When President Trump was elected, one of the most compelling fears expressed by many was that he would use the vast law enforcement powers of the Department of Justice to try to crush political opponents and manipulate elections, mortally damaging our democracy. After all, the President had, during and following his campaign, threatened the prosecution and imprisonment of his opponent in a manner more typical of a tin pot dictator than a free-world leader. He didn’t just do it at political rallies but, but as the Mueller report revealed, he privately tried to get then-Attorney General Jeff Sessions actually to open a case.
Clearly concerned about his then likely opponent in November, the president, with the aid of his personal attorney Rudy Giuliani, attempted to coerce the government of Ukraine to investigate and provide dirt on Biden’s son and Biden himself as a quid pro quo for the release of blocked defense assistance appropriated by Congress. This conduct resulted in Trump’s impeachment. Although he was ultimately acquitted, a majority of Senators agreed that the House managers had proved these facts. While attempting to enlist the assistance of a foreign government against the Bidens, the president also asserted that he had the authority to direct the DOJ to launch a criminal investigation against Biden, and indeed referenced Barr several times in his now-infamous call with Ukraine’s president. Now that Biden is the presumptive Democratic nominee, one can bet the farm that Biden and his family will be subject to a constant barrage of the same insubstantial allegations.
The public must be particularly watchful for how the Trump administration might move these allegations beyond mere rhetoric to employ DOJ’s resources more fully against Biden. Indeed, just as the pandemic was arriving in full-force, Attorney General Barr described two significant actions he had taken that were consistent with advancing the president’s anti-Biden political agenda. First, Barr disclosed having set up a direct “intake process” inside the DOJ that, among other things, would receive information from Giuliani about the Bidens’ alleged dealings in Ukraine. Next, and perhaps most ominously, he issued a memorandum to career DOJ staff entitled “Additional Requirements for the Opening of Certain Sensitive Investigations,” which requires that he himself (along with his personal political staff) control every step of investigations “that relate to political candidates, campaigns, and other politically sensitive individuals and organizations.”
Under other circumstances, this “buck stops here” pronouncement might inspire confidence that there is a Senate-confirmed watchdog of a traditionally apolitical branch of government who will serve as a check upon what might be an overzealous chief executive or runaway staff. The “Saturday Night Massacre” of the Watergate era provides a historical example of an attorney general performing that function. But in Barr’s hands, the new policy is a signal that he is moving to eliminate the possibility that ethical career staff will interfere in his plans to investigate the Bidens. Barr’s actions as Attorney General and his views on executive power demonstrate why this threat is real.
President Trump has repeatedly asserted that he views the DOJ as an entity whose powers exist to serve him and his personal interests – all with Barr’s unqualified support. The Attorney General’s comments on presidential power might be cloaked in the veil of constitutionalism, but at heart, much of it is essentially political – involving a practice in fact that the Department may not undertake as a matter of law, ethics and custom (advancing the personal interests of the president rather than those of the United States). Indeed, a federal judge recently opined that the attorney general had “distorted” key aspects of the Mueller Report’s findings and had exhibited a “lack of candor” in his statements about the report. Barr’s behavior caused the judge (nominated to the bench by President Reagan, and elevated by President Bush) to question whether “Attorney General Barr made a calculated attempt to influence public discourse about the Mueller Report in favor of President Trump.”
In promoting his vision of executive power, Attorney General Barr has not hesitated to deploy the DOJ’s law enforcement powers in a manner that serves the President’s personal political interest. Most prominently, he opened a criminal review of the agents and intelligence officers who conducted the Russian interference investigation. And the president and the attorney general have both made public statements that presume the guilt of its subjects, who have yet to be charged.
President Trump has touted the anticipated findings of John Durham, the Connecticut prosecutor Barr imported to lead the Russia investigation, and implied that Durham will charge his subjects with crimes. Barr, for his part, allowed and trumpeted Durham’s issuing a statement saying he disagreed with the DOJ Inspector General’s conclusions that opening the Russia investigation was proper. Durham’s statement subsequently turned out to be misleading in itself, and weaker still in view of the bipartisan findings of the Senate Intelligence Committee confirming the intelligence community’s assessments of Russian interference.
More recently, Barr commented directly on the evidence in the case, saying “my own view is that the evidence shows that we’re not dealing with just mistakes or sloppiness, there was something far more troubling here; and we’re going to get to the bottom of it.” These statements violate long-standing DOJ policy, instituted to comply with Constitutional guarantees of due process, against commenting on ongoing investigations – just the sort of conduct that Trump and Barr themselves had condemned on the part of James Comey, the fired FBI Director.
Notably, while the Durham investigation plainly smacks of retribution against those who investigated the Trump campaign, there may also be a tie-in to Biden given Giuliani’s access to the “intake process.” Giuliani and others close to the President have repeatedly alleged that the real “collusion” in 2016 was between operatives in Ukraine and the Democratic Party, and that Biden’s role in firing Ukraine prosecutor Viktor Shokin was aimed not only at protecting Biden’s son, but also at covering up a George Soros-driven scheme with Ukrainian officials to aid the Democratic National Committee. A key footnote in the Whistleblower Report on the president’s calls with Ukraine noted that Durham was looking into allegations about Ukraine’s role in the 2016 election and that Giuliani had claimed to be working in Ukraine to obtain evidence relevant to that investigation.
Attorney General Barr has acted in conscious parallel to the president’s stated interests in other ways. For example, he intervened in the sentencing of Trump campaign ally Roger Stone, and has instituted a review of other indictments prompted by the Mueller investigation, including that of former Trump National Security Adviser Michael Flynn. And at Trump’s repeated insistence, the DOJ investigated and attempted to indict former FBI Deputy Director Andrew McCabe, who approved the opening of the 2016 Russia investigation.
The failed McCabe prosecution is especially instructive of how Barr has tapped into the DOJ’s ability to employ abusive law enforcement techniques in ways that have damaged his and the DOJ’s credibility. According to the New York Times, the attempt to indict by the U.S. Attorney’s Office for the District of Columbia was rebuffed by a grand jury, prompting two career prosecutors to leave the case because they “concluded that Mr. Trump’s relentless broadsides against Mr. McCabe had poisoned any potential jury, and they were worried about the appearance of a vindictive prosecution.” The same federal judge who questioned Barr’s candor on the Mueller Report also told DOJ line attorneys in a separate hearing that prosecuting McCabe on the heels of President Trump’s public personal attacks on him smacked of “undue inappropriate pressure being brought to bear,” and likened the action to what occurs “in a banana republic.” In the wake of the very rare rejection of a prosecution by a grand jury, and the stated reservations of the assigned prosecutors and a federal judge, the administration’s sole public response was to remove the United States Attorney who oversaw the case and replace her with a close personal aide of the attorney general.
It is in light of these overtly political acts — aimed at punishing the President’s political opponents and helping his political allies — that the attorney general’s recent memorandum on election-related investigations must be understood, and how it would operate in his consideration of evidence that emerges from the “intake process” for the Bidens’ alleged conduct in Ukraine or in the context of Durham’s ongoing probe. The Attorney General’s pattern of conduct suggests that, rather than acting as a politically accountable guardian of the DOJ’s independence, he will immerse himself in details of political investigations that are useful to the president who has his fealty, without seeking the guidance and judgment of experienced and dedicated career staff.
In cases where the attorney general is so closely aligned with a presidential policy and is party to inside information such that he might become a witness or otherwise might render a decision that is the product of conflict of interest, the law allows for his recusal and the appointment of a disinterested special counsel. But Barr has done otherwise in overseeing both the Mueller investigation (which he openly challenged before taking office, and whose results he mischaracterized), and Durham’s investigation (which he has openly prejudged). In this context, where the president has both called for a criminal investigation of Biden and publicly poisoned the well with repeated guilt-presuming allegations against the former vice president, it is more than plausible that Barr will gesture toward a criminal probe into Biden or his son or deliver false public allegations against the vice president stemming from the Durham probe. Nothing can be taken off the table given Barr’s track record.
Of course, political candidates are not above the law, and there should be a process whereby an independent DOJ can fairly consider legitimate allegations against those who run for office. Reliance upon both Departmental history and custom suggests that a suitable check on political interference or animus could come if decisions on whether to investigate, prosecute, or otherwise impugn a political candidate, and especially the president’s 2020 opponent, were primarily predicated by the judgments of career officials and insulated from interference by the White House. But in this attorney general’s DOJ, such a decision process will be flipped. It will be his alone, it will necessarily be political, and will be taken in alliance with the White House.
Career DOJ employees could – and should – push back against any politically motivated prosecution or other Department action designed to interfere in the 2020 election. The recent resignation and withdrawal of DOJ line prosecutors in the Stone matter provided the public with important information concerning potential Departmental misconduct. These courageous public servants adhered to the Department’s own Principles of Federal Prosecution which require that DOJ’s prosecution power should be exercised in service of the “fair, evenhanded administration of the federal criminal laws.”
As the Justice Manual makes clear, “Department employees shall report to their supervisor” any “evidence or non-frivolous allegation” that a Department attorney or law enforcement officer “engaged in professional misconduct.” And there are other available channels of reporting including the Department’s Office of Professional Responsibility, Office of Inspector General, Office of Special Counsel and — if legally permissible — Congress. In all cases, the federal Whistleblower Protection Act offers protections for government employees who report violations of law and abuse of authority. Nevertheless, we can expect only so much of subordinate DOJ employees, whose careers and livelihoods are on the line, and they should not be left alone to shoulder the burden of stopping the DOJ from interfering in the 2020 election, particularly at a time when the president is penalizing and suppressing independent judgment by firing inspectors general and continuing his retributive verbal assaults on career DOJ personnel.
Three years of experience has shown that abuses of power are routine for this administration, and that nothing, not even a deadly pandemic, will disrupt its focus on gaining political advantage for the president, even at the expense of truth, fairness and our Constitution. Former DOJ officials and current DOJ whistleblowers can perform an important educational role in heading off any attack on our upcoming election. But especially in this time of true national crisis, the greatest check on governmental misconduct is an informed and energized public. That public must now keep an eye on the hand of Justice and be ready to sound the alarm at signs that this attorney general is about to use the DOJ’s law enforcement powers to support action against those who might criticize or disagree with the president, especially the president’s presumptive November opponent.