WASHINGTON — At the end of August, when two top intelligence officials asked a Justice Department lawyer whether a whistleblower’s complaint should be forwarded to Congress, they were told no, Attorney General William Barr and his department could handle the criminal referral against the president of the United States.
About four weeks later, the department rendered its judgment: President Donald Trump had not violated campaign finance laws when he urged Ukraine’s president to work with Barr to investigate a political rival, former Vice President Joe Biden.
The very same evidence, a reconstructed transcript of a July call between Trump and Volodymyr Zelenskiy, has whipped Washington into an impeachment crisis in a matter of days.
The sharply different responses to the call’s reconstruction, released by the White House on Wednesday, has helped further the perception that Trump regards Barr not as the nation’s highest law enforcement officer but as his political ally and legal protector.
After congressional intelligence committees examined the full whistleblower complaint Wednesday afternoon, the House Intelligence Committee chairman, Rep. Adam Schiff, D-Calif., said, “The idea that the Department of Justice would have intervened to prevent it from getting to Congress throws the leadership of the department into further ill repute.”
Trump has long said that the attorney general should shield him, the way he believed Robert F. Kennedy protected his brother President John F. Kennedy, and Eric Holder protected President Barack Obama. He has told White House aides that he wants an attorney general who would be his Roy Cohn, referring to his onetime personal lawyer and fixer who once did the bidding of Sen. Joe McCarthy.
The rough transcript showed that Trump believes he has that man. In a single sentence during the call with Ukraine’s leader, Trump said that he would have Rudy Giuliani, his personal lawyer, and Barr reach out to help further an investigation of Biden and his son, Hunter Biden, who had served on the board of a Ukrainian corporation.
“I will have Mr. Giuliani give you a call, and I am also going to have Attorney General Barr call, and we will get to the bottom of it,” Trump said.
A Justice Department official said that Barr had no knowledge of the call until the director of national intelligence and the intelligence community’s inspector general sent the department the whistleblower’s criminal referral late last month, and that Trump has not spoken with the attorney general “about having Ukraine investigate anything relating to former Vice President Biden or his son.”
Trump has not asked Barr to contact Ukraine for any reason, Barr has not communicated with Ukraine on any topic, and Barr has not spoken with Giuliani about the president’s phone call “or anything relating to Ukraine,” a Justice Department spokeswoman, Kerri Kupec, said in a statement.
But the department’s involvement in the case has been overwhelmingly positive for Trump. Not only did the department advise the acting director of national intelligence, Joseph Maguire, to keep the whistleblower complaint from Congress, it unequivocally ruled out the possibility of criminal conduct on the part of the president.
That outcome was in keeping with other determinations that have come out of the Justice Department regarding Trump. Time and again, department lawyers have said the president had not engaged in criminal or unethical behavior, whether it was potentially obstructing the investigation of special counsel Robert Mueller, or criminally conspiring with Moscow as Russian intelligence agents tried to sway the 2016 election to Trump.
Critics accused Barr of placing partisan politics over the rule of law when he released what he said was a summary of Mueller’s findings after a nearly two-year investigation of Russian election interference. Barr emphasized the special counsel’s determination that there was not enough evidence to show the Trump campaign had conspired with Russia, even though Mueller had said the campaign welcomed Russia’s help. And when Mueller declined to determine whether the president obstructed justice, Barr decided for him: He cleared Trump of the crime.
Barr’s defenders said he is being judged unfairly. He was under no obligation to release Mueller’s report, which even in redacted form contained hundreds of pages of damning information about a person who was not charged with a crime.
In the case of the Ukraine call, a criminal charge against the president was a far higher legal bar than the Constitution’s “high crimes and misdemeanors” bar for impeachment, which could mean pretty much whatever Congress wants it to mean.
Since the Mueller report was publicly released, Barr has been involved in the day-to-day work of the department, traveling to U.S. attorneys’s offices, meeting with local law enforcement and taking part in issues of importance to the White House like gun legislation and the carrying out of the president’s criminal justice reform law. He has also been intimately involved in the inquiry into the death of accused sex trafficker Jeffrey Epstein.
But Barr is also closely overseeing a review of the intelligence community’s decision to start a counterintelligence investigation into the Trump campaign during the 2016 election, which is being led by John Durham, the U.S. attorney in Connecticut. As part of that review, Durham is exploring what role, if any, a number of countries including Ukraine played in the investigation of the Trump campaign.
“While the attorney general has yet to contact Ukraine in connection with this investigation, certain Ukrainians who are not members of the government have volunteered information to Mr. Durham, which he is evaluating,” Kupec said.
In the case of the Ukraine call, the Justice Department’s Office of Legal Council determined early this month that the whistleblower complaint should not be shared with Congress’ intelligence committees because it did not flag intelligence-related activities. Rather, it should be referred to the Justice Department as a possible violation of campaign finance law.
Barr was not involved in the Justice Department’s review, which was overseen by the deputy attorney general, Jeffrey Rosen. It was led by the department’s criminal division and conducted by career prosecutors from the division’s public integrity section and the national security division.
Last week, the criminal division concluded that there were no legal grounds for a criminal investigation into Trump’s behavior.
“All relevant components of the department agreed with this legal conclusion, and the department has concluded the matter,” Kupec said.
In coming to that conclusion, the Justice Department said the whistleblower did not have firsthand knowledge of the call, and the intelligence community’s inspector general had said the whistleblower could be politically biased. But senior department officials said their determination was based on the reconstructed transcript, not those other factors.
They did not interview the participants on the call, which they are not obliged to do unless they open a criminal investigation. And they did not consider a Justice Department opinion that a sitting president cannot be indicted.
“The Justice Department has not always taken the most aggressive reading of these kinds of campaign finance restrictions,” said Stephen Vladeck, a law professor at the University of Texas at Austin. “But that ought not cloud the obvious point that what the president did was wrong.”