Checks and Balances Podcast Episode 3

Paul Rosenzweig: Hello, and welcome to Checks and Balances: Threats to this American Election.

This weekly podcast is sponsored by Checks and Balances, a group of conservative and libertarian lawyers dedicated to bolstering the rule of law and opposing the degradation of American legal norms.

My name is Paul Rosenzweig and I'm your host.

Joining me today is my guest on today's podcast are Claire Finkelstein of UPenn Law school and Donald Ayer, a former attorney in the Department of Justice.

Our topic today is the systematic disruption of DOJ by Attorney General Barr.

At Checks and Balances, we believe in the rule of law, the power of truth, the independence of the criminal justice system, the imperative of individual rights, and the necessity of civil discourse.

We believe that these principles apply regardless of the party or the person in power.

America is assuredly a government of laws, not men.

Our goal in creating Checks and Balances was to remind the nation that free speech, a free press, separation of powers, and limited government are the bedrock of the American experiment.

We hope this podcast will advance the rule of law and defend the upcoming election.

We want to make sure that as many Americans as possible understand what the law allows and what the law requires.

Our hope is to make sure that Americans who are legally entitled to vote get the opportunity to do so.

And most importantly of all, our goal in creating this podcast is to counter the false narrative that is being advanced by some in the public space.

This is the narrative that the American election is at risk.

It's the narrative that the election it'd be a fraud.

This is the narrative, the false narrative, that says the only legitimate result is the one where a particular candidate wins.

Fostering free and fair elections is not a partisan issue.

Not a right left issue.

Not a conservative or libertarian or liberal or progressive issue. 

It's an American issue.

And so, this podcast.

My guests will be people who understand what the consequences of this election are, what the laws relating to the election are, how the federal government might interact with the election process over the coming months, and in the end, they'll be people who are able to give our listeners the straight scoop.

Unbiased, fair, accurate information about what the law entails and how to make sure that every legal vote is counted.

Now, before we begin the meat of the podcast today, a quick note.

Both as a homage and as a programming note, manifestly, the passing of Justice Ruth Bader Ginsburg has caused a significant disruption in the legal world.

Even those who did not agree with her jurisprudence recognize the passing of a legal giant, and she will be missed.

Given our commitment to thoughtful legal analysis we're not in a position today to do a deep dive on the legal impact of her death, but we will in a coming episode.

For now, I simply offer the person reflection that supreme hypocrisy is itself an affront to the rule of law.

And now to our podcast.

Our guests today are, as I said, are Claire Finkelstein and Donald Ayer.

Professional Finkelstein is the Algernon Biddle Professor of Law and Professor of Philosophy at the University of Pennsylvania Law School and the Director of its Center for Ethics and the Rule of Law.

She attended Harvard College, the University of Paris Sorbonne, Columbia, and Yale Law Schools, and the University of Pittsburgh, where she received her PhD.

Donald Ayer is a fellow Checks and Balances member.

Now mostly retired after a distinguished career.

He has given long service to our nation as a U.S. Attorney, as the Principal Deputy Solicitor General, and from 1989-1990 as Deputy Attorney General.

Claire, Don, welcome.

Claire Finklestein: Thank you for having us.

Donald Ayer: Thanks, good to be here.

Paul Rosenzweig: As always, we'll start our show with news from the past week.

And as it relates to our topic today, the Department of Justice, there was ample news.

Most of it made by Attorney General Barr in a constitution day speech to Hillsdale College.

For example, at one point in his speech, the Attorney General suggested that the Federal Bureau of Investigation, the FBI, were his agents.

Attorney General Barr: Under the law all prosecutorial power is vested in the Attorney General, and these people are agents of the Attorney General.

And as I say the FBI agents, whose agent do you think you are?

Are bloviating talking heads discussing, whether some action in Washington, some action taken by an official, constitutes some esoteric crime?

And, looking through statute books can we, could we, you know, say that this is a crime?

Because disagreement no longer is enough.

Political disagreement and political debate.

Now you'll have to call your adversary a criminal, and instead of beating them politically, you try to put them in jail.

So we're becoming sort of like an Eastern European country.

Paul Rosenzweig: So Don, let me start with you.

You were the Deputy Attorney General.

What did you view as the nature of the relationship between the Department of Justice and the FBI?

Were they your agents dedicated to the Department of Justice?

Donald Ayer: Well, they are obviously employees of the Department of Justice within one of its components.

Essentially like every government employee, they work for the American people and they work within a structure of supervision that clearly makes them accountable, and reviewable, at a higher level.

One of the great errors and outrages that Attorney General Barr has perpetrated is his view of a monolithic source of power is... primary point that he makes on that is that the President, he literally said this in writing, the President is the executive branch and thus the President has absolute power to do anything he wants, including in cases where his own personal interests are at stake.

And what he's doing here is essentially taking that a step down to say, that within the realm of the Justice Department, the Attorney General is all powerful.

What he's missing is that the way this works, and the way it's worked since certainly the Watergate reforms were put in place, which is kind of my beginning of service in the government, is a process that can be respected.

It's a process where there is review at higher levels.

It's true that political people have a part in that.

It's not a system where only the career people have authority, but it's a regular process.

The big problem here, and this speech is reflective of it, is the view that it's appropriate for a political person like himself to swoop in at odd times after processes like decision-making with regard to Roger Stone or decision-making with regard to Michael Flynn have gone forward, to swoop in and say," No, no, no. We're going to do it a different way."

And it just happens to be that the president just tweeted on the same subject.

So Barr here, in this speech, is in full campaign mode asserting his view of an all powerful executive, an all powerful president, and here, of an Attorney General who can look down nose in order everybody around rather than let the processes take place in the ordinary course.

Paul Rosenzweig: So we're going to come back to Stone and Michael Flynn a little later in the podcast, and I'm also going to park for a minute the irony of the Attorney General considering the prosecution of his opponents to be reflective of an Eastern European mentality when he works for a man whose mantra was "Lock 'em up."

And I'm going to turn to another aspect of the Attorney General's speech here, which was his suggestion that Black Lives Matter, the protest movement, didn't really care about black people.

That they were just a symbol of that was being used by, I assume, left-wing agitators.

Take a listen.

Attorney General Barr: The rule of law is the foundation of civilization.

Including economic prosperity.

And that's why these so called Black Lives Matter people, now that as a proposition who can quarrel with the proposition Black Lives Matter, but they're not interested in black lives.

They're interested in props.

A small number of blacks who were killed by police during a conflict with police, usually less than a dozen a year, who they can use as props to achieve a much broader political agenda.

But I view the question of black lives as not only keeping people alive, but also having prosperity and flourishing in their communities.

Paul Rosenzweig: So Claire, leaving aside the historical inaccuracy of this and the suggestion that only a few people have been killed or injured by the police, how does this sort of rhetorical assault on protestors square with your understanding of DOJ's mission and its history and the Attorney General's role in the Administration of Justice?

Claire Finklestein: Well, it's really extraordinary, Paul, to hear the Attorney General of the United States talk about number one, police brutality in that way, but also talk about protesters in that way.

When we look at what's been going on in Portland and elsewhere, when we look at what happened in Lafayette square, it's really clear that Barr has a very personal relationship with the idea of suppressing free speech.

He has a very authoritarian philosophy, as expressed also in the first clip, and he is absolutely determined to show that he's in charge.

It was interesting in Lafayette square because he actually claimed responsibility for ordering what he claimed was pepper spray, has since been shown to be a tear gas, as well, possibly, as pepper spray on peaceful protesters.

That action took place half an hour before curfew.

The official curfew was announced, and Bill Barr was seen personally talking to the agents, to the police who were there.

So he seems to have a personal relationship with the idea that he is in charge, that he can order the use of force.

That he is entitled to order force.

And, as expressed in the first clip that you played, that he has... that the federal government is unmatched.

That is not bound by laws.

That there's no restriction really, other than the fact that it's the federal government, that's ordering the use of force.

Now, historically, this is not what we know of the Department of Justice.

Indeed, there's such a deep and troubling reversal here, because when you look at the role of the Department of Justice, in the sixties, the fifties and sixties, where the Department of Justice was so strongly on the side of civil rights.

Was so strongly on the side of standing up to states who were refusing to integrate schools and coming in and using a show of force, there was a show of force, but it was in defense of individual constitutional rights where there was a Supreme court decision in defense of those rights, standing behind them.

That's a very different situation from what we have today in which the Justice Department is acting in an authoritarian way, without having the backing of law behind them, and we have an Attorney General who's saying he doesn't need the backing of law.

All he needs is his own power.

Paul Rosenzweig: It is pretty extraordinary.

Normally that would be enough, but there's one more clip that I just have to play for you.

It's the Attorney General suggestion, during the Q and A, that mask mandates of the sort that are being used today to fight the pandemic, that mass mandates the worst civil liberty infringement since slavery.

Here's what he said:

Attorney General Barr: Putting a national lockdown stay at home orders is like house arrest.

It's the it's, you know, other than slavery, which was a different kind of restraint, this is the greatest issue on civil liberties in American history.

Paul Rosenzweig: Well, first off, I have to apologize to the Attorney General.

It was actually locked downs, not mask mandates that he was talking about, or stay at home orders.

Nonetheless, I'm sort of thinking, the internment of the Japanese might be a worse infringement.

Lynchings in the deep South might be a worse infringement.

Don, in your experience, is that short of rhetoric, common to an Attorney General?

What are we to make of the Attorney General making that sort of analogy?

Donald Ayer: No, it's totally not.

And I think one of the things that's important to understand here, in this language and in a lot of other language he's using for the last several months, is that, unfortunately, Attorney General Barr is enlisted pretty much full time to use his powers in office and use his bully pulpit to do what he can do to get the President re-elected.

You look at this and this is essentially an appeal to a lot of people around the country who, for their own reasons, which I can't fathom when you have almost 200,000 Americans who have died, they don't want to wear a mask.

Even though a mask is clearly the most effective way of dealing with this and frankly, being at home and not going out very much is an also important step.

Other things he said, and along the political line like this, which are unheard of in an Attorney General.

Attorney Generals generally have no part at all in the election process.

They don't politic.

The tradition is for the Secretary of State and the Attorney General to stay the heck out of politics, because we have to think of them as above and separate from politics.

Not Bill Barr.

So Bill Barr is talking about this.

He's talking about the untrustworthiness of mail-in voting.

Well, of course we all know that a great number of Americans, thousands and thousands and thousands of Americans, are necessarily going to have to do mail-in voting.

"Well we want people to distrust mail-in voting because Trump thinks he'll do better if they do."

He made a stupid comment deliberately.

So a week or two ago about how China, not Russia, is the greatest threat to this election.

Well, that just is utterly inconsistent with all the intelligence than anybody has and people who know about this have said the contrary.

So Barr is out there doing all of this sort of stuff in a way that is very corrosive of public trust.

And of course, completely undermines any faith anybody ought to have in him because he is nothing other than a political spokesman for the President.

Paul Rosenzweig: Well, I sort of think the Attorney General's gonna be the gift that keeps on giving for this podcast.

With that, let's actually turn to the substance of our discussion today.

The meat of what we wanted to talk about.

Last week, we talked about something very specific on this podcast, the way in which Attorney General Barr's threat to use an interim report by U.S. Attorney John Durham undermine the rule of law.

Today, we want to step back a bit and look more broadly at various aspects of how Attorney General Barr has distorted the functioning of the Department.

Claire, as I understand you were the lead on a soon to be completed report about DOJ that takes a look at this as a comprehensive... in a comprehensive way.

So for starters, just tell us a little bit about the report itself.

How was it conceived?

Who participated?

When will it be formally released?

That sort of thing.

Give us the lowdown.

Claire Finklestein: This is a report put out by the Center for Ethics and the Rule of Law, as well as, crew.

And Richard Painter and I are the co-chairs of a committee that we put together to look, in as much detail as we could within the time constraints that we have, at the functioning of the Department of Justice under the leadership of William Barr.

It came about because every summer, the Center for Ethics and the Rule of Law runs a summer internship program.

We're always looking for big meaty projects for the students to dive into.

And slowly the idea came about that there really wasn't anything more important that they could be doing right now, and nothing meatier for sure, then really trying to look at some of the rule of law abuses that are going on in the Department of Justice.

And so they started researching this and we put together a committee of professionals and Don, here on this show, is I'm proud to say on the committee as well.

To help guide the students in their research, and to think about and help teach them, as well as others, what the Department of Justice traditionally does.

How does it... what role does it play in maintaining and protecting the rule of law?

Why is it so critical to our government?

And why are basic concepts like the traditional separation between the functioning of the Department of Justice and the White House, why has that been so important to maintaining the rule of law?

So the report, which should be issued sometime next week, will go into embargo copy towards the end of this week, really looks in detail at a number of areas, under Bill Barr's leadership and tries to compare the way that this Department of Justice is functioning to how earlier Departments of Justice functioned and what we would normally expect.

Paul Rosenzweig: So you're at the Center for Ethics in the Rule of Law.

So, as I understand it, one aspect of the report is a focus on ethics or perhaps transgressions of ethical rules at the Department of Justice under AG Barr and how all that has played out on the larger public stage.

Give us a little detail there.

What ethics bear upon an Attorney General and his conduct, and what ethics rules do you think are at issue here and might be, might have been transgressed?

Claire Finklestein: Right.

Well, that's a wonderful question, because how do we think about legal violations, that sort of thing you were just talking about with Don, and compare that to ethical violations?

And why is it so important that an Attorney General behave ethically as well as legally?

I think one way to think about this is that the legal constraints that the Department operates within are supported by sort of soft edges.

We're discovering with this administration how many of the principles and practices that we took for granted are really very soft practices.

And traditions, rule of law traditions, and the expectation that people in our government will act with integrity, that in fact, those assumptions are not necessarily born out.

As soon as someone sets about to destroy them, it can happen so quickly and so easily the shattering of norms that everybody has talked about with this administration.

I think that Bill Barr has been at the forefront of shattering those norms almost more than anyone in the administration.

Even, to some extent, more than the President himself, because the President doesn't necessarily know all of those norms.

But Bill Barr does.

And so he really is aware, for example, when he talks about politicized investigations in one of the clips you played.

He said, "Now it's not enough. We call somebody a criminal. We don't just disagree with them."

Well, in fact, he is the master of that because he has set up this report, the Durham report, and, two other U.S. Attorneys who he has investigating political enemies.

It's exactly what he's doing, what he complained about in that clip.

Paul Rosenzweig: It is a bit of projection, isn't it?

A quick follow-up, so to the extent that this is all destructed of norms, how do we recover them?

Right?

I mean, I often hear that it's an inevitable downward spiral.

You do this, we'll do that.

What is the way to de-escalate, if you will?

Claire Finklestein: That's a very, very good question.

I think in the case of William Barr, he is not listening to reason.

He has time and time again, distorted what we expect from public officials.

He is, as Don suggested, part and parcel of an administration that is really using all of our public offices to try to help re-elect the President.

And so much of what he has been doing as of late seems to be directed towards that aim.

So the comment about mass is designed to inflame people.

Designed to make them resistant and to polarize our politics.

This has happened also with regard to protestors.

In that he is, on the one hand, as the president inflaming people on the right and then, lo and behold, there are violent clashes.

So how do we come down from this?

How do we repair?

I personally, am a believer in using law to repair the damage that has been done to law.

I think there's no soft way to do it.

I think that there will need to be investigations and possibly prosecutions when this administration is gone, and that Obama made a mistake to some extent, not to look into some of the real illegalities of the previous administration.

But when you do that, when you give a pass, when you say let's move forward, not backward, then you have a problem because you weaken the rule of law forever.

As very hard to recover.

Paul Rosenzweig: Well, that's quite provocative in a whole nother topic for another podcast someday, but let's stick with...

I - that's really fascinating.

So Don, let me turn to you for a bit.

One aspect of Barr's actions that raises questions is something you've already referred to briefly, and I want to dive in more.

And it's his intervention into political cases.

Cases where the President has a personal interest.

Most notably, the Michael Flynn case that the Department of Justice has tried to dismiss, so far unsuccessfully, and the Roger Stone case where Barr intervened to a mandate that lower sentencing recommendation.

So here's what Barr had to say about his role in making these decisions in his Hillsdale speech:

Attorney General Barr: Name one successful organization or institution where the lowest level employees’ decisions are deemed sacrosanct.

They aren't.

There aren't any.

Letting the most junior members set the agenda might be a good philosophy for a Montessori preschool, but it is no way to run a federal agency.

Good leaders at the Department of Justice, as any organizations, need to trust and support their subordinates, but that does not mean blindly deferring to whatever those subordinates want to do.

Paul Rosenzweig: So, Don, in one sense, surely Attorney General Barr is right, that in the end, management attorneys have the final word and all the way up to him if need be.

So what is it about his intervention in these cases that is so problematic, that makes it different?

Donald Ayer: Yeah, and this, what this really takes me back to is the experience that I, I guess I feel lucky in hindsight to have had at the beginning of my legal career, and that is that I happened to go to Law School while the Watergate unfortunate events were unfolding.

And was paying attention as a second and third year law student, as things were being done and ultimately began work as an assistant U.S. Attorney.

Around the time Edward Levy was taken over the department.

And what I think is important to recognize that the answer to the question of what should be done and what do we need to do now, and what's wrong with what Barr is doing, an awful lot of that is caught up in what Edward Levy did in coming back and recovering public respect in light of the Watergate debacle.

And what he recognized was that the center of the problem was that the people absolutely need to believe that no person is above the law.

And that the laws, criminal laws, but other laws too, are being administered in a way that is fair to everyone that is even handed and bends over backwards not only to be fair and even handed, but to make people aware that that's what they're doing.

Now Barr here is the paradigmatic opposite of that.

And he's come up with a complete red herring, which of course nobody would ever think is a good idea, which is you let the newest lawyers in the office decide finally, the cases.

That's never been anything like what goes on in the Department at any time, but what is, what does go on in the Department is a regular and a predictable process.

It's a review process.

Lawyers at one level begin working on something.

Important decisions are subject to review.

They have supervisors.

Political people in the department certainly have a role, they have a part to play, but it's a part to play in a regular process.

It's a part to play by people who will tell you, with great conviction, that they are there to apply the law, even-handedly.

And what's going on here is totally the opposite of that.

What we have with Flynn and, and Stone are cases where the government came in and took actions essentially on the heels of tweets by the President.

The president who, for whom these are personal associates, people who didn't want it see treated in an adverse way, and he made his views known.

And then appallingly the Attorney General with very small trappings of bringing in his friends, other U.S. Attorneys to perform a quote "review" of the case, and then come in with a second opinion saying," Oh no, no. This is much too harsh. We should change it."

Has come in in a very transparent way to intervene for what appears to any reasonable person to be political reasons.

It's perfectly clear that Barr is far more concerned in the tone of this speech, that we've been listening to snippets of, the tone of this speech is Barr saying, "I'm in charge."

And that's a corollary of his other point, which he makes quite a lot, which is the President is in charge and the Congress and the courts have no business reviewing what he does.

So the signal that is being sent out is essentially that which would be put out by someone who wanted to destroy the impact of the reforms that Edward Levy put in place.

Who doesn't give a hoot about public trust.

The last thing I want to say, and you've heard some of this already in these clips, one of the things that Bill Barr is doing while he is in fact undermining the fair and even handed the application of the law, on the criminal side and in a lot of other areas as well, is that he is loudly proclaiming himself to be the champion of the rule of law and of even handed justice.

And he's got all the buzz words that real serious people who believe in it would use, and he is claiming that mantle for himself.

And that is about as much chutzpah as I've seen anyone ever have.

When you, all you have to do is look at any one of the things he does in a given day and you can see that his motivations are above all else, political, and above all else to advance the election prospects of Donald Trump.

Paul Rosenzweig: It does have a bit of the big lie effect going on doesn't it?

So a follow-up, Don.

What's a good rule of practice for us to be able, us as citizens, to be able to distinguish between instances in which it's proper for an Attorney General or some other political appointee to intervene in a case and improper instances?

How do we distinguish them or should we just try and know it when we see it?

Donald Ayer: Well, I think it's not always possible to be clear about it, but I think the biggest single thing is the respect for regular and usual processes.

That's why the Department has established for many, many years part processes review.

It's a multi-tiered review.

You know, the sentencing recommendation for Roger Stone and the decision obviously to proceed with the prosecution of Michael Flynn, those were the result of considered processes at multiple levels in which clearly the political appointee on the scene, Jesse Lou, who was the Trump appointed and Senate confirmed United States Attorney, played a part.

Jesse Lou, the U.S. Attorney, had to approve those cases.

She had to approve the handling of them during the times when she was there.

And they went forward in that way.

There are other situations where certain kinds of issues have to go higher.

They have to go up to the Head of the Criminal Division or to the Deputy Attorney General or sometimes even to the Attorney General, and the processes are respectable and decent and they follow a path that's predictable.

What isn't predictable, and what is very alarming, is when you have these things happening out of left field.

Out of the ordinary course of procedure by people who would not normally have played a part in that process.

It's all the more upsetting when you see intervention explicitly by the President, which is what you had here.

And then actually it's taken that appear to follow directly from those procedures.

So you kind of have to look at the process as it unfolds and how it occurred, but one of the absolute fallacies that's being argued on the other side is the one Barr has here, which is they want us to just turn all this over to low-level career prosecutors to make all the decisions.

That is such hogwash.

I mean, nobody thinks that.

That isn't ever the way the department has worked.

And he is simply making up a straw man to attack because he can't defend the process that he's put in place himself.

Paul Rosenzweig: Yeah, I think an indication of the inability to defend the process is the fact that the Department is struggling to avoid any inquiry into that process itself.

So Claire, let me turn back to you, for another aspect of the report.

I understand that when it comes out, there'll be a discussion of the interrelationship between criminal and intelligence work, noting that the two aren't set to the same standards, they don't use the same language, that sort of thing.

This is kind of a tangent from, or result of, the Durham inquiry.

What can we say more broadly about the damage that criminal investigations of intelligence processes will do to the intelligence gathering process itself?

And, more particularly if you want to, what the Durham, what the damage from the Durham investigation might be.

Claire Finklestein: Yes, thank you for that.

We have a president here who has been attacking the intelligence community since before he came into office, in fact, but certainly since he came into office, and Bill Barr has really taken up that mantle.

It started, at the very least, when he tried to spin the Mueller report, when he first presented it that team had been, had prepared their own summaries of their findings and submitted them to William Barr and he did not take those summaries.

Instead he presented his own, quite misleading, account.

So it was his attempt to really rewrite the Mueller narrative, and then we have seen a number of individuals in the intelligence community targeted by him.

The Durham Report, if it does come out will be almost certainly identifying a number of individuals in the intelligence community.

There have also been just attacks on, overt attacks on members of the intelligence community, and a refusal to listen to them in general, of course a refusal to listen to them on Russia in particular.

So what does this do?

Well the point of it, of course, is to try to undercut the suggestion that the Trump campaign had ties to Russia.

That there was any coordination there.

And that of course was spelled out in the Mueller report without rising to the level of conspiracy, but coordination.

And to try to undercut the origins of the Russia probe.

And going back to create a kind of false narrative.

Now Barr is, among other things, a master of creating false narratives, and there is no higher priority for Barr, and for this administration, than to create a false narrative around the relationship between the Trump campaign and Russia.

To do that, they have been systematically dismantling and destroying the intelligence community, and that has permanent damage.

So in effect, what you have is using the criminal process to attack and undo what has been a mainstay of our national defense, which is intelligence professionals who have their own standards, who are usually, and have traditionally been very careful to conduct their work within the confines of law.

There are exceptions to that, but traditionally that has been the case.

And where there's been a very trusted relationship between the White House and the intelligence community.

And we just don't have that anymore.

Paul Rosenzweig: Well, that sounds, all that sounds utterly depressing, I guess.

It is good, however, to know that next week sometime an extensive report on all of this and other topics as well, will be released by the University of Pennsylvania and crew.

It's something that we should all look forward to, and I'm sure most of the listeners on the podcast will want to get themselves a copy.

Before we end I want to ask you both to put a little bit of your crystal ball on and look to the future.

Claire, let me start with you.

What's your nightmare scenario in the next 50 days?

What's the worst thing that can happen, particularly with respect to DOJ, if you have a prediction or fear?

Claire Finklestein: I think one of the worst things that can happen, Paul, is that the DOJ will come down with some indictments.

And it could be minor indictments, that won't be the worst thing in the world, but even though they're likely to be highly politicized indictments, but they could be very high level indictments.

In the worst case scenario, I think it's even possible that DOJ would try to indict Biden or Hunter Biden.

But in any event that there may be real attacks coming from that direction, because I don't think that Bill Barr would really stop at anything in the use that he would put the DOJ to in order to help re-elect the president.

And that would be just an absolute disaster for the country.

We're already so deeply polarized.

This kind of politicization not only further exacerbates that polarization, but is starting to spark real violence in the streets, which is something that we have not seen for a long time.

So I fear that the politicization of the DOJ may really get to a fever pitch in the next 50 days.

Paul Rosenzweig: Well, that's a moderately apocalyptic view.

I hope it doesn't come to that.

Don, how about you?

Do you think there'll be more resignations at DOJ?

Or more particularly, how do you think career prosecutors are gonna react to the Hillsdale speech?

Donald Ayer: Well, I think every indication I have, and I only really have indirect indications from people who are pretty familiar with a lot of the folks in the Department, the morale in the department has for quite a while been very low.

And I think folks are pretty discouraged.

And this has to have made it materially worse.

Whether there will be more resonating nations, I think depends a lot on what happens and how it affects individual people.

Of course, last week we had, I guess the principal assistant to John Durham, on that, on that investigation, a woman named Nora Dannehy resign quietly.

She didn't make any statements.

She just resigned from the department and from her role in the investigation and there's speculation that was related to pressure being brought.

I don't know, for a fact what the reason was.

The question of DOJ career attorneys resigning is really one on which I have gravely mixed subjects.

On the one hand, when people are put under pressure to do things that are fundamentally wrong and unjust the act of giving up your career, which you basically love and that you committed to and you believe in wholeheartedly, but you're in such a spot that you're being made to do things that your conscience won't allow it's quite a statement of personal principle.

So I have an enormous amount of respect for people who take that step.

On the other hand, we don't want to dismantle the structure of our superb, highly qualified men in many, many instances, very experienced people in the Department.

Many of whom over the years have played absolutely key roles because they're the experts.

They're the ones who know an awful lot and have incomparable knowledge, certainly to any political appointees in certain areas where they've been working for 10 or 15 or 25 years.

So you don't want people to leave.

On the other hand, the nature of the pressures now are so high.

And all of our concerns about the future of our country are so high.

And so you've got to feel like there's a lot of principal people who are feeling in quite a bind.

On the more general question of well, what might happen here?

Um, I agree with Claire.

If you're focused on, it's hard not to be focused for all of us, and this whole podcast really is focused on the threats to this election, which we've all got to be focused on primarily now.

And so the idea that the Department will act to influence the election by something like the announcement of a Durham report and I worry more about the spinning of the report by Barr who showed what he can do by way of utter falsehoods.

When he talked and talked and wrote about the Mueller report in terms of totally misrepresenting what it had found.

Well he can do the same thing with the Durham investigation, even if there are few or no indictments of anybody, Barr can get up and talk about what they found and then he can posture as he is wan to do as this great evenhanded applier of the law in a fair way.

He can even posture to be himself, a restrained person.

So we're not really bringing very many indictments, but gosh, there was a lot of bad stuff that went on here and let me tell you about it.

All of which is completely in violation of Department rules, which is you put up or you shut up.

If you have an indictment to bring you bring it, but you don't give running commentary on facts you've found when you don't have the goods to indict anybody on anything.

The ultimate worry I have goes beyond influencing the election in terms of saying and doing things, and it goes to what, and I hesitate to say this cause it's unimaginable in any prior time in my life that this could occur, but I wonder what the Justice Department under Bill Barr might do, using its legal machinery, to try to influence the outcome after the votes are already submitted.

I would not for an instant, put it past Bill Barr to go to court on some trumped up theory, to try to figure out a way to influence the election, whether it's going to court to argue that ballots from a certain state should be excluded or various other procedural mechanisms that may be pursued.

So I think we have to be ready for everything.

And I think there are lawyers all over the country now who are spending time, and I think the Biden campaign is thinking a lot about this, but we have to be thinking about stunts this clown as the Attorney General may try to pull in order to make our election results unfair and reach a result that is not the one that the voters voted for.

Claire Finklestein: Paul, I don't know if I can add something quickly to what Don said, another nightmare scenario.

And I was thinking about shifts in the news cycle.

But another nightmare scenario is what's going to happen election day.

And one of the things that I'm very concerned about and Barr has already signaled this, that they may try to send federal agents to polling places, to intimidate people to suppress the vote.

And if you combine that with the risk of a possible Russian disinformation and worries about the pandemic, you can imagine scenario where someone might put out some fake news, disinformation that there's an active shooter at a polling place.

That would justify turning out federal agents to go to that polling place, perhaps even without the invitation of a state and scare people away from voting.

Maybe not just from that polling place, but from others.

So I am very worried about what's going to happen on election day, given that we have Bill Barr at the helm.

Paul Rosenzweig: Well, someday we'll have to have another podcast on best ways to fight that, but we're out of time here and that's been a pretty grim summary there.

So I always try and end with good news if only to make your week just a little better.

Today's good news for the rule of law comes from the treasury department.

As listeners know, President Trump has been reluctant to call out Russia or blame the Kremlin for his persistent wrongdoing.

He's been especially hesitant to talk about Russia's electoral interference, even though the evidence of it is palpable.

The good news is that the Trump administration is at least a bit schizophrenic on the issue. Last week, the treasury departments sanctioned Andrew Dicatchi, a pro-Russian member of Ukrainian parliament.

It said that he, quote, " has been an active Russian agent for over a decade, maintaining close connections with the Russian intelligence services."

And that for the last two years, quote, "Dicatchi waged a covert influence campaign centered on cultivating false and unsubstantiated narratives concerning U.S. Officials in the upcoming 2020 presidential election spurring corruption investigations in both Ukraine and the United States designed to culminate prior to election day."

That's pretty strong.

I suppose we can be a bit disappointed that the treasury department didn't mention the important fact that it was Rudy Giuliani, who worked with Mr. Dicatchi to smear Joe Biden, but we'll take our victories where we can find them.

And so that's a wrap for our show.

Thanks for joining us.

We'll be releasing a new show every Monday, this episode, and all future episodes, are available on Apple, Spotify, Stitcher, and anywhere else that you download podcasts.

We hope you'll subscribe.

We'll also archive the podcast at checks-and-balances.org if you want to find them on our website.

And if you had feedback, we'd love to hear from you.

The email is podcast@checks-and-balances.org with hyphens between the words checks hyphen and hyphen balances.org.

Thanks again to Claire and Don for joining us on today's podcast.

I'm Paul Rosenzweig, your host.

Remember as Margaret Thatcher, the prime minister of Great Britain once said, “In order to be considered truly free, countries must have an abiding respect for the rule of law."