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Barr’s fallacies undermine his own department

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Laura Coates is a CNN legal analyst. She is a former assistant US attorney for the District of Columbia and trial attorney in the Civil Rights Division of the Department of Justice. She is the host of the daily “Laura Coates Show” on SiriusXM. Follow her @thelauracoates. The views expressed in this commentary are her own. View more opinion on CNN.

(CNN)Attorney General Bill Barr’s written opening statement to the House Judiciary Committee was replete with mischaracterizations, fallacies and unnerving stereotypes that run afoul of the principle of equal justice — and which, taken together, show how he has transformed the Department of Justice that enforces the law to a department that undermines the rule of law.

These are but a few lines that should evoke a visceral reaction to the views of a man who sits at the helm of the most powerful prosecutorial office in the country.
1. “Ever since I made it clear that I was going to do everything I could to get to the bottom of the grave abuses involved in the bogus ‘Russiagate’ scandal, many of the Democrats on this Committee have attempted to discredit me by conjuring up a narrative that I am simply the President’s factotum who disposes of criminal cases according to his instructions.”
No, Attorney General Barr, you are not being accused of being a factotum, colloquially defined as a handyman. You stand accused of being a henchman who acts not only under the President’s instructions but, perhaps more nefariously, exclusively in the President’s interests. And what conveys this impression is not a deceptive narrative crafted by the Democratic members of the House Judiciary Committee, but rather your own conduct.
Case in point: undermining career prosecutors in what appears to clearly be the interests of President Donald Trump. Not once can I recall an attorney general weighing in on a career prosecutor’s sentencing recommendations for a defendant convicted of multiple felonies by a jury. Yet, this appears to be an increasingly frequent endeavor by this Attorney General on behalf of Trump associates, including, most recently former National Security Adviser Michael Flynn and the President’s long-time friend Roger Stone.
The disturbing trend is underscored by the fact that the one convicted felon who has fallen out of the President’s favor, Trump’s former lawyer Michael Cohen, felt the knife twisted rather than removed when the Justice Department recently, albeit briefly, sent him back to prison under questionable circumstances.
And Barr’s misuse of terms continues with the use of the term “Russiagate.” The use of the suffix “gate” insinuates that it is conspiratorial, farcical and worthy of derision. And yet, the Attorney General has confirmed, as recently as today’s colloquy with Louisiana Rep. Cedric Richmond, that Russia did interfere with the past presidential election and will presumably continue to interfere with our upcoming presidential election. Perhaps the nod to conspiracy theorists was inadvertent in light of overwhelming evidence he fails to dispute.
2. “Like his predecessors, President Trump and his National Security Council have appropriately weighed in on law-enforcement decisions that directly implicate national security or foreign policy, because those decisions necessarily involve considerations that transcend typical prosecutorial factors.”
No one doubts the propriety of the President of the United States and members of his National Security Council to get involved in cases that directly implicate the national security of this nation or those matters that directly relate to our foreign policy interests. What is in doubt is whether Barr’s defense of deploying federal agents to US cities is anything more than a pretextual reason to infringe upon the constitutional rights of Americans, namely their First Amendment rights to assemble and to protest their grievances with the government. A bald assertion of a national security interest does not absolve the executive branch from having to provide an appropriate and lawful justification when constitutional rights are implicated. And yet Barr has offered no compelling reason.
3. “I had nothing to prove and had no desire to return to government. … When asked to consider returning, I did so because I revere the Department and believed my independence would allow me to help steer her back to her core mission of applying one standard of justice for everyone and enforcing the law even-handedly, without partisan considerations.”
This is just laughable. He had no desire to return to the government? I have a June 2018 memo that says otherwise. It was entirely unsolicited, offered Barr’s insight on special counsel Robert Mueller’s handling of an investigation into Russia’s interference in our presidential election and read like a solicitation for a job. And lo and behold, he got his wish. Now, Barr has launched an investigation into the origins of what he calls “Russiagate” that seems to track the very outline he presented when he, ahem, had no desire to put skin in the game.
Barr’s suggestion that he was compelled to return to the helm out of a sincere interest to restore the objectivity and credibility of the Department of Justice is belied by his decision-making. His sentencing decisions that seem to show political favor, his failure to justify the use of force against peaceful protestors and his involvement in the removal of Geoffrey Berman, the former Attorney General for the Southern District of New York, comprise just a handful of the many instances where his conduct has undermined — not restored — the credibility of the Justice Department.
4. “It was not until the 60’s that the Civil Rights movement finally succeeded in tearing down the Jim Crow edifice.”
I wish Jim Crow were an edifice, because then it could have been destroyed with the ease of bulldozing a building. I wish it were something tangible, because then it could have been dispensed with the ease of crumpling a piece of paper. Instead, it was not ever, and is not now, something tangible.
Jim Crow didn’t create racial bias — it codified and immorally legitimized segregation with government sanction. The Attorney General somehow believes that the physical deletion of such laws from the criminal code deleted the mental bias. It did not. Systemic racism persists, and the inability to act on that bias is perpetuated by a criminal justice system that fails to ensure accountability, let alone one helmed by an attorney general who fails to admit it even exists. I suggest he inform his Civil Rights Division that their necessary work is obsolete. I assure you it would be news to them.
5. “The threat to black lives posed by crime on the streets is massively greater than any threat posed by police misconduct. The leading cause of death for young black males is homicide.”
I have no intention of relying on the statistics given by the Department of Justice until they release a full accounting of officer-involved excessive force claims, both lethal and non-lethal. Until then, we are left at the mercy of the department which, under the Trump administration, has rolled back consent decrees between multiple police departments and communities that could have furthered efforts to secure accountability and transparency — and provided the very information he touts today.
But even if I were inclined to rely on the statistics offered by Barr, his own numbers fatally undermine the very point he strives to make. African Americans represent approximately 13% of the population, yet this year, according to Barr’s opening statement, account for only three less killings at the hands of police of a white population that represents more than 60% of the population. Does Barr offer a sound explanation for their overrepresentation? No. Instead, he offers deflection and insists it is not as bad as other killings, specifically murder by Black assailants.
The existence of Black on Black crime is wholly irrelevant to a discussion of officers involved in the killings of unarmed Black people. They are both horrific, equally problematic and independently worthy of action. I am fascinated (and frustrated) by this overused vehicle of whataboutism. In no other context do we require victims of violence to choose between cries for justice.
Black communities have always decried the loss of Black lives — in fact any loss of life — under any circumstances. Given the recent attention the phrase has garnered, the notion that “Black Lives Matter” may appear to be a novel concept, but it has been the fundamental premise to every call for equality since from at least the rejection of African Americans as three-fifths human in US history.
And yet the Attorney General leaves the impression that Black Americans can either choose between ending Black on Black crime or officer on Black crime. No one else is forced to make that choice. White men do not have to choose between tackling either gun control or suicide rates. Women don’t have to choose between Time’s Up or Me Too.
But for Black Americans victimized by extreme violence, it comes down to an either-or. Why is that? And why, given the overwhelming evidence that violence against communities of color is not anecdotal but systemic, does Barr choose to focus on the statements of South Carolina Sen. Tim Scott (the sole Black Republican in the Senate) and an unidentified “prominent Black professional” as his only basis to legitimize the experience of Black Americans? Thank goodness for those two conversations, otherwise we might not be able to believe everyone else’s anecdotes.
6. “Every year approximately 7,500 black Americans are victims of homicide, and the vast majority of them—around 90 percent—are killed by other blacks, mainly by gunfire. Each of those lives matter. And it is not just crimes that snuffs out lives. Crime snuffs out opportunity. Children cannot thrive in playgrounds and schools dominated by gangs and drug pushers. Business do not locate in unsafe neighborhoods. When the police are attacked, when they are defunded, when they are driven out of urban communities, it is black lives that will suffer most from their absence.”
Even more insulting is the not too subtle implication that Black people, left to their own devices, would transform utopia to bedlam without significant police presence. And but for those police, our communities would be ravaged by drugs, crime and devoid of businesses. Historic inequities, economic and sociological, gentrification, redlining, housing discrimination, racism, predatory lending, educational inequality, employment discrimination, not to mention the impact of the now-infamous Crime Bill of 1994 on mass incarceration, were not even a part of the calculus in the Attorney General’s assertion. Instead he suggests that it is the rest of the world that has oversimplified the issue by identifying racism as the core issue.
Whoever said racism was simple? If it were simple, it would have already been eradicated. It is an umbrella term for a variety of discriminatory factors that lead to the unequal treatment of human beings on the basis of prejudice. It’s not the convenient short answer to a crossword puzzle. Since Barr seems to enjoy the concept of relativity, let me offer you the sage words attributed to Albert Einstein: “If you can’t explain something simply, you don’t understand it well enough.” Attorney General Barr, it would behoove you to understand.
7. “In the wake of George Floyd’s death, violent rioters and anarchists have hijacked legitimate protests to wreak senseless havoc and destruction on innocent victims.”
The peaceful protests in reaction to the actual killing of George Floyd and in symbolic recognition of the unprosecuted killings of unarmed men, women, boys and girls of color by members of law enforcement were righteous. There were also people who sought to exploit these peaceful protests for self-gain by engaging in destructive, unlawful behavior including vandalism, arson and looting. The latter group’s attempt to hijack the message of social justice and accountability is unconscionable.
But the unfair conflation of the motives and actions of both the righteous and the criminal is similarly beyond reproach. The conflation caricaturizes the peaceful protestors as ill-advised, unconscionable derelicts lying in wait for an officer to kill someone so they could go break a window and steal a pair of shoes. The characterization is specifically intended to create the impression that the righteous and the criminal are ideological twins who must be suppressed with federal force — be it with tear gas or arrest. The conflation provides a pretextual reason to justify the use of federal agents.
Similarly, Attorney General Barr is attempting to hijack the message of peaceful protests by perpetuating the myth that these two groups are in any way related and use that myth to advance a political agenda. We all take issue with arsonists. They should be prosecuted. But you can’t condemn an arsonist, and then start your own fire and expect praise for putting it out.
This is precisely what the Attorney General risks doing when he stands by as unidentified agents grab protesters and put them into unmarked SUVs. Though Acting Department of Homeland Security Secretary Chad Wolf may say agents were simply protecting federal property, their mere deployment in this way poses a physical threat to civilians and officers alike because it invites the use of force and the exercise of self-defense. It contributes to a vicious cycle that will only fuel a narrative that more force is needed.
Attorney General Barr’s comments are a disappointment to the career prosecutors of the Justice Department. People are already skeptical about how tight Lady Justice’s blindfold really is. Now, every time a prosecutor stands and announces her service on “behalf of the people,” she risks being construed as “on behalf of one person” — a political audience of one.
And, mind you, this was just Barr’s opening statement.

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