When he testified before the Senate Judiciary Committee in January, hoping to be confirmed as attorney general under President Trump, William Barr made a number of promises. None was more important than his pledge to “ensure that the administration of justice, the enforcement of the law, is above and away from politics.” He promised to “ensure” that “every enforcement decision” at the Department of Justice (DOJ) “must be based strictly on the laws and the facts, not on partisan, political or personal interests.” He stated flatly that he “will not permit partisan politics, personal interests, or any other improper consideration to interfere” with the Mueller probe or “any other investigation.”
In fact, however, Barr has repeatedly broken this crucial promise in recent months. As one former DOJ official put it in early October, Barr has “broken the first rule for any attorney general: the rule of sound judgment and impartial apolitical administration of justice.”
Let’s start with his handling of the results of the Mueller investigation. Despite his pledge to “share” the report with Congress “as much as possible” and that it “will not happen” that the president will “put his own spin on” and “correct” the Mueller report “before it’s released,” that’s precisely what did happen thanks to Barr himself. Before releasing any of the report to Congress, Barr himself provided a misleading public summary and press conference and publicized his own conclusion (not shared by Mueller) that Trump did not obstruct justice, and even used Trump’s phrase “no collusion,” clearly presenting the report “through Donald Trump’s point of view.”
Shortly after that, Barr was roundly criticized for his suggestion in a congressional hearing that “spying did occur” on the Trump campaign in 2016. As two former DOJ and Central Intelligence Agency (CIA) officials wrote, Barr’s claim “obviously aligns with the president’s prior false attacks and complaints” and appeared “designed to please the president” personally, contradicting the principle that the attorney general should be perceived as an “agent of apolitical justice.” Barr then appointed U.S. Attorney John Durham in May to investigate the origins of the Mueller report; although duplicative and unnecessary, there was some hope that, as a career prosecutor, Durham would be able to conduct an unbiased review.
But reports this fall document that Barr has played an “unorthodox” and direct role in the investigation by attempting to “enlist” foreign governments, including Italy and Great Britain, in his “campaign to discredit the origins” of Mueller’s probe. As one former DOJ official explained, Barr’s direct and personal involvement throws “out the window” any hope that Durham will be able to handle the matter “in a professional, nonpartisan manner.”
Even more politicization at DOJ has occurred in the context of Trump’s July 25 phone call requesting the Ukrainian president to “dig up dirt” on possible Trump opponent Joe Biden. The Department has specifically denied that Barr was involved in dealing with Ukraine, despite the specific requests by Trump on the July 25 call that the Ukrainian president work with Barr. If Barr was truly trying to be impartial and nonpolitical, he should at least then have immediately recused himself from any matters relating to Ukraine, as House Judiciary Committee Chair Jerrold Nadler has requested. Instead, with as yet unknown involvement by Barr, his DOJ did more favors for Trump with respect to Ukraine.
Initially, DOJ made the questionable decision to overrule an inspector general and instruct the Director of National Intelligence that the whistleblower complaint about Trump did not qualify for transmission to Congress. Although the congressional intelligence committees did receive the complaints after a delay of several weeks, DOJ’s action was, as one analyst concluded, a “significant step” that “could have buried the complaint for good.”
In addition, DOJ announced after the memo of the July 25 phone call became public that it had determined that Trump’s solicitation of foreign help to dig up dirt on an opponent was not a crime because, despite the clear prohibition in federal law against soliciting any “thing of value” from a foreign source in connection with an election, the precise value of the dirt Trump wanted to dig up cannot be quantified. One election law expert has called this excuse “laughable” and clearly contrary to the views of the Federal Election Commission (FEC), as a previous PFAW blog post has explained.
But this DOJ ploy does more than erroneously suggest that Trump is off the legal hook. It effectively tells Trump that he can go ahead and solicit and accept all the foreign dirt he wants from foreign sources for the 2020 election, despite earlier warnings by the director of the FBI that candidates should contact the FBI rather than unquestioningly accept such offers. Indeed, Trump has already publicly suggested on October 3 that China should also try to dig up dirt on Biden, leading to an immediate “reminder” by the FEC chair that “it is illegal” for anyone running for office “to solicit help from a foreign national.” But why should Trump pay the slightest attention to that reminder when Barr’s DOJ, which actually prosecutes election crimes, is apparently in his pocket?
An October 4 report raises even more concerns about the conduct of Barr and DOJ. Weeks before the whistleblower report became public, the CIA’s general counsel was so troubled about it that she made what she thought was a criminal referral to DOJ concerning the allegations, which Barr himself learned about. DOJ claimed it did not consider it an official referral because it was by phone, and did not pursue any investigations. This included not only possible campaign finance law violations by Trump and those close to him but also abuses such as fraud and bribery. One former DOJ official noted that DOJ’s conduct was “contrary to how normal prosecutors work.”
Other examples of Barr’s DOJ striving to protect Trump above other duties continue to surface. Also on October 3, for example, the Manhattan district attorney’s office criticized DOJ for the unusual step of attempting to “insert itself” into a “private” case between it and Trump’s personal attorneys on the side of Trump’s “extravagant” claims concerning the DA’s attempt to obtain Trump’s personal tax returns. As the Washington Post wrote at the beginning of October, there is more and more evidence suggesting that Barr is ”using the authority of his office for Mr. Trump’s political gain” – in violation of his obligations as attorney general and the promises he made to the Senate and to the American people.