Federal Law Enforcement

Reflections on the President’s Delegation of Declassification Authority to the Attorney General

By David Kris, Benjamin Wittes
Tuesday, May 28, 2019, 11:40 AM

In the wake of Watergate, a remarkable series of legislative and administrative reforms sought to prevent future abuses by making the attorney general responsible for keeping intelligence agencies within the law.

Times have changed.

These days, many Americans fear, the attorney general has been given a different role: facilitating the political declassification of intelligence community materials the president wishes to make public to retaliate against the intelligence leadership for investigating him. Whereas once the public needed the attorney general to protect it from abuses by the intelligence agencies, today some believe that the intelligence agencies need protection from the attorney general.

On May 23, President Trump delegated authority to Attorney General Bill Barr in connection with the attorney general’s “review of intelligence activities relating to the campaigns in the 2016 Presidential election and certain related matters.” As Barr explained on Fox News, he has been examining whether “government officials abused their power and put their thumb on the scale” in opening the inquiry into possible ties between Russian election interference and the Trump campaign. Indeed, Barr has already expressed his initial skepticism, observing that “[a] lot of the answers have been inadequate and some of the explanations I’ve gotten don’t hang together.” He has also repeatedly characterized the investigation as “spying”—a characterization each of us has criticized.

The attorney general’s delegated authority includes the power to “declassify, downgrade, or direct the declassification or downgrading of information or intelligence that relates to [his] review.” It comes with a suggestion—but not a directive—that “the Attorney General should, to the extent he deems it practicable, consult with the head of the originating intelligence community element or department” before doing so. This delegation of authority is personal to Barr, meaning that it “shall terminate upon a vacancy in the office of Attorney General” and “is not delegable” by Barr to anyone else. The president’s memorandum states that the delegation of declassification authority shall not “be construed to impair or otherwise affect ... the authority granted by law to an executive department or agency or the head thereof,” but it does not explain how it is to be squared with the statutory authority and obligation of the director of national intelligence (DNI) to “protect intelligence sources and methods from unauthorized disclosure.”

It is extremely unusual for any non-intelligence community officer to be given absolute declassification authority over the intelligence community in this way; indeed, we are not aware of any precedent for this action.

The president’s order serves both signaling and operational functions. As a matter of signaling, President Trump’s order advises his political adversaries and opponents, as well as the federal workforce, that he strongly supports Barr’s investigation—or perhaps it is better to say investigations—of the Russia investigation. As one of us put it recently, “The president is not known for the precision, judiciousness or thoughtfulness of his attacks, but he is in attack mode here and we seem to be opening a new front.” The Department of Justice actually has multiple meta-Russia investigations underway, including by its inspector general and one or two U.S. attorneys. But now the attorney general’s overarching review will also play a role, perhaps in framing and previewing the results of those investigations as he framed and previewed the results of the Mueller report (for which he has been criticized harshly and was reproved even by Special Counsel Robert Mueller himself).

Nor does the president even pretend his action is about anything other than a political war he is fighting. This is his chance to go after the witch hunters and those he accuses of “treason” and a “hoax.” While Barr frames his concerns in terms of whether the intelligence community had proper predication for its investigative steps, Trump does not bother. The president has given the attorney general unprecedented declassification authority for no reason more elevated than so that Barr can use it to embarrass Trump’s enemies, including incidentally, allied foreign intelligence services that cooperated with our intelligence services.

As Trump himself put it, “for over a year, people have asked me to declassify. What I’ve done is declassified everything. He can look. I hope he looks at the U.K. and I hope he looks at Australia and I hope he looks at Ukraine. I hope he looks at everything, because there was a hoax that was perpetrated on our country. It’s the greatest hoax—excuse me. It’s the greatest hoax probably in the history of our country and somebody has to get to the bottom of it. We’ll see. For a long period of time, they wanted me to declassify and I did.”

Operationally, it remains to be seen whether and how the delegation of declassification authority will play out in practice. There may be different kinds of impacts at each level of the executive branch.

First, will the delegation of authority affect the day-to-day work on declassification that will presumably be done by intelligence community and Justice Department staff? Staff-level disagreements in similar contexts are routine, but if the intelligence community staff feels undercut, or has been instructed by superiors to yield in all but the most extreme cases, the process could play out differently from usual. The DNI’s public statement following the president’s delegation signaled both regular order and a posture of cooperation and, therefore, does not tell us much about what may happen if regular order results in a disagreement: “Much like we have with other investigations and reviews, the Intelligence Community (IC) will provide the Department of Justice all of the appropriate information for its review of intelligence activities related to Russian interference in the 2016 presidential election. As part of that process, I am confident that the Attorney General will work with the IC in accordance with the long-established standards to protect highly-sensitive classified information that, if publicly released, would put our national security at risk.”

Moving up to the cabinet level, what will happen if a disagreement escalates through the bureaucracy to the point that the DNI and the attorney general find themselves at odds? One possible answer is that, in keeping with the president’s order, the attorney general will simply decide the matter as he sees fit. The order clearly gives him the power to do that, at least formally. As noted above, the attorney general is not required even to listen to the DNI or any other intelligence community element heads before declassifying or directing them to declassify information. Of course, the attorney general may try to work cooperatively and may even defer in part to the intelligence community’s arguments if he finds them persuasive. It strikes us as very unlikely, for example, that he would simply decline a meeting request, or that he would fail to return a telephone call, from the DNI. If a disagreement is important enough to merit the personal attention of an intelligence community element head, the attorney general would be crazy not to listen, creating at least a pretense of considering alternative views even if his mind is already made up.

In part, of course, the attorney general will meet and confer with his intelligence community peers because, in an extreme enough case, the DNI—possibly supported by the directors of the CIA and the FBI or other intelligence component heads—could always appeal to the president himself despite the delegation of authority to Barr. The president obviously is not bound by his own prior memorandum and can intervene at any point. In such a case, Barr will be on much stronger ground if he has at least heard out the intelligence community and understands its objections. The difficult questions here are whether the intelligence community chiefs will in fact appeal to the president in any particular case and, if they do, whether the president will entertain the appeal. President Trump’s well-established disregard for process, and his willingness to pull the rug out from under his subordinates, may make such an appeal more likely. Barr surely appreciates this. At the same time, Trump’s enthusiasm for Barr’s project and his evident antipathy for the intelligence community may create the opposite incentive.

The reactions the president’s order has provoked highlight the increasing pressure on the model of intelligence oversight that has been in place since the mid-1970s. They also demonstrate how far we have moved away from traditional understandings of intelligence oversight. The president conferred on the attorney general an unprecedented power over the intelligence community, a significant expansion of the attorney general’s oversight function that was established in the 1970s. Since that time, however, we are not aware of an exercise of oversight that has provoked such widespread mistrust of the overseer.

Since the mid-1970s, the country has expected the attorney general, as the nation’s chief law enforcement officer, to help oversee and enforce a system of intelligence under law, appropriately respectful of privacy and rigorously apolitical. The horrendous abuses by the intelligence community led the Church Committee Report to conclude (see Book II at 296) that “[e]stablishing a legal framework for agencies engaged in domestic security investigation is the most fundamental reform needed to end the long history of violating and ignoring the law.” The Church Report recommended that, as the country’s “chief legal officer,” the attorney general be “charged with ensuring that the intelligence agencies conduct their activities in accordance with the law.” Id. at 332. As one of us has explained elsewhere, the result was a series of executive orders, and internal guidelines approved by the attorney general, governing the conduct of the intelligence community. The Church Committee Report also led to formation of the House and Senate intelligence committees, which conduct oversight of the intelligence community for the legislative branch. In some cases, for example, under the Foreign Intelligence Surveillance Act (FISA), intelligence community activities require advance approval by the attorney general and the judiciary.

Establishing oversight and intelligence under law reflected fear and concern of the intelligence community. It had engaged in severe misconduct and needed to be brought under control. That project was so successful that one of us wrote in May 2016 that concerns that a future President Trump would order domestic drone strikes or mass surveillance of his political opponents were missing the real risk: “The soft spot is not NSA and it’s not the drone program. The soft spot, the least tyrant-proof part of the government, is the U.S. Department of Justice and the larger law enforcement and regulatory apparatus of the United States government. The first reason you should fear a Donald Trump presidency is what he would do to the ordinary enforcement functions of the federal government, not the most extraordinary ones.”

Since taking office, President Trump has relentlessly tried to politicize law enforcement. It is genuinely shocking to consider the degree to which he has said and done things that would have been unthinkable in the 40 years following 1976. The Mueller report catalogues some of these efforts but actually only a fraction of them. The efforts include both defensive abuses—demands that law enforcement lay off investigation of Trump and his supporters—and abuse on offense, that is, demands that law enforcement go after his opponents. They include as well routine pronouncements on the guilt or innocence of investigative subjects, or even on the guilt of people who are not even criminal subjects. The abuses are near-daily occurrences, so common that it’s easy to see them as just more Trump political noise. Yet many Americans of both political parties are gravely concerned about these efforts by the president to politicize, or perhaps more accurately to personalize, the administration of justice. And Barr has—to put it mildly—not assuaged those concerns. His references to “spying” and his insinuations without evidence of investigative impropriety in the Russia investigation have given the president’s position high-level respectability and cover. And, as one of us has explained elsewhere, Barr’s characterizations of the Mueller report have substantively misled the public on critical matters as well.

The result, unfortunately, is that the kind of mistrust that previously applied to the intelligence community has now migrated to the attorney general and other oversight mechanisms, even as the intelligence community itself has behaved carefully and—at least as far as the evidence made public so far shows—within both law and policy.

It is critical to emphasize that the modern model of intelligence under law arose not only from mistrust of the intelligence community but also from trust in the attorney general. Yes, some attorneys general have been controversial—for example, John Ashcroft and Janet Reno both faced significant suspicion from the party then in opposition—but we cannot think of any period in the past 40 years in which a substantial segment of the American public harbored serious concerns that the attorney general would, for example, selectively declassify information over the objection of the intelligence community in an effort to mislead the American people. It was shocking enough when Rep. Devin Nunes, then the chairman of the House intelligence committee, was shown to have done so with respect to the FISA warrant on Carter Page (we have written about Nunes in several places, including here, here and here). But it is significantly worse when the attorney general is viewed in the same light.

When that happens, it flips on its head the role the modern intelligence system has given to the attorney general, one that presupposes he or she will be more trusted than (or at least as trusted as) the intelligence community, one that presupposes that the attorney general can act as a figure of reassurance to the public that the intelligence community is staying within the rules. What if the intelligence community is, in fact or in appearance, more trustworthy, less political, more careful with facts and more scrupulous about the truth than is the attorney general? And what if the attorney general’s role is, or is suspected to be, not a protection of the public against the intelligence community’s predations but, instead, an effort to politicize the intelligence community from which the community requires protection?

It is easy to understand why Barr might want to have the authority that the president gave him; interagency declassification fights can be difficult, long-lasting and frustrating, and there have been times when the intelligence community’s refusal to declassify material has provoked suspicion in the Justice Department and elsewhere. On the most charitable reading, Barr’s primary purpose in seeking this authority may have been merely to foreclose foot-dragging. The problem, however, is that too many Americans do not believe that, or at least harbor nontrivial questions about what the attorney general is doing and what he believes he is supposed to be doing. What’s more, while one might adopt a charitable understanding of Barr’s actions, there is no charitable understanding to adopt of Trump’s. Trump, after all, has been nothing but honest about what he’s up to here.

One of the unfortunate consequences of all this is that it may politicize and inhibit potentially helpful reforms at the FBI or elsewhere. Barr is certainly right when he says that investigation of political campaigns by law enforcement and national security agencies is deeply concerning and must be very carefully regulated. As one of us put it elsewhere, the president’s behavior and other facts left the FBI with no choice but to investigate, but the

decision [to investigate] is very sensitive; it has to be done very carefully; there are serious concerns about the security establishment investigating an elected official. It is a horrendous situation and terribly fraught. It is shocking, even if not surprising. There is no good outcome available. But at some point, the choice is either to pursue the investigation or to let it go, and I cannot see how the FBI could have let it go. Pursuing the investigation seems to me to have been the least worst option available.

That the investigation was inevitable does not mean that it was perfect. So far, Barr has produced zero evidence that any investigative step in the Russia probe was inappropriate, although we would not be surprised if the many ongoing reviews, including one by the inspector general of the Department of Justice, find fault, or at least room for improvement, with the FBI’s handling of sources and other matters. For one thing, Section 10 of the FBI’s internal manual—the Domestic Investigations and Operations Guidelines (DIOG), which sets out special rules for “sensitive investigative matters” (SIMs) including counterintelligence investigations of political campaigns—could be developed and its requirements heightened. Mueller did not find evidence to establish a conspiracy between the Trump campaign and Russian intelligence, but he did find “numerous links” between them, mutual expectations of benefit, and “the two parties taking actions that were informed by or responsive to the other’s actions or interests.” It should not be at all surprising if the FBI has lessons to learn from the way it dealt with this kind of unprecedented connectivity between a U.S. presidential campaign and a hostile foreign intelligence service.

In the current climate of doubt about the attorney general, however, these lessons may well be lost or weakened.

We can well imagine Barr’s reaction to this concern: He might argue that his critics and doubters are all some combination of misguided, misinformed, partisan or stupid. To which we would be obligated sadly to reply: Not all of them, Bill, not all of them.