This article is a follow up to one I did yesterday summarizing a court decision where the judge suggested Former Attorney General William Barr lied to Congress and his DOJ filed knowingly false affidavits in court. The Attorney General’s duplicity was related to the DOJ’s supposedly broadly considered conclusion that Mueller’s investigation failed to prove Former President Trump obstructed justice.
Today I followed up by filing a formal Complaint with disciplinary board of the District of Columbia Bar against Former Attorney General Bar. The narrative of my complaint was as follows:
The subject of this Complaint is William Barr, the former Attorney General of the United States. This Complaint focuses on the findings of Judge Amy Berman Jackson, in the United States Court for the District of Columbia, in a decision released on May 3, 2021. This decision is available at: https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2019cv1552-27
On March 22, 2019 Robert Mueller submitted his well known report to then Attorney General Barr. Rather than immediately release the report Barr held it for weeks. However, on the very day Mueller gave him the massive 400 page report, Barr released a controversial letter “summarizing” Mueller’s conclusions. Among the summarized assertions was that Mueller “did not draw a conclusion — one way or the other” as to whether President Trump obstructed justice and that this left the question in the hands of Attorney General. Barr then declared that “the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense.”
In later testimony to Congress Barr asserted that he, and the Deputy Attorney General, in consultation with other DOJ lawyers, reached this conclusion.
Citizens for Responsibility and Ethics in Washington (“CREW”) promptly submitted a Freedom of Information Act (FOIA) request seeking any documents relating to the consultations asserted. After a series of partial disclosures by the DOJ, CREW sued to get more, to include a memo to Barr from DOJ legal counsel discussing the issue. On May 3, 2021 Judge Amy Berman ruled the DOJ must release the memo.
Judge Berman’s reasons for this decision form the basis for this disciplinary complaint. Judge Berman found that Barr appears to have misled Congress about the supposed consultations informing his decision. The court also found that Barr’s Department of Justice filed pleadings in court about the memo that were so misleading as to be “bad faith.”
Barr’s DOJ claimed the memo was protected by the “deliberative process privilege” which is designed to protect deliberations related to agency decision making to allow unhindered advice towards that decision. One of the self evident criteria for this privilege is that the communications protected by must be “predecisional and deliberative.” If the communications are after the decision is already made they are obviously not facilitating deliberation on the decision.
In essence, the memo itself revealed that it was not predecisional but rather was done only to justify an already made decision. Judge Amy Berman Jackson discovered that the memo was post-decisional because the memo itself made that clear after she ordered in camera of the document. Barr’s DOJ vigorously resisted this in camera review, a routine procedure.
The court agreed with CREW that the memo was not to “make a recommendation or express an opinion on a legitimate legal or policy matter. Instead, it was part of a larger campaign initiated by Attorney General Barr to undermine the Special Counsel’s report and rehabilitate the President.” The court found “the review of the document reveals that the Attorney General was not then engaged in making a decision about whether the President should be charged with obstruction of justice; the fact that he would not be prosecuted was a given.”
Judge Berman declared that CREW’s speculation as to what was in the memo, and that it would reveal the nefarious reasons the DOJ wanted to conceal it, was more accurate than the DOJ’s representations to the court of the memo made before the in camera review. As Judge Berman put it: “while CREW had never laid eyes on the document, its summary was considerably more accurate than the one supplied by the Department’s declarants.”
While the parts of the still unreleased memo explaining this are redacted in the decision, the court states that the memo “calls into question the accuracy of Attorney General Barr’s March 24 representation to Congress” where he told Congress:
“The Special Counsel’s decision to describe the facts of his obstruction investigation without reaching any legal conclusions leaves it to the Attorney General to determine whether the conduct described in the report constitutes a crime.”
Further, the court found that the in camera review of the memo “raises serious questions” as to how the DOJ could in good faith make a series of representations in court that the memo:
“contains their candid analysis and advice provided to the Attorney General prior to his final decision on the issue addressed in the memorandum — whether the facts recited in Volume II of the Special Counsel’s Report would support initiating or declining the prosecution of the President . . . . It was provided to aid in the Attorney General’s decision making processes as it relates to the findings of the Special Counsel’s investigation.”
The court noted a presumption in favor of the truth for agency affidavits when “they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.” The court then stated “but here, we have both.” That’s both contradictory evidence AND bad faith. Judge Berman found “the affidavits are so inconsistent with evidence in the record, they are not worthy of credence.” The allegation of dishonesty towards the court is then made more clear:
“DOJ has been disingenuous to this Court with respect to the existence of a decision-making process that should be shielded by the deliberative process privilege. The agency’s redactions and incomplete explanations obfuscate the true purpose of the memorandum, and the excised portions belie the notion that it fell to the Attorney General to make a prosecution decision or that any such decision was on the table at any time.”
The court concluded with this rather devastating summary:
“The Court emphasizes that its decision turns upon the application of well-settled legal principles to a unique set of circumstances that include the misleading and incomplete explanations offered by the agency, the contemporaneous materials in the record, and the variance between the Special Counsel’s report and the Attorney General’s summary.”
To summarize, Judge Berman suggests Former Attorney General Barr lied to Congress by falsely representing the supposedly carefully deliberative process, involving many DOJ lawyers, that concluded the President did not obstruct justice. Instead, of the deliberative and consultive process Barr described to Congress the decision to not prosecute the President was, as Judge Berman described it, “a given.” Knowingly false statements to Congress would violate 18 U.S.C. § 1001.
In addition, Judge Berman’s decision suggests that Attorney General Barr may have suborned perjury and a lack of candor towards the tribunal. Judge Berman describes various affidavits, or other representations, filed by representatives of the DOJ that falsely represented the contents of the disputed memo as candid advice that was “provided to aid in the Attorney General’s decision making processes” on a decision yet to be made. In fact, the memo purpose was solely to justify a decision already made. Judge Berman characterized the affidavits as so “inconsistent with evidence in the record, they are not worthy of credence.” These affidavits were submitted with the DOJ’s 2020 motion to dismiss while Barr was Attorney General. This conduct potentially violates 18 U.S.C. § 1622 for subordination of perjury.
The most frequently cited affidavit by Judge Berman, and one she clearly regarded as lacking credence and submitted in bad faith, was done my Paul Colborn, the Special Counsel in OLC. The affidavit is dated August 12, 2020 which is while Attorney General Barr was in his position. Colborn’s affidavit is available here: https://www.citizensforethics.org/wp-content/uploads/legacy/2019/05/2020-8-12-15-3-Dec.-Colborn.pdf
This conduct also reflects a lack of candor towards the tribunal in violation of District of Columbia Bar Rules for Professional Conduct which prohibits a lawyer from making or assisting in making false statements of fact to the court. Notably, Judge Berman directly cited the DOJ’s “lack of candor” as a basis for her decision.
I believe former Attorney General Barr’s conduct (and potentially that of other DOJ Attorneys working for him) in this matter potentially violates the following D.C. Bar Rules for Professional Conduct.
Rule 1.3(b)(1): For intentionally failing to seek the lawful objectives of a client through reasonably available means permitted by law and the disciplinary rules.
Rule 3.1: “A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good-faith argument.” Judge Berman determined that the filings in her court lacked a basis in fact, that they were so contradicted by the record as they deserved no credence and that they were advanced in bad faith.
Rule 3.3: Lack of candor towards the tribunal as discussed above.
Rule 3.4(b): “A lawyer shall not “falsify evidence, counsel or assist a witness to testify falsely.” As described above the DOJ under Barr’s leadership, submitted affidavits to the court falsely representing the memo sought by CREW.
Rule 4.1: “a lawyer shall not knowingly make a false statement of material fact or law to a third person.” As discussed above, Former Attorney General Barr falsely represented to Congress what he claimed was a deliberative and consultive process involving many lawyers, before reaching the decision that President Trump’s conduct did not rise to obstruction of justice. In fact, the decision was, as Judge Berman concluded, a foregone conclusion where the only input from other DOJ attorneys was to justify that decision.
Rule 8.4: for misconduct. In particular, Attorney General Bar potentially violated subparagraphs a — d of this rule.
(a) Violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
(b) Commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects;
(c) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation;
(d) Engage in conduct that seriously interferes with the administration of justice.
As described above there is evidence Barr suborned perjurious affidavits submitted to the court by DOJ employees. One of these employees is identified by Judge Berman’s decision as Paul P. Colborn, the Special Counsel in the OLC. I would urge the Board to investigate his conduct as well. Colborn’s affidavit, that Judge Berman found so lacking in credence, is available at: https://www.citizensforethics.org/wp-content/uploads/legacy/2019/05/2020-8-12-15-3-Dec.-Colborn.pdf