Barr and Congress: Is the Focus on Criminality Too Narrow?–Five Experts Weigh In

The Senate Judiciary Committee’s questioning of Attorney General William Barr yesterday raises the question of whether Congress, in responding to the findings in Special Counsel Robert Mueller’s redacted report and Barr’s handling of the report, is too focused on the issue of criminality and, in turn, what can be proven beyond a reasonable doubt. On the one hand, such a focus might be helpful to those who see the report as a litany of wrongdoing — Congress and the public may be swayed by evidence of criminal conduct and use it as their benchmark or vocabulary for assessment of bad acts. But it also might obscure other meaningful but non-criminal issues, including, for example, grave national security risks that are not directly analyzed in Mueller’s report, or what kind of conduct we expect of presidential campaigns and of the Office of the Presidency.

Barr said multiple times he would only discuss criminal law matters in answering some Senators’ lines of questions on Wednesday. At other times he appeared to go beyond that boundary. Here’s what a slate of top experts in law, intelligence, and public policy had to say:

Jeffrey H. Smith is head of Arnold & Porter Kaye Scholer’s National Security practice, was General Counsel of the CIA, served as General Counsel of the Senate Armed Services Committee and on the Iran/Contra Committee; has also held senior positions for the Departments of Defense and State, and served as an Army Judge Advocate General officer. He observes that integrity was not evident in many of Mr. Barr’s responses and warns that our system of government only works if our senior officials tell the truth to Congress:

Our country is marching toward a crisis of how we govern ourselves, whether truth and integrity matter and possibly even whether our system of government is still viable. The remaining months before the 2020 election will, test Benjamin Franklin’s famous quip, we have a democracy – if we can keep it.  

The Mueller report established, with no doubt remaining, the vast Russian interference in the election of 2016. He was equally persuasive in documenting President Trump’s relentless efforts to interfere in the Mueller investigation but was regrettably less clear about what should be done. By leaving that in the hands of the Attorney General, he may have been highly professional but he appears to have badly misjudged what Mr. Barr would do.  

Hopefully, we will learn more when Mr. Mueller testifies before Congress. He must address whether his decision not to make a “traditional prosecutorial decision” was taken solely because of existing DOJ policy. If so, would it have been better to have said, “I would have indicted him but for DOJ policy”? Mr. Mueller may have expected that Mr. Barr would simply hand it off to congress for possible impeachment and/or leave it to the voters in 2020. Regardless of his reasoning, he gave Mr. Barr an opening through which he drove a truck.

Given what we now know – and much will undoubtedly come out later – Mr. Barr approached the Mueller report as one who believes not only in a maximalist vision of the unitary presidency with virtually unlimited power over the executive branch – to such an extent that would make most other proponents of a unitary executive blush – but also that the President must be able to ignore Congress and the law when necessary (as he alone determines). To ensure the president is not pestered by a meddling congress, it was therefore necessary to effectively preempt Congress’ impeachment of the president by declaring that Mueller’s report does not support a prosecution for obstruction.

That approach was in full bloom on Wednesday in Mr. Barr’s testimony before the Senate Judiciary Committee. It will take time before a complete assessment can be made of his actions since receiving the Mueller report.  But his responses to the Committee on Wednesday leave one with the impression that he is committed to protecting the president – even at the expense of the integrity of our political processes.

His answers to many questions were deeply troubling. He appeared to be struggling to find a way to say no when the truthful answer was yes. In doing so he seemed to act as an advocate for the president rather than an Attorney General whose first duty is to the rule of law, regardless of the political consequences.

Our system of government will not work if our most senior officials cannot tell the truth to congress. Integrity is the essential lubricant of the machinery of government. Sadly, it was not evident in many of Mr. Barr’s responses.

The West Point Cadet Prayer, that has been hammered into the heads of generations of cadets – including me – calls upon God to “help me choose the harder right rather than the easier wrong and never to be content with a half truth when the whole can we won.”  

That must guide us all in the coming months.  

Asha Rangappa (@AshaRangappa ), Senior Lecturer at Yale’s Jackson Institute for Global Affairs, served as an FBI counterintelligence agent from 2002 to 2005. She discuss the function these hearings can serve in public education of a report that most Americans have not read and with an Attorney General who, in her view has lost all credibility:

The questions in today’s hearing largely missed the point. The issue isn’t Barr’s personal and somewhat kooky views on the obstruction of justice statute. It’s whether the pattern of behavior exhibited by the president — both with regard to his openness to receiving election assistance from Russia and to his attempts to obstruct the Special Counsel’s investigation into it — reveal exactly the kind of insidious foreign influence, self-dealing, and abuse of power against which the Framers of the Constitution sought to protect the presidency. As such, the goal of the hearing should have been to get as much detail about these behaviors into the public record and to the American people (most of whom have not read Mueller’s Report), rather than soliciting information from Barr, who is ultimately a useless witness and a source of disinformation more than anything else.

Barbara McQuade (@BarbMcQuade), Professor at the University of Michigan Law School, served as United States Attorney for the Eastern District of Michigan and Co-Chair of the Terrorism and National Security Subcommittee of the Attorney General’s Advisory Committee from 2010-2017. She explains profoundly wrong “awful but lawful” behavior and why Barr lacks credibility when using words like “collusion” and “spying” and advancing the narrative that the investigation should be put behind us:

Considering that Mueller believed that he could not indict a sitting president or even conclude that a crime had been committed, his narrow focus on whether a crime was committed seems like a fool’s errand. His focus was a very narrow one — whether the elements of any federal criminal statute had been violated. There is a wide range of profoundly wrongful behavior that does not meet the precise elements of a federal statute and therefore cannot be charged. In my work as a prosecutor, we often said that such conduct was awful but lawful.

William Barr has lost credibility for me. Words like “collusion” and “spying” are not words that prosecutors use. Mueller specifically addresses collusion in his report, writing that he did not focus on collusion because it is not the basis for any theory of criminal liability. Instead, he focused on conspiracy. By parroting President Trump’s talking point, Barr seems to be acting more as an attorney for Trump than the attorney general of the United States. Today, Barr agreed with Lindsay Graham that Mueller found no collusion, making Barr appear to be a puppet to advance the narrative that we as a country should put the matter behind us.

Joshua Geltzer (@jgeltzer), Founding Executive Director of the Institute for Constitutional Advocacy and Protection and Visiting Professor of Law at Georgetown University Law Center, focuses in on the ongoing national security threat posed by Russian election interference and how little has been done address it:

It feels hard–perhaps downright impossible–to say that there’s been too much focus on whether a sitting president has engaged in criminal activity, given the obvious stakes. But it does seem that there’s been insufficient focus on what the Mueller Report reveals about the national security threat to the United States revealed by Russia’s 2016 disinformation campaign. That’s a threat that will persist regardless of whether a particular candidate like Donald Trump embraces a hostile foreign actor’s assistance to an extent that rises to the level of criminal activity; indeed, it’s a threat that Americans saw in new forms in the 2018 midterm elections and that, just last week, the FBI Director warned is already emerging for the 2020 election cycle.  

The Mueller Report may well be the most comprehensive explanation and assessment of that threat, perhaps Mueller’s version of “Avengers: Endgame” that pulls into a single, culminating statement the many strands already spun into the detailed indictments emerging from the Special Counsel’s work. Especially because of how little President Trump has done to address–or even acknowledge–this threat, its remarkable description in the Mueller Report demands attention from the American people, the media, and the Congress, including so that continuing gaps in our defenses can be swiftly and effectively filled. But, with all of the focus–understandable as it might be–on Trump’s behavior in the past, I’m worried that there’s insufficient attention being paid to addressing this threat in the present and future.

John Sipher (@John_Sipher), Co-founder of Spycraft Entertainment, Director of Client Services at CrossLead, Retired Member of the CIA’s Senior Intelligence Service, explores the likely ongoing counterintelligence investigation as a motivator for Barr to stick to a narrow line in his responses.

AG Barr clearly wishes to keep the discussion of the Mueller report focused on the narrow issue of criminality, because he knows that Volume One of the Mueller Report raises as many questions as it answers. Running down answers to those questions is likely to simply uncover more ugly behavior.

He knows that counterintelligence professionals realize that failure to prove Russian espionage does not mean that it didn’t happen. As anyone with experience with counterintelligence is aware, it is by no means surprising that the Mueller investigators were unable to establish that the Trump campaign conspired in a “tacit or express” agreement with the Russian government. Most espionage investigations come up empty unless and until they get a lucky break. Any solid evidence is necessarily hidden by a professional intelligence service and buried deep in a Moscow file.

Uncovering spies is usually a product of our own intelligence sources inside the Kremlin – an occurrence that doesn’t materialize often or on a timeline dictated by the needs of investigators. As we say in the CIA, it takes a mole to catch a mole. So the counterintelligence investigation will continue. It has to. Every Russian political warfare operation for the past century has been built on human spies. The 2016 attack was likely no different. How did the Russians know where to deploy their disinformation and deception campaigns? Their knowledge of which states and counties were critical to the election sure seemed better than that of the Clinton campaign. As such, counterintelligence professionals realize they don’t have the whole story and will continue to work behind the scenes, slowly uncovering the activity of hostile intelligence services.

The Trump Administration would certainly like to declare an end to the process, because they know there is a potential guillotine hovering over their heads.

 

Image: Win McNamee/Getty

 

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