Today's news highlight was William Barr complaining that Presidential tweets made it "impossible" for him to do his job as Attorney General. But whatever may be the grounds for prosecutorial independent discretion they are undercut by the words of the A.G. himself in his speech to the Federalist Society on November 15, 2019:
" the idea of the unitary executive does not go so much to the breadth of Presidential power. Rather, the idea is that, whatever the Executive powers may be, they must be exercised under the President’s supervision."
If we are to speak on this I think we should emphasize first the principle of independent advice of counsel - RPC 2.1.
That of course means candor in speaking to the president as the ultimate decision-maker.
Here - in the Roger Stone case - the President is himself deeply entangled in the case which reflects on him as the recipient of Stone's advice and the benefits of Stone's efforts to obtain information from WikiLeaks.
The correct path for Barr here is to make clear that his client is not the President but the laws and the people of the United States. He should declare unequivocally - as did the New York City Bar Association in a letter to the House and Senate Judiciary Committees that
"In our criminal justice system, a single standard must apply to all who are accused or convicted of violating the law—unequal treatment based on political influence is to be deplored in all cases but is especially dangerous if it emanates from the presidency."
If he will not do so and if the President will not stand down from such deeply conflicted actions, Mr. Barr should himself resign.
- GWC
ABA Model RPC 3.1 Advisor [In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation.]
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