Attorney General Barr’s remarks on Monday, signaling that the Justice Department anticipates no criminal charges against former President Obama and former Vice President Biden, should come as a surprise to no one (certainly, ahem, to no one who read Ball of Collusion).
As I noted here, less than a month ago, the AG observed during a wide-ranging interview with Hugh Hewitt that the subjects of the Durham investigation are not candidates for public office; thus, they were not affected by a Justice Department guideline against bringing charges close to Election Day. By then, Biden was already the putative Democratic presidential nominee. Obviously, if serious consideration were being given to an indictment of Biden, Barr would not have made the point about the guideline.
To be sure, the media reporting will portray Barr’s latest comments as indicative of a rift between the AG and President Trump, whose latest “Obamagate” rhetoric frames Obama-era investigative abuses as “crime.” Barr’s remarks will also be applauded as an “exoneration” of Obama officials — consistent with the media approach that portrays Democrats as innocent victims of right-wing smears if they manage to evade indictment, while a “guilty until proved innocent beyond any doubt” standard is applied to Republicans. Barr’s comments will feature in the “nothing to see here” storyline, the press’s counter to stunning revelations about the baselessness of the Russia collusion narrative willfully peddled by Democrats, and the exploitation of counterintelligence powers — powers that are supposed to protect us from jihadists and hostile regimes — for partisan political purposes.
To the contrary, my sense is that the AG believes there is plenty to see and be outraged about. It simply may not be criminal. As he put it today (and not for the first time):
What happened to the president in the 2016 election, and throughout the first two years of his administration, was . . . a grave injustice and it was unprecedented in American history. The law enforcement and intelligence apparatus of this country were involved in advancing a false and utterly baseless Russian collusion narrative against the president. The proper investigative and prosecutorial standards of the Department of Justice were abused in my view in order to reach a particular result. We saw two different standards of justice emerge, one that applied to President Trump and his associates, and the other that applied to everybody else. We can’t allow this ever to happen again.
That said, Barr was insistent in his confirmation hearing testimony and ever since that his top priority is to get the politics out of the Justice Department and the Justice Department out of the politics. As he reaffirmed in today’s statements:
Over the past few decades there have been increasing attempts to use the criminal justice system as a political weapon. The legal tactic has been to gin up allegations of criminality by one’s political opponents based on the flimsiest of legal theories. This is not a good development. This is not good for our political life, and it’s not good for the criminal justice system. As long as I’m Attorney General, our criminal justice system will not be used for partisan political ends. And this is especially true for the upcoming elections in November.
Few have more closely followed the Obama administration’s Trump–Russia investigation, or been more critical of it, than I have. Still, if we want to preserve a Justice Department we value (the one I was proud to serve in for many years), we must end the politicization of law enforcement. If we can agree that this is an imperative, we must then ask: Is the best way to do that by bringing a “creative” indictment — i.e., charges based on a flimsy legal theory — that would inevitably be condemned by many as the most politically controversial prosecution in American history?
It is simply a fact that there is a salient distinction between abuses of power and penal offenses. This is a distinction I’ve tried to draw for years. It was a constant lesson of the Obama presidency, in which prosecutorial discretion, along with the government’s bureaucratic and administrative processes, were systematically politicized and weaponized against opponents and dissenters. And, as Barr observed today, it was the lesson the Supreme Court restated to the Justice Department in recently reversing the “Bridge-gate” convictions arising out of abuses of power by former Governor Chris Christie’s staffers in New Jersey: “Not every abuse of power, no matter how outrageous, is necessarily a federal crime.”
Having watched the hardball that investigators played against Trump associates, Trump partisans want comeuppance. It is natural, especially for the non-lawyers among them, to maintain that there is no satisfactory form of accountability other than criminal prosecution. Nevertheless, we must bear in mind, no matter how difficult doing so may be, that we react so negatively to the use of investigative processes as a political weapon because it is wrong. It is wrong even if you rationalize that the abuse of power against your side legitimizes responding in kind. Barr again:
This cannot be and it will not be a tit-for-tat exercise. We are not going to lower the standards just to achieve a result. The only way to stop this vicious cycle, the only way to break away from a dual system of justice, is to make sure that we scrupulously apply the single and proper standard of justice for everybody.
To be clear, if there is proof beyond a reasonable doubt that public officials committed statutory crimes, then those officials should be prosecuted — and the AG committed today that, in those circumstances, “those who broke the law . . . will be held to account.”
We have learned over the past year or so about willful misrepresentations made to courts, including the doctoring of documentary evidence to defraud a court into granting a surveillance warrant. To my mind, public confidence in the rule of law requires demonstrating that we will not abide a two-tiered arrangement. In the Trump–Russia probe, Trump officials were charged with felony false statements for trivial alleged misrepresentations that in no way impeded the ability of investigators to seek the truth. If the Justice Department is going to endorse the prosecutions brought by the special counsel, then it cannot turn a blind eye to misrepresentations by law-enforcement officials.
Obviously, though, that is not what many critics of the investigation want. They want some kind of exotic, overarching theory of conspiracy that can rope in the actions of high-ranking, insulated officials who green-lighted the probe.
Those critics, for example, see that there appears to have been widespread abuse of the legal discretion to “unmask” the identities of Trump associates, and that top officials — including Biden and the chief-of-staff to Obama himself — were complicit. Yet, as everyone who has ever gotten a parking ticket knows, not everything illegal is criminal. As I contended three years ago, unmasking is a violation of court-ordered minimization instructions that are required under statutory law; but there is no penal offense for unmasking. In fact, the minimization instructions vest such broad discretion in government officials to unmask if they deem it necessary to grasp the full value of an intelligence report, it would be difficult to prove that any particular unmasking request was unlawful — even if a disturbing pattern emerges when we look at 53 unmaskings over a short period of time.
We should never encourage prosecutors to get creative. It is a bedrock constitutional requirement that criminal statutes be phrased in wording clear enough to put a person of average intelligence on notice of what is prohibited. When prosecutors push the envelope, they flout this principle. When they target for prosecution behavior that is not really within the ambit of what the cited penal statute was meant to proscribe, they usurp Congress’s authority to write the laws. I was vocally critical of this shoddy practice during the Mueller investigation, in which aggressive prosecutors stretched the concept of “conspiracy against the United States” (purportedly derived from a statute criminalizing conspiracy to defraud the United States) in order to prosecute conduct Congress had not actually criminalized.
It is bad to do that under any circumstances. In the investigation of the Trump–Russia probe, the question is whether it ought to be done to craft a prosecution against police. But here is the problem (a problem no one wants to hear about in these heady days of “criminal-justice reform”): Police must have the right to be wrong in good faith. If they don’t, then law-enforcement is paralyzed, and the rule of law — on which we depend for liberty and prosperity — becomes a dim memory.
No matter how bad one thinks the Trump–Russia investigation was, the challenge is coming up with a viable theory of conspiracy that could not be used to rationalize future prosecutions of legitimate law-enforcement activity. No desire for poetic justice is worth that cost.
Barr reiterated that the Justice Department is conducting a serious criminal investigation, led by Connecticut U.S. attorney John Durham, a highly experienced, scrupulous career prosecutor. It seems clear to me that, had there been nothing worth investigating, Durham would have closed shop a long time ago. Enough shocking irregularities have been disclosed that I’d be surprised if no criminal charges were filed. Nevertheless, if you are waiting for the sprawling RICO, treason, or “conspiracy against the United States” indictment of “Obamagate” culprits, you are waiting in vain.
Attorney General Barr is right in his commitment to purge the Justice Department and the FBI of their recent political proclivities. I do not see how vital counterterrorism and counterintelligence authorities can be preserved unless this is done. What worries me is not that this means wayward officials will not be held accountable. It is that Barr cannot prevent a potential Biden administration from putting such officials right back in business.