Attorney General William Barr gave a Constitution Day Speech at Hillsdale College on Wednesday, and in a question and answer session that followed, he confirmed that the recently revealed “wiping” of numerous iPhones assigned to Robert Mueller’s Special Counsel’s Office before they were turned in is currently under review by the Justice Department.
He declined to comment further on the issue.
This is nevertheless a significant comment because it suggests, for the first time, that Barr has asked someone — likely US Attorney Jeffrey Jensen of St. Louis — to conduct a more comprehensive analysis of the conduct of the Special Counsel’s Office than the more limited effort to review the prosecution of General Michael Flynn.
AG Barr has now publicly commented on the fact that three different US Attorneys are undertaking separate inquiries at his request, although the subject-matter boundaries of each investigation are not clear.
The investigation by John Durham was the first, and the general subject matter was the origins and pursuit of the Russia-Trump Campaign investigation given the name “Crossfire Hurricane” by the FBI, although it seems clear that Durham is also examining events that predated the FBI’s opening of the CH investigation. Where the “timeline” as to the “end” of Durham’s investigation rests is unknown, but I suspect AG Barr might have set that timeline at the appointment of Robert Mueller to be Special Counsel, as that decision brought to the affair a completely new group of individuals with their own tasks — and their own agendas it seems.
AG Barr was nominated to serve in the position for a second time in the aftermath of a public dispute he raised about the tactics and strategy employed by the SCO when it seemed to shift its focus to an inquiry into whether or not Pres. Trump engaged in obstruction of justice. He wrote a lengthy memorandum he sent to former Dep. AG Rod Rosenstein questioning the legal soundness of the obstruction theories being advanced by the SCO, so it seems evident that he is likely to have an interest in having a review of the processes by which the SCO came to find itself heading down that path.
Initially, he confirmed only that US Attorney Jensen had been asked to review the investigation and prosecution of Gen. Flynn due to arguments advanced by defense counsel Sidney Powell after she took over representation of Gen. Flynn about prosecutorial misconduct and withholding of Brady material. Having been an FBI Agent for 10 years prior to becoming a federal prosecutor — also for 10 years — US Attorney Jensen had a unique skill set and perspective when evaluating how the Gen. Flynn investigation was originated by the FBI, the disputed interview of him in his office only days after the start of the Trump Administration, and the decision of the SCO to pursue a prosecution of Gen. Flynn after it seemed that DOJ prosecutors had declined to do so.
But when AG Barr commented on the decision to seek to dismiss the Flynn case, which he said was made at the recommendation of US Attorney Jensen following his review, he also stated that he had asked US Attorney Jensen to review other matters as well without specifying what those might be.
Not long after it was announced by DOJ that AG Barr had asked US Attorney John Bash out of Texas to look into the “unmasking” practices in the waning days of the Obama Administration, as well as the Sec. 702 violations identified by FISC President Judge Rosemary Collyer in an April 2017 decision, which concerned authorized access and searches of NSA databases by the FBI and FBI contractors. Sec. 702 is the statutory provision in the FISA statute which allows law enforcement agents to review NSA database materials on foreign nationals who are outside the United States.
As for the “wiping” of the Special Counsel phones, it seems likely that the task has been assigned to US Attorney Jensen — and it may have been assigned to him some time ago. The public only learned about it within the last week based on documents released in response to a Freedom of Information Act lawsuit. But it is certainly information that AG Barr has known about for some time, and the kind of information that would be material to Jensen’s review of the decision-making and motivation of the partisans who made up the SCO staff of prosecutors.
This information about the phones and the fact that it is being reviewed by DOJ — likely by Jensen — also helps to explain the zealous and vehement antipathy expressed by former SCO member Andrew Weissmann with regard to AG Barr and Pres. Trump. If Jensen has been looking into this question since around the time that the motion to dismiss the Flynn case was filed, then Weissman has likely been aware of the inquiry for a substantial portion of that time as well. It’s possible that Jensen has already made an effort to interview Weissmann on the question.
Since the moment he left DOJ and went into private life, Weissmann has engaged in a continuous effort online and in the media to discredit AG Barr and the Durham investigation.
AG Barr’s confirmation that the “wiping” of the phones — twice by Weissmann — is under review is a pretty solid indicator of what has motivated Weissman’s actions.