Law & the Courts

There Is No Basis for Barr to Recuse Himself Over Ukraine

Attorney General William Barr in Washington, D.C., February 26, 2019 (Yuri Gripas/Reuters)
Even if he did what the Democrats claim (which he didn’t), it would contain nothing to justify recusal.

Here’s a question: If Dianne Feinstein didn’t recuse herself from the Kavanaugh confirmation hearings, why should anyone ever be recused from anything?

Senator Feinstein is in the news, making the characteristically hyperpartisan and frivolous claim (on Twitter) that Attorney General Bill Barr should

recuse himself from matters related to Ukraine because of concerns about his role in President Trump’s efforts to damage a political opponent and undermine the Russia investigation.

Feinstein says she is speaking for Senate Judiciary Committee Democrats, all of whom have signed a letter to the AG.

There is no basis for Barr to recuse himself.

First, before we ever get to the law, the Democrats’ claim is factually vacant. The AG has no role in President Trump’s dealings with Ukraine. Barr did not ask the president to intercede with Ukrainian president Volodymyr Zelensky for the purpose of seeking assistance with the ongoing Durham probe of the Russia investigation. Despite the president’s reference to Barr in the July 25 Zelensky phone call, Barr did not communicate with Trump about Ukraine before the call. Barr did not follow up with the Ukrainians, nor did he discuss Ukraine with the president or the president’s personal lawyer, Rudy Giuliani.

Being mentioned on a phone call is not a basis for recusal.

Second, it is commonplace for the Justice Department to seek assistance from foreign governments in gathering evidence or providing access to witnesses, in both the investigative and the trial phases of criminal cases. With respect to Ukraine specifically, the United States has had a treaty on mutual legal assistance in criminal matters for nearly 20 years. President Clinton directed that the treaty be signed in 1998 and ratified it in early 2001 with Senate consent.

That is, if Attorney General Barr had explicitly asked President Trump to seek Ukraine’s assistance, that would have been completely appropriate and routine.

In point of fact, the AG made no such request. Had he done so, though, he would have been properly functioning as attorney general in a Justice Department investigation. There would not be a scintilla of basis for recusal even if Barr had had the “role” that Feinstein wrongly claims he had.

Third, we come to Feinstein’s claim about Barr’s role in the president’s purported effort to “undermine the Russia investigation.” This brings us back to what I warned about three weeks ago. The Democrats have been laying the groundwork for the argument that they pounded away at this weekend: The Barr/Durham investigation is not a legitimate Justice Department investigation; it is a political initiative of the Trump 2020 campaign. It’s not true, but that’s their story and they’re sticking to it.

You have to admire the Democrats’ chutzpah. Consider: They know full well that the GOP-controlled Senate is not going to remove the president from power if the Democratic-controlled House impeaches him. And they are still so worried about being punished by voters for overplaying their hand that they won’t take an accountable vote to have the House as an institution — the institution constitutionally vested with impeachment power — conduct the “impeachment inquiry” that the Democrats are pursuing. Their impeachment gambit, with its secret hearings and strategic leaks, is blatantly political. Yet even as they engage in precisely the political abuse of impeachment power that the Framers feared, they loudly claim it is the Justice Department that is abusively politicizing its powers.

The best defense is a good offense, but they shouldn’t get away with it.

We do not know to what extent, if any, Ukraine factors into the Barr/Durham investigation. As I recount in Ball of Collusion, there is public reporting that the Obama administration used its considerable influence over Ukraine — which included financial aid that Kyiv desperately needed — to affect Ukraine’s law-enforcement investigations. This reportedly included pushing Ukrainian investigators and prosecutors to investigate Paul Manafort, who was affiliated with the Trump campaign for several months (four of them as its chairman). It is sheer speculation, however, that this alleged episode forms any part of the Justice Department’s look at the origins of the Russia investigation.

Even if we assume that it does, though, Ukraine still provides no basis for the attorney general to recuse himself. This is not a Jeff Sessions situation. Barr’s predecessor, AG Sessions, recused himself from the Russia investigation (which became the Mueller investigation) because it presented a fact pattern in which Sessions had been an active participant: The FBI and DOJ were conducting a counterintelligence investigation of the Trump campaign’s purported “collusion” with Russia, under circumstances in which Sessions had been a top delegate of the Trump campaign and had had contacts with Russian officials.

Ukraine is nothing like that. Again, we do not know if the reported Ukrainian activities are part of Durham’s probe, but Barr was not a government official in 2016. He had no part in the Obama administration’s dealings with Ukrainian officials. Moreover, as outlined above, he also had no role in President Trump’s dealings with Ukraine; but even if he had had such a role, the Trump–Zelensky negotiations are not the focus of the Justice Department’s probe of the Russia investigation’s origins.

Of course, if Congress, in its oversight capacity or even if it seeks to impeach the president, decides to explore the Trump administration’s dealings with Ukraine, it is undeniably within Congress’s power to do so. Nevertheless, the fact that Congress chooses to examine the executive branch’s activities is not a basis for the relevant executive-branch officials to be disqualified.

Senator Feinstein’s claim, on behalf of Judiciary Committee Democrats, that Attorney General Barr should recuse himself is nonsense, both factually and legally. He should ignore it.

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