Barr’s attacks on Mueller’s investigation reached a pinnacle Thursday, when he decided the Justice Department would ask a judge to erase the guilty plea of Michael Flynn and dismiss the case against the former national security adviser. Flynn was one of the first people to admit criminal wrongdoing and cooperate in Mueller’s inquiry.
The attorney general’s move, analysts say, is part of a pattern of his personally intervening in special counsel cases involving the president’s allies, over the apparent objection of the career prosecutors assigned to the matters.
Barr has repeatedly turned to U.S. attorneys to conduct special inquiries on matters of interest to Trump, including to explore aspects of Mueller’s work. In February, he intervened to reduce prosecutors’ sentencing recommendation for Trump confidant Roger Stone after the president tweeted about the case. Stone was charged with obstructing Congress in the final case brought by Mueller and was convicted in a trial last year.
“Clearly, it’s a systematic undoing of the whole Mueller investigation, and it’s thinly veiled,” said Ryan Fayhee, a former Justice Department counterespionage prosecutor now in private practice at Hughes Hubbard.
Barr has drawn praise on the political right for his moves, and he has defended his actions as being necessary to address what he says is law enforcement misconduct. He told CBS in an interview Thursday that the Justice Department had been used as a political weapon and that moving to drop Flynn’s plea was “an easy decision.”
“People, you know, we should choose our leaders through the election process,” Barr said. “And efforts to use the law enforcement process to change leaders or to disable administrations are incendiary in this country and destroy our republic.”
Even before he took office, Barr had been skeptical of Mueller’s probe. As a lawyer in private practice 2018, he wrote a memo to then-Deputy Attorney General Rod J. Rosenstein — who appointed Mueller and supervised his work — attacking what he saw as Mueller’s “fatally misconceived” legal theory of how Trump may have obstructed justice.
When Trump nominated Barr to be attorney general months later, critics feared the president was trying to install someone who would protect him from the special counsel’s findings.
Barr told lawmakers at his confirmation that he would let Mueller finish his work, adding that he had relayed to Trump that “the Barrs and Muellers were good friends and would be good friends when this was all over.” When Barr was previously the attorney general, in the George H.W. Bush administration, Mueller led the Justice Department’s criminal division.
A little more than a month into the new attorney general’s tenure, the special counsel team presented Barr with a 448-page final report of its findings. Almost immediately, Barr found himself at odds with the special counsel’s team.
Instead of immediately releasing the report or its executive summaries, Barr prepared a four-page letter describing Mueller’s “principal conclusions.” The letter described the case in such bare-bones terms that Mueller would later complain that Barr “did not fully capture the context, nature, and substance” of the special counsel’s work.
Barr’s description said that Mueller had not found evidence to establish a conspiracy between the Trump campaign and Russia to influence the 2016 election, and that Mueller had declined to make a recommendation on whether Trump had sought to obstruct justice. On that score, Barr made his own judgment, likewise concluding that there was insufficient evidence to level that allegation.
About a month later, Barr released a lightly redacted version of the entire report. Before doing so, he hosted a news conference where he seemed to endorse a talking point the president had long used to describe the investigation: no collusion, no obstruction.
Then, Barr went on the attack.
Justice Department Inspector General Michael Horowitz already was reviewing aspects of the Russia case for possible impropriety. But in early 2019, Barr commissioned his own review, assigning John Durham, the U.S. attorney in Connecticut, to explore the origins of the case.
In late 2019, Horowitz released a report lambasting the FBI for how it used a Foreign Intelligence Surveillance Act warrant to monitor former Trump campaign adviser Carter Page, but also rebutting conservative allegations that top FBI officials had been driven by political bias to spy illegally on Trump advisers. Barr went even further, saying the report “now makes clear that the FBI launched an intrusive investigation of a U.S. presidential campaign on the thinnest of suspicions that, in my view, were insufficient to justify the steps taken.”
This year, when Barr personally intervened in the Stone case, all four career prosecutors assigned to the matter withdrew, with one leaving the government entirely.
The move came soon after Trump had tweeted about the case, though Barr has insisted there was no connection. The attorney general would later say publicly that the president’s social media messages about Justice Department cases “make it impossible for me to do my job.” He told people close to Trump that he was considering resigning. But Trump has continued to tweet, and Barr has remained in place.
Legal analysts say Barr’s move in the Flynn case seems to be yet another example of his doing the president’s bidding. Trump had contemplated pardoning his former national security adviser, but the Justice Department’s move to drop the case — if approved by a judge — spares him the political cost of doing so.
“This is one more in a long line of examples of Bill Barr using the powers of the Justice Department not to advance justice, but to serve the political desires of Donald Trump,” said Donald Ayer, who was a deputy attorney general in the George H.W. Bush administration.
A Justice Department spokeswoman disputed the assertion that Barr intervened to prevent Trump from having to issue a pardon.
“There is no connection,” the spokeswoman said.
A senior Justice Department official said Barr had long been “troubled” by the Flynn case. Barr told CBS that the FBI had “essentially” set a trap for Flynn to perjure himself by seeking to interview him in an investigation that the agency had been on the verge of closing, and Barr noted that even then-Deputy Attorney General Sally Yates was taken aback when she learned that the FBI was sending agents to interview the national security adviser.
In January, Barr tapped Jeff Jensen, a former FBI agent and federal prosecutor who was serving as the U.S. attorney in St. Louis, to review the case.
Flynn had pleaded in December 2017 to lying to the FBI about his interactions during the presidential transition with Sergey Kislyak, at the time the Russian ambassador to the United States. Trump had fired Flynn for, the president said, misleading the vice president about the matter. But as he awaited sentencing, Flynn changed legal teams and sought to withdraw his plea and get the case thrown out, alleging Justice Department misconduct including entrapment.
Jensen recommended to Barr that the case be dropped. The department requested a judge do so on Thursday, in a filing signed only by the U.S. attorney for the District of Columbia, Tim Shea, whom Barr personally tapped to lead that office. Shortly before it appeared on the docket, a career prosecutor who had been assigned to Mueller’s team withdrew from the case.
Shea argued that the FBI did not have a “legitimate investigative basis” to interview Flynn in January 2017 and that his lies were thus not relevant to a case. Legal analysts say the logic is contorted and is likely to be seized upon by defense attorneys in other cases.
The FBI has said in a statement it had “previously produced” some of the documents that recently became at issue in the case to Horowitz, the inspector general, and Durham.
Horowitz was asked by Sen. Richard Blumenthal (D-Conn.) at a December 2019 congressional hearing whether he had found “any evidence that the FBI tried specifically to entrap any of the individuals who were the focus of their investigation,” including Flynn and several other campaign advisers. The inspector general responded, “Entrapment’s a legal term when you’re moving forward on a criminal case. We didn’t see that in this case.”
But Horowitz had said in a March 2018 letter to lawmakers that he did not intend to review matters related to Flynn’s prosecution because it was a pending criminal case. There is no analysis of possible entrapment of Flynn in his report. A spokeswoman for Horowitz said, “It would be inaccurate to report or suggest that the IG’s comments during the hearing about the issues covered in our report were instead about an issue the OIG did not review, namely allegations of entrapment of Michael Flynn.”
Former U.S. attorney Barbara McQuade said she now wonders whether Mueller closed his office prematurely. If the special counsel’s office still existed, Barr would be required to provide Congress with an explanation of any instances in which he found a special counsel action “inappropriate or unwarranted.”
“I think Mueller underestimated the willingness of William Barr to violate norms and to endure political blowback,” McQuade said.
Through a representative, Mueller declined to comment.
Jensen’s and Durham’s reviews continue, and Trump has publicly pushed for those involved in the Russia case to face legal consequences. Barr’s Justice Department has previously investigated former FBI director James B. Comey and former deputy director Andrew McCabe — two frequent targets of Trump’s criticism — but declined to bring a case against either.