Wertheimer Open Letter to US Attorney Durham Calling on Him to Comply with DOJ Policy on Not Influencing Elections
In Open Letter, Democracy 21 President Calls on U.S. Attorney John Durham to Comply with DOJ Policy and Not Issue Report or Bring Indictments at this Late Stage of Presidential Election
Enclosed for your information is an open letter that Democracy 21 President Fred Wertheimer sent to U.S. Attorney for the District of Connecticut John Durham. The letter was published by Just Security here on August 6, 2020.
U.S. Attorney Durham was appointed by Attorney General William Barr to review the origins of the 2016 Justice Department investigation into Russian interference in the 2016 elections. According to the letter, “this review turned into a criminal investigation of the Justice Department’s investigation into Russia’s efforts to undermine our democracy.”
The letter noted:
The need for your appointment was hard to understand at the time it was made, since the Justice Department’s independent Inspector General was already conducting a similar investigation that began in March 2018 into the same issues. On December 9, 2019, the Inspector General issued his report and concluded that the 2016 Russia investigation had had a legitimate purpose and that there was no evidence of political bias against President Trump in how the investigation had been initiated or undertaken.
The letter continued:
Longstanding Department policies issued by the past three Attorneys General who served during an election year make plain that Department actions should not be taken in an election year that could influence or affect an election. George J. Terwilliger III, who served as deputy attorney general under Attorney General William Barr in the administration of President George H.W. Bush, said in 2016, “There’s a longstanding policy of not doing anything that could influence an election.”
I strongly urge you to follow this policy and not to issue any report, or bring any indictments, resulting from your investigation in these closing weeks of the 2020 presidential election.
Any public action by the Justice Department in this pre-election period that is associated with your investigation – which by its very nature involves actions taken during the Obama-Biden Administration – is bound to be used by President Trump for partisan political purposes to promote his re-election effort against Vice President Biden.
“U.S Attorney Durham’s professional reputation and personal integrity is squarely on the line here,” according to Wertheimer.
“Mr. Durham should not throw away his integrity, built over a long, successful career in law enforcement, and violate Justice Department policy by joining with Attorney General Barr if Barr undertakes a blatantly partisan effort to use the results of Durham’s investigation to help re-elect President Trump,” Wertheimer said.
“If Barr goes forward with a report on Durham’s investigation or brings criminal indictments based on the investigation at this late stage of the presidential election, it will violate longstanding Justice Department policy and be a gross abuse of his office,” Wertheimer said. “Mr. Durham owes it to the country and to himself to prevent any such effort by Barr and to promptly, publicly disassociate himself from any such effort, if Barr acts to influence the presidential election.”
The letter stated:
Any public release of your report in the current closing stage of the presidential election, or any indictments issued during this period as a result of your investigation, clearly will become a major campaign issue and will have political consequences. The longstanding Department policy to avoid such politicization of the Department’s work compels you to prevent this from happening.
The letter said:
If your investigation is not complete, you should not complete it until after the election. If the report is complete, you should publicly oppose any release of your report before the election. The same holds true regarding any indictment made in the closing weeks of the election.
According to the letter:
In testifying during his Senate confirmation hearings, Mr. Barr was asked whether there are “policies in place that try to insulate the investigations and the decisions of the Department of Justice and FBI from getting involved in elections?” Barr said yes and explained that the party in power has “their hands on the levers of the law enforcement apparatus of the country, and you do not want it used against the opposing political party.” But that is precisely what would occur here if a report is issued on your investigation of the Russia investigation or if indictments are brought at this critical stage of the presidential election.
You should not permit your long and distinguished career in the Justice Department to be permanently tainted, or your personal integrity to be irreparably impugned, by what would plainly be an effort to use your investigation to influence or affect the 2020 presidential election.
The letter noted:
There is no ambiguity about the mandate that “politics must play no role in the decisions of federal investigators or prosecutors regarding any investigations or criminal charges.” There is no ambiguity about the fact that this policy was established to protect the integrity of the Justice Department and the integrity of our elections. There is no ambiguity about the fact that the release of your investigative work in this pre-election period would violate this policy.
The letter concluded:
I urge you to comply with the Department’s longstanding policy to ensure that the findings of your investigation are not used to affect or influence the 2020 presidential election.
In the event that decisions about issuing a report or bringing criminal indictments are made at higher levels of the Justice Department, you should promptly withdraw your name and publicly disassociate yourself from such actions. It would abandon your own professional duty and responsibility in this matter to allow superiors to direct you to take actions that contravene a Departmental policy designed to protect the integrity of both the Justice Department and of the electoral process. Nor should you defer to any implausibly narrow or strained interpretations of the policy that might be made by the Attorney General or others.
I strongly urge you not to participate in, and to disassociate yourself from, any announcement, report release, issuance of indictments, or other public statements or actions prior to the 2020 presidential election relating to the criminal investigation you have been conducting into the origins of the Justice Department’s investigation of Russian interference in the 2016 election or any other related matters in which you are directly involved.
Read the full letter here at Just Security.
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