Actions of Barr, Trump Create Potential Constitutional Crisis, Former U.S. Attorney Says

U.S. Constitution. Source: National Archives.

The actions of President Trump and Attorney General William Barr in the Roger Stone case have created a potential constitutional crisis, a former federal prosecutor from Birmingham said — joining his protest to that of nearly 3,000 ex-officials of the Department of Justice.

“As long as we have an attorney general and a president who cannot distinguish between politics and the rule of law, I think we are in a constitutional crisis,” said Henry Frohsin, who served as First Assistant U.S. Attorney for the Northern District of Alabama under the Nixon, Ford and Carter administrations.

Frohsin was one of a number of former federal prosecutors from the Birmingham U.S. attorney’s office to sign a nationwide petition set up by the organization Protect Democracy. The petition calls for Barr to resign after Trump tweeted that the recommended sentence was too high for Stone, a Trump ally convicted of witness tampering, obstructing an investigation and five counts of perjury related to the independent counsel’s Russia investigation.

Barr interfered, overruling the sentencing recommendation of federal prosecutors in District of Columbia U.S. attorney’s office. Four prosecutors withdrew from the case, and one resigned from the U.S. attorney’s office, after Barr ordered the U.S. attorney in DC to recommend a more lenient term for Stone than the seven to nine years originally recommended.

 On Thursday U.S. District Judge Amy Berman Jackson sentenced Stone to 40 months in prison. Stone is seeking a new trial, claiming a juror was biased — a view that Trump supports. The president said at an event in Las Vegas, on the day Stone was sentenced, that, “I’m following this very closely, and I want to see it play out to its fullest because Roger has a very good chance of exoneration, in my opinion….

“But I’m not going to do anything in terms of the great powers bestowed upon a President of the United States. I want the process to play out. I think that’s the best thing to do, because I’d love to see Roger exonerated, and I’d love to see it happen because I personally think he was treated very unfairly,” Trump said.

Frohsin, along with former U.S. Attorney J.R. Brooks and former Assistant U.S. Attorneys Caryl Privett and Dayle Spencer, are among the former Alabama-based DOJ officials to sign the document protesting Trump and Barr interfering in the Stone case. At some point, Frohsin, Privett (who later became a Jefferson County Circuit Court judge) and Spencer all worked under Brooks, who served as North Alabama’s U.S. Attorney under the Carter and Reagan administrations.

Actions Do Not Fit With What the Department of Justice Should Stand For

Barr’s actions in particular run counter to what the Department of Justice is supposed to stand for, the former prosecutors said. Frohsin called it “an awful situation.”

“We never, ever became political when it came to a prosecution or a recommendation to the court. And the whole situation has just been bastardized by this present Department of Justice attorney general and those around him. They’re just doing the bidding of an out of control president. And they’re not loyal to the Constitution or the statutes and regulations of the Department of Justice,” he said.

Frohsin did not take issue with Stone’s 40-month sentence. He said 3 years and 4 months “is a stiff sentence for perjurious conduct and the things that he was indicted for.”

It’s what led up to it that puts the rule of law in the country at risk, he said.

“I don’t think we could stand by and watch the process erode to the point that the justice system became imperiled by an attorney general who apparently thinks he only answers to the president, that he’s the president’s personal attorney, when quite the contrary, he should be the attorney — the chief law enforcement officer of the United States. The president certainly isn’t. I take issue with his characterization that he, the president, is the chief law enforcement officer. The attorney general has always been,” Frohsin said.

Brooks said it is not wrong for Barr to disagree with the established federal sentencing guidelines, but if that’s the case, championing Stone’s case sends the wrong message.

“When the attorney general became involved in trying to reduce the sentence of one of the president’s buddies, I felt that is not in keeping with the … oath that we all were required to take,” Brooks said. “Taking the position that he took, without taking a similar position to others across the country who are sentenced in accordance with the guidelines, is not acceptable and not in keeping with his oath,” Brooks said.

“It appears to me that what it demonstrates is that he sees himself as the president’s lawyer and not the people’s lawyer.”

Both Brooks and Frohsin said that the Justice Department is supposed to protect the rights of all citizens — regardless of political affiliation or connections.

Not A Partisan Issue

“It’s not a Republican or a Democratic process. It’s the constitutional process where the Department of Justice should be the law enforcer, done on an equal and impartial basis. We all take that oath,” Frohsin said. “The last thing between us and anarchy is the rule of law. And if we can’t make sure that our system of enforcing the law is free from politics, then we truly are in a constitutional crisis. And I would hope that over 2,000 signatories to this now would emphasize the crisis that we have in the Department of Justice and the White House.

“I’m 76 years old. I have never in my lifetime seen officials at the highest levels of our government be so cavalier about the importance of enforcing our laws and the constitution. This just is unacceptable,” he said.

“The justice system in this country under Bill Barr’s watch is not what it ought to be,” Brooks said. “The justice system, which is supposed to serve all the people, is not serving all the people. It’s just serving one person in particular.”

The only thing that can be done about it, he said, “is to have a different person in the position of attorney general, and apparently in order to do that we’re going to have to have a different president.”

Frohsin added that he would hope that citizens — not just former federal officials — would make their voices heard. “The public has got to express some outrage, just like the Department of Justice employees. The next step has to be [that] the public has got to cry foul as well,” he said.

“I think if there’s enough outcry to Congress then perhaps it will get the attention of the White House. I would have to say on the contrary though, it would seem to me that Trump has become emboldened by his acquittal from the removal of office,” Frohsin said. “He certainly isn’t acting like an impeached president. And it would seem to me most people who would have that ignominious defeat as being only the third impeached president in our history would perhaps cause him to be somewhat chagrined and remorseful. The contrary is true, however, and that’s what concerns me. That all of his actions post impeachment continue to be inflammatory and outside the rule of law.”

The Protect Democracy petition is open for former DOJ members to sign through Feb. 26. Thus far, one signature notable in its absence from the petition is that of Joyce White Vance, former U.S. attorney for the Northern District of Alabama. An Obama appointee who has been critical of Trump’s policies, Vance has made her views about Trump and Barr interfering in the Stone sentencing known in a recent opinion piece on

“This President believes executive power puts him above the law, that he can use the Justice Department to help his friends and to punish people he has decided are his enemies. But that is not how our constitutional system works. Our system of government requires impartial justice, untainted by politics or the desires of powerful people,” Vance wrote. “So if Barr in fact disagrees with Trump’s claim that a President can intervene in criminal prosecutions, including and especially those of his own close friends and associates, he must say so. Silence in the face of so egregious a claim signals agreement.

“Allowing such an assertion to go unchallenged undermines the credibility of the Justice Department and our system of justice itself. If the President refuses to correct his tweet and insists that DOJ must submit its prosecutions to his control whenever he chooses to intervene, the Attorney General’s only response can be to resign,” Vance wrote. “There is no way to avoid further damage to DOJ, the rule of law and the country if Trump’s view stands.”