Preserving Constitutional Democracy: A Tale of Two Lawyers

Two nationally significant legal stories spread across newspapers on Aug. 2. They flew in opposite directions and reflected opposite kinds of legal leadership and imperatives. The stories carried important meaning for every lawyer—indeed, every citizen—as to what it takes to protect our constitutional republic from the assault former President Donald Trump and many close to him have waged against it over nearly a decade.

Indeed, the lesson that the Aug. 2 stories tell encapsulates the key political-legal battle of our time: the effort to tear down the norms, standards, and guardrails of constitutionalism versus the power of legal institutions to stand, if defended, as bulwarks of freedom and stability.

On one side of the contest was the conduct related in the Washington Post’s striking report about former Attorney General William Barr. It told the tale of his role in allegedly hamstringing a Justice Department investigation about Trump covertly receiving a $10 million gift from Egypt shortly after the 2016 election.

On the defense-of-legal institutions side of the ledger were the views espoused in the early reports on the Aug. 2 American Bar Association (ABA) Task Force on Democracy Report. It is an homage to, and manual for, defending the rule of law. ABA President Mary Smith launched the initiative one year ago.

The Barr Story

The Post reported that in 2019, Attorney General Barr apparently slowed and ultimately stopped an investigation that began with a 2017 U.S. intelligence agency tip. The tip led investigators to uncover significant leads suggesting that Egypt’s dictatorial President Abdel Fattah el-Sissi had directed his intelligence services to give Trump $10 million for his 2016 campaign. That would potentially “violat[e] federal law that bans U.S. candidates from taking foreign funds.”

The special counsel’s office in February 2019 obtained records from the National Bank of Egypt, according to the Post, that revealed that an organization called the “Research and Studies Center” withdrew $9.98 million from the Heliopolis branch of the national bank on Jan. 15, 2017. Weeks earlier, Trump had loaned $10 million of his own to his campaign after first hesitating to do so. The Post reports that that $9.98 million withdrawal came after a company apparently associated with an Egyptian oligarch made a $10 million transfer into the Research and Studies Center’s account in the Egyptian National Bank’s Shanghai branch in the summer of 2016. Shortly before the January 2017 withdrawal, $10 million was transferred from the center’s account in the Shanghai branch to its account in the Heliopolis branch. An Egyptian National Bank manager eventually disclosed that the Research and Studies Center had a “relationship with the Egyptian General Intelligence Agency.”

Barr’s efforts, per the Post, included two talks with Jessie Liu, the Trump-appointed then-District of Columbia U.S. attorney. By June 2019, Liu appeared open to the FBI’s request to issue a subpoena seeking more of Trump’s bank records to examine the factual trail described above—after initially expressing hesitation. Barr shared concerns with others about Liu investigating Trump too aggressively, telling FBI Director Christopher Wray that Liu “doubted that some investigative moves were justified but felt pressured by the agents.” Barr said investigators “needed to ensure that an appropriate legal basis, or predicate, existed before proceeding.” Aggressive investigation—balanced and in line with department standards and traditions, to be sure—is typically considered a virtue in Justice Department circles.

In January 2020, Barr forced Liu to leave her U.S. attorney post early when she was nominated to be an assistant Treasury secretary. As a result, she wasn’t able to keep her prosecutor’s post or continue overseeing the investigation. She could have stayed in her position if her nomination failed—which it did. In June, her ultimate successor under Barr’s watch, Michael Sherwin, closed the investigation without acceding to the FBI’s request to subpoena Trump’s 2017 bank records.

When one looks at the applicable principles of investigation, Barr appears to have been plainly doing his boss’s work, behind the scenes, to undermine two of the applicable investigatory standards. 

First, though Barr was seemingly pressing U.S. Attorney Liu—either directly or through conversations with others—to be sure she had an appropriate legal predicate, the facts the Post reported clearly met the benchmark of proper predication set forth in the FBI’s Domestic Investigations and Operations Guide (DIOG) §7.5 and the parallel Attorney General’s Guidelines for Domestic FBI Operations: There was “an ‘articulable factual basis’ that reasonably indicate[d] … [a]n activity constituting a federal crime or a threat to the national security has or may have occurred, … and [that] the investigation may obtain information relating to the activity or the involvement or role of an individual, group, or organization in such activity.” 

The articulable basis started with an intelligence agency tip about a $10 million foreign transfer from Egypt to Trump, contextualized by President el-Sissi’s alleged desire to contribute $10 million to the Trump campaign. The predication continued with investigative confirmation that Egypt’s Research and Studies Center withdrew almost exactly $10 million just weeks after Trump loaned $10 million in personal funds to his campaign after being reluctant to do so.

Second, the shutting down of the investigation reflects a parallel erosion of DIOG’s §9.12 standard for closing a full investigation: Closing turns on “[w]hether logical and reasonable investigation was completed.” The FBI, according to the Post, believed there were further leads to follow, including obtaining Trump’s bank records in 2017. To us as former prosecutors, that seems an obvious step in a matter of such significance.

The inference of an attorney general’s hammering away at established principles of investigation and prosecution is reminiscent of Barr’s March 2019 distorted handling of the Mueller report. Recall his follow-up campaign to establish that the investigation lacked proper predication. In December 2019, Michael Horowitz, the Justice Department’s inspector general, issued an independent investigative report in which Horowitz concluded that Barr was wrong.

Nonpartisan justice during Barr’s two years atop the Justice Department was often on life support due to his constant assault on the norms and standards that sustain our most important executive branch institution of justice. The Post’s investigative work here is a welcome contrast from the normalization of Trump and the media’s focus on the presidential horse race, rather than on the elevation of impartial justice as a primary stake for voters in the coming election.

The ABA Report 

The ABA’s bipartisan report previewed on Aug. 2 provides parallel relief from the relative quiet of the broader legal profession related to the threat Trump and his enablers pose to our institutions and the norms that undergird them. The report is noticeably bipartisan. Task Force Co-chair Judge Michael Luttig, the conservative judicial icon, is not the only brand-name Republican or one-time Republican lawyer in the group. Larry Thompson, deputy attorney general during the George W. Bush administration, is also an author, along with Benjamin Ginsberg, the exceptional conservative election lawyer who led the successful Bush legal team in the 2000 postelection battles.

Then there are the non-Republican lawyers and other luminaries like Task Force co-chair Jeh Johnson, the one-time Department of Homeland Security secretary, as well as civil rights lawyer Sherilynn Ifill and historian Heather Cox Richardson.

The report calls for defense of the legal institutions that protect all of us from risks to our freedom and from disorder. Three of these calls are particularly salient.

First, the report’s opening words set the context—the serious threat of rising authoritarianism in the nation: “Just as doctors were on the frontlines of the nation’s response to the COVID-19 pandemic, lawyers must now answer the clarion call to defend America’s constitutional democracy and the rule of law.”

The report is not the task force’s first work product. In June, it coordinated the composition and signing of a letter by a group of 120 law school deans that describes essential principles for instructing the next generation of lawyers on how to preserve democracy and the rule of law. For example, it calls on faculty members to teach “students to disagree respectfully and to engage across partisan and ideological divides” and “to support and defend the Constitution and the rule of law.”

These are good first steps by leaders in the legal profession. Major law firms, however, and most bar associations, with notable exceptions like in New York, have not been on the front lines.

Second, the Task Force Report recommends 20 specific actions for helping to preserve the rule of law. Here are a few:                         

1. “Serve as a pro bono lawyer protecting election officials through the Election Official Legal Defense Network.”
2. “Stand up for our … Judges, court workers and our justice system[,] … [e]lection workers and election processes[,] … American democracy and the rule of law.”
3. “Condemn violence or the threat of violence, especially as it relates to our elections and our judicial system.”

It’s worth noting: No one needs legal training to take these last two kinds of actions.

Third, there’s meaningful leadership here in defense of the law’s central role in securing stability, fairness, and equal opportunity. With serious constitutional threats confronting us, President Smith’s introduction recognizes the “imperative for the American Bar Association, and the legal profession it represents, to lead the way in fortifying our democratic institutions.” She warns against taking “our democracy, our rule of law, our civic norms and our freedoms for granted.” And she calls for the “hard work required to keep a free and fair democratic republic.”

Timothy Snyder, in his celebrated pamphlet, “On Tyranny,” identifies the need to “defend institutions” as the second among his 20 lessons for preserving democracy. He writes that “[d]efending institutions means defending the values that should inform them. ... Ultimately the only way to defend institutions is to make them better.” That is precisely what the ABA Task Force on Democracy, launched by Mary Smith, aims to do.

The contrast is stark between the ABA’s commitment to Snyder’s second lesson, and its opposite, as alleged in the Post story. Former Attorney General Barr’s reported intervention and prosecutorial favoritism represent attacks on the value of equal justice without fear or favor that is the mantra of the department he led.

Notably, the ABA once had a reputation as a stodgy organization, unwilling to scale a wall it had constructed between legal matters and the public square. Smith has torn down that wall. It’s clear that Smith had the courage to lead her institution out of the kind of internal divisions that paralyze forward action at a time of crisis.

Perhaps that could happen in a nation as well.