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William Barr’s abrupt move to leave his post as attorney general this week has spurred fears among Department of Justice veterans that Donald Trump will put new pressures on Barr’s successor to do him big and potentially risky political and legal favors.
Former justice department officials say they are worried Trump will lean on Barr’s less experienced successor, the acting attorney general, Jeffrey Rosen, to push policies which Trump has suggested he backs, including naming special counsels to investigate President-elect Joe Biden’s son, Hunter Biden, and using the DoJ to investigate Trump’s baseless charges of widespread election fraud.
Critics also fear Rosen could face pressure from Trump to help obtain a legal opinion that would allow Trump to pardon himself by reversing a justice department opinion that dates back to the Nixon era and bars a presidential self-pardon. Such a move would probably trigger widespread outrage.
Mounting concerns that Trump will try to squeeze favors from Rosen, who became Barr’s deputy AG in early 2019 without previous DoJ experience, stem partly from Trump’s post-election anger at Barr, despite being arguably his strongest cabinet ally in the run-up to the November election
But after losing to Biden, Trump has become furious at Barr for not publicly disclosing that Hunter Biden’s taxes were being looked at by a US attorney in Delaware during the 2020 campaign. Trump was also livid over Barr’s statement that there was no sign of significant voting fraud in the elections.
At his last press conference on Monday, Barr said he had no intention of naming a special counsel to look into Hunter Biden, or to investigate Trump’s baseless claims of widespread voting fraud.
Attorneys general are authorized to name special counsels and last week the Associated Press reported that Trump has floated the idea of tapping conspiracist and lawyer Sidney Powell, who Trump met with at least twice recently to discuss far-fetched election fraud claims, as a special counsel to investigate bogus claims the election was rigged.
Paul Rosenzweig, a former prosecutor under Ken Starr when he was a special counsel investigating President Bill Clinton, said Barr’s departure after heavy criticism by Trump seems to signal that Trump wants a “more malleable leader at the head of DoJ – one who will not resist his last-minute aberrations”.
“There are many things we might expect Trump to order the department to do in the waning days of his presidency,” Rosenzweig said. “Most likely, is the appointment of a special counsel to probe Hunter Biden. Another is a new Office of Legal Counsel (OLC) opinion, reversing the Nixon-era decision that presidential self-pardons are illegal.”
Rosenzweig added it remains to be seen if Rosen “is as malleable as Trump hopes he will be”.
Before becoming Barr’s deputy attorney general, Rosen had been the transportation department’s deputy secretary, and spent many years doing corporate legal work at Kirkland & Ellis where Barr used to work.
The former DoJ inspector general Michael Bromwich foresees Trump trying to pressure Rosen to do him favors, but urged Rosen to ignore Trump’s pleas, noting that Trump may act on his own too in some matters.
“I don’t think we can fully imagine the range of inappropriate actions Rosen could be asked to undertake,” Bromwich said. “Unlike Barr, Rosen is an unknown and enigmatic figure to the outside world, with no reputation outside the narrow circle of people he has worked with. I doubt that he wants his legacy to be kowtowing to the whims of a president who has taken leave of his senses.”
Some Trump prodding of Rosen would be hard to pull off, and Trump might just turn for advice to his legal allies, Bromwich added.
“I don’t think an OLC opinion on the issue of self-pardon would be worth the exercise for anyone. If it were to conclude that a self-pardon is constitutional, it would be dismissed as a coerced opinion and would further degrade the reputation of OLC,” Bromwich said.
“I doubt whether he [Trump] will feel the need to obtain such an opinion. He will choose instead to rely on the legal advice of Rudy Giuliani, Sidney Powell, and the rest of the legal misfits he has surrounded himself with.”
“If I were Rosen, I would change my phone number and go on an extended vacation,” Bromwich said. “If that’s not possible, he should make it clear that he won’t do anything that violates his oath to the constitution, or his fundamental sense of right and wrong.”
Other DoJ veterans add that any Trump pressures on Rosen to name special counsels to investigate Hunter Biden or unfounded charges of major election fraud had a good chance of being overturned by Biden’s AG given Barr’s statements rejecting the need for them.
Paul Pelletier, a former acting chief of the DoJ fraud section in two administrations, said any of Biden’s reported candidates for AG would have the power to remove a special counsel for “good cause”, including “obviously politically motivated investigations”.
Besides pressing Rosen for favors, ex-DoJ hands say that Trump’s own actions involving potential pardons of family members and political allies, which Trump is said to be weighing on top of others he made this week, could create legal headaches for him after he leaves office.
Some pardons might lead to charges of obstruction of justice, or spur incriminating testimony in investigations of Trump and his business by two New York prosecutors when he departs.
Barr noted at his 2019 confirmation hearing that a president’s broad powers to pardon carry risks. While presidents have the right to pardon family members, Barr said that if a pardon to a family member is “connected to some act that violates an obstruction statute, it could be obstruction”.
Donald Ayer, who was deputy AG under George HW Bush, noted that Trump might need to consider that some pardons “could boomerang. He may have reason for concern that people he pardoned will be compelled to testify, since once pardoned, and perhaps given some further modest grant of immunity, the people he pardons will have no right to refuse to testify against Trump or anyone else based on the fifth amendment.”