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Simply Amazing: Dirty Loops, "Rock You"

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Barefoot Grin7/09/2020 9:15:55 am PDT

re: #392 Hecuba’s daughter

Haven’t heard anything much recently about Durham. My guess is that if Durham waits till October to try to spring indictments that there will be pushback the like we have never seen. If Durham has an ounce of integrity (unlike Barr who has none), there will be no such indictments

It’s on my mind because I’ve just read a piece in Lawfare co-authored by Jack Goldsmith and Nathaniel Sobel. Here is part of their analysis:

2. Barr’s Role

No contemporary attorney general has, like Barr in the Durham investigation, offered such extended, opinionated, factually unsupported and damning public commentary, naming names and drawing conclusions, about an ongoing investigation that is at least in part a criminal investigation.

Barr’s commentary on the Durham investigation violates several Justice Department rules and norms. The department’s media contacts policy, which applies to “all DOJ personnel,” prohibits “respon[ses] to questions about the existence of an ongoing investigation or comment[s] on its nature or progress before charges are publicly filed.” None of the exceptions, such as for public safety, apply to the Durham investigation. Department regulations also prohibit information disclosure “relating to the circumstances of an … investigation [that] would be highly prejudicial or where the release thereof would serve no law enforcement function, such information should not be made public.” It is hard to see the law enforcement function of Barr’s public commentary.

Barr knows all this. He knows what he is doing is contrary to the rules and traditions of the Justice Department. He knows he is doing reputational harm to people nominally under investigation. He must know that the way he is comporting himself does damage to the department and will make whatever Durham finds more contestable than it otherwise would have been. In short, Barr has acted in ways that foreseeably politicize and damage the investigation that he initiated and has devoted so much time to. The question is: Why?

One possibility is that the evidence Durham has uncovered is objectively so damning that Barr’s commentary cannot delegitimize it. Perhaps, but we doubt it. No matter what problems Durham finds, assuming he finds some, they will be tainted due to the combined behavior of the president (who might not know better and who cannot control himself) and the attorney general (who does know better and can control himself but has chosen not to). If Barr and Durham have an October (or earlier) surprise, Barr’s actions now are diminishing its impact.

Another possibility is that Barr’s judgment is distorted by zeal. He has made clear that he thinks the people who investigated the Trump campaign and transition team were engaged in illegitimate efforts to reverse the outcome of the election. Perhaps he thinks that what happened was so bad, and that the department’s rules and processes were so abused, that he is justified in publicly damning and injuring the participants no matter what. Two wrongs make a right, perhaps, or the ends justify the means. Again, this logic makes little sense, for Barr is only hurting the case he is trying to build. And, if Trump loses in November, Barr is acting in ways that will invite an investigation of the Barr/Durham investigation of the Trump campaign investigation.

A third possibility is that Barr is an out and out partisan hack—a Sean Hannity equivalent operating from the Fifth Floor of the Justice Department to try to fire up the president’s base or give the president other short-term political advantages. This widely held view is difficult to square with Barr’s reputation for probity and establishment credentials, and with his recent description of the prosecution of Trump friend Roger Stone as “righteous,” but it is consistent with other aspects of his behavior and the Department’s (for example, the announcement of the Bash probe of the Flynn unmasking on the Hannity show).

When Durham announces the results of his investigation we will surely have a better sense about which (or which combination) of these three possibilities, or another one, is correct.

lawfareblog.com