The whistleblower complaint released Thursday alleged that President Trump used the power of his office to solicit interference from a foreign country in the 2020 U.S. election. And he was not alone. The complaint added: “The president’s personal lawyer Rudolph Giuliani, is a central figure in this effort. Attorney General Barr appears to be involved as well.”
Trump mentioned Barr in his July 25 call to the Ukrainian president; the AG would be the “go to” person on Ukraine’s evidence to get dirt on former Vice President Joe Biden and his son Hunter.
Michael Atkinson, the inspector general of the intelligence community, found the whistleblower complaint “credible” and ”urgent.” Those are compelling findings: Urgent under the statute means “a serious or flagrant problem, abuse, or violation of law or Executive Order.” Atkinson passed it to the acting Director of National Intelligence, as he was obliged to do. DNI Joseph Maguire, in turn, was supposed to turn it over to the Congress within seven days. The statute is unambiguous.
In this administration, the DOJ is where accusations against the president go to die.
Maguire though, went to the Office of Legal Counsel of the Department of Justice because, as he said, the matter was unprecedented. The OLC decided he didn’t have to turn the complaint over to Congress, notwithstanding the language of the statute. We don’t know why; the OLC decision is confidential. But they apparently suggested a criminal referral; the crimes of violation of election laws, conspiracy to violate the law, even obstruction of justice come to mind.
In this administration, the DOJ is where accusations against the president go to die. The attorney general, who is named in the complaint (“Barr appears to be involved as well”), didn’t bother to recuse himself. This isn’t a close call. He can’t investigate himself, even if, as he claims, he never followed up on the president’s call to the Ukrainian authorities. Worse, the DOJ didn’t even open an investigation against anyone including Giuliani, the citizen who was seemingly conducting the president’s private foreign policy.
And as they say in television commercials, “wait there’s more.”
According to the whistleblower complaint, there was a coverup orchestrated by White House counsel, who directed the staff to put the transcript of the July 25th conversation in an encrypted computer system “solely for the purpose of protecting politically sensitive – rather than national security sensitive – information.”
Consider this: The coverup is just the sort of conduct Barr had described as obstruction of justice in the 19-page memo that he, as a private citizen, sent — unsolicited — to then Deputy Attorney General Rod Rosenstein and Steven Engel, of the DOJ Office of Legal Counsel. True, the White House counsel didn’t destroy the evidence; they just buried it where only a select few could see it. But according to Barr, that should have been enough. Obstruction, he wrote in that 2018 memo, comprised acts of “evidence impairment,” acts which are “directed at depriving a proceeding of honest decisionmakers or access to full and accurate evidence.”
And recall the Mueller report. The investigation found that there was Russian interference in the 2016 election and while the Trump campaign welcomed that interference (“Russia, if you’re listening?”), it was not guilty of conspiracy because the campaign had not orchestrated it. This time, it has.
And yet, still not a peep from the DOJ.
So there is a list of officials who need investigating or worse — the president, Giuliani, the White House counsel who directed the cover up, and Barr who turned a blind eye to all of it.
Nancy Gertner Cognoscenti contributor
Judge Nancy Gertner was appointed to the bench in 1994 by President Bill Clinton, and retired in September of 2011 to join the faculty of Harvard Law School. Her autobiography, "In Defense of Women: Memoirs of an Unrepentant Advocate," was published in 2011.