During the impeachment proceeding, former scholar Alan Dershowitz proclaimed that a U.S. President could engage in misconduct to get re-elected, without having to answer for it, if he believed his re-election was in the national interest. The Dershowitz theory runs completely counter to the Founding Fathers’ belief that no man, even the president, is above the law. We are a nation of laws, not men.
During his confirmation hearing, Attorney General William Barr agreed that a president is not above the law. However, his actions as Attorney General show him to be a practitioner of the Dershowitz theory. Barr has turned the Department of Justice (DOJ) into the President’s personal law firm—using it to punish Trump’s enemies and protect his friends.
Barr’s agenda was recently exposed when he meddled in the Roger Stone sentencing. Barr flat lied when he said it was normal for the Attorney General to become involved in the process of making sentencing recommendations to a judge. He also lied in contending that the sentence recommendation made by the front-line career prosecutors was not in keeping with department policy. It was right on target with the policy adopted by Jeff Sessions and followed by Barr.
It appears that Barr was also responsible for lowering the government’s recommended sentence for Michael Flynn. In fact, Barr has admitted that he is handling all cases related to the President, even though an ethical Attorney General with his history would have recused himself. It is no wonder that over 2,000 former DOJ employees have called for Barr’s resignation.
Some say that Barr showed his independence from the President when he proclaimed on February 13 that Trump’s tweets about DOJ criminal cases “make it impossible for me to do my job.” Barr had to be embarrassed when four career prosecutors resigned from the Stone case to protest Barr’s meddling in the case. His game had been exposed and he was trying to make it appear that he was not Trump’s lackey.
The problem is that Trump and Barr were working at cross purposes. Barr was intent on surreptitiously influencing the Trump-related cases. On the other hand, the President wanted to proclaim to the world that those who did his bidding would receive his favor, while those who crossed him would feel the DOJ’s fury.
Andrew McCabe’s case is instructive. The judge had demanded that the DOJ either pursue prosecution against McCabe or drop the charges by February 14. Try as he might, Barr could not scare up any evidence of criminal activity by McCabe and had to drop the case against him. This was in spite of Trump’s frequent claims over the last two years that McCabe was a criminal who should be prosecuted and imprisoned.
The judge, a Republican appointee, likened the DOJ’s handling of the McCabe case to a “banana republic,” saying that “the integrity of the process is being unduly undermined by inappropriate comments and actions on the part of people at the top of our government.”
McCabe was hardly the only one who Trump has demanded to have criminal charges filed against. It is strange that the DOJ under Trump has not been able to come up with credible evidence of criminal conduct by McCabe, Hillary Clinton, James Comey, Lisa Page, Robert Mueller and his team, or the many others Trump has villainized. The only people who have been successfully prosecuted and imprisoned are a number of Trump associates.
The main thing standing in the way of the Dershowitz-Barr-Trump effort to hijack the American justice system is a cadre of federal judges. Those judges preside over a legal system that demands proof of criminal conduct. So far, they have seen such proof in the case of Trump’s associates, but not with respect to his perceived enemies.
Unfortunately, Barr has now positioned himself to keep further prosecutions of Trump allies from moving forward and also to launch investigations against Trump’s enemies. Hopefully, the courts will hold the line so that our justice system is not turned into a weapon against the enemies of the self-proclaimed “Chosen One.”