As former White House ethics officials, we were stunned to hear attorney general nominee William Barr testify in his Senate confirmation hearing that he is not required to follow recusal advice from the Justice Department's career ethics officials. When asked about recusing from special counsel Robert Mueller's Russia investigation, Barr inexplicably opined that “under the regulations, I make the decision as the head of the agency as to my own recusal.” Barr explained that he would not follow the ethics officials' recommendation should he disagree with their advice.
Barr has substantive experience and knowledge, having previously served as attorney general, deputy attorney general and head of the Office of Legal Counsel at the Justice Department in the George H.W. Bush administration. Barr also has an outstanding reputation in the legal community, in which he served for many years as corporate counsel and in private practice.
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But Barr is wrong on the ethics law. His approach to recusal, if pursued, may cause irreparable damage not only to the Justice Department’s ethics program but single-handedly undermine ethics programs governmentwide. Unlike the president, attorneys general are not exempt from the relevant provisions of the Standards of Ethical Conduct for Employees of the Executive Branch. They are obligated like all agency heads to follow established ethics protocols addressing the appearance of loss of impartiality.
Barr is correct on one count — there is some discretion as to whether to recuse from specific matters that give rise to the appearance of a loss of impartiality, but only if the employee does not believe it would cause a reasonable person with knowledge of the relevant facts to question his impartiality in the matter. Once he consults with Justice career ethics officials on whether to recuse from overseeing the special counsel’s investigation, as he told the Senate committee he would do if confirmed, Barr is bound by their judgment.
President Donald Trump has made it necessary for any attorney general he appoints to recuse from the special counsel investigation. Trump, his family members, business, inauguration and campaign all appear to be under active investigation by Mueller and other federal prosecutors.
Barr impartiality on Mueller is in question
In Barr's case, his perceived bias and prejudice resulted from him taking the unusual step of submitting to Deputy Attorney General Rod Rosenstein an unsolicited 19-page memorandum in support of limiting the scope of the special counsel investigation. While acknowledging he was “in the dark about many facts,” Barr challenged the special counsel’s authority to interview Trump for possible obstruction of justice based on the firing of former FBI Director James Comey.
Barr’s impartiality is further called into question following reports that he sent copies of the memo to members of Trump’s White House legal team and Solicitor General Noel Francisco. Barr also inexplicably provided or discussed the memo with Jared Kushner’s personal attorney and Trump’s personal attorney. And, confirming the gist of a December report from Yahoo News, he told the Senate Judiciary Committee that he met with Trump about potential White House and defense team roles, which he turned down.
Barr’s involvement in the Mueller probe as attorney general would also violate ethical norms of the legal profession. The American Bar Association model rules of professional conduct say a government lawyer shall not participate in a particular matter such as an investigation if the lawyer personally and substantially participated in the same matter in private practice or nongovernmental employment. Although Barr did not formally represent Trump, he was considered to represent him as a client in the matter. That would trigger conflict of interest and other obligations that arise from prospective clients under the ABA rules.
He wrote the extensive 19-page memo discussed above, which he then circulated or discussed with lawyers who represent likely subjects of the investigation. This activity clearly crosses the line into personal and substantial participation, and the relevant ABA rule would allow his involvement in the Mueller inquiry only if the appropriate government agency gave informed consent. Trump cannot give that consent because he is himself a subject of the investigation, nor can the Senate. There is no implicit consent resulting from Senate confirmation that would permit Barr to participate in the special counsel investigation. Nowhere do federal statutes or regulations say Senate confirmation acts as a waiver or authorization.
Correct the record, agree to follow ethics advice
Barr has committed to consulting with the career ethics officials. Once an employee consults with an ethics official because of questions about his impartiality, the employee is bound to follow advice given by the agency ethics official as to whether to participate. Federal law requires that the “employee should not participate in the matter unless he has informed the agency designee of the appearance problem and received authorization from the agency designee.”
There is no exemption for the attorney general or other agency heads, although in some circumstances agency ethics officials may determine that the agency’s interest outweighs the appearance of a loss of impartiality and authorize the employee’s participation.
Barr’s statement at his hearing sends an untenable message that undermines the efficacy of ethics programs throughout the government. If confirmed as attorney general, Barr is expected to adhere to the highest standards of ethical conduct. We strongly urge him to correct the record, follow the advice of agency ethics officials, and recuse if they so advise.
Richard Painter, a board member of Citizens for Responsibility and Ethics in Washington, was chief White House ethics lawyer for President George W. Bush. Virginia Canter, chief ethics counsel for CREW, was associate counsel for ethics to Presidents Barack Obama and Bill Clinton. Follow them on Twitter: @RWPUSA and @VirginiaRCanter
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This article originally appeared on USA TODAY: William Barr's view of Russia recusal could undermine all government ethics programs