MSNBC's Rachel Maddow obtained a Feb. 2020 memo authored by then-Attorney General Bill Barr saying that anyone at the Justice Department who is investigating a political candidate has to run it by the Attorney General. That memo, she explained, was renewed by Attorney General Merrick Garland in May 2022.
"The Department of Justice has a strong interest in the prosecution of election-related crimes, such as those involving federal and state campaign finance laws, federal patronage laws, and corruption of the election process. As Department employees, however, we must be particularly sensitive to safeguarding the Department's reputation for fairness, neutrality, and non-partisanship," the memo says.
"Simply put," it continues, "partisan politics must play no role in the decisions of federal investigators or prosecutors regarding any investigations or criminal charges. Law enforcement officers and prosecutors may never select the timing of public statements (attributed or not), investigative steps, criminal charges, or any other actions in any matter or case for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party. Such a purpose, or the appearance of such a purpose, is inconsistent with the Department's mission and with the Principles of Federal Prosecution."
The new guidance from Barr said that any investigation for a declared candidate for president has to be run by the attorney general personally.
However, the 2022 midterms aren't elections for presidents, and former President Donald Trump hasn't declared he's running in 2024 yet. Even if he had announced or if he announces ahead of 2022, the memo essentially says that any investigator looking into Trump has to run it by Garland. The theory is that if someone at the Justice Department was investigating a former president it likely would include the attorney general. It would have prevented FBI Director James Comey from announcing an investigation into Hillary Clinton in 2016, however.
Former Justice Department official Andrew Weissmann said that under a normal and reputable attorney general something like this would make sense.
"On the other hand, the Bill Barr Justice Department was anything but a Justice Department. The rule of law was so flouted that the idea of re-upping something that he put in place is one that I'm not sure if I were at the department I would look at with anything other than saying, 'I am not bringing a case against anyone at the White House until such time as I personally approve it' no matter how much evidence seems to be accumulated in the Jan. 6th committee hearings. So, you know, I think it's a plus/minus. You know, it probably could have been phrased a lot better and clearer to people at the Justice Department."
None of the people involved in Jan. 6 are at the White House anymore, however.
Weissmann went on to quote the recent Wall Street Journal report that the Justice Department was getting more funding to address the Jan. 6 cases.
"Is it expanded to include all of the evidence of criminality that was laid out by the Jan. 6th committee? In other words, not just who attacked the Capitol on Jan. 6th and not just fake electors, but what was going on at the Department of Justice in terms of beheading Jeffrey Rosenstein to get a lackey? What is going on in other states? The pressuring of the vice president of the United States?" he asked. "All of that seems to me to be appropriate for a criminal investigation."
Last week, Weissmann penned an op-ed saying that he was concerned by the reports that Justice Department officials were shocked by Cassidy Hutchinson's testimony. It led him to believe that their "shock" meant they didn't know about her comments to the Jan. 6 committee. That would thus mean that the DOJ isn't doing investigations into the White House role in Jan. 6, or if they are they hadn't brought in someone as key as Hutchinson.
Maddow's opener and Andrew Weissmann's commentary are below: