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2 former Justice Department officials on Trump, Barr and the rule of law

President Trump is apparently ignoring Attorney General William Barr’s appeal for an end to public statements and tweets about the Justice Department, insisting he has the right to intervene. Also, former FBI Deputy Director Andrew McCabe will not be charged with lying to federal officials. Judy Woodruff discusses with Thomas Dupree and Joshua Geltzer, both former Justice Department officials.

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  • Judy Woodruff:

    President Trump today dismissed the U.S. attorney general's public appeal that he stop tweeting about the Justice Department.

    The president wrote that he has the right to ask the agency to intervene in a criminal case, but added that he has — quote — "so far chosen not to."

    Hours later, it was revealed that former acting FBI Director Andrew McCabe, who has been frequently criticized by President Trump, will not be charged with lying to federal officials. McCabe's lawyers said today that the Justice Department has closed the long-running case.

    He was fired in 2018. The department's inspector general found that he had lied to investigators about allowing news leaks in a probe of the Clinton Foundation in 2016. McCabe disputed the finding at the time.

    And, today, he weighed in on CNN, where he is a paid commentator.

  • Andrew McCabe:

    It is an absolute disgrace that they took two years and put my family through this experience for two years before they finally drew the obvious conclusion and one they could have drawn a long, long time ago.

  • Judy Woodruff:

    Also today, multiple news outlets reported that Attorney General Barr has ordered an outside review of the handling of the case against former National Security Adviser Michael Flynn. And attorneys for longtime ally of President Trump Roger Stone have asked a judge for a new trial, days before he is expected to be sentenced.

    We dig into all of this now with two former officials who know the inside workings of the Justice Department.

    Thomas Dupree oversaw cases on appeal for the department during the George W. Bush administration. He is now an attorney in private practice. And Joshua Geltzer served as counsel in the department's National Security Division. He also served in the Obama White House, and now helps to run a legal advocacy institute at Georgetown University.

    And we welcome both of you to the "NewsHour."

    So many moving parts here, I hardly know where to begin.

    But let me just start, Thomas Dupree, with what the president tweeted today, which is essentially that he has the right to ask the Justice Department to intervene in a criminal case.

    Is this something that presidents have done before?

  • Thomas Dupree:

    No. In a nutshell, no.

    I mean, you may be able to find one or two instances in our history where presidents have directly intervened, but it certainly is not something that is regularly done.

    I will say this. Look, the president, as a constitutional matter, is right. He has the executive branch, and he has the power, if he wants to exercise it, to do it.

    However, there is a very well-established norm that governs the Justice Department, where I served, where presidents understand that they can't be seen as politicizing the Justice Department and allowing prosecutorial decisions to be determined by partisan considerations.

    That's why you have separation. That's why presidents have respected the independence of the United States Department of Justice.

  • Judy Woodruff:

    So, Joshua Geltzer, what does it say when the president is saying this to the world, in essence, that he has the power to do this?

  • Joshua Geltzer:

    I think it speaks to a very different vision of the executive branch that this president holds.

    And it's one in which the executive branch doesn't serve the interests really of the nation, of the collective, of the country, but the executive branch serves him, him alone. This is the context in which we can put this.

    We saw that with the Ukraine extortion. We see that here. These are different tools of national power being diverted to help the president and his friends and to harm his adversaries.

  • Judy WoodruffF:

    What is the danger, though? I mean, if we — and, again, there's so much to ask you about the decision by — that the Justice Department announced today that they want to look into the Michael Flynn case, which is heading toward a sentencing phase just in the coming days.

    And Justice announces they're going to — what are they investigating there?

  • Thomas Dupree:

    Right. Well, it's a great question.

    What they appear to be investigating is really the facts and circumstances that led up to the decision to charge Flynn with lying to federal investigators. It's possible that what the attorney general wants is to bring in a new team, a new prosecutor, who can look over the evidentiary record and potentially second-guess the original decision made by prosecutors.

  • Judy Woodruff:

    At this late hour, though?

  • Thomas Dupree:

    Well, that's what makes this so extraordinary. He already pled guilty. He's now trying to withdraw his guilty plea. Sentencing may be imminent.

    And now, at the 11th hour, or possibly the 12th or 13th hour, the Justice Department has announced it's going to be taking a fresh look at it. It's absolutely extraordinary.

  • Judy Woodruff:

    What would be the rationale for intervening at this point? And there is some reporting today that this was a direct decision the part of the attorney general.

  • Joshua Geltzer:

    Well, the only rationale is that the president doesn't like how justice is being done.

    But that's precisely the type of rationale, as Thomas has said, that we have tried to keep away from the formidable tools that are criminal investigation and, ultimately, criminal prosecution where it's appropriate. It's hard to see this as anything other than politics.

  • Judy Woodruff:

    And, as we reported, coming on the very same day, Tom Dupree, that the Justice Department announced that it will not go ahead and charge Andrew McCabe, the former acting FBI director.

    This is after more than a year of indicating — of the inspector general's report — and indicating that he would be charged.

  • Thomas Dupree:

    Right.

    And that's yet another very unusual event, is that they advised him to expect to be indicted. Typically, you would only do that when you're poised to go before a grand jury, which almost inevitably indicts. And so I think that would be a fair inference to draw, that the Justice Department tried to get an indictment from a grand jury, couldn't, and then spent the next year reevaluating their case, wondering if there was a different way forward.

    And finally, today, they announced that they have pulled the plug on the whole prosecution.

  • Judy Woodruff:

    And this, again, Joshua Geltzer, after, again, more than a year, two years or more of the president publicly and relentlessly criticizing Andrew McCabe for the origins of the Russia investigation.

  • Joshua Geltzer:

    Right.

    What's abnormal here is not the result of declining to prosecute, when career prosecutors apparently saw nothing there. What's abnormal is the months and months and months of delay before getting to this point in which it seems that there was political pressure to try to find something, anything, to charge somebody with.

    But that shouldn't be the basis for keeping an investigation open.

  • Judy Woodruff:

    But to back off again, this all comes — and I will stick with you, Joshua Geltzer — on the heels of a kind of a remarkable few days, where you had the attorney general say that — move in to reduce the sentence of Roger Stone, after the president tweeted at 2:00 a.m. on Monday that the sentence that he was hearing about, what, six to nine years, was unfair.

    It's hard to know how to read all of this.

  • Joshua Geltzer:

    It's concerning to read all of this, because those whom the president likes, Stone, Flynn, they appear to be in one category. They are getting special treatment.

    It's taking different forms. One is a revised recommendation for a sentence. One is basically investigate the investigators. And those whom Trump doesn't like, McCabe, Comey apparently, reports say he is pushing prosecutors to try to find something to charge them with.

  • Judy Woodruff:

    And then you had the remarkable moment yesterday, Tom Dupree, where the attorney general, in a television interview, said that, no, there hadn't been interference, but it wasn't — it was making it impossible for him to do his job with the president tweeting about all this.

  • Thomas Dupree:

    Yes.

    And my first thought when I saw that, Judy, was like, oh, my God, we're going down the Jeff Sessions route again. I hope that this is not the first step in a long deterioration of the relationship between the president and his attorney general, as we saw in Jeff Sessions' case, and it in complete dysfunction.

  • Judy Woodruff:

    Who was fired.

  • Thomas Dupree:

    Right.

    Although, here, it's interesting. The president's reaction was, at least for the president, muted. He acknowledged the attorney general's point. He said, I have the power to do it. I just haven't chosen to exercise it yet.

    And I think it will be interesting in the days ahead to see if this was a one-time-only thing, whether Barr was responding to the immediacies of the Roger Stone situation, or if he really is willing to take a stand and stand up publicly for the independence of the Justice Department.

  • Judy Woodruff:

    What's at stake here, Joshua Geltzer?

    I mean, why does all this matter?

  • Joshua Geltzer:

    It matters because, under the rule of law as we know it, the formidable, the powerful, the often intimidating tools of law enforcement have been kept out of politics.

    That's not something you can use if you're a president or anyone else to pursue political ambition, personal advancement. This is changing that. This is a president and it seems an attorney general who are willing to take those norms, shatter them, and take the power of the Justice Department, extraordinary power to investigate citizens, to change their lives and ultimately put them behind bars, if they can find a crime to charge them with, and use that for political ends.

  • Judy Woodruff:

    But is it a matter of interpretation of the law that we're talking about here or something else?

  • Thomas Dupree:

    Well, I think the difficulty is that we're at a point now where every decision made by the Justice Department, whether it's Stone, Flynn, McCabe, is being viewed through a political lens.

    The president has supercharged the atmosphere with politics. And so when Barr makes a decision to either revise the Stone memorandum or to go back and look at Flynn, you can't help but think, are there political considerations at work here?

    And because so much of this, what's happening, is behind the scenes that the Justice Department, it's impossible to try to disentangle what might be political considerations from what might be a legitimate legal judgment.

    It's unfortunate we're at that point.

  • Judy Woodruff:

    Does either one of you have a — from talking to colleagues, former colleagues, people you know inside Justice, how they are absorbing all this, whether they're concerned or not?

  • Thomas Dupree:

    Well, I will — I do talk with people there. I think it's fair to say that, certainly, in the ranks of the career staff half, line attorneys, people who serve throughout administrations, there is a lot of tension, to say the least, between the political officials and the line attorneys.

    There's always a bit of tension. It's probably healthy to have it to some extent. But it's reached a new level, I think, in this administration.

    I think that the attorney general would be well-advised to basically do what he can to restore morale, to assuage people that the judgments that are being made are legitimate law enforcement judgments, not political judgments.

  • Judy Woodruff:

    Joshua Geltzer, what about you?

  • Joshua Geltzer:

    I would echo all of that.

    Those who are trying to do their job as civil servants enforce the law, whatever that means for the part of the Justice Department they're serving in, I think are finding it very hard to separate that job, which they want to do regardless of who happens to be in the White House, from the way Attorney General Barr is approaching the running of the Justice Department.

    And, ultimately, that can lead to the dramatic step of taking your name off a case, as we saw the four prosecutors do in Stone's case…

  • Judy Woodruff:

    Right.

  • Joshua Geltzer:

    … or even leaving the Justice Department entirely, as one of those prosecutors apparently has done.

  • Judy Woodruff:

    Well, a remarkable moment. And we will see what happens.

    Thank you very much, Joshua Geltzer, Tom Dupree. Thank you.

  • Thomas Dupree:

    Thank you.

  • Joshua Geltzer:

    Thank you.

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