In his continued pursuit of investigating the origins of the investigation into Russian interference in the 2016 election, Attorney General William Barr appears to be violating one long-established and fundamentally important U.S. Department of Justice policy and readying himself to violate another. These established policies are essential for the department to carry out its mission “to ensure fair and impartial justice for all Americans.” They are also essential to protect the integrity and credibility of the department. The first policy requires that department officials not publicly discuss ongoing criminal investigations. The second policy requires that department officials not take any actions that would affect an election or give an advantage or disadvantage to any candidate or political party.
Publicly Discussing Criminal Investigations
The Justice Department’s longstanding policy against any public discussion of criminal investigations is based on the principle that no one under investigation by the department should be tainted by public discussion of the investigation unless and until formal criminal charges are filed.
According to Rule 1-7.400 in the Department of Justice Manual, “DOJ generally will not confirm the existence of or otherwise comment about ongoing investigations.” The Rule, further states, “DOJ personnel shall not respond to questions about the existence of an ongoing investigation or comment on its nature or progress before charges are publicly filed.” (Given that several past investigations, including one by the DOJ’s own Inspector General, concluded that the Russia investigation was justified, there is no basis for applying the narrow exemption to this Rule that “the community needs to be reassured that the appropriate law enforcement agency is investigating a matter.”)
In apparent violation of this Rule, Barr has publicly discussed the ongoing criminal investigation into the origins of the Justice Department investigation into Russia’s interference in the 2016 presidential election. Barr reportedly initiated this criminal investigation in 2019, and it is being conducted by U.S. Attorney John Durham under Barr’s supervision.
In a Fox News interview on April 9, 2020, Barr called the Justice Department’s investigation into Russian interference “one of the greatest travesties in American history.” Barr further said that the 2016 investigation had been undertaken “without any basis” and that the investigators were “trying to sabotage the presidency.”
Barr also said, talking about the Durham investigation, “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.” Barr also said about Durham and the DOJ investigation, “He is looking to bring to justice people who were engaged in abuses if he can show there were criminal violations.”
Barr further said during an interview with radio host Hugh Hewitt and in response to a question about whether he was shocked by what the Durham investigation had found to date, “I am very troubled by it, you know. I think the reason we have this investigation is because there are a lot of things that are unexplained. And I think we’re getting deeply into the situation, and we’ll be able to sort out exactly what happened.”
Under DOJ rules, Barr should have refused to make any comments about an ongoing criminal investigation. But he did not.
Barr’s public comments apparently violate Rule 1-7.400 of the DOJ Manual which, as noted above, prohibits public comment by department personnel on either “the existence of an ongoing investigation” or “on its nature or progress before charges are publicly filed.” This is improper conduct for any member of the department, most especially its chief law enforcement officer, the Attorney General of the United States.
Taking Action for Partisan Political Purposes: Heading into the 2020 Election
Past actions and statements by Barr, furthermore, have shown a pattern of abusing his authority as attorney general in order to support the partisan political interests of President Trump. Democracy 21 has laid out these abuses in five complaints filed over the past year with DOJ’s Office of Professional Responsibility, Departmental Ethics Office, and inspector general. The complaints were filed on April 15, May 7, and October 1, 2019, and January 17 and February 27, 2020.
The department’s policy against taking action for partisan political purposes is intended to provide the American people with credible assurance that the department is carrying out its mission “to ensure fair and impartial administration of justice for all Americans.” This policy is most critical in the middle of a presidential election and has long been spelled out in department policy positions.
As George J. Terwilliger III, a deputy attorney general under President George H.W. Bush, said, “There’s a long-standing policy of not doing anything that could influence an election.”
The policy described by Mr. Terwilliger is clearly summarized in a 2008 memorandum from President George W. Bush’s then-Attorney General Michael Mukasey. Issued in March 2008 and titled “Election Year Sensitivities,” the Memorandum states:
Department of Justice employees are entrusted with the authority to enforce the laws of the United States and with the responsibility to do so in a neutral and impartial manner. This is particularly important in an election year.
The Memorandum further states (emphasis added):
As Department employees … we must be particularly sensitive to safeguarding the Department’s reputation for fairness, neutrality and nonpartisanship.
Simply put, politics must play no role in the decisions of federal investigators or prosecutors regarding any investigations or criminal charges. Law enforcement officers and prosecutors may never select the timing of investigative steps or criminal charges for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party.
Similar memoranda were issued in March 2012 by then-Attorney General Eric Holder, a Democratic appointee, and again in April 2016 by then-Attorney General Loretta Lynch, also a Democratic appointee.
This longstanding policy against interference in electoral matters, as set forth in the Mukasey, Holder, and Lynch memoranda, is intended to prevent the reality or appearance of the Justice Department’s investigative and prosecutorial powers being misused to influence an election. Both Democratic and Republican administrations reportedly have interpreted this policy broadly to cover any steps that might give even the appearance of partisanship in actions or decisions by the department.
Given Barr’s past record of using his authority to support the partisan political interests of President Trump, it is more important now than ever for Barr to comply with the DOJ’s long-established election-year policy of “not doing anything that could influence an election.”
There is reason for great concern, however, that Barr is laying the groundwork to influence the 2020 presidential election by taking actions that support President Trump’s re-election efforts.
In February, Barr issued his own election-year memorandum in which he attempts to dramatically narrow the longstanding DOJ policy and thereby opens the door to actions influencing the 2020 presidential race.
The Barr memo covers only the opening of a criminal or counterintelligence instigation and, unlike the previous memos, does not apply to other DOJ actions relating to the conduct or disposition of a criminal investigation. Barr’s memorandum also requires that opening such an investigation must, in the case of a presidential campaign or candidate, be coordinated with his office.
Most egregiously, Barr’s memorandum gives him unqualified discretion to make final determinations regarding whether or not to apply departmental policies relating to non-interference in electorally sensitive matters. This discretion allows Barr to ignore or negate the policies that restrict DOJ officials’ actions that would influence an election.
It became clear what Barr was up to when he made a brazen assertion in a recent radio interview that, contrary to longstanding DOJ policy, he is free at any time up to the November election to issue indictments arising from the Durham investigation. Barr claimed in the interview that the department’s policy of non-interference in elections applies only to indictments against candidates or their close aides, and asserted that since the Durham investigation involves department officials who opened the 2016 investigation, the DOJ’s election-year policies would not apply.
Barr also asserted that he is free to ignore the department’s policies because they are not “written in stone” and are only “prudential” in that they call for him to make a “judgment in each individual case.”
But Barr is making up these limitations on the longstanding policy, which applied to any DOJ criminal investigation in an election year that might “affect” the election or “give an advantage or disadvantage to any candidate.”
The Mukasey, Holder, and Lynch memos state that politics must “play no role” in prosecutorial decisions and that prosecutors may “never” use the timing of criminal charges to affect the election. There is no provision in these memos that limits the election-year policies just to investigations of candidates or their close aides, or that gives the attorney general the power to make a judgment in each case of whether to follow the policies or ignore them.
Barr is misrepresenting the department’s longstanding policy, just as he misrepresented the Mueller report, in an attempt to give himself license to do precisely what well-established DOJ policy and past Republican and Democratic attorneys general have treated as improper conduct.
Ignoring Findings About the Russia Investigation
We know that President Trump has long criticized the DOJ’s investigation into the 2016 election, repeatedly calling the investigation a “witch hunt,” a “hoax” and claiming that it resulted from the efforts of department officials who were biased against him.
Trump’s claim was flatly rejected by Justice Department Inspector General Michael Horowitz in the report he issued on December 9, 2019, which found that the department had sufficient basis to initiate the 2016 investigation and that there was no evidence that FBI and department officials had acted with political bias in conducting the investigation.
On April 21, 2020, the bipartisan Senate Intelligence Committee, led by Republican Chairman Richard Burr (R-NC), unanimously rejected Trump’s claims that the investigation was “biased” and a “hoax.” The Intelligence Committee issued a report that, as a recent New York Times article described, “unanimously found that the intelligence community assessment, pinning blame on Russia and outlining its goals to undercut American democracy, was fundamentally sound and untainted by politics.”
Thus, the findings of the intelligence community in 2017, the Mueller report in 2019, the DOJ Inspector General in 2019, and the unanimous, bipartisan Senate Intelligence Committee in 2020 all confirmed that the Russia investigation was undertaken with a legitimate purpose and there was no evidence of political bias against President Trump.
This has not stopped Barr, however, from apparently seeking to provide support for Trump’s false claims about the Russia investigation, and help for his reelection bid.
Any indictments issued by Barr and Durham against Justice Department officials who initiated the 2016 Russia investigation in the remaining months before the presidential election would reignite Trump’s claims that the 2016 investigation was biased and that he was unfairly treated in the Mueller investigation. Any such indictments would no doubt be used for political gain by Trump in the presidential election.
If Barr allows indictments from the Durham investigation to come out during the presidential election campaign, he would be abandoning longstanding DOJ policy and the department’s mission “to provide fair and impartial justice for all Americans” by misusing the department’s prosecutorial power to support Trump’s reelection campaign.
The longstanding DOJ policy to avoid interfering in elections requires that Barr immediately suspend the Durham investigation and place on hold any further public actions or public comments concerning this matter. It also requires Barr to ensure that there be no DOJ investigations during this presidential election year aimed at the presumptive Democratic presidential nominee, former Vice President Joe Biden. Similarly, any investigation of members of the Biden family, such as of Hunter Biden, would also be targeted at influencing the election and thus be contrary to DOJ policy.
Barr is Attorney General of the United States, not a political lawyer whose job is to protect and advance the partisan political interests of President Trump. As attorney general, Barr is required to represent and protect the interests of all of the American people. He has failed to do so.