Politics & Policy

Do Republicans See the Strategy to Discredit the Barr Investigation?

Attorney General William Barr listens to a question as he testifies on Capitol Hill in Washington, D.C., May 1, 2019. (Clodagh Kilcoyne/Reuters)
Democrats and their media friends are attempting to paint the Barr investigation, in the public mind, as a corrupt extension of a down-and-dirty Trump 2020 political campaign.

In the weekend column, I observed the media-Democrat complex’s politicized reporting of the July 25 conversation between President Trump and his Ukrainian counterpart:

Trump detractors hyper-focus on the president’s request that President Zelensky provide Attorney General Barr with any information Ukraine might have about Biden twisting arms to quash an investigation involving his son’s cashing in on dad’s influence. I say “hyper-focus” because there was a lot more to it than that. Long before the conversation came around to the Biden topic, the “favor” that Trump asked for was Zelensky’s assistance in Barr’s ongoing investigation of the genesis of the Trump-Russia investigation. 

Virtually all mainstream-media reporting and Democratic commentary on the conversation now fits this pattern. It is noted that Trump, immediately after the “quid pro quo” set-up — “I would like you to do us a favor though” — invoked the attorney general, the nation’s top federal law-enforcement official. Studiously omitted is the context of this invocation: a wholly appropriate request by the president, to the head of state of a country in possession of relevant evidence, for cooperation with a legitimate investigation being conducted by our country’s Justice Department.

Instead, the coverage skips a few hundred words. It cuts directly to Trump’s suggestion that Zelensky look into whether there was any impropriety in former vice president Biden’s having purportedly “stopped the prosecution” that might have arisen out of a Ukrainian investigation involving his son.

The strategy here is obvious. The Democrats and their note-takers would like the public to believe that Barr’s investigation is an adjunct of the Trump 2020 campaign — and a grossly improper one at that. The misimpression they seek to create is that Barr is putting the nation’s law-enforcement powers in the service of Trump’s reelection campaign, in the absence of any public interest. The hope is that this will delegitimize not only any information that emerges from Ukraine but the whole of the Justice Department’s investigation of intelligence and law-enforcement abuses of power attendant to the 2016 election.

I’ll repeat what I elaborated over the weekend:

No matter how much Democrats seek to discredit that probe and the AG overseeing it, it is a legitimate investigation conducted by the United States Department of Justice, which has prosecutors assigned and grand jury subpoena power. It is examining questionable Justice Department and FBI conduct. It is considering whether irregularities rise to the level of crimes. It will be essential to Congress’s consideration of whether laws need to be enacted or modified to insulate our election campaigns from politicized use of the government’s counterintelligence and law-enforcement powers. 

The hypocrisy here is breathtaking, even by Adam Schiff standards.

Many of us did not like the Mueller investigation. I repeatedly contended that the appointment of a special counsel was inappropriate for several reasons. The pertinent regulations require a basis for believing a crime predicating a criminal investigation or prosecution has occurred, and there was none in the case of President Trump. The regs similarly require a conflict of interest based on the predicate crime, and since there was no such predicate, there was no conflict requiring the Justice Department to appoint an outside lawyer. The FBI and Justice Department had announced that they were conducting a counterintelligence investigation; unlike a criminal investigation, counterintelligence investigations are typically not assigned to a prosecutor because intelligence collection and analysis are not intended to build courtroom prosecutions. Furthermore, the president was repeatedly told he was not under investigation (a representation the FBI and Justice Department must be held to, even though it appears not to have been true). And there was no legal basis for the FBI to open a criminal investigation of the president (as then–acting director Andrew McCabe said he did) just because the president fired the FBI director — which the president is constitutionally empowered to do at will, which did not obstruct the Russia investigation in the slightest, and which McCabe acknowledged did not obstruct the Russia investigation.

Of course, the media-Democrat complex became apoplectic at any suggestion of impropriety in Mueller’s appointment. On pain of ostracism, its legitimacy was never to be questioned. Case closed.

Naturally, Trump’s opponents did not want to articulate the actual, nakedly political reason for their defense of Mueller — namely, that he was the best hope for bringing down Trump’s presidency. They thus couched their defense in legal terms. The special-counsel regs make clear that the Justice Department’s failure to adhere to them is not actionable. Consequently, as long as DOJ had a plausible basis to investigate some of their subjects — such as Paul Manafort, who had committed crimes unrelated to Russian “collusion,” and George Papadopoulos, who hadn’t “colluded” but had allegedly lied to investigators — the then–acting attorney general, Rod Rosenstein, undeniably had the power to bring a special counsel in from outside the Justice Department to conduct the investigation.

Regardless of how blatantly politicized the Mueller probe appeared to be, then, it was an official, legitimate federal investigation — one that was commissioned by the Justice Department, which lawfully resorted to the powers of the grand jury, and the obstruction of which (or lying to which) was actionable.

Now the shoe is on the other foot.

Trump opponents do not like Barr’s investigation of the genesis and conduct of the Russia investigation. It is, nonetheless, a proper exercise of the Justice Department’s lawful authority. Indeed, contrary to the Mueller investigation, there are no questions about the propriety of the prosecutor’s assignment. John Durham, the U.S. Attorney for Connecticut assigned by Barr, is not a special counsel brought in from outside. He is an in-house Justice Department lawyer, authorized to examine potential law violations. There is no question, moreover, that the attorney general has the authority to investigate possible malfeasance or misfeasance by the Justice Department — if nothing else, for the purpose of preventing its repetition by improving internal guidelines or even asking Congress for curative legislation.

It is a commonplace for our government to seek assistance from foreign governments in ongoing federal investigations. In fact, Washington and Kyiv entered a mutual legal assistance treaty in 1998. In approving this U.S.–Ukraine “MLAT” in 2000, the Senate noted that the original purpose of such treaties was “to permit the United States to obtain evidence from foreign jurisdictions in a form admissible in American courts.” As chief executive, it is not at all unusual for a president to encourage another country’s assistance in Justice Department investigations.

Contrary to the president’s public insistence, his conversation with President Zelensky was not “perfect.” It was foolish to raise questions about the Bidens.

As I pointed out in the column, there may very well be a basis for the Justice Department to scrutinize Hunter Biden’s cashing in on his father’s political influence, under the Foreign Corrupt Practices Act and perhaps other federal statutes. But the president should leave it to the Justice Department to determine whether there are grounds to look into the Bidens’ activities, including in the context of the Obama administration’s dealings with Ukrainian authorities in the run-up to the 2016 election. At present, though, there is no reason to believe that when Trump spoke with Zelensky, there was any pending Justice Department investigation focused on Hunter Biden’s business transactions with foreign interests. Viewed in isolation, the president’s request for a Ukrainian inquiry that could damage a political rival appears abusive. It is not serious enough to be an impeachable offense, but it is behavior that most voters, regardless of party or ideology, are apt to find unseemly.

Still, the Biden portion of the conversation did not happen in isolation. It had a context. It was a subordinate strand of a perfectly appropriate executive-branch request for assistance in a completely legitimate Justice Department investigation into government misconduct that is potentially serious.

Democrats and their media friends are attempting to bleach away that context and paint the Barr investigation, in the public mind, as a corrupt extension of a down-and-dirty Trump 2020 political campaign. Republicans are not going to respond effectively unless they grasp this strategy.

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