Blog No. 223. Bill Barr: The AG as Chief Witch Hunter (Part II)

On June 10, the outlines of the Barr Witch Hunt became a bit clearer. Its broad parameters were described in a letter from Assistant Attorney General Stephen Boyd to the Chairman of the House Judiciary Committee, Jerrold Nadler. As described in the letter, the “investigation of the investigators” initiated by Barr at the urging of the President, “is broad in scope and multifaceted, and is intended to illuminate open questions regarding the activities of US and foreign intelligence services as well as non-governmental organizations and individuals.” A broader commission could hardly be imagined.

The letter confirmed that the Review Team will be led by John Durham, the United States Attorney for the District of Connecticut. Mr Durham is an experienced and highly regarded prosecutor. His appointment, therefore, is somewhat reassuring. Nevertheless, he will find it difficult to serve directly under an Attorney General whose partisan perception of events seems already well established. It remains to be seen whether Durham’s sterling reputation survives this assignment or whether, like nearly everyone recruited to fill a key position in the Trump administration, he will find it badly tarnished.

Perhaps inadvertently, the Boyd letter revealed the slender grounds which purportedly justify Barr’s sweeping investigation:

It is now well established that, in 2016, the US. government and others undertook certain intelligence gathering and investigative steps directed at persons associated with the Trump Campaign. As the Attorney General has stated publicly at congressional hearings and elsewhere, there remain open questions relating to the origins of this counter-intelligence investigation and the US. and foreign intelligence activities that took place prior to and during that investigation.

There are only two instances (well established or established at all) of “intelligence gathering and investigative steps directed at persons associated with the Trump Campaign.” Those instances involved a single meeting with George Papadopoulos in London and surveillance of Carter Page, a former Carter aide, pursuant to a FISA warrant. As discussed in the previous blog, there is no evidence that either action was improper and still less that they reflect any pattern of improper conduct.

The Boyd letter addressed President Trump’s action on May 23 that had made an unprecedented grant of sweeping declassification authority to Attorney General Barr in connection with his review. The President’s grant of authority was set forth in a brief memorandum authorizing Barr to “declassify, downgrade, or direct the declassification or downgrading of information or intelligence” relating to Barr’s “review of intelligence activities relating to the campaigns in the 2016 Presidential election and certain related matters.” Most remarkably, in making declassification decisions, Barr was required to consult with the heads of the originating intelligence agencies only “to the extent he deems it practicable.”

The grant of declassification authority to Barr clearly raised an issue of national security in the possibility of exposing closely held “sources and methods.” The potential, indeed the virtual inevitability, of conflict with the intelligence community was obvious, The Director of National Intelligence, Dan Coats, responded with a statement that was as hopeful and tactful as could be mustered under the circumstances, “I am confident that the Attorney General will work with the [intelligence community] in accordance with the long-established standards to protect highly-sensitive classified information that, if publicly released, would put our national security at risk.” Politico however, documented that “Numerous national security veterans did not share Coats’ confidence. On the contrary, they saw Trump’s order as a challenge to the very standards Coats cited.

A typical reaction came from Larry Pfeiffer, a 32-year intelligence veteran who served as the chief of staff to CIA Director Michael Hayden: “There’s nothing CIA or NSA, for example, guards more jealously than sources and methods,” he said. “It is not hyperbole to say that lives are at stake.”

Concerns within the intelligence community even made their way onto Fox News. Gillian Turner, speaking on Chris Wallace’s Sunday show explained:

So up until now only two people in the entire government had the power to essentially snap their fingers and declassify any information, any intelligence they wanted, and that’s the president and that is the director of national intelligence, Dan Coats. So what the president has done confers tremendous new powers on the attorney general.

Now, the challenge, according to the intelligence community, my sources there, is really, this sets up a potential epic battle between the attorney general and between the director of national intelligence, because what happens if somewhere along this investigation Barr decides to declassify information and then on the back end, the director of national intelligence says, wait, wait, wait, wait, this was — this went way too far, this compromises national security, this compromises intelligence operatives around the world, maybe puts their lives at risk. What happens then? And nobody knows, because there isn’t really a precedent.

In response to the alarms raised by Trump’s declassification order, Boyd’s letter took great pains attempting to provide reassurance:

While the Attorney General has been granted the authority to declassify information in connection with the Review, it is of great importance to the Department to protect classified information by preventing the unwarranted disclosure of sensitive sources, methods, techniques and materials where such disclosure would endanger the personal safety of U.S. government employees or friendly foreign partners, harm national security interests, or compromise the ability of U.S. government agencies to conduct their important work to protect the American people. The Attorney General greatly appreciates the work of the women and men serving in the U.S. intelligence community in carrying out their mission, as well as the assistance that our foreign intelligence partners often provide, and has therefore directed the Review Team to work closely with the intelligence community to ensure that national security equities of the U.S. and its foreign intelligence partners are adequately protected in the course of the Review.

So lengthy and earnest a claim of sensitivity and good intentions may be reassuring to some, but the reaction of others is likely to be “The Attorney General doth protest too much.” In any event, the Review Team’s exploration of classified information should receive intense and continuing scrutiny by the Judiciary and Intelligence Committees in both the House and the Senate. One point of particular concern may be Barr’s reported interest in learning more about the highly placed source in Moscow on whom the CIA relied in concluding that Vladimir Putin had personally directed Russia’s interference in the election.

Why that source should be a subject of Barr’s particular interest is not clear. Does he intend to second guess the CIA’s judgment as to the reliability of that source? By now it must be clear to everyone on the planet (with the possible exception of Trump) that the elaborate program of interference revealed in the Mueller Report could only have been taken at Putin’s direction. At the same time, Barr’s interest and the concomitant risk of exposure not only create acute vulnerability for the source but gravely impairs our ability to recruit similar sources in the future. Barr might intend to protect the identity of the source, but there is no reason to think he would resist a Presidential request to disclose it, and once in the hands of our erratic President, who can tell? It is too easy to imagine that at one of his chummy moments with Putin, where no other Americans are present, Trump might say something like “Vladimir, you might look into that fellow Boris _______. My people tell me he may have been a cause of much of the difficulty you and I have both experienced in the past two years.”

If your imagination requires any stimulation on that score, consider Trump’s statement on Tuesday when asked about published reports that Kim Jong Un’s half brother Kim Jong Nam was a CIA informant. Kim Jong Nam was killed in a shocking chemical-weapons attack in the Kuala Lumpur airport in February 2017, and Trump’s reply made no comment about the assassination except to sympathize with the murderous dictator (and writer of beautiful letters):

I see that, and I just received a beautiful letter from Kim Jong Un. I think the relationship is very well, but I appreciated the letter. I saw the information about the CIA with regard to his brother or half brother, and I would tell him that would not happen under my auspices. I wouldn’t let that happen under my auspices. I just received a beautiful letter from Kim Jong Un.

Republicans used to complain loudly about what they considered to be apologies to foreign countries by President Obama. But nothing Obama ever said compared with Trump’s apology to Kim Jong Un. Moreover, as several observers have pointed out, the message in that apology for other CIA assets, present and potential, was clear: America does not have your back.

The risk of compromising classified information and sources is, of course, only one aspect of the broader picture. There can be little question that Trump is seeking to use the Justice Department not only as a shield against investigation, but as a sword to wreak vengeance on his political opponents. Political prosecutions are anathema in a democracy, but have long been a key weapon in the arsenals of autocrats, and they are weapons that Trump has openly hungered to employ. There is no reason to think Barr will have any instinct to discourage the President from that course, and the question is how far he will go to implement it.