Jack Goldsmith’s defense of Attorney General Barr’s handling of the Mueller report is typically thoughtful but ultimately unpersuasive. While certain aspects of Barr’s behavior could be defensible if they stood alone, taken as a whole his course of conduct—what he said, how he said it and what he didn’t say—shows that Barr is not merely “defen[ding] the presidency” institutionally, as Goldsmith argues, but defending this particular president politically.
The prevailing take on Attorney General William Barr’s letter to Congress on the Mueller report is summed up in the New York Times: “The investigation ... found no evidence that President Trump or any of his aides coordinated with the Russian government’s 2016 election interference.” But a careful reading of Barr’s letter suggests that that may be wrong.
A letter this week from two Republican House members to John Durham, the U.S. attorney in Connecticut, revealed that the lawyer for former FBI General Counsel James Baker had said that Baker could not answer certain questions during his congressional testimony because Baker was the subject of a criminal investigation into leaks being conducted by Durham.
As was long anticipated, President Trump this week sacked Attorney General Jeff Sessions and designated Matthew Whitaker as acting attorney general. Others have debated the legality of Whitaker’s designation, and whether he is disqualified from supervising Special Counsel Robert Mueller’s investigation. But apart from legality, the present circumstances pose a crucial test of character for Whitaker and others.
Once again, Donald Trump has heedlessly jeopardized important institutional interests of the presidency in the service of his own personal pique. For years, courts have declined to review the merits of security clearance determinations, relying on Department of Navy v. Egan, in which the Supreme Court held that the kind of “[p]redictive judgment” embodied in the grant or denial of a clearance “must be made by those with the necessary expertise in protecting classified information,” rather than judges.
Much attention is being paid to a news report headlined “Mueller Weighs Putting Off Trump Obstruction Decision.” The article claims to be a “peek into Mueller’s calculations” as he supposedly wraps up the obstruction phase of his investigation.
The legislative debate over Section 702 of the Foreign Intelligence Surveillance Act has ended with passage of a six-year reauthorization that omitted many of the provisions privacy advocates had argued were necessary. But the legal and policy debate is likely to continue in the U.S. and in European courts.
We took different positions in the overall debate on Section 702. But we agree that there is an important step the U.S. government can take now to bolster transparency and accountability within the program without unduly burdening legitimate intelligence activities.