An Open Letter to Connecticut U.S. Attorney John Durham

 

August 6, 2020

John H. Durham
United States Attorney
District of Connecticut
450 Main Street
Room 328
Hartford, CT 06103

Dear U.S. Attorney Durham:

On May 13, 2019, Attorney General William Barr appointed you to review the origins of the 2016 Justice Department investigation into Russian interference in the 2016 elections. At some point, this review turned into a criminal investigation of the Justice Department’s investigation into Russia’s efforts to undermine our democracy.

The need for your appointment was hard to understand at the time it was made, since the Justice Department’s independent Inspector General was already conducting a similar investigation that began in March 2018 into the same issues.  On December 9, 2019, the Inspector General issued his report and concluded that the 2016 Russia investigation had had a legitimate purpose and that there was no evidence of political bias against President Trump in how the investigation had been initiated or undertaken.

We are now in the closing stages of the 2020 presidential campaign.

Longstanding Department policies issued by the past three Attorneys General who served during an election year make plain that Department actions should not be taken in an election year that could influence or affect an election.  George J. Terwilliger III, who served as deputy attorney general under Attorney General William Barr in the administration of President George H.W. Bush, said in 2016, “There’s a longstanding policy of not doing anything that could influence an election.”

I strongly urge you to follow this policy and not to issue any report, or bring any indictments, resulting from your investigation in these closing weeks of the 2020 presidential election.

Any public action by the Justice Department in this pre-election period that is associated with your investigation – which by its very nature involves actions taken during the Obama-Biden Administration – is bound to be used by President Trump for partisan political purposes to promote his re-election effort against Vice President Biden.

In testifying during his Senate confirmation hearings, Mr. Barr was asked whether there are “policies in place that try to insulate the investigations and the decisions of the Department of Justice and FBI from getting involved in elections?” Barr said yes and explained that the party in power has “their hands on the levers of the law enforcement apparatus of the country, and you do not want it used against the opposing political party.” But that is precisely what would occur here if a report is issued on your investigation of the Russia investigation or if indictments are brought at this critical stage of the presidential election.

You should not permit your long and distinguished career in the Justice Department to be permanently tainted, or your personal integrity to be irreparably impugned, by what would plainly be an effort to use your investigation to influence or affect the 2020 presidential election.

Obviously, there is no reason for either a report to be issued or criminal indictments to be brought before the presidential election, other than to influence that election. If the conclusion is reached by you or others at the Justice Department that a report on your investigation should be issued, or that criminal indictments are warranted, these actions should be deferred until after the 2020 presidential election.

The Department’s long established non-interference policy is intended to provide the American people credible assurance that the Department is not being misused for partisan political purposes and that DOJ is carrying out its core 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.

In March 2008, President George W. Bush’s then-Attorney General Michael Mukasey issued a memorandum to Justice Department employees entitled “Election Year Sensitivities.” The Mukasey 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.

The same Memorandum was 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 Justice Department policy against interference in electoral matters, as set forth in the Mukasey, Lynch and Holder memoranda, is intended to prevent the reality or appearance of the Justice Department’s investigative and prosecutorial powers being misused to influence or affect 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.

Indeed, in his own memorandum issued in February 2020, Attorney General Barr said that the Department “must be sensitive to safeguarding the Department’s reputation for fairness, neutrality and nonpartisanship.”  For this reason, and specifically citing the Mukasey, Lynch and Holder memoranda, Barr said, “the Department has long recognized that it must exercise particular care regarding sensitive investigations and prosecutions that relate to political candidates, campaigns, and other politically sensitive individuals and organizations – especially in an election year.” (emphasis added).

The Department’s policy as set forth in the prior memoranda, and even as described by Barr, is broad, covering not just the filing of indictments of candidates but all “decisions of federal investigators or prosecutors” affecting an election.  And the bottom line is clear: “simply put” politics must play “no role” in the Department’s actions.

It is essential that you be guided by this policy in your decisions between now and the November election. There is a growing public belief that Attorney General Barr is intending to release the results of your investigation later this summer or in the early fall, and that indictments may possibly be brought. When asked about this at a House Judiciary Committee hearing last week, the Attorney General did not deny this intent. According to a report in The Washington Post:

Attorney General William P. Barr reiterated this week that he will not wait until after November’s election to release whatever U.S. Attorney John Durham finds in his examination of the FBI’s 2016 investigation into President Trump’s campaign, raising fears among Democrats that Barr and Durham could upend the presidential race with a late revelation.

Any public release of your report in the current closing stage of the presidential election, or any indictments issued during this period as a result of your investigation, clearly will become a major campaign issue and will have political consequences. The longstanding Department policy to avoid such politicization of the Department’s work compels you to prevent this from happening.

If your investigation is not complete, you should not complete it until after the election. If the report is complete, you should publicly oppose any release of your report before the election. The same holds true regarding any indictment made in the closing weeks of the election.

Attorney General Barr was widely criticized, including by a federal judge, for mischaracterizing the findings of Special Counsel Mueller’s report in the period before it was released to the public. You have an obligation to take all possible steps to prevent your investigation from   being similarly mischaracterized or misused for partisan political purposes in contravention of the Department’s policy.

As a prominent Department official who has been assigned an investigation of high political sensitivity, with all due respect, your professional reputation and personal integrity are on the line here.

There is no ambiguity about the mandate that “politics must play no role in the decisions of federal investigators or prosecutors regarding any investigations or criminal charges.” There is no ambiguity about the fact that this policy was established to protect the integrity of the Justice Department and the integrity of our elections. There is no ambiguity about the fact that the release of your investigative work in this pre-election period would violate this policy.

I urge you to comply with the Department’s longstanding policy to ensure that the findings of your investigation are not used to affect or influence the 2020 presidential election.

In the event that decisions about issuing a report or bringing criminal indictments are made at higher levels of the Justice Department, you should promptly withdraw your name and publicly disassociate yourself from such actions.  It would abandon your own professional duty and responsibility in this matter to allow superiors to direct you to take actions that contravene a Departmental policy designed to protect the integrity of both the Justice Department and the electoral process.  Nor should you defer to any implausibly narrow or strained interpretations of the policy that might be made by the Attorney General or others.

I strongly urge you not to participate in, and to disassociate yourself from, any announcement, report release, issuance of indictments, or other public statements or actions prior to the 2020 presidential election relating to the criminal investigation you have been conducting into the origins of the Justice Department’s investigation of Russian interference in the 2016 election or any other related matters in which you are directly involved.

Sincerely,
Fred Wertheimer

 

 

About the Author(s)

Fred Wertheimer

President of Democracy 21. You can follow him on Twitter @FredWertheimer.