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December 13, 2019

Note From Elie: Bill Barr’s Insatiable Appetite for Trump-Vindication

Dear Reader,

Eight months ago, William Barr declared to Congress that “I think spying on a political campaign is a big deal” and “I think spying did occur” against the 2016 campaign of President Donald Trump. To a Justice Department alum, this was a spit-take moment: the Attorney General publicly echoed a signature Trump political talking point about “spying” — a word that has no technical application to criminal law and that no real prosecutor would ever use. And Barr used that loaded term to announce (or at least forecast) his own viewpoint on the ultimate outcome of a massive investigation that had just gotten underway. It seemed like the Attorney General was playing politics, not seeking justice.

Even worse, Barr parroted one of Trump’s most frequent and sensationalistic mantras — that Mueller’s investigation was a “witch hunt” (or, more precisely, a “WITCH HUNT!”). When asked if he agreed with Trump’s non-legal (and non-factual) assessment, Barr predictably ambled over to Trump’s side: “If you are somebody who’s being falsely accused of something, you would tend to view the investigation as a witch hunt.” It is jarring to hear the nation’s top prosecutor refer to any criminal investigation — never mind one that yielded over three dozen federal indictments and convictions of several top campaign and White House officials — a “witch hunt.” 

The Justice Department Inspector General’s report on the origins of the Russia investigation, released this week, was a sharp slap of reality to Barr’s fantastical predictions. Contrary to Barr’s premature declarations of impropriety, the IG concluded that “the FBI had an authorized purpose when it opened Crossfire Hurricane [The Russia investigation] to obtain information about, or protect against, a national security threat or federal crime,” and that the investigation had a sufficient factual basis. Perhaps most importantly, the IG “did not find documentary or testimonial evidence that political bias or improper motivation influenced the decisions to open the four individual investigations.”

The IG report is by no means a clean bill of health for the Russia investigation. True to form, Inspector General Michael Horowitz — who has made prior findings both celebrated and lamented by Republicans and Democrats alike — called it right down the middle, without regard to who “wins” or “loses.” At the same time the IG report corrects the record and rejects the premise that the Russia investigation was politically driven, it also notes that the FBI filed FISA warrants applications containing 17 “significant inaccuracies and omissions,” and recommends remedial measures to prevent a recurrence.

But that’s nowhere near enough to make Barr right, or to satisfy his appetite for Trump-vindication. Barr immediately recoiled at the IG’s conclusion, declaring on the day of the report’s release that “The F.B.I. launched an intrusive investigation of a U.S. presidential campaign on the thinnest of suspicions that, in my view, were insufficient to justify the steps taken.”


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To put it bluntly, who cares about Barr’s personal view? Yes, he’s the Attorney General, but he has no basis to contradict or contest the IG’s findings. The IG conducted an exhaustive investigation spanning over 170 interviews with over 100 witnesses and review of over one million documents. Yet Barr’s response is essentially to huff, “Well, I just don’t agree.” Did Barr conduct his own, separate investigation leading to a different conclusion? Did he review the IG’s evidence — those million documents and 170 interviews — and simply conclude, “Eh, not good enough for me”? Or is Barr stubbornly clinging to the same predetermined outcome he announced to Congress back in April?

While Barr’s initial statements about the Russia investigation and the IG report were whiny, he reached full tantrum mode during an interview this week with MSNBC. He claimed, again — and contrary to the IG — that the investigation “lacked sufficient predication.” But that was just a warmup. Barr then ratcheted up the rhetoric, claiming the Obama administration “used the apparatus of the state” to “spy on political opponents,” creating a “danger to our free system.” He then reached a crescendo: “I think our nation was turned on its head for three years based on a completely bogus narrative that was largely fanned and hyped by a completely irresponsible press … I think there were gross abuses . . . and inexplicable behavior that is intolerable in the FBI.” This is a remarkable double-play; the Attorney General in a single breath turned on both his own FBI and the free media, all because the IG report did not come out how Barr hoped and expected.

This is nothing new for Barr. Robert Mueller called out Barr, in writing, for publicly distorting the “context, nature, and substance” of Mueller’s investigation. Barr’s perversion of the Mueller investigation hit harder than his efforts to spin and deflect the IG report will be, largely because Barr sat on Mueller’s report and got the first shot at swaying the public. Here, however, the IG report came out first, so Barr’s spin will not do as much damage, checked against the factual record compiled by the IG.

Now it seems Barr will insist on a re-do of the IG report – likely through the pending investigation led by Barr’s handpicked prosecutor John Durham (who already has announced that he disagrees with the IG’s findings, breaking protocol by commenting publicly on his own open investigation). 

It was confusing at first when Barr appointed Durham. Why on earth did we need not one but two separate investigations of the same thing? The answer now is clear: Barr wanted to make sure he had a backup plan just in case the first investigation didn’t come out as he had pre-ordained.

Barr has done inestimable damage to the independence and credibility of the Justice Department. The Justice Department will recover, eventually; it always does. And perhaps someday Barr will become an object lesson in how not to handle the job of a prosecutor. He turns on its head one of the most important and fundamental precepts of any fair and decent prosecutor: rather than letting facts dictate outcome, Barr starts with the outcome — often politically driven, in Barr’s case — and then twists or manufactures facts to fit it.

Stay Informed,

Elie

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