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Report on the Department of Justice and the Rule of Law Report on the Department of Justice and the Rule of Law Under the Tenure of Attorney General William Barr Issue date: October 12, 2020 By Center for Ethics and the Rule of Law Ad Hoc Working Group in partnership with Citizens for Responsibility and Ethics in Washington Contents I. Description of Project, Methodology, and Working Group Members ............................. 3 II. Executive Summary .............................................................................................................. 6 III. Introduction ......................................................................................................................... 16 IV. Historical Background ........................................................................................................ 20 1. The Department of Justice and the Levi-Bell Reforms................................................ 20 2. William Barr’s Authoritarian Vision of Executive Power .......................................... 24 V. Issues in Barr’s Department of Justice .............................................................................. 28 1. DOJ’s Handling of the End of Special Counsel Mueller’s Investigation ................ 28 a. Barr’s Role in Oversight of Special Counsel Mueller’s Investigation ...................... 29 b. Barr’s Mischaracterization of the Mueller Report .................................................... 30 c. Excessive Redactions in the Released Version of the Mueller Report ..................... 31 2. DOJ’s Handling of the Ukraine Investigations ......................................................... 32 a. The Ukraine Whistleblower Complaint .................................................................... 33 b. DOJ and the Ukraine Whistleblower Complaint ....................................................... 33 3. Counter-Investigations and Possible Coordination Across the Branches .............. 37 a. Origins of the Durham Investigation ......................................................................... 37 b. John Durham and His Task Force ............................................................................. 40 c. The Horowitz Report ................................................................................................. 45 d. Durham Investigates the Intelligence Community .................................................... 50 e. Barr’s Ongoing Commentary on the Durham Investigation ..................................... 53 f. Chilling the Intelligence Community’s Analysis ...................................................... 57 g. Applying Criminal Prosecution Standards to Foreign Intelligence Analysis ............ 59 h. Barr’s Claims About “Unmasking” ........................................................................... 65 i. Continuing Threats to National Security ................................................................... 70 4. Politicization of DOJ Criminal Investigations and Prosecutions ............................ 72 a. Veracity of Attorney General Barr ............................................................................ 72 b. Selective Dismissals and Sentencing Recommendations .......................................... 83 c. Pardons ...................................................................................................................... 85 5. Potential Abuse of Federal Emergency Powers ........................................................ 87 a. The Southern Border ................................................................................................. 88 b. Coronavirus and the Federal Response ..................................................................... 90 c. Federal Action Against Protesters ............................................................................. 95 d. Classifying “Antifa” as a Terrorist Organization .................................................... 100 6. Firing of Politically Independent Federal Employees ............................................ 109 a. Firing of Inspector General Michael Atkinson ........................................................ 109 b. U.S. Attorney for the Southern District of New York ............................................. 112 7. Politicization of the Intelligence Community .......................................................... 115 a. Transfer of Declassification Authority to the Attorney General ............................. 116 b. The Danger of Politicizing Systems for Protecting Classified Information ............ 130 8. Other Failures to Prevent DOJ Politicization ......................................................... 138 a. Politicization in the Antitrust Division .................................................................... 138 b. Hatch Act violations ................................................................................................ 146 c. Recusal at the Department of Justice ...................................................................... 147 d. Judicial Selection ..................................................................................................... 156 1 e. Resistance to Congressional Oversight ................................................................... 161 VI. Findings .............................................................................................................................. 168 VII. Recommendations ............................................................................................................. 175 VIII. Appendices ........................................................................................................................ 180 APPENDIX A: Lafayette Square Incident .......................................................................... 180 APPENDIX B: Responses to Violent Extremism .............................................................. 191 APPENDIX C: The Office of Legal Counsel in Barr’s DOJ .............................................. 203 APPENDIX D: Primer on Masking and Minimization Procedures ................................... 226 APPENDIX E: Information Potentially Relevant to the Removal of U.S. Attorney Geoffrey Berman ......................................................................................................................... 236 APPENDIX F: Interview Invitations .................................................................................. 251 APPENDIX G: Knight Letter .............................................................................................. 252 The views of the CERL-CREW Ad Hoc Working Group do not necessary reflect those of CERL and its Executive Board, CREW and its Board of Directors, or any other entity. 2 I. Description of Project, Methodology, and Working Group Members Working Group Chairs: From CERL: Claire O. Finkelstein is the Algernon Biddle Professor of Law and Professor of Philosophy and Faculty Director of the Center for Ethics and the Rule of Law (CERL) at the University of Pennsylvania Carey Law School. CERL is a non-partisan university center dedicated to preserving and promoting ethics and the rule of law in national security, warfare, and democratic governance. She has written extensively on the law of armed conflict and democratic governance and teaches national security, professional responsibility, and the law of armed conflict. Richard W. Painter is the S. Walter Richey Professor of Corporate Law at the University of Minnesota Law School and a member of the Advisory Council of CERL. He was the chief White House ethics lawyer under President George W. Bush, is an Associate Reporter for the American Law Institute Principles of Government Ethics and has taught and published for several decades on professional responsibility, government ethics, business ethics, and securities regulation. He has commented extensively on multiple television and radio outlets. From CREW: Noah Bookbinder is the Executive Director of Citizens for Responsibility and Ethics in Washington (CREW). He ascended to the position in March 2015 after serving as the Director of the Office of Legislative and Public Affairs at the United States Sentencing Commission, Chief Counsel for Criminal Justice for the United States Senate Judiciary Committee, and a trial attorney for the Department of Justice Public Integrity Section. His expertise lies in the field of public corruption, where he has taught classes at George Washington University Law School and Howard University School of Law. Working Group Members: Jennifer Ahearn is CREW’s Policy Director. She previously served in the Office of General Counsel of the U.S. Sentencing Commission and as a law clerk to Judge Thomas B. Russell of the U.S. District Court for the Western District of Kentucky. She has worked mainly on issues of criminal public corruption law and written for various outlets. Virginia Canter, former Chief Ethics Counsel at CREW, has served as Ethics Advisor to the IMF, White House Associate Counsel to Presidents Clinton and Obama, Senior Ethics Counsel for the Department of the Treasury, Assistant Ethics Counsel for the Securities and Exchange Commission, and General Counsel for the National Endowment for the Humanities. George Croner is a senior fellow in the program on national security at the Foreign Policy Research Institute (FPRI) and a member of CERL’s Advisory Council. His specialties include the 3 law of electronic surveillance, intelligence-gathering, and FISA. George oversaw signals intelligence and FISA compliance at the Operations Division
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