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A Different View on the President’s Delegation of Declassification Authority to the Attorney General

Jack Goldsmith
Saturday, June 1, 2019, 2:09 PM

President Trump’s delegation of a narrowly defined declassification authority to Attorney General Bill Barr has attracted criticism, notably on this site by my colleagues David Kris and Benjamin Wittes. I think these criticisms tell only one side of the story, and that the matter is more complicated than they let on.

The Grand Bargain Under Threat

FBI Director Christopher Wray, Attorney General Bill Barr, and former Deputy Attorney General Rod Rosenstein. (Source: Department of Justice)

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President Trump’s delegation of a narrowly defined declassification authority to Attorney General Bill Barr has attracted criticism, notably on this site by my colleagues David Kris and Benjamin Wittes. I think these criticisms tell only one side of the story, and that the matter is more complicated than they let on.

The Grand Bargain Under Threat

Two years ago, Wittes and I argued that the intelligence community “is on the verge of a crisis of confidence and legitimacy it has not experienced since the 1970s.” To make a long story short: Prior to the post-Church Commission reforms starting in the mid-1970s, “the intelligence community used its secret powers of surveillance and other forms of government coercion—often but not always at the behest of its political superiors—to spy on and engage in operations against Americans for political ends,” including “to monitor and harm political enemies.” Revelation of these activities almost destroyed the intelligence community. It survived due to a “‘grand bargain’ with Congress and the American people in the 1970s.” The central elements of the grand bargain were as follows:

[T]he president and his intelligence bureaucracy were allowed to maintain robust surveillance and espionage capacities, including domestically. But in exchange, Congress subjected them to significant legal restrictions on how they collected, analyzed, and disseminated intelligence information; a bevy of lawyers throughout the intelligence community and, over time, in the Justice Department monitored and enforced those restrictions; domestic surveillance required a court order, including a court order from a new court, the Foreign Intelligence Surveillance Court, for foreign intelligence investigations; and two new committees, the Senate and House Intelligence committees, were to be kept “fully and currently informed” of all significant intelligence activities, and would have robust oversight authorities. The idea was that the use of these powers would be documented and watched by institutions that could be trusted to keep secrets but would act as credible surrogates for public oversight mechanisms.

As Wittes and I explained, the bargain worked pretty well for decades. “It gave the intelligence community legitimate operating space in the midst of a political culture obsessed with movies about intelligence community plots and rogue operations,” and it practically eliminated “the great evil of governmental use of its vast intelligence apparatus for politically-motivated surveillance.”

Wittes and I discussed two serious threats to intelligence community legitimacy growing out of the Russian interference in the 2016 election and the investigation of the interference. One was Trump’s attacks on the intelligence community “with the aim of delegitimizing the Russia investigation and, perhaps, of delegitimizing broader internal executive branch checks on the presidency.”

The second threat to the community’s legitimacy came from the community itself, and in particular the leaks of foreign intelligence intercepts with U.S. person information in them. These leaks “clearly suggest that somebody was indeed engaged in the political misuse of intelligence,” we said. They “create an environment in which the terms of the grand bargain have not been respected by those sworn to defend it,” and violate “the core commitment not to politicize the use of surveillance tools or the fruits of their use.” We concluded that “the combination of the unfortunate and unprecedented context in which officials acted and the bevy of leaks that followed … permits lots of people to believe that what happened here was political surveillance or politically-motivated surveillance or surveillance of one’s political enemies.”

Since Wittes and I wrote these words, both threats to the legitimacy of the intelligence community have grown much worse. Trump’s transgressions—his singular refusal to accept intelligence community findings about Russian interference in the 2016 elections, his relentless attacks on the Mueller investigation and his efforts to derail it, and his attacks, more broadly, on the intelligence community—are well known. The harm done to intelligence community legitimacy and credibility from these presidential actions are hard to overstate.

Norm-breaking transgressions by the intelligence community have also grown since we wrote. Foreign intelligence intercept leaks to pressure the administration have continued, albeit outside the context of the Russia investigation. We learned about numerous anti-Trump text messages by the lead FBI investigator on the Russia matter, Peter Strzok, that created the definite appearance of political bias even if they did not reflect the reality of one. (Special Counsel Robert Mueller fired Struck, who was subject to a critical inspector general report.) Some senior former intelligence officials who worked on the Russian investigation during the Obama administration appeared on national television to insinuate—in ways that at times could plausibly be attributed to their insider knowledge—that Trump colluded with the Russians or engaged in criminal behavior related to Russian election interference. Former CIA Director John Brennan went so far as to suggest that the Russian government was blackmailing the president, who Brennan accused of treason. Such one-sided criticisms of the president by these former officials, especially the former CIA Director, seem even more political now than when they were made, since what Special Counsel Robert Mueller concluded in Volume I of his report fell short of what was predicted or insinuated. Attorney General Barr has said that he has many unanswered questions about the origins of the investigation into Trump campaign officials, though I have seen no evidence yet of any problem and Barr has kept his cards close.

Many of these and other actions and episodes have convinced many Americans that the intelligence community has engaged in political misuse of intelligence tools and powers. The violations and possible violations of the grand bargain are especially bad because of the unfortunate context in which they arise. The intelligence community had to take the “counterintelligence angle of the Russian operation extremely seriously and to find out what was going on,” Wittes and I argued. I firmly believe that the intelligence community would have been grossly irresponsible had it not pursued this course. Nonetheless, using secret surveillance techniques to investigate a presidential campaign of the party out of power is perhaps the most fraught of political contexts and “always spelled trouble for a community that wants, and needs, to stay clean of politics,” Wittes and I wrote. Political use of intelligence in this context is a very serious sin.

The Trump Delegation to Barr

Mueller did a thorough investigation of “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.” His report “identified numerous links between the Russian government and the Trump Campaign,” and it discovered that the Trump campaign “expected it would benefit electorally from information stolen and released through Russian efforts.” But Mueller’s investigation “did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.”

Attorney general Barr is now investigating the origins and operation of the investigation into the Trump campaign and Russian interference. The investigation extends beyond the inspector general’s narrow Carter Page inquiry. (Barr clarified in his recent CBS interview with Jan Crawford that the investigation by Connecticut U.S. Attorney John Durham is part of his effort, and that Durham effectively stepped into the shoes of Utah U.S. Attorney John Huber, who is now off the Trump campaign matter.) Barr has given several reasons for the investigation, but the two most prominent are (1) to discern whether any abuses or errors were committed by the investigators, and (2) to gather information to improve the operation and legitimacy of counterintelligence investigations of presidential campaigns and presidencies in the future.

It is in this context that President Trump on May 23 issued a “Memorandum” on “Agency Cooperation with Attorney General's Review of Intelligence Activities Relating to the 2016 Presidential Campaigns.” The Memorandum does five basic things:

  • It requires intelligence agency heads to “promptly provide … assistance and information as the Attorney General may request” in connection with his review.
  • It gives the Attorney General the authority to “declassify, downgrade, or direct the declassification or downgrading of information or intelligence that relates to” his review.
  • It states 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 exercising declassification or related authorities.
  • It states that the memorandum “shall be construed to impair or otherwise affect … the authority granted by law to an executive department or agency, or the head thereof,” and “shall be implemented consistent with applicable law.”
  • It states that the authorities granted expire upon Barr leaving office.

The Kris-Wittes Critique

Kris and Wittes express three main concerns growing out of this arrangement.

First, the declassification authority to the attorney general is colored by Trump’s desire for political payback. That is certainly true based on the president’s words and everything we know about his attitude toward the Russia investigation. Even the appearance of political payback corrodes the integrity of law enforcement and will harm the intelligence community probably far beyond the Trump administration. It also makes it much harder for Barr to do his job. But while this background informs how we should think about the delegation to Barr, it doesn’t cut only in the direction that Kris and Wittes think, as I explain below.

Second, Kris and Wittes assert that a “substantial segment of the American public harbor[s] 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” or help the president “to retaliate against the intelligence leadership for investigating him.” I seriously doubt that a substantial segment of the American public knows or cares about selective declassification. In any event, Kris and Wittes say that the basis for the concern is that Barr has said that “[a] lot of the answers [about the origins of the investigation into the Trump campaign] have been inadequate and some of the explanations I’ve gotten don’t hang together,” and that he used the term “spying” to describe government surveillance of the campaign. Another basis is that “Barr’s characterizations of the Mueller report have substantively misled the public on critical matters”—a judgment I do not share.

Even accepting these points, it seems like a large overreaction to conclude that Barr poses a serious threat to blow U.S. sources, sacrifice U.S. national security interests, and in the process mislead the American public, all for the purpose of helping the president politically. Barr addressed some of Kris’s and Wittes’s concerns in the CBS interview. He said he has the support of the CIA director and director of national intelligence in his investigation. And he added:

I've been in the business as I've said for over 50 years … and I know how to handle classified information and I believe strongly in protecting intelligence sources and methods. But at the same time if there is information that can be shared with the American people without jeopardizing intelligence sources and methods that decision should be made and because I will be involved in finding out what the story was I think I'm in the best [position] to make that decision.

Third, Kris and Wittes say that the lack of trust in Barr is bad news for intelligence community legitimacy since the attorney general’s legal oversight of the intelligence community is one element that supports its legitimacy. If Barr is as mistrusted by the public as they say, then this is a valid point quite independent of whether the mistrust of Barr is warranted.

What the Kris-Wittes Critique Leaves Out

The main problem with the Kris-Wittes critique is what it ignores in its assessment of the need for the attorney general to have extraordinary powers related to his investigation, namely: intelligence community missteps. They say that “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.” This surprising statement is hard to square with the unprecedented number and array of foreign intelligence and other leaks related to the Russia investigation that were clearly aimed at harming the president. It is also surprising in light of the overtly anti-Trump texts by Strzok. Kris and Wittes are also silent on the norm-busting, seemingly politics-infused sharp criticisms of the president by former intelligence officials who worked on the Trump campaign investigation. The president’s abhorrent behavior has made it very hard for these officials not to respond. But as former FBI General Counsel Jim Baker has shown, former officials can defend themselves and their governmental actions from the president’s attacks in sober ways that do not appear political or politicized. Some former officials have not exercised such restraint, and have in the process clouded the legitimacy of current intelligence community actions and raised questions about the possible bias of these officials when they worked on the Russia investigation in office.

One might even say, paraphrasing Kris and Wittes, that the norm-busting by intelligence officials has been “so common that it’s easy to see them as just more [anti-]Trump political noise.” But these events are more than noise. They are the basis for the reality that Kris and Wittes leave out of their analysis: a substantial segment of the American public harbors serious concerns about how the Russia investigation originated and proceeded, especially since Mueller’s conclusions in Volume I fell far short of what the leaks, and former intelligence officials, and mainstream media outlets implied that Mueller would uncover about Trump and Trump campaign involvement with the Russians. This reality is the basis for a thorough investigation of the Russia probe, as the grand bargain requires.

While Kris and Wittes don’t mention this alternate reality, they seem to agree with this conclusion. They acknowledge that “investigation of political campaigns by law enforcement and national security agencies is deeply concerning and must be very carefully regulated.” They grant that the investigation of the Trump campaign might not have been “perfect,” and that they “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.” They add that the FBI surely “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 short, Kris and Wittes think that an investigation of the investigators is appropriate and might bear various forms of fruit. And while they do not say this, it makes sense to have the Attorney General lead an investigation of this enormous significance that will focus primarily on the actions of entities that he supervises—primarily, the FBI, but also the National Security Division and other Justice Department components.

Which brings me, finally, to Trump’s delegation of declassification authority to Barr for purposes of this investigation. I don’t worry about this nearly as much as they do. In part this is because I don’t think Barr will carry the president’s water to the point of harming U.S. national security. I also think the scary hypotheticals they invoke are exaggerated. The declassification authority extends only to Barr’s focused investigation. Moreover, as Kris and Wittes acknowledge, there are good reasons why the attorney general might need such authority: “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.” And Barr has pledged to consult closely with intelligence officials, and reiterated to Crawford that he “believe[s] strongly in protecting intelligence sources and methods.”

It is important to remember that power over classification and declassification rests fully with the president, and the president can delegate declassification authority among his senior intelligence advisors—a group that includes the attorney general—as he wishes. The right way to see the delegation to Barr is to ask: What are the practical alternatives that are acceptable to the president? Director of National Intelligence Dan Coats is the presumptive and natural person to exercise declassification authority here. But the attorney general—who sits atop the components that are the primary focus of the investigation—is also a natural choice, especially since, as Kris and Wittes note, declassification fights can be used to slow such investigations. Trump appears to trust Barr and not Coats—a factor that always informs presidential selections of this sort. From the perspective of the president who has ultimate control over the matter, the plausible alternative to giving Barr the declassification authority is not Coats, but Trump himself. For a long time, including recently, the president has been threatening to declassify everything related to the origins of the Russia investigation. Against this baseline, the delegation of declassification authority to Barr is a move sharply in the direction of sobriety and mature judgment.

Kris and Wittes are more worried than I am because they think Barr’s credibility is shot. I cannot convince them otherwise, and the proof will be in the pudding of how the investigation is conducted. Even construing Barr in the worst light, however, he is much better situated and much more likely to make informed judgments about what should properly be declassified than the president. Indeed, I think Barr’s request and receipt of declassification authority is more likely an effort to protect legitimate national security interests than it is an effort to harm them. It is easy to imagine Barr consoling the president during one of his rants about “the witch hunt” by convincing him it is better to let the attorney general get in the weeds and decide what needs to be declassified rather than having the president issue a blanket and truly harmful declassification order.

* * *

We live in a world of competing alternative realities about our politics. Kris’s and Wittes’s concern about the credibility and trustworthiness of the attorney general reflects one reality—a reality that is in part a function of the president’s well-deserved lack of credibility and trustworthiness. But they ignore altogether the other reality: The deep suspicion that many Americans have—based on some good reasons, some bad ones, and some unproven ones—about the origins and especially the operation of the investigation of the Trump campaign beginning in 2016. At a minimum, it is important to keep both realities in mind when assessing the legitimacy of government action by or against the intelligence community. Unfortunately, we don’t have any mechanism to sort out the truths, or relative truths, of these realities. As Wittes and I wrote, we need but lack “an institution that can sort out truth from fiction in a way that the American people, or at least large chunks of it, can have confidence in.”

The really bad news is that the credibility of the intelligence community, and thus the country’s security, suffers enormously in this world of competing realities. As Wittes and I wrote:

[If] the President … can discredit an investigation of foreign interference in an American election and collusion with that effort by the president’s campaign by alleging improper political misuse of the intelligence authorities by the prior administration, if leaking FISA intercepts is an accepted way to go after a political opponent, and if nobody can credibly say who’s telling the truth and who’s lying, then the grand bargain has truly failed, with consequences that are hard to fathom.

Alas, that is where we are. About the only way I can see out of this huge mess—at least in the short term, with respect to the Russia matter—is if Barr does a thorough investigation and concludes that there was no fundamental wrongdoing. Ironically for Kris’s and Wittes’s thesis, Barr is one of the very few potential investigators who can exonerate the Trump campaign investigators with credibility before the large chunk of the country that is deeply suspicious of the Trump campaign investigation. One does not know what Barr will find, but exoneration strikes me as a far more likely outcome than Barr blowing intelligence secrets to help the president politically.

Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Non-Resident Senior Fellow at the American Enterprise Institute. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.

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