Bill Barr’s Still Making a Mockery of Justice. Merrick Garland’s Letting Him.
Letting Durham’s weak case continue sets a bad, potentially dangerous, precedent for future abuses of prosecutorial power.
The investigation that former Attorney General William Barr ordered into the Russia investigation—which Donald Trump promised would reveal Robert Mueller had been part of a grand Democratic Party “hoax”—may be ending with a fiasco. Barr’s hand-picked prosecutor has brought a case so weak that current Attorney General Merrick Garland should have rejected it in the interest of justice.
Trump long teased that that prosecutor, John Durham, would bring a blockbuster case proving Trump’s innocence and the culpability of Hillary Clinton and her “deep state” confederates. And now Durham, allowed to proceed in his work on Garland’s watch, has finally brought what appears to be his big case, against Michael Sussman, a lawyer who was widely identified as counsel to the Democratic National Committee in connection with Russia’s hack of its servers and dump of their contents. Durham has charged Sussman with culpably hiding his status as a Democratic “operative” from the FBI’s senior lawyer at a meeting in which he shared potentially inculpatory information regarding Trump.
Durham’s indictment was met with immediate criticism, and for good reason: It is so weak that facts Durham recites in his indictment gravely undermine the charge. Yet Garland reportedly declined to use his authority as the nation’s chief law enforcement officer to prevent Durham from proceeding with his misguided charge against Sussman, presumably based on the idea that such intervention in a special counsel charge by the AG—while permissible under the governing rules—would be contrary to Garland’s admirable goal of reinstating the law enforcement “norms” at the DOJ that Barr has so assiduously attacked.
But letting a shabby case that’s of a piece with Trump’s efforts to use the criminal justice system to protect corrupt allies and punish perceived enemies is no way to restore and reinforce the norms of neutral criminal justice.
The indictment suffers from multiple apparent defects. It is far from clear whether Durham will be able to prove beyond a reasonable doubt that Sussman even made the supposed statements forming the basis for the charge. Durham claims Sussman lied by denying that he was representing a client when he approached then-FBI General Counsel James Baker with data evidencing a potentially culpable link between Trump and a Russian bank. But Baker previously testified before Congress that he didn't recall whether Sussman stated he was working on behalf of Clinton or the Democrats. Furthermore, Sussman later testified before Congress and under oath that he was working on behalf of an individual (an executive at an internet company)—making the claim that he deliberately hid that fact from Baker implausible.
Further, Durham’s claim that Sussman’s purported lie was material, meaning it had a “natural tendency” to influence the FBI’s investigation, appears implausible based on the limited evidence included in the indictment. Durham asserts that, if Sussman had disclosed he was a “paid advocate for clients with a political or business agenda”, it “might have prompted” Baker to “ask more questions” or “take additional steps before opening” an investigation. However, per the indictment, after meeting with Sussman, Baker told his subordinate that the lawyer “represents DNC, Clinton Foundation, etc.”, thus rendering Durham’s claim that Sussman duped the FBI’s most senior lawyer into believing that he was a “good citizen” without any “political motive” related to the then active presidential campaign borderline absurd.
Finally, Durham’s allegations that Sussman culpably lied to the FBI are not only weak and self-contradictory, they also appear to be misleading. The indictment repeatedly asserts that Sussman “billed his time” to the Hillary Clinton campaign, in an effort to substantiate a claim that Sussman was secretly acting on behalf of the Clinton campaign when he “lied” to the FBI. But Sussman’s lawyers reportedly demonstrated that his firm never sent a bill to the Clinton campaign for any of the time he spent on the project at issue, and have explained that he simply chose to use the Clinton campaign’s internal billing number to keep account of what was never, and was never intended to be, billed time.
Durham’s tenuous, and mendacious, effort to draw a link between the Clinton campaign and Sussman’s purported crime supports the claims of Sussman’s counsel that the charges are politically motivated, and intended to bolster Trump’s and Barr’s claims that Clinton—the victim of a scheme by a foreign adversary to illegally influence a presidential campaign—was actually the perpetrator of the so-called “Russia hoax.” The inference is further supported by the indictment’s gratuitous references to the so-called “Steele Dossier,” which has nothing apparent to do with the charges against Susman, as well as Durham’s loaded and conspiratorial description of Sussman as an “operative.”
But whether or not Durham shares the political motives of Trump and Barr is ultimately beside the point. Whatever his intent, Durham has abused his discretion by bringing a tenuous case that should never have been presented to a grand jury, and thereby worked an injustice. Regardless of whether the case is ultimately rejected by the court or a jury, as it most certainly should be, Sussman, who has already lost his job, will be subject to the cost and stress of defending himself against defective charges, and—perhaps more importantly—a bad, and potentially dangerous, precedent will be set for future abuses of prosecutorial power.
That brings us to Garland’s role in this debacle in the making. Under the DOJ regulations pursuant to which Durham was appointed, the prosecutor has remained at all times under the supervision of the AG and cannot take investigative steps, let alone bring charges, without the assent of the nation’s chief law enforcement officer. Garland should have denied that assent.
A brief history lesson is in order here. The special counsel regulations were issued during the Obama administration in the face of the expiration of the post-Watergate independent counsel statute. That statute had provided for the appointment by a federal court of a prosecutor to investigate potential misconduct involving the president or other high level executive branch officials. Independent counsels appointed under the statute law were truly independent of the AG, thus avoiding a presidential effort to interfere with an investigation, as had occurred when Robert Bork fired Watergate prosecutor Archibald Cox at Nixon’s direction.
But while the Supreme Court resoundingly upheld the IC statute against constitutional challenge, there was widespread concern that the law invited abuse by prosecutors who lacked judgment or, in the worst-case scenario, were acting in furtherance of their own political agendas.
Indeed, those concerns were realized when members of the then right wing-dominated D.C. Circuit appellate court took advantage of an earlier reenactment of the IC law to get rid of an experienced, non-partisan prosecutor who had already been appointed to investigate Bill and Hillary Clinton in connection with the so-called “Whitewater scandal,” and replaced him with a former Reaganite with no prosecutorial experience, Kenneth Starr. After spending years relentlessly but fruitlessly trying to come up with some basis to charge the Clintons with real estate fraud, as well as years pandering to conspiracy theorists by reinvestigating the suicide of White House lawyer Vince Foster, Starr—with the assistance of an enthusiastic young lawyer named Brett Kavanaugh—tried to engineer Bill Clinton’s removal from office for lying about a sexual relationship with a young White House intern.
In the wake of that disaster, even Democrats, who had previously been the primary champions of the IC law, were not eager to allow it to remain in force. Furthermore, the possibility that another president would attempt to undermine an investigation of executive branch wrongdoing in the way that Nixon had seemed remote. Accordingly, it appeared that the special counsel regulations which discouraged, but did not prohibit, DOJ interference with an SC’s work would suffice.
And indeed, they did just that for a number of years. For example, then Deputy Attorney General James Comey appointed a special counsel who conducted a searching inquiry of the scheme to smear former CIA employee Valerie Plame Wilson on account of her husband’s public undermining of the Bush administration’s false claims about Iraq’s supposed nuclear weapons program. The investigation resulted in the indictment and conviction of then Vice President Dick Cheney’s top aide, Lewis “Scooter” Libby, a conviction that stood until Libby was pardoned by Trump.
And it was under Trump that the assumption that Nixon’s misconduct would not be repeated proved to be catastrophically wrong. In a memo he wrote in a transparent effort to lobby for the AG job, Barr set forth a series of weak, and in some cases, absurd, arguments, in support of the proposition that a president has a plenary right to interfere with investigations of his own misconduct, as well as to order criminal investigations of his political adversaries.
As soon as he was installed, Barr began implementing his theory of executive power by effectuating Trump’s loudly expressed desire to see the Mueller investigation undermined. Barr’s first step was his famously misleading account of the Mueller Report, which he falsely announced vindicated Trump, while keeping the actual, far more damning report under wraps for weeks. While Mueller privately complained about the falsity of Barr’s account, which has also since been condemned by multiple federal judges, Barr’s desired damage was done—and the myth that Trump had been proven innocent was established as one of several lies that have since become part of the Republican catechism.
But Barr and his boss were not satisfied with simply attacking Mueller’s credibility and findings, they also wanted to undermine his principal prosecutions, including the conviction of Trump and Nixon dirty trickster Roger Stone for obstruction of justice, and of former Trump National Security Adviser Michael Flynn for lying to the FBI (the same charge Durham has made against Sussman). As I argued at the time, Barr’s efforts to intervene in the Stone and Flynn cases were bound to end badly, and also to be rendered unnecessary by the inevitable Trump pardons—but Barr just could not help himself from “helping” the boss.
Thus, in a fumblingly improper move, Barr tried to induce the sentencing judge to give Flynn a low sentence for his scheme to impair the investigation of potentially culpable interactions between the Trump campaign and Russia by trying to force the line prosecutors to replace their initial sentencing brief with the court with a document favoring leniency that was effectively dictated by Barr’s cronies. In response, the key prosecutors on the case removed themselves, and the judge ostentatiously ignored the new brief in her sentencing decision.
But Barr precipitated a larger debacle in his effort to use the authority of the DOJ to undermine Mueller by saving Flynn from the consequences of his own guilty plea. Flynn had been caught flagrantly lying about conversations he had with the Russian ambassador in the wake of the 2016 election, including efforts to hide promises he had made to the ambassador to reverse punitive actions the Obama administration had taken in response to Russia’s hacking scheme and other illegal interference in the U.S. election.
In the spring of 2020, while Flynn, who had twice allocuted to his guilt, was awaiting sentencing, he hired a new lawyer—since sanctioned “Kraken” attorney Sidney Powell—who argued, frivolously, that Flynn had been the victim of FBI misconduct and should be allowed to withdraw his plea. Seemingly out of the blue, Barr again muscled aside the existing prosecutorial team and had a crony he had recently installed as acting U.S. Attorney in D.C. file a motion to dismiss the case Special Counsel Mueller had successfully brought.
The DOJ motion was grounded on the premise that, you guessed it, Flynn’s knowing and admitted lies to the FBI about important matters of national security were not “material.” Barr’s argument was widely, and justifiably, mocked and swiftly gave way to a singular reliance on the proposition that the AG—and by implication, the president—had plenary authority to deep six a criminal case after it yielded a guilty plea, and no matter how meritorious the charge. In fact, Barr likely would ultimately have prevailed in his effort to get Flynn off, but only after the completion of an inquiry by a former federal judge that had been ordered by the trial court—and upheld by the full D.C. appellate court—into the facts and circumstances surrounding the AG’s intervention in the case.
After the unprecedented motion was filed, I observed that Trump was likely to end up pardoning Flynn in order to avoid such an inquiry, rending Barr’s intervention on behalf of the boss an embarrassing redundancy—and that is ultimately what happened.
But Barr’s bag of dirty tricks was not limited to interfering with existing cases. Acting on the claim that the president can use the DOJ as a tool for political attack advanced in his AG audition memo, Barr set out to instigate investigations targeted at Trump’s perceived adversaries and their associates by directing prosecutors to commence dubious investigations that could continue even after Trump was forced out of the White House.
The primary example of this Barr strategy was the appointment of Durham, who was directed to, quite literally, criminally investigate the Russia investigation, and thereby (hopefully) substantiate Trump’s crackpot claim that the overwhelmingly proven Russian scheme to get him elected Mueller detailed in his report was actually a “hoax.”
Durham commenced his investigation in 2019 and, in October 2020, Barr secretly designated him to serve as a “special counsel,” apparently in order to make it difficult for a future AG to remove him in the event of Trump’s then likely defeat. But despite Barr’s efforts to bolster him–and Trump’s repeated touting of the prospects for his investigation–until recently, Durham had succeeded only in obtaining a guilty plea from a low-level FBI employee for doctoring one of the many items the FBI presented to a court in connection with a surveillance order application. To Trump’s publicly expressed frustration, the promised Durham bombshell would not explode until after the election.
Or, it turns out, not at all.
Apparently, the dud Durham was holding in reserve was the Sussman charge. To add insult to injury, Durham’s case against Sussman is painfully hard to reconcile with the brief that Barr’s crony filed in the same court arguing that Flynn’s far more serious falsehoods to the FBI were “immaterial.”
The obvious question posed by the defective Sussman indictment is why Merrick Garland did not nix it. After all, the case is meritless and Barr’s recent tenure as AG reminded us that, unlike the independent counsel law, the special counsel regulations do not actually impose any meaningful legal barriers to an AG’s intervention in a SC’s charging decisions, although Garland would likely have had to inform Congress of his disagreement with the decision advanced by Barr’s operative.
Garland reportedly declined to do so, however, presumably because of his foundational goal of returning the DOJ to a practice of adhering to the rule of law and its own “norms.” While many observers have decried Garland for this general approach, I have not been among them. Many of Garland’s loudest critics misunderstand the proper role of the attorney general. In certain areas, civil rights being among them, the AG can play nearly as much of a policy as a law enforcement role.
But where criminal law enforcement is concerned, it is extremely dangerous for an AG to take on a politicized role as an agent of the president. Barr’s tenure in the position is a stark reminder of that. Accordingly, Garland’s decisions not to intervene in law enforcement proceedings and investigations to please Democratic partisans has generally been salutary, despite the grief the AG has had to endure.
But in the Sussman case, Garland’s decision to let Durham bring the defective charges was an error; indeed, by apparently adhering to the “norm” of noninterference with a special counsel, Garland has permitted Trump and his operative Barr to benefit from the fruits of their violation of norms. After all, Durham was installed in a transparent effort to continue Trump’s misuse of the federal law enforcement power to benefit Trump’s cronies and damage his perceived enemies. And that is just what the defective case against Sussman is effectuating. Whether by design or not, Durham has managed to tar a law firm (and lawyer) that played a critical role in defending the Democratic Party and its standard bearer in the wake of Russia’s attack on the Clinton campaign.
Preventing Durham from taking the ill-advised step of bringing an exceedingly weak case against one of Trump’s perceived enemies would actually have furthered Garland’s salutary project of returning the DOJ to norm adherence.
Drawing lines is all the more important because Barr set another trap, this one potentially for Biden himself. Before Barr fled the AG’s office in fear of being tainted by the election fraud paranoia he had openly encouraged during the months preceding the election, the AG also assigned the Delaware U.S. Attorney, David Weiss, to investigate what are believed to be tax fraud allegations against the president’s son, Hunter Biden. While Barr did not purport to give Weiss the title of special counsel, he plainly intended to make it extremely difficult for Biden to replace him; and in fact, the Biden DOJ asked Weiss—unlike nearly all other U.S. attorneys appointed by Trump—to remain in place. While there is no currently known reason to believe that Weiss will take a turn like Durham and abuse his discretion in connection with the Hunter Biden inquiry, the hands-off-no-matter-what precedent Garland has effectively set in the Sussman case will make it all the more difficult for him, or indeed other senior DOJ officials, to act should such a circumstance arise.
There is nothing simple about taking the helm of the Department of Justice in the wake of the kind of willful institutional destruction that Trump and his associates wreaked over the previous four years. Nonetheless, taking a hands-off approach to the fruits of that institutional vandalism is not the right answer to the problem. Garland should not have allowed Durham to bring a defective case; hopefully courts will look upon the case against Sussman with the jaundiced eye it deserves.