How Bill Barr will likely use the Justice Department at the last minute to damage Joe Biden: legal expert
William Barr (Screen Shot)

Attorney General Bill Barr said that he firmly supported the rule of forbearance in an election, meaning he supported the rule of not announcing any new findings from the Justice Department to interfere in an election. That was before Barr became Donald Trump's new "fixer" after the president's falling out with his former attorney Michael Cohen.


Writing for Just Security, founding co-editor-in-chief Ryan Goodman explained that early votes due to the coronavirus mean eyes are turning to Barr for what he'll do to use the Justice Department to protect Trump. The rule once was that the DOJ "will refrain from public indictments or other overt disclosures in cases that could affect the election," wrote Goodman. "Prosecutors would, instead, conscientiously defer such actions until after the public votes."

Barr has deviated from rules, laws, and traditions in the Justice Department since he came into office, and he has made statements recently that Goodman says, "lay the groundwork for inappropriately deploying the Justice Department to damage the Democratic candidate for president, Joe Biden in the coming weeks. It's by all appearances a highly orchestrated plan."

Goodman explained that Barr set everything in motion in 2019 when he announced that he was choosing one of his own U.S. Attorneys to investigate the investigators in special counsel Robert Mueller's probe into Trump's coordination with Russians during the 2016 elections. While even the Republican-led Senate acknowledged that Trump did coordinate with Russia through Roger Stone and WikiLeaks, Barr is still seeking a way to give Trump an "out."

With Barr's appointee, John Durham, investigating the investigators, Trump has proclaimed his innocence and gone so far as to say that he was wiretapped by former President Barack Obama and Joe Biden at Trump Tower, something neither investigations, whether by Muller or the GOP Senate, found.

The DOJ's inspector general looked into whether the FBI did anything improper years ago. Still, Barr seems to be searching for something that can absolve Trump from wrongdoing in the 2016 election.

"Barr also later assigned a spinoff of Durham's work to U.S. Attorney John Bash, who is now charged with investigating the so-called unmasking of Trump associates by Obama administration officials," said Goodman.

He explained that the last time something like this came up was during the 1992 election when Independent Counsel Lawrence Walsh was investigating the Reagan-Bush administration. He indicted a former senior official from the Reagan administration that was a clear violation of the rule even though the indictment had nothing to do with Bush.

"As evidenced by then-Attorney General Barr's response at the time, Walsh's violation proved the existence of the rule of forbearance. The dramatic effects of the violation on the election also proved the sacred reasons for having the rule," Goodman wrote.

Goodman said that he spoke with Stuart Gerson who worked as Barr's assistant attorney general at the time of the indictments.

"The rule has been applied, as a prudential matter of restraint, many times in congressional and presidential elections. The most significant of matters in which it was not applied had to do with the investigation in 1992 led by Independent Counsel Lawrence Walsh," said Gerson with Goodman's emphasis. "On October 30, 1992, just days before the presidential election on November 3rd, Walsh obtained and published a grand jury re-indictment of Cap Weinberger for perjury connected to the Iran-Contra investigation. This superseded an earlier indictment, and its singular difference from the earlier one was a phrase referencing President George H.W. Bush. At that time, Bush was closing rapidly in the polls as against candidate Bill Clinton. In the few days between the announcement and the election, Bush lost approximately eight percentage points in the consensus of polls, and this margin would have reelected him, even with Ross Perot's having siphoned off a determinative margin as well. Walsh had a political purpose in doing this. Indeed, the superseding indictment was dismissed by the court several months later as having been outside the statute of limitations. Bush later pardoned Weinberger. Because the Independent Counsel statute was in force at the time, this was not an event within the ambit of the Justice Department, but it is something with which both Bill Barr and I had great familiarity, mine coming in discussions with the president in which he vented his anger."

"The indictment was of Weinberger, who wasn't a candidate or a relative of one, or even a member of the administration. So Barr should know that his limitation on the confidentiality proviso is not well taken, and that a violation of the well-established convention can indeed produce considerable effect in an election," Gerson closed.

According to a book by Bob Woodward in 1999, Barr said that he thought the move by Walsh was "a crude political act with a political motive. Career Justice Department prosecutors would never bring out such information in an indictment just before an election. Barr said he wanted to dismiss Walsh. He knew the law well. He could remove Walsh for 'misconduct.'"

Barr doesn't seem concerned with appearing hypocritical this time around, however.

Goodman concluded by outlining the extent to which a well-established understanding and practice has been upheld in every other case except for Walsh's actions in 1992. There are few other exceptions to the rule, but even in those cases, Goodman explained, it was about the safety of an individual or a fear that evidence would be destroyed. There is no "emergency" in that case unless it's about indicting Trump.

"Barr knows the true scope of the rule though he has tried to bury it," Goodman closed. "With so many Justice Department alums and now the broader legal community and public understanding the truth as well, the question is whether others in the department will violate their oaths and do lasting damage to their reputations by participating in Barr's current course of action."

Read the extensive report at Just Security.