It Won’t Be, But Bill Barr’s Tell-All Memoir Should Have His Law License Suspended

Former Attorney General Bill Barr did an admirable and courageous job navigating the metaphorical shoals of holding the position in the Trump Administration. Because his boss was so roundly maligned and hated by the “resistance”/Democratic Party/ mainstream media alliance, he was accused of being everything from a toady to a criminal accomplice, though Barr was one of the least partisan AG’s in recent memory, especially when compared to Barack Obama’s two full-fledged consigliares, Holder and Lynch.

Of course Barr didn’t care for Trump; virtually no one who ever worked with or for Trump got along with him. Nevertheless, I did not expect Bill Barr to join the venal opportunists who rushed to cash in with books betraying a President’s confidences with back-stabbing tales “out of school.” Once such books were understood to be unethical (if not illegal), at least until the President in question was dead. But once David Stockman, Ronald Reagan’s disgraced budget director, broke the taboo, many similarly flawed former White House employees and appointees followed. Trump’s subordinates, however, have been the worst by far.

Barr’s ethical obligations go further than the rest: as a lawyer, he is obligated to keep privileged communications with clients confidential forever, and as a D.C. lawyer, he is also bound by that jurisdiction’s especially stringent prohibition against communicating “confidences,” meaning literally anything a lawyer learns in a representation that a client wouldn’t want revealed.

In his buzzy book, “One Damn Thing After Another,” Barr shatters that obligation repeatedly. The memoir also dishes about Barr’s work as AG for President George H.W. Bush, but 1) that ex-President is dead, and 2) if there are any revelations in the book that I would call violations of Bush I’s confidences, nobody has noticed them, and the Bush Family Praetorian Guard, though not as zealous or ruthless as the Kennedy Protectors, is still pretty vigilant.

One of the printed excerpts from Barr’s book is easily enough for me to make the professional ethics call. I’ll bold the sections that a lawyer cannot reveal without the permission of the client:

Finding what he wanted, he thrust a news clipping at me. “Did you say this?” he snapped.

It was the Balsamo article. “Yes, I did, Mr. President,” I responded. “Why would you say that?” he demanded, his voice rising. “Because it is true, Mr. President,” I replied. “The reporter asked me what the department had found to date, and I told him.”

He stopped for a moment and then said, ‘You must hate Trump. You would only do this if you hate Trump.’

“But you did not have to say that!” he barked. “You could have just said, ‘No comment.’ This is killing me—killing me. This is pulling the rug out from under me.” He stopped for a moment and then said, “You must hate Trump. You would only do this if you hate Trump.”

“No, Mr. President, I don’t hate you,” I said. “You know I sacrificed a lot personally to come in to help you when I thought you were being wronged.” The president nodded, almost involuntarily conceding the point. “But over the weekend, you started blaming the department for the inability of your legal team to come up with evidence of fraud. The department is not an extension of your legal team. Our mission is to investigate and prosecute actual fraud. The fact is, we have looked at the major claims your people are making, and they are bullshit.”

The president looked defiant. I continued, “I’ve told you that the fraud claims are not supported…And others have also told you this. But your legal team continues to shovel this shit out to the American people. And it is wrong.”

The president motioned toward the TV. “Have you listened to any of these hearings?” he asked.

“No, I haven’t, Mr. President,” I said, “but I am familiar with the allegations.”

The president leaned back in his chair and crossed his arms over his chest, rocking a little from side to side, staring at me, his face getting redder. He was seething but appeared willing to let me continue. “Your legal team keeps publicly saying ‘fraud,’ but their arguments in courts don’t claim fraud,” I said. “They’re really saying the state didn’t follow the rules…But that is not the same as evidence of fraud.”

“There is a mountain of evidence,” President Trump protested, gesturing to the hearing on TV.

“Mr. President,” I said, “the reason you are in this position is that, instead of having a crackerjack legal team that had its shit together from day one, you wheeled out a clown show, and no quality lawyers who would otherwise be willing to help will get anywhere near it.”

“Maybe,” he said, almost pensively, “maybe.” But he was not assuaged.

“Look, Mr. President, they wasted a whole month with this idiotic claim about Dominion machines,” I continued. “First, there is no evidence they were compromised. Your team picked the one theory that can be easily disproven.” I explained that the paper ballots are retained, and it is easy to verify the machine’s accuracy by comparing the machine’s tally with the retained stack of ballots. As far as I knew, I said, wherever this had been done, there had been no material discrepancy, and no one had yet pointed to one.

“Have you seen the thousands of Biden ballots dumped in the early morning in Detroit?” he asked. “People saw boxes of ballots being carried into the building in the early morning.”

“We have looked into that also,” I replied. “Detroit has over six hundred precincts, and, unlike other places, all the ballots are transported to a separate processing center for counting. It’s not surprising that boxes of ballots would arrive through the night. Detroit’s votes usually come in late, and this time the vote totals were comparable to previous elections,” I assured him. “In Detroit, you actually did slightly better than in 2016, and Biden did slightly worse than Hillary Clinton. ”

The president seemed a bit taken aback that I seemed to know what I was talking about. “Have you bothered to ask the people who are feeding you this shit how the votes compared to the last election?” I pressed.

The president glared at me and shifted the conversation away from the election, mentioning other areas where he felt I had failed him. The big one was the failure to bring to conclusion before the 2020 election U.S. attorney John Durham’s inquiry into the origins and conduct of the Russian collusion investigation. “I regret it’s taking so long,” I said, “but, as I have told you, a big part of that is Covid.”

“When will it be done?” he snorted.

“I am not sure, but I’m hoping it will be done in the first part of the Biden administration,” I replied.

“The first part of the Biden administration!” the president roared harshly, staring daggers at me. I could not tell if he was mad at the delay or at my explicit recognition that Joe Biden would be the president.

The president then started raking me over the coals about his longest-standing grievance against me: my August 2019 decision not to indict former FBI director James Comey for giving his lawyers memos that were later found to contain a few words of confidential information.

I tried to bring the conversation to a conclusion. “I understand you are very frustrated with me, Mr. President, and I am willing to submit my resignation. But I have—”

Bang. A loud sound, almost like a gunshot, cut me off and jolted us all.

“Accepted!” the President yelled. It took me a second to see that President Trump had slammed the table with his palm. “Accepted!” he yelled again. Bang. He hit the table once more; his face was quivering. “Leave, and don’t go back to your office. You are done right now. Go home!” he barked.

I nodded and said, “I understand, Mr. President.” I gestured to Will, and we started walking out. Just recovering from the surprise themselves, Pat Cipollone and Eric Herschmann both yelled loudly at the same time, “No!”

Pat continued, “This is a big mistake, Mr. President.”

Will and I had gotten only about 50 feet down the hallway leading to the stairs when my cell phone rang.

“Don’t leave!” Eric said insistently.

“I am getting the hell out,” I replied before the call was dropped.

It was rainy and dark as I emerged onto the drive running along the side of the West Wing. The FBI agents on my protective detail met me, and Will and I climbed into the armored black Chevy Suburban.

“Where to, boss?” the agent in charge asked.

“The department,” I said, as the Suburban drifted slowly down the drive toward the exit gate.

Suddenly the thudding, heavy sound of fists pounding on the backseat windows on both sides of the vehicle made me and the FBI agents in the front seats jump. In the dark and rain, I could barely make out Pat on one side and Eric on the other. We pulled over. Will climbed back into the third-row seats, followed by Eric, while Pat climbed in next to me.

Pat explained: “Bill, as soon as you walked out the door, the president told us not to let you leave the building. He did not mean it. He is not firing you. Come on back in.”

“I hear you, Pat, but I am not going back in tonight,” I said. “Talking any more about this tonight wouldn’t be helpful.”

“You’re right,” Eric chimed in. “But you agree there’s no change in your status, right?”

“Let’s let cooler heads prevail and talk more tomorrow,” Pat advised.

“Okay,” I agreed. “But I don’t know where he’s going with this stolen election stuff.”

“So, what are you going to say about what happened tonight?” Eric asked.

“Nothing happened tonight,” I said, “except I’m going home and having a stiff Scotch.” Pat and Eric jumped out, and we drove off.

The next morning, I got a call from Mark Meadows. I told him that I would not surprise President Trump by leaving without warning. On Dec. 14, the day by which all the states had certified their election results, effectively locking in Biden’s victory, I went over to tell the president that I would like to leave before Christmas. Within the hour, he tweeted: “Just had a very nice meeting with Attorney General Bill Barr at the White House. Our relationship has been a very good one, he has done an outstanding job! As per letter, Bill will be leaving just before Christmas to spend the holidays with his family.”

As he publicizes his book in a media tour, Barr has also repeated some of the above in interviews. Last Sunday he told Lester Holt on NBC that Trump “flew into a rage” when he told the former president that his claims the 2020 election was stolen from were “bullshit.”

A lawyer cannot tell others how a client reacted to his advice, and there is no question in my mind that Barr’s verdict on Trump’s claims of a stolen election qualify as legal advice by all standards. In addition, the President thought, with good reason, that Barr’s advice was coming from a lawyer whom he could regard as treating him as he would a client.

I’m preparing a legal ethics seminar on government attorney ethics, and will be talking about this episode. It is true that the Attorney General represents the people of the United States (like all government attorneys to one extent of another) and that the President is not technically his or her client. However, the “people” can’t consult with an A.G, and among the parties that do so on their behalf is the President. Those communications and the lawyer’s interactions with that representatives of the client are still governed by client confidentiality rules. This includes the client or ‘pseudo-client’s’ appearance, actions, and demeanor as part of the conversation. It also includes employment-related actions: the form, manner and reason for a lawyer’s dismissal, as Barr describes, are also confidences.

Even if we accept that Barr was not acting as a lawyer in the conversation above, he could not assume that President Trump knew or understood that.

D.C.’s legal ethics Rule 5.7, “Responsibilities Regarding Law-Related Services,’ states,

(a) A lawyer shall be subject to the Rules of Professional Conduct with respect to the provision of law-related services, as defined in paragraph (b), if the law-related services are provided:

(1) by the lawyer in circumstances that are not distinct from the lawyer’s provision of legal services to clients; or
(2) in other circumstances by an entity controlled by the lawyer individually or with others if the lawyer fails to take reasonable measures to assure that a person obtaining the law-related services knows that the services are not legal services and that the protections of the client-lawyer relationship do not exist.

(b) The term law-related services denotes services that might reasonably be performed in conjunction with and in substance are related to the provision of legal services, and that are not prohibited as unauthorized practice of law when provided by a nonlawyer

That means that Barr had to preface his meeting with the disclaimer, “Nothing that I say to you in this conversation, Mr. President, is in my capacity as a lawyer, and you may not rely on the duties of confidentiality and conflicts of interest, as well as others, that would be due to you were you my client.” If he did not, Trump had good reason to assume otherwise, and an attorney-client relationship existed.

I am very tempted to file a complaint against Barr, but it would be futile. I am currently reading multiple “huminahumina” rationalizations and excuses from legal ethicists who detest Trump and are desperate to find Barr’s unethical revelations justifiable, because they hate Bill Barr a little less. One argument relies on the case In re Lindsay, the Clinton-Monica decision that held that a lawyer’s conversations with a President about criminal acts are not privileged. However, there is no evidence in the excerpt above that the conversation with Trump had any criminal implications, or that Barr thought it had.

I would not be surprised if Barr felt secure in his breach of the ethics rules in his pursuit of profit because he knew how corrupted the legal profession has become in its Trump Derangement; in fact, much of the book condemns that very phenomenon. His breach of confidentiality without consequence means that no future President will be able to rely on the integrity of his or her Attorney General when delicate matters are discussed in the Oval Office.

That harms the office, the government, and the country.

6 thoughts on “It Won’t Be, But Bill Barr’s Tell-All Memoir Should Have His Law License Suspended

  1. Barr may be 71, but I think, like many other cabinet members of unpopular presidents, he has his eye on lucrative speaking engagements and his family being secure after he’s gone.

    • I like Barr, and in general I think he did a competent and courageous job. He’s not really wrong about anything in his book; he was just wrong to write a lot of it down. But you’re not going to get speaking engagements by criticizing both “sides” of the great divide.

      Ask NPR about that.

  2. Well, whether an ethical breech or not, I do find it heartening that someone was giving Trump some rational advice back then. I just wish he had been able to listen to it.

    I heard the claims that his lawyers were making in their press conferences. I remember thinking — why aren’t they putting this before a judge and adducing the evidence they claimed to have? Given her track record, I was willing to give the one lawyer (can’t recall her name right now) some slack to prove her case, but she never did. You just cannot make those kind of wild claims if you don’t have the evidence to back them up.

    That whole episode, and Trump’s refusal to concede the election, have just done untold damage both to Trump and the country. I can only hope he won’t sabotage the 2022 and 2024 elections as I believe he did in the Georgia runoffs.

    I voted for and supported Trump in 2020, but as the song says you’ve got to know when to fold ’em…..

    • Sydney Powell, I believe. If Trump does run against Biden in 2024, I don’t know what I’d do in terms of voting. We have two years ago figure it out, though.

      • Simple, you have to weigh the results of one guy’s leadership against the other’s. You also need to ask yourself which of those two men is really looking out for your best interests and which one is not. If you are okay with $5 a gallon gas, 25% higher grocery bills, weakness abroad, and ordinary people like yourself being dead last on the government’s list of priorities, then, by all means, cast a vote for Dementia Joe.

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