Though Election Day is approaching and voting has already started in some states, Attorney General Bill Barr’s Justice Department has been involved in a whirlwind two days of unusual, politically charged activity.
Most notably, a US attorney made a vague, partially inaccurate statement Thursday about problems with a handful of military ballots in one Pennsylvania county — a statement that went out of its way to say the ballots were cast for Donald Trump. This seemed designed to boost the president’s claims that mail voting is riddled with fraud, and indeed, press secretary Kayleigh McEnany revealed that the White House had a heads-up about it.
Also Thursday, Barr released some information that he suggested cast further doubt on a major source for the Steele dossier, sending it in a letter to Senate Judiciary Chair Lindsey Graham (R-SC). The Steele dossier was clearly deeply flawed, and Trump’s supporters have zeroed in on the FBI’s use of it as part of their larger project to discredit the Russia investigation. But the political dimension of this revelation was obvious: Graham quickly went on Fox News to tout his findings and to ask Fox viewers for donations to help him in his own tough reelection.
Meanwhile, in advance of a hearing next week at which a judge will consider whether the Justice Department can withdraw the false statements case to which Michael Flynn pleaded guilty, the Department sent new internal FBI documents about the case to Flynn’s lawyers, and released notes from a recent interview of an FBI agent who worked on the case and says he was skeptical about it.
The Flynn moves aren’t necessarily aimed at affecting the election; the timeline for these proceedings has been set by the judge in the case, Emmet Sullivan. But they are part of the broader unusual situation in which Barr has ordered a review of the Flynn case in an apparent attempt to discredit the Trump-Russia investigation.
Typically, custom dictates that Justice Department officials should be deeply careful about taking actions that could affect an election in the weeks before it takes place — though then-FBI Director James Comey famously violated that tradition in 2016.
But Barr’s Justice Department has made its priorities clear: They want to advance the political narratives of President Trump. And they’re clearly not going to stop doing so in the weeks before election day.
The Pennsylvania ballots
The most alarming move from the Justice Department lately came from a surprising source: the US attorney for the Middle District of Pennsylvania, David Freed.
Many details about the underlying situation here are still murky. But on Monday, Freed’s office and the FBI began “an inquiry into reports of potential issues with a small number of mail-in ballots at the Luzerne County Board of Elections,” Freed said in a statement.
If there are reports of issues with ballots, the Justice Department should naturally investigate. But the way this information was dribbled out seemed designed to bolster President Trump’s baseless claims that mail voting is deeply flawed — when Freed’s actual findings have so far revealed no such thing.
The first public indications that something was up came when Trump himself told a Fox host in a radio interview that “Trump ballots” in “a trash can” were found in “a certain state,” and when White House press secretary Kayleigh McEnany mentioned at a press briefing that “ballots for the president were found in Pennsylvania.”
Then Freed released his first statement on the matter. The brief, vague statement said he could confirm that “a small number of military ballots” — nine — were “discarded.” It didn’t explain how or why, or whether there was intentional malfeasance. But the statement made sure to point out that “all nine ballots were cast for presidential candidate Donald Trump.” (This statement turned out to be wrong. Freed corrected it to say that seven of the nine were cast for Trump, the other two were resealed and their candidate preference is unknown.)
The statement about an ongoing investigation was strange in and of itself. But the revelation that the discarded ballots for Trump seemed particularly politicized, as former Justice Department official Justin Levitt tweeted:
An investigation here may be reasonable. But there is NO legit reason for:— Justin Levitt (@_justinlevitt_) September 24, 2020
1) a DOJ press release on a pending investigation, that
2) announces a partial list of unconfirmed facts, including
3) the identity of one of the candidates on specific ballots.https://t.co/T92nz8tZpV
And indeed, Trump campaign spokesperson Matt Wolking quickly tweeted out Freed’s statement, writing: “BREAKING: FBI finds military mail-in ballots discarded in Pennsylvania. 100% of them were cast for President Trump. Democrats are trying to steal the election.” (Wolking eventually deleted the tweet after it had been retweeted thousands of times.)
But Freed’s longer letter about his findings so far, released later Thursday, contains nothing to back up the inflammatory “steal the election” claim. Indeed, it seemed entirely possible that the military ballots were opened accidentally because the election board staff thought they could have been ballot requests instead of the ballots themselves.
It’s also unclear whether the local election board’s practice was simply in keeping with a recent ruling from the Pennsylvania supreme court — that any mailed ballots lacking an inner “secrecy envelope” have to be discarded. Republicans in the state have supported this ruling, and Freed’s statement did not comment on the issue.
So it’s uncertain whether local officials did anything wrong at all, and there’s certainly been no evidence of a dastardly plot to steal the election. Yet Freed’s statement seemed designed to bolster Trump’s baseless claims to this effect. And ABC News’ Alexander Mallin reported that Barr had personally briefed Trump about the investigation, explaining why the White House was so prepared to pounce.
The Steele source
Meanwhile, Barr himself made another unusual release of information on another topic — the infamous “Steele dossier” about Trump’s ties to Russia.
The Steele dossier has not aged well. Its most specific allegations were not corroborated by the Mueller investigation. Former FBI agent Peter Strzok recently called it “a problem for the investigation, because it sent people off on a series of wild goose chases.” And inspector general Michael Horowitz as criticized the FBI’s use of Steele’s claims to justify the surveillance of former Trump campaign aide Carter Page.
As Horowitz wrote last year, “Steele himself was not the originating source of any of the factual information in his reporting. Steele instead relied on a Primary sub-source for information, who used his/her network of sub-sources to gather information that was then passed to Steele.”
The problem was that, when the FBI finally reached out to that primary sub-source directly, he largely disavowed Steele’s claims, saying that the information he gave Steele was “just talk,” should be taken with “a grain of salt,” and included statements he heard made in “jest.” Steele’s write-up, he said, was more “conclusive” than it should’ve been.
Barr’s new release — made in a letter to Senate Judiciary Chair Lindsey Graham — reveals more information casting doubt on the primary sub-source. Specifically, he himself was under counterintelligence investigation by the FBI from 2009 to 2011, and the investigation found he’d had some contact with Russian intelligence officers. (The government has not named the primary sub-source, but he is reportedly Igor Danchenko, who previously worked for the Brookings Institution think tank.)
However, the whole point of the dossier, in theory, was that Steele’s sources were supposed to talk to connected Russians, including government officials, to try to learn what was going on. So it doesn’t make sense that mere contact with these officials would discredit the dossier. The bigger problem would be if those officials (or Danchenko himself) were deliberately seeding disinformation that Steele then unskeptically parroted.
In any case, both Barr and Graham are framing this new release as simply part of the congressional oversight process — Graham’s committee is investigating the dossier, and Barr is responding to that oversight.
But the obvious political dimension was made clear when Graham went on Fox News twice Thursday to tout his findings — and, both times, pleaded for campaign donations from Fox viewers. (Graham’s Democratic opponent, Jaime Harrison, has raised an extraordinary amount of money recently, and Graham claimed that he is getting “killed financially.”)
Barr also writes that the new information was brought to his attention by US Attorney John Durham, whose review of the Trump-Russia probe is ongoing. Barr has reportedly pressured Durham’s team in recent weeks to submit some findings before the election, and one prosecutor on the team, Nora Dannehy, resigned in protest. Trump and Barr have made clear they want Durham’s findings made public, and this may be one roundabout way in revealing part of them.
The Flynn wrangling
Finally, the Justice Department made new disclosures related to the case against former National Security Adviser Michael Flynn.
Back in December 2017, Flynn pleaded guilty to lying to the FBI about his phone conversations with Russian ambassador Sergey Kislyak during the transition, in a case brought by special counsel Robert Mueller’s team.
Flynn pledged to cooperate with the government and his case was set for sentencing in December 2018. But when the judge in that case, Emmet Sullivan, harshly criticized Flynn’s conduct and sounded surprisingly likely to give him some prison time, Flynn asked to delay his sentencing so he could continue to cooperate with the government.
But Flynn’s cooperation fell apart, and he changed his legal strategy in 2019 by hiring an aggressive conservative lawyer, Sidney Powell, who sought to discredit the government’s case against Flynn, making claims of investigative misconduct.
Powell had an important ally in this effort: the attorney general. Barr assigned Jeff Jensen, the US Attorney for the Eastern District of Missouri, to review Justice Department and FBI decision-making in the Flynn case. Then, in May, prosecutors announced that they would drop the case against Flynn, claiming that it wouldn’t serve the interests of justice.
Judge Sullivan, however, was skeptical. Sounding suspicious of the government’s motives, he did not allow the case to be thrown out just yet. A hearing in which he will question attorneys will take place on Tuesday.
What’s important to understand here is that the Justice Department and Flynn’s defense lawyers are now essentially working together, to try and get the case thrown out. That’s the context for this week’s new disclosures.
First, the government handed over a new set of internal FBI notes and messages to Flynn’s defense team. Some of these messages revealed some skepticism from agents about the strength of the Flynn investigation back in late 2016. However, that was before Flynn’s contacts with the Russian ambassador. Powell also distorted or misinterpreted some other messages — claiming that an FBI analyst’s statement that “i think some of these guys want a clinton presidency” was about the FBI, when the context makes clear “these guys” was referring to Russians.
Second, prosecutors filed notes from an interview US Attorney Jeff Jensen’s team conducted in his review of the Flynn case. The interview, which took place last week, was of former FBI case agent William Barnett, who handled the counterintelligence investigation against Flynn and later worked in Mueller’s office.
In it, Barnett reveals that he was often quite skeptical of the Flynn investigation, while other prosecutors and agents were more suspicious. He also was surprised to have been left out when Peter Strzok and another agent interviewed Flynn (the interview that was the basis for the charges against Flynn). And he expresses his opinion that Flynn’s prosecution was a way to “get Trump.”
“The interview summary itself is a series of contradictions,” Politico’s Kyle Cheney and Josh Gerstein write. They continue: “Though Barnett voices deep doubts about the motivations of some of his colleagues, he ultimately agreed that Flynn lied to the FBI. He also indicated that he believed the other investigations led by the Crossfire Hurricane team were meritorious, though he says he often offered more benign theories about actions taken by Trump and his team when other agents were inclined to view them in a more incriminating light.”
These releases, overall, seem designed to bolster the government’s and Flynn’s arguments that the case against him should be thrown out. But they don’t appear to reveal any actual misconduct. And though it’s entirely possible that Judge Sullivan will eventually let the case against Flynn be dropped, he’ll want to ask some tough questions first at Tuesday’s hearing.