House Republicans are right that politicization of the Justice Department has been a jaw-dropping abuse of power. They’ve got the wrong culprit, however. As a blockbuster New York Times article made clear, then-Attorney General William P. Barr and special counsel John H. Durham engaged in unethical, abusive manipulation of the Justice Department in pursing the baseless conspiracy theory that the intelligence community had conducted a witch hunt of then-President Donald Trump in connection with Russian manipulation of the 2016 election.
The Times reported that “the main thrust of the Durham inquiry was marked by some of the very same flaws — including a strained justification for opening it and its role in fueling partisan conspiracy theories that would never be charged in court — that Trump allies claim characterized the Russia investigation.” Durham brought two baseless cases, both resulting in acquittal. When Justice Department Inspector General Michael Horowitz’s thorough investigation debunked their entire theory, Barr tried to pressure him to keep it under wraps. Then, as he did with the Robert S. Mueller III report, Barr publicly mischaracterized and trashed the report.
Durham also used a grand jury to pry into the record of major Democratic donor George Soros. Moreover, while supposedly operating independently, he met frequently with his pal Barr, in violation of the basic precept that a special counsel must operate with a high degree of independence. (From the Times article: “Mr. Durham visited Mr. Barr in his office for at times weekly updates and consultations about his day-to-day work. They also sometimes dined and sipped Scotch together.”)
Worst of all:
Mr. Barr and Mr. Durham never disclosed that their inquiry expanded in the fall of 2019, based on a tip from Italian officials, to include a criminal investigation into suspicious financial dealings related to Mr. Trump. The specifics of the tip and how they handled the investigation remain unclear, but Mr. Durham brought no charges over it.
Their conduct was so egregious that several career prosecutors quit rather than participate in (to borrow a phrase) the witch hunt. In the end, Barr conceded there was no there there — but only after the 2020 election.
Former prosecutors reacting to the Times report were outraged. Andrew Weissmann tweeted, “This is all about the Trump weaponization of the DOJ — but we know that the House Rs won’t give a damn about it.” Joyce White Vance concurred:
Jaw dropping reporting. Lots here including an explanation of why Durham's colleague resigned: under pressure from Barr to release an "interim" report damaging Clinton & the FBI as the election drew near, Durham had a draft prepared that wasn't factual. https://t.co/akayPzdL2I— Joyce Alene (@JoyceWhiteVance) January 26, 2023
Three responses are warranted, although sadly none is likely to hold Barr accountable.
First and foremost, Attorney General Merrick Garland should have the spine to remove Durham for gross misconduct. Moreover, any report issued should remove the names of those exonerated in court or who were never charged. They are victims of a political smear, which Garland should not enable by allowing baseless allegations to circulate publicly. Don’t hold your breath, however. Garland has shown little willingness to revisit the department’s conduct in the prior administration. (As an alternative, the inspector general could investigate Barr and Durham.)
Frankly, Garland erred in never conducting a top-to-bottom review of politicization during the Trump era (including Barr’s politicization of sentencing recommendations and the department’s misrepresentations in the U.S. Census case). Instead of prioritizing the department’s outside reputation over the need to remove the stench of corruption, Garland should have gotten to the bottom of the Barr/Durham debacle long ago. (At the very least, it would have preempted the false MAGA narrative that Democrats have been the ones engaged in misconduct).
Second, Barr and Durham should face disciplinary action just as coup architect John Eastman (coincidentally on Thursday) was charged with 11 counts by the California state bar for “violating a variety of attorney ethics rules in multiple episodes, court cases and other conduct,” as CNN put it. Unless and until attorneys such as Barr and Durham face accountability, the threat of professional disgrace and the loss of their law license, other lawyers will be tempted to engage in such shenanigans.
However, Eastman, Jeffrey Clark (facing bar proceedings) and Rudy Giuliani (suspended from practice in New York) have sadly been the exception to the rule of sloth and passivity from state bars. Scores of attorneys who signed onto frivolous lawsuits after the 2020 and 2022 elections (including challenging Kari Lake’s defeat in Arizona) have yet to face any penalty.
The list of attorneys who participated in the effort to overturn the 2020 election but as yet have faced no consequences (Kenneth Chesebro, Cleta Mitchell) is far too long. (And none of the members of Congress who signed onto the utterly baseless Supreme Court brief seeking to disenfranchise millions of Americans has been taken to task.) State bars need to do their job to restore integrity to the legal profession.
Finally, Congress should be investigating Barr and Durham’s gross misconduct. You can be sure, however, that MAGA Republicans on the House Judiciary Committee and the “weaponization of government” select subcommittee won’t be interested.
Two options remain, however. Senate Democrats can take up the matter, hold public hearings and demand answers from Garland as to why he has not cleaned house already. In addition, Democrats on the weaponization subcommittee should press at every hearing to investigate this matter and, when Republican witnesses are called, demand they respond to the facts regarding Barr and Durham. At the very least, they can take turns reading the Times’s report aloud at public hearings.
In sum, just as Garland seeks to hold accountable political leaders who threatened our democracy, he must hold his own department lawyers’ responsible for misconduct. If not, an inspector general, state bars and congressional Democrats should do the job.