For critics, Michael Flynn exoneration raises the question: Has William Barr corrupted the Justice Department?

For critics, Michael Flynn exoneration raises the question: Has William Barr corrupted the Justice Department?
Source: Anna Moneymaker/The New York Times

In the United States, a controversial decision by the Department of Justice (DOJ) regarding a former member of President Donald Trump’s administration has placed a harsh spotlight on its head, Attorney General William Barr.

Barr has been a divisive figure ever since he took on the role, with critics claiming that he has corrupted the independence of his department and twisted it to serve the will of the president.

Barr has remained defiant in the face of this criticism, insisting that in his capacity as attorney general he’s sought to root out the corruption of the previous administration and restore the independence of the DOJ.

Regardless of his intentions, the actions of his department throughout his short tenure as attorney general have given many the impression that he is beholden to the president.

The Michael Flynn controversy

On May 7, the DOJ announced it would drop its case against Michael Flynn, Trump’s first national security advisor and a three-star army general. Flynn was in the role for less than a month before it was learned that he had lied to the FBI regarding his contacts with foreign officials and misled Vice President Mike Pence. He was subsequently fired.

At the time, Trump tweeted that he “had to fire General Flynn because he lied to the Vice President and the FBI. He has pled [sic] guilty to those lies. It is a shame because his actions during the transition were lawful. There was nothing to hide!”

In contrast to Trump’s statement, contemporaneous reporting stated that Flynn had resigned because his actions left him vulnerable to blackmail from Russia.

Not only was Flynn indicted after pleading guilty to lying to the FBI regarding his contact with Russia, it was later learned that he had not disclosed that he had worked as a foreign agent on behalf of Turkey in interactions with the US government.

Despite his confession, Trump supporters, like Fox News host Sean Hannity, insisted that Flynn should fight the charges on the grounds that he had been “set up” by former FBI Director James Comey and deputy director Andrew McCabe.

Now, more than three years after exiting the White House, Flynn has ostensibly been exonerated by the DOJ. This occurred after Barr, who became attorney general in February 2019, ordered a new examination of Flynn’s case and publicly questioned the veracity of the FBI’s Russia investigation, which itself led to Special Counsel Robert Mueller’s investigation.

What is unmasking?

After the DOJ took the unprecedented step of dropping the charges against Flynn, the story became more complicated.

On May 13, the Acting Director of National Intelligence, Richard Grenell, released an “unmasking list” that included numerous Obama administration officials, including Obama and then-Vice President Joe Biden. It immediately stirred up controversy between conservatives and liberals.

An unmasking request is standard practice within the intelligence community and is done when a government official wants to know the identity of an unnamed figure in a secure report.

American names that are caught up in regular intelligence surveillance are redacted or reported as “US Persons.” The reasons for the unmasking requests in Flynn’s case aren’t publicly known, but it appears that Flynn’s communication with the Russian ambassador was flagged (those making the request couldn’t have known it was Flynn until after the unmasking).

Unmasking requests are common, especially under the Trump administration. In 2018, the National Security Agency (NSA) made nearly 17,000 such requests, almost twice the number of requests made in 2017 and 2016.

Regardless, Trump and his supporters have taken Grenell’s released unmasking documents as evidence that the Obama administration was unlawfully spying on Trump’s campaign and his incoming administration during the transition period. These documents are being used by conservatives as evidence that the Obamagate scandal is genuine and that Flynn was the victim of illegal spying and an entrapment scheme by the FBI.

Barr’s DOJ justified the dropping of Flynn’s charges in a memo that stated the initial investigation was illegitimate. It is the view of Flynn’s supporters that his confession was improperly coerced. The memo cited a report by Mary McCord, the former acting assistant attorney general for national security, in stating the investigation had not been conducted legally.

However, on May 10, McCord wrote an op-ed in The New York Times stating that Barr had “twisted” the words of her report and that, in fact, the investigation was warranted. McCord said the report cited disagreements about how to handle the information gleaned from the investigation, but it did not dispute what the investigation had found, namely, that Flynn had lied to the FBI.

Backlash to Barr’s decisions

Since dropping the charges against Flynn, Barr has been widely criticized by members of the press and government officials. Both the editorial boards of The New York Times and The Washington Post have decried Barr’s actions. The Times stated that “In service to Mr. Trump, Mr. Barr is abusing his power not to write, but to erase, some of the most important lessons of American history.”

On May 11, a strongly worded open letter calling on Barr to resign as attorney general, signed by over 2,300 former DOJ and FBI officials from both Democratic and Republican administrations, was released. The letter states that Barr has “assaulted the rule of law” through his actions in the Flynn case. If Barr won’t resign, the writers of the letter demand that Congress “hold the Attorney General accountable.”

Additionally, US District Judge Emmet Sullivan, the federal judge overseeing Flynn’s case, has requested that John Gleeson, a former New York federal judge, put together a case for rejecting the DOJ’s request to drop the charges. It is yet another unusual twist in a case with historic significance.

The defense of Barr

By contrast, Republicans have celebrated Barr’s actions as a corrective to what they viewed as pervasive corruption within the DOJ under Obama.

On Fox News, Republican Senator Ron Johnson, the Senate Homeland Security Committee Chairman, called both Barr and Grenell “heroes” and “patriots” for their actions.

Johnson said the two men “are being unfairly attacked right now, and mercilessly attacked.”

The view of conservative media figures and Republican politicians is that the initial FBI Russia investigation and the resulting Mueller Report were based on false information and partisan maneuvering by the Obama administration.

Throughout his presidency, Trump has called the issue the “Russia hoax” and insisted that there was no basis for any investigation. As attorney general, Barr has publicly voiced his agreement with the president’s view that the US intelligence community’s assessment of Russian interference in the 2016 election was flawed.

Barr as Trump’s attorney general

Barr’s promotion to attorney general, replacing Jeff Session who held the role for the first two years of Trump’s presidency, has been characterized as an effort by Trump to protect himself legally.

Within months of taking on the role, Barr announced that he was opening an investigation into the conduct of the FBI during the 2016 investigation that led to multiple members of Trump’s circle being indicted.

One of the other actions Barr took soon after becoming attorney general was presenting a public summary of the Mueller Report. Barr claimed that the report exonerated Trump, which put him in direct conflict with Mueller, who later testified to Congress that Trump had not been exonerated. Mueller wrote to Barr that the attorney general’s summary “did not fully capture the context, nature, and substance” of his investigation.

As reported by Hill Reporter in 2019, some legal experts were concerned at the time of Barr’s confirmation as attorney general that he appeared to have conflicts of interest. His time in the private sector had involved associations with Russian companies. These legal experts believed that this was enough of a reason for him to recuse himself from overseeing the Mueller investigation, which Barr did not do.

Barr also experienced backlash earlier this year when the DOJ stepped in to reduce the sentence of Roger Stone, a former Trump campaign member who was convicted of obstructing a congressional investigation.

Critics deemed the action of the DOJ as subservient to Trump, who had taken to Twitter to call Stone’s initially recommended nine-year sentence “horrible and very unfair.” After the DOJ asked for a reduced sentence, all four DOJ lawyers who had prosecuted the case resigned in protest.

Barr claimed that he had not sought a reduced sentence for Stone at the request of Trump. Nonetheless, the attorney general was summoned to testify about the case before the House Judiciary Committee on March 31, 2020. Due to the COVID-19 outbreak, Barr’s testimony has been indefinitely postponed.

Reports at the time claimed that Barr was privately considering resigning as attorney general because Trump’s frequent activity on Twitter made it “impossible” for him to do his job. However, Barr has not publicly made any indication that he intends to resign.

The appearance of independence

In response to the reduction of Stone’s sentence, journalist Virginia Heffernan wrote in the Los Angeles Times that Barr and Trump had “massacred the independence of the Justice Department.”

Heffernan’s argument – that Barr had undermined the DOJ’s ability to impartially mete out justice by bending to Trump’s will – has been echoed by writers for The New York Times, Slate and GQ, among others.

“Donald Trump doesn’t understand that the DOJ isn’t his personal law firm,” journalist Dahlia Lithwick wrote for Slate in February. “Bill Barr scored his job as attorney general in no small part by insisting that this is precisely what the Justice Department should be, and in the post, Barr has done his best to deliver precisely the Justice Department his boss believes to be his due.”

Kevin M. Kruse, an American professor of history at Princeton University and a popular critic of Trump’s, has castigated Barr on Twitter for his alleged corruption of the DOJ. On April 18, 2019, amid the furor over the Mueller Report summary, Kruse tweeted, “I’d like to congratulate Bill Barr on securing his spot alongside the Worst Attorneys General in American History.

After learning of the DOJ’s dropping of charges against Flynn, Kruse negatively compared Barr to two of the country’s most notoriously corrupt attorneys general: John N. Mitchell, who went to jail for his involvement in President Richard Nixon’s Watergate scandal, and Harry Daugherty, the attorney general under President Warren Harding, who was directly involved in the Teapot Dome scandal.

Bill Clinton and Loretta Lynch meeting

Whether Barr is truly independent or is obeying the commands of the president, his close relationship with Trump is still difficult to defend when compared to the conservative uproar following former-Democratic President Bill Clinton’s 2016 meeting with then-Attorney General Loretta Lynch.

Clinton and Lynch had a brief 30-minute meeting on an airplane at Sky Harbor Airport in Phoenix, Arizona. At the time, the former president’s wife, Hillary Clinton, was facing persistent claims that she had broken the law in setting up a private email server while secretary of state. Bill Clinton stated that the meeting with the attorney general was unrelated to that investigation but acknowledged how it could appear improper.

Trump, who at the time was locked in a close presidential election with Hillary, tweeted of the meeting, “Does anybody really believe that Bill Clinton and the U.S.A.G. talked only about ‘grandkids’ and golf for 37 minutes in plane on tarmac?”

Even Democrats criticized Clinton after his brief meeting with Lynch. There has not been a similar bipartisan outcry in the wake of Trump and Barr’s close association.

Trump’s accusations of impropriety against a rival often reflect negatively on his own actions. A common refrain on Twitter during Trump’s presidency has been “There’s always a tweet.” This is in reference to the phenomenon where, often, something Trump tweeted prior to his presidency appears contradictory or hypocritical in light of something he’s done as president.

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