The William Barr-run Justice Department is facing fresh criticism from former senior Justice and intelligence officials and leading Democrats on two fronts: first, over Barr’s part in a wide-ranging review of the FBI’s initial inquiries into Russian interference in the 2016 elections and the help US intelligence agencies provided the FBI; and second, over the DOJ’s decision not to open a criminal investigation of a possible election law violation involving President Trump’s asking Ukraine’s president, Volodymyr Zelensky, to open an investigation into discredited allegations involving former Vice-President Joe Biden, his potential rival in 2020, and his son, Hunter. It was this “favor” that Trump asked for in a July 25 phone call, which came when Trump was withholding from Kiev military assistance worth hundreds of millions of dollars, that emerged in a whistleblower complaint and led House Democrats to open impeachment proceedings.
A Justice spokesperson said last month that Barr had played no part in deciding against opening a criminal investigation into whether this conversation might have violated campaign finance laws, which prohibit foreign help, in cash or in kind, in US elections, but former senior DOJ officials are highly skeptical. “Something this significant would have gone up the chain to Barr’s level,” Mary McCord, who led the national security division at Justice prior to her leaving in the spring of 2017, told me.
Other former government officials are voicing tough questions about the apparent political motivation of the Barr-led review into how the 2016 FBI investigation of Kremlin meddling began. Trump has praised Barr’s initiative, which has involved efforts by the attorney general and the president to enlist foreign officials in his inquiry, but critics of Barr’s Justice Department see it as an attempt to undermine the report of Special Counsel Robert Mueller, specifically its conclusion that Russia interfered in “sweeping and systematic” ways in 2016 to help defeat Hillary Clinton and boost Trump.
John Sipher, who spent twenty-eight years in the CIA’s National Clandestine Service, warned that the Barr review of how the FBI launched its 2016 Russia inquiry, carries high risks. “No foreign security official wants to speak outside of established channels,” he told me, “and jump head-first into breathless partisan battles in the US.”
Some former Justice officials also express concerns that Barr has long been a leading advocate for expanding and protecting the president’s executive authority. That doctrine, they fear, fits Trump’s own absolutist view of his powers only too well, and could shape the DOJ’s stance on vital matters of public interest. Indeed, Barr proved himself a staunch Trump ally when he used his position to obfuscate the Mueller Report’s conclusions by issuing a misleading four-page summary before its release in April. A harbinger of that performance came in June 2018—several months before Trump tapped Barr for the job to replace Jeff Sessions, who’d incurred the president’s wrath by recusing himself from overseeing the Russia inquiry—when Barr provided an unsolicited memo to Justice officials saying that Mueller’s “obstruction theory was fatally misconceived.” This despite the fact that he lacked any inside information about Mueller’s investigation, which ultimately cited ten instances of possible obstruction of justice by Trump.
“Barr has been committed for a very long time to a concept of the presidency that is virtually all-powerful,” Donald Ayer, a former deputy attorney general in the George H.W. Bush Justice Department who has known Barr for almost four decades, told me. “Given Barr’s belief in an all-powerful presidency, there is substantial reason for concern that what Barr’s doing in these investigations is related to the president’s use of his power to secure help in collecting political dirt.”
The inquiry into the origins of the FBI’s 2016 investigation of Russian interference that Barr has opened, appointing in May Connecticut prosecutor John Durham to lead, does indeed seem to be following Trump’s agenda. This summer, Trump publicly suggested that Barr’s review look into what part various officials and private individuals in Italy, the UK, Australia, and Ukraine had played in the early stages of the FBI’s inquiry; and Barr, in turn, has asked the president to lend a hand in securing meetings with, and assistance from, such foreign officials. Barr also told a Senate panel this spring, without offering evidence, that he had “concerns” that the Trump campaign had been subjected to “spying”—a charge that Trump has pushed, too.
In turn, Trump has lavished praise on Barr’s work. “I am so proud of our attorney general that he is looking into it,” he said in May. “I think it’s great.” That pride in his attorney general may have been tested early this month when Barr signed off on charges against two Soviet-born businessmen, Lev Parnas and Igor Fruman, brought by the office of the US attorney for the Southern District of New York. The indictment centered on an illegal scheme to funnel foreign cash into campaign donations—including $325,000 to a Trump super PAC. It also emerged that Parnas and Fruman were close associates and clients of Trump’s personal attorney, Rudy Giuliani, and had been helping his efforts on behalf of the president to dig up dirt in Ukraine on Joe and Hunter Biden. In the wake of the charges against Parnas and Fruman, who, Giuliani told Reuters, had paid him $500,000, several news outlets reported that Giuliani himself was under scrutiny from the same federal prosecutors—notably, regarding his work in Ukraine, where he has had other clients.
Yet Barr, who did a stint as attorney general under George H.W. Bush and assumed the reins again at DOJ in February, has been assiduous in pursuing Trump’s interests by “investigating the investigators.” Barr has apparently devoted more and more time in recent months to foreign trips related to that purpose, which partly duplicates another, narrower inquiry by the DOJ’s own inspector general. Last month, Barr and Durham took their second trip to Italy, where they met with intelligence officials and sought help in examining contentious claims of improper methods and sources used by the FBI, theories that have been embraced by Trump allies.
Leading Democrats and former US intelligence officials, from both the FBI and the CIA, view Barr’s project with alarm. They see a grave risk of damage to American interests in the direction that Barr and Durham seem to be going in their review, which is not a criminal inquiry and lacks subpoena power. Senator Mark Warner, the ranking Democrat on the Senate Intelligence Committee, issued this statement to me:
The Senate Intelligence Committee spent more than eighteen months reviewing the origins of the Russia investigation and concluded, on a bipartisan basis, that our intelligence agencies acted properly. It is completely inappropriate to now ask our allies to use their intelligence services for domestic American political purposes, but it appears that is just what AG Barr is doing with his additional so-called “review.” To solicit allies like Australia and the UK for help with this investigation has the potential to do real damage to the Five Eyes intelligence relationship, and I know our intelligence leaders are concerned by that possibility.
Former FBI general counsel Jim Baker, who was involved in the agency’s 2016 counter-intelligence investigation of Russian activity under James Comey, whom Trump fired as FBI director in May 2017, sees other risks in the Barr–Durham efforts. “They’re immersing themselves in the intelligence world, which is a hall of smoke and mirrors and it’s very hard to assess accurately what is true and what is not true,” he said. “There could be a concerted effort by foreign intelligence services to mislead Barr and Durham, so they have to be very careful. People might be trying to feed them what they want to hear.”
That sort of risk seemed palpable last month during Barr and Durham’s trip to Rome, where they met with senior Italian intelligence officials. Reportedly, their meeting focused on Maltese-born professor Joseph Mifsud, who, in early 2016, told Trump campaign foreign policy adviser George Papadopoulos that Moscow had “thousands of emails” containing “dirt” on Hillary Clinton. Initial intelligence reports about Mifsud’s offer to Papadopoulous helped set in motion the FBI investigation in 2016. Papadopoulos, who was convicted of lying to the FBI last year and spent two weeks in prison, has since advanced speculation that Mifsud was helping Western intelligence agencies in a kind of “deep state” plot to tarnish Trump. These theories have been promoted by some Trump allies who have echoed Trump’s refrain that the FBI’s Russian interference probe was a “witch hunt” and that a “deep state” of US intelligence officials were behind it to thwart Trump’s election and presidency.
While Barr and Durham have mainly sought help from Italy, the UK, and Australia, a Justice Department spokesperson told The New York Times last month that some Ukrainians have also “volunteered” information to Durham. Trump and Giuliani, meanwhile, have both pushed the notion that the Barr–Durham review ought to re-examine discredited theories that, rather than a Russian effort to hurt Clinton’s campaign and help Trump’s, there had been a Ukrainian plot in 2016 to do the reverse. “I would be very surprised if they don’t dig into Ukraine in an effort to determine if we dropped the ball, given that the president has spoken so much about this,” commented Jim Baker, who now leads the national security and cyber security program at the nonpartisan R Street Institute. A Justice spokesperson declined to answer my questions about the Barr–Durham review, including whether the review has contacted officials in Ukraine for help.
John Sipher, whose career at the CIA included a period overseeing the agency’s Russia operations, takes a very dim view of the Barr–Durham inquiries. In a statement to me, he said:
The administration’s use of the AG to visit allied countries to investigate the alleged conspiracy is troubling on several fronts. From a practitioner’s point of view, it displays their lack of seriousness and amateurism. The notion that an outsider with partisan and poorly informed views of potential wrongdoing will somehow collect information of value is unlikely at best. No foreign security official wants to speak outside of established channels and jump head-first into breathless partisan battles in the US. Don’t expect much from this effort other than further embarrassing the administration.
In addition, former Justice officials are raising a few questions about the department’s decision not to open a criminal investigation into whether Trump’s July 25 call with Ukraine’s president might have violated campaign finance laws. The partial record of that conversation the White House released last month indicates that Trump told Zelensky to connect with both Barr and Giuliani, as part of Trump’s push to spur scrutiny of debunked allegations about Ukrainian efforts to hurt Trump and help Clinton in 2016, and discredited corruption charges involving the Bidens that Trump has been using to score political points. A DOJ spokesperson has said that Barr was not involved in any decision-making about whether a criminal investigation was warranted, and that the matter was decided by the head of the criminal division, with advice from other units within the department. But former Justice officials I have spoken to voiced deep skepticism about whether a decision of this magnitude could have been made without Barr’s involvement.
“I find it hard to believe that anything as significant as the involvement of a target such as the president wouldn’t have involved Barr in some way,” McCord, the former DOJ official in charge of the national security division, told me. “I’m also surprised they didn’t think this merited a full investigation.” Other Justice veterans share McCord’s doubts and concern.
“If Bill Barr didn’t recuse himself—and there has been no claim that he did—it’s unimaginable he wouldn’t have been consulted,” said Ayer, the former deputy attorney general, “and either made the decision, or approved any decision made, that directly concerned an investigation of the president.”
Baker, the former FBI general counsel, voiced concern about the apparent haste of the decision. If it was only the criminal division that handled the matter, with no FBI input so far as we know, he said, “it was decided rather quickly, which would raise concerns. It would seem to me in a matter this complex involving these activities, an investigation (by the FBI) would be warranted. “I would like to know what the FBI did, or did not do, in this matter,” he added
A Justice spokesperson also declined to answer my questions about whether FBI help was sought before the decision was made not to open a criminal investigation, and related questions that critics had raised with me about the decision. The department previously told NBC News that the whistleblower complaint was examined only as a possible violation of campaign finance laws, since that was the issue raised in the criminal referral by the Director of National Intelligence. But one former federal prosecutor expressed surprise that statutes concerning bribery and extortion had not been weighed in this case since Trump, in his appeal to Zelensky, seemed to connect it with the supply of badly needed military aid to Ukraine that the White House had delayed. “Whenever you consider opening a criminal investigation you consider all the potential violations,” Renato Mariotti told me. “The fact that they did not do so in this case is unusual and concerning.”
For NYU law professor Stephen Gillers, an expert on legal ethics, this all fits a pattern. He believes that Barr’s performance suggests that the attorney general has been doing his utmost to protect Trump’s political fortunes—and seems to be redoubling his efforts now that Trump’s presidency is facing a serious impeachment threat. “I think Barr has chosen to view the political interests of the president as the client interests he wants to protect,” he said.
Before William Barr became attorney general, Gillers noted that Trump liked to ask “Where’s my Roy Cohn?”—referring to Trump’s early mentor, who had once been a chief counsel for Senator Joseph McCarthy’s anti-communist witch-hunt and was later a lawyer and political fixer in New York whose clients included the real-estate developer who is now America’s president. Now, Gillers added: “He’s got his Roy Cohn—only a much more polished, presentable, and establishment version.”