WASHINGTON — For decades after Watergate, the White House treated the Justice Department with the softest of gloves, fearful that any appearance of political interference would resurrect the specter of Attorney General John Mitchell helping President Richard Nixon carry out a criminal conspiracy for political ends.
In 2001, William Barr, describing his first stint as attorney general under President George Bush, spoke of the department’s protected status in the post-Watergate era. “You didn’t mess around with it, didn’t intervene, you didn’t interfere,” he recalled in an oral history.
Fast forward to 2020, and Barr is attorney general once more. But President Donald Trump’s ground-shaking conduct has demolished those once-sacrosanct guardrails. Barr’s intervention to lessen a prison sentencing recommendation for the president’s convicted friend Roger Stone prompted all four career prosecutors handling the matter to quit the case.
To career prosecutors around the country, the Stone case raised new fears of what is to come. Until now, according to conversations with more than a dozen career lawyers in some of the 93 U.S. attorney’s offices, they had watched other divisions in the Justice Department execute significant shifts in response to Trump while the work of prosecuting crimes was largely unaffected by the politics of the moment. Now career prosecutors said they worried they might face more pressure.
“In essence, the leadership of the Justice Department has commandeered the sentencing in a politically sensitive criminal matter, reversing the position uniformly accepted and promoted by the career prosecutors,” said David Laufman, a partner at Wiggin and Dana and a former chief of the Justice Department’s counterintelligence and export control section.
The withdrawal of the prosecutors sent a clear signal, said Greg Brower, a former prosecutor who once headed the FBI’s congressional affairs office. “They all disagreed” with how top Justice Department officials intervened, he said.
“Beyond that,” Brower said, “they likely also believed there are ethical considerations that forced their decision.”
Prosecutors across the United States, who spoke on the condition of anonymity to avoid reprisals, said this week that they had already been wary of working on any case that might catch Trump’s attention and that the Stone episode only deepened their concern. They also said that they were worried that Barr might not support them in politically charged cases.
Barr and his lieutenants intervened Tuesday hours after Trump assailed the original sentencing recommendation of seven to nine years in a middle-of-the-night Twitter eruption. The president congratulated Barr on Wednesday “for taking charge of a case that was totally out of control and perhaps should not have even been brought” and said prosecutors “ought to apologize” to Stone.
For the most part, modern presidents have stayed away from cases involving their friends or associates, at least publicly. If they weighed in, it usually came in the form of clemency shortly before leaving office, as when Bush pardoned former Reagan administration colleagues caught up in the Iran-Contra scandal or when President Bill Clinton pardoned his half brother and his former business partner.
One notable exception was President Barack Obama, who during the 2016 presidential campaign said that he did not believe that Hillary Clinton had harmed national security by using a private email server but was guilty only of carelessness — remarks that Republicans immediately criticized as interference with an open FBI investigation.
But while Obama was guilty of a single lapse, said Jack L. Goldsmith, a Harvard law professor who headed the Justice Department’s Office of Legal Counsel under President George W. Bush, Trump has continually injected himself into federal investigations and prosecutions involving his political friends and enemies.
“Even assuming that Bill Barr is acting with integrity, it is impossible for people to believe that because the president is making him look like his political lap dog,” Goldsmith said. “Trump makes it impossible to have confidence in the department’s judgment.”
Trump’s allies have said he has every right as the head of the executive branch to oversee investigations, even those in which he has a personal interest, and that he is trying to correct the political excesses of a law enforcement system he sees as biased against him and his team. They point most often to the mishandling of a surveillance warrant against Carter Page, a onetime Trump campaign adviser, which an independent investigation criticized.
But numerous legal scholars say that Trump has shredded norms that kept presidents in check for decades, undermining public trust in federal law enforcement and creating at least the perception that criminal cases are now subject to political influence from the White House.
The main focus of Trump’s effort to mix politics and prosecutions has been the U.S. Attorney’s Office in Washington, which traditionally oversees many delicate political prosecutions, including national security, espionage and political corruption cases. Until recently, the U.S. attorney for Washington was Jessie K. Liu, who oversaw Stone’s prosecution, but Barr maneuvered to get her out of that position and install a longtime close aide in her place a few weeks before the sentencing.
Late last year, Trump nominated Liu to a top Treasury Department position. She initially told colleagues that she would stay on as U.S. attorney until the Senate confirmed her. But she and Barr then agreed that she would leave early in the new year so that someone else could run the office if the confirmation process stretched on, according to people familiar with the events.
In mid-January, she was tapped to take a post as senior counselor to Treasury Secretary Steven Mnuchin that began at the end of the month. A going-away party was held at a bar near the U.S. Attorney’s Office.
Some conservatives have viewed Liu, a Trump appointee who worked in the Justice Department in the second Bush administration, with suspicion. When she was nominated last year to be associate attorney general, Sen. Mike Lee, R-Utah, protested because she had been associated with the National Association of Women Lawyers, a group that opposed the confirmation of Justice Samuel Alito to the Supreme Court in 2006. (Lee is a former Alito clerk.) Actually, Liu had signed a petition in support of Alito’s confirmation, but Trump withdrew her nomination anyway.
More recently, a conservative website attacked her nomination to the Treasury Department, accusing her of being part of the “deep state” and blaming her for a “sweetheart plea deal” with James Wolfe, the former Senate aide who pleaded guilty to lying to the FBI about his contacts with reporters.
Liu’s office struck an agreement in which Wolfe pleaded guilty to one charge of making a false statement; two other charges of the same offense were dropped. Prosecutors recommended that he be sentenced to two years in prison, but a judge sentenced him to two months, in line with the sentencing guidelines.
Fox News has amplified the critique of the Wolfe case, and Trump on Tuesday echoed it on Twitter. He did not address significant differences in the cases — including the fact that Stone did not admit his guilt and forced the government to go through a trial, that a jury convicted him of many more offenses, including witness intimidation, and that Liu’s office recommended a sentence of two years for Wolfe, not two months.
When it became clear that Liu would not stay until she was confirmed, it raised suspicions among some in the U.S. Attorney’s Office. Those were only compounded in late January when Barr designated Timothy Shea, a longtime trusted adviser, as her temporary successor rather than letting her top assistant serve as caretaker.
Shea arrived on Feb. 3 with David Metcalf, another perceived Barr loyalist, to serve essentially as his chief of staff. Metcalf immediately caused discord when he moved a prosecutor from her office so that he could work adjacent to Shea, according to two people familiar with the move. A Justice Department official said Wednesday that the office next to Shea’s had already been vacated.
One week later, they faced a dilemma when the four career prosecutors working on the Stone case proposed recommending a sentence of seven to nine years, in line with nonbinding federal sentencing guidelines.
On Monday, several people familiar with the matter said, Shea told the prosecutors that he wanted a lower sentence, reminding them that they had discretion to deviate from the guidelines. But three of the four prosecutors threatened to quit the case, so Shea acquiesced until Barr and the deputy attorney general, Jeffrey A. Rosen, overruled him Tuesday.
It was unclear how much Shea told his superiors about the final recommendation before it was filed, but department officials maintained they were not given adequate information.
At the same time, Trump withdrew Liu’s nomination for the Treasury post. Mnuchin told a Senate committee Wednesday that he learned about the decision Monday but declined to elaborate.
Morale sank inside the Washington office after the intervention on the Stone sentencing, and some prosecutors expressed skepticism that senior Justice Department officials were not adequately warned about the recommendation.
On Wednesday night, Shea told staff members that he respected their work and vowed to “do my best” to support it, according to an email he wrote to the office that was reviewed by The New York Times.
The House Judiciary Committee announced Wednesday that Barr had agreed to testify on March 31.
This is not the first time during the Trump administration that prosecutors were asked to engage in politically charged work.
Rod Rosenstein, the former deputy attorney general, asked every U.S. Attorney’s Office to provide up to three federal prosecutors to help review documents in support of the Supreme Court nomination of Justice Brett Kavanaugh in 2018. The request seemed like an unusual insertion of politics into federal law enforcement, current prosecutors said.
Soon after he was sworn in last February, Barr inserted himself into politically charged investigations, seeking information in particular from the U.S. Attorney’s Office for the Southern District of New York about cases involving the administration, according to people briefed on the matter. His interest was not unheard-of; prosecutors typically update Washington about high-profile cases.
In the weeks that followed, prosecutors briefed him on at least two politically delicate matters, including an investigation into a suspicious donation to a pro-Trump fundraising committee. That investigation ultimately led to criminal campaign finance charges last year against two associates of Trump’s personal lawyer Rudy Giuliani.
The prosecutors also briefed Barr on their long-running investigation into hush payments during the 2016 campaign to two women who said they had affairs with Trump, the people said. While Trump’s longtime fixer, Michael Cohen, had already pleaded guilty to campaign finance violations for his role in those payments by then, prosecutors were still investigating whether the role of executives at Trump’s family business obstructed the investigation.
At one point during discussions about the scope of campaign finance laws, Barr essentially questioned the legal theory behind Cohen’s case, one of the people said. He also questioned whether such cases could be prosecuted civilly, rather than criminally.
Barr did not pressure the prosecutors to walk away from the investigation into the president’s company, the person said. Although prosecutors concluded the investigation without additional charges, there is no indication that Barr meddled in the outcome.
The Washington office is grappling with a number of other politically charged cases, including investigations into whether former FBI director James Comey leaked classified information to reporters, and whether his former deputy Andrew McCabe misled an inspector general. The office is also handling the sentencing of Michael Flynn, Trump’s former national security adviser.
The president has complained that Comey and McCabe have not been charged and that Flynn was mistreated. Stone has become a particular focus in recent days, in part because of Tucker Carlson, a Fox News host and longtime friend of Stone’s who has been talking frequently on his show about the case.
“Tucker Carlson has been willing to use his stature and prominence to advocate on behalf of his friend Roger Stone to argue substantively against the arbitrary and selective mistreatment that the Office of Special Counsel has directed against Mr. Stone,” said Sam Nunberg, one of Trump’s early political advisers.
The president made clear he agreed, and now the Justice Department has responded.