“These actions are not typical,” said William Jeffress, a veteran defense lawyer who represented former President RIchard Nixon after he left the White House. “Tradition is that politically sensitive actions by DOJ go dark at least 60 days before an election.”
Jeffress called the Justice Department’s unusual press release last week regarding a handful of discarded military ballots in Luzerne County — a crucial area of a crucial state that swung to Trump in 2016 — “particularly striking.”
“The attorney general is working hand in glove with the White House and the Trump reelection campaign,” said Gene Rossi, a former federal prosecutor from Virginia turned white collar defense lawyer. “We have not seen that level of unseemly coordination since Attorney General John Mitchell.”
Justice Department officials insist there is no basis to suggest that politics have infected the work of the department. Still, at the heart of these new disclosures is a common thread: They all support narratives that Trump has been pushing in recent months and deploying against his rival, Democratic nominee Joe Biden.
Democrats have increasingly sounded the alarm about how they say the machinery of the federal government has been mobilized to back Trump’s reelection. They also cite recent evidence that the Treasury Department helped supply explosive information to Senate Republicans that was released last week in a report about Biden’s son Hunter’s business relationships, along with examples at other agencies that suggest Trump is successfully harnessing the power of the state to serve his election needs.
But they’re most alarmed about what they say is a Justice Department effort to aid Trump politically.
For example, Trump has baselessly asserted a widespread campaign of voter fraud that calls the legitimacy of the 2020 election into doubt — a claim that has been rejected by lawmakers of both parties, intelligence officials and his own hand-picked FBI director. Yet on Thursday, a U.S. attorney from Pennsylvania issued an unusual letter that revealed a newly opened investigation into a handful of mishandled ballots in a Pennsylvania election office.
Though local officials have indicated the episode was likely a technical error, the U.S. attorney, David Freed, revealed that the affected ballots were cast for Trump — a detail that has become a fixture of Trump public comments in the days since. Other media outlets reported that Attorney General William Barr personally flagged the news to the president, who proceeded to tease the discovery in a radio interview before it was publicly announced.
To DOJ veterans, this disclosure was as egregious a breach as any in Barr’s 17-month tenure.
“This is not something that the attorney general should even be telling Trump or they should be announcing in any fashion,” said Nick Akerman, who served as a prosecutor during the Watergate-era investigation of Nixon.
The pattern so perturbed one current assistant U.S. attorney — veteran Massachusetts-based prosecutor James Herbert — that he issued a stinging broadside against Barr in the pages of the Boston Globe over the weekend.
“While I am a federal prosecutor, I am writing to express my own views, clearly not those of the department, on a matter that should concern all citizens: the unprecedented politicization of the office of the attorney general,” Herbert wrote, citing Barr’s handling of special counsel Mueller’s report, his involvement in cases like Flynn’s and his echoing of Trump’s baseless allegations about mail-in ballots. “The attorney general acts as though his job is to serve only the political interests of Donald J. Trump. This is a dangerous abuse of power.”
A Justice Department official rejected the suggestion of any impropriety in revealing the ballot investigation. It was an issue that local media had begun to chase, which the local U.S. attorney’s office had discovered was likely to be the subject of news reports. Freed had been considering a statement on the matter independently before Trump jumped to the front of the line and disclosed the investigation during a Fox & Friends Radio interview, this official said.
How did Trump know? The DOJ official said Barr, aware of the local media buzz, had mentioned to the president that the department was going to be examining the issue.
David Weinstein, a former assistant U.S. attorney in Florida, said the disclosures related to the Pennsylvania ballots probe were “inappropriate, both in their content and timing.”
“When I was an [assistant U.S. attorney], you would never reveal anything about your ongoing investigation,” he said. “It could compromise the investigation itself and potentially [impugn] the reputation of any subjects of the investigation who never became targets.”
Regardless of DOJ’s intent, Trump has clearly sought to exact political benefit from the disclosure, raising it in political rallies, press conferences and other appearances over the weekend, to fuel his continued claims of large-scale voter fraud.
“If you look at the ballots — you know, they found ballots in a garbage can, and they had the name ‘Trump’ on them,” the president told reporters Saturday evening. “They were cast for Trump, and they found them in a garbage can.”
He reacted similarly after the FBI declassified — and Barr delivered to Sen. Lindsey Graham (R-S.C.) on Thursday — new details about the creation of an anti-Trump dossier by former British intelligence agent Christopher Steele, which was used by the FBI in 2016 to obtain a warrant to surveil Carter Page a former Trump campaign aide suspected of ties to Russia.
The disclosure from the FBI indicated that Steele’s primary subsource for the dossier was once the subject of a counterintelligence investigation as a possible Russian agent, a probe that was closed in 2011. The existence of that investigation was noted by the Justice Department’s inspector general in a redacted footnote from his scathing 2019 report describing abuses and omissions by the FBI in obtaining the Page warrant.
Though the watchdog didn’t include the existence of this probe among the many omissions he attributed to the FBI, Trump quickly pointed to the now-public revelation as proof that he was targeted by a witch hunt.
“A new trove of documents — and you have to go home, you gotta read these documents — they now prove that Russia interfered in 2016. Unfortunately it was on behalf of Hillary Clinton, not Donald Trump,” the president said at a Friday rally in Newport News, Va.
Also on Thursday, the Justice Department handed Trump another weapon, sharing with former national security adviser Michael Flynn’s defense team a slew of internal FBI communications airing agents’ and analysts’ opinions about the long-running investigation of Flynn’s contacts with Russia and the broader probe of the Trump campaign’s contacts with Russia. Flynn’s team filed the new messages on the public court docket, several days before a judge is expected to hear arguments in DOJ’s effort to drop the case against Flynn.
“Newly released text messages make 100 percent clear the FBI knew that Democrats purchased Russian disinformation targeting me, your favorite president, which then formed the basis of the witch hunt,” Trump said at the Friday rally, appearing to blend multiple allegations about the Russia probe.
Shortly before midnight on Thursday, DOJ also publicly released a summary of a Sept. 17 interview with one of the FBI agents on the Flynn investigation team airing complaints and concerns about the handling of the case. And on Monday, Flynn’s lawyers released two new sets of documents provided by DOJ: Notes from Justice Department lawyers discussing the status of the Flynn probe at various stages of the investigation, and a summary of steps the FBI took to obtain Flynn’s phone records and financial transactions.
Flynn pleaded guilty in December 2017 to lying to the FBI about his late-2016 contacts with Russia’s ambassador to the United States. But after cooperating with Mueller’s team for a year, he sought to rescind his guilty plea, alleging egregious misconduct by prosecutors and the FBI, coercing a guilty plea and using him to get at Trump. The Justice Department began a Barr-ordered review of the case in January and ultimately moved to drop charges against Flynn in May.
But the judge presiding over Flynn’s case, Emmet Sullivan, has put up some resistance, appointing an outside adviser who has argued that DOJ’s alliance with Flynn appears to be an overtly political attempt to protect an ally of the president. The adviser, former federal prosecutor John Gleeson, has argued that Sullivan is not required to dismiss the case and could consider charging Flynn with perjury for attesting under oath that he was guilty of the crimes he had previously admitted.
The parties are due in court Tuesday morning, when Sullivan is expected to weigh whether he in fact does have the authority to sentence Flynn or must immediately drop the case.
Some legal experts told POLITICO that the raft of disclosures from DOJ in recent days suggests that John Durham, the U.S. attorney tapped by Barr to investigate the origin of the FBI’s Russia investigation — a probe Trump has openly hoped would lead to criminal charges against those who investigated him, along with Biden and former President Barack Obama — would not be issuing any explosive indictments ahead of the election, or even afterward.
“I doubt there will be any notable indictments,” said Jeffress, citing the newly released documents.
Former DOJ lawyers believe some officials may intend the various disclosures to serve as a kind of substitute for the expected Durham report and a kind of political salve for the president’s supporters who were expecting a big pre-election bombshell from the Connecticut-based U.S. attorney.
But it remains to be seen whether Trump will accept that — in recent interviews, he has suggested that nothing less than indictments of his political opponents will satisfy him.
“Bill Barr can go down as the greatest attorney general in the history of our country, or he can go down as an average guy,” he told Fox Business’s Maria Bartiromo recently. “It depends on what’s going to happen.”