This chapter assesses how a new administration should think about investigation of and accountability for the outgoing administration. This is a growing problem in the U.S. legal system, and one that is sure to be front and center once Trump leaves office. Our analysis focuses on two different ways that an administration might examine the actions in office of senior executive branch officials of the prior administration. The first concerns an investigation and possible prosecution, or pardon, of a former president for acts committed in office. The second focuses on the new administration’s investigation of the counterintelligence or criminal investigations conducted by a prior administration. This occurred with Attorney General William Barr’s broad investigation of the investigation of the Trump campaign, and it may arise in a different guise once Trump leaves office.
What a new administration should do in these contexts raises thorny issues about how to ensure executive branch accountability, legitimate law enforcement, and peaceful and legitimate transfers of power in a democracy.
A Pardon for Trump?
Donald Trump’s presidency has been shadowed from the very beginning by charges, investigations, and prosecutions that—in one way or another, directly or indirectly—raise questions about his potential liability for violations of federal and state law. Most prominent is the report of Special Counsel Robert Mueller, who considered at length whether the president committed obstruction of justice in the course of the Russia investigation. Mueller declined to “exonerate” the president but also refused to reach a definitive conclusion. Attorney General Barr resolved the issue in the president’s favor, but the next presidential administration could revisit it.
Moreover, Trump may face other inquiries into possible obstruction. His former national security adviser, John Bolton, has claimed that Trump appeared to engage in “obstruction of justice as a way of life.” [430] Bolton suggests that the Trump impeachment inquiry missed additional episodes of obstruction that arose out of promises made to foreign leaders to intervene in the criminal enforcement process to protect banks or businesses under investigation. As of late July 2020, Congress was preparing to investigate the allegations, and a new administration may also do so.
In addition, the U.S. attorney for the Southern District of New York has an ongoing investigation that has already resulted in the conviction and imprisonment of the president’s former lawyer and close aide, Michael Cohen, for campaign finance violations committed in connection with “hush money” payments to women with whom the president was allegedly involved. Court filings in that case identify the president as “Individual No. 1” who, as Cohen has also testified, directed his lawyer’s actions. Once Trump leaves office, he loses the immunity from prosecution for federal crimes conferred on sitting presidents by standing Office of Legal Counsel opinions and is clearly exposed to potential indictment in that case.
The disposition of these matters became a recurring topic of debate on the Democratic side in 2020. During the presidential primary campaign, Senator Elizabeth Warren pledged that, if elected, she would establish an independent task force within the Department of Justice to “investigate violations of specific anti-corruption and public integrity laws during the Trump administration, with independent authority to pursue any substantiated violations.” [431] Another candidate, eventual nominee for vice president Senator Kamala Harris, when asked if prosecutors in the next administration should bring a case against Trump, said, “I believe that they would have no choice and that they should, yes.” [432] Former Vice President Biden, now the Democratic nominee for president, offered that he would give his Justice Department no specific direction but would expect it to decide the president’s legal responsibility on a fully independent basis. It is clear that if Donald Trump loses the election, many Democrats and perhaps others will demand a definitive accounting of the president’s alleged misconduct in office.
In the course of the 2020 presidential primaries, Democratic presidential candidates were pressed on whether, if elected, they would pardon Trump for any federal crimes he may have committed. With one exception, Andrew Yang, all rejected the possibility of any exercise of clemency on the president’s behalf. Yang expressed concern that the United States should not fall into the “very nasty pattern” in some other countries “where a new president ends up throwing the president before them in jail.” [433] But more representative of the class of candidates was Biden. When asked if he would commit not to pardon Trump “under the pretense of healing the nation,” he replied, “I commit.” [434]
If Trump wins the 2020 election, these issues will not be on the table anytime soon, and the issues will likely look different, almost certainly worse, in 2025. But whether Trump loses in 2020 or leaves office at the end of a second term, very hard questions will arise about how his successor in the Oval Office should go about assessing criminal legal liability and a possible pardon of Trump. Rather than lay out one proposal, what follows are what we see as the best cases for two basic approaches: One, favored by Bauer, argues that Trump should face a full investigation as determined by the merits of the matter and that he should not receive a blanket prospective pardon; and the other, favored by Goldsmith, argues for extreme caution in a criminal investigation of a prior president for acts done in office.
The Case for Ensuring That No President
Is—or Appears to Be—Above the Law
Criminal prosecution of an ex-president, especially by a successor who defeated him or her at the polls, is an event without precedent in U.S. history and carries a significant risk of inflaming the already-deep partisan divisions in the country. On the other side is the comparable, if not weightier, risk of establishing a “norm” that president is “above the law.” The president who enjoys immunity while in office on the theory that prosecution would destabilize the government should not also escape accountability after his or her term concludes on the closely related claim that prosecution would then destabilize the country— by creating a public spectacle that would seriously hinder the next administration in refocusing the nation’s attention to major domestic and international issues. One is reminded of the old tale about the sign that reads in bold letters: “Knock Before Entering,” below which is a further command: “Never Knock.”
Any notion of routine clemency for an ex-president’s wrongdoing is problematic for another reason: the “bite-back effect” of encouraging state prosecutorial actions to provide the accountability that the federal government will not. A president can grant clemency only for federal crimes, of course. Depending on the facts and circumstances, state and local prosecutors can pursue investigations under state law. We have seen this in Trump’s case, as the district attorney for New York County has been conducting a vigorous criminal inquiry into the Trump Organization’s finances and allegations that Trump directed the payment of “hush money” on the eve of the 2016 election to cover up extramarital relationships. Any charges or convictions arising out of this investigation, or any other state law investigation, are not subject to a presidential grant of clemency. Of course, these separately tracked investigations can, and might, occur regardless of whether the president issues a pardon for related or other federal offenses. But a “norm” of pardoning ex-presidents might also in some cases generate pressure on state and local prosecutors to rush into the vacuum.
This is not to suggest that all the dangers of the prosecution of an ex-president should be discounted. Prosecutions driven by demands for political retribution, or that seem more an expression of political difference than a vindication of the legal process, are a threat to constitutional government in just the way that Andrew Yang described. Sound prosecutorial judgment and tightly developed and presented cases are essential to dispel to the extent possible any suspicion that the law has been weaponized for political purposes. Essential to achieving these goals is the operation of law enforcement on a fully independent basis, free of partisan influence or pressures.
The same rigor should be brought to the president’s explanation of a decision to pardon, or not pardon, a predecessor. The one experience in our history with this kind of pardon decision was President Gerald Ford’s grant to Richard Nixon of a “full, free, and absolute pardon” for crimes he “has committed or may have committed.” [435] The decision, announced on a Sunday one month after Ford took office, was met with resounding public disapproval at the time. Ford, who had ridden high in the polls after assuming office, suffered the “largest single [poll to poll] drop in history.” [436] Troubled that he had not been informed that the president was considering a pardon, but also strongly objecting on the merits to the decision, the president’s press secretary resigned.
Under this intense criticism, Ford agreed to the exceptional act of explaining this decision in sworn testimony to a House Judiciary subcommittee. At that time, Ford endeavored to meet congressional, press, and public demands that he explain in detail a pardon that was “negotiated in secret, created on advice from [his] inner circle, and given on terms clearly in Nixon’s favor.” [437] Members of Congress specifically demanded to know how the decision was reached, who was consulted, and whether there was a “deal” by which Nixon resigned, elevating Ford to the presidency, in exchange for a pardon.
There was no evidence of a deal, and none has surfaced since. But there were fierce objections to the process by which Ford had concluded he should grant a pardon. At Ford’s direction, White House aides consulted the special Watergate prosecutor on the offenses Nixon may have committed, and the time required to prepare for and conduct a trial. The president surveyed a small group of aides on the wisdom of a pardon but did not seek the views of the attorney general. The consultations extended to Nixon and his lawyer as Ford sought to encourage, but without setting as conditions for a pardon, a statement of contrition and the settlement of an outstanding dispute over ownership and control of Nixon’s White House tapes and records. All of this was conducted in the secrecy on which Ford insisted: “I want no leaks.” [438]
There were two other aspects to this process that caused Ford trouble. First, Ford had testified during his vice presidential confirmation hearings that he would not issue a pardon because the country “wouldn’t stand for it.” [439] Once he became president, he said at a press conference that he would not rule out a pardon. But after noting that “there has been no action by the court ... no action by any jury,” he stated that “until any legal process has been undertaken I think it’s unwise and untimely for me to make any commitment.” [440] But he then issued a pardon in the face of his testimony that he would not—and before Nixon had been charged with any crimes.
Second, Ford’s explanation to the country of his decision roamed over various rationales: the problems for Nixon in securing a fair and speedy trial, concerns about Nixon’s health, the “ugly passions” in the country that a prosecution would unleash, the extent to which Nixon had suffered enough by losing his office, and Ford’s own Christian duty to show “mercy.” [441] It was unclear what relative weight any one or more of these factors carried in the final decision. In the end, it was very much an explanation on the order of “then there was this consideration, and then there was this other,” and the scattershot, unfocused defense of the pardon served primarily to stimulate suspicion that there must have been a real reason—possibly, a “deal.”
Years later, Ford came to enjoy more favorable consideration of the decision. In 2001, the Kennedy family conferred on him a Profile in Courage Award, and Senator Edward Kennedy, a critic of the pardon at the time it was granted, now concluded that Ford had been “right” in making it “possible for us to begin the process of healing and put the tragedy of Watergate behind us.” [442] Kennedy conceded that he was moved to reconsider his views by the “whole impeachment furor” involving Bill Clinton, which “drove from political debate all national and international concerns.”
But it cannot be assumed that all pardons of all presidents in the name of national healing will strike future generations as sound and in the best interests of the polity. In Ford’s case, the pardon may have won over skeptics as the years passed. In another future case, the nature of the offense or offenses, and the particular process by which the pardon is considered and then granted or rejected, will determine whether the public judgment of the president’s decision shifts over time. And there is always the problem of speculating about, but not being able to know, how it all would have turned out if Ford had decided the matter the other way.
The strong, critical reaction to Ford’s pardon, and especially the process by which it was considered and then granted, did not dissipate for years. It damaged Ford’s credibility when he most needed to preserve it after the shock of Watergate sapped trust in government. Close students of the period have concluded that the sour taste it left in the electorate’s mouth “made Jimmy Carter’s victory possible.” [443]
As the Democratic primary debates indicated, a Democratic president who succeeds Trump will be hard-pressed to justify a pardon and perhaps, even after trial and conviction, a commutation. More likely, he or she will face demands to reject any possibility of clemency.
It will likely and plausibly be argued that the Nixon pardon proved disastrous for Ford, more than the electorate could bear, and that by any measure, Trump is even less deserving of consideration for clemency. Nixon lost his bearings completely as he faced the 1972 reelection campaign, and the result was the Watergate scandal. Trump’s presidency has been characterized by a wide range of charges of investigable or illegal conduct from the time of his candidacy throughout the four years that followed. Nixon made every effort to subvert the investigations that brought him down, but in the end, he gave up the damning “smoking gun” tapes. Trump may not have fired Robert Mueller, but he attacked Mueller’s prosecution team ceaselessly, publicly, and recklessly, and he refused to sit for an in-person interview with Mueller and his investigators.
So, those rejecting out-of-hand any consideration of clemency for Donald Trump will argue that if the rule of law means anything, and if any president should have to answer in full to the legal process in order to vindicate the principle that the highest elected and law enforcement official in the land is not “above the law,” it is Donald Trump.
It is impossible to predict what, with the passage of time and the unfolding of events, the next president may do when confronted with a clemency decision of some sort about Trump. A Ford-type pardon, issued virtually upon assuming office, seems highly improbable. Perhaps after years of investigation, trial, and appeals, and in the event of conviction, a Democratic (or even Republican president) might grant some measure of clemency—such as a commutation of sentence, even if the convicted ex-president at an advanced age must serve some time.
What is critically important is that a president making this decision avoid Ford’s fatal error of process. It is on this ground that a president should take a clear and firm stand, setting out in advance the criteria that will be applied and the procedures that will be followed in any such decision. This is essential to a pardon process that is governed by rule-of-law principles.
The component parts of such a process would be built from the following:
The Process
The ex-president should not receive consideration for a pardon until after offenses have been charged.
● The president should have to apply for a pardon or commutation and specify the offenses for which the clemency is sought and the grounds for a grant. It should not become the norm that, by virtue of the office he or she once held, a president is entitled to consideration for clemency.
● The president should direct the attorney general to develop a clemency recommendation based on criteria that the president provides in writing and makes public.
● The attorney general’s recommendation should be made public.
● Following the receipt of the attorney general’s recommendation, the president should consult with congressional leaders, elected leaders at the state and local levels, and others at his or her discretion, and disclose publicly those with whom he or she has consulted.
● When the president announces the decision, he or she should provide a full statement in writing of the reasons for the grant or denial of clemency.
The Criteria
The criteria the president will consider include but are not limited to the nature of the offenses charged; the number of offenses charged; whether the offenses were committed prior to or during the ex-president’s candidacy for office, the presidential transition, or the term of office; whether others have been charged or convicted for the same offenses who are alleged to have acted at the direction of the president, or as co-conspirators; the complexity of the issues presented by the charges, including any constitutional defenses the ex-president may raise; and any other special considerations bearing on the grant or denial of the pardon in the public welfare.
The Case for Caution in Criminally Investigating
a Former President for Acts in Office
Of all the allegations leveled against Donald Trump over his four years as president, perhaps none was more damning than former National Security Adviser John Bolton’s claim that Trump appeared to engage in “obstruction of justice as a way of life.” [444] The most remarkable thing about Bolton’s charge was that it was not surprising. Trump’s presidency has been characterized by his incessant and often-public interference in law enforcement matters that affect his personal interests, by his disregard for legal and norm-based constraints on presidential action, and by his open search for lawyers who will “protect” him from a legal process that he has no scruples about undermining.
As the Trump-era events recounted in Chapters Seven and Eight show, Trump has not really tried to hide his obstruction of justice. Whether any of these activities and other similar ones amount to criminal law violations is a much harder question. As we explained in Chapter Eight, the current obstruction of justice statutes do not specify their application to the president. Absent such a plain statement (which will be unavailable for any prosecution of Trump), a prosecution for obstruction of justice for a president’s actions while in office will raise serious constitutional hurdles; in some and possibly most instances in which Trump has been accused of obstruction, those hurdles will be insurmountable.
Tightly developed and presented charges will be hard in this context because the legal issues are so muddled, even before one considers contested factual questions. Any investigation and prosecution would take many years to sort out through the criminal trial and appellate process. Perhaps Trump committed other crimes while in office that might be easier to prosecute—bribery, for example. But it is not obvious yet that this has happened. And again, it too would take enormous time and resources to investigate the facts before one could make a judgment on the law. The process of a new administration poring over the actions in office of a just-ousted president, and of his administration, looking for crimes, would be a first in American history. It cannot help but be deeply politically divisive, even (and perhaps especially) if a repudiated Trump is the target.
Given these known challenges—and there are many others, discussed below—what, if anything, should the presidential administration that succeeds Trump do about his possible crimes while in office? Two principles must be kept in mind. The first is the meaning of accountability. Trump must be held accountable for wrongdoing in office. But appropriate accountability does not necessarily mean criminal liability, even if crimes were committed. Accountability in this context means that the former president’s actions are made public, examined, and judged. Criminal process is one form of accountability, one of the more extreme. But elections, hearings, public scrutiny and condemnation, “9/11-style” truth commissions, ostracization, and the like are also forms of accountability.
The second principle is that instrumental calculations sometimes trump—no pun intended—criminal liability for crimes. Prosecutors very often, and legitimately, consider the adverse impact on the community in exercising prosecutorial discretion not to prosecute someone who committed a crime, or to strike a relatively favorable plea deal. And the pardon power was designed in part to allow the president to wipe out the consequences of a crime for the sake of national healing—a justification invoked by Washington in the Whiskey Rebellion, Ford in his pardon of Nixon, and many pardons and amnesties in between.
These principles in combination mean that sometimes criminal prosecution is not the right form of accountability, even, and perhaps especially, for a president. These principles also complicate the trope that “no one is (or should be) above the law.” In fact, sometimes alleged criminals, including criminals who serve in high office, escape criminal prosecution because more important countervailing principles should and do win out. Ford’s pardon of Nixon is again a good example—one criticized at the time but viewed more favorably later.
How these factors play out in Trump’s case is obviously hard to determine and will surely be contested. There are significant costs, benefits, and uncertainties to each approach. It might seem strange to give a president immunity from criminal prosecution for public crimes while in office to avoid destabilizing the presidency, and then to give him a pass on the criminal law after office in order to avoid destabilizing the nation. But this approach is neither inconsistent nor incoherent. Nonprosecution of a president while in office is a rule that has its own justification and that for now at least is settled; nonprosecution or pardon after the president leaves office has to be justified independently on a different, contextual cost-benefit basis at the time of decision.
Nor would refusing to investigate or prosecute Trump, or pardoning him, incentivize future presidents to commit crimes in office, any more than it did for Nixon’s successors. (Trump’s aberrant behavior is certainly not a response to Ford’s pardon of Nixon.) Whether it does depends entirely on what other punishments—that is, what other forms of accountability—are brought to bear on Trump for his actions in office: how thoroughly he is repudiated at the polls (if he is), and what other costs he and his family suffer after office (ostracization, business decline, criminal investigation for private or pre-presidential acts, and the like). Even in the absence of post-presidential prosecution, it seems doubtful that a future president will look at Trump’s difficult time in office, and his fate after office, and feel incentivized to commit crimes.
Nor is it clear which approach is better for the governing agenda of the next presidency. The polar possibilities are a criminal process aimed at figuring out Trump’s crimes in office, and what to do about them, at one end; and something like a quick decision to pardon or not prosecute Trump on instrumental grounds, at the other. (There are many possibilities in between.) The argument that the latter approach will make it difficult to impossible for the next administration to govern turns on the notion that the new president’s party would react to Trump’s effective immunity by refusing to cooperate in the new president’s agenda, or would be torn asunder.
But even if the new president controls both houses in the next Congress, a criminal investigation of Trump’s time in office will be a consuming spectacle for the new administration. The very act of opening the investigation—especially if obstruction of justice is the main focus—is politically fraught. Even if the investigation is conducted with strict integrity, the Justice Department of one administration viewing the actions of the president and others through a criminal lens will invariably appear political to a large chunk of the country—especially since Republicans, including Trump, will be spinning up the nation at every turn. This part of the country will see the investigation as political retribution, just as the Barr review of the Trump campaign investigation (discussed in the next section) has been seen as political retribution. The investigation will be viewed through the same politically polarized Twitter/cable news lens through which the investigations and counter-investigations during the Trump era have been seen.
Inevitably, the Justice Department will do things that confirm the politicization narrative. History shows that once a specialized Justice Department investigation starts, it is hard to cabin. The investigation of Trump’s actions in office will necessarily focus on more than Trump. Many dozens of former administration officials will need to be interviewed and investigated. Many of them will resist, grand jury subpoenas will fly, collateral investigations and charges will ensue, and Washington lawyers will rack up fees. Huge process issues—taking years of litigation—will arise about one administration’s examination and use of another’s internal deliberations against the former president.
Over time the investigation will become scorched-earth because the scorched-earth defenses of the president and his subordinates will require a proportionate response. Trump can be expected to fully participate in the spectacle, which will keep him and his tweets in the spotlight. The unprecedented investigation and possible subsequent prosecution will surely take up the next president’s term, and will dominate the news cycle. It will also dominate the agenda of the next attorney general, consume huge swaths of Justice Department resources that could be put to better use, and render impossible the already-hard task of restoring the department’s integrity and relative detachment from politics.
There is no guarantee at all that a prosecution of the president will succeed, no matter how firm the evidence and law (and the law will be doubtful on obstruction of justice). A trial of a president following years of battle and ending in acquittal will cause the country tremendous pain for no good end and will likely create numerous unfortunate precedents along the way. No matter how it comes out, the whole episode poses an obvious threat to democratic process even if Trump committed crimes. The investigation of Trump on top of the Mueller investigation and the impeachment trial and (by hypothesis) his defeat at the polls will keep very much alive the narrative about an elite left-wing coup against him and his presidency. And most corrosively of all, the entire enterprise threatens to begin a tit-for-tat cycle of recriminations across administrations.
These considerations call to mind why Barack Obama chose to “look forward as opposed to looking backwards” on a full examination of the interrogation and black-site program of the Bush administration. [445] In explaining why the Obama administration did not take the truth commission route, a senior official explained: “[Obama’s] concern was that would ratchet the whole thing up. His whole thing is, I banned all this. This chapter is over. What we don’t need now is to become a sort of feeding frenzy where we go back and re-litigate all this.” [446] Obama was and continues to be criticized for this decision. But these criticisms neglect (among other things) the counterfactual world in which the administration might not have been able to achieve health care reform (won by a whisker) and other accomplishments had it expended more resources and political capital legally scrutinizing the actions of its predecessors.
The pragmatic case for not investigating or prosecuting Trump, in sum, is that the likely aggregate benefits of doing so are outweighed by the likely aggregate costs. On this view, the least bad course of action for the next administration—a course that is admittedly not cost-free—is to not look back. The case for this approach is strengthened by two factors. First, there will inevitably be a thorough vetting of Trump’s presidential term by Congress, the press, and the public, and it will not be pretty for Trump. These forms of accountability diminish the need for additional Justice Department accountability.
Second, two investigations have long been underway that implicate Trump. The U.S. attorney for the Southern District of New York has an ongoing investigation that potentially implicates Trump in many ways. This investigation primarily if not exclusively implicates pre-presidential behavior. And the Manhattan district attorney’s office has long been scrutinizing the Trump Organization for crimes, and again presumably concerns mainly pre-2017 actions. Investigations of the president for crimes committed before the presidency or in a private capacity raise fewer hard legal issues and are easier to justify once the president leaves office—especially since both investigations began during the prior administration (and the federal investigation was opened and conducted by Trump’s Justice Department). Trump will face criminal investigative scrutiny upon leaving office even if the Justice Department does not look at his time in office.
The pragmatic case for noninvestigation or a pardon of Trump for actions he took in office admittedly rests on assumptions about the future that are unknowable. The same is true of the case for investigation and prosecution. But even if we knew more about the future that would make the case for noninvestigation or a pardon more certain, it is doubtful that this course is a live option for the next president. The demands for retribution against Trump are too loud; the illusion that the case against Trump will be easy, and a definitive rebuke to Trump, is too enticing; and in the current Washington environment, short-term political calculations predominate too much over longer-term structural ones. The Ford precedent is less powerful than it seems, at least for decisions that may need to be made in 2021, because he was pardoning someone from his own party. Ford nonetheless suffered in the short run for his pardon of Nixon. A nonprosecution or pardon of Trump may be even more damaging politically in the short run for the next president. And so the dire predictions outlined here may well be tested.
Examination of Crimes by Officials in the Prior Administration
One administration’s examination of the possible crimes of a prior president is an unusual and—beyond Ford’s quick review of Nixon’s sins and his subsequent pardon of Nixon—unprecedented event. It is commonplace, by contrast, for one administration to review and alter the legal actions taken by the prior administration. For example, the new administration typically reviews the prior administration’s federal court legal stances and prosecution priorities, pending regulations, and an array of executive branch policies—all with an eye toward adjustment or reversal.
Sometimes, a new administration uses the criminal investigation process to examine, reexamine, or continue examining actions by officials in prior administrations. The Ford and Carter administrations continued Watergate-related prosecutions of Nixon officials that began during the Nixon administration. The Dannehy investigation of the U.S. attorney firing scandal (see Chapter Seven) began under the Bush administration but carried over into the Obama administration. Obama’s attorney general, Eric Holder, reinvestigated actions taken by CIA officers during the Bush administration that had been previously deemed not to warrant prosecution by career Justice Department officials. In 2008, Bush’s Attorney General, Michael Mukasey, had tasked a Connecticut prosecutor, then-Assistant U.S. Attorney John Durham, with investigating the CIA’s destruction of interrogation videotapes. A year later Holder expanded Durham’s mandate to reexamine allegations related to CIA black sites.
Attorney General Barr took processes of this sort to new levels. On April 10, 2019, he announced that he would review “both the genesis and the conduct of intelligence activities directed at the Trump campaign during 2016.” [447] In late March 2019, he tapped Durham, now the U.S. attorney in Connecticut, for the task. On May 23, 2019, President Trump announced that, at Barr’s request, he had “directed the intelligence community to quickly and fully cooperate with the Attorney General’s investigation into surveillance activities during the 2016 Presidential election.” Trump also authorized Barr to “declassify, downgrade, or direct the declassification or downgrading of information or intelligence that relates [to the investigation].”
The investigation run by Durham and supervised by Barr began as a “review” of the Trump campaign investigation, which meant that Durham lacked the power to subpoena documents or compel testimony. But it soon grew in significance and scope. Over the course of the summer of 2019 it was reported that Durham, with significant assistance and sometimes participation by Barr, was seeking the cooperation of multiple foreign governments and their intelligence services that were involved—or alleged to have been involved—in the FBI’s Crossfire Hurricane investigation. He had also by that point interviewed dozens of current and former officials in the FBI and other intelligence agencies related to the investigation.
And then on October 24, 2019, news reports revealed that Durham’s probe had expanded into a criminal investigation, which meant he was given authority to subpoena witness testimony and documents, and to seek criminal charges before a grand jury. The criminal investigation was opened at least in part due to a criminal referral from Justice Department Inspector General Michael Horowitz, who had since before Durham’s investigation been investigating elements of the Crossfire Hurricane investigation. Apparently, Horowitz referred to Durham his finding that an FBI lawyer altered an email that officials used in an application to surveil former Trump campaign adviser Carter Page. Whatever the reason, from that point on, Durham, at least in discrete areas of his investigation, was invested with the department’s coercive criminal investigatory powers.
Horowitz issued his report on the Trump campaign investigation on December 9, 2019. The aspect of the report most relevant to Durham’s probe was its conclusion that Crossfire Hurricane was adequately authorized and predicated under Justice Department and FBI policy. On the same day that Horowitz released the report, Barr stated in a press release: “The Inspector General’s report now makes clear that the FBI launched an intrusive investigation of a U.S. presidential campaign on the thinnest of suspicions that, in my view, were insufficient to justify the steps taken.” About thirty minutes later, Durham offered his own statement on the matter: “Last month, we advised the inspector general that we do not agree with some of the report’s conclusions as to predication and how the F.B.I. case was opened.” Durham added that, unlike the inspector general, his team had access to “developing information from other persons and entities, both in the U.S. and outside of the U.S.”
In 2020, Durham’s investigation continued to expand. By then it had focused on the so-called “Steele dossier,” which contained opposition research financed by the Democratic Party and used by the FBI to support the Carter Page FISA surveillance applications. It had also focused on how other intelligence related to the Trump campaign investigation was processed and shared in the community. Durham also appeared to be looking into the details of how intelligence officials developed their assessment that Russia sought to aid Trump in 2016, as opposed to simply sowing confusion. Durham also seemed to be focusing in particular on the role and judgments of former CIA Director John Brennan in the Trump campaign investigation. (Brennan was often a focus of Trump’s vicious tweets, and often attacked the president in sharp terms on cable news shows.) In this and other instances, Durham was examining the work of former officials who had drawn Trump’s ire over the Crossfire Hurricane investigation.
Durham’s portfolio also expanded to include leaks of classified information early in the Trump administration, the “unmasking” by many Obama administration officials of then-national security adviser designee Michael Flynn in intelligence intercepts, and other issues related to the subsequent investigation and prosecution of Flynn. In February 2020, Barr took the extraordinary step of appointing the U.S. attorney in St. Louis, Jeff Jensen, to thoroughly scrutinize the criminal case against Flynn. (This review resulted in the Justice Department moving to dismiss the criminal information that the Mueller investigation team filed against Flynn.) In May 2020, Justice Department spokesperson Kerri Kupec announced Durham’s expansion into the unmasking issues on the Sean Hannity program on Fox, and that Durham would be assisted in this regard by U.S. attorney in the Western District of Texas, John Bash.
Throughout these events, in testimony and interviews, Barr has offered a running public commentary on where he thinks the Durham and related investigations are leading. Barr frequently and publicly prejudged the Durham and related inquiries and insinuated that officials on the Crossfire Hurricane investigation engaged in wrongdoing and possible criminal activity. We lack space to capture all of Barr’s conclusions, but here is a sampling:
● May 31, 2019. When asked whether the people under review by Durham had committed “treason,” Barr replied, “Not as a legal matter, no” in a way that suggested they acted treasonably even if not illegally so. Barr then implied that the officials who investigated the Trump campaign, and were under review by Durham, had a “Praetorian Guard mentality” and engaged in malfeasance or were biased even if they were not acting on purpose with “conscious, nefarious motives.”[ 448]
● December 2019. After the Horowitz report came out, Barr stated that he believed the report “le[ft] open the possibility that there was bad faith [by the FBI].”[4 49] When questioned ten days later on whether it was appropriate for an attorney general to speculate about such bad faith in the context of an ongoing investigation, Barr stated: “I think there are episodes there that simply cannot be squared with innocent mistakes. And I think people have to come to terms with that.”[4 50]
● April 10, 2020. Barr said that Durham “is looking to bring to justice people who are engaged in abuses if he can show that they were criminal violations.” He added: “My own view is that the evidence shows that we’re not dealing with just mistakes or sloppiness. There is something far more troubling here. We’re going to get to the bottom of it. And if people broke the law and we can establish that with the evidence, they will be prosecuted.” [451]
● June 1, 2020. Barr stated that Durham is looking for “who should be held accountable for” Trump’s unfair treatment in the Trump campaign investigation. “I think Comey has cast himself as being seven layers above the decision-making. I don’t think that holds water. The record will be clear that that’s not the case .”[452]
Barr’s public commentary on the Durham investigation violated Justice Department regulations 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.” [453] None of the exceptions, such as for public safety, apply to the Durham investigation. [454] Another rule states that “federal prosecutors should remain sensitive to the privacy and reputation interests of uncharged third-parties.” [455] Department regulations also prohibit the disclosure of information “relating to the circumstances of an … investigation [that] would be highly prejudicial or where the release thereof would serve no law enforcement function….” [456] It is hard to see the law enforcement function of Barr’s public commentary.
Reform
There may have been good reasons for a comprehensive inquiry into the investigations of the Trump campaign’s links with Russia’s 2016 electoral interference, and of the president himself. As we noted in Chapter Nine, the Crossfire Hurricane investigation was in many ways unprecedented. It suffered from a lack of legal and policy guidance, and Inspector General Horowitz uncovered a pattern of serious errors in certain aspects of the investigation even as he also concluded that the investigation was properly predicated at the outset. The opening of the criminal and obstruction of justice investigations against the president also suffered from a lack of adequate guidance and raised many novel issues, as we noted in Chapter Nine. If politics could be removed from the process and public debate—something that, as we showed earlier, has not happened—the nation would benefit from an understanding of what happened in these investigations, so that it could do better next time, if there is one.
In saying that an examination of the prior investigations may have been justified, we definitely do not subscribe to the view that, as Trump regularly proclaims, these investigations were “hoaxes” or otherwise illegitimate. The investigations concerned serious allegations that uncovered significant wrongdoing. As set out in Chapter Two, they also revealed weaknesses in current legal protections against foreign national electoral interference, and against political alliances between American campaigns and foreign state interests, that should lead to reforms.
Nor do we think that a probe by a prosecutor under the close supervision of the attorney general was the right way to examine these investigations. As we write these words, we do not know the fruits of Durham’s work. But whatever wrongdoing Durham may find or allege will invariably be tainted. It will be tainted by the fact that the president has persistently, publicly, and tendentiously prejudged the investigation of his campaign for years. And it will be tainted by Attorney General Barr’s unprecedented, opinionated, and norm-violative public commentary on the subject matter of Durham’s investigation.
Moreover, now that we understand better Durham’s focus, it is clear that it is not a task appropriate for a prosecutor using the tools of criminal investigation. (In a better world, it would have been a task for Congress or a congressional commission.) The review began as an effort to understand what happened in the genesis and conduct of the Crossfire Hurricane investigation. There was no inkling at the time that crimes had been committed; Durham’s initial probe was a mere “review” to gather and assess facts. This is a core responsibility of inspectors general and falls within their expertise. Prosecutors of course can and do develop and assess facts, but they do so in the criminal investigation process. The proper approach would have been for inspectors general across the government to review and comprehensively assess Crossfire Hurricane, as Horowitz did for a slice of it. If evidence of crimes arose in such an investigation, it could have been referred to a prosecutor—again, as happened with Horowitz’s investigation.
An investigation by a prosecutor threatening to use the coercive tools of criminal law enforcement is especially inappropriate for what appears to be one large focus of Durham’s investigation: the nature and validity of the intelligence assessment that the Russian intervention in the 2016 election sought to aid Trump rather than merely sow confusion. Durham has experience examining the intelligence world due to his investigation of the CIA tape destruction and black site program. But he is neither personally nor institutionally expert in intelligence assessments or the intelligence assessment process, and a prosecutorial lens is not the right one to understand the basis for the assessment.
There are obvious dangers in one administration using the prosecutorial process to examine a counterintelligence and related investigation of the prior administration. Durham himself began this process as a credible figure, even if one not fully qualified or positioned for the task given to him, especially as it developed. But his investigation was politically fraught from the beginning due to the context. And it grew politicized due to the actions of the president and the attorney general.
In response to this episode, we propose three reforms.
First, the Justice Department should make clear that the department’s media policy and rules for prosecutors about discussing a pending case extend to the attorney general. This is already implicit in the rules. But the next attorney general should make it explicit in an effort to reestablish the norm.
Second, a “what happened?” investigation of a counterintelligence or related criminal probe by a prior administration should be conducted in the first instance by the inspector general of the Justice Department, not by a prosecutor. If a government-wide investigation is needed, it can be conducted on a government-wide basis by inspectors general in coordination, as occurred in the Stellarwind investigation. [457] If the input of foreign governments is necessary, that can be arranged by the State Department or by the agency whose foreign counterpart possesses the relevant information (for example, by the director of national intelligence if information from foreign intelligence services is needed).
As with all inspector general investigations, former employees can cooperate voluntarily but cannot typically be coerced through legal process into cooperation. If the inspector general uncovers evidence of criminal wrongdoing, he or she should refer the matter to the attorney general, who (see below) would be required to invoke the procedures of the special counsel, as amended. This is an extension of the “conflict of interest” theory behind the special counsel rules. Those regulations now locate the potential conflict in one administration’s enforcement of the law against its own senior personnel. Here the conflict to be addressed is the real and apparent conflict between an administration’s duty to enforce the law impartially, and any pressures to investigate and bring charges against senior officials of the other party.
Third, an administration’s criminal investigation of the president or senior officials of the preceding administration for violations of law arising from the conduct of their official duties should be subject to the appointment of a special counsel. The use of U.S. attorneys to conduct special-purpose inquiries of the kind Attorney General Barr favors should be ruled out, as they only foment or heighten suspicions of a political vendetta—especially when those selected to conduct these inquiries are political appointees of the incumbent president. A prominent virtue of the special counsel procedure is the requirement that the attorney general account with greater transparency and thoroughness to Congress and the public for the manner in which these investigations are justified, conducted, and concluded. A policy of resort to the special counsel rules for these cases may encourage an administration to determine with particular care whether to pursue them.