As Attorney General William Barr testifies Tuesday morning before the House Judiciary Committee, he will no doubt face harsh questioning from his critics in the Democratic Party on a number of apparent transgressions. Such criticism is fair, particularly as Barr has spent the past two years on a mission to destroy the Mueller investigation to help President Donald Trump get re-elected.
Indeed, ever since Barr took over as attorney general on Feb. 14, 2019, he has repeatedly demonstrated that his only allegiance is to Trump.
Such criticism is fair, particularly as Barr has spent the past two years on a mission to destroy the Mueller investigation to help President Donald Trump get re-elected.
Barr appears to be planning, in the closing weeks of the election, to release the results of an investigation he launched into the origins of the Mueller investigation and possibly bring criminal indictments — a move that reeks of political opportunism, is wildly inappropriate in its timing and is obviously intended to boost Trump's re-election by damaging the presumptive Democratic nominee, former Vice President Joe Biden.
To help his president, Barr has shown no allegiance to his oath of office, the Justice Department, the nation, the rule of law or the American people he is supposed to serve. Barr has also repeatedly failed to comply with the rules and standards of the Justice Department he heads.
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These failures are the basis of seven complaints that I filed on behalf of Democracy 21 against Barr with the Justice Department's inspector general and Office of Professional Responsibility. They charge Barr with improperly using his office to protect, promote and advance Trump's personal political interests. (They were filed on April 15, May 7 and Oct. 1, 2019, and Jan. 17, Feb. 27, June 11, and July 9, 2020.)
Others are engaged in Barr's effort to support Trump, such as Senate Judiciary Committee Chairman Lindsey Graham, R-S.C., and Senate Homeland Security Committee Chairman Ron Johnson, R-Wis. They are leading dubious Senate investigations certain to help Trump's re-election effort.
But Barr is the chief architect.
He has taken three pivotal steps to achieve his ends. Two are widely known — but the third has barely registered.
The first occurred on June 8, 2018, when, as a sort of sophisticated job application for attorney general, private citizen Barr sent a 19-page memo to the Justice Department slamming Mueller's Russia investigation. Barr did this even though, as he admitted, he was "in the dark about many facts." (Not the only time that Barr has made serious allegations while stating he does not know the relevant facts.)
In this memo, Barr accuses Mueller of having a "fatally misconceived" and "unsupportable" legal theory about Trump's potential obstruction of justice. Barr wrote of Mueller's obstruction theory: "If credited by the department, it would have grave consequences far beyond the immediate confines of this case and would do lasting damage to the presidency and to the administration of law within the executive branch."
Barr concluded that if Mueller's theory was accepted, the implications would be "astounding."
That job application in disguise worked. Barr got his post. Once he took control of the department, Barr's preconceived apocalyptic views about the Mueller investigation became the frame for his campaign to dismantle it.
A second pivotal step — though little noticed — was on Feb. 5, when Barr issued a memorandum to Justice Department officials setting down election-year rules for conducting politically related investigations and prosecutions. In this memo, Barr made fundamental changes to longstanding department policy. These changes allow Barr to issue a report on a criminal investigation or bring criminal indictments in late summer or fall to help Trump get re-elected.
Previously, Justice Department rules had long prevented it from taking actions in an election year that might affect voting results. Past attorneys general have laid out these rules in almost identical memos: in March 2008 by Attorney General Michael Mukasey, a Republican appointee, and in March 2012 by Attorney General Eric Holder and April 2016 by Attorney General Loretta Lynch, both Democratic appointees.
All these memos state that "politics must play no role in the decisions of federal investigators or prosecutors regarding any investigations or criminal charges." There is a clear purpose for this: to prevent the powers of the Justice Department from being misused to affect an election.
Barr, however, seems to have other ideas. His Feb. 5 memo shrinks the scope of the noninterference rules, making it easier to disregard any possible election-related consequences if Barr decides to release a report on existing criminal investigations or bring criminal indictments.
Furthermore, the attorney general seems to believe he has essentially unrestrained power and can ignore even this narrower set of restrictions.
For example, Barr asserted, in a radio interview, that he can ignore the department's election-year policies because they are only "prudential" — they call for him to make a "judgment in each individual case." This interpretation, however, has no basis in either the language of Barr's memo or previous Justice Department memos.
Barr claimed in the interview that he is free to issue indictments this year related to the origins of the 2016 Russia investigation. Any such indictments are likely to target Obama administration law enforcement and intelligence officials and benefit Trump's re-election effort — given the president's nonstop attacks on the Russia investigation.
Barr's moves are anything but innocent. To fully understand what he is up to here, you need to look to Barr's third pivotal step in his obsessive quest to destroy the Mueller investigation.
On May 13, 2019, Barr appointed U.S. Attorney John Durham of Connecticut to investigate the origins of the 2016 Justice Department investigation into Russian election interference. This was highly unusual, because the department's nonpartisan inspector general was already conducting a similar investigation. Of course, Trump had long claimed that Mueller's investigation was a "hoax" and a "witch hunt."
In December, the inspector general issued a 434-page report that concluded that the Mueller investigation had a legitimate purpose and that there was no evidence of bias against Trump. This sharply contradicted Trump's repeated attacks on the Russia probe.
Barr immediately challenged the inspector general's findings. In another highly unusual action, Barr flatly contradicted his own inspector general, claiming that the Russia investigation had been opened "on the thinnest of suspicions that, in my view, were insufficient to justify the steps taken. It is also clear that, from its inception, the evidence produced by the investigation was consistently exculpatory."
In another highly unusual action, Barr flatly contradicted his own inspector general, claiming that the Russia investigation had been opened "on the thinnest of suspicions."
Durham also challenged the report, insisting that based on the evidence he had gathered so far — in what has become a criminal investigation — he did not agree with some of the conclusions. This also was highly irregular. Department rules typically prohibit prosecutors from commenting publicly on ongoing criminal investigations.
If Durham's parallel investigation finds improper or criminal conduct by Obama administration officials during the Russia investigation, the attorney general is widely expected to take action. He could, for example, release the findings of Durham's criminal investigation or perhaps file criminal indictments in a desperate attempt to help Trump win.
These actions would not be prohibited under Barr's new Justice Department election-year policies.
If this occurs, the attorney general would have blatantly violated what had been longstanding Justice Department policy. Barr would also be guilty of flagrantly abusing his office to assist Trump's campaign just weeks before the election.
Trump is also likely to use any of Barr's actions to try to smear Biden in the closing weeks of the campaign. In a recent Washington Post opinion piece, Mueller wrote that his Russia investigation "identified numerous links between the Russian government and Trump campaign personnel — [Roger] Stone among them."
Mueller wrote that the investigation established that "the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome. It also established that the [Trump] campaign expected it would benefit electorally from information stolen and released through Russian efforts."
It was a powerful rebuttal from a man of few words. Because in the end, history will not permit Barr — or anyone else — to turn the Mueller investigation into a "hoax" or a "witch hunt."
Barr's tenure as attorney general has been a disaster for the American people. He has grossly abused his office and repeatedly violated the rules and standards of the Justice Department. The sooner he is gone from office, the better off the nation will be.