When several Trump administration figures, from the President himself on down, have labeled the Department of Justice as part of a potential quid pro quo with Ukraine, it’s hard to believe the DOJ’s denials of its involvement.
For a typical Justice Department, its repeated implication in the ongoing Ukraine scandal would be extremely problematic. The DOJ is a law enforcement entity whose legitimacy stands on it being viewed as independent from the White House.
But this Justice Department is already pursuing what has now become a criminal investigation that appears geared toward vindicating President Trump politically. It also made key decisions about how to handle the initial allegations of presidential abuse of power in the Ukraine matter — decisions that could have kept Trump’s improper actions from becoming public.
The many ways the department has come up in claims about Trump’s Ukraine gambit is not just a perception issue for the law enforcement agency, former DOJ officials told TPM, but could cause legal problems in department prosecutions. It also raises more suspicions about the current DOJ investigation into how its probe of 2016 election interference was handled. The investigation, which started as an administrative review, was already attracting criticism amid signs that Attorney General Bill Barr was chasing debunked allegations about how the Russian meddling probe was started.
Late Thursday, the New York Times reported that Durham’s probe was now a criminal investigation. What’s known about the investigation suggests that it’s focused on the unfounded allegations pushed by Trump’s allies about how the Russia probe was started.
“If you’re at the Justice Department, the thing you are usually most worried about is people accusing you of conducting law enforcement investigations for political reasons,” Matt Miller, who served as spokesperson to Attorney General Eric Holder, told TPM.
First came Trump’s invocation of Barr while pressuring Ukraine’s President on a phone call to open investigations into his political rivals. Then it was the confirmation by White House chief-of staff Mick Mulvaney that Trump withheld military aid to secure Ukraine’s cooperation with a 2016 review being led by Barr and U.S. Attorney John Durham. Most recently, a U.S. diplomat testified that he discussed with another State Department official having Ukraine’s general prosecutor make a statement, potentially coordinated with Barr, about investigating 2016.
At each step, the Justice Department tried to distance itself from any idea that it played a role in the effort to get Ukraine to announce investigations — including into Joe Biden — that would benefit Trump’s reelection campaign.
But even if Barr wasn’t aware of what Trump was seeking from Ukraine, it appears that the White House and others believed his 2016 probe could serve as a clearinghouse for the President’s conspiratorial demands.
Mulvaney’s remarks, Miller said, showed that, “This is a hunt to prove the President’s conspiracy theories, just like you thought all along.”
While also citing Barr’s 2016 probe, Mulvaney said at a press conference Thursday that Trump was withholding military aid for an investigation to the DNC server.
The 4chan-fostered theory — that Ukraine collaborated with Democrats to frame Russia for the hack of Democratic emails — does not make sense factually and undermines the findings of Trump’s administration, including his DOJ, that Russia was behind the meddling campaign.
“If Barr has twisted the Justice Department into investigating a conspiracy theory that is believed only on certain far-right blogs, then we are in really bad shape,” Peter Zeidenberg, a defense attorney who served for 17 years as a DOJ prosecutor, told TPM.
More broadly, Mulvanely’s claims diminished the firewall that is supposed to exist between the White House and the Justice Department, veterans of the department say.
“It was an incendiary development to be sure, because it just furthers the notion that this administration has forever viewed the Department of Justice as an extension of the White House, as opposed to an independent law enforcement agency,” said Randall Samborn, who served as a spokesperson for the Special Counsel investigation into the Valerie Plame leak.
After Mulvaney’s presser, an unnamed DOJ official told reporters that the idea that aid was withheld for Ukraine cooperation with Barr’s review was “news to us.” Mulvaney later denied he made the claim.
Former DOJ officials said that even if Barr wasn’t involved in Trump’s Ukraine demands, he shouldn’t be surprised that Trump brought him up to Ukraine President Volodymyr Zelensky. Barr was reportedly angered and surprised that Trump lumped him in with Rudy Giuliani when demanding Zelensky work with them on the call.
“You could see why the President thought it was OK for him to do this, given he has talked to other foreign leaders about [the 2016] investigation at Barr’s request,” Miller said, referring to Trump’s Barr-sanctioned prodding of Australia’s leader.
Trump name-checking Barr in his demands to Zelensky prompted calls that Barr recuse himself from the department’s handling of the Ukraine matter, which included a DOJ legal memorandum justifying the move to block the transmission of a whistleblower’s complaint to Congress. The department also received several referrals related to the allegations from multiples branches of the intelligence community. DOJ officials reportedly only looked at the White House’s record of the Zelensky call and, deciding it did not fit into the legal definition of a campaign finance violation, declined to do any follow-up investigations. That decision has been widely questioned.
Mulvaney’s admission of quid pro quo — and one involving an investigation being undertaken by Durham with help from Barr himself — makes the lack of a follow-up investigation look even more “reckless,” Zeidenberg said.
“It puts the Justice Department in a really awkward position, when they have already said, ‘We don’t think there is anything to this.’”
Barbara McQuade, a former U.S. Attorney, said that Mulvaney’s claims could cause evidentiary issues that could be raised by defendants, if the Durham investigation does result in charges.
“The integrity of the investigation could be compromised if you are coercing people into sharing information with you,” she said.
Even those currently facing charges stemming from special counsel Robert Mueller’s probe could “throw sand” at their juries, Zeidenberg said, by claiming that the department no longer believes Russia was behind the meddling campaign, as Mulvaney’s embrace of the server theory implies
A DOJ spokesperson told TPM Wednesday that the department was unaware that Barr’s review was being discussed between Bill Taylor, a career diplomat in Kyiv, and Gordon Sondland, a Trump-appointed ambassador who had a direct role in the smear effort.
Taylor told Congress Tuesday that, when Sondland told Taylor that Trump wanted Zelensky to announce 2016- and Biden-related probes, the two State Department officials discussed Ukraine’s prosecutor general instead making “a statement about investigations, potentially in coordination with Attorney General Barr’s probe into the investigation of interference in the 2016 elections.”
“Prosecutors are fond of sarcastically arguing that a defendant must be the unluckiest person in the world when the facts overwhelmingly establish guilt,” Samborn said, “so it’s obviously concerning that the President, Mulvaney, and Sondland have each separately invoked the attorney general.”