Bill Barr Is Running an October-Surprise Factory at Justice

By Chris Smith, Vanity Fair

12 July 20

The attorney general’s probe of the Russia probes will inevitably arrive in the midst of campaign season—just one small detail of the Justice Department’s ugly politicization under Barr.

he “October surprise” is the Bigfoot of presidential politics—much rumored, rarely seen. Secretary of State Henry Kissinger’s announcement, 12 days before election day 1972, that “peace is at hand” in the Vietnam War comes closest to fitting the profile of a late-breaking, calculated, election-influencing ploy, though President Richard Nixon hardly needed the help against Senator George McGovern. Ever since, speculating on an October surprise has been a quadrennial media ritual, much like chatter about the possibility of a brokered convention.

This year’s version will be a Bill Barr production. In May 2019, the attorney general brought in John Durham, the U.S. attorney in Connecticut, to examine the origins of the FBI’s investigation into Russian interference in the 2016 presidential election. Robert Mueller’s report documented ample reasons for the FBI to have opened a probe; Michael Horowitz, the Department of Justice inspector general, declared that the investigation was justified, though he identified FBI procedural errors. None of which seems to have shaken Barr’s longstanding view that the whole Russia thing was a politically motivated conspiracy, so he assigned Durham to find the real facts.

Perhaps new revelations exist. Perhaps the right’s feverish wish to see former FBI director James Comey indicted will finally be granted. Whatever Durham has found now seems likely to be unveiled—coincidentally, of course—in the run-up to this November’s presidential vote. “The DOJ inspector general identified mistakes in the revised applications for surveillance warrants, so an agent or attorney who was involved in that probably needs a good lawyer,” says Renato Mariotti, a former federal prosecutor who has followed the Russia case closely. “Based on what we know now, the Comey stuff is pretty weak, for a lot of reasons. I’ve seen some creative thinking by right-wingers that the memos Comey wrote about his meetings with Trump that ended up leaking are government property, so Comey should be prosecuted for theft. You’re never going to get a conviction on that. If he writes up his fantasy football draft on the office computer, is that government property? Come on.”

Even if Durham’s work does not result in major criminal prosecutions, he and Barr are expected to issue a report asserting their conclusions—something that would break with DOJ precedent, but be completely in character with Barr’s politicization of the department. The attorney general’s attempt to intervene in the sentencing of Roger Stone and Barr’s firing of U.S. Attorney Geoffrey Berman, head of the Southern District of New York, are only his latest high-profile moves to bend Justice in Trump’s favor.

“Barr has a quite inappropriate policy of regularly having people he especially trusts for some reason handling special issues,” says Donald Ayer, who was a deputy attorney general under President George H.W. Bush, a job in which Ayer supervised Barr, who was then head of the DOJ’s Office of Legal Counsel. “He has people come in and second-guess the career lawyers and sometimes decide they’ve really screwed up. Having somebody higher up look at a case and say, ‘No, I don’t think so,’ that’s fine. But having recurrent ad hoc processes, new review levels that didn’t exist before, that’s a problem. For instance, there’s a person or a group of people who are receiving whatever intake there is from Rudy Giuliani, instead of whoever normally takes such complaints or information. I have not spoken with anyone who is in the department now. But I have spoken with a couple of people who have been there recently, and been in positions to know, who have said that morale is just horrible. That’s p

Erica Newland joined the DOJ’s Office of Legal Counsel as an attorney adviser in 2016, during the Obama administration, and left in November 2018, when Jeff Sessions was still attorney general. Things have not improved under Barr. “OLC seems to have abandoned any pretense of impartiality or any pretense of a commitment to the rule-of-law notion that you have to treat like cases alike,” Newland says. “I was really surprised to see the strong language in the June 26 executive order on monuments. It sounded more like a barn burner political speech rather than something with the imprimatur of the country’s top lawyers. I think there has been a radical reorientation of what the office’s purpose is and what the purpose of the attorneys who work there is. Bill Barr has articulated a view of the president as king, and so loyalty is to this president rather than to the Constitution, which is the oath we all take. Phenomenon number two is a culture of fear that has permeated the department since Trump came into office. Fear of the president’s tweets—people saw Bruce Ohr and Andy McCabe having their professional lives destroyed, and that had a strong silencing effect.”

A last-minute rescue of Trump’s reelection chances would far outstrip all of Barr’s previous actions. But even without knowing the results of the Durham investigation, the damage already done to the DOJ’s credibility has been deep and wide.