A normal attorney general of the United States right now would be focused on protecting the integrity of the fast-approaching November elections. Instead, the attorney general we have — William Barr — is intent on doing the opposite: unraveling the government's efforts to hold accountable those who infected our last presidential election, in 2016, and undermining the integrity of the vote in 2020. It's so bad that House Judiciary Committee Chairman Jerrold Nadler, who last weekend said it would be a "waste of time" to try to impeach Barr, is now reconsidering. (For the moment, Speaker Nancy Pelosi says impeachment is not happening.)
There are four ways that Barr's approach to running the Justice Department imperils the vote: He's letting off the hook those who contributed to interference in the last election; he's undermining confidence in the government's ability to protect the coming election; he's signaling to bad actors that helping President Donald Trump win will garner them special treatment under the law; and he's spreading disinformation about the potential for voter fraud.
First, Barr is actively undoing work by the very department he oversees to address the counterintelligence threat exposed during the 2016 elections. At the core of Russia's effort to distort American democracy was its move to obtain influence over a presidential candidate and his team. That's what the FBI was investigating when it interviewed Trump's first national security adviser, Michael Flynn, in January 2017. The criminal charges brought against Flynn for lying during that interview — to which he pleaded guilty twice — affirmed federal law enforcement's commitment to investigate counterintelligence threats and disrupt them.
But Barr is deliberately unwinding that work. He has overseen the unprecedented attempt by the Justice Department — over the objections of the career prosecutor who handled the case — to drop the charges against Flynn despite his guilty pleas and based on legal theories invented by the department for the Flynn case alone. In a nod to the department's obviously unusual handling of the case, a dissenting judge on the U.S. Court of Appeals for the D.C. Circuit this past week criticized the opinion issued by his two fellow judges, a ruling he said "transforms the presumption of regularity into an impenetrable shield" blocking the trial judge from even scrutinizing why the department took such a bizarre approach to this case. A normal attorney general would be ratcheting up counterintelligence efforts as the 2020 elections approach; Barr is standing down.
Second, Barr is impugning the work by federal law enforcement that sought to hold accountable those who undermined the 2016 elections. "The Russia investigation," as it is now known, was the FBI's effort to understand the scope of Moscow's meddling. Once Trump fired FBI Director James Comey, that work shifted to the office of special counsel Robert Mueller, which brought criminal charges against Trump associates Paul Manafort and Roger Stone, as well as Russian military intelligence officials. Mueller's project was partly an attempt to protect against further election interference in 2020.
But here we are, just months from that election, and Barr is telling us that this work might've been all wrong from the start. That's the thrust of the "investigation of the investigators" that he has asked federal prosecutor John Durham to oversee, with unusual support and involvement from Barr himself. And it's despite essentially the same ground having been covered by the Justice Department's inspector general, who deemed the initiation of the Russia investigation justified and valid. The message: Foreign meddling in our democracy isn't a big problem.
Third, Barr is making clear that those who help Trump in his electoral ambitions will get special treatment from the Justice Department should he be reelected. The message radiates from the department's abrupt reduction of its sentencing recommendation for Stone — also over the objections of the career prosecutors who handled the case, as one laid out in detail Wednesday in testimony before the House Judiciary Committee. Stone has been implicated in the apparent coordination between the Trump campaign and WikiLeaks regarding the release of hacked emails to damage Hillary Clinton, and he was convicted of impeding and lying to investigators.
That would, in normal times, be an important deterrent to others close to Trump not to aid his reelection through foul play. But not under Barr. In response to angry tweets by Trump, the Justice Department reduced its recommendation for Stone's sentence. As former Stone prosecutor Aaron Zelinsky told Congress, there was only one explanation he heard: Trump wanted it for a buddy. As Zelinsky put it in his opening statement, "What I heard — repeatedly — was that Roger Stone was being treated differently from any other defendant because of his relationship to the President." That's become the message under Barr: Government lawyers should give friends of Trump lenient treatment or risk their careers. This is also the obvious takeaway from the abrupt ouster of the U.S. attorney for the Southern District of New York, Geoffrey Berman, who reportedly had been investigating Rudy Giuliani's role in recruiting information from Ukraine that might harm Trump's presidential opponent. That takeaway appears reinforced by new reporting that Barr clashed with Berman over his office's decision to pursue charges against Trump's former lawyer, Michael Cohen.
Fourth, any normal attorney general would be augmenting efforts to fight disinformation in the run-up to Election Day. Russia's spread of disinformation was a major component of its 2016 interference, and even America's private sector — in particular, technology companies — has pledged to do a better job of addressing the issue this year. The FBI has shown signs of trying to do the same, including establishing a task force dedicated to tackling the problem in a coordinated way.
But Barr is doing the opposite. He isn't just failing to take demonstrable steps to fight election-related disinformation; he's actively spreading disinformation himself. He echoes Trump's debunked claims that mail-in ballots — which will be crucial during the pandemic — somehow leave the country vulnerable to election fraud and interference. Barr recently told Fox News that these votes could "open the floodgates of potential fraud," without providing any basis for the claim. In 2016, Americans faced disinformation predominantly from abroad. In 2020, it also comes from inside our own government.
The threats to this election — not just from Russia but from the coronavirus — would be formidable enough if there were an attorney general acting in good faith to lead federal law enforcement's response to them. We have the opposite: The country's top lawyer turns a blind eye to these threats, taking us backward rather than forward in addressing them, and even worsening them himself. That makes an already dangerous situation dire. And it means that the calls for Barr's impeachment shouldn't be seen as backward-looking or retributive against an administration that may be on its way out anyway. They're forward-looking — if Americans believe that the country deserves an attorney general who protects not one presidential candidate but all citizens as they prepare for a crucial vote.
Geltzer, a former Justice Department and National Security Council lawyer, is executive director and professor of law at Georgetown University's Institute for Constitutional Advocacy and Protection.