One of the most dramatic moments during Attorney General William Barr's appearance before the Senate Judiciary Committee last spring was an exchange between him and Sen. Kamala Harris, D-Calif., about whether he had ever been asked by Trump or anyone in the White House to investigate someone. Barr's reply was one of the few times the extremely self-assured Trump lieutenant appeared to be rattled:
He said, “I’m trying to grapple with the word ‘suggest,’ I mean there have been discussions of, of matters out there that uh ... they have not asked me to open an investigation.” When Harris then asked whether the White House had hinted at an investigation, Barr said, “I don’t know.”
This article first appeared in Salon.
Not that there was any mystery. Trump has been publicly demanding investigations of his perceived adversaries since he took office. He's never tried to hide it. He's said it to reporters and tweeted it out frequently. He has no regard whatever for the principle that a president should not interfere with the Department of Justice in general, and has no comprehension of why a democratic society wouldn't want a president to use the power of federal law enforcement to punish his political enemies.
Since that hearing, Barr has made it clear that he relishes the role of Trump henchman. He has launched a probe into the "origins" of the Russia investigation (the third such inquiry) and is personally looking into the intelligence community's conduct, having been given blanket access to all classified information by an unprecedented presidential edict. Barr may not have received a direct order to do these things, but there can be no doubt about the president's deep desire for retaliation against all those who investigated and pursued the Russia claims.
It appears that Barr has found some fellow Trump travelers to help him fulfill the president's desires. On Thursday, the Washington Post reported that Deputy Attorney General Jeffrey Rosen, Rod Rosenstein's replacement and a longtime GOP player — with no previous experience in the Department of Justice — had given the go-ahead to prosecute former acting FBI director Andrew McCabe.
Donald Trump has had a couple of rough weeks. But that must have made his day.
You may recall that McCabe has been accused of lying to the FBI during a leak investigation, and then later to the inspector general, about whether he gave permission to agents to speak to the Wall Street Journal in 2016, regarding negative information about Hillary Clinton. McCabe claims it's all a misunderstanding and most legal observers think a prosecution is overkill, especially considering that the Justice Department fired him from the FBI one day before he would have qualified for a full pension, which would normally be considered a harsh penalty for such an infraction.
Of course it's true that the DOJ prosecutes people for lying to them all the time, and there's little doubt that McCabe probably put people in jail for exactly what he's accused of doing. So many observers might conclude that what goes around comes around. But this looks to be a political prosecution and therefore the stakes are on a whole other level.
McCabe has clearly been targeted by Donald Trump personally, along with his defenders in the Department of Justice. Why? Because after Trump fired FBI director James Comey and McCabe assumed his job, the latter ordered the inquiry into the president and Russia that eventually became the Mueller investigation. Trump has been pushing to punish McCabe for that ever since.
It may seem counterintuitive that the lie McCabe is accused of telling had to do with the FBI confirming negative information about Hillary Clinton, but that's a tried and true move from this administration. James Comey was also ostensibly fired on the basis of his unfair treatment of Clinton — or at least that was the first excuse. One can't help but think of this as some elaborate form of DOJ trolling, particularly since, according to the Mueller report, Trump repeatedly sought to have former Attorney General Jeff Sessions prosecute Clinton (and was mercifully ignored.
The New York Times likewise reported that Trump had asked former White House counsel Don McGahn to seek DOJ prosecution of both Clinton and Comey:
The lawyer, Donald F. McGahn II, rebuffed the president, saying that he had no authority to order a prosecution. Mr. McGahn said that while he could request an investigation, that too could prompt accusations of abuse of power. To underscore his point, Mr. McGahn had White House lawyers write a memo for Mr. Trump warning that if he asked law enforcement to investigate his rivals, he could face a range of consequences, including possible impeachment.
The president needn't have worried about impeachment, apparently. The Democrats are at sixes and sevens, unable to muster much of anything but very, very slow handwringing.
Still, the fact that the DOJ is prepared to prosecute Andrew McCabe says that whatever resistance there once was to giving Trump his enemies' heads on pikes, metaphorically speaking, seems to have gone the way of Jeff Sessions. If House Democrats were actually inclined to charge the president with abuse of power, this case would certainly be among the elements of the crime.
At this writing, it's unclear whether prosecutors will actually follow through by indicting McCabe. According to the Post, they called back the grand jury that hadn't met for months this week, presumably to seek such an indictment. But as of Thursday they had been dismissed with no indictment forthcoming, which is unusual. The case is weak. Prosecutors involved in it have quit, with at least one expressing concerns that it is being mishandled. The president's tweets and comments would almost certainly be used by McCabe's defense to demonstrate that the prosecution is political in nature. Just this week a jury in the same jurisdiction acquitted former Obama special counsel Greg Craig for lying to the FBI, the same crime for which they could prosecute McCabe. Perhaps Trump's team is not feeling as confident as they might.
If no prosecution occurs, I think we know someone at 1600 Pennsylvania Avenue who will be very, very upset. But he should be soothed by the knowledge that he has accomplished something important anyway. Members of federal law enforcement will know that they should look the other way if they see any evidence of criminal behavior by Trump or his close associates. Who wants to be the next Andrew McCabe?
Trump surely feels very good about his latest attorney general these days. His personal Roy Cohn is firmly ensconced among a team of loyal Trumpers, dedicated to seeing that the president is protected from all who presume to oversee him. And who knows?They may yet get a show trial out of this.