Yeomans Work

Will Barr’s Insurance Policy Fail?

December 6, 2019

On December 9, Michael Horowitz, the Inspector General (IG) for the Department of Justice is expected to release his long awaited report on the origins of the Russia investigation.  Leaks suggest that the report will conclude that the investigation was properly predicated and did not involve unlawful “spying” on the Trump campaign.  Subsequent leaks suggest that Attorney General Barr refuses to accept the IG’s basic conclusions and will fall back on the insurance policy he obtained through appointment of Connecticut U.S. Attorney John Durham to conduct a parallel investigation under Barr’s control.

The very latest leaks, however, suggest Durham may agree with the IG.  If so, central themes in Trump’s impeachment defense and in his political narrative will be undercut — namely, that he was pursued by a politically biased intelligence community and that a country other than Russia attacked the 2016 election.  How Barr will handle this confusing mess remains to be seen, but the release of the Mueller Report teaches that we can expect him to spin the release of the IG report and its aftermath to protect Trump at the expense of the Department he heads.

None of this should have happened.  The IG investigation was launched in early 2018 and expanded in spring 2018.  Trump pressured Deputy Attorney General Rod Rosenstein — often by tweet — to investigate the origins of the Russia investigation that led to Mueller’s appointment.  Trump’s demands to investigate and prosecute the investigators posed a dilemma for Rosenstein.  No evidence established a reasonable indication that a crime had been committed.  Succumbing to Trump’s demands for a criminal investigation would have empowered the president to weaponize the criminal investigative power of DOJ for political purposes and without a sufficient predicate.  Rosenstein compromised by channeling the investigation away from the traditional criminal process into the alternative avenue of an IG investigation.  In a perfect world, he might have resisted Trump’s baseless demands, but, as principal protector of the Mueller investigation, remaining in his job was a priority.

The Office of the Inspector General (OIG) was created by statute in 1988.  The IG is appointed by the president and confirmed by the Senate and can be fired by the president, but only after notice to Congress.  He heads an office of over 400 employees who have broad jurisdiction to investigate matters internal to DOJ, including waste, fraud, abuse of authority, and mismanagement.  The office’s investigations can result in criminal referrals to Department of Justice prosecutors.

While the IG has authority to subpoena documents, he lacks authority to compel cooperation from witnesses not currently employed by DOJ.  Most of the office’s work is not politically controversial.  Occasionally, however, it takes on highly visible subjects, such as DOJ’s legal authorization for the use of torture, the firing of U.S. Attorneys, politicized hiring in the Civil Rights Division, and the Fast and Furious program.  The IG reports to both the Attorney General and Congress.

Most significantly, the Attorney General lacks authority to alter the IG’s findings or to block release of a report.  That posed a dilemma for Barr when he assumed office.  Barr was committed to satisfy Trump’s demand for investigation of the Russia investigation’s origins and spying on his campaign.  The IG investigation already was well under way, but Barr was unwilling to risk waiting for results he could not control.

He, therefore, activated an insurance policy.  He took the unusual step of appointing U.S. Attorney John Durham to conduct a simultaneous administrative review of the Russia investigation.  Durham answers to Barr, who has power to intervene in the investigation and shape the timing and content of any public statements about it.  Barr has met with foreign governments to solicit assistance with Durham’s efforts.  The existence of Durham’s investigation allows Barr and Trump’s supporters to keep alive doubts about the validity of the Russia investigation.

Durham’s investigation also allows Barr to praise the work of the IG, while disputing the finality of its conclusions.  Indeed, DOJ’s spokesperson released a statement praising the IG’s investigation as “a credit to the Department of Justice,” stating the IG’s “excellent work has uncovered significant information that the American people will soon be able to read for themselves.”

Barr can assert that limitations on the IG’s ability to compel witnesses and to investigate beyond the walls of DOJ leave its findings incomplete.  Durham’s administrative investigation, on the other hand, recently became a criminal investigation.  It now can use all of the investigative powers of the grand jury. Apparently, the IG referred an FBI lawyer to Durham for criminal investigation, alleging he added text to an email used in an application for a Foreign Intelligence Surveillance Court warrant on former Trump campaign aide Carter Page.  The IG apparently found that the lawyer’s conduct did not affect the validity of the warrant.

Barr’s insurance policy, however, may fail. Further leaks suggest that Durham reported to the IG that his investigation had not uncovered evidence that the Russia investigation was somehow a set up perpetrated by U.S. intelligence.  While not definitive, that leak suggests Durham may be headed toward a result that will undermine Trump’s conspiracy claims and Barr’s efforts to prove them.

It’s hard to imagine that either will quit.  Durham is acting under the cloak of secrecy that shields all criminal investigations from public view.  Barr can keep the investigation going indefinitely in some form through the impeachment and election seasons.  If he does so, he will continue inflicting damage on the image of the FBI and on the effectiveness and morale of the people who serve there.

The IG inevitably will find minor flaws in the Russia investigation that don’t undermine its validity.  Trump and his chorus of supporters will nevertheless magnify those findings to obscure the report’s substantive conclusions.  Barr ‘s comments will be particularly telling.  Will he continue to rely on Durham as his insurance policy against facing the harsh truth that the Russia investigation was fully warranted?  Or will he drop the assault on the Department he is charged with leading and embrace his role as the Attorney General?

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Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He currently serves as Lecturer in Law at Columbia Law School, and previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He also served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. For three years, Bill served as Sen. Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee, and has also held positions at AFJ and the American Constitution Society. The opinions of the writer are his own and do not necessarily represent the positions of Alliance for Justice.