Amid a rising drumbeat of Republican criticism of special counsel Robert Mueller’s Russia probe, members of Congress and former prosecutors say the Justice Department has amped up the pressure by quietly putting out information bolstering claims that the investigation is unfairly biased against President Donald Trump.

Through a series of small and sometimes subtle moves, DOJ’s actions appear to run counter to the goal of keeping Mueller’s probe free of political meddling.


Now that Mueller’s investigation has reached into Trump’s White House — former national security adviser Michael Flynn pleaded guilty earlier this month and is cooperating with the Russia investigators — some say the department is playing both sides of the high-stakes investigation.

“I think that it appears to me that DOJ leadership is doing what it can to please their boss, which is ultimately the president of the United States,” said Renato Mariotti, a former federal prosecutor. “They’re doing whatever they can to please him without violating the law.”

The latest example came earlier this week when Justice officials convened a small media briefing for a select group of reporters who were shown private text messages sent between two investigators who formerly served on Mueller’s team.

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That briefing — held in the midst of an ongoing inspector general investigation, and reportedly offered to the press before members of the House panel had seen the messages — was described as ”very odd and unprofessional” by Samuel Buell, a former assistant U.S. attorney and Duke University law school professor.

“It shouldn’t surprise anyone that there are people in the political appointee realm at DOJ who are rooting for Mueller to fail,” said Buell. “That doesn’t mean they are going to be prepared to actually try to derail him. It all merits vigilance.”

A DOJ spokeswoman said Wednesday that the FBI agents’ lawyers were notified of the disclosure and career Justice officials evaluated the messages as well to be sure they could be released “under both ethical and legal standards.” She also explained that DOJ delivered the text messages to lawmakers before they were released to the press.

Deputy Attorney General Rod Rosenstein said at a House Judiciary Committee hearing on Wednesday that the DOJ inspector general had also cleared the way for the messages’ public release.

The early release of the FBI agents’ text messages isn’t the only DOJ move that has offered Mueller’s critics new ammunition.

Earlier this month, DOJ acknowledged it was taking the unusual step of making Mueller tack on an additional $3.5 million in costs in his first budget report – almost doubling the probe’s total spending to $6.7 million – so it could reflect wider department operations that are going toward the Russia investigation.

The Justice Department said the additional funding wasn’t required to be disclosed by law, and it also explained that it hadn’t made previous special counsels include those kinds of figures.

That larger price tag nonetheless fit nicely into the attacks leveled by critics who say Mueller has a blank check to investigate Trump. Former White House chief strategist Steve Bannon has urged the president to go after the special counsel through his budget, and Trump jumped in Tuesday with a Twitter post chastising the “thousands of hours wasted and many millions of dollars spent” digging into alleged Russian meddling in the 2016 election.

Other unusual Justice Department moves include Rosenstein’s vague media statement in June casting doubt on anonymous sources in news stories just as the Washington Post and New York Times were reporting Mueller had determined Trump was the subject of an obstruction of justice investigation.

And DOJ has opened Mueller up to questions by refusing to disclose details on the process that led up to the special counsel being granted an ethics waiver to serve as special counsel after working as a partner at WilmerHale, a private law firm that originally represented two critical figures in the case: former Trump campaign manager Paul Manafort and White House senior adviser and Trump son-in-law Jared Kushner.

“The conspiratorial side of me thinks somebody at Justice is not giving you the explanation for the waiver because they want to create the impression that Robert Mueller has a problem when Robert Mueller doesn’t have a problem,” said Richard Painter, a former White House ethics lawyer under President George W. Bush. “This is going to lead to Fox News conspiracy talk.”

He called DOJ “sloppy” for not releasing under the Freedom of Information Act to POLITICO more details about why Mueller got a green light to lead the Russia probe.

The Justice Department also didn’t come to Mueller’s defense in late October when Republicans accused the special counsel’s office as being the potential source of a CNN story teasing the first indictments in the whole Russia case. The cable network’s story, citing “sources briefed on the matter,” dominated a 48-hour period of weekend news before a federal court in Washington ultimately unsealed the charges.

“It is kind of ironic that the people in charge of investigating the law and executing the law would violate the law,” South Carolina GOP Rep. Trey Gowdy, the chairman of the House Oversight and Government Reform Committee, said on Fox News that weekend. A DOJ spokeswoman later told Newsweek that the matter had been referred to the department’s inspector general for investigation.

Mueller won bipartisan praise with his appointment in May, but that didn’t last long. By June, Trump surrogates were castigating the special counsel over his purported friendship with the ousted FBI Director James Comey – their associates denied there was any significant personal relationship – and the campaign contributions his staff had largely given to Democrats.

The complaints about Mueller have only grown as his investigation has accelerated.

On Air Force One last Friday, freshman Florida GOP Rep. Matt Gaetz said he warned Trump that Mueller’s team was “infected with bias” against the president and the country was at risk of a “coup d’etat” because of the investigation. A Wall Street Journal editorial published last week suggested it was time for Mueller to “step down in favor of someone more credible.”

Paul Rosenzweig, a former George W. Bush-era Homeland Security official and senior counsel from the Kenneth Starr investigation into President Bill Clinton, said he sees the recent onslaught of criticism as Trump “laying the groundwork for firing Mueller.” DOJ officials, he added, are in a tough spot as they try to uphold their mandate of impartial justice while serving under a president who has blurred the lines between his administration and the nation’s law enforcement apparatus.

“I do tend to think they’re under pressure. They’re making some judgment calls that are challenging,” said Rosenzweig, a senior fellow at the R Street Institute, a free market think tank. “This is one of those cases where they can’t win from losing no matter what they do.”

In his public testimony Wednesday in the House, Rosenstein sought to defend Mueller -- who consistently declines comment on even the most basic of questions about his investigation’s scope and status -- against a barrage of fastball questions.

The deputy attorney general said he backed Mueller up on his decision to immediately dismiss FBI agent Peter Strzok from the Russia investigation this summer after his anti-Trump texts were uncovered as part of a separate inspector general investigation. He also pushed back at the criticism that multiple members of Mueller’s team could not be impartial prosecutors because they’d donated to Democrats.

Still, Rosenstein left open plenty of room for Mueller’s critics. He repeatedly skirted answering specific questions about his interactions with the special counsel, or how frequently he’s spoken to President Trump about the Russia investigation.

He also gave Republicans a glimmer of hope by pledging to evaluate their calls for the appointment of another investigator.

Rosenstein also faced several questions from Democrats seeking an explanation about why reporters had gotten access to Strzok’s text messages before the hearing.

“I was amazed” by the disclosure, said Rep. Jamie Raskin, a Maryland Democrat who noted DOJ’s policy is typically to reject public release of any material related to an ongoing investigation.

Across the Capitol, California Sen. Dianne Feinstein, the top Democrat on the Senate Judiciary Committee, also said the Justice Department had played directly into Republican hands by sharing the FBI agents’ text messages with reporters before the hearing.

“Well, they were used for propaganda purposes,” she said. “And I think there is an ongoing effort to malign both Mr. Bob Mueller and the work that the special counsel’s office is doing. And I think it’s very precise. I think they’re going to grab at every single thing to diminish it, to demean it, and it shows me that there’s fear out there about what they might come up with.”

But Feinstein said she didn’t think the Justice Department itself was behind the efforts. ”No, these are efforts in the Republican party, Fox News, others -- to demean Bob Mueller,” she said.

Rosenstein said DOJ got the inquiry for the text messages from Congress and then made the decision to put them out with the press. “Generally speaking our goal is to be as forthcoming with the media as we can when it’s lawful and appropriate to do so,” he said.

Elana Schor contributed to this report.



CLARIFICATION: This story has been updated to clarify Democrats questioned Deputy Attorney General Rod Rosenstein about why reporters had gotten access to FBI agent Peter Strzok’s text messages before Wednesday’s House Judiciary Committee hearing.