Republicans have been eagerly awaiting Durham’s findings — hopeful that the prosecutor Barr handpicked last year to investigate the investigation of possible coordination between Trump’s 2016 campaign and Russia will validate their fierce criticisms of the bureau. Democrats, meanwhile, have worried that the Connecticut U.S. attorney is aiding a political stunt designed to undercut an investigation that dogged Trump’s presidency.
As the election draws near — and much of what Durham is doing remains a mystery — both sides have grown increasingly anxious, with liberals fretting over an October surprise, and Republicans wondering whether Durham’s work could push into the next administration.
Barr has repeatedly and stridently attacked the Russia investigation — saying that what happened to Trump was “one of the greatest travesties in American history” — while hinting vaguely that he is “troubled” by what he knows Durham has found. That has drawn accusations from Democrats and legal analysts that he is inappropriately talking about an ongoing case and prejudging its outcome.
“There’s a real danger, in fact an urgent threat, that anything the Department of Justice does will be timed to aid the president,” Sen. Richard Blumenthal (D- Conn.) said in an interview, adding, “Barr has proven ready, willing and able to distort, distract and deceive.”
At a hearing Tuesday before the House Judiciary Committee, Barr was quizzed briefly by both sides on the matter but offered little to satisfy his questioners.
Rep. Tom McClintock (R-Calif.) pointed to what he saw as some of the failures of the Russia investigation and seemed to press Barr on how soon he would correct them.
“Are you going to be able to right this wrong before it becomes a precedent for future election interference by corrupt officials in our justice and intelligence agencies?” McClintock asked.
Barr said that Durham’s work had been delayed by the coronavirus crisis and added, “Justice is not something you order up on a schedule like you’re ordering a pizza.”
Barr recently told Fox News he expected developments in Durham’s investigation “hopefully before the end of the summer.” He has said that Durham is mainly focused on uncovering criminal wrongdoing but that he expects “there will be public disclosure in some form of report.”
Rep. Debbie Mucarsel-Powell (D-Fla.) asked Barr: Would he “commit to not releasing any report by Mr. Durham before the November election?”
“No,” Barr responded.
Justice Department policies and tradition generally counsel against taking steps in an investigation close to an election such that they might affect the outcome. But the guidance is vague and difficult to reconcile with an investigation like Durham’s — which apparently is not focused on any political candidates, though it has been seized on by politicians and involves law enforcement’s treatment of Trump’s 2016 presidential campaign.
Donald Ayer, who worked as deputy attorney general under President George H.W. Bush, said that even if there was no explicit policy, Barr had a duty to take steps to avoid the appearance of political interference.
“You have to bring some common sense, and an attitude that says, ‘I’m actually trying to make the public think we’re being fair,’ ” Ayer said. “The problem with Barr is he’s not trying to do that.”
Spokespeople for Barr and Durham declined to comment.
Exactly what Durham is focused on is not clear. He has publicly questioned the cause the FBI had to open the 2016 investigation, noting in a 2019 statement that he disagreed with some of the Justice Department inspector general’s conclusions about “predication and how the FBI case was opened.”
Durham has questioned witnesses about why and how the case was opened, and about what happened in the months after it began. One focus, people familiar with the matter said, seems to be on why the bureau kept pressing forward after it came to have doubts about the credibility of Christopher Steele, a former British intelligence officer on whose work the FBI relied in part to get a secret court order to surveil former Trump campaign adviser Carter Page. Investigators were particularly interested in doubts raised about Steele by one of his sources of information, the people said, who, like others, spoke on the condition of anonymity to discuss an ongoing case.
The Justice Department inspector general already lambasted officials who it said repeatedly emphasized damaging information they heard about Trump associates and played down exculpatory evidence they found as they sought those warrants.
The inspector general referred one former FBI lawyer, Kevin Clinesmith, for possible criminal prosecution, alleging that he doctored an email as part of the application process. But beyond Clinesmith, it is unclear who — if anyone — might have criminal liability in Durham’s probe.
Another line of inquiry Durham has pursued is whether the CIA was inappropriately withholding material from the National Security Agency and the FBI to enable a finding about Russia’s covert activities sought by then-CIA Director John Brennan, according to people familiar with the matter. A Senate Intelligence Committee report, though, found that analysts felt “they were free to debate, object to content, and assess confidence levels, as is normal and proper for the analytic process.”
Kerri Kupec, a Justice Department spokeswoman, said earlier this year that Durham also had been examining the issue of “unmasking” — or intelligence officials asking to reveal a name that has been shielded in a sensitive government document — though that line of inquiry was then given to U.S. Attorney John Bash.
Unmasking is a routine practice meant to help government officials better understand what they are reading. But conservatives have long seized on the unmasking of former Trump national adviser Michael Flynn, including by then-Vice President Joe Biden, to imply that Flynn was treated unfairly by U.S. law enforcement and intelligence officials.
In April, Barr told conservative talk show host Hugh Hewitt that the Justice Department’s guidelines about not taking public steps in investigations close to an election would not seem to apply to Durham because none of those Durham was examining “are running for president.”
“I think in its core, the idea is you don’t go after candidates,” Barr said. “You don’t indict candidates or perhaps someone that’s sufficiently close to a candidate . . . within a certain number of days before an election. But you know, as I say, I don’t think any of the people whose actions are under review by Durham fall into that category.”
The following month, Barr said publicly that he did not expect Durham would investigate former president Barack Obama or Biden — seeming to disappoint some conservatives who hoped otherwise. He declined to reveal those who were under Durham’s scrutiny. Republicans have since set their sights on top intelligence and law enforcement officials who served during Obama and Biden’s time in office.
Barr, like attorneys general before him, issued guidance in May saying law enforcement “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.” His guidance, like that of his predecessors, did not declare that politically sensitive investigations should be paused near an election, nor did it offer any timetable for instituting pauses.
In October 2016, the Justice Department’s loose rules were exposed when — less than two weeks before the presidential election — then FBI Director James B. Comey revealed to Congress that the bureau was resuming its investigation of candidate Hillary Clinton’s use of a private email server while she was secretary of state.
The revelation drew widespread criticism from former Justice Department officials who felt Comey was violating the Justice Department’s policies and tradition. Barr, on the other hand, argued in a Washington Post column that Comey had done the right thing.
“Indeed, it would have violated policy had he not done so,” Barr wrote.
In February, Barr tightened the rules on investigations that could have electoral consequences. He wrote that law enforcement must get the attorney general’s written approval before initiating even a preliminary investigation of a candidate for president or vice president, or their campaigns, senior staff members or advisers. For investigations of candidates for the Senate and U.S. House, law enforcement must notify the appropriate assistant attorney general and U.S. attorney, he wrote.
“As noted, the Department has a strong interest in the prosecution of election-related crimes, including those involving the corruption of the election process,” he wrote. “Yet we must investigate and prosecute those matters with sensitivity and care to ensure that the Department’s actions do not unnecessarily advantage or disadvantage any candidate or political party.”
Julie Tate contributed to this report.