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The Good, the Bad and the Ugly in the Attorney General’s CBS Interview

Jack Goldsmith
Sunday, June 2, 2019, 1:05 PM

Jan Crawford’s extraordinary CBS interview with Attorney General William Barr was released on Friday, May 31. In it Barr said some good things about why his investigation of the Trump campaign investigation is needed. He also said some bad things about his attitude toward his investigation that reveal the depressingly ugly state of U.S. intelligence and law enforcement institutions.

On the Need for an Investigation

Attorney General William Barr meets with Alaska Native leaders in May 2019. (Source: Justice Department)

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Jan Crawford’s extraordinary CBS interview with Attorney General William Barr was released on Friday, May 31. In it Barr said some good things about why his investigation of the Trump campaign investigation is needed. He also said some bad things about his attitude toward his investigation that reveal the depressingly ugly state of U.S. intelligence and law enforcement institutions.

On the Need for an Investigation

Barr makes a strong case on the need for an investigation of the investigators. I say this as someone who believes firmly that the FBI did the right thing in opening up the investigation of Russian contacts with the Trump campaign, and also as someone who has not yet seen any evidence of wrongdoing in the opening of the investigation or in the Carter Page Foreign Intelligence Surveillance Act (FISA) application. The reason an investigation is needed, however, is that—due to no fault of the investigators—the Trump campaign investigation was unprecedented and politically fraught in ways that go to the core of long-held concerns about the impact of secret government surveillance on our democracy. The country needs to know how it went so that it can have confidence that the invariably fraught power exercised by the FBI was not abused, and also so that the FBI can learn how to approach these problems better in the future. Barr explained this pretty well in the interview:

I just think [the investigation of the 2016 campaign] has to be carefully looked at because the use of foreign intelligence capabilities and counterintelligence capabilities against an American political campaign to me is unprecedented and it's a serious red line that's been crossed. … There were counterintelligence activities undertaken against the Trump campaign. And I'm not saying there was not a basis for it, that it was legitimate, but I want to see what that basis was and make sure it was legitimate.

[O]ne of the key responsibilities of the attorney general, core responsibilities of the attorney general is to make sure that government power is not abused and that the right of Americans are not transgressed by abusive government power. That's the responsibility of the attorney general. …

But I think it's important to understand what basis there was for launching counterintelligence activities against a political campaign, which is the core of our … First Amendment liberties in this country. And what was the predicate for it? What was the hurdle that had to be crossed? What was the process—who had to approve it? And including the electronic surveillance, whatever electronic surveillance was done. And was everyone operating in their proper lane? …

And we're working closely with the intelligence agencies, the bureau and the agency and others to help us reconstruct what happened. And I want to see, what were the standards that were applied. What was the evidence? What were the techniques used? Who approved them? Was there a legitimate basis for it? …

The attorney general's responsibility is to make sure that these powers are not used to tread upon first amendment activity and that certainly was a big part of my formative years of dealing with those issues. The fact that today people just seem to brush aside the idea that it is okay to you know, to engage in these activities against a political campaign is stunning to me especially when the media doesn't seem to think that it's worth looking into. They're supposed to be the watchdogs of, you know, our civil liberties.

There should be a broad consensus on the need for the public to have a full and fair accounting of these matters.

Barr on Motives of Top Officials and on Treason

Unfortunately, Barr said some very unfair and inappropriate things in the interview. Crawford asked Barr many times to express his concerns about the investigation into the Trump campaign, and in particular to state whether he had concerns with the actions of former FBI Director James Comey and former Deputy Director Andrew McCabe. Many times, Barr rightly said things like “I don’t want to get into those details.” But when Crawford pressed him, he made some statements that were pretty clearly directed at Comey and McCabe, and possibly at former CIA Director John Brennan, which can plausibly be seen to prejudge the case.

First, he made clear that his concerns were with decisions by the upper echelons of the FBI: “I think the activities were undertaken by a small group at the top which is one of the—probably one of the mistakes that has been made instead of running this as a normal bureau investigation or counterintelligence investigation. It was done by the executives at the senior level.”

In other words, despite Barr’s demurrals, he is focused on Comey and McCabe.

Second, Barr said something really stupid, or worse, about treason:

CRAWFORD: But the president has tweeted and said publicly that some in the upper echelon, Comey, McCabe, etc., committed treason. I mean do you agree with that?

BARR: Well, I—as a lawyer I always interpret the word treason not colloquially but legally. And you know the very specific criteria for treason—so I don't think it's actually implicated in the situation that we have now. But I think what he—

CRAWFORD: Legally.

BARR: Right.

CRAWFORD: You don't think that they've committed treason?

BARR: Not as a legal matter, no.

In distinguishing between legal and colloquial meanings for the term “treason,” and in saying that “they’ve” not committed treason “as a legal matter,” Barr is implying wrongdoing without explanation or, as he might say, without “predication.” That is a terrible thing for the attorney general to imply, especially at the outset of an investigation of what happened in 2016. One can parse this matter in a way that is somewhat more charitable to Barr by attributing the implication to the interrupted exchange with Crawford. But that is not the best reading.

Barr then continued the insinuations:

CRAWFORD: But you have concerns about how they conducted the investigation?

BARR: Yes but you know, when you're dealing with official government contact, intent is frequently a murky issue. I'm not suggesting that people did what they did necessarily because of conscious, nefarious motives. Sometimes people can convince themselves that what they're doing is in the higher interest, the better good. They don't realize that what they're doing is really antithetical to the democratic system that we have. They start viewing themselves as the guardians of the people that are more informed and insensitive than everybody else. They can—in their own mind, they can have those kinds of motives. And sometimes they can look at evidence and facts through a biased prism that they themselves don't realize.

Here again, Barr is implying wrongdoing and bias even if the officials were not acting on purpose with “conscious, nefarious motives.” And he pretty clearly has at least Comey in mind with his reference to “the higher interest, the better good,” which can plausibly be seen as a reference to Comey’s book, “A Higher Loyalty.” Again, this and several other passages in the interview—especially Barr’s reference to “a Praetorian Guard mentality” that he implied might have infected former senior officials—have the appearance of strongly prejudging a case that Barr claims he only has suspicions about. And Barr is doing these things in ways that the people he implicitly criticized cannot respond to on the merits. That is an unacceptable thing for the attorney general to do and is akin to some of the very things Barr is complaining about in the actions of former officials. In this regard, I agree with Comey’s tweet from June 1:

Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Senior Fellow at the Hoover Institution. 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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