The Cynicism of William Barr
A Contentious Otter essay
This essay will
describe how, in spite of all the hyperbole from partisan pundits in
the last several weeks, the one thing that appears most obvious from
the release of the Durham report was that William Barr and John
Durham engaged in a conspiracy to defraud the United States by
abusing the resources of the Department of Justice to undermine the
ability of Federal agencies to investigate potential wrong-doing by
the Trump administration. Unfortunately, due to a bit of legal maneuvering by William Barr, it appears that he cannot be prosecuted due to the quasi-judicial immunity granted to an Attorney General in naming a special prosecutor.
Problems with the nature of the Durham investigation begin with the appointment order written by William Barr. That order states, and is quoted in Durham's report: "The Special Counsel is authorized to investigate whether any federal official, employee, or any other person or entity violated the law in connection with the intelligence, counter-intelligence, or law-enforcement activities directed at the 2016 presidential campaigns, individuals associated with those campaigns, and individuals associated with the administration of President Donald J. Trump, including but not limited to Crossfire Hurricane and the investigation of Special Counsel Robert S. Mueller, Ill."i This statemente from Barr is unprecedented in that it demonstrates a gross lack of faith in Department of Justice prosecutors and a desire to undermine investigative decisions made by the agency he was appointed to lead. Prosecutors have absolute immunity for actions taken within their role as public advocate.ii "The doctrine of immunity is based on the principle that it is unjust to punish a public official who has attempted to perform his job in good faith. Moreover, there is a fear that unlimited liability will prevent a public official from properly performing his functions."iii The potential for prosecution of Department of Justice investigators is derived from a precedent in the 1976 case Forsyth v. Kleindeinst,which stated that absolute immunity of prosecutors is not necessarily automatic, and that the actions of a prosecutor should be considered regarding whether they constitute a quasi-judicial or other function, and what the motives for that function were. The decision in Forsyth v. Kleindeinst is very specific in that it does not refer to the decision to take the fruits of an investigation and initiate a prosecution, but focuses on the decision to initiate an investigation.iv By issuing this public order, Barr effectively accused Department of Justice prosecutors of acting in a manner that failed to satisfy the standard of acting as a public advocate, and raised the spectre that any Department of Justice Investigator who took actions that did not suit Barr's partisan political inclinations, may be subject to prosecution by his or her own employer.
William Barr faced a problem in that he was widely perceived by the popular media as acting as Trump's personal legal fixer, and of using the Department of Justice as a tool for retaliating against Trump's legal opponents.v vi That public perception meant that the same motive analysis described in Forsyth v. Kleindeinst that Barr was seeking to use against investigators who began looking into activities by the Trump campaign might come back to bite him. Barr's position was further complicated by the Supreme Court ruling in Butz v. Economou, which stated: "In a suit for damages arising from unconstitutional action, federal executive officials exercising discretion are entitled only to the qualified immunity specified in Scheuer v. Rhodes, supra, subject to those exceptional situations where it is demonstrated that absolute immunity is essential for the conduct of the public business."
It is likely that Barr saw a way to protect himself in the wording of the statute for appointing a Special Counselvii. The Supreme Court has ruled that a prosecutor has absolute immunity when they take on a role that has a "quasi-judicial function"viii Because the statute regarding the naming of a special prosecutor specifically mentions it is a function that's designed to prevent conflicts of interest, Barr could reasonably argue that in naming John Durham as Special Prosecutor he was engaging in a quasi-judicial act and therefore his actions were covered by absolute immunity per the Imbler precedent. Barr appears to have felt that the conflict of interest condition effectively constituted the "protecting the public business" required for a grant of absolute immunity as specified in Butz. Furthermore, the release of a special prosecutors report, even if those reports were of a malicious nature and clearly intended to undermine the function of the Justice Department and Federal Investiative agencies, was materially similar to, and would be protected by the precedent in the case Barr v. Mateo (not the same Barr, just another person with the same name)ix.
18 U.S. Code § 371 - Conspiracy to commit offense or to defraud United States declares that: "If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both." The Department of Justice refers to two precedents as guiding prosecution of this section. In this argument, we'll focus on the argument from the case Hass v. Henkel.x The key statement from that ruling is: "The statute is broad enough in its terms to include any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of government . . . (A)ny conspiracy which is calculated to obstruct or impair its efficiency and destroy the value of its operation and reports as fair, impartial and reasonably accurate, would be to defraud the United States by depriving it of its lawful right and duty of promulgating or diffusing the information so officially acquired in the way and at the time required by law or departmental regulation."xi By effectively putting Justice Department prosecutors on notice that they would not have the backing of the Department of Justice if they initiated any investigations that displeased Donald Trump, Barr effectively created a chill over the entire Department of Justice that limited the ability of that Department's relevant agencies to do their jobs. William Barr effectively made Donald J. Trump a man above the law, and Barr managed to maneuver himself in such a way so that he could leverage principles of quasi-judicial immunity to protect himself from any future prosecution.
i Office of the Attorney General, Order No. 4878-2020. Appointment of the Special Counsel to Investigate Matters Related To Intelligence Activities and Investiations Arising Out of the 2016 Presidential campaigns. (Oct. 19, 2020).
ii Imbler v. Pachtman, 424 US 409 (1976).
iii Scheuer v. Rhodes, 416 US 232,240 (1978).as cited in: The Immunity of the United States Attorney General. 71J. Crim. L. & Criminology 32 (1980).
iv The Immunity of the United States Attorney General. 71J. Crim. L. & Criminology 32 (1980).
v Bassetti, Victoria, and Norm Eisen. "Barr Makes It Official-He's Trump's New "Fixer"." Politico. Last modified August 1, 2020. https://www.politico.com/news/magazine/2020/08/01/barr-makes-it-official-hes-trump-new-fixer-389805.
vi Stone, Peter. "How William Barr is Weaponizing the DOJ to Help Trump Win." The Intercept. Last modified August 29, 2020. https://theintercept.com/2020/08/29/william-barr-trump-justice-department/.
vii 28 CFR § 600.1 - Grounds for appointing a Special Counsel.
viii Imbler v. Pachtman.
ix Barr v. Mateo. 360 US 564 (1959).
x Hass v. Henkel, 216 U.S. 462 (1910)
xi Cited at: "923. 18 U.S.C. § 371—CONSPIRACY TO DEFRAUD THE UNITED STATES." The United States Department of Justice Archives. https://www.justice.gov/archives/jm/criminal-resource-manual-923-18-usc-371-conspiracy-defraud-us
Image credit: https://upload.wikimedia.org/wikipedia/commons/thumb/4/45/William_Barr.jpg/1024px-William_Barr.jpg
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