William Barr Has a Decision to Make

To understand the significance of President Trump’s intervention in Justice Department guidance about the Roger Stone sentence, consider President Barack Obama’s interview with Steve Kroft on 60 Minutes on October 11, 2015. Kroft asked Obama about the Hillary Clinton private email investigation. Obama said that Clinton’s email use was a “mistake” but that the issue had been “ginned up in part because of politics” and was “not a situation in which America’s national security was endangered.” Obama added: “We don’t get an impression that here there was purposely efforts … to hide something or to squirrel away information.”

Obama made similar points in an interview with Chris Wallace on April 10, 2016. “I can tell that you this is not a situation in which America’s national security was endangered,” he said. Obama added that Clinton “would never intentionally put America in any kind of jeopardy,” and then suggested that Clinton did not have highly classified information on her server. When Wallace asked for assurances that there would be no political influence on the investigation, Obama said: “I do not talk to the attorney general about pending investigations. I do not talk to FBI directors about pending investigations. We have a strict line, and always have maintained it.”

Obama here correctly described the norm that had governed White House-Justice Department relations since Watergate. The problem was that his public comments about the case expressed a view about how it should be resolved—a view known in short order by both the attorney general and FBI director. By publicly talking about the case and expressing a view about the merits, Obama violated the very norm of Justice Department independence that he articulated.

This was a point that former FBI Director James Comey made in his memoir. Because “President Obama is a very smart man who understands the law very well,” Comey did not understand why he “spoke about the case publicly and seemed to absolve [Clinton] before a final determination was made.” Comey continued: “If the president had already decided the matter, an outside observer could reasonably wonder, how on earth could his Department of Justice do anything other than follow his lead?” Comey noted that Obama did not in fact know anything about the case beyond what he read in the newspapers. “But his comments still set all of us up for corrosive attacks if the case were completed with no charges brought.”

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