There have long been serious concerns that the inquiry into the origins of the Russia investigation, which Attorney General William Barr tapped U.S. Attorney John Durham to lead last spring, has been politicized and compromised by inappropriate prejudgment. For one thing, there’s the memo Barr wrote before joining the administration in which he criticized the Mueller investigation. And in April 2019, Barr famously testified that the FBI had been “spying” on the Trump campaign, evidencing further inappropriate prejudgment.
But since appointing Durham, Barr’s frequent comments on the progress of the ongoing investigation — despite Justice Department policy disfavoring such comments — have raised more questions not just about how the investigation may have become a political tool in President Donald Trump’s reelection efforts, but also about government transparency.
Justice Department documents American Oversight has obtained through Freedom of Information Act litigation show that Barr has been closely involved in guiding Durham’s investigation into the origins of the Russia investigation. Now, despite Barr’s frequent public statements about the ongoing investigation, the department is selectively choosing to invoke the “ongoing investigation” privilege to withhold documents the public needs in order to understand Durham’s work.
Public records indicate that the day after Barr issued his misleading summary of Special Counsel Robert Mueller’s investigation into Russian election interference, Barr, Durham and Seth DuCharme, then counselor to Barr, met with officials from the Justice Management Division, which handles department logistics — likely indicating the discussion was about resources needed for Durham’s work. Email correspondence we received also shows that Barr handpicked DuCharme to support and assist Durham.
In the seven months following their initial meeting, Barr and Durham met 18 times — often with DuCharme accompanying. Barr even traveled to Rome with Durham, reportedly to seek Italian assistance with the investigation.
During his congressional testimony last month, Barr said he expects findings from Durham’s probe “hopefully before the end of the summer” and specifically refused to commit to not releasing Durham’s report before the November election. In addition, he said he expected “public disclosure in some form of report,” having secured expansive authority from Trump in the early months of the probe to unilaterally declassify intelligence community documents.
Yet although we know Barr plans to release findings of an extraordinarily politically sensitive investigation shortly before a presidential election, we still don’t know exactly what Durham is investigating. Even as details about elements of the probe have slowly emerged — as the probe morphed into a criminal inquiry, expanded to cover intelligence agencies’ sources, methods, and assessments, and encompassed both pre- and post-2016 election events — the parameters of Durham’s work remain unclear.
Throughout this period, in unprecedented form for an attorney general, Barr has on at least ten occasions made public statements about the ongoing investigation — including statements that have prejudged the probe’s outcome and worked to undermine the Justice Department Inspector General probe into related subjects.
In response to American Oversight’s FOIA requests, the department has acknowledged that it has 24 pages of directives and guidance regarding the Durham probe, as well as records regarding its related expenses. Mueller regularly disclosed this information during his investigation, but the department now refuses to turn over the Durham-related records because they are part of an “ongoing investigation.”
And while the Justice Department has released to American Oversight records of Barr’s expenses on his travel to Europe — which he reportedly took with Durham — it is withholding in full any records showing Durham’s expenses, saying those are also exempt because they are part of an “ongoing investigation.
The Justice Department’s selective assertion of a privilege designed to protect ongoing investigations while the attorney general continually comments on that investigation is hypocritical and suggests the department is withholding records for political advantage rather than to protect the integrity of an ongoing matter.
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