The Justice Department has delivered an early "October surprise" — and it's probably not one that Attorney General William Barr had in mind.
It came last week when a highly respected and experienced prosecutor, Nora R. Dannehy, unexpectedly resigned as senior aide to Connecticut's U.S. Attorney, John Durham. Durham is leading the Barr-sponsored investigation of the FBI’s own investigation of alleged 2016 Trump campaign Russia connections and Dannehy was his No. 2.
Commentators have long predicted — and Barr has long foreshadowed — that Durham’s investigation would be shaped into an October surprise to help re-elect President Donald Trump. The expectation has been that the attorney general would bend department practice to “go public” with some aspect of the Durham probe in a continuing effort to undercut the Mueller investigation, the FBI and the Obama-Biden administration.
Durham under pressure to produce
The Hartford Courant reported that according to her colleagues, Dannehy’s resignation arose “at least partly out of concern that the investigative team is being pressed for political reasons to produce a report before its work is done." Consummate professionals like Dannehy do not leave high-profile investigations mid-stream without explanation. Had she resigned for personal reasons or to take another job, she would have said so to avoid speculation that might discredit the investigation and Durham, with whom she is close. And by now she would have rebutted her colleagues’ comments if they were wrong.
We know President Trump has pressed Barr and Durham to announce results from their investigation before the election — whether through indictments or a non-standard report on a pending investigation. We also know Barr publicly prejudged the FBI’s conduct under investigation by Durham. In fact, in a comprehensive July complaint to the D.C. Bar Association, 27 distinguished Washington lawyers challenged Barr’s televised remarks about that conduct as a violation of D.C. Bar professional conduct rules.
Former New Jersey U.S. Attorney Paul J. Fishman told us that given the decades-long professional connection between Dannehy and Durham, “there must have been a profound disagreement to precipitate this type of resignation at this critical juncture.” Fishman added: “To fellow prosecutors, Dannehy’s participation lent legitimacy to a probe whose purpose many questioned. Her unexplained departure in the middle of a high-pressure investigation is a huge blow to its integrity.”
That is one reason why the resignation is important. But there is another. Dannehy’s decision serves as a model for how principled government lawyers act. They decline to violate rules and norms that long made the pre-Barr Justice Department a revered institution. One key but unwritten tradition is that the department do nothing in the 60 days before an election that might affect that election. Barr himself supported that practice as attorney general for President George H.W. Bush.
Dannehy’s model conduct came at a pivotal time, less than eight weeks before a presidential election. As the 27 lawyers said in their complaint against Barr, this attorney general "has consistently made decisions and taken action to serve the personal and political self-interests of President Donald Trump, rather than the interest of the United States." If Mr. Barr remains on his current course, he is bound to continue using the powers of his office to support Mr. Trump’s re-election.
Blow the whistle on partisan abuse
In the coming months, that can happen in many ways. Mr. Barr has already adopted the president’s meme that mail-in ballots lead to fraud, casting doubt on voting by mail in the time of coronavirus. Barr is sure to harness the Justice Department to serve as the president’s individual lawyer in post-election court contests. Indeed, last week he commandeered the department to take over as the president’s new defense lawyer in E. Jean Carroll’s defamation lawsuit against Trump relating to her original allegation that he raped her (a claim he denied).
The president has threatened to unleash federal law enforcement and “sheriffs” to police the process on Election Day. This is a well-worn path, used historically to intimidate minority voters. At the least, that course would require the attorney general’s blessing.
Career lawyers in the Justice Department are sure to face difficult choices about participating in partisan misuse of the department in the upcoming presidential election, the nation’s core democratic moment. By blowing the whistle on such abuses — whether via resignation, collective public statements, speaking truth to power or other forms of protest — those career professionals would become powerful character witnesses for the rule of law in the impending trial of our Republic.
Such actions would place them on the same honor roll that now includes, in addition to Nora Dannehy, the Michael Flynn and Roger Stone prosecutors who quit when Barr intervened in their cases; former acting Attorney General Sally Yates, fired after saying she was not convinced a Trump travel ban was lawful and refusing to defend it in court, and Elliot Richardson and William Ruckelshaus — Justice Department leaders who defied President Richard Nixon's order to fire Watergate special prosecutor Archibald Cox, and resigned their posts in what became known as the Saturday Night Massacre.
Frederick Baron was associate deputy attorney general and director of the Executive Office for National Security in the Clinton administration. Dennis Aftergut is a former federal prosecutor who writes on national affairs.
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This article originally appeared on USA TODAY: Dannehy resigns from Durham FBI Russia probe, joins Justice honor roll