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Attorney General Bill Barr Is Facing A Rare Public Revolt From Within His Own Department

“I can’t think of any precedent for this,” one former US attorney said.

Posted on June 24, 2020, at 7:29 p.m. ET

Saul Loeb / Getty Images

WASHINGTON — The House Judiciary Committee heard Wednesday from two current Justice Department prosecutors who testified that decisions from Attorney General Bill Barr and others at the highest levels of the department had been improperly influenced by politics and the personal desires of President Donald Trump.

In less than a week, Barr has faced two instances of extraordinary public pushback from within his own department. Just days before the hearing, the then-sitting US attorney in Manhattan, Geoffrey Berman, took to Twitter to publicly rebuke an effort by Barr to remove him from office. The two men exchanged barbed statements over the course of 24 hours, and Berman ultimately only agreed to leave once he was satisfied with a new succession plan.

It’s common to see former political appointees and prosecutors criticize policies and prosecutorial decisions that they disagree with once they leave the department. It’s highly unusual to have current employees and officials air grievances in such a public way.

Aaron Zelinsky, an assistant US attorney in Maryland who had worked in special counsel Robert Mueller’s office, testified by video on Wednesday that a decision by senior DOJ officials to contradict Zelinsky and other line prosecutors’ recommendation of a stiff sentence for Trump ally Roger Stone was motivated by the president’s desire to “cut Stone a break.” Zelinsky said that a supervisor told him that Timothy Shea, the interim US attorney in Washington, DC, at the time gave Stone special treatment because Shea was “afraid of the president.”

John Elias, a prosecutor in the Justice Department’s Antitrust Division, testified that Barr had ordered an investigation into mergers in the cannabis industry despite findings from staff in the Antitrust Division that a probe wasn’t justified. Elias said that the head of the division, Makan Delrahim, told employees at an all-staff meeting that the investigation was taking place because the cannabis industry wasn’t popular “on the fifth floor,” a reference to where the attorney general has his office in the DOJ headquarters building in Washington.

Elias also testified about problems he saw with a decision by department leadership to open an antitrust investigation into an agreement between California and four car manufacturers on air quality emissions standards that went beyond what the Environmental Protection Agency was planning to do. Trump had tweeted his disapproval of the California agreement on Aug. 21, 2019. The next day, Elias told lawmakers on Wednesday, officials in the Antitrust Division ordered staff to open an investigation.

Both the Senate and House have held numerous hearings over the years on Justice Department controversies and sought testimony from current and former officials involved, but any criticism of the department generally came from witnesses who were no longer working at DOJ.

When the House and Senate held hearings in 2007 about allegations that nine US attorneys were fired the previous year for a variety of improper political reasons, then–attorney general Alberto Gonzales and other senior DOJ officials testified in defense of the department’s actions. One former senior DOJ official, Monica Goodling, testified that she’d “gone too far” in asking applicants for career jobs at the department political questions; she denied being involved in the firing scandal. Goodling only testified after she’d resigned, however.

Timothy Purdon, who served as the US attorney in North Dakota for five years during the Obama administration, said in an interview with BuzzFeed News that he was struggling to think of a similar situation in recent DOJ history when active career prosecutors had spoken out to criticize the department, or when a US attorney publicly fought with the attorney general.

He said the US attorney firings under President George W. Bush was one instance when internal DOJ tensions became public. As for Berman’s pushback, Purdon cited the Watergate scandal during the Nixon administration, when a series of senior DOJ officials resigned during the “Saturday Night Massacre” rather than follow Nixon’s order to fire the special prosecutor.

“I can’t think of any precedent for this,” Purdon said of the past week’s public pushback from Berman and the two prosecutors. “To the extent I’m grasping for analogies for both of these situations, I have to turn to two of the darkest episodes in the history of the Department of Justice, and that’s a bad sign.”

There are federal laws and Justice Department policies that allow career employees like Zelinsky and Elias to lodge complaints and allegations of misconduct within the department. Zelinsky on Wednesday was careful to limit his testimony to the Stone case, which he said he’d received permission from the department to testify about. Republican members of the committee attempted to question him about the Mueller investigation, and Zelinsky replied that he needed to go back to department officials to get approval to speak about that.

Mueller’s office originally brought the criminal case against Stone, a longtime political operative and ally of Trump's who was charged with lying to Congress about his contacts with WikiLeaks and witness tampering. After Mueller’s office shuttered in the spring of 2019, the US attorney’s office in DC took over Stone’s case; Zelinsky, who had been an assistant US attorney before joining Mueller’s team, continued to work on the case.

A jury found Stone guilty on all seven counts in November. Leading up to Stone’s sentencing hearing in February, Zelinsky and the other prosecutors filed a sentencing memo recommending Stone face between seven to nine years in prison. Zelinsky testified that his team had been pressured by senior leadership in the US attorney’s office to recommend a lower sentence for Stone, and that a supervisor said Shea’s instructions were rooted in “political considerations,” but they ultimately got approval to file the memo they’d written.

Trump objected to the recommendation, tweeting early in the morning the next day that it would be a “miscarriage of justice” for Stone to serve that long.

Later that day, the Justice Department filed another “supplemental” sentencing memo in Stone’s case, this time signed by another career official, John Crabb, the acting head of the US attorney office’s criminal division. That memo walked back the earlier recommendation, saying a sentence of seven to nine years would be “excessive and unwarranted under the circumstances.” Crabb wrote that the department’s position was to defer to the judge on what was appropriate.

Zelinsky and the other three prosecutors withdrew from the case; Zelinsky also left his temporary assignment to the DC office and went back to the Maryland US attorney’s office. Zelinsky testified on Wednesday that he’d asked to speak with Shea about the decision to change the recommendation, but was not granted a meeting.

Zelinsky said that assistant US attorneys from across the country contacted him later to express their disappointment with the department’s handling of the Stone case.

“I was disappointed because we took an oath to do our job, to follow the law, to follow the department’s policy, and to do what’s right, and what happened here was wrong,” Zelinsky said.

In response to Zelinsky’s prepared testimony in advance of Wednesday’s hearing, DOJ spokesperson Kerri Kupec released a statement saying that Zelinsky’s allegations of political interference “are based on his own interpretation of events and hearsay (at best), not first-hand knowledge.”

“The Attorney General determined the high sentence proposed by the line prosecutors in the Roger Stone case was excessive and inconsistent with similar cases. In the interest of ensuring the imposition of a fair sentence, the Attorney General directed Tim Shea, who was then U.S. Attorney for the District of Columbia, to leave the sentencing to the discretion of the judge,” Kupec said. “The judge ultimately sentenced Mr. Stone to half the time that the line prosecutors had originally proposed. As he has previously stated, the Attorney General did not discuss the sentencing of Roger Stone with the President or anyone else at the White House and had made the decision to correct the filing before the President tweeted about the case.”

Kupec also announced that Barr would testify before the House Judiciary Committee himself on July 28.

Elias testified that the investigations into the cannabis industry and automakers’ agreement with California unfolded in ways that broke with standard practices in antitrust investigations. Staff who had assessed one of the cannabis industry mergers determined it was unlikely to raise competitive concerns, and that was relayed to Barr, but he still ordered the additional probe, Elias said.

Career staff similarly were overruled when they voiced concerns about going ahead with a full investigation into the California agreement without first doing an initial analysis to determine if there was a legal and factual basis for it, he said.

In response to Elias’s testimony, another DOJ spokesperson, Brianna Herlihy, put out a statement saying the department “strongly disagrees” with his claims that officials acted inappropriately.

Elias said he filed a complaint with the department’s inspector general. According to Herlihy, there were complaints from “anonymous whistleblowers” about the cannabis industry probe, and those were handled by the DOJ Office of Professional Responsibility, or OPR, a separate office that investigates attorney misconduct allegations. That office’s findings aren’t public, but Herlihy said OPR determined that it was appropriate for the Antitrust Division to seek information about mergers within the industry.

The department closed the California investigation in February. Herlihy said it was legitimate to probe whether the agreement between the state and automakers was anticompetitive, and when department officials concluded it wasn’t, they ended it.

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