Donald Trump lashed out Thursday at U.S. Attorney General William Barr for not doing more to prosecute his political enemies, including arresting Obama-era officials who the president accuses — without evidence — of illegally spying on his 2016 campaign.
Barr has echoed some of Trump’s other election-related allegations, but hasn’t gone as far as the president wants on this one. U.S. attorney John Durham, Barr’s hand-picked prosecutor looking into the so-called spygate allegations, isn’t expected to issue charges or release a report before the election, according to a Justice Department official.
“To be honest, Bill Barr is going to go down as either the greatest attorney general in the history of the country or he’s going to down as a very sad situation,” Trump said in an interview on Fox Business Network. “I said I’m not going to get involved, but I’m going to have to get involved.”
Trump’s attack on Barr came even though the attorney general has been vigorously echoing Trump’s rhetoric on the specter of mass election fraud and vilifying left-wing protesters. Barr has also intervened to help Trump’s allies when they were being prosecuted by the Justice Department and was criticized for misrepresenting the findings of the Russia investigation once it was finished by Special Counsel Robert Mueller. He also has endorsed Trump’s assertion that his 2016 campaign was the victim of improper spying.
The Justice Department declined to comment on Trump’s latest remarks.
“Ordinarily I would have nothing but confidence in DOJ, but I think that DOJ has lost that,” said Barbara McQuade, a former U.S. attorney for the Eastern District of Michigan under the Obama administration. “Barr’s conduct has caused us to be very suspicious of the conduct of DOJ. He has shown himself to be someone who will do whatever it takes to advance the interests of President Trump.”
None of Barr’s recent actions has produced the kind of October surprise that Trump appears to be seeking with his calls for arrests, including of his presidential rival, Democrat Joe Biden. During the 2016 campaign, then-FBI Director James Comey publicly re-opened scrutiny of Hillary Clinton’s email practices in the days before the election, which her campaign believed contributed to her narrow loss to Trump.
Barr supporters push back on claims that the attorney general hasn’t been independent. They point out, for example, that Barr hasn’t brought any charges against Trump’s political enemies, even declining to prosecute Comey following an internal investigation about his handling of classified memos. Barr also has said he doesn’t expect criminal probes of Obama or Biden.
Barr appointed Durham, the U.S. attorney in Connecticut, in May 2019 to lead the investigation into whether FBI and intelligence officials committed crimes when they probed whether Trump or any of his associates were conspiring with Russia to interfere in the 2016 election.
To date, Durham’s investigation has yielded one guilty plea of a former lower-level FBI lawyer who pleaded guilty to alerting one email as part of an application to renew a surveillance warrant on a former Trump campaign aide after Trump had been elected.
Comparatively, the FBI’s Russia probe ultimately led to dozens of indictments, including high-profile figures like Trump’s former campaign manager Paul Manafort, his personal lawyer Michael Cohen and his first national security adviser, Michael Flynn.
Durham has signaled he won’t take major action ahead of the election because of a Justice Department tradition of not doing anything that could affect the voting outcome, according to the current official who asked to remain anonymous speaking about the sensitive matter.
A top prosecutor working for Durham, Nora Dannehy, resigned last month after Barr said he planned to reveal the investigation’s findings before the election. The Hartford Courant newspaper in Connecticut reported that Dannehy quit at least partly out of concern over political pressure to produce a report before the investigative work is done, citing colleagues of the prosecutor it didn’t identify.
In recent weeks, Barr has started picking up on Trump’s rhetoric about voter fraud. Trump and Barr have been making unsubstantiated claims that there’s likely to be mass election fraud due to the widespread use of mail-in ballots.
Barr’s supporters say it’s not unreasonable to anticipate more election fraud this year given the unprecedented use of mail-in ballots.
Trump also has called federal law enforcement officers to be stationed at voting locations and for his supporters to stand watch at polling places, stoking tensions over the risk for violence on Election Day.
Barr’s department has decided to allow prosecutors to make public announcements and take overt investigative steps when it comes to election fraud cases in the days leading up to the presidential vote, breaking with the longstanding tradition of not doing anything that could be seen as affecting the outcome.
The exception is directed at special circumstances when federal personnel, such as postal carriers or military personnel, transport ballots, according to the department.
Department spokesman Matt Lloyd said the move was “simply part of that ongoing process of providing routine guidance regarding election-related matters” and that “no political appointee had any role in directing, preparing or sending this email.”
However, Trump appears to be laying the groundwork to challenge election results if he loses on the basis that there was fraud. Announcements before the election about ballot interference, even if unintentional or minor, could help Trump and his allies build a narrative of large-scale fraud.
Trump falsely claimed during his Thursday interview that “thousands and thousands” of ballots were “thrown into rivers.” He also said he has law enforcement “watching” the Democratic governors of New Mexico and Nevada with regard to the use of mail-in ballots.
Barr and the Justice Department, however, are limited in what can be done with regard to elections, said Justin Levitt, former deputy assistant attorney general for the Civil Rights Division under the Obama administration.
For example, the department can prosecute individuals for election fraud but has no authority to try to stop state and local election officials from counting ballots or throwing out ballots, said Levitt, who is now a constitutional law professor at Loyola Marymount University.
While state and local officials are responsible for running operations at polling places, the Justice Department has traditionally sent hundreds of trained personnel to sites to help deter voter intimidation. Polling sites typically also include representatives from both the Democratic and Republican parties.
The Justice Department officials sent to polling places don’t have the power to stop votes from being cast; their authority is to make sure that legitimate ballots are included, Levitt said.
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