In a hearing before the House Judiciary Committee on Tuesday, Attorney General William Barr refused to commit to holding off on releasing a report by U.S. Attorney John Durham until after the 2020 election.
Hours into a grueling public event, in which Democrats repeatedly cut off their star witness much to the chagrin of Republicans present, Barr rejected the notion that the release of the federal prosecutor’s findings from his criminal inquiry into the Russia investigation before the November contest would amount to a violation of Justice Department policy or election interference.
“Under oath, do you commit to not releasing any report by Mr. Durham before the November election?” Rep. Debbie Mucarsel-Powell, a Florida Democrat, asked the attorney general.
“No,” Barr replied. When asked again, he repeated, “No. I will be very careful.”
During cross-talk between Mucarsel-Powell and Barr, the Florida Democrat claimed the attorney general was saying, “you won’t go by Justice Department policy that you won’t interfere in any political investigations before the election.” Barr reiterated, “We’re not going to interfere — in fact, I’ve made it clear that we’re not going to tolerate interference.”
Mucarsel-Powell shot back, “But under oath, you’re saying that you do not commit to not releasing a report by Durham?”
Barr insisted, “Any report will be, in my judgment, not one that is covered by the policy and would disrupt the election.” He added: “I’ve already made it clear that neither candidate is under investigation.”
Barr has said that he expects “developments” and a public report from Durham by the end of the summer. The top federal prosecutor in Connecticut is investigating misconduct by federal law enforcement and intelligence officials in an inquiry that has been much hyped by Republicans and derided by Democrats as an effort to tar President Trump’s political enemies.
Just as Barr’s critics fear an “October Surprise,” timing is also a mounting concern for the president’s allies who say Durham’s work will likely get buried should Trump lose his bid for reelection.
The Justice Department has guidance related to “election year sensitivities,” although it is not clear that releasing Durham’s findings would violate the policy.
Three prior attorneys general — George W. Bush’s attorney general, Michael Mukasey, in March 2008, and Obama’s attorneys general Eric Holder and Loretta Lynch in March 2012 and April 2016, respectively — all released similar memos related to conducting investigations and handing down indictments related to political candidates close to an election.
“Simply put, politics must play no role in the decisions of federal investigators or prosecutors regarding any investigations or criminal charges,” the Mukasey, Holder, and Lynch memos all stated. “Law enforcement officers and prosecutors may never select the timing of investigative steps or criminal charges for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party. Such a purpose is inconsistent with the Department’s mission and with the Principles of Federal Prosecution.”
In February, Barr released his own memo, which added new details to the DOJ’s election-minded policies.
“The Department has long recognized that it must exercise particular care regarding sensitive investigations and prosecutions that relate to political candidates, campaigns, and other politically sensitive individuals and organizations — especially in an election year,” Barr’s memo stated. “As we enter the 2020 election year, the Department remains committed to ensuring that this fall’s elections are conducted in a fair manner that is free from inappropriate influences.”
The new details in Barr’s memo deal mainly with the opening of investigations into candidates for president and their campaigns, with these investigations needing the approval of the attorney general. But Durham’s investigation has been ongoing for well over a year, long before former Vice President Joe Biden became the presumptive Democratic presidential nominee. Barr has said neither Obama nor Biden is under criminal investigation.
“Not every abuse of power, no matter how outrageous, is necessarily a federal crime,” Barr said during a press conference in May. “Now, as to President Obama and Vice President Biden, whatever their level of involvement, based on the information I have today, I don’t expect Mr. Durham’s work will lead to a criminal investigation of either man.”
In the preceding month, Barr told conservative commentator Hugh Hewitt during a radio interview that the November election would not affect the timing of Durham’s report.
Hewitt said there are DOJ guidelines related to announcing either indictments or the end of an investigation close to an election because of the influence it might have on who wins, noting these rules factored into then-FBI Director James Comey’s statement in July 2016 declaring that former Secretary of State Hillary Clinton had been “extremely careless” in her handling of classified information but that “no reasonable prosecutor” would bring an indictment against her.
Barr said Election Day was not going to be a factor for when Durham releases his report, or, he added, for when the prosecutor might press charges.
“I think, in its core, the idea is, you don’t go after candidates,” Barr said. “You don’t indict candidates or perhaps someone that’s sufficiently close to a candidate, that it’s essentially the same, you know, within a certain number of days before an election. But, you know, as I say, I don’t think any of the people whose actions are under review by Durham fall into that category.”
In December, DOJ Inspector General Michael Horowitz noted “the so-called ’60-Day Rule’ under which prosecutors avoid public disclosure of investigative steps related to electoral matters or the return of indictments against a candidate for office within 60 days of a primary or general election.” The independent watchdog noted that “the 60-Day Rule is not written or described in any Department policy,” although it is a “general practice that informs Department decisions.”
Robert Mueller’s special counsel report, released in April 2019, said the Russians interfered in the 2016 election in a “sweeping and systematic fashion,” but it “did not establish” any criminal conspiracy between Trump’s campaign and Russia. Durham and his team are examining everything from the lead-up to the genesis of Crossfire Hurricane in the summer of 2016 through Mueller’s appointment and beyond.
Author: Jerry Dunleavy
Source: Washington Examiner: Barr: 2020 election won’t delay report from John Durham