No Durham Report or Indictments before Election Day By Andrew C. McCarthy
https://www.nationalreview.com/2020/10/no-durham-report-or-indictments-before-election-day/
The Justice Department’s decision does not mean there will be no more “Russiagate” disclosures.
A xios is reporting that Attorney General Bill Barr has informed the White House and top Republicans that there will be no report or indictments filed by Connecticut U.S. attorney John Durham prior to the November 3 election. Durham, of course, is the prosecutor Barr assigned to investigate the genesis of the Trump–Russia probe launched during the 2016 campaign by the Obama administration.
The lack of imminent charges or a pre-election narrative report is not surprising to anyone who has watched this saga. The attorney general’s reported decision to alert government officials about it is not surprising in light of President Trump’s recent Twitter barrage, railing about the lack of arrests and prosecutions despite what he describes as “THIS TREASONOUS PLOT.” Indeed, as Axios elaborates, the president, in a Fox Business interview yesterday, complained that he believes Barr has “got all the information he needs” to file charges, yet insists on getting “more, more, more.” The president added that he doesn’t believe more is needed. “To be honest,” Trump huffed, “Bill Barr is going to go down as either the greatest attorney general in the history of the country, or he’s going to go down as, you now, a very sad situation.”
For what it’s worth, at the risk of belaboring an argument I’ve long made (most recently in a column at The Hill yesterday), many things that are in the nature of abuse-of-power simply are not violations of the criminal code. That worked to the president’s advantage during the Ukraine kerfuffle, as Democrats struggled in vain to turn his pressure on an ally for domestic political advantage into a crime. But it also applies to abuse of the executive branch’s investigative discretion. Trump’s own invocation of “treason,” which quite obviously does not apply, illustrates the difficulty of finding a penal code provision that fits the abuses of power at issue. Executive officials have vast discretion in opening investigations, especially when a foreign power is involved. It is very easy to spot overreach; it’s very hard to prove beyond a reasonable doubt that the overreach was criminal corruption.
Six other points.
- As I’ve been saying since shortly after we learned of Durham’s appointment, the longer his investigation stretched into 2020, the more difficult — if not practically impossible — it would be to announce anything prior to the election. The Justice Department has obviously put a lot of work into what it has always maintained is a good-faith investigation. It does not want that work excoriated as a political campaign stunt. Durham has a well-founded reputation, earned in big assignments under administrations of both parties, as a straight-arrow who does not factor politics into the exercise of prosecutorial discretion.
- Durham got unlucky: In February/March, the coronavirus pandemic shut down grand juries. For weeks, it was impossible to travel to conduct critical witness interviews. A prosecutor can’t effectively interview key players by Zoom or telephone. You have to get in a room with them, show them documents, and look them in the eye.
- Barr says Durham is working methodically to try to build cases. If you’re doing serious prosecutions, you can’t indict until a case is so ready you could go to trial. Recall Special Counsel Robert Mueller’s indictment of Russian businesses. When it was unexpectedly challenged by an indicted business that demanded its day in court, the case fell apart, and the Justice Department had to dismiss it to avoid further embarrassment. That’s what happens when an indictment is more like a press release than the result of a criminal investigation that diligently nails down all the loose ends.
- Regardless of whether Durham files indictments, Barr has long indicated there is going to be a narrative report. The Justice Department does not ordinarily publish the evidence against uncharged people, though it is certainly legitimate to publish a report on government misconduct, particularly if DOJ itself is implicated. DOJ’s inspector General routinely does that. There would be tremendous controversy if a report on Obama-administration misconduct were released right before an election in which Obama’s vice president is the Democratic Party candidate. Barr is patently mindful of the condemnation that came former FBI director Comey’s way when, under no obligation to do so, he publicly reopened the criminal investigation of Hillary Clinton just days before the 2016 election.
- Another major criticism of the Clinton emails investigation was that the FBI and DOJ factored the election calendar into the investigative judgment to close the investigation — doing so by Comey’s highly irregular press conference in early July 2016, which seemingly got Mrs. Clinton out from under in time for her formal nomination at the Democratic convention three weeks later.
- The Justice Department’s decision does not mean there will be no more “Russiagate” disclosures. DOJ and the Office of the Director of National Intelligence have been pushed by Senator Lindsey Graham’s Judiciary Committee investigation of FISA abuse, as well as Senator Ron Johnson’s Homeland Security Committee investigation into other aspects of the Trump–Russia probe, to declassify and disclose important information. There have been significant disclosures in the last three weeks, and I expect that will continue.
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