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Why Attorney General Barr’s Allegation Of Spying Is A Body Blow To The Very Idea Of Government

In his statement made under oath to Congress last week about spying on the Trump campaign, Attorney General Barr allied himself with one of the weirder conspiracy theories promoted for several years by Donald Trump.

By Steve Denning | Forbes Magazine | April 14, 2019

In his statement made under oath to Congress last week about spying on the Trump campaign that “I believe it did occur,” Attorney General Barr allied himself with one of the weirder conspiracy theories promoted for several years by Donald Trump himself. Combined with Barr’s conclusion in his letter to Congress on March 24, 2019 “that the evidence developed during the Special Counsel [Mueller’s] investigation is not sufficient to establish that the President committed an obstruction-of-justice offense,” Barr appears to be demolishing his reputation as a respected former Attorney General and cementing a revised assessment of him as a mere lackey of a lawless president, thus politicizing the Department of Justice (DOJ) and undermining the rule of law throughout government.

Attorney General William Barr (AP Photo/Andrew Harnik)

History indicates this to be a perilous course for both Barr and the country. In the most famous presidential scandals, when Attorneys General have attempted to suppress or cover up the scandal to protect their president—take Harry Daugherty in Teapot Dome scandal in the 1920s or John Mitchell in Watergate in the 1970—their actions were ineffective and eventually backfired politically, damaging themselves, the DOJ, their respective presidents, and the political system.

By contrast, those Attorneys General that stood up for openness and truth—take Richard Kleindienst, Elliot Richardson, William Ruckelshaus in Watergate, and Janet Reno in the Clinton scandals— they and the Department of Justice emerged with their reputations politically strengthened.

Another key lesson from history is that presidential scandals take years for the impact to be determined. What are initially presented by partisan proponents as definitive endpoints turn out to be just turning points in a much longer saga, with startling new directions for the inquiries. If history is any indication, Barr’s apparent exoneration of Trump on March 24, and his allegation of spying on the Trump campaign, will inexorably be just the beginnings of totally new chapters in a lengthier epic.

Barr’s Allegation Of Spying On Trump

At the committee hearing on Wednesday, April 10, Barr made headline news by announcing that he believed the long-discredited charge that “spying on the Trump campaign did occur.” When pressed, Barr declined to offer any evidence to support the charge. He also failed to make clear exactly who did the spying or on exactly whom the spying was done or for what reason.

At one point in his rambling answers, Barr suggested that the spying was in “the upper echelons of the FBI.” At other points, he suggested that he was referring to actions in the broader intelligence community. At one point, he seemed to imply that he was setting up a new team to look into the matter, while at another point, said that he was not launching a new inquiry.

At the hearing, Barr disingenuously claimed not to understand the connotations of the word “spying”. Senator Schatz helpfully pointed out that “spying” was a provocative term and unnecessarily inflammatory; when he invited Barr to adopt another phrase, Barr offered “unauthorized surveillance” and later just “surveillance.” Barr thus claimed to be totally unaware that in common language, “spying” has a sharply negative and even hostile connotation that is quite different from the official surveillance undertaken after careful review and great deliberation by a panel of distinguished judges in the FISA court.

Barr obviously knows that the DOJ has already examined the question of whether there was spying on the Trump campaign during the 2016 election and found it baseless. He also knows that the DOJ’s Inspector-General has reviewed these very issues yet again and is due to report on them in several weeks. Barr’s evidence-free announcement that “spying did occur” is thus politicizing the outcome of the review, rather than waiting for results of a thorough-professional inquiry.

What did Barr think he was doing by making such an announcement? If his intent was to please Trump and make headline news, his testimony was eminently successful on both counts. His blurry words about “spying on Trump” became the lead story of the daily news cycle. It also prompted the absurdly triumphant and repeated declarations of vindication by Trump himself to the effect that the alleged spying amounted to a coup d’etat against his administration and was, in effect, treason.

Attorney General William Barr (AP Photo/Andrew Harnik)

If Barr’s objective was to advance the reputation of himself, the DOJ or the president, the effect was the opposite. Barr demonstrated that he was opting to act in the manner of Trump’s former mentor and the protégé of Senator McCarthy, Roy Cohn, who repeatedly threw out baseless accusations. Barr has acted as Attorney General before and he must know that it is reckless as Attorney-General to make such evidence-free accusations. It not only aggravates the current, highly politicized environment. It also sends a clear message that the DOJ is no longer an organization whose word can be trusted. And it sheds further doubt on the motivations for Barr’s actions in relation to the Mueller report.

Barr’s ‘Exoneration’ Of Trump For Obstruction Of Justice

Thus, Barr’s conclusion in his letter of March 24 that “that the evidence developed during the Special Counsel [Mueller’s] investigation is not sufficient to establish that the President committed an obstruction-of-justice offense” politicized an inquiry that had been remarkably bi-partisan. “Let Mueller complete his inquiry and see what the facts show,” was long the cry from both sides of Congress.

Instead, Barr suppressed the facts by withholding Mueller’s report for redaction and announced his own partisan conclusion that there was not sufficient evidence to establish that his president had committed an obstruction-of-justice offense. The promise of presenting a redacted version of the report “in a couple of weeks” only whetted the appetite to find out the real story.

Special Counsel Robert Mueller, and his wife Anne (AP Photo/Cliff Owen)

The evaluation of Barr’s conclusion was not enhanced by the rapidity of his reaching it. The almost-400-page report got to Barr on Friday, March 22. Barr issued his decision only two days later on Sunday afternoon March 24. The report obviously must contain an immense tangle of information and complex legal issues that would all need to be thoroughly digested before coming to a serious conclusion on what must be one of the most important issues Barr will ever have to consider.

The fact that Barr reached his conclusion so rapidly on an issue on which Mueller himself had not reached a conclusion suggests that Barr had made his decision even before receiving, let alone reading, the report. This impression is strengthened by the fact that Barr had strenuously argued, even before taking the position of Attorney General, that a president could not in principle be guilty of obstruction of justice. The fact that Barr justified his decision in his letter by resorting to the flawed legal argument that Trump could not have committed obstruction of justice because there was no underlying crime, further confirms that Barr was clutching at straws to justify a pre-determined conclusion, rather than delivering a well-considered legal opinion. As a result, when the report is eventually made available, whether redacted or unredacted, Barr’s letter will inevitably spawn multiple fresh inquiries, rather than end the matter.

Teapot Dome

For instance, in the Teapot Dome scandal in the 1920s, Attorney General William Daugherty appeared to have resolved the issue of whether Secretary of the Interior Albert Fall had wrongly issued valuable oil leases on the basis of single bids to political friends of President Harding: Daugherty conducted an inquiry and issued his finding in 1922 that there was no wrongdoing. However, this didn’t end the matter. The Senate launched two inquiries that dragged on for some years. In each inquiry, no criminal wrongdoing was found, although suspicions remained high, since Senate offices were ransacked, and investigatory files kept mysteriously disappearing. Eventually, it emerged that Interior Secretary Fall had taken bribes and he was sent to prison. Although Secretary Fall was to blame for this scandal, President Harding’s reputation was sullied because of his involvement with Fall and the poker-playing crowd from Ohio. Fall’s guilt was only proven in 1929, six years after Harding’s death in 1923.

Another significant outcome of the Teapot Dome scandal with implications for Trump and Barr today is the ruling in McGrain v. Daugherty (1927) in which the Supreme Court, for the first time, explicitly established that Congress had the power to compel testimony. A witness was sent to prison for declining to appear before a Senate committee and the Supreme Court upheld the conviction. Thus, if Barr and Trump think that they can stonewall Congressional committees with non-answers and non-appearances, they are mistaken.

The Clinton Scandals

In the allegations of wrongdoing against President Clinton in the matter of the Whitewater land deals, Attorney General Janet Reno demonstrated the advantages of an apolitical stance. She appointed a special prosecutor and he found no wrongdoing in the Whitewater matter. But Republicans were not satisfied, and Reno agreed to their request to appoint a Republican special prosecutor (Kenneth Starr), who again found no wrongdoing in the Whitewater matter. Starr, however, proposed an expanded inquiry into Clinton’s sexual activities, which Reno approved, despite the political risks to Clinton. In due course, this led to Clinton’s impeachment by the House of Representatives but acquittal by the Senate. Although the disclosures in the Starr report were embarrassing, Clinton became more politically popular and Democrats strengthened their representation in the subsequent 1998 mid-term elections. Janet Reno, the Department of Justice, and President Clinton all emerged with their political reputations strengthened.

Janet Reno (AP Photo/Barry Thumma, File)

Implications For Barr And The Department Of Justice

The dilemma for any Attorney General today is that President Trump has no interest in or respect for either the rule of law or truth-telling in general—the very purposes of the Department of Justice. With almost 10,000 false or misleading statements to his credit and multiple attacks on the judiciary and the press, Trump presents only two options for an Attorney General. Either you go along with and support his lies and attacks, or you stand up for the truth and the rule of law. It appears that Barr has opted to take the former route and become Trump’s lackey. If he continues on that path, it will be a sad thing for the Department of Justice, since institutional reputations for integrity can be destroyed very quickly but can take many years to be rebuilt.

More seriously, by aligning the DOJ with Trump, Barr is delivering a body blow to the very concept of government, which depends on a commitment to truth and the pursuit of the rule of law. Once the DOJ–the organ responsible for ensuring legality throughout all government—sets aside those principles, the concept of government itself is at risk.

Steve Denning’s most recent book is The Age of Agile (HarperCollins, 2018)

Steve Denning –Senior Contributor

My new book, “The Age of Agile” was published by HarperCollins in 2018. I consult with organizations around the world on leadership, innovation, management and business … Read More

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