The Washington PostDemocracy Dies in Darkness

Barr’s extraordinary defense of the John Durham probe

President Donald Trump and Attorney General William P. Barr in 2019. (Jabin Botsford/The Washington Post)
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From the start, then-Attorney General William P. Barr’s decision to appoint special counsel John Durham to investigate the origins of the Russia investigation was controversial. And more than three years later, the inquiry has largely come up empty. It has secured one guilty plea that led to a sentence of probation, and it has now come up short in the much-watched trial of Michael Sussmann, who was acquitted Tuesday.

It’s a marked contrast to the probe Durham was tasked with investigating, in which Robert S. Mueller III secured more than half a dozen guilty pleas or verdicts. Those included several high-profile aides and associates of then-President Donald Trump. And that’s to say nothing of the extensive evidence Mueller laid out suggesting Trump might have committed obstruction of justice. A later bipartisan Senate report also suggested there was more to the collusion portion of the investigation than even Mueller was able to unearth.

To the extent people on the right have believed the Russia investigation was a “hoax” and the real crime was the Mueller probe itself, the evidence thus far paints quite a different picture.

Which leaves everyone involved to account for that. And on Wednesday, Barr himself attempted to do so — in a rather novel way for a lawman. Indeed, his defense reinforced Barr’s dual role under the Trump presidency as the nation’s chief law enforcement officer and a political actor often preoccupied with taking extraordinary steps to right the supposed wrongs committed against Trump.

Fox News had hyped the significance of the Sussmann verdict beforehand and then just as quickly downplayed the acquittal afterward, suggesting the jury was unfriendly. But when Barr appeared for an interview, one of its hosts pressed him on the probe’s lack of deliverables.

“Do you feel in any way responsible for how this Durham situation’s unfolding?” Jesse Watters asked. “And are you disappointed in John Durham?”

Barr assured he wasn’t disappointed. He noted that it’s difficult to obtain guilty verdicts and suggested repeatedly that the jury was slanted.

But he also pointed to a way in which Durham’s probe was supposedly successful: telling a story.

To wit (emphasis added):

  • “I think he accomplished something far more important, which is he brought out the truth in two important areas. First, I think he crystallized the central role played by the Hillary campaign in launching as a dirty trick — the whole Russiagate collusion narrative and fanning the flames of it. And second, I think he exposed really dreadful behavior by the supervisors in the FBI, the senior ranks of the FBI, who knowingly use this information to start an investigation of Trump …”
  • “The other aspect of this is to get the story out.”
  • “Complicated cases like this take a long time to build; they occur step-by-step and in secret. People don’t like that. If they want people punished, that’s what it takes. If they want the facts of what happened, you can get it that much more quickly.”

To summarize: Even without convictions, this is good, because it has exposed something. And that something apparently need not be proven crimes or anything amounting to the supposed conspiracy that has been alleged.

That is decidedly not how this is supposed to work. There is a reason the Justice Department doesn’t generally disclose its investigations when it can avoid doing so: because it wants to avoid impugning those who didn’t commit crimes. The role of the Justice Department is to enforce the law — not to expose “dirty tricks” that haven’t been shown to be crimes. Yet Barr is basically suggesting the value of this investigation lay largely in getting information out there, regardless of whether that information is ultimately tied to a proven crime.

(Here, we are leaving aside the actual substance of the information Durham has put out, which has been misleading in its most high-profile instances.)

This is a remarkable view of the special counsel investigation Barr launched, to be sure, but it’s also in keeping with Barr’s general posture. While decrying the politicization of law enforcement, he took an extraordinary interest in the affairs of Trump and Trump allies who found themselves afoul of the law. Some prosecutors resigned in response. In what was arguably an audition for his job in the first place, Barr wrote a remarkable 2018 memo, while he was still a private citizen, assailing Mueller’s investigation. At one point, he even suggested that Mueller’s probe was less substantiated than a debunked conspiracy theory involving the Clintons and Uranium One.

And during a media tour in 2019, Barr acknowledged that a big reason that he took the job was that he perceived the presidency as under attack.

“I felt the rules were being changed to hurt Trump, and I thought it was damaging for the presidency over the long haul,” Barr said.

Barr made a point to emphasize this was about the office and not necessarily Trump personally. But right there is a political agenda in the truest sense of the term. Barr wanted to guide the Justice Department in a very different direction from the one in which he viewed it as going. And that new direction overlapped extremely neatly with Trump’s political agenda.

By 2020, after the launch of Durham’s probe, Barr again stepped well outside the usual DOJ protocols in prejudging its outcome.

“What happened to [Trump] was one of the greatest travesties in American history,” Barr said. “Without any basis, they started this investigation of his campaign, and even more concerning actually is what happened after the campaign — a whole pattern of events while he was president … to sabotage the presidency — or at least have the effect of sabotaging the presidency.”

At that point, no crimes had been charged. And more than two years later, we still have only one proven offense: a former FBI lawyer who pleaded guilty to doctoring an email used to surveil a Trump campaign adviser, and got 12 months of probation — a case essentially handed to the Justice Department by the department’s inspector general.

Against that backdrop, saying that your decision to launch a special counsel investigation is validated by the information it has put out, rather than the laws enforced, isn’t terribly surprising. But it’s still a remarkable admission.

Of course, without the convictions to validate your claims to the “one of the greatest travesties in American history,” you’ve got to justify the decision to yourself — and others — somehow. We’ll have to wait to see whether Durham ever produces anything that could reasonably back up Barr’s hype. But Barr’s own comments suggest he himself isn’t terribly optimistic.

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