Civil liberties advocates are urging Attorney General William Barr to name a special prosecutor to investigate possible violations of protesters' rights during the June 1 crackdown in Lafayette Square in Washington, D.C., NPR has learned.
Federal officers deployed tear gas, rubber bullets, pepper spray and smoke canisters to scatter the mostly peaceful group of demonstrators, clearing the way for President Trump to pose for pictures in front of the historic St. John's Episcopal Church.
The crowd had been kneeling, praying and chanting, "I can't breathe," some of the last words of George Floyd, the man killed by police after his arrest in Minneapolis. Floyd's death on May 25 sparked the national protest movement about the treatment of Blacks by law enforcement.
In a new letter, the American Civil Liberties Union argues Barr has a conflict of interest in overseeing any investigation, given his role in issuing an order to federal law enforcement to clear the square and disperse the crowd.
Barr has since told interviewers he did not order the use of force. The attorney general also said he didn't consider President Trump's decision to walk across the square a "political act."
Barr and Trump have sought to frame the efforts of authorities as a curb on violence by anarchists; Trump ordered a number of domestic security agencies to guard statues and monuments because of what the president called the peril they face from radicals.
Justice Department spokeswoman Kerri Kupec echoed that message Monday with what she called another warning to protesters who might deface or tear down statues in the midst of the demonstrations about police violence.
A friendly reminder to violent agitators & anarchists:— Kerri Kupec DOJ (@KerriKupecDOJ) July 13, 2020
It’s a crime to destroy fed property. It’s a crime to assault a fed law enforcement officer.
To date, DOJ has charged 168 cases & made 156 arrests.
We WILL continue to prosecute these crimes to fullest extent of law.
Answers sought from independent officer
The ACLU argues someone else besides Barr must preside to achieve a full and independent investigation into the clearing of Lafayette Square.
"Given the inherent conflict of interest present, appointment of an outside prosecutor is needed to ensure impartiality of any investigation and, if warranted, of any prosecution of any criminal acts committed by members of the executive branch," wrote Kate Ruane, senior legislative counsel at the ACLU.
The ACLU said the federal action in the square violated protesters' First Amendment rights to assemble and Fourth Amendment rights to be free of unreasonable search and seizure.
The civil liberties group said other statutes could come into play as well, including a federal law that bars conspiracies to injure or intimidate people exercising their constitutional rights and another statute that prohibits interfering with people engaged in lawful speech or peaceful assembly.
Special prosecutors rare but not unprecedented
Any Justice Department decision to appoint a special counsel would be unusual but not unprecedented.
In recent years, former FBI Director Robert Mueller investigated Russia's attack on the 2016 election. Earlier, in the Obama administration, the ACLU demanded then-Attorney General Eric Holder name a special counsel to examine mistreatment and torture of terrorism suspects.
The legal trigger for ordering such an investigation involves a basis for a criminal probe; the presence of a conflict of interest by existing prosecutors; and clear public interest.
The ACLU letter pointed out that the Justice Department has launched criminal cases against protesters around the country for removing Confederate statues and throwing incendiary devices, painting protesters as "instigators" who deserve to spend decades in prison.
"Responsibility for the violent events of June 1 may extend to the very highest levels of the federal government, including to the attorney general of the United States," the ACLU said. "The country deserves to have these outstanding questions addressed and those responsible for the attacks on our civil rights and liberties that occurred on June 1, 2020, must be held accountable."