Lonnie Brown on William Barr, Ramsey Clark, and the necessity of independence
In light of AG William Barr’s recent testimony before the House Judiciary Committee we present Lonnie T. Brown, Jr.’s January 2020 blog post for Defending the Public's Enemy ».
During his confirmation hearing, William Barr touted his ability to distance himself from politics and to safeguard the rule of law, declaring, under oath, that as attorney general he would be “truly independent." To many, Barr’s words provided comfort or at least hope that he would be guided by law and principle, not the president’s political agenda. However, since being confirmed, his actions have revealed the illusory nature of his sworn declaration.
Rather than exhibiting the fairmindedness and objectivity expected of the nation’s chief law enforcement officer, Barr seems to have established a de facto attorney-client relationship with President Trump, serving as his strident advocate and partisan defender. For example, in March, he zealously made the president’s case for “no collusion” by publicly recasting the substance and tenor of Robert Mueller’s report on the investigation into Russian interference in the 2016 election.
More recently, in a similar vein, the attorney general sharply criticized the findings of the Justice Department’s Inspector General’s report on the FBI’s investigation into Russian involvement in the president’s 2016 campaign. That report concluded that the FBI had adequate grounds to open the investigation and was not politically motivated. In a rather transparent effort to parrot President Trump’s “witch-hunt” narrative, Barr characterized the FBI’s investigation as having been based on the “thinnest of suspicions” that he personally believed to be “insufficient to justify the steps taken.”
My guess is that a large segment of the electorate, across the political spectrum, sees nothing wrong with or surprising about Attorney General Barr’s alignment with the president, or any attorney general’s close relationship with a president, for that matter. Such a rapport is by no means simply a Republican phenomenon. President Obama’s attorney general Eric Holder, for instance, once referred to himself as the president’s “wingman,” connoting that his job was to have the chief executive’s back.
Should this dynamic simply be the accepted state of affairs? The president gets to select a close ally as attorney general with the expectation that this individual will loyally do his legal bidding? If you agree with the president on most issues, this model is probably not of great concern. However, if your views differ, especially in areas such as criminal justice or individual liberty, or when the commander-in-chief is believed to have acted unlawfully, then an attorney general acting as a presidential confederate becomes far more problematic.
The contemporary symbiotic relationship between the president and attorney general is contrary to the generally accepted notion—statutorily embodied—that the attorney general, as head of the Department of Justice (DOJ), represents the United States and oversees all attorneys employed on behalf of the United States. The primary objective of the DOJ is to ensure the fair and evenhanded administration of justice, an aspiration best achieved when the department is led by an independent chief prosecutor, not one beholden to the partisan, self-interested desires of the president.
Fifty years ago, our nation had an attorney general who epitomized this ideal like no one before or since. His name was Ramsey Clark, and William Barr would be wise to take note of Clark’s legacy. Though widely overlooked today or else condemned for his numerous post-government controversial representations, Clark’s stint as head of the DOJ is singularly worthy of close examination because of his unflinching independence and dedication to preserving the integrity of the rule of law.
Ramsey Clark served as attorney general from 1967-69, one of the most tumultuous periods in our nation’s history. The streets of urban America erupted with race riots, spawned largely by African American citizens’ frustration over the combative relationship between law enforcement and their communities, as well as the imperceptible progress on the civil rights front, more generally. At least this was one view regarding the causes of the racial unrest.
Another perspective, shared by President Lyndon Johnson, was that there were outside agitators fomenting rebellion, possibly under communist influence. He was convinced that Black Power activists Stokely Carmichael and H. Rap Brown were the principal culprits, and he pressured Clark to prosecute the two men. Members of the president’s Cabinet and other political leaders vocally seconded Johnson’s prosecutorial directive. Clark, however, refused to succumb to these demands, insisting that the evidence simply did not support charges against either man.
More broadly, President Johnson’s attorney general resisted political calls for increased law and order in response to the rioting. Rioters were portrayed as lawbreakers who needed to be punished, forcefully if necessary. In the aftermath of riots spawned by Martin Luther King, Jr.’s assassination, Chicago Mayor Richard Daley infamously proclaimed that police officers should have been given orders to shoot looters to maim and arsonists to kill. Clark took it upon himself to issue a public rebuke. He suggested that if police officers wanted to catch rioters, they ought to get some sneakers, and threatened Mayor Daley with prosecution if his call for government-sanctioned violence was heeded.
It is not easy to take unpopular stands or to push back against powerful political influences. That, however, is exactly what America’s top lawyer should be willing to do in the name of justice and fairness.
Given the political climate of the times, critics attacked Clark’s sympathetic, protectionist approach as weak. Throughout his successful candidacy, future President Richard Nixon characterized Clark as “soft on crime,” and at every campaign stop promised that the first thing he would do, if elected, was get a new attorney general.
Clark’s independence concerning matters of civil rights and criminal justice made him a liability to President Johnson and the Democratic Party as a whole. Nevertheless, politics aside, in retrospect, his independence seems courageous and appropriate, particularly in view of the lawlessness subsequently exhibited by the Nixon administration with a DOJ leader (John Mitchell) who lacked Clark’s backbone and integrity.
Examples of Ramsey Clark’s independence are legion, and his unyielding adherence to this principle eventually destroyed his long relationship with the president, an association dating all the way back to his childhood—Ramsey’s father, U.S. Supreme Court Justice Tom Clark, and the president were close friends. Neither family friendships nor personal admiration for President Johnson prevented Ramsey from fulfilling his role. He was the chief attorney for the United States; the people’s lawyer, not the president’s.
Attorney General Clark may not have always been right, but he always exercised independent professional judgment in making decisions, many of which profoundly affected our nation’s history. It is not easy to take unpopular stands or to push back against powerful political influences. That, however, is exactly what America’s top lawyer should be willing to do in the name of justice and fairness.
Lessons from the past can often inform the present. It’s not too late for our current attorney general to learn from the example of a predecessor for whom independence truly mattered.
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