February 12, 2020, Lincoln's Birthday

The major news story today is the same as yesterday’s: the unprecedented and dangerous politicization of the Department of Justice.

The man at the center of this crisis, Attorney General William Barr, is a proponent of what is called the unitary executive theory. This theory says that the president wields the sole power of the executive branch of government, and cannot be checked by either Congress or the courts. That theory has led him to argue that President George H. W. Bush did not need congressional approval to invade Iraq. Later, he backed Bush’s pardons of the Reagan officials charged in the Iran-contra affair.

That theory apparently has him firmly in Trump’s camp, despite the fact that the Department of Justice, which he oversees, is supposed to be nonpolitical.

So why the sudden crisis? On Monday, February 10, prosecutors in the Justice Department wrote to Judge Amy Berman Jackson to recommend jail time of 7 to 9 years for Trump’s friend and Republican self-proclaimed dirty trickster Roger Stone, whom a jury found guilty of seven counts of lying to Congress and witness tampering during the investigation into Russian interference in the 2016 election. This recommendation fell within standard department guidelines.

In their filing, they outlined the case: Before the 2016 election, Stone repeatedly reached out to Wikileaks “to obtain information… that would help the Trump campaign and harm the campaign of Trump's opponent, Hillary Clinton.” Campaign officials “believed that Stone was providing them with nonpublic information about WikiLeaks' plans. Indeed, [Steve] Bannon viewed Stone as the Trump campaign’s access point to WikiLeaks.” Stone lied to Congress five times, interfering with their Russia investigation, and threatened another witness to try to keep him from exposing Stone’s lies.

The prosecutors noted: "Investigations into election interference concern our national security, the integrity of our democratic processes, and the enforcement of our nation's criminal laws. These are issues of paramount concern to every citizen of the United States. Obstructing such critical investigations thus strikes at the very heart of our American democracy."

Immediately after the sentencing recommendation, though, Trump tweeted that it was “horrible and unfair” and a “miscarriage of justice.” Trump and Stone go way back, and Stone’s business partner Paul Manafort, at loose ends after the Ukraine oligarch whom he had helped to get into the presidency was ousted, joined Trump’s floundering campaign and turned it around.

The Department then reversed itself, saying its own prosecutors had failed to be “reasonable.”

In response, on Tuesday, all four of the federal prosecutors responsible for Roger Stone’s case withdrew: Aaron S.J. Zelinsky, Jonathan Kravis, Adam Jed and Mike Marando. Kravis and Zelinsky resigned from the D.C. US attorney’s office altogether. Zelinsky, who had worked on Special Counsel Robert Mueller’s team, will return to the Baltimore U.S. attorney’s office, from which he had come. (I got these men mixed up yesterday).

This is a huge statement.

Also on Tuesday, the administration abruptly withdrew the nomination of the former U.S. attorney who oversaw the Stone prosecution, Jessie Liu, for a top position in the Treasury Department. Barr had replaced her with Tim Shea, a Trump loyalist, last month. It appears that Barr is hamstringing the Department of Justice to make sure that no one can touch the president.

For his part, Trump is deliberately demonstrating his power over the Justice Department. While some DOJ officials tried to maintain that the call for a lighter sentence for Stone had been in the works for a while, Trump this morning tweeted: “Congratulations to Attorney General Bill Barr for taking charge of a case that was totally out of control and perhaps should not have even been brought. Evidence now clearly shows that the Mueller Scam was improperly brought & tainted. Even Bob Mueller lied to Congress!” (The charge that Mueller lied to Congress is astonishing, and Trump has provided no evidence to back it up.)

This crisis has brought back onto the radar screen Barr’s actions since he took office almost exactly a year ago.

In his confirmation hearing, Senators pressed Barr about his stance on the relationship between the Justice Department and the White House, and he insisted that he would not permit the department to be politicized. Asked explicitly about the investigation of Special Counsel Robert Mueller’s into Russian interference in the 2016 election and possible coordination with the Trump campaign, Barr pledged that he would not impede the investigation and that he would disclose as much as he could of the forthcoming Report. Senators confirmed him by a vote of 54-45 with few senators crossing party lines. He took office on February 14, 2019.

Almost immediately, Barr had to deal with the Mueller Report. On March 22, Barr notified Congress that Mueller’s investigation was complete, and on March 24, he wrote a letter summarizing what the Report said. In his summary, he emphasized the Report’s conclusion that “[T]he investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.” Barr turned that careful statement into an exoneration of the president and his team when, in fact, the Report established first that the Russian government had illegally intervened in the election to benefit Trump, and second, that the campaign “expected it would benefit electorally from information stolen and released through Russian efforts.” Mueller’s team had concluded it could not prove a criminal case, in part because “several individuals affiliated with the Trump Campaign lied to the Office, and to Congress, about their interactions with Russian-affiliated individuals and related matters. Those lies materially impaired the investigation….”

On March 27, Mueller wrote to Barr saying that his letter “did not fully capture the context, nature, and substance” of the Report. On April 18, Barr delivered the Report to the House and Senate Judiciary Committees and promised to make it available to the public. He held a press conference in which he said that Mueller cleared the president of “collusion” with the Russians. (“Collusion” is not a legal term, and Mueller said explicitly that they did not look at it.) Still, Barr emphasized again “the Special Counsel’s report did not find any evidence that members of the Trump campaign or anyone associated with the campaign conspired or coordinated with the Russian government in its hacking operations. In other words, there was no evidence of Trump campaign “collusion” with the Russian government’s hacking.”

Since then, it appears that Barr has worked to consolidate his own control over cases involving Trump or his associates. He appointed his own investigator, John Durham, to try to prove that it was Ukraine, not Russia, that hacked our 2016 election (our intelligence community has established definitively that it was Russia). Also, under him, Senior DOJ officials worked to change the sentencing recommendation for Trump’s former national security advisor Michael Flynn, who pleaded guilty to lying to the FBI. Lev Parnas (who is not a reliable reporter) claims Barr was in on the scheme to pressure Ukraine President Volodymyr Zelensky to smear Joe Biden. And we learned earlier this week that the DOJ has set up a system to receive information from Trump’s lawyer Rudy Giuliani which he insists ties Hunter Biden into a corrupt scheme.

All of this seems a bit in the weeds, but it is a huge red flag for our democracy. If our Department of Justice is corrupted by loyalty to Donald Trump rather than maintaining its traditional loyalty to impartial justice, another pillar of our three branches of government is tottering.

Judge Jackson is scheduled to sentence Stone on February 20.

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Notes:

Unitary executive: https://www.washingtonpost.com/politics/how-william-barr-now-serving-as-a-powerful-ally-for-trump-has-championed-presidential-powers/2019/05/14/418fe6d4-727f-11e9-9eb4-0828f5389013_story.html

Barr: https://www.washingtonpost.com/politics/how-william-barr-now-serving-as-a-powerful-ally-for-trump-has-championed-presidential-powers/2019/05/14/418fe6d4-727f-11e9-9eb4-0828f5389013_story.html

Confirmation vote: https://www.politico.com/interactives/2019/william-barr-senate-confirmation-vote-count/

7-9 years: https://www.cnn.com/2020/02/10/politics/federal-prosecutors-roger-stone-sentencing/index.html

https://www.cnn.com/2020/02/10/politics/read-prosecutors-ask-for-7-to-9-years-in-prison-for-roger-stone/index.html

https://www.cnn.com/2020/02/11/politics/roger-stone-sentencing-justice-department/index.html

https://www.cnn.com/2020/02/11/politics/roger-stone-sentencing-justice-department/index.html

https://www.nbcnews.com/politics/justice-department/barr-takes-control-legal-matters-interest-trump-including-stone-sentencing-n1135231

Barr letter: https://judiciary.house.gov/sites/democrats.judiciary.house.gov/files/documents/ag%20march%2024%202019%20letter%20to%20house%20and%20senate%20judiciary%20committees.pdf

Mueller Report: https://www.justice.gov/storage/report.pdf

Barr’s April 18 press conference. https://qz.com/1598817/william-barrs-full-remarks-on-the-robert-mueller-report/

Barr and Mueller, compared: https://www.justsecurity.org/64441/a-side-by-side-comparison-of-barrs-vs-muellers-statements-about-special-counsel-report/

Liu: https://www.cnn.com/2020/02/11/politics/jesse-liu-treasury-nomination-withdrawn/index.html

Giuliani: https://www.cnn.com/2020/02/10/politics/justice-department-rudy-giuliani-ukraine/index.html

Stone and Trump: https://www.theatlantic.com/politics/archive/2019/11/roger-stones-long-history-in-trump-world/581293/