Blog No. 243. Bill Barr: The Attorney General as Trump’s Roy Cohn

To chronicle the misadventures of Donald Trump is to sip from a fire hose. On December 9, the Inspector General of the Justice Department, Michael Horowitz, issued a long-awaited report on the FBI investigation of Russian interference in the 2016 election. The report, and televised testimony by Horowitz the following day, were sharply critical of the FBI’s handling of a FISA application, but refuted Trump’s colorful but baseless claims that the FBI investigation was politically motivated (“attempted coup,” “treason”). Trump’s Attorney General, Bill Barr, sprang to attempt a rebuttal of both the report and Horowitz on that score.  Media coverage of the report and Barr’s response was extensive, but it was quickly submerged in stories and live coverage of impeachment proceedings in the House Judiciary Committee.

Although the news cycle has cycled on, Barr’s response deserves a careful look for two reasons. First, Barr has made it clear that we have not heard the last of this matter. Last May, without waiting for the conclusion of an IG investigation already underway, Barr took the remarkable step of commissioning his own investigation of the same subject by U.S. Attorney, John Durham. The Durham investigation may be broader in some respects, but how much broader is not clear. The latter investigation is not expected to be concluded until late Spring, but Durham took the quite unusual action of issuing a statement expressing some disagreement with the Horowitz report. Second, examination of Barr’s response is also warranted as it provides further evidence that Barr places loyalty to Trump well above and beyond his loyalty to the Justice Department and to the American public.

Back in Blog No.166, nearly two years ago, I reported Trump’s lament that Attorney General Jeff Sessions was failing to provide the kind of service Trump had enjoyed receiving from his onetime mentor and lawyer, the notorious Roy Cohn. With the appointment of Barr, Trump solved that problem. As author Caroline Frederickson wrote in the New York Times:

Demanding a stand-in for his old personal lawyer and fixer, Mr. Trump has actually gotten something better with Bill Barr: a lawyer who like Cohn stops seemingly at nothing in his service to Mr. Trump and conveniently sits atop the nation’s Justice Department.

Ms. Frederickson might have added that Barr is also an improvement in that his manner and his physical appearance, always important to Trump, are clearly superior to Cohn’s. On substance, however, she got to the main point by noting their comparable ethical perspectives.  Moreover, Barr’s loyalty to his client is enhanced by his own long-held view of virtually unlimited presidential power.

Barr’s groundless claim of political motivation.

After the release of the IG’s report, Barr used an NBC interview to make a grave and sweeping charge. While the IG report had considered whether the FBI had made mistakes in its investigation, Barr went far beyond that issue to claim that the Obama administration had “used” the FBI to “spy” on the Trump campaign and to use its investigation “against” the campaign:

Well, I think — I think probably, from a civil liberties standpoint, the greatest danger to our free system is that the incumbent government use the apparatus of the state, principally the law enforcement agencies and the intelligence agencies, both to spy on political opponents, but also to use them in a way that could affect the outcome of the election.

As far as I’m aware, this is the first time in history that this has been done to a presidential campaign, the use of these counterintelligence techniques against a presidential campaign.

And there could be motivations in the FBI and motivations outside the FBI by other players in this. This thing focuses on the FBI. There was a lot going on around this that is not the subject matter of Horowitz’s report, but I think has a direct bearing perhaps on what was going on in the FBI.

To begin with, the pejorative term “spy” is, as discussed below, a misnomer. Beyond that, Barr did not attempt to explain, let alone substantiate, his claim that law enforcement and intelligence agencies had not only been been “used” but used “in a way that could affect the outcome of the election.” Barr did not define the “incumbent government” he was attacking, but he clearly had in mind a person or entity outside and above the law enforcement and intelligence agencies. Thus, at another point, Barr commented vaguely but ominously:

And there could be motivations in the FBI and motivations outside the FBI by other players in this. This thing focuses on the FBI. There was a lot going on around this that is not the subject matter of Horowitz’s report, but I think has a direct bearing perhaps on what was going on in the FBI.

Barr did not identify the “other players”, but he had to be referring to the president and the White House. In that respect, his remarks were an eerie reprise of Trump’s notoriously false tweet that “Obama” had wire tapped him in Trump Tower. Contrary to Trump’s claim and Barr’s innuendo, there is no evidence whatever—and Barr certainly offered none—that the FBI or any other law enforcement or intelligence agency acted at the direction or behest of President Obama or anyone else outside those agencies.  

2. Barr’s distortion of the evidence in the IG’s report and the investigative methods of the FBI

In addition to the spurious claim that the investigation was politically motivated, Barr’s statement and interview raised two subsidiary issues worth examining:  

    –Was there a valid basis for commencing an investigation of ties between Russia and the Trump campaign?

    –Was the campaign “spied upon” or were the investigative techniques employed narrow and appropriate?   

Commencing the investigation.

In a statement made upon release of the IG report, Barr asserted:

The Inspector General’s report now makes clear that the FBI launched an intrusive investigation of a U.S. presidential campaign on the thinnest of suspicions that, in my view, were insufficient to justify the steps taken.

Barr’s view was immediately disputed by Christopher Wray, Director of the FBI. Wray, a Trump appointee, stated in an interview with ABC News, that he believed it was “important that the inspector general found that, in this particular instance, the investigation was opened with appropriate predication and authorization.”  Inevitably, Trump responded in typical fashion, tweeting “I don’t know what report current Director of the FBI Christopher Wray was reading, but it sure wasn’t the one given to me. With that kind of attitude, he will never be able to fix the FBI, which is badly broken despite having some of the greatest men & women working there!”

Barr’s own comment ignored the context in which the counterintelligence investigation involving the Trump Campaign was opened.  Beginning at page 49, the IG’s report explains that by the end of July 2016, the FBI was already investigating the extensive evidence of Russian interference in the election. It was under those circumstances that the FBI received troubling information from a trusted foreign ally concerning statements made by George Papadopoulos, a foreign policy adviser to the Trump campaign. Specifically, Papadopoulos had indicated to an Australian diplomat that Russia was prepared to assist the Trump campaign by the anonymous release of derogatory information about Hillary Clinton. When WikiLeaks released hacked emails from the DNC on July 26, Australia determined that an urgent report to the FBI was called for. The initiation of the investigation, code-named Crossfire Hurricane, was the result.

The decision to open a counterintelligence investigation focused on the Trump campaign was made by a career FBI official, E.W. “Bill” Priestap, and his decision was unanimously supported by the other career FBI personnel. Investigations were opened into Papadopoulos, and three other individuals: Carter Page, Mike Flynn and Paul Manafort, all “with ties to Russia or a history of travel to Russia.”

Barr complained that the FBI had “inexplicably” not warned the Trump Campaign of its concerns. In fact, the decision not to warn the Trump Campaign was not at all inexplicable:  the reasons were set forth at pages 55-56 of the IG’s report. As the report recounted in some detail, the option of a “defensive briefing” of the campaign was carefully considered but rejected for rather obvious reasons. The FBI had no indication as to who in the campaign might have received information, or an offer of information, from Russia, and the warning might well have caused the recipient to change tactics or to cover up his conduct. As I put it more bluntly in Blog No. 216 last April, after Barr first voiced a similar complaint, a prosecutor “would probably not have called John Gotti to warn him that some of Gotti’s fellow members of the Ravenite Social Club appeared to be engaging in illegal activity.”

Conduct of the Investigation.

Barr objected strenuously to the “intrusive techniques” employed by the FBI and insisted that they amounted to spying on the campaign:

Oh, it was clearly spied upon. I mean that’s what electronic surveillance is. I think wiring people up to go in and talk to people and make recordings of their conversations is spying. I think going through people’s e-mails, which they did as a result of the FISA warrant.

The only electronic surveillance undertaken by the FBI was on a single individual, Carter Page, a low-level consultant to the Trump Campaign who had left the campaign before the surveillance was undertaken. Although the surveillance would have given the FBI access to Page’s email during the time he had been associated with the campaign, it is a considerable stretch to describe such limited surveillance as “spying on the campaign.”

Not surprisingly, Barr emphasized several egregious errors by the FBI in obtaining the initial warrant and three extensions authorizing the surveillance of Page. The seriousness of the errors cannot be disputed” it has been acknowledged by both Christopher Wray and by James Comey, who was Director at the time. And on Tuesday, the FISA Court issued an order severely criticizing the FBI and requiring remedial action. Nevertheless, there is no evidence that the  FBI’s misstatements or omissions were politically motivated. If any of the misconduct resulted from more than negligence, they were more likely the product of the apolitical over-zealousness of which, unfortunately, law enforcement officials are too often guilty under a wide variety of circumstances.

Barr focused on one particular failure of the FBI in its handling of the FISA applications for surveillance of Page. The FISA applications were based in part on information provided by Christopher Steele. In January 2017, the FBI interviewed a “Primary Sub-source” of Steele, who contradicted Steele’s reports in significant respects. That contrary evidence, however, was not reported to senior leaders of the FBI, Department of Justice lawyers or to the FISA Court as it clearly should have been. (See, the IG report pp. 241-246.) Barr seized upon that failure to try to discredit the entire investigation.

Barr also exaggerated the extent to which people were “wired up.”  It is a routine practice for the FBI to use Confidential Human Sources (CHSs) and for such sources to wear a wire when contacting persons of interest (Consensual Monitoring). Consensual Monitoring is not regarded as spying and extensive FBI regulations govern its use. The IG found that the regulations had been fully complied with in Crossfire Hurricane. As described in the IG report, there were CHS contacts with Papadopoulos, Page and a campaign official not under investigation. It appears from the report that the information sought in the contacts was of a fairly general nature, and no contact was made with Flynn or Manafort. The report is explicitly clear that the FBI made no attempt to place a CHS within the campaign or to recruit a CHS from within the campaign.

In short, considering both the surveillance of Page and the limited use of CHSs, the inflammatory claim of spying on the campaign appears to be an exaggeration at best.

3. Barr’s attack on the Mueller Report

The IG made no assessment of the value or importance of information uncovered by the FBI investigation. Yet Barr saw the report as another opportunity to disparage Mueller’s investigation and his report. In Barr’s eyes, the unreported January interview with Steele’s Primary Sub-source meant that “the case collapsed” and that the FBI’s investigation should have been abandoned: 

At that point, when their entire case collapsed, what do they do? They kept on investigating the president and the — well into his administration, after the case collapsed.

To claim that the entire case collapsed is wildly extravagant, an assertion unsupported by the IG report or known facts. It is not even clear (and the IG made no finding) that the FISA Court would have denied renewals of the Page warrant if provided the information in question. In any case, the Page surveillance was only one aspect of the investigation and one that ultimately played no role in the Mueller report.

Nevertheless, Barr built on that assertion to attack not only the continuation of the investigation, but its results. According to Barr:

Remember, there was and never has been any evidence of collusion. And yet this campaign and the president’s administration has been dominated by this investigation into what turns out to be completely baseless.

and

From the very first day of this investigation, which was July 31, 2016, all the way to its end, September 2017, there was not one incriminatory bit of evidence to come in. It was all exculpatory.

and

I think our nation was turned on its head for three years. I think, based on a completely bogus narrative that was largely fanned and hyped by an irresponsible press.

Completely baseless? All exculpatory? Bogus narrative? Hardly. While Mueller did not make any finding as to “collusion,” he did find a great deal that more than justified the investigation. Volume I of the Mueller report documented Russia’s massive interference in 2016 and, if not collusion, blatant encouragement from Trump and his campaign. As the Mueller report put it rather dryly, “[T]he Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome, and that the Campaign expected it would benefit electorally from information stolen and released through Russian efforts.”  A New York Times analysis of the Mueller report showed that “Donald J. Trump and 18 of his associates had at least 140 contacts with Russian nationals and WikiLeaks, or their intermediaries, during the 2016 campaign and presidential transition.” (Emphasis in original.)

If Mueller was unable to find evidence sufficient to support criminal charges of conspiracy, he came very close. There were at least two instances in which a less restrained prosecutor might well have brought an indictment: the meeting in Trump Tower which Donald Trump Jr. attended on the strength of a promise of dirt on Hillary Clinton, and the campaign’s liaison with WikiLeaks through recently convicted Roger Stone. Without second guessing Mueller’s decision not to prosecute, it is clear that there were at a minimum ample grounds to seriously consider that action.

4. Barr pins his hopes on U.S. Attorney John Durham

In expressing his displeasure with the IG’s report. Barr made it clear that he was hoping for something more to his liking from the investigation being conducted by John Durham. Durham is an experienced and respected U.S. Attorney, but many observers were taken aback by his expression of disagreement with some aspects the IG’s report. (“ [L]ast month we advised the Inspector General that we do not agree with some of the report’s conclusions as to predication and how the FBI case was opened.”)

It appears that Barr is counting on Durham to somehow find evidence of the improper motivation behind the FBI investigation, evidence for which Barr (and Trump) clearly pine. As Barr explained:

Durham is not limited to the FBI. He can talk to other agencies. He can compel people to testify….So someone like — someone like Durham can compel testimony, he can talk to a whole range of people, private parties, foreign governments and so forth. And I think that is the point at which a decision has to be made about motivations.

The IG’s report provided a detailed account of how and why the investigation was commenced and how it was carried out. It therefore seems unlikely that, despite the resources at his disposal, Durham will find the missing evidence that Barr is seeking. Indeed, to use a term popular in the current lexicon, his investigation has all the earmarks of a witch hunt. But if Durham has the experience and character suggested by his reputation, he may be forced to report an absence of witches.

* * * *

Further reading. In Tuesday’s New York Times, there is a scathing rebuke by William Webster of the attacks by President Trump and Attorney General Barr on the Department of Justice Inspector General and on the FBI. Mr. Webster is one of America’s most distinguished public servants, having held high office under three presidents. His op-ed piece is titled “I Headed the F.B.I. and the C.I.A. There’s a Dire Threat to the Country I Love,” and it deserves the attention of every reader, It can be found here.