Federal Law Enforcement

The Good, the Bad and the Ugly in the Attorney General’s CBS Interview

By Jack Goldsmith
Sunday, June 2, 2019, 1:05 PM

Jan Crawford’s extraordinary CBS interview with Attorney General William Barr was released on Friday, May 31. In it Barr said some good things about why his investigation of the Trump campaign investigation is needed. He also said some bad things about his attitude toward his investigation that reveal the depressingly ugly state of U.S. intelligence and law enforcement institutions.

On the Need for an Investigation

Barr makes a strong case on the need for an investigation of the investigators. I say this as someone who believes firmly that the FBI did the right thing in opening up the investigation of Russian contacts with the Trump campaign, and also as someone who has not yet seen any evidence of wrongdoing in the opening of the investigation or in the Carter Page Foreign Intelligence Surveillance Act (FISA) application. The reason an investigation is needed, however, is that—due to no fault of the investigators—the Trump campaign investigation was unprecedented and politically fraught in ways that go to the core of long-held concerns about the impact of secret government surveillance on our democracy. The country needs to know how it went so that it can have confidence that the invariably fraught power exercised by the FBI was not abused, and also so that the FBI can learn how to approach these problems better in the future. Barr explained this pretty well in the interview:

I just think [the investigation of the 2016 campaign] has to be carefully looked at because the use of foreign intelligence capabilities and counterintelligence capabilities against an American political campaign to me is unprecedented and it's a serious red line that's been crossed. … There were counterintelligence activities undertaken against the Trump campaign. And I'm not saying there was not a basis for it, that it was legitimate, but I want to see what that basis was and make sure it was legitimate.

[O]ne of the key responsibilities of the attorney general, core responsibilities of the attorney general is to make sure that government power is not abused and that the right of Americans are not transgressed by abusive government power. That's the responsibility of the attorney general. …

But I think it's important to understand what basis there was for launching counterintelligence activities against a political campaign, which is the core of our … First Amendment liberties in this country. And what was the predicate for it? What was the hurdle that had to be crossed? What was the process—who had to approve it? And including the electronic surveillance, whatever electronic surveillance was done. And was everyone operating in their proper lane? …

And we're working closely with the intelligence agencies, the bureau and the agency and others to help us reconstruct what happened. And I want to see, what were the standards that were applied. What was the evidence? What were the techniques used? Who approved them? Was there a legitimate basis for it? …

The attorney general's responsibility is to make sure that these powers are not used to tread upon first amendment activity and that certainly was a big part of my formative years of dealing with those issues. The fact that today people just seem to brush aside the idea that it is okay to you know, to engage in these activities against a political campaign is stunning to me especially when the media doesn't seem to think that it's worth looking into. They're supposed to be the watchdogs of, you know, our civil liberties.

There should be a broad consensus on the need for the public to have a full and fair accounting of these matters.

Barr on Motives of Top Officials and on Treason

Unfortunately, Barr said some very unfair and inappropriate things in the interview. Crawford asked Barr many times to express his concerns about the investigation into the Trump campaign, and in particular to state whether he had concerns with the actions of former FBI Director James Comey and former Deputy Director Andrew McCabe. Many times, Barr rightly said things like “I don’t want to get into those details.” But when Crawford pressed him, he made some statements that were pretty clearly directed at Comey and McCabe, and possibly at former CIA Director John Brennan, which can plausibly be seen to prejudge the case.

First, he made clear that his concerns were with decisions by the upper echelons of the FBI: “I think the activities were undertaken by a small group at the top which is one of the—probably one of the mistakes that has been made instead of running this as a normal bureau investigation or counterintelligence investigation. It was done by the executives at the senior level.”

In other words, despite Barr’s demurrals, he is focused on Comey and McCabe.

Second, Barr said something really stupid, or worse, about treason:

CRAWFORD: But the president has tweeted and said publicly that some in the upper echelon, Comey, McCabe, etc., committed treason. I mean do you agree with that?

BARR: Well, I—as a lawyer I always interpret the word treason not colloquially but legally. And you know the very specific criteria for treason—so I don't think it's actually implicated in the situation that we have now. But I think what he—

CRAWFORD: Legally.

BARR: Right.

CRAWFORD: You don't think that they've committed treason?

BARR: Not as a legal matter, no.

In distinguishing between legal and colloquial meanings for the term “treason,” and in saying that “they’ve” not committed treason “as a legal matter,” Barr is implying wrongdoing without explanation or, as he might say, without “predication.” That is a terrible thing for the attorney general to imply, especially at the outset of an investigation of what happened in 2016. One can parse this matter in a way that is somewhat more charitable to Barr by attributing the implication to the interrupted exchange with Crawford. But that is not the best reading.

Barr then continued the insinuations:

CRAWFORD: But you have concerns about how they conducted the investigation?

BARR: Yes but you know, when you're dealing with official government contact, intent is frequently a murky issue. I'm not suggesting that people did what they did necessarily because of conscious, nefarious motives. Sometimes people can convince themselves that what they're doing is in the higher interest, the better good. They don't realize that what they're doing is really antithetical to the democratic system that we have. They start viewing themselves as the guardians of the people that are more informed and insensitive than everybody else. They can—in their own mind, they can have those kinds of motives. And sometimes they can look at evidence and facts through a biased prism that they themselves don't realize.

Here again, Barr is implying wrongdoing and bias even if the officials were not acting on purpose with “conscious, nefarious motives.” And he pretty clearly has at least Comey in mind with his reference to “the higher interest, the better good,” which can plausibly be seen as a reference to Comey’s book, “A Higher Loyalty.” Again, this and several other passages in the interview—especially Barr’s reference to “a Praetorian Guard mentality” that he implied might have infected former senior officials—have the appearance of strongly prejudging a case that Barr claims he only has suspicions about. And Barr is doing these things in ways that the people he implicitly criticized cannot respond to on the merits. That is an unacceptable thing for the attorney general to do and is akin to some of the very things Barr is complaining about in the actions of former officials. In this regard, I agree with Comey’s tweet from June 1:

It is no defense of Barr to say that some of the investigators of the Trump campaign might have prejudged or been biased in that case. Thus far the main evidence for such prejudging or bias are the foreign surveillance leaks, the text messages between Peter Strzok and Lisa Page, and the overheated anti-Trump statements by some senior former officials who worked on the Trump investigation. But if we have learned anything in the past two and a half years, it is that two wrongs do not make a right, and one norm violation should not justify another, especially by government officials conducting investigations.

On June 1, I defended the president’s delegation of declassification authority to Barr for purposes of the investigation. I stand by that analysis, as I certainly don’t think Barr will blow intelligence sources. I continue to think that Barr is the proper person to supervise the investigation because he is attorney general, and I continue to hope that as conducted by Connecticut U.S. Attorney John Durham, a man of unquestionable integrity, the investigation will be fair. But in this interview Barr was unfair to the people under investigation, he weakened his credibility, and he severely undermined what was left of his credibility (and thus of the credibility of his investigation) with the large chunk of the population that is already suspicious of him. The attorney general committed the sin he accused others of: He violated important Justice Department norms.

And Then Barr Got Really Crazy

Perhaps the least convincing and most bizarre thing Barr said came at the end of the interview (with my emphasis):

I think one of the ironies today is that people are saying that it's President Trump that's shredding our institutions. I really see no evidence of that, it is hard, and I really haven't seen bill of particulars as to how that's being done. From my perspective the idea of resisting a democratically elected president and basically throwing everything at him and you know, really changing the norms on the grounds that we have to stop this president, that is where the shredding of our norms and our institutions is occurring.

I have been arguing for years that the reaction and resistance to Trump have often been norm-violative. But as I noted in that same piece, and as is obvious, no one comes close to the president in violating norms in ways that can be interpreted only as having the aim of shredding our institutions. There are dozens of bills of particulars on the pages of Lawfare.

It is very hard to read this passage in a way that is charitable to Barr. It is one thing for an attorney general not to go out of his way to criticize the president for whom he works, even when asked. I get that. But here Barr goes out of his way, without being asked, to announce that he’s not troubled by Trump’s behavior and doesn’t think the president’s actions and comments harm American institutions. This comment makes it hard to take seriously Barr’s concerns about norms violations and harm to institutions, and will, like his insinuations, color his investigation no matter how fairly Durham conducts it.

What It Means

There is a broader point here about the decline of norms and the decay of our institutions that is perhaps obvious but I think worth underscoring.

Barr’s insinuations in his interview were wrong. This is no justification for what he did, but Barr may have been reacting in part to various types of norm-breaking by former officials, and to very personal attacks by former officials. An example of the latter is Comey’s May 1 op-ed, which unbecomingly attributed Barr’s and Deputy Attorney General Rod Rosenstein’s actions to a “lack of inner strength” and to having had their “souls” eaten by Trump—rather than addressing their actions, at least some of which were quite defensible, on the merits. Comey, in turn, has many very good reasons to be furious with the president and his administration due to their numerous unfair attacks on him, and due to Barr’s fact-free insinuations about him. The Trump administration, in turn, has reason to be furious with Comey over the leak of an internal memo designed to spark a special counsel investigation. It also has reason to be angry about the Strzok and Page messages, the leakers of foreign intelligence information who aimed to harm the president, and the exaggerated claims by several former intelligence officials about Trump’s complicity in the 2016 Russia operation. And the leakers and former-officials-turned-pundits, in turn, felt justified in (respectively) leaking in unprecedented ways, and in entering the political fray against the president, all due to Trump’s persistently outlandish, norm-breaking (to put it mildly) behavior.

This is but one small slice of the downward-spiraling, norm-defying, personalized tit-for-tat that has increasingly infected U.S. institutions, and especially intelligence and law enforcement institutions. All of this is unprecedented and really bad for the country—much worse, I think, than we appreciate amidst the daily swirl of back-and-forth accusations and insinuations by very senior senior officials and former officials who serve or served under different presidents.

It is terrible because it deepens the appearance of politicized intelligence and law enforcement in different ways before different audiences. It is terrible because it deepens the appearance—again, in different ways and on different sides—of retaliatory investigation and law enforcement. It is terrible because these appearances are having a devastating effect, one that will be with us for a very long time, on the credibility and legitimacy of intelligence and law enforcement institutions, without which they cannot keep the country safe and secure. (Imagine the impact of all this on Chris Wray’s already-very-difficult job as FBI director.) It is terrible because everyone involved in this mess (except the president) has served honorably and with distinction in government and is (I believe) an honorable person, and yet they are all breaking norms and harming one another’s reputation in a fashion that is collectively hard to fathom. And it is terrible because no person or institution seems to have the incentive, much less the power, to arrest the downward spiral. (Former FBI General Counsel Jim Baker is an honorable exception; he is at least trying.) I don’t see where it ends.

The downward spiral began before Trump and has many causes that likely explain Trump’s rise, at least in part. But the president has been a very large contributing cause of this unfortunate trend. And of course, there is another large contributing cause: Russian interference in the 2016 elections. The depressing picture I am painting is the continuing fruit of the greatest information operation of all time.