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The Justice Department's Criminal Inquiry Into Russia Probe


We're going to begin this hour by discussing the news that the Justice Department is pursuing a criminal inquiry into the Russia investigation. Attorney General William Barr was pursuing administrative review, reportedly to understand what investigators did when the Russia investigation began. But the switch to a criminal investigation changes the nature of the inquiry. It's unclear why the DOJ is pursuing a criminal investigation. But Democrats are now expressing alarm that Mr. Barr has aligned himself with the president's own view of the DOJ as a political weapon for this president.

For more on this, we've called on Harry Litman. He is a former U.S. attorney and a former deputy assistant attorney general who worked with Mr. Barr. Mr. Litman, thank you so much for joining us. Nice to have you back on the program.

HARRY LITMAN: Thanks very much for having me.

MARTIN: So, first of all, could you just tell us, how is a criminal inquiry different than an administrative review?

LITMAN: The difference is that someone has determined that there is - the term of art at the DOJ - reasonable indication that someone has committed a crime. That's a pretty modest, low threshold. Nevertheless, it's really puzzling here because everything about the beginning of this probe has been gone over with a fine-tooth comb repeatedly, right? The Republicans have been exhaustively sifting through it for years. And Bill Barr's making a new administrative review already seemed odd and noteworthy. So for now to ripen into a criminal investigation, notwithstanding that the threshold for doing so is modest - it's really head-scratching.

MARTIN: Well, you've just said that the standard for opening a criminal investigation is actually fairly low. But is there some protocol that had to have been followed here? Or is this solely in the attorney general's discretion?

LITMAN: Well, there typically is a protocol. It's something you make with the determination and collaboration of investigators. But the attorney general is the attorney general. He runs the department. So surely it is true that were he to have said, I'm Bill Barr, and I see a reasonable indication, that would, in fact, trump anything else, so to speak. And a reasonable indication would be considered to have happened. So the typical protocol, as with anything else, can be finally countermanded or simply taken over by the attorney general.

MARTIN: Well, that was going to be my question. I mean, you worked with William Barr in the '90s...


MARTIN: ...When he was attorney general under President George H.W. Bush. Around the time he was nominated, you wrote in The Washington Post, quote, "as attorney general, Barr did not politicize the Justice Department. He had no problem working with people of different political affiliations. He viewed the department's work as apolitical and the views of nearly all department employees as irrelevant." You said, you know, at the time, he's an institutionalist. He understands the important values of the Department of Justice. He has integrity. He has stature. He's nobody's toady. Do you feel the same way now?

LITMAN: I did write all that, and it was all true then. And the short answer is no. It's not just a disappointment but almost a heartbreak to have seen what happened to him. The sort of signal instance is when he stood up there and basically mischaracterized the Mueller report. He really has been a different attorney general. It's mattered a great deal. I've thought about it and ruminated about it and, of course, taken justifiable criticism for the things I wrote at the time. But I find myself in instances like this not being able to eliminate the possibility, which I would confidently have done before, that there's, you know, something political afoot.

MARTIN: Is it possible that there is some behavior that warrants a criminal review? I mean, as you said, you find it unlikely because this - just as a matter of course, given the sensitivity of the matter, you say that this - every step of the way of the - this investigation was gone over with a fine-tooth comb before. But people have criticized, for example, Jim Comey, for example, the former FBI director - his sort of judgment calls - and felt that he violated certain sort of protocols and decisions and actions that he'd made. So is it beyond the realm of possibility that some conduct here warrants a criminal review?

LITMAN: Not at all. And you're absolutely right. But, of course, to date, we have been talking about judgment calls and possible departures from protocol. And there certainly is room to think that maybe there is something to that effect. But it's really a gulf between that and actual criminal conduct, normally involving, you know, some kind of malevolent intent. So I'm not saying it's beyond the realm of possibility. I'm saying it's deeply puzzling, but certainly that's possible.

MARTIN: You thought you knew Bill Barr. You'd worked for Bill Barr. You'd certainly followed his career. Given that this behavior doesn't comport to what you thought you knew of him, what accounts for it in your view?

LITMAN: Boy, is this a question I've thought about a lot. And I do just want to underscore - what I'm saying is it's a suspicion that we now have to entertain, and even that is troubling. I'm not, you know, pulling the trigger on saying this is what he's done. But if he has done it, why? I think he has spent his life as a defender of executive power. He has a sense that were Trump to go down in flames, the executive branch would be overall weakened. This happened in the wake of Watergate, and he'd like to prevent it. Another hypothesis is simply that he's a partisan Republican, you know, and is now sort of donning arms for the fight, the political fight between Trump and the Democrats.

MARTIN: Before I let you go, I do want to ask about the impeachment inquiry yesterday.


MARTIN: A federal judge ruled that the Justice Department must turn over materials from the Mueller investigation to House Democrats. Some analysts are saying that this means that the courts view the impeachment inquiry as legitimate. What is your take on this?

LITMAN: There's no doubt that that's precisely what Judge Howell said. But I think in general, there's a really interesting dynamic now. The administration stonewalled and went to the courts thinking they would buy enough time to get past the Mueller crisis. And they did. But now the decisions are hitting home just when the new crisis is here, and their reversals are coming not simply on resolve but with rhetoric that the courts are weighing in to really express their outrage at what have all long been meritless positions from the executive. So, of course, it will now go up on appeal. We'll see if it holds. But generally, the courts have been weighing in strongly in favor of the rule and against the White House.

MARTIN: That is Harry Litman. He's a former U.S. attorney. He's a former deputy assistant attorney general. He's now teaching constitutional law and national security law at the University of California at Los Angeles School of Law. And he's the host of the "Talking Feds" podcast.

Harry Litman, thank you so much for talking with us.

LITMAN: Thanks for having me, Michel. Transcript provided by NPR, Copyright NPR.