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Should Bill Barr Be Disbarred?

Just look at the attorney general’s ethics violations.
July 24, 2020
Should Bill Barr Be Disbarred?
(Hannah Yoest / photos: Gettyimages)

Attorney General William Barr’s tenure in office has been as tumultuous as any in American history. During his time as AG, Barr has politicized the Justice Department, acted as if he represented the interests of the president rather than the United States, and made a series of decisions that have undermined the morale of DOJ lawyers.

What has been missing amid all that criticism is an assessment of Barr’s conduct as a lawyer and whether it meets his profession’s ethical standards.

On Wednesday a group of distinguished members of the District of Columbia Bar forced that question by alleging that the attorney general has committed a series of serious violations of his ethical obligations as a lawyer.

That the attorney general must be an exemplary lawyer is highlighted in the Judiciary Act of 1789, which created that position, and by subsequent codifications of the attorney general’s duties.

The Judiciary Act called for the appointment of a person “learned in the law, to act as attorney general for the United States.” Among the office’s special responsibilities are that the attorney general shall “give his advice and opinion upon questions of law when required by the President of the United States, or when requested by the heads of any of the departments.”

At the time of Barr’s appointment, many thought he would be well suited for the role. He seemed to be a paragon of legal virtue, a lawyer’s lawyer, and someone who would respect the highest ideals of the legal profession.

His supporters thought he would be, what Yale law professor Anthony Kronman has called, a “lawyer-statesman”: A person of good character who is widely respected for his or her nuanced judgments about complex problems and for being devoted to the public good.

If only.

After the chaotic terms of Attorney General Jeff Sessions and his interim successor, the spectacularly unqualified Matthew Whitaker, Barr’s supporters highlighted his stellar legal credentials and claimed that he would take his place among those AGs who eschewed a partisan, political role and were exemplary lawyers.

They hoped he would follow in the footsteps of attorneys general like Calvin Coolidge’s attorney general, Harlan Fiske Stone, and Edward Levi, who served under President Gerald Ford. Both of them came to office in the wake of scandals. Stone took office after the Teapot Dome scandal and Levi after Watergate. Both were among the best and most respected lawyers of their time.

That Barr has disappointed those expectations is made clear in this week’s complaint, which was signed by 27 lawyers and teachers of legal ethics, four of whom are past District of Columbia Bar presidents.

It offers a tightly argued indictment of the attorney general, citing chapter and verse from D.C. Rules of Professional Conduct, Disciplinary Rules, and applicable law. While it is written by lawyers for an audience of lawyers, it is an important reminder that we can and should expect more from legal professionals than what Barr has done.

The complaint notes that subjecting all lawyers to stringent ethical standards is necessary “To enable the American people to have confidence in the fairness, justice and impartiality of the legal system and enable clients to have confidence in their lawyers.”

It suggests that lawyers must “avoid dishonesty, deceit, misrepresentation, or serious interference with the administration of justice” and that lawyers must “zealously represent the lawyer’s own client’s interests—not a third party’s interests or the lawyer’s own personal interest.”

And because lawyers swear to support the laws and Constitution, “violations of that oath can be sanctioned” under the District’s disciplinary rules.

The complaint says that Barr has repeatedly violated lawyers’ ethical obligations. It alleges that he has been dishonest and deceitful, that he has impeded the impartial administration of justice, and that he has failed to zealously represent his real client, the people of the United States.

It calls out Barr for his misrepresentation of the Mueller Report and for “half-truth, mischaracterization, and deceptive concealment of facts” in his criticism of an inspector general report on the Russia probe. Such conduct is incompatible with the lawyers’ ethical obligation to deal honestly.

The complaint also claims that the attorney general violated the D.C. Bar’s rules when he went on television to criticize former FBI officials’ decisions regarding the Russia probe and to suggest that they could be prosecuted. It calls Barr’s statements an example of an effort to influence potential criminal proceedings.

And it notes that “It is professional misconduct for a lawyer to: . . . [e]ngage in conduct that seriously interferes with the administration of justice.”

The complaint is especially harsh in criticizing Barr for his complicity in the dispersal of peaceful protestors at Lafayette Square on June 1. Here again it suggests that the failure was a professional, not political, matter.

On that occasion Barr

violated his D.C. Bar ethical obligation to avoid conflicts of interest. The personal interest of a “third party”—President Trump—was diametrically opposed to that of Mr. Barr’s “client”—the United States.

Of course, we shouldn’t expect a speedy—or even any—resolution to this complaint. Bar disciplinary proceedings are notoriously slow, secret, and not very effective in creating accountability in the legal profession. If Bill Barr decides to some day return to private legal practice, he is unlikely to be impeded.

Nonetheless, by highlighting Barr’s failings as a lawyer the complaint filed with the D.C. Bar has done a real service both to the legal profession and the country. It is an important statement about what the legal profession can and should be, and of lawyers’ crucial role in a society committed to the rule of law.

Talking to a group of law graduates about their future work, Professor Bruce Ackerman got it right when he said that the legal profession is not just a line of work. It is, he noted, a “calling” which requires “the highest exercise of your higher selves.”

Unfortunately, this is a lesson Attorney General Barr seems to have forgotten.

Austin Sarat

Austin Sarat is associate provost and associate dean of the faculty and William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. He is the author of The Death Penalty on the Ballot: American Democracy and the Fate of Capital Punishment.