Should Department of Justice Lawyers Defy William Barr?

On Wednesday, a group called Lawyers Defending Democracy published an extraordinary, open letter addressed to the 100,000 professionals working in the United States Department of Justice. This letter was signed by more than 600 members of the bar from across the United States, including three former American Bar Association presidents, three former state bar presidents, eight former federal judges, and four former state attorneys general.

The letter calls on their DOJ colleagues to refrain from “participating in political misuse of the DOJ in the election period ahead.” It promises that if they “stand up to such misuse — whether via resignation, public statements, or other forms of expressive dissent — they will have broad support in the legal profession.”

It also offers a searing indictment of AG Barr’s leadership of the DOJ. Some of that indictment is familiar, in particular Barr’s politically motivated interference in the Michael Flynn and Roger Stone cases.

But the open letter focuses in particular on a series of statements and actions that have thoroughly politicized the Justice Department. Among these are Barr’s openly partisan comments in support of President Trump’s campaign, his threat to file criminal charges against the Democratic mayor of Seattle, his outrageous equation of COVID-19 inspired state stay-at-home orders with slavery, and his refusal to cooperate with legitimate congressional oversight requests.

Finally, it notes that “Barr’s endorsing the President’s unfounded mail-in ballot fraud claims raises red flags about potentially using DOJ in post-election litigation to undermine the vote.” One especially concerning incident occurred on October 2 when Barr weakened a long-standing policy designed to keep the Department from interfering in elections. The new policy allows U.S. attorneys to make public investigations of suspected election fraud even if doing so might affect the election outcome.

The open letter warns that using the DOJ to undermine or reverse an electoral defeat for the President will be ruinous for the department.

While Barr is likely to dismiss this letter as yet another manifestation of the so-called deep state conspiracy to undermine the President and his administration, it is less a tool of conspiracy than a reminder of the dilemma faced by lawyers who work in complex, hierarchical organizations, like the DOJ, when those organizations are hijacked by an aggressively partisan agenda. In those instances, lawyers may find that directives from their superiors conflict with their ethical and professional obligations as lawyers.

Now is one of those moments.

The Lawyers Defending Democracy letter calls on DOJ employees to honor their professional obligations even if it means defying the AG. Such disobedience is both morally and professionally appropriate.

Situations requiring DOJ lawyers to make such a choice fortunately have been infrequent, though they are not unprecedented. Think of the Palmer raids in 1920, when the Department rounded up thousands of people in 35 cities on suspicion of sympathizing with Communists or anarchists, or the McCarthyite uses of law to persecute domestic Communists in the early 1950s, or the Bush administration’s post-9/11 effort to enlist lawyers to validate its use of torture during the war on terror.

This country has paid a very high price when government employees have followed the direction of politicized leaders rather being than principled defenders of the Constitution, the rule of law, and human rights.

Looking at each of those instances provides neither reassurance nor instills confidence that government lawyers will make good choices in the current moment. Still, the open letter encourages them to do so, and the letter is itself an article of faith in our democracy.

The American Bar Association’s Model Rules of Professional Conduct also offers some help, though in itself it is not sufficient. While those rules are written mostly for lawyers practicing on their own or in settings in which they have substantial discretion and autonomy, they do contain guidance for DOJ lawyers asked to use litigation to suppress the vote or to invalidate the election result.

At the heart of lawyers’ ethics is duty to the client. This duty is paramount whether the lawyer is representing an individual or is working for a public or private organization.

But whom do DOJ lawyers represent? To whom do they owe their allegiance?

DOJ lawyers represent and act on behalf of the American people, and, in addition, they take an oath to defend the Constitution of the United States.

Moreover, the ABA’s Rule 1.13(b) directs lawyers to act “in the best interest of the organization” in which they work when they know that anyone is “engaged in action … that is a violation of a legal obligation to the organization … and that is likely to result in substantial injury to the organization.”

This means that DOJ lawyers must use their best professional judgment to advance the public interest and to protect the Department rather than reflexively pursue any questionable course of action that their superiors may desire. While this may involve some difficult professional judgments, the decision whether to join any effort to undermine or subvert the upcoming election should not be one of them. It is clear that doing so would neither protect the Constitution nor be in the public’s best interest and that it would damage the DOJ itself.

In addition to the strictures of lawyers’ ethics, the Federal Rules of Civil Procedure prohibit lawyers from filing any suit that is “presented for an improper purpose.” Lawyers who bring trumped-up cases to deny voters their right to vote, or to impede a full tally of the vote, would be pursuing such an “improper purpose.”

But more is at stake for DOJ lawyers than their obligation to abide by rules of professional responsibility or the rules governing the litigation process. The Lawyers Defending Democracy letter rightly recognizes that AG Barr’s blatant partisanship endangers the integrity of the DOJ itself and its role in preserving the rule of law.

DOJ lawyers must keep both that integrity and that role in mind in the very difficult circumstances that the AG has created for them. They are carriers of a distinctly public-regarding professional ideal, one which may require them to make personal sacrifices if the leadership of the department in which they work does not recognize or adhere to that ideal.

As the Supreme Court long ago observed, government lawyers are not merely representatives of “an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all, and whose interest…is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law.”

This is a lesson that AG Barr seems to have forgotten and that DOJ lawyers are now called on to exemplify—even if it means defying Mr. Barr and the President he so submissively serves.