At his January 2019 confirmation hearing, Bill Barr vowed to let to special counsel Robert Mueller “complete” his work. But in retrospect, Barr’s promise was dangerously limited. It turned out that it didn’t foreclose him from meddling in the cases that Mueller passed back to the Justice Department after the special counsel stepped down.
Barr let Mueller wind down his office, then immediately began unwinding Mueller’s two years of work. In the year since Mueller closed up shop, Barr has been whittling away at Mueller’s conclusions and the cases brought by Mueller’s team.
The culmination of this pattern came with the Justice Department’s move last week to drop its case against Trump’s former National Security Advisor Michael Flynn. Its request to do so was so questionable that it prompted Flynn’s judge to appoint a retired judge to oppose the Justice Department’s dismissal effort.
The relative independence granted to an outside special counsel is intended to insulate it from conflicts of interest the Justice Department may have. But Barr has dispensed with the pretense of independence since Mueller left, substituting his own judgment for that of Mueller and his team.
The latest actions the Justice Department’s political leaders, under Barr’s directions, have taken in cases stemming from the Russia probe have rung alarm bells for how significantly they’ve undercut Mueller’ previous positions. It appears that the Department is now employing a different set of standards for allies of the President — the textbook definition of the politicization of justice.
The DOJ’s drastic change of course in the Flynn case was just the kind of prosecutorial interference that was widely-feared when Mueller’s shop was still open, and Trump was persistently lashing out at DOJ officials for refusing to meddle on his behalf. Before Mueller formally closed his investigation a year ago, DOJ political leaders were repeatedly asked in congressional hearings and in questions from the press whether they had overruled any of his prosecutorial moves.
Bipartisan bills were rolled out seeking to protect Mueller from Trump. Though they were never taken up on the Senate floor, the political heat coming out of Congress likely had some effect in stymieing Trump’s efforts, as recounted in Mueller’s report, to influence the probe.
“It took him a while to get to this point, but between the pressure that Trump has put on people and now the general acquiescence to the pressure, stuff that would have been unthinkable a year ago now is a few days story,” Peter Zeidenberg, who worked on the special counsel investigation into the Valerie Plame leaks, told TPM.
The 2018 midterm elections — and the GOP’s success in holding the Senate — were a turning point. Trump’s first attorney general, Jeff Sessions — who had recused himself from overseeing Mueller, given his involvement in some of the conduct Mueller was investigating — was canned the day after the 2018 election. Within a few weeks, Trump named Barr as Sessions’ permanent replacement. Mueller’s investigation wrapped up five weeks after Barr was confirmed. Barr’s mischaracterizations of Mueller’s report before it was publicly released set the tone for a campaign to “discredit” Mueller’s investigation, according to Michael Conway, who was was counsel for the House Judiciary Committee’s Richard Nixon impeachment investigation.
There’s an alternate universe where the Flynn case would have been wrapped up before Barr was even confirmed. Flynn pleaded guilty in December 2017 to lying to the FBI in an interview earlier that year. He initially was supposed to be sentenced weeks after the 2018 midterms, but those plans were put on hold when his judge reacted angrily to hints in Flynn’s sentencing memo that he wasn’t fully accepting his guilt. The judge made Flynn re-affirm his guilty plea under oath, and agreed to put off Flynn’s sentencing so he could earn the benefit of further cooperation he was expected to offer prosecutors.
The charges against Stone, meanwhile, were brought by Mueller in January 2019.
Rather than pardoning Flynn, as many were expecting, President Trump has been allowed to stay “on the sidelines and cheerlead for it,” Conway said.
It’s hardly speculative to say that Barr’s move to drop Flynn’s case would have been at odds with Mueller’s approach. The remaining veteran of Mueller’s team still leading Flynn’s prosecution withdrew from the case ahead of the dismissal request.
Similar resignations occurred when Barr ordered that the DOJ’s sentencing memo in the Roger Stone case be watered down. The two Mueller alum on the case withdrew after the memo was filed, as did the career prosecutors who had been on the case alongside the Mueller’s prosecutors since Stone’s arrest.
Even before the most recent Flynn developments, former federal prosecutors had wondered whether Mueller had closed up shop too early, given the Stone meddling, and earlier signs that prosecutors were being pressured to back off Flynn.
“It really makes me wonder whether Mueller, in hindsight —he couldn’t have known this at the time, but in hindsight — was it really the right thing for Mueller to close the operation,” Harry Sandick, a former federal prosecutor told TPM last month. Sandick was discussing Barr’s move to launch a review of the Flynn case that led to the production of internal FBI docs Flynn and the DOJ are now using to argue that his case be dismissed.
As a technical manner, the attorney general always had the power to overrule a special counsel’s prosecutorial decision, under the special counsel regulations through which Mueller was appointed.
“Looking back at 2017, 2018, the check and balance was, what are the political pressure points and public opinion that would allow a special prosecutors decisions to be overturned or interfered with,” said Randall Samborn, a former DOJ official who also worked on the Plame investigation. “Now, just a couple years later — for whatever reasons, whether it’s the after effect of impeachment or the approaching election, or whatever it may be — we have sort of crossed the Rubicon of not having that public political pressure be a check any more.”
Not only have key congressional Republicans backed off their efforts to protect the Russia probe, former Mueller defenders have embraced Trump’s attacks on the investigation.
When Mueller was appointed, Sen. Lindsay Graham (R-SC) effusively praised him, pushed back on claims that Mueller was leading a “witch hunt” and even co-sponsored a bill to imposing limits on how Mueller could be removed. Graham, who chairs the Senate Judiciary Committee, is now planning to investigate the origins of the Russia investigation and whether Mueller should have ever been appointed.
Barr’s own tune on Mueller, whom he once touted as a dear friend, has also changed notably.
In a recent interview defending his actions in the Flynn case, Barr took direct shots at Mueller’s team, suggesting they were wedded to a “particular agenda.” It’s not hard to imagine what fuss these comments — let alone any sign that Barr would help Flynn get out of his plea deal or minimize Stone’s sentence — would have caused at the time of his confirmation.
Earlier this week, Barr’s spokesperson was asked by Fox News about the letter 2,000 former DOJ officials signed seeking Barr’s resignation and the other public pushback the Justice Department has received.
“I don’t think anyone’s losing any sleep over it at the Department of Justice,” the spokesperson said.