Heavy lapses in judgment are politicizing the justice system

The extraordinary prequel press conference by Attorney General William Barr last Thursday was performance art in the key of advocacy. Before the special counsel report on Russian interference in the 2016 election was even released, Barr again repeatedly denied coordination by the Trump campaign in that effort, and exonerated President Trump of obstruction, despite Robert Mueller pointedly refusing to do so. The bizarre press conference was of a piece with recent testimony in which Barr said that American intelligence agencies likely “spied” on the Trump campaign in 2016, and “spying on a political campaign is a big deal.”

By seeming to back the claims by his boss that the special counsel investigation was a “witch hunt” from the get go, and casting doubt on the integrity of the intelligence community without offering a shred of evidence, Barr has tilted the scales of justice further towards political partisanship. With such partisan leadership atop federal law enforcement, it is little wonder that the American public is losing faith in our system. In a Reuters Ipsos poll last year, three out of four Republicans believed that the Justice Department and the FBI are out to undermine President Trump. After the performance by Barr over the past week, a growing number of Democrats are also likely to perceive partisan bias in what is supposedly the most impartial and independent of our government institutions.

{mosads}As Washington insiders continue to pore over the voluminous report on Russian interference in the 2016 election, it is important to recall how misguided leadership at the Justice Department and the FBI over the past few years has already allowed these bulwarks of democratic governance to be covered in the mud of a hyper partisan political scrum. The task for future leaders will be to learn from those egregious mistakes and eclaim public trust in the integrity of American justice.

If there is an original sin in how the Justice Department has handled politically charged investigations during the 2016 election, it was the inexplicable decision of former Obama administration Attorney General Loretta Lynch to meet with former President Bill Clinton for 30 minutes privately on an airport tarmac in the summer of that year. The FBI at the time was in the midst of a high profile investigation into Democratic presidential candidate Hillary Clinton using a personal email server as secretary of the State Department. The private meeting naturally led Republicans to suspect that the “fix was in” on the email investigation, a reaction that Lynch should have recognized as both predictable and deeply damaging to the independence of the Justice Department.

Concerned that her impartiality was compromised, former FBI Director James Comey at the time usurped the authority of Justice Department leadership in July 2016, publicly announcing that the bureau would not bring charges in the Clinton email case, but criticizing the Democratic candidate for being “extremely careless.” After so inserting himself, Comey later felt compelled in October 2016, just days before the election, to publicly announce in a letter to Congress that the FBI was reopening the Clinton case because new emails had been discovered. That late “October surprise” arguably swung the election to Trump, and trampled on another Justice Department policy that explicitly prohibits officials from interfering with, or even seeming to interfere with, our elections.

When President Trump was later looking for an excuse to fire Comey in May 2017, out of frustration with the Russia investigation and a perceived lack of personal loyalty, he turned to the Justice Department and found a willing accomplice among its top officials. Deputy Attorney General Rod Rosenstein knew full well that President Trump already planned to fire Comey for his own reasons, which presumably did not include the rough treatment of his opponent by the FBI. Nevertheless, Rosenstein wrote a detailed justification to dismiss Comey based on the mishandling of the Clinton email investigation. As the special counsel makes clear in the report, however, Rosenstein later pushed back forcefully on the false narrative pushed by the White House that firing Comey was his idea.

Barr had a prime opportunity to rise above the political fray and reassert the impartiality of the Justice Department by letting the findings of the investigation speak for themselves. He chose instead to preempt the process, parroting the talking points of the president in advance and trying to shape the narrative of “no collusion,” despite the Mueller report making clear that the Russians tried to help the Trump campaign and close Trump associates were willing to accept that help, and then of “no obstruction,” despite the repeated attempts by the president to fire the special counsel and continued public attacks on potential witnesses.

In referring to court approved surveillance of a Trump campaign adviser as part of a legitimate counterintelligence investigation as “spying,” Barr went even further by embracing the partisan narrative of his boss at the expense of his own FBI special agents. It appears President Trump has finally found his new Roy Cohn in an attorney general willing to do his bidding. But somewhere behind her blindfold, Lady Justice is weeping.

James Kitfield is a senior fellow at the Center for the Study of the Presidency and Congress. Follow him on Twitter @JamesKitfield.