A highly anticipated forthcoming report from U.S. Attorney John Durham on the origins of the Trump-Russia investigation won’t trigger a Justice Department policy against interference in the 2020 presidential race, so the review could be released in the weeks leading up to the November election, Attorney General William Barr indicated to Congress Tuesday.
“I will be very careful. I know what Justice Department policy is,” Barr said during a long-awaited appearance before the House Judiciary Committee. “Any report will be, in my judgment, not one that is covered by the policy and would disrupt the election.”
When asked directly by Rep. Debbie Murcasel-Powell (D-Fla.) whether he would commit to not releasing a report from Durham between now and November, the attorney general flatly declined.
“No,” Barr replied.
In an interview last month with Fox Business Network, Barr said he hoped for some action from Durham this summer, but suggested the coronavirus pandemic had complicated Durham’s work.
“In terms of the future of Durham’s investigation, he’s pressing ahead as hard as he can, and I expect that we will have some developments, hopefully before the end of the summer,” Barr said then.
The Justice Department has historically sought to avoid taking overt investigative steps that could roil an election in the 60 days before Election Day. However, the policy has largely been an informal one, marked by generalized warnings not to take steps that could have political fallout, but no outright ban.
Just weeks before Election Day in 2016, for instance, then FBI director James Comey informed Congress that the bureau was reviewing a newly discovered batch of emails from Hillary Clinton, the Democratic nominee. Though the review did not ultimately alter the FBI’s view that Clinton should not be prosecuted, Democrats widely blame Comey for re-injecting the email issue into the final stretch of the campaign in contravention of DOJ policy.
Barr’s remarks during the House hearing suggest he is taking a narrow view of that policy and may view it as only applicable to investigative steps leading to possible prosecution, not to an investigative report that could have a major impact on the campaign but doesn’t accuse any candidate of wrongdoing.
During the exchange with Murcasel-Powell, Barr referenced a statement he made in May, throwing cold water on the expectations some Republicans had raised that Durham’s report could lead to criminal indictments of top Democratic figures like President Barack Obama and Vice President Joe Biden—the expected Democratic presidential nominee this fall.
“Whatever their level of involvement, based on the information I have today, I don’t expect Mr. Durham’s work will lead to a criminal investigation of either man. Our concern over potential criminality is focused on others,” Barr told a news conference then.
In February, Barr issued a memo requiring high-level approvals at the Justice Department before any investigations are opened into presidential or vice presidential candidates, campaigns or their top advisers, as well as House and Senate candidates. The memo was at least in part a response to a Justice Department inspector general review that found investigations into Trump campaign advisers and aides had been opened by the FBI without approval from or immediate notification to Justice Department headquarters—something that was not formally required at the time.
Barr’s February memo says it should be “broadly construed,” but it is not clear whether it covers something like the investigative report Durham is believed to be preparing. Such reports are not common at the federal level, although prosecutors have sometimes explained why no charges were filed in high-profile cases. In any event, Barr’s memo doesn’t prohibit announcements that could upend an election. The directive is largely aimed at ensuring such events don’t catch senior DOJ officials by surprise and Barr has made clear that he’s closely monitoring Durham’s work.
Barr tapped Durham in May 2019 to look into issues related to how the investigation into Russian interference in the 2016 presidential race began and the decisions to focus on various Trump allies. Durham is also known to have received referrals of potential criminal conduct DOJ Inspector General Michael Horowitz found during the review he released last December of Foreign Intelligence Surveillance Act applications related to Trump adviser Carter Page. Officials have said Durham has used a grand jury to gather evidence, but it is unclear whether any direct witnesses to the events have been called to testify.
Some Trump backers have predicted the Durham probe will deliver a thunderclap that could upend the presidential race, but Barr has seemed at times to downplay those predictions. The lack of news in recent months about Durham’s progress has led Republicans to express frustration, even at the House hearing Tuesday.
“It’s been slow,” complained Rep. Doug Collins of Georgia, who is running for Senate there. “I think the Durham investigation is something most of us were waiting for.”
But when Collins pressed for details on whether any FBI officials or others were cooperating with Durham’s probe, Barr demurred. “I cannot
get into that,” he said.
During the five-hour-long hearing, Barr said some of the decisions he has made have been beneficial for Biden, including a move to insist that all new investigations related to Ukraine be approved by the U.S. Attorney’s Office in Brooklyn, N.Y.
Republicans, including Trump, have accused the former vice president of corruption for his dealings relating to Ukraine. No evidence has emerged of wrongdoing on Biden’s part, but his son Hunter has said it was a mistake for him to take a lucrative board post with a Ukrainian company while his father was president.
At the hearing, Rep. Joe Neguse (D-Col.) suggested Barr was centralizing handling of the Ukraine probes to settle political scores, but the attorney general insisted that was not the reason.
“That is a vetting process. … It was cautionary, so that we do not pollute the criminal investigative process with Ukrainian disinformation,” Barr said. “We face a problem with Ukraine which is unreliable information coming in. There’s a lot of corruption there. It’s a hall of mirrors. And I wanted to make sure that before we got into criminal proceedings—and this was to everyone’s benefit, particularly Vice President Biden—that the information was scrubbed in conjunction with the intelligence community."