Attorney General Bill Barr delivered a remarkably incendiary and inflammatory speech this week, apparently defending his overtly partisan and political management of the Justice Department and triggering a wave of analysis and outrage from many of his usual critics. I'm among his usual critics and have written about his warped view of justice many times before. I have little to add to the excellent arguments about Barr's hypocrisy and overreach that I haven't said before.
Instead, I'd like to point to a few key features of the speech and some recent reporting that I think may be flying under the radar. And at the risk of being proven decisively wrong by future of events, I'd like to engage in some measured speculation about Barr's much-hyped investigation by U.S. Attorney John Durham.
The investigation remains mostly a black box. Its full scope is unknown, though we know it's somewhat duplicative of Inspector General Michael Horowitz's review of the origins of Crossfire Hurricane, the Russia investigation. Durham has, quite inappropriately, made public that he does not fully support Horowitz's view that the Crossfire Hurricane was properly predicated, though he hasn't explained why. And Durham has secured a guilty plea from Kevin Clinesmith, an FBI lawyer who admitted to altering an email in the course of an application to surveil former Trump campaign associate Carter Page, though there's no sign it was part of any larger criminal wrongdoing. (Indeed, were it not for the attorney general's unique interest in the case, Clinesmith probably would have been simply fired rather than charged for his wrongdoing.)
We also know that right-wing media is deeply invested in the investigation, to extent that is probably difficult to understand for those who haven't followed it.
For example, Fox News host Jeanine Pirro once declared that there was a "a criminal cabal in our FBI and the Department of Justice who think they know better than we do who our president should be." She has said the deep state "worked to spy on and frame a presidential candidate and plant the seed for his overthrow in the ugliest, most corrupt attempted political coup in U.S. History.” She added: “That it occurred at all, is stunning. But that it was manipulated to take down a president and remove him from office almost as soon as we put him there, essentially overthrowing a government, is an outrage that demands the most severe consequence our criminal justice system has to offer.”
She, her viewers, and their compatriots have closely watched for developments from Durham to finally get vengeance for Trump.
Barr has dutifully whetted conservatives' appetite for the results of the probe, and Trump is just as hungry for high-profile convictions as anyone else — though charges against former President Barack Obama and former Vice President Joe Biden have already been ruled out. Against all tradition and protocol, Barr has repeatedly given public updates on the investigation, for no other obvious reason except that it's what Republicans want to hear.
But could Barr be ready to disappoint his fans? Several recent signs point to that possibility.
Most clearly, the Washington Post reported this week of Barr's speech:
... some people close to the attorney general said Barr’s speech was meant not just as a rejoinder to those on the left who have criticized his moves on cases involving Trump associates, including former national security adviser Michael Flynn and longtime friend Roger Stone. Barr was also gingerly trying to temper conservatives’ hopes that, before Election Day, former senior officials once involved in investigating the president will be charged criminally, people familiar with the matter said. [emphasis added]
Lawfare's Susan Hennessey scoffed at this claim, saying she found no evidence for it in Barr's actual remarks: "Read the speech for yourself and see if you can spot where Barr is supposedly tempering expectations. (I can't)."
Indeed, many critics read the speech as a brazen assertion of his own power and refusal to bend to any criticism, rather than a tempering of expectations of his allies.
But arguably, there were signals in his speech to those on the right who may be on the edge of their seats waiting for indictments. For example, Barr said:
In short, it is important for prosecutors at the Department of Justice to understand that their mission above all others is to do justice. And that means following the letter of the law and the spirit of fairness. Sometimes that will mean investing months or years in an investigation and then concluding it is without criminal charges. [emphasis added]
For those who have waited for months and years to see Trump's enemies — including James Comey, John Brennan, Andrew McCabe, and others — proscuted, this may be a signal to get ready for disappointment. A long probe like Durham's sometimes comes up dry.
Barr also said:
This criminalization of politics is not healthy. The criminal law is supposed to be reserved for the most egregious misconduct — conduct so bad that our society has decided it requires serious punishment, up to and including being locked away in a cage.
The political winners ritually prosecuting the political losers is not the stuff of a mature democracy.
Many read these claims as a defense of Barr's own actions regarding Robert Mueller's investigation, in particular his attempts to exonerate Trump and Michael Flynn and reduce the sentence of Roger Stone. He has said explicitly that he thinks that Obama administration launched partisan investigations of political enemies. And he likely intended these claims as a defense of himself, at least in part. But imagine that Durham has found little if anything to criminally charge out of the investigation; in this context, Barr's words sound like a pre-emptive warning to Trump's base and a post-hoc rationalization on Barr's part for the broad sweep of his actions. No, he might as well be saying, I'm not going to prosecute those on the losing side of a political fight — because I can't.
There are other signs as well that Durham may not be fulfilling the grand visions of people like Pirro and the president.
For example, the New York Times reported last week:
Several officials said expectations had been growing in the White House and Congress that Mr. Barr would make public, ahead of the election, some kind of interim report or list of findings from Mr. Durham before he completed the investigation. Mr. Barr had wanted Mr. Durham’s team to move quickly, according to a person familiar with the matter.
The Hartford Courant reported that Nora Dannehy, a top aide for Durham, resigned in part because of improper pressure from the DOJ to produce a report, an extremely disturbing development on its own.
But why would Barr want to publicize an "interim report" or "list of findings"? That is not what prosecutors or U.S. attorneys do. Barr released Mueller's report, but that was specifically demanded in the unique circumstance in which a special counsel is called for. And it was uniquely reasonable to releasese findings about the president's potentially criminal conduct because he cannot be prosecuted while in office under current DOJ guidelines. Ordinarily, prosecutors are not supposed to say anything about the cases they've investigated unless they're bringing charges; it's viewed as a basic matter of fairness.
So it seems that Barr would only want a highly unusual and likely inappropriate "report" from Durham if he couldn't get what he really wanted: high-profile prosecutions of criminal wrongdoing. Given Durham and Barr's previous remarks, they may announce that they've concluded that Crossfire Hurricane was improperly launched, conradicting the inspector general. One report has already floated the possibility that some of the paperwork filed to start the probe may have been somewhat unusual, and perhaps there were other administrative errors of varying levels of signficiance. Perhaps Barr and Durham will have findings to share about the Steele Dossier, which has become a particularly potent bugbear on the right. But all that would be a huge disappointment to people hoping to see Comey in handcuffs.