Bill Barr
Speaker 1: has undermined and politicized the Justice Department. Um I testified
Speaker 1: at his confirmation hearing, and I testified in opposition because
Speaker 1: I thought his view of presidential power was so extreme
Speaker 1: as to be disqualifying. I think he's shown that that's true,
Speaker 1: but that's only the tip of the iceberg of reasons
Speaker 1: to be concerned about him and his tenure as Attorney General.
Speaker 1: UM I did not anticipate that he would turn the
Speaker 1: Department into a vehicle for President Trump's political ambitions. Um
Speaker 1: I worked in the Justice Department back in the ninet nineties,
Speaker 1: and what I observed was that the chief function of
Speaker 1: the political layer at the Justice Department and principally the
Speaker 1: Attorney General, was to insulate the department from political pressure.
Speaker 1: And that was true not just in the nineties. It
Speaker 1: was true in the eighties. It was true in Republican
Speaker 1: administrations and democratic administrations. UM and it's what made the
Speaker 1: Justice Department a credible institution and an institution with real
Speaker 1: integrity in upholding our criminal justice system. But Bill Barr
Speaker 1: has inverted that. He is instead of acting as an
Speaker 1: insulation against political pressure, he's turned into the conduit for
Speaker 1: political pressure. The way that the president can exert his
Speaker 1: political influence over every aspect of the Justice Department. And
Speaker 1: that's a threat that is far graver than anything I
Speaker 1: anticipated even when I was testifying against him a year ago.
Speaker 1: President Trump seems to be testing his relationship with Bar,
Speaker 1: demanding a clean house at the Justice Department and target
Speaker 1: those involved in the Russia investigation. Do you see this
Speaker 1: as real or as something for for Trump space. My
Speaker 1: concern is that that's what it is, right, that this
Speaker 1: is a show for his base. That Bill bar when
Speaker 1: he says, um, Trump's tweets make it difficult or impossible
Speaker 1: for him to do his job. That what Bar means
Speaker 1: is I'm already doing your bidding. It makes it look
Speaker 1: bad when you start telling me what to do because
Speaker 1: I already know what to do, and it's better if
Speaker 1: you just keep quiet about it. Um. And if that's
Speaker 1: the situation, then the Justice Department is far gone. Um.
Speaker 1: If that's not the situation, which is my hope, is
Speaker 1: that President Trump thinks he needs to instruct Bill Barr
Speaker 1: because behind the scenes, somehow Bill Barr is standing up
Speaker 1: to him. Um. Well, that would be encouraging. The problem
Speaker 1: is I don't really see any evidence of that. We
Speaker 1: hear a lot about well, there are career prosecutors there
Speaker 1: and they're still doing their job. Is this just in
Speaker 1: the DC office that where that we're hearing these stories,
Speaker 1: or are their problems throughout the Justice Department perhaps and
Speaker 1: concerns that career prosecutors won't want to stay there anymore.
Speaker 1: So I I have not heard anything that gives me
Speaker 1: pause about what's going on in other U S. Attorney's offices,
Speaker 1: but I think that that may be coming. Right. So
Speaker 1: I think back to UM the administration of George W.
Speaker 1: Bush and the way that Karl Rove got involved with
Speaker 1: more local but still political prosecutions. So, for example, he
Speaker 1: saw to the firing of the U S attorney who
Speaker 1: brought charges against Republican Congressman Randy Duke Cunningham, if you
Speaker 1: remember that scandal UM and other prosecutions against Republican figures.
Speaker 1: He also had fired um U S attorneys who refused
Speaker 1: to bring unwarranted prosecutions against Democratic opponents UM and you
Speaker 1: know there it was a real problem the way Karl
Speaker 1: Rove got involved. And and it's hard for me to
Speaker 1: imagine Donald Trump not at some point getting around to that,
Speaker 1: or Bill Bard doing that for him. Right one year
Speaker 1: in Bill Bard doesn't seem to have done that yet,
Speaker 1: but there are signs, right. So if you look at
Speaker 1: the way he's curbing the Southern District of New York's
Speaker 1: UM inquiry into Leve Parnis and Rudy Giuliani, UM, you
Speaker 1: know that's another district besides the District of Columbia district
Speaker 1: that could start moving into other districts throughout the country. Right,
Speaker 1: So there's there's every reason to watch it, although I
Speaker 1: don't know that it's happening yet. I've been talking to
Speaker 1: Neil Kinkoff, a professor at the Georgia State University College
Speaker 1: of Law, about William Barr's first year as Attorney General
Speaker 1: for President Donald Trump. You know, we always hear the
Speaker 1: Southern District of New York is the sovereign district and
Speaker 1: it's almost into Hendant from d C. Which doesn't make
Speaker 1: sense to me because the Attorney General is also the
Speaker 1: Attorney General over the Southern District. What is he doing
Speaker 1: there with Parnis and Frewman. So he has given UM
Speaker 1: the Eastern District of New York the ability to define
Speaker 1: the jurisdiction of the Southern District with respect to those investigations.
Speaker 1: So these two districts are our rivals with one another.
Speaker 1: It'd be a little bit like letting the head coach
Speaker 1: of the unit of Clemson do the recruiting for Alabama, right,
Speaker 1: you know, there their rivals, you know. So putting that
Speaker 1: kind of power over the Southern District into the Eastern
Speaker 1: District is itself a questionable thing. And the Eastern District
Speaker 1: I can't imagine Bill bar shows it at random. Not
Speaker 1: only are they going to be inclined to reign in
Speaker 1: the Southern district, but the U. S. Attorney in the
Speaker 1: Eastern District is much more closely aligned with Bar. So
Speaker 1: while the Southern District has this reputation for independence, Bill
Speaker 1: Barr is setting up mechanisms that will allow him to
Speaker 1: work around or overcome that independence. Looking back, does it
Speaker 1: seemed to you as he as if he had a
Speaker 1: grand plan, because if you look at what people often
Speaker 1: call his you know, his sort of resume for the
Speaker 1: job of a g he does have some very odd
Speaker 1: ideas about the president's power that even state that the
Speaker 1: Framers didn't worry so much about presidential power, right, And
Speaker 1: he's expressed that since that memo. He's expressed it in speeches.
Speaker 1: His notorious speech at the federalist society, last fault being
Speaker 1: one of them. Yeah, he has this idea that in fact,
Speaker 1: the presidency is modeled on on the monarchy. It is
Speaker 1: completely revisionist history. There is no actual support for that
Speaker 1: in the historical record, and if you go back and
Speaker 1: read documents from that era, it's impossible not to see
Speaker 1: just how committed everyone in the Founding generation was to
Speaker 1: avoiding having another king, and so political opponents would charge
Speaker 1: the other with acting like a king. It was a
Speaker 1: commonplace in in the Founding era. And so this idea
Speaker 1: that bar has that the real concern of the Constitution
Speaker 1: was with a two powerful legislature and that they meant
Speaker 1: to establish a sort of American imperial presidency as a
Speaker 1: counterbalance to that is simply contrary to everything we know
Speaker 1: about the Founding era. But you're right to ask about
Speaker 1: whether he had some kind of grand plan when he
Speaker 1: came into office. I think he did. He sees himself
Speaker 1: as trying to restore the what he regards as the
Speaker 1: original vision of the presidency, and he's completely wrong. In
Speaker 1: his original vision is a day injuriously wrong one, and
Speaker 1: we see that over and over as he enables Trump
Speaker 1: in exceeding any kind of realistic view of the president's
Speaker 1: proper role in our constitutional system. Well, I also wonder
Speaker 1: about his view of the courts, and it seems to
Speaker 1: be a strange view for the Attorney General of the
Speaker 1: United States, in that he seems to think that the
Speaker 1: courts shouldn't get involved in separation of powers issues. He
Speaker 1: said exactly that in his Federalist Society speech, and it's
Speaker 1: it's a completely bizarre view I suppose he has in
Speaker 1: mind when he says that executive privilege fights between Congress
Speaker 1: and the president, and if the courts don't get involved,
Speaker 1: what he knows full well is that the president will
Speaker 1: win because Congress has no way of forcing the president
Speaker 1: to turn over papers. In the memo that you referred to,
Speaker 1: he suggested that Congress could impeach the president. But now
Speaker 1: we've seen that in fact, Congress can't impeach the president
Speaker 1: for refusing to turn over documents. The House impeached him
Speaker 1: and the Senate refused to convict. So there's no other
Speaker 1: way of getting the president to act in a manner
Speaker 1: that's accountable and transparent. But it's also I think not
Speaker 1: in the long run interests of the executive branch, because
Speaker 1: there are a lot of situations where the president needs
Speaker 1: to go to court to vindicate what he views as
Speaker 1: his authority. Right. So, a lot of the separation of
Speaker 1: powers cases that have gone to the court are cases
Speaker 1: where the president has been the one complaining about statutory
Speaker 1: limits on his power. Let's talk a little bit about
Speaker 1: the clemency process. As President Trump just granted clemency to
Speaker 1: a group of eleven people, including several very high profile
Speaker 1: political cases. First of all, did you see a pattern
Speaker 1: in his grant of clemency. Well, the pattern seemed to
Speaker 1: be that, um, he approves of corruption. I just don't
Speaker 1: know any other way, any other way to look at it. Um.
Speaker 1: And so during the impeachment, we kept hearing his defenders say,
Speaker 1: you know, his actions in the Ukraine were all grounded
Speaker 1: on his deep concern about corruption, and I think he's
Speaker 1: just given the lie to that claim. Right. So the
Speaker 1: people that the prominent people in the group that were
Speaker 1: pardoned were each and every one of them deeply corrupt.
Speaker 1: Right ed. De Bartelow was paying off the governor of
Speaker 1: of Louisiana in order to get a license to open
Speaker 1: a casino there. Um. Michael Milken engaged in securities, fraud
Speaker 1: and insider trading and amassed great wealth not based on
Speaker 1: his value added, not based on anything that is um
Speaker 1: allege at a market reason for amassing wealth, but rather
Speaker 1: based on schemes, corrupt schemes. Um Every one of those
Speaker 1: prominent people pardon fall into that category. And Rod Blagoyevitch
Speaker 1: just takes the cake, right And and now Rod Blagoyevich
Speaker 1: is out there saying he was a political prisoner. It's
Speaker 1: just preposterous. This guy was shaking down children's hospitals for
Speaker 1: extortion payments. And in Donald Trump's world, this is all okay.
Speaker 1: He's normalizing corruption, and it I suppose makes sense if
Speaker 1: you're Donald Trump to do that, since he is so
Speaker 1: deeply corrupt himself. Describe what the normal channel is for
Speaker 1: a pardon. Sure, the normal channel is to go through
Speaker 1: the Justice Department. There is within the Justice Department and
Speaker 1: office of Pardon Attorney, and the pardon attorney reviews all
Speaker 1: applications for pardons and clemency and assesses them on the
Speaker 1: basis of sort of a uniform set of criteria and
Speaker 1: then forwards recommendations to the President. And the whole point
Speaker 1: of this process is to make it open so that
Speaker 1: it's available to anybody who wants to petition. It's also
Speaker 1: open and available to victims of crime and to prosecutors. Right,
Speaker 1: because it's not just the person seeking the pardoner clemency
Speaker 1: that's interested in the result of that application, the person
Speaker 1: who prosecuted that that person is also deeply interested. Um.
Speaker 1: The victims of their crimes are deeply interested and ought
Speaker 1: to be heard from. And the other The other reason
Speaker 1: to run the process that way is that it shouldn't
Speaker 1: be that pardons are available only to those who are
Speaker 1: well connected and can get the president's ear right. It
Speaker 1: ought to be something that is fairly available to everybody,
Speaker 1: regardless of whether or not they have wealth or power. Um.
Speaker 1: But in Donald Trump's world, what matters is whether you
Speaker 1: can get onto Fox News and plead your case in
Speaker 1: a way that he will personally hear it and then
Speaker 1: be moved or not. And so it's only those who
Speaker 1: have the kinds of connections that can get them onto
Speaker 1: Fox News or the kinds of connections that can get
Speaker 1: them in front of the president, because he is not
Speaker 1: respecting the independent, nonpartisan process that the Justice Department runs well.
Speaker 1: Apparently The Washington Post is reporting that there have been
Speaker 1: discussions within the White House about ways to revamp the
Speaker 1: clemency process and to diminish the role of the Justice Department,
Speaker 1: and apparently Trump's son in law, Jared Kushner, is central
Speaker 1: to these discussions. Does that concern you? It concerns me
Speaker 1: on many levels. First of all, on the level of
Speaker 1: the independence of the Justice Department. Right, this is another
Speaker 1: way for the White House to undermine the independent, nonpartisan
Speaker 1: administration of our justice system. Right. It is a fundamental
Speaker 1: threat to the rule of law. Um and it is
Speaker 1: one in a long litany of threats that this administration
Speaker 1: has posed to the rule of law with respect to
Speaker 1: pardons themselves. It undermines the integrity of the pardon process,
Speaker 1: It undermines the fairness of the pardon process. And so
Speaker 1: it's a terrible idea from from that perspective. And then lastly,
Speaker 1: the people who would be running this process feel like
Speaker 1: Jared Kushner and Donald Trump himself are people who seem
Speaker 1: to have a real interest in undermining the integrity of
Speaker 1: the criminal justice system. Right. It seems like Donald Trump's
Speaker 1: reason for that is that so many of his associates
Speaker 1: are themselves caught up in criminal investigations right his campaign managers,
Speaker 1: his close advisors, his political advisors, so many of them
Speaker 1: are under indictment, are under conviction, or are in prison.
Speaker 1: And so in order to sort of prop up the
Speaker 1: sense of his own integrity, he's undermining the integrity of
Speaker 1: the criminal justice system. And of course, Jared Kushner's father
Speaker 1: was also convicted of white collar crime, and so he
Speaker 1: himself is apt to be an only too willing participant
Speaker 1: in this idea of undermining the integrity of the criminal
Speaker 1: justice system. Thanks deal. That's Neil Kinkoff, a professor at
Speaker 1: the Georgia State University College of Law. And remember the
Speaker 1: tunity to the Bloomberg Law Show weeknights at ten pm
Speaker 1: right here on Bloomberg Radio.