Where Bill Barr Failed the President

December 16, 2020 Updated: December 17, 2020

Commentary

Attorney General Bill Barr announced his resignation on Dec. 14 in a letter sent to President Donald Trump. Barr’s exit, which will become effective on the 23rd, leaves a number of questions unanswered.

In his letter, Barr noted that he had updated the president on the Justice Department’s (DOJ’s) ongoing review of voter fraud allegations, stating that “these allegations will continue to be pursued,” while noting that “it is incumbent on all levels of government, and all agencies acting within their purview, to do all we can to ensure the integrity of elections and promote public confidence in their outcome.”

Barr also noted in his letter that the president has been subjected to “relentless, implacable resistance” whose purpose was to “cripple, if not oust, [his] Administration with frenzied and baseless accusations of collusion with Russia.”

The letter was issued on the same day that our nation officially entered a contested election, with dueling electors submitting their votes in seven key states.

Barr’s most significant achievement during his tenure was perhaps his role in the final stages of the Mueller investigation, leading to his joint conclusion with Deputy AG Rod Rosenstein that evidence compiled by Robert Mueller failed to establish that the president had obstructed justice.

But a series of curious missteps then followed.

The investigation being conducted by U.S. Attorney John Huber disappeared entirely, although a portion of that investigation may have been folded into U.S. Attorney John Durham’s still ongoing investigation. Durham was appointed as special counsel by Barr, but reports indicate that Durham’s investigative scope has been narrowed, and the investigation’s long-promised results remain delayed.

Trump found himself impeached by the House in December 2019, despite evidence within the DOJ that might have prevented the politically driven result. Indeed, it now appears that Trump may have been impeached for making inquiries into the very crimes for which Hunter Biden, the son of Joe Biden, is now formally under investigation. Said differently, Trump may have effectively been impeached for being right about Biden.

To date, only one person has been formally charged from the multi-year probe into the FBI’s handling of their investigation of the Trump campaign. Although two FISA warrants on Trump campaign adviser Carter Page were deemed as invalid—and thus illegal—there have been no prosecutions or convictions of high-level individuals involved in the surveillance conducted on members of the Trump campaign.

Barr remained concerned, perhaps rightly, about exhibiting any overt signs of interference in the 2020 presidential election. Unfortunately, while he studiously avoided disclosing any evidence regarding the Hunter Biden investigation, so did the mainstream media. The impact of the general public’s lack of knowledge on this matter may have been material to the election outcome.

Barr also made what might generously be termed a material strategic error by speaking with The Associated Press in the weeks following the election. Barr’s comments that the DOJ had yet to uncover fraud on a level sufficient to affect the outcome of the election reverberated throughout the nation and caused material damage to the case being made by the president’s lawyers.

Why Barr would choose to speak to the media, let alone the AP, at this critical juncture in post-election events remains unknown. Barr, no political novice, has more than enough political acumen to comprehend the manner in which his comments would be interpreted and relayed to a nation in post-election turmoil. That he apparently held the belief there was no material evidence of election fraud strikes many who have been wading through court evidence for weeks as curious.

Durham’s efforts may yet produce tangible results, but nearly four years of investigation has surely been long enough to bring forth something material. With each passing month, the lack of tangible results has allowed for unspoken discrediting of the president’s claims. And with the possibility of a politically motivated Biden administration, concerns over potential interference in Durham’s results—special counsel status notwithstanding—are valid.

Barr’s Role in Mueller Probe

The attorney general was himself the subject of frequent attacks from the media and the left, a fact of life that Barr acknowledged prior to accepting the position:

“Any attorney general in this period is going to end up losing a lot of political capital, and I realize that, and that is one of the reasons that I ultimately was persuaded that I should take it on because I think at my stage in life it really doesn’t make any difference.”

Barr, who had served as attorney general in the early ‘90s, came out of private practice to return to the role in February 2019, and played a significant part in helping to disprove and mitigate allegations of Russia collusion during his oversight of the final chapters of the Mueller investigation.

When the Mueller report was released, it appeared to have been carefully worded by the lawyers working under former special counsel Mueller, and perhaps Mueller himself, in a manner designed to inflict political damage on Trump.

Additionally, we now know that sections of the report, including transcripts of voicemails and texts, were selectively edited, seemingly in order to provide damaging and inaccurate portrayals of certain individuals.

Equally important were the many items that the Mueller report failed to address. Important details regarding Konstantin Kilimnik, who worked with former Trump campaign chairman Paul Manafort, were left out. Kilimnik reportedly served as a “sensitive” intelligence source for the State Department and “informed on Ukrainian and Russian matters.” The Mueller team, for reasons unknown, omitted those details from its report.

Rep. Devin Nunes (R-Calif.), the ranking member on the House Intelligence Committee, said the real purpose of the Mueller report “was to help Democrats impeach the president in the absence of any evidence of collusion.” Nunes also observed how the Mueller report went to lengths to cite “dozens of articles from the reporters and publications that were most responsible for perpetuating the Russia hoax.”

On March 22, 2019, Mueller concluded his investigation and submitted his then-confidential report to Barr. Two days later,  Barr delivered his principal conclusions letter to Congress. He noted that the special counsel found no evidence of collusion, but also noted that the special counsel didn’t draw a conclusion regarding obstruction.

Importantly, Barr told Congress that he and Deputy Attorney General Rod Rosenstein jointly concluded that the evidence presented by Mueller didn’t “establish that the President committed an obstruction-of-justice offense.”

Barr later stated that he believed Mueller could have reached a conclusion on obstruction, and noted both he and Deputy Attorney General Rod Rosenstein were surprised when Mueller didn’t. He also said that he and Rosenstein didn’t agree with much of the legal analysis contained in the report and felt it represented the “views of a particular lawyer or lawyers and so we applied what we thought was the right law.”

Despite Barr’s important role in the conclusion of the Mueller investigation, other areas of investigative activity, notably the investigation by U.S. Attorney John Durham into the origins of the FBI’s Crossfire Hurricane probe into the Trump campaign and the probe by U.S. Attorney John Huber into electronic surveillance and the Clinton Foundation, have quietly subsided, failed to materialize or been the subject of ongoing delays.

Huber and Durham’s Investigations

Huber had originally been assigned by then-Attorney General Jeff Sessions to act as an outside prosecutor, working in tandem with DOJ Inspector General Michael Horowitz’s investigation. But in May 2019, Barr confirmed earlier reports that there had been a transition in Huber’s responsibilities.

As Barr noted, “Huber had originally been asked to take a look at the FISA [Foreign Intelligence Surveillance Act] applications and the electronic surveillance, but then he stood back and put that on hold while the Office of Inspector General was conducting its review.”

Huber had “other issues he’s been working on [that] relate to Hillary Clinton,” said Barr, who  noted that “[t]hose are winding down and hopefully, we’ll be in a position to bring those to fruition.”

But seven months later, in January 2020, it was reported that the Huber investigation had “effectively ended with no tangible results,” coupled with reports that “current and former law enforcement officials said they never expected the effort to produce much of anything.”

Trump tweeted about Huber’s investigation on several occasions, asking “Whatever happened to John Huber” in May 2020 and later stating that Huber “did absolutely NOTHING. He was a garbage disposal unit for important documents & then, tap, tap, tap, just drag it along & run out of time. A.G. Jeff Sessions was played like a drum!”

The Huber chapter may or may not be fully closed. On Sept. 24, Fox News reported that Durham, who had been selected in May 2019 by Barr to investigate the origins of the Russia investigation, had assumed parts of Huber’s investigation. Durham’s investigation remains ongoing, although it’s scope and focus appears to have narrowed.

On May 15,  Barr sent a memo to all DOJ employees, reminding them that “Partisan 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 public statements (attributed or not), investigative steps, criminal charges, or any other action in any matter or case for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party.”

And during a May 18,  news conference, Barr specifically noted that Durham’s investigation wasn’t focused on either Barack Obama or Joe Biden:

“As to President Obama and Vice President Biden, whatever their level of involvement, based on the information I have today, I don’t expect Mr. Durham’s work will lead to a criminal investigation of either man. Our concern over potential criminality is focused on others.”

A month later, during a June 21 interview with Fox’s Maria Bartiromo, Barr said the Durham investigation was progressing rapidly:

“In terms of the future of Durham’s investigation, he’s pressing ahead as hard as he can. And I expect that we will have some developments, hopefully before the end of the summer. But, as I have said, his investigation will continue. It’s not going to stop because of the election.”

But Barr also added an overlooked qualifying comment, noting that, “What happens after the election may depend on who wins the election.”

DOJ Cautious Ahead of Election

In a moment of foreshadowing, Barr also stated that mail-in ballots “absolutely opens the floodgates to fraud” and told Bartiromo that “a foreign country could print up tens of thousands of counterfeit ballots, and be very hard for us to detect which was the right and which was the wrong ballot.”

As the summer progressed, there were no material public developments, but on July 28, Barr told the House Judiciary Committee that he wouldn’t rule out a Durham report in advance of the 2020 presidential election.

The answer came during a contentious exchange with U.S. Rep. Debbie Mucarsel-Powell (D-Fla.), Barr was asked if he would “commit to not releasing any report by Mr. Durham before the November election.” In response, Barr said simply, “No.”

Barr later continued, saying, “We’re not going to interfere [in the election]. In fact, I’ve made it clear. I’m not going to tolerate it … Any report will be, in my judgment, not one that is covered by the policy and would disrupt the election.”

And he again noted that the investigation wasn’t focused, nor was it expected to focus, on either Obama or Biden, saying “I’ve already made it clear that neither candidate is under [investigation].”

Barr had previously issued a memo on Feb. 5, requiring that no investigation was to be opened into a presidential or vice presidential candidate or senior campaign official without his direct written approval. Additionally an investigation into any Senate and House candidates would require approval from the assistant attorney general. No such requirement was in place when the Trump campaign became the subject of an FBI investigation in 2016.

Barr also included a third category, relating to “illegal contributions, donations, or expenditures by foreign nationals to a presidential or congressional campaign” that required written notification to the assistant AG.

Hunter Biden Scandal

As the country edged closer to the presidential election, there was still nothing from Durham. But credible allegations regarding Joe Biden’s son, Hunter, began to surface. Some of the broader allegations had been covered in March 2018 by Peter Schweizer’s book, “Secret Empires.” But there was a greater level of specificity, and allegations were backed up by documents allegedly obtained from one or more laptops that had belonged to Hunter.

On Oct. 14, The New York Post published an explosive story that illustrated Joe Biden’s knowledge and potential involvement with Hunter’s business dealings, directly contradicting public claims made by the presidential candidate:

“Hunter Biden introduced his father, then-Vice President Joe Biden, to a top executive at a Ukrainian energy firm less than a year before the elder Biden pressured government officials in Ukraine into firing a prosecutor who was investigating the company.”

As more details came forth, most legacy media outlets refused to cover the story, despite the appearance of a direct eyewitness, Tony Bobulinski, a former business partner of Hunter who went on Fox News to tell Tucker Carlson his version of events. During the interview, Bobulinski relayed a conversation he had with Joe Biden’s brother James:

“I remember looking at Jim Biden and saying “how are you guys getting away with this? Aren’t you concerned?’ He looked at me, and he laughed a little bit, and said ‘PLAUSIBLE DENIABILITY.'”

Bobulinski also provided Carlson with audio tapes where he was warned against going public with the information.

Despite the mounting evidence, most media refused to cover the story ahead of the election and instead sought to publicly discredit it.

NPR Managing Director for News Terence Samuels publicly stated his refusal to cover the story, noting, “We don’t want to waste our time on stories that are not really stories, and we don’t want to waste the listeners’ and readers’ time on stories that are just pure distractions.”

Conservative group Project Veritas, which specializes in undercover guerrilla journalism, obtained leaked recordings in which “CNN president Jeff Zucker and CNN political director David Chalian urged staff to avoid the scandal.”

The DOJ stayed also quiet regarding the Hunter Biden investigation, not issuing a single statement in the months leading up to the election.

Postelection Fallout

However, after the election, on Dec. 9, Hunter Biden suddenly released a statement acknowledging that he is under federal investigation:

“I learned yesterday for the first time that the U.S. Attorney’s Office in Delaware advised my legal counsel, also yesterday, that they are investigating my tax affairs,” Hunter Biden said in a statement. “I take this matter very seriously but I am confident that a professional and objective review of these matters will demonstrate that I handled my affairs legally and appropriately, including with the benefit of professional tax advisors.”

Politico then reported that the investigation was broader than Hunter’s statement had indicated.

“In addition to Delaware, the securities fraud unit in the Southern District of New York also scrutinized Hunter Biden’s finances, according to the person with direct knowledge of the investigation. The person said that, as of early last year, investigators in Delaware and Washington were also probing potential money laundering and Hunter Biden’s foreign ties,” Politico reported.

“In addition to the probe into Hunter Biden, federal authorities in the Western District of Pennsylvania are conducting a criminal investigation of a hospital business in which Joe Biden’s brother James was involved. Federal officials have asked questions about James Biden’s role in the business.”

Two days later, NBC News, which had steadfastly ignored the Hunter Biden story, ran an article detailing an email from Hunter’s former business partner, Eric Schwerin, who told Hunter that he would need to amend his taxes, as Hunter had failed to disclose $400,000 in income from Burisma Holdings, a Ukrainian company.

The post-election disclosures on Hunter Biden have continued, but there has still been nothing official from the DOJ other than a one-line statement from the U.S. Attorney’s Office for the District of Delaware, which noted, “Per DOJ policy, we cannot comment on an ongoing investigation.”

On Dec. 14,  The Wall Street Journal reported that in the weeks leading up to the election, Barr “instructed prosecutors and senior colleagues to prevent word of investigations into Hunter Biden from becoming public and keep the Justice Department out of campaign politics.”

The impact from the media blackout on the Biden story had material ramifications for the election. The Media Research Center had The Polling Co. conduct a survey of 1,750 Biden votes in the swing states of Arizona, Georgia, Michigan, Nevada, North Carolina, Pennsylvania, and Wisconsin.

The poll showed that 45 percent of the Biden voters were unaware of the allegations against Hunter and Joe Biden. The poll also showed that this would have had a material effect on the number of people who would have voted for Biden:

“Even more Biden voters (45.1%) said they were unaware of the financial scandal enveloping Biden and his son, Hunter (a story infamously censored by Twitter and Facebook, as well as ignored by the liberal media). According to our poll, full awareness of the Hunter Biden scandal would have led 9.4% of Biden voters to abandon the Democratic candidate, flipping all six of the swing states he won to Trump, giving the President 311 electoral votes.”

All of this raises a material question: If the DOJ is in possession of material information that is in the national interest or has national security obligations, at what point does the duty to disclose that information transcend a DOJ policy to refrain from commenting? And what happens when a refusal to comment for fear of affecting an election does indeed impact an election?

Barr’s Postelection Actions and AP Interview

On Nov. 9, Barr issued a memo regarding the investigation of election interference, noting that “given that voting in our current elections has now concluded, I authorize you to pursue substantial allegations of voting and vote tabulation irregularities prior to the certification of elections…”

Barr also asked that any investigation be done with “great care and judgment” and noted, “While it is imperative that credible allegations be addressed in a timely and effective manner, it is equally imperative that Department personnel exercise appropriate caution and maintain the Department’s absolute commitment to fairness, neutrality and non-partisanship.”

Barr’s memo appeared to contrast with “previous guidance and policies” from the DOJ’s Election Crimes Branch, which held that prosecutors should not “take overt steps in voter fraud or related investigations until after election results are in and certified.”

Barr’s memo encountered some resistance within the DOJ, resulting in 16 assistant U.S. attorneys (there are hundreds of assistant US attorneys) signing a letter on Nov. 13, asking Barr to rescind his memo, while also stating they had “not seen evidence of any substantial anomalies.”

Worth noting is the fact that the U.S. Attorney’s Office of the Middle District of Pennsylvania did initiate a limited pre-election investigation on Sept. 21, regarding “reports of potential issues with a small number of mail-in ballots at the Luzerne County Board of Elections” in Pennsylvania. The investigation focused on the discarding of a small number of military ballots.

On Dec. 1, Barr gave an interview to The Associated Press in which he revealed two specific pieces of information.

Barr told the AP that “to date, we have not seen fraud on a scale that could have effected a different outcome in the election.” This comment received widespread media attention. Most media organizations, however, ignored other comments from Barr, including where he noted that “a remedy for many complaints would be a top-down audit by state or local officials, not the U.S. Justice Department.”

Lawyers for the Trump campaign appeared to have been blind-sided by Barr’s comments, and quickly issued a statement in response:

“With all due respect to the Attorney General, there hasn’t been any semblance of a Department of Justice investigation. We have gathered ample evidence of illegal voting in at least six states, which they have not examined. We have many witnesses swearing under oath they saw crimes being committed in connection with voter fraud. As far as we know, not a single one has been interviewed by the DOJ. The Justice Department also hasn’t audited any voting machines or used their subpoena powers to determine the truth,” Rudy Giuliani and Jenna Ellis, attorneys for Trump, said in a statement.

In response to the media’s ongoing characterization of Barr’s comments on the election, the DOJ issued a statement that provided some more clarification, noting that the investigation into election fraud wasn’t finished:

“Some media outlets have incorrectly reported that the DOJ has concluded its investigation of election fraud and announced an affirmative finding of no fraud in the election. That is not what the Associated Press reported nor what the Attorney General stated,” a DOJ spokesperson said, according to CBS News reporter Catherine Herridge.

“The Department will continue to receive and vigorously pursue all specific and credible allegations of fraud as expeditiously as possible.”

Secondly, Barr also told the AP that he had appointed Durham as special counsel on Oct. 19, noting that “in light of extraordinary circumstances relating to these matters, the public interest warrants Mr. Durham continuing this investigation pursuant to the powers and independence afforded by the Special Counsel regulations.”

The authority granted by Barr appears to be fairly broad, giving Durham the ability to “investigate whether any federal official, employee, or any other person or entity violated the law in connection with activities directed at the 2016 presidential campaigns, people associated with the campaigns, and the administration of President Donald Trump.”

Notably, Durham’s authority extends to Mueller’s now-completed investigation, providing  for prosecutorial authority where Durham “believes it is necessary and appropriate.”

That Barr would appoint Durham as special counsel provides a strong indication that Durham’s investigation is not only real and ongoing, but an investigation that Barr considered worth insulating from political influence, in light of a possible incoming Biden administration.

However, Barr’s choice of the AP for his comments seemed somewhat unusual, leaving many wondering why he had chosen to speak publicly on the issue. Indeed, the AP spun Barr’s comments into two separate articles; one discussing his election comments, the other discussing Durham’s special counsel appointment. Someone with Barr’s level of political acumen certainly knew how his comments on the election would be portrayed. A DOJ press release noting Durham’s appointment would have sufficed and been readily picked up.

To date there has been only one known individual charged in relation to the Durham investigation, former FBI lawyer Kevin Clinesmith, who pleaded guilty to a felony false-statement charge in August. Clinesmith admitted that he falsified an email that was then used to support an application for a FISA on former Trump campaign adviser Carter Page.

Clinesmith worked on both the Hillary Clinton email probe and the Trump–Russia investigation. He would also later become a member of special counsel Robert Mueller’s team. Clinesmith played a critical role in the FBI’s counterintelligence investigation of the Trump campaign and was cited in the 2018 IG report as being “the primary FBI attorney assigned to that investigation beginning in early 2017.”

During the AP interview, Barr noted that Durham’s focus had “narrowed considerably” and now “really is focused on the activities of the Crossfire Hurricane investigation within the FBI.” Barr noted that he expected Durham to “detail whether any additional prosecutions will be brought and make public a report of the investigation’s findings.”

These comments, possibly taken out of context, seem at odds with the expanded scope that Barr granted to Durham in the special counsel appointment as it includes the Mueller investigation.

Will Trump Declassify Information?

One final question still lurks. Will Trump publicly declassify all the information related to the FBI investigation and the Mueller investigation? He has absolute power of declassification derived from Article II powers in the Constitution and this authority has been affirmed by the Supreme Court, specifically in The Department of Navy v. Egan.

“The President, after all, is the “Commander in Chief of the Army and Navy of the United States.” U.S. Const., Art. II, § 2. His authority to classify and control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position in the Executive Branch that will give that person access to such information flows primarily from this constitutional investment of power in the President and exists quite apart from any explicit congressional grant … The authority to protect such information falls on the President as head of the Executive Branch and as Commander in Chief.”

That Trump hasn’t yet done so—despite publicly stating he would—raises three possible scenarios. Perhaps the timing isn’t yet right in the president’s view and he may do so in the near future. More likely, he may be convinced that the information is a crucial part of the ongoing Durham investigation, particularly now that it has become a special counsel investigation and is somewhat more protected from political intervention.

There is also a third, more alarming possibility. Does Trump believe that his orders would, for all practical purposes, be ignored or slow-walked at federal agency levels? One would hope that having John Ratcliffe as the director of national intelligence would alleviate this concern, but the intelligence community has been continually resistant to the release of information, especially information damaging to itself, throughout Trump’s administration.

On Dec.15, Secretary of State Mike Pompeo praised Barr for his work as attorney general, noting that “AG Barr first served our Administration as a member of my Advisory Board at the CIA.”

Pompeo noted that Barr “crushed the propaganda generated by Mueller against President Trump and preserved our Republic from the rogue FBI and Special Counsel’s efforts to undermine the 2016 election based on a bogus theory of Russian collusion.”

In announcing Barr’s retirement on Twitter, Trump noted, “Our relationship has been a very good one, he has done an outstanding job!”

At this point, real questions regarding Barr’s tenure remain. It may be that Barr’s legacy will be best viewed through the prism of Durham’s special counsel investigation.