This morning, Brian Kilmeade did an excellent interview with President Donald Trump and pressed him on issues like a possible floor challenge to the certification of the 2020 election under what I have called a “Death Star” strategy. Trump notably refused to answer that question and whether he would attend the inauguration by saying “I don’t want to talk about that.” What he clearly wanted to talk about was Attorney General Bill Barr, who is facing calls to be fired for his maintaining confidentiality over ongoing federal investigations linked to Hunter Biden. Kilmeade pressed Trump on the attacks on Attorney General Bill Barr and quoted me as saying that Barr acted correctly in declining to reveal ongoing investigations related to Hunter Biden. Trump responded that he is only asking for what Special Counsel Robert Mueller did in correcting a false news story in 2019. I disagree with the analogy with that clarification, which presented a very different ethical and factual situation. Barr did exactly what he had to do to protect not just the integrity of these investigations but the integrity of the Justice Department as a whole.
In the interview, the President slammed Barr after Kilmeade noted that he is obviously “disappointed” in Barr not disclosing the investigations. Trump responded by saying that “everybody is …who is not disappointed?” The President then cited the occasion when Special Counsel Bob Mueller went public to correct a story that ran in BuzzFeed as untrue. President Trump declared “when Buzzfeed put out a phoney article, Bob Mueller stood up and he interjected that this article was false. Bill Barr should have done the same thing…”
Kilmeade then told the President that “Jonathan Turley said he had no choice . . . it would have been like James Comey again.” However, the President repeated the BuzzFeed point and his point that “All he had to do is say that an investigation is going on . . . Bill Barr frankly did the wrong thing. Bill Barr had an obligation to set the record straight just as Mueller set the record straight.”
Kilmeade is correct that I have defended Barr on his actions on Hunter Biden investigation as well as past actions. For full disclosure, I have known Barr for decades, represented him in a past case, and testified in support of his confirmation before the Senate Judiciary Committee.
The criticism of Barr shows how no good deed goes unpunished in this Administration. There were a host of reasons for Barr not disclosing the ongoing investigations.
First, there is a long standing policy not to issue indictments or make public comments before an election. While I have discussed that vague policy in the past, I wrote before the election that Durham and Barr should wait until after the election to avoid their work being used for political purposes. Notably, even without such formal confirmation, many of us had already written about the obvious investigations into Hunter Biden. While the media had a blackout on coverage to protect Biden before the election, it was clear that there was a federal investigation in the field from the prior subpoena and other information. Many of us also wrote on the ludicrous assertion of Joe Biden that “no one has suggested my son did anything wrong.” The problem was not the lack of express confirmation by Barr. The problem was that the media was (and continues to be) in the bag for Biden. If Barr confirmed an investigation, the Biden campaign would do what it just did last week in declaring that this was about “tax affairs.”
This was a good deed by Barr. Not only do the DOJ policies and rules discourage such public statements before an election, Barr would have pulled a Comey. This is precisely what President Trump and both Republicans and Democrats criticized James Comey for doing before he was fired. Indeed, it figured prominently in the scathing review of Deputy Attorney General Rod Rosenstein in his Comey memo.
There is also the separate policy not to discuss ongoing investigations. Such disclosure is left to the U.S. Attorney and local prosecutors in how they proceed in investigations to avoid or reveal their work. Confirmation of an investigation can undermine the investigation by alerting possible targets. It is also unfair to targets like Biden who might not be ultimately charged.
What is astonishing about this attack is that Barr’s actions guaranteed the continuation of these investigations despite calls by Democrats for the investigations to be scuttled by a Biden Justice Department. If Barr did what the President demanded, it would have given the Democrats exactly what they wanted as an excuse to close the investigations. He would have pulled a Comey and they would have pulled the plug on the investigations.
Now for the BuzzFeed claim. The President’s point is a fair one but I believe that it falls far short of being a convincing basis for Barr violating these policies.
First, the facts. BuzzFeed ran a false story that President Trump ordered his personal attorney Michael Cohen to lie to Congress, for which Cohen was prosecuted. Democrats and various legal experts ran with the story to demand impeachment. The date is key. That was January 2019. That was roughly two months before the release of the Mueller Report when the Special Counsel’s office was preparing to disclose its findings.
I was frankly surprised by the clarification at the time but there were a couple of obvious distinguishing factors. First, the Mueller investigation was public as was its focus in terms of crimes. The Hunter Biden investigation and its focus was not public information. Second, the clarification dealt with Michael Cohen who was sentenced in December 2018. His case was over. This was a comment not on the ongoing Mueller investigation but more about the closed Cohen case. Third, the delay in releasing the report raised calls for clarification of the Cohen statements shortly before his testimony in Congress. Mueller clearly decided that, given the plea by Cohen and the tangential aspect of the story, a public clarification was warranted. Accordingly, the office stated “BuzzFeed’s description of specific statements to the Special Counsel’s Office, and characterization of documents and testimony obtained by this office, regarding Michael Cohen’s Congressional testimony are not accurate.”
That is vastly different from revealing ongoing investigations before anyone has been charged, which was the question facing Barr. In fact, Hunter Biden has not and is still not formally accused of wrongdoing in terms of a federal indictment. He is at most a target or subject of a federal investigation. For any public statement of Barr to satisfy the President, he would have had to go into details on allegations that were still be investigated and not confirmed. Otherwise, he would issue a statement that would have been radically misconstrued. That is pulling a Comey.
That is why Bill Barr did the right thing. Yet, as the poem by by Franklin Piece Adams is entitled, “No Good Deed Goes Unpunished (So Shines a Good Deed in a Naughty World)”
I have previously said that Barr spends a great deal of time thinking about doing the right thing and little time thinking about how it will be perceived. However, history will vindicate this and other decisions that he has made as Attorney General.
As I have previously argued, the media has run proven false accounts against Barr, including the false claim that he cleared Lafayette Park for a presidential photo op. History will show, to take a line from King Lear, that Barr remains “a man more sinned against than sinning.”