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Democrats Worry Attorney General Has An 'October Surprise' In The Making

Aug 7, 2020
Originally published on August 7, 2020 6:14 pm

Attorney General William Barr has promised the Justice Department will not take any action to influence the upcoming election. But Democrats and department veterans aren't so sure about that.

In opinion pieces and letters, they warn that Barr might be preparing to spring an "October Surprise." There's one big reason for that: recent testimony from the attorney general himself.

Democrats are monitoring the status of an investigation by prosecutor John Durham, who appears to be looking at intelligence gathering and other actions by the Obama administration in 2016. Barr tapped Durham to look into the origins of the Russia investigation in May 2019.

When Rep. Debbie Mucarsel-Powell, D-Fla., asked Barr whether he would commit to not releasing any report by Durham before the November election, Barr said bluntly, "No."

Durham has been on the job for more than a year now, leading some lawyers familiar with the investigation to believe he may be close to the end. One such source told NPR that Durham has asked to interview former President Barack Obama's CIA director, John Brennan, confirming a report by NBC News.

That source said both sides are trying to iron out details for the interview, which largely involves technical questions. The source added that Brennan has been told he is not a target of prosecutors.

Areas of interest

For his part, the attorney general said Obama and former Vice President Joe Biden, who's now running for president, are not targets in the case either, and that criminal investigations are focused on others.

One may be former FBI lawyer Kevin Clinesmith, who allegedly doctored an email used as part of a process to secure court approval to renew surveillance on onetime Trump campaign adviser Carter Page.

Those surveillance applications contained major errors identified by independent Inspector General Michael Horowitz and highlighted by Republicans in Congress.

A second area of interest may be the leak of sensitive information to a Washington Post columnist in early 2017 about conversations that incoming Trump national security adviser Michael Flynn was having with the Russian ambassador after the election.

The full scope of Durham's probe is a closely held secret. Barr has said he expects the prosecutor will put some findings in writing in the form of a report that may be made public.

Barr told the House Judiciary Committee on July 28 that he's well aware of the longstanding Justice Department policy that bars taking action that could produce uproar in an election year. "Any report will be, in my judgment, not one that is covered by the policy," he said.

Lessons from 2016

Amid uncertainty about Durham's fact-finding, and what Justice Department leaders will do about it, looms a recent historical precedent. Four years ago, actions by then-FBI Director James Comey did seem to hurt presidential candidate Hillary Clinton.

This time around, Democrats said they're suspicious of Barr. They said he misrepresented the findings of an earlier investigation, by special counsel Robert Mueller, to benefit President Trump.

"Is there such a thing as a predictable surprise?" one attorney involved in the Durham matter asked.

In the past year, Barr has told interviewers that the Durham probe has turned up surprising and damaging information. But the Justice Department typically avoids making comment about ongoing investigations.

This week, Fred Wertheimer of the left-leaning group Democracy 21 appealed to Durham directly in the form of an open letter on the blog Just Security. A public release of Durham's findings, or indictments, will become a campaign issue with political consequences, he said.

"If your investigation is not complete, you should not complete it until after the election," Wertheimer wrote in the Thursday letter. "If the report is complete, you should publicly oppose any release of your report before the election."

The letter said that if Durham gets overruled, by Barr or others, he should withdraw from the case, to avoid actions that could interfere with the presidential election and taint his "long and distinguished career."

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STACEY VANEK SMITH, HOST:

Attorney General Bill Barr has promised the Justice Department will not take any action to influence the upcoming election. But Democrats and DOJ veterans are not so sure about that. In opinion pieces and letters, they warned that Barr might be preparing an October surprise. With us to talk about these developments is NPR national justice correspondent Carrie Johnson.

Hi, Carrie.

CARRIE JOHNSON, BYLINE: Hi there.

VANEK SMITH: Carrie, we are less than three months away from the presidential election. So why are we hearing so much about the Justice Department and political concerns right now?

JOHNSON: There is one big reason for that. It's recent testimony from the attorney general. Democrats asked about the status of an investigation by prosecutor John Durham, and that prosecutor appears to be looking at actions by the Obama administration in 2016. Here's Florida Congresswoman Debbie Mucarsel-Powell asking Attorney General Bill Barr about that.

(SOUNDBITE OF ARCHIVED RECORDING)

DEBBIE MUCARSEL-POWELL: Do you commit to not releasing any report by Mr. Durham before the November election?

BILL BARR: No.

MUCARSEL-POWELL: You don't commit to that?

BARR: No.

VANEK SMITH: And, Carrie, I understand that you have some new details today about the status of John Durham's work. So tell us, please.

JOHNSON: Durham has asked to interview President Obama's CIA Director John Brennan. I'm confirming a report from earlier today from NBC News. I'm told also that they're trying to iron out the details and that Brennan has been told it's a technical-type series of questions and that he's not a target of the prosecutors.

Now, some lawyers involved in the investigation think this might mean John Durham is getting close to the end. But others who have had contact with him and his team say they don't know about that. One attorney said since we have no idea exactly what he's looking at, it's hard to make that assessment.

VANEK SMITH: Oh, wow. OK. Well, so what do we know now about what might be in the sights of this prosecutor?

JOHNSON: We know that Attorney General Barr says Obama and Vice President Joe Biden, who's now, of course, running for president, are not targets of Durham's probe. Any criminal investigations are focused on other people, Barr says. And there are a couple of areas my sources are flagging now. One is action by a former FBI lawyer who's under investigation for allegedly doctoring papers in connection with a surveillance application in 2016, and that surveillance of former Trump campaign adviser Carter Page has been heavily criticized both by the inspector general and Republicans in Congress.

And the second area may be the leak of sensitive information to reporters, including a Washington Post columnist in early 2017, about conversations that the incoming Trump national security adviser Michael Flynn was having with the Russian ambassador around that time. There might be more. We don't know for sure. But we do know Durham is likely to put out his findings in writing, a written report of some sort.

VANEK SMITH: So why would the timing of the Durham report raise concerns right now?

JOHNSON: Well, four years ago, actions by then-FBI Director Jim Comey did seem to hurt presidential candidate Hillary Clinton. And this time around, Democrats are suspicious of Bill Barr. They say he misrepresented the findings of an earlier investigation by special counsel Robert Mueller to benefit Donald Trump. And this week, Fred Wertheimer of the left-leaning group Democracy 21 wrote an open letter to Durham, saying if Durham is not done, he should wait to finish until after the election. That letter said if Durham gets overruled, he should withdraw from the case to avoid damaging his long and distinguished career inside the Justice Department.

VANEK SMITH: NPR national justice correspondent Carrie Johnson.

Thanks, Carrie.

JOHNSON: My pleasure. Transcript provided by NPR, Copyright NPR.