Andrew McCarthy: Lack of pre-election indictments in Durham probe shows abuse of power often not a crime

Axios is reporting that Attorney General Bill Barr has informed the White House and top Republicans that there will be no report or indictments filed by Connecticut U.S. attorney John Durham prior to the Nov. 3 election. Durham, of course, is the prosecutor Barr assigned to investigate the genesis of the Trump–Russia probe launched during the 2016 campaign by the Obama administration.

The lack of imminent charges or a pre-election narrative report is not surprising to anyone who has watched this saga. The attorney general’s reported decision to alert government officials about it is not surprising in light of President Trump’s recent Twitter barrage, railing about the lack of arrests and prosecutions despite what he describes as “THIS TREASONOUS PLOT.”

Indeed, as Axios elaborates, the president, in a Fox Business interview Thursday, complained that he believes Barr has “got all the information he needs” to file charges, yet insists on getting “more, more, more.”

TRUMP EXPRESSES DISAPPOINTMENT OVER BARR’S REPORTED COMMENTS ON DURHAM PROBE

The president added that he doesn’t believe more is needed. “To be honest,” Trump huffed, “Bill Barr is going to go down as either the greatest attorney general in the history of the country, or he’s going to go down as, you now, a very sad situation.”

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For what it’s worth, at the risk of belaboring an argument I’ve long made (most recently in a column at The Hill Thursday), many things that are in the nature of abuse-of-power simply are not violations of the criminal code.

That worked to the president’s advantage during the Ukraine kerfuffle, as Democrats struggled in vain to turn his pressure on an ally for domestic political advantage into a crime. But it also applies to abuse of the executive branch’s investigative discretion.

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Trump’s own invocation of “treason,” which quite obviously does not apply, illustrates the difficulty of finding a penal code provision that fits the abuses of power at issue. Executive officials have vast discretion in opening investigations, especially when a foreign power is involved. It is very easy to spot overreach; it’s very hard to prove beyond a reasonable doubt that the overreach was criminal corruption.

As I’ve been saying since shortly after we learned of Durham’s appointment, the longer his investigation stretched into 2020, the more difficult — if not practically impossible — it would be to announce anything prior to the election.

The Justice Department has obviously put a lot of work into what it has always maintained is a good-faith investigation. It does not want that work excoriated as a political campaign stunt.

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Durham has a well-founded reputation, earned in big assignments under administrations of both parties, as a straight-arrow who does not factor politics into the exercise of prosecutorial discretion.

Durham got unlucky: In February/March, the coronavirus pandemic shut down grand juries. For weeks, it was impossible to travel to conduct critical witness interviews. A prosecutor can’t effectively interview key players by Zoom or telephone. You have to get in a room with them, show them documents, and look them in the eye.

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