Bill Barr’s Dangerous New Powers

This article is co-published with Slate.

 

Over the weekend, President Donald Trump suggested that he trusted North Korean leader Kim Jong Un to “keep his promise” to Trump about the country’s nuclear program more than he trusted his own national security officials who have warned him about that program. It was just the latest example of Trump demonstrating disdain for the U.S. intelligence community and broader national security apparatus, but it came on the heels of a perhaps even scarier one. Trump’s decision last week to hand over unilateral authority to declassify America’s intelligence secrets to an attorney general who continues to act as if he’s Trump’s personal lawyer threatens to endanger intelligence sources, frighten our allies, and irreparably harm our national security.

Late Thursday, at Attorney General William Barr’s request, the president granted him carte blanche not only to obtain all “assistance and information” he desires from the intelligence community in support of his “review” of intelligence activities related to the 2016 election, but also to declassify any information he chooses to—even if that information was originally classified not by the Justice Department but by, say, the Central Intelligence Agency or National Security Agency. Barr doesn’t even have to consult with the head of the intelligence agency or department whose information is at stake unless he deems it “practicable.” Trump’s approach is out of sync with proper executive branch leadership and, more importantly, dangerous to American security.

Barr was not in government in early 2016 when red flags started to flutter about Russia’s successful attempts to meddle in our election, warnings that included Russian efforts to contact people associated with Trump. And he wasn’t in government when those red flags were straining against their moorings. He wasn’t part of any discussions or decisions, made in real time, about how to address the threat posed to the core of this country’s very democracy: free and fair elections without foreign influence. Now, rather than respectful deference to the women and men who had to make those decisions in the moment, Barr has demanded—and been handed—the power to rummage through classified materials, second-guessing the judgment calls of those who have spent decades combatting foreign intelligence threats. It’s clear he intends to use that power for the benefit of his political patron, President Trump

Barr, in his first three months as attorney general, has demonstrated that he is more interested in being Trump’s lawyer than he is in being the American people’s lawyer. He released a four-page letter to Congress misleadingly summarizing the “principal conclusions” of the Mueller report, which even the circumspect Robert Mueller objected to as threatening a central purpose of his probe. On the morning of the redacted report’s release, he held an unprecedented press conference defending the president’s obstructive abuses described in the Mueller report as the reasonable actions of a “frustrated” man. He did everything he could to lend the authority of the Justice Department to Trump’s main political talking points of “no collusion” and “no obstruction.” And he stoked the “witch hunt” flames long fanned by Trump by telling Congress he thought that “spying” on the President’s campaign had occurred and promising to interrogate the origins of that intelligence inquiry. Now he appears prepared to fulfill that promise using the unprecedented and dangerous new powers given to him by Trump.

To be clear, oversight of the intelligence community’s activities is critical. But that oversight has happened. Indeed, it continues to happen. Both the Senate and House have reviewed extensively the origins of the investigation into Russian election interference, and their probes continue. The Justice Department’s Office of Inspector General is nearing completion of its review of the investigation, especially as related to U.S. persons such as Carter Page, who briefly was a foreign policy advisor to the Trump campaign. If the inspector general’s report turns up something worthy of continued investigation, then a decision about next steps should be made at that time. But what need could there be for Barr to get ahead of his own Justice Department’s inspector general? It’s hard to fathom a reason other than the purely partisan one of keeping alive the president’s “witch hunt” theme amidst an ongoing oversight battle with Congress and heading into the 2020 election. Now, it seems, Trump’s efforts in both arenas will be supported by selectively declassifying and disclosing whatever materials might tend to make the president look a bit better, while withholding those that don’t.

This is just the latest manifestation of Trump’s dismal view of our nation’s intelligence community. Time and again, he has shown disregard and disrespect for the assessments of intelligence professionals. Recall the president’s Helsinki meeting with Vladimir Putin, where Trump publicly embraced the position of the Russian leader that no interference had occurred over the contrary opinions of his own intelligence community. Or remember his bizarre personal letters exchanged with Kim Jong Un. To its credit, the intelligence community has generally stood firm in its views despite Trump’s preference for the promises of foreign dictators.

That history underscores what last week’s order reveals about Trump’s view of Barr. As a practical matter, the order gives Barr supremacy over the intelligence community by allowing him to declassify their secrets at will. As a conceptual matter, the order may be even more extraordinary by empowering Barr to “direct the declassification” of the intelligence community’s secrets. Trump is thus making one cabinet member—Barr—superior to his fellow cabinet members on the matters of their own agencies. If this involved the exercise of their statutory authorities, it would be clearly unlawful. However, because this is a delegation of the president’s own authority to classify and declassify—as implemented via earlier executive orders—it may be lawful. But it’s a terrible and dangerous approach to governance. Trump is rewarding the cabinet member who’s been most political, most “loyal,” most obedient, by elevating him over other cabinet members who have been providing nonpartisan intelligence assessments to keep our country safe.

As alarming as last week’s order must have been to the U.S. intelligence community, imagine what our foreign allies must think. On Friday, Trump made clear that he wants Barr to use his review to “look at” the role British and Australian intelligence services played in the Russia probe, “because there was a hoax that was perpetrated on our country.” This represents an extraordinary threat to the intelligence these and other countries share with us and often help us to acquire and protect, as well as to the people gathering that intelligence. It—quite reasonably—seems certain to decrease their trust in Washington’s will to protect sources, methods, and intelligence; in turn, it’s likely to decrease how much they share. Ultimately, politically driven declassification and a decrease in intelligence sharing by U.S. partners—and especially the combination—could endanger the lives of Americans. Although Director of National Intelligence Dan Coats has expressed confidence 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,” it’s unclear if those standards will in fact be respected by Barr, given that the order requires him to consult with the intelligence community about declassification only, as noted above, if Barr himself deems it “practicable.”

To our closest allies, and to the women and men who have risked their lives—and in some cases, died—to acquire intelligence to protect our nation, the president’s order says a lot about his view of national security: not as a sacred responsibility of an American president, but as something that can be exploited for political advantage. That’s a terrible price for the rest of us to pay. 

About the Author(s)

Joshua Geltzer

Founding Executive Director of the Institute for Constitutional Advocacy and Protection and Visiting Professor of Law at Georgetown University Law Center. Former Senior Director for Counterterrorism at the National Security Council, former Deputy Legal Advisor to the National Security Council, and former Counsel to the Assistant Attorney General for National Security at the Department of Justice. Member of the editorial board of Just Security. Member of the editorial board of Just Security. You can follow him on Twitter (@jgeltzer).

Mary B. McCord

Senior litigator and visiting professor of law at Georgetown Law’s Institute for Constitutional Advocacy and Protection (ICAP). Previously served as Acting Assistant Attorney General for National Security at the U.S. Department of Justice.