VOICES: Barr's record reflects hostility to progress on civil rights
This week, the U.S. Senate Judiciary Committee held two days of confirmation hearings for William Barr, nominated by President Trump to serve as attorney general. The position has been open since November, when Jeff Sessions resigned at Trump's request amid conflict over Sessions' recusal from any investigations into Russian interference in the 2016 elections. Sessions recused himself following news reports that he had twice met with the Russian ambassador in 2016.
Barr is a lawyer who served as U.S. attorney general from 1991 to 1993 under the first Bush administration. During the confirmation hearings, questions were raised about his record, including his past work involving warrantless surveillance, mass incarceration, and civil liberties abuses.
Among those who testified this week against Barr's confirmation was Derrick Johnson, president and CEO of the national NAACP and the former president of the Mississippi State Conference NAACP. Johnson's written testimony offered a detailed examination of Barr's record on a range of civil and human rights issues, from the rule of law to voting rights to LGBTQ equality. We share it here in full.
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Testimony of Derrick Johnson, president and CEO of the NAACP, before the U.S. Senate Judiciary Committee on the nomination of William P. Barr for Attorney General of the United States, Jan. 15, 2019.
On behalf of the NAACP, our nation's oldest, largest and most widely-recognized grassroots civil rights organization, thank you for allowing me to testify on the nomination of William P. Barr to be the 85th Attorney General of the United States.
The Senate considers the Barr nomination in extraordinary times. The public's faith and confidence in our nation's most cherished institutions have been tested as never before, and for good reason. The presidency itself is teetering on the brink, with news breaking daily about actions by Donald Trump and top officials to undermine the rule of law. Under Trump, we have witnessed the worst erosion of civil rights in recent history, not only for the African-American community but for each and every community protected by our federal civil rights laws. Now more than ever, the country needs a guardian of justice to restore the integrity of the Justice Department and to demonstrate fealty to the rule of law and equal justice.
The standard for confirmation of the Attorney General is exceedingly high. The Attorney General is the nation's chief law enforcement officer and is charged with enforcing our civil rights laws. The Senate should resist comparing Mr. Barr's qualifications to those of Trump's other appointees, acting Attorney General Matthew Whitaker or Senate-confirmed Attorney General Jeff Sessions. The bar has not lowered merely because Trump occupies the Oval Office. Instead, the nominee bears the burden of demonstrating he possesses the integrity, independence and commitment to justice required of a position once held by Robert F. Kennedy and Nicholas Katzenbach, who first enforced the nation's modern civil rights laws.
As a threshold matter, the Attorney General must be dedicated to equal justice and have a demonstrated record of support for civil rights. Jeff Sessions, whose nomination for Attorney General we strongly opposed, failed that test miserably. During his two-year tenure, Sessions decimated the Civil Rights Division, known as the crown jewel of the Department. Sessions reversed longstanding policies and positions which enjoyed bipartisan support and protected the civil rights of our most vulnerable communities. This Department has supported voter suppression, questioned the longstanding "disparate impact" method for proving discrimination, and dramatically curtailed use of consent decrees in discrimination cases, including those addressing civil rights abuses by local police agencies. Trump's aggressive assault on civil rights and the rule of law itself should mean he is entitled to none of the deference usually reserved for executive nominations. Instead, the Senate should thoroughly vet and carefully consider anyone Trump wants to appoint to this position.
William Barr's record provides little comfort to overcome the presumption he was selected to protect Donald Trump. He has defended Trump's trampling of the rule of law involving the Russia investigation that would be within his purview at the Department. Disturbingly, Barr endorsed Jeff Session's "outstanding" leadership of the Department, lavishing praise for precisely those actions that have undermined the rights and protections of communities of color.1 His 40-year record reflects hostility to the progress our nation has made in civil rights and civil liberties, and he does not possess the commitment required by a position entrusted with the solemn duty of promoting equal justice for all. We urge the Senate to vote against his confirmation.
RULE OF LAW
The Attorney General must serve with independence and fealty to the rule of law. William Barr's record raises grave concerns about both of these requirements. Barr submitted an extraordinary unsolicited 20-page memorandum to the Justice Department attempting to exonerate Donald Trump of obstruction of justice related to the Russia investigation.2 It came after strong evidence suggesting that Trump selected his fist Attorney General, Jeff Sessions, in order to protect him from the investigation by Special Counsel Robert Mueller.3 Barr wrote that the Mueller's investigation is "fatally misconceived" and that his reasoning was "grossly irresponsible."4 The memorandum calls into stark relief Mr. Barr's integrity and bias at a time when the Department's independence is paramount. Barr also advanced an expansive view of presidential power, which he previously supported in resisting congressional oversight.5 This is troubling given the House of Representatives' intent to exercise its oversight authority over the Justice Department.
This was not the first time Barr publicly supported Trump in connection with the Russia investigation. In Spring 2017, Trump abruptly fired FBI Director James Comey who was leading the FBI's investigation into whether Russia interfered with the presidential election and had connections to the Trump campaign.6 Three days later, Barr vigorously defended Trump in an op-ed, titled "Trump Made the Right Call on Comey."7 Importantly, Barr vehemently denied that Trump's action could interfere with the Russian investigation: "The notion that the integrity of this investigation depends on Comey's presence just does not hold water."8 Shortly thereafter, Barr met with Trump to discuss serving as his personal counsel in the Russia investigation. According to reports, it was Barr's aggressive defense of Trump's firing of Comey that caught his attention.9 Although Barr rejected Trump's offer, this communication that continued for months should disqualify Barr from overseeing the investigation into Russia.
Additional problematic comments by Barr about the Mueller and other DOJ investigations warrant scrutiny by the Judiciary Committee. Barr echoed Trump's complaints about political donations by members of the Mueller investigation team to Democratic campaigns: "In my view, prosecutors who make political contributions are identifying fairly strongly with a political party. I would have liked to see him have more balance on this group."10 Barr also endorsed Trump's call for a new criminal investigation into Hillary Clinton in connection to a uranium mining firm that benefited from a State Department decision during her tenure as Secretary: "There is nothing inherently wrong about a president calling for an investigation."11
An Attorney General must be beyond reproach. The public must have confidence that the duties of the office will be discharged lawfully and independently, without bias or favor. No one is above the law, including the president. William Barr's statements and actions in defense of Trump should disqualify him from leading the Department. Recusal from the Russia investigation is not the solution. Barr can never overcome the public perception that he endorsed Trump's efforts to hold himself above the law. This lack of trust would erode the credibility and integrity of the Department. William Barr simply cannot serve as the independent leader our country needs at this critical time.
The Justice Department's mission is to protect our democracy. Its enforcement of our voting rights laws is of paramount importance. As the Supreme Court has noted, the right to vote is "preservative of all rights."12 When President Johnson signed the Voting Rights Act in 1965, he reported that the Justice Department would file a lawsuit the next day challenging the constitutionality of the poll tax in Mississippi.13 President Johnson continued: "And I pledge to you that we will not delay, or we will not hesitate, or we will not turn aside until Americans of every race and color and origin in this country have the same right as all others to share in the process of democracy."14
The Department's commitment and fealty to protecting our democracy must persist, regardless of who occupies the Oval Office. More than any other time in history, the Justice Department requires a leader dedicated to ensuring full political participation for all. The Senate should refuse to confirm anyone who will not commit to reversing the deplorable actions of Jeff Sessions to restrict democracy. Anything less than complete support for the franchise is unacceptable.
Under Jeff Sessions, the Justice Department completely abandoned its duty to protect the voting rights of all citizens. This is exactly what we feared when Trump nominated Jeff Sessions, whose own judicial nomination was defeated by this Committee because he had wrongly prosecuted African Americans in Alabama's Black Belt for voting fraud. Once confirmed, Sessions acted true to form in jettisoning protections for the right to vote. The Department reversed positions in lawsuits to support voter suppression measures15 and to purge voters from rolls.16 Because the Shelby County v. Holder ruling eliminated safeguards under Section 5 of the Voting Rights Act, litigation under Section 2 of the Act is all the more important. But Sessions filed no Section 2 litigation whatsoever. As the nation experienced rampant voter suppression leading up to and through the 2018 midterm elections, the Justice Department stood by silently as communities of color were denied access to the polls. The Department's actions are consistent with this administration's full-scale attack on voting rights. This administration stood up a sham voting commission to propagate the myth of voter fraud only to be shamed into closing it down.17 Overriding longstanding practice, it added a citizenship question to the 2020 Census, eliciting at least seven lawsuits.18 A federal court recently found that Trump's own actions during the 2016 campaign constituted voter suppression.19
Just as the Justice Department has abandoned voting rights, the need for federal enforcement of voting rights laws has never been greater. In a recent report, the U.S. Commission on Civil Rights found that voter suppression is at an all-time high.20 Since the Supreme Court's decision in Shelby County v. Holder, twenty-three states have enacted "newly restrictive statewide voter laws," which impose voter ID requirements, require documentary proof of citizenship to register to vote, allow voter purging, reduce or close polling places, and eliminate early voting.21 All of these measures disproportionately limit the right to vote by communities of color. The Civil Rights Commission "unanimously call[ed] on the United States Department of Justice to pursue more Voting Rights Act enforcement in order to address the aggressive efforts by state and local officials to limit the vote of citizens of color, citizens with disabilities, and limited English proficient citizens."22
The Attorney General is responsible for guaranteeing constitutional safeguards and ensuring equality in the criminal justice system. William Barr's record on criminal justice falls woefully short on both accounts. His leadership in the Justice Department was marked by extraordinarily aggressive policies that harmed people of color in particular. He was a general in the War on Drugs that was rooted in racism and relied on ineffective policies that still have devastating consequences for communities of color today. That Mr. Barr would be entrusted with the solemn duty of ensuring fairness in our justice system under a Trump administration is extremely alarming.
As Attorney General, Barr championed mass incarceration that deprived countless persons of color first of their liberty and then of their rights after release. It was William Barr who issued the Justice Department report, "The Case for More Incarceration,"23 precisely when incarceration rates were highest.24 Barr did not equivocate: "First, prisons work. Second, we need more of them."25 In announcing his Department would assist states in lifting court-imposed restrictions on prison populations, Barr stated: "The choice is clear. More prison space or more crime."26
Barr sought to turn the Justice Department into an "agenda-setting agency from a reactive institution."27 In a 1992 interview, he stated: "Violent crime is a high priority, the role of gangs, the problem we have in the juvenile justice system. These are things that obviously were related to the riots in Los Angeles and the whole problem we have in the inner cities. The importance of prosecuting the war on drugs, similarly, I think, is responsive to one of the real problems we have in our cities in the United States"28 Amazingly, Barr denied that his policies had a racially discriminatory impact: "I think our system is fair and does not treat people differently."29
Shortly after leaving the Justice Department, Barr authored an article titled "Legal Issues in a New World Order," in which he lamented "lowering the cost of misconduct."
When past societies had deviated too far from sound moral principles regarding how to conduct themselves, they ended up paying a very high price.... Dis-spirited children, violent crime, and poverty are the price we pay for the breakdown of the family structure. Today, there is something new. The state no longer sees itself as a moral institution, but a secular one. The state is called upon to remove the inconvenience and the costs associated with personal misconduct. Thus, the reaction to disease and illegitimacy is not sexual responsibility, but the distribution of condoms; our approach to the decomposition of the family is to substitute the government as the "breadwinner;" the reaction to drug addiction is to pass out needles. While we think we are solving problems, we are actually subsidizing them. By lowering the cost of misconduct, the government serves to perpetuate it.30
There is scant evidence that William Barr has changed or evolved in his views on criminal justice. This is despite universal rejection of his harsh approach, most recently manifested in passage of the First Step Act which the NAACP strongly supported. Barr opposed earlier bipartisan sentencing reform by criticizing reductions in mandatory minimums and retroactivity.31 He began his recent praise of Jeff Sessions by falsely charging that "the [Obama] administration's policies had undermined police morale, with the spreading 'Ferguson effect' causing officers to shy away from proactive policing out of fear of prosecution."32 He stated that the decline in violent crime since his own tenure was reversed by the Obama administration, remarking, "Many people were concerned that the hard-won progress of earlier years would be lost."33 He lauded Sessions for reinstating charging practices against drug dealers and for prosecuting the highest number of violent offenders since his own tenure.34 Given his longstanding and strident support for incarcerating persons as the only effective way to reduce crime, the Senate should approach any attempt by Barr at his hearing to moderate his criminal justice views with skepticism and doubt.
The Trump administration has done more to undermine the rights of immigrants and to harm individuals and families seeking entry into the United States than any other administration. The administration imposed a Muslim ban, rescinded eligibility for current immigration programs, adopted viciously cruel family separation policies, and erected other obstacles to asylum. Currently, Trump has shut down the federal government, effectively holding our public servants hostage, in order to secure funding to construct a hate-filled wall at our southern border.
This government-sponsored inhumanity is inconsistent with our laws and our values. Many of the worst actions have targeted immigrants of color. The NAACP has filed important litigation to protect the rights of young, undocumented immigrants of color eligible for the Deferred Action for Children Arrivals (DACA) program. There are approximately 800,000 DACA recipients nationwide. The vast majority— approximately 95 percent—are people of color. We sued Donald Trump, the Attorney General, and other federal agencies for constitutional and statutory violations in reneging on their promise to DACA recipients that they could build lives for themselves in the United States without fear of prosecution or deportation.35 The NAACP also sued the Department of Homeland Security for its 2017 decision to rescind the Temporary Protected Status (TPS) of Haitian immigrants. This program allowed Haitians who were in this country when Haiti suffered its 2010 earthquake to remain here, particularly after the ensuing cholera epidemic and hurricane in Haiti, without risking deportation and to obtain work authorization. Our lawsuit alleges that the decision to rescind their status was based on race and ethnicity in violation of the Constitution.36
Unfortunately, William Barr's record indicates he will only perpetuate these hateful policies and decisions. Barr praised Sessions for "attack[ing] the rampant illegality that riddled our immigration system, breaking the record for prosecution of illegal-entry cases and increasing by 38 percent the prosecution of deported immigrants who reentered the country illegally."37 Remarkably, Barr defended the legality of Trump's first Muslim ban. Although numerous federal courts rejected it as unconstitutional, Barr declared it was "squarely within both the president's constitutional authority and his explicit statutory immigration powers."38
As Attorney General under President George H.W. Bush, Barr oversaw the government's illegal response to tens of thousands of Haitian refugees fleeing a military coup. His program intercepted refugees on the high seas, detained them at Guantanamo Bay, and denied them access to lawyers.39 Barr even established a separate detention center for HIV-positive refugees, creating the "world's first HIV detention camp."40 A court disbanded the detention system in 1993. The ACLU has called Barr "a strong advocate for a policy that set the stage for the treatment of Guantanamo detainees during the war on terror."41
The Attorney General must respect the rights and liberties guaranteed by our Constitution and our federal laws. Given the Attorney General's responsibility for enforcing the laws, overseeing the Solicitor General's litigation before the Supreme Court, and helping to select judicial nominees, William Barr's record on reproductive rights is extremely troubling.
During his 1991 Senate confirmation hearing for Attorney General, Mr. Barr stated that "Roe v. Wade was wrongly decided and should be overruled."42 Once confirmed, he sent a letter to the Senate opposing the Freedom of Choice Act that would have banned states from imposing certain restrictions on abortion.43 After the Supreme Court's 1992 ruling in Planned Parenthood v. Casey, Barr publicly expressed disappointment in the decision and vowed that the Justice Department would "call for overturning Roe v. Wade in future litigation."44 He predicted that Roe would "ultimately be overturned" due to "further appointments to the Supreme Court."45 Barr continued speaking against Roe after leaving the Department, writing in his 1995 article that Roe was a "secularist" effort to "eliminate laws that reflect traditional moral norms."46 More recently, he applauded Sessions for participating in litigation "protecting the right not to have the religious beliefs of business owners burdened by a mandate to provide funding for contraceptives."47
The Trump administration's relentless attacks on the rights of the LGBTQ community constitute some of its most aggressive and hateful actions. The Justice Department must defend and enforce civil rights laws that reflect our country's most cherished values and principles of equal opportunity for all. The Attorney General must lead on civil rights, in both word and deed.
William Barr's record on LGBTQ issues provides great cause for concern. In his 1995 article, Barr lamented the "breakdown of traditional morality," sounding a dog whistle for discrimination against LGBTQ communities.48 He criticized a Washington, DC law that prohibited Georgetown University from discriminating against LGBTQ student groups, calling their conduct "immoral."49 Remarkably, he questioned the degree of attention afforded the LGBTQ community: "It is no accident that the homosexual movement, at one or two percent of the population, gets treated with such solicitude while the Catholic population, which is over a quarter of this country, is given the back of the hand. How has that come to be?"50
Recently, Barr applauded Jeff Sessions for withdrawing what he called "policies that expanded statutory protections based on gender identity that Congress had not provided for in law."51 Indeed, Sessions reversed the Department's position in litigation to deny protections for transgender persons under Title VII's ban on sex discrimination, in a widely criticized action that conflicted with the Equal Opportunity Employment Opportunity Commission,52 and the rulings of several courts. Barr also praised Sessions' guidance for "protecting religious expression,"53 which condones discrimination against LGBTQ persons by misinterpreting the First Amendment and the Religious Freedom Restoration Act.
The hearing on William Barr's nomination represents an opportunity to reverse course and place the Justice Department back on track to fulfill its historic role in safeguarding our civil and constitutional rights. Jeff Sessions caused untold damage to the integrity and reputation of the Department. The Senate must seize this second chance for justice and insist upon an Attorney General capable of independence and willing to enforce our nation's civil rights laws with vigor and resolve. From many perspectives, William Barr is not that candidate. His affirmative support for Trump in Russia investigation has jeopardized public confidence in his integrity and independence. Even more importantly, Mr. Barr lacks a record of strong commitment to civil rights in which communities of color could place their trust. We urge the Senate to vote against his confirmation.
Thank you for the opportunity to testify.
1. W. Barr, E. Meese, M. Mukasey, We are Former Attorneys General. We Salute Jeff Sessions, WASHINGTON POST, Nov. 7, 2018.
2. Memorandum from William Barr to Deputy Attorney General Rod Rosenstein & Assistant Attorney General Steve Engle, June 8, 2018, https://www.justsecurity.org/wp-content/uploads/2018/12/June-2018-Barr-Memo-to-DOJ-Muellers-Obstruction-Theory-1.2.pdf
3. Trump admitted he would have not appointed Sessions if he had known Sessions would recuse himself from overseeing the Russia investigation and he blamed Session to the appointment of special counsel Mueller. P. Baker, M. Schmidt, M. Haberman, Citing Recusal, Trump Says He Wouldn't Have Hired Sessions, NYT, July 19, 2017.
4. Memorandum from William Barr to Deputy Attorney General Rod Rosenstein & Assistant Attorney General Steve Engle, June 8, 2018, https://www.justsecurity.org/wp-content/uploads/2018/12/June-2018-Barr-Memo-to-DOJ-Muellers-Obstruction-Theory-1.2.pdf
5. Common Legislative Encroachments on Executive Branch Authority, Memorandum Opinion for the General Counsel's Consultative Group, July 27, 1989, https://www.justice.gov/file/24286/download
6. A. Zurcher, Did President Trump Fire James Comey as Part of a Cover-Up?, BBC NEWS, May 10, 2017.
7. W. Barr, Trump Made Right Call on Comey, WASHINGTON POST, May 12, 2017.
9. M. Isikoff & D. Klaidman, Trump First Tapped William Barr for Another Job – Defense Lawyer, HUFFINGTON POST, Dec. 19, 2017.
10. M. Zapotosky, As Mueller Builds His Russia Special-Counsel Team, Every Hire is Under Scrutiny, WASHINGTON POST, July 5, 2017.
11. P. Baker, 'Lock Her Up,' Becomes More Than a Slogan, NEW YORK TIMES, Nov. 14, 2017.
12. Yick Wo v. Hopkins, 118 U.S. 356 (1886).
13. Lyndon B. Johnson, Remarks on the Signing of Voting Rights Act, Aug. 6, 1965, https://millercenter.org/the-presidency/presidential-speeches/august-6-1965-remarks-signing-voting-rights-act.
15. S. Horwitz, Justice Department Changes Its Position in High-Profile Texas Voter-ID Case, WASHINGTON POST, Feb. 27, 2017.
16. S. Levine, DOJ Reverses Position in Big Voting Case Before Supreme Court, HUFFINGTON POST, Aug. 8, 2017.
17. M. Tackett & M. Wines, Trump Disbands Commission on Voter Fraud, NEW YORK TIMES, Jan. 3, 2018.
18. H. Wang, Hurdles Remain as Final Countdown Begins for 2020 Census, WGBR, Jan. 10, 2019.
19. R. Hasen, Donald Trump Was Just Handed a Chance to Supercharge Voter Suppression in 2020, SLATE, Jan. 8, 2019.
20. U.S. Commission on Civil Rights, An Assessment of Minority Voting Rights Access in the United States, 2018 Statutory Report, Sept. 12, 2018, https://www.usccr.gov/pubs/2018/Minority_Voting_Access_2018.pdf
23. The Case for More Incarceration, Office of Policy Development, Department of Justice, Report 1992 NCJ- 139583, https://www.ncjrs.gov/pdffiles1/Digitization/139583NCJRS.pdf
24. S. Galai, William Barr Was an Ardent Champion of Mass Incarceration, ACLU BLOG, Jan. 10, 2019, https://www.aclu.org/blog/smart-justice/mass-incarceration/william-barr-was-ardent-champion-mass-incarceration
25. The Case for More Incarceration, Office of Policy Development, Department of Justice, Report 1992 NCJ-139583, https://www.ncjrs.gov/pdffiles1/Digitization/139583NCJRS.pdf
26. S. LaFraniere, U.S. Shifts on Prison Crowding, WASHINGTON POST, Jan. 15, 1992.
27. R. Ostrow, William Barr, A 'Caretaker' Attorney General Proves Agenda-Setting Conservative, LOS ANGELES TIMES, June 21, 1992.
30. W. Barr, Legal Issues in a New Political Order, THE CATHOLIC LAWYER, Vol. 36: No. 1, Article 2 (1995), available at https://scholarship.law.stjohns.edu/cgi/viewcontent.cgi?article=2355&context=tcl
31. Letter on Sentencing Reform and Corrections Act of 2015, http://nafusa.org/wp-content/uploads/2016/01/Sentencing-Dear-Colleague-Letter-with-Attachment.pdf
32. Barr, supra n.1.
35. NAACP v. Donald J. Trump et al., Case No. 1:17-cv-01907, U.S. District Court, District of Columbia.
36. NAACP et al. v. Department of Homeland Security et al., Case No. 1:18-cv-00239, U.S. District Court, Maryland
37. Barr, supra n.1.
38. W. Barr, Trump Was Right to Fire Sally Yates, WASHINGTON POST, Feb. 1, 2017.
39. Transcript, William P. Barr Oral History, University of Virginia Miller Center, https://millercenter.org/the-presidency/presidential-oral-histories/william-p-barr-oral-history-assistant-attorney-general
40. K. Smith, "A Stain on U.S. History," Trump's Attorney General Pick Used Guantanamo Bay to Hold Thousands of Haitian Refugees, CBS NEWS, Dec. 10, 2018.
41. D. Cole, No Relief, William Barr is as Bad as Jeff Sessions–If Not Worse, ACLU BLOG, Dec. 7, 2018.
43. S. LaFraniere, Barr Attacks Abortion-Rights Bill, WASHINGTON POST, Mar. 4, 1992.
44. M. Alfaro, William Barr, Trump's Attorney General Nominee, Said Roe v. Wade ‘Will Fall' in Unearthed CNN Interview from 1992, BUSINESS INSIDER, Jan. 11, 2019.
46. W. Barr, Legal Issues in a New Political Order, THE CATHOLIC LAWYER, Vol. 36: No. 1, Article 2 (1995), https://scholarship.law.stjohns.edu/cgi/viewcontent.cgi?article=2355&context=tcl
47. Barr, supra n.1.
48. W. Barr, Legal Issues in a New Political Order, THE CATHOLIC LAWYER, Vol. 36: No. 1, Article 2 (1995), https://scholarship.law.stjohns.edu/cgi/viewcontent.cgi?article=2355&context=tcl
51. Barr, supra n.1.
52. C. Savage, In Shift, Justice Says Law Does Not Bar Transgender Discrimination, New York Times, Oct. 5, 2017.
53. Barr, supra n.1.