DOJ Investigates Itself

The Justice Department is investigating its own investigation of Russia's interference in the 2016 election. NPR's Scott Simon talks with Robert Litt, former DNI General Counsel Robert Litt.

SCOTT SIMON, HOST:

The U.S. Department of Justice will now investigate its own investigation about Russian interference in the 2016 elections. Former Special Counsel Robert Mueller released his report in April and documented the extent of that interference as well as several instances that many analysts said amounted to obstruction of justice. Attorney General Barr concluded the report failed to prove the president had obstructed justice, and the controversy, of course, has continued.

Robert Litt is a former general counsel at the office of the director of National Intelligence and joins us in our studios. Mr. Litt, thanks so much for being with us.

ROBERT LITT: Thanks for having me.

SIMON: You were questioned at one point in this process. Can you tell us if anything in that questioning made you think that the review would become a criminal investigation?

LITT: Well, actually, I haven't been questioned yet.

SIMON: Our apologies.

LITT: That's all right. John Durham, who is the United States attorney for Connecticut who was appointed to handle this matter on behalf of Attorney General Barr, has been working from the bottom up as one often does in a matter like this. I don't know if he will want to talk to me, but he hasn't yet.

SIMON: From what you know about John Durham, the U.S. attorney from Connecticut who is in charge of the investigation, what do you think he's looking for?

LITT: It's a little hard to tell. The original brief that he had was to look essentially at how the intelligence agencies handled this matter. We know from reporting within the last couple of days that he has decided to make at least a portion of this a criminal matter. We don't know what he's looking at criminally. We don't know whether it's, as some people have suggested, that he's decided that there's a basis for a criminal inquiry into the origins of the investigation. He might be looking at something much narrower criminally - for example, leaks of classified information. Or - we don't really know. I think it's - it would be helpful if the Department of Justice actually clarified which aspect of his investigation has become criminal.

SIMON: Is there any concern when it gets into the territory of a criminal investigation that that will discourage and inhibit other people from coming forward to offer testimony about urgent public issues?

LITT: I think there is a - that is one concern because people are always much more apprehensive when they fear that there is a potential criminal liability at the end of the investigation. I think there's also a serious concern about how intelligence analysts in the future are going to approach controversial issues if they think there is a chance that they will be subject to politically motivated inquiries afterwards. And I think that's something we all need to be very concerned about.

SIMON: Do you mean to imply that this is a political inquiry?

LITT: Well, I think there's certainly a great public perception that this is politically motivated. I know John Durham. I have confidence that he's not a politically motivated person. But the optics are not good when you have the attorney general going and personally intervening with foreign governments in an effort to get information out of them to support an inquiry into the attorney general's own organizations.

SIMON: In the half a minute we have left, does a popularly elected president have the right to say to the Department of Justice, this is something you ought to look into?

LITT: I think he has the right in the sense that he is in charge of the executive branch. But historically, presidents of both parties have refrained from doing that because it's so critical to the public perception that the Justice Department's inquiries be perceived as free from politics. And so there have been firewalls set up to ensure that that kind of political influence doesn't happen. Those firewalls don't appear to be being honored today.

SIMON: Former DNI General Counsel Robert Litt, thanks so much for joining us.

LITT: Thank you.

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