When between 2016-2017 I was serving as special advisor to the prosecutor general of Ukraine, I would tell everyone at the Prosecutor General’s Office who would listen, and even to those who didn’t want to listen, that a high level of rule of law was absolutely essential for proper development by any complex modern society, including, of course, Ukraine. As applied to prosecutors, rule of law meant the fair, principled and neutral administration of the law. This meant treating every case or possible case similarly, regardless of who the potential or actual defendants might be and, of course, maintaining a clear divide between politics and the administration of justice.
Because I had already served as a federal prosecutor for over 20 years, I used examples from my own experience and more broadly from U.S. Justice Department (“DOJ”) rules and practice to explain how the prosecutor general or any Ukrainian prosecutor should conduct him/herself to be in concert with rule of law principles. I am glad that I am not in Ukraine now because I would repeatedly be wiping egg off of my face.
William Barr, President Donald Trump’s attorney general, is repeatedly acting in ways that are contrary to the behavior of any attorney general who served in that role over at least the last 40 years. In my own time with the DOJ, I served under two Republican and two Democratic presidents and under multiple attorneys general from both parties, and none behaved as has Mr. Trump’s third attorney general, William Barr. I refer to Mr. Barr as President Trump’s third attorney general not only because that is factually correct but, more importantly, because Mr. Barr’s actions are not only enthusiastically endorsed by our current president but appear actually to be done at the president’s request.
I will mention four specific episodes, each of which, for different reasons, is itself very highly unusual but that when taken together are simply beyond the pale in any rule of law system. First, there was the order from above significantly to reduce the sentence that DOJ prosecutors were recommending in the Roger Stone case, which then led four career prosecutors to resign from that case rather than carry out that order. Federal prosecutors do not pull sentencing recommendations out of thin air. They are in each case required to use the federal Sentencing Guidelines to calculate what individual sentence to recommend to the court. The four prosecutors in the Stone case did exactly that. The order significantly to reduce that recommendation because Mr. Stone was a friend of the president was unheard of. I have prepared innumerable sentencing letters to courts based on the Sentencing Guidelines and no one ever asked or directed me to reduce my recommendations. And, I have never ever heard of that happening to any other prosecutor either in the U.S. Attorney’s Office in which I served or in any other DOJ office.
Second, Mr. Barr ordered the prosecutor handling the Michael Flynn prosecution to dismiss the case after Mr. Flynn had already twice pleaded guilty in that case. This is even more bizarre than what happened in the Stone matter. Here too, the lead prosecutor handling this case resigned, in itself an extraordinary occurrence. Except in cases in perhaps state court in which some poor defendant had a confession beaten out of him and then DNA evidence pointed to another individual as the actual rapist or killer, withdrawals of charges by the prosecution after a defendant pleads guilty do not happen. On the federal level at which I practiced, I never saw that happen and never heard of it having happened. And that this was done in this instance to shield the president’s ally makes it contrary to core rule of law principles.
Third, it has reliably been reported that Attorney General Barr directed lawyers at Main Justice to explore the possibility of filing charges against Seattle’s mayor because the president is unhappy with her policy of dealing with protesters. One can hope that such attorneys will have enough sense not even to think of doing something like that, as Mr. Barr’s suggestion was that worthy of a Third World or banana republic chief prosecutor.
Fourth, Mr. Barr has ordered the establishment of a criminal investigation, the so-called Durham investigation, into the earlier investigations of the ties between Mr. Trump and the Russians. For multiple reasons, this is not only extraordinary but potentially dangerous. The Mueller investigation clearly proved that the Russians were in various ways involved in the 2016 election, and that they were so engaged to benefit the Trump candidacy. It also found that, while there was some interaction between the campaign and the Russians, that interaction did not rise to the level of a criminal conspiracy. On a bipartisan basis, the Senate Intelligence Committee has just recently come to the same conclusion, except that the committee found more interaction than had the Muller investigation, particularly with respect to former campaign chair Paul Manafort’s providing inside Trump campaign polling data to the Russian agent Konstantin Kilimnik. In addition, in between the Mueller report and the Senate report, the DOJ Office of the Inspector General performed an investigation into whether the FBI’s investigation leading to the Mueller investigation had legitimately been justified, and concluded that it had.
For Attorney General Barr now to launch a fourth investigation of basically the same terrain where three separate investigations had already come to the same basic conclusion is extraordinary. For Mr. Barr to launch a criminal investigation of the FBI and Special Council lawyers who conducted the Mueller investigation is outrageous because there has been no evidence of any criminal conduct by the public servants who were carrying out their duties. And under rule of law rules and principles, a prosecutor does not start a criminal case by deciding to focus on some individual or group and then launch a fishing expedition criminal investigation in the hope of finding some transgressions. Doing so is a dangerous line to cross. And that Mr. Barr’s actions are politically motivated so as to please his boss, President Trump, in Mr. Trump’s campaign to deny that it was Russia that interfered in the 2016 elections and in his attempt to try and instead blame Ukraine, is confirmed by the resignation of yet another career prosecutor, Nora Dannehy, the number two prosecutor in the Durham investigation.
A country with low or non-existent levels of rule of law is a country characterized by legalized lawlessness. Our parents or grandparents fled from such conditions. If we understand what is at stake right now in this country, we should, with our ability to vote in this presidential election, soundly reject the Trump and Barr attack on the rule of law and vote for Joe Biden, an individual who in his long career in public service, whether as a public defender, a senator on the Senate Judiciary Committee or as vice-president, has always worked to reaffirm and strengthen our country’s level of rule of law.
Bohdan Vitvitsky is a former federal prosecutor and diplomat. He holds a law degree and a Ph.D. from Columbia University.