Americans rightly expect their law enforcement and intelligence leaders to follow the president’s policies while avoiding the extremes of partisan politics, particularly with respect to individual cases and investigations. The perception and the reality must be that our law enforcement and intelligence agencies aren’t on the side of either political party or any individual politician. Against the background of President Donald Trump’s relentless efforts to politicize law enforcement and intelligence, Attorney General William Barr’s recent statements that he believes “spying did occur” on the Trump campaign in 2016 were problematic, for at least three reasons.
First, Barr’s statements supported a narrative that the FBI and intelligence community were acting improperly and illegally when they investigated links between the Trump campaign and Russian election interference. This is not principally because “spying” is a pejorative word (as compared, say, with “investigating”); both of us have used it to refer to wholly legitimate government surveillance in other contexts. It is instead because the word so obviously aligns with the president’s prior false attacks and complaints against the intelligence community, including his now-discredited complaint that President Barack Obama wiretapped Trump Tower. As Benjamin Wittes wrote recently on Lawfare, Barr’s statements were “bound to play into ongoing conspiracy theories, promoted by the president himself, about the origins of the Russia investigation.”
Second, for similar reasons, the reference to “spying” created the impression that Barr was pandering to the president, succumbing to Trump’s relentless pressure to shade the truth (or worse) in service of his own narrow, personal interests. This surely pleases the president, but it undermines Barr’s credibility and corrodes the public’s perception of him as an agent of apolitical justice. Whether those concerns are valid or not, the perception alone is damaging.
Third, although Barr focused on prior FBI leadership, rather than the bureau’s rank and file, Barr’s statements also resonated with prior presidential attacks on the agency and the intelligence community as a whole. A better approach would have been to use more neutral language, to have acknowledged the importance of proper investigation as well as the risk of improper investigation, or to have simply referenced the forthcoming inspector general’s report and left it at that. Barr was certainly correct that law enforcement and intelligence investigation of political campaigns is highly sensitive and a matter of concern; the way he made that important point, however, was the problem.
To be fair, anyone who has testified before Congress – including both of us – must acknowledge the possibility of a slip of the tongue or an inartful articulation in that often-difficult forum. But Barr stuck with “spying” in his Senate hearing, and he is much too smart, experienced in law enforcement and intelligence, and politically sophisticated to have fallen into that vocabulary by accident. Even if the reference was not calculated, he is accountable for it in part because he has not made any public effort to clarify his meaning (as he did, through a spokesman and a letter, when accused of having released a “summary” of the Mueller report), despite the political reaction it has triggered.
Is there any justification for Barr’s reference to “spying”? Perhaps he is thinking several moves ahead, trying to placate – rather than pander to – Trump in an effort to avoid a potentially worse outcome, such as direct presidential interference. If Barr anticipates that the forthcoming IG report will not show any major wrongdoing, for example, perhaps he is trying to establish his bona fides in advance of delivering that news. The argument here would be similar to one he might advance with respect to his non-summary of the Mueller report, more favorable to the president than the report itself might be, and how it laid the groundwork for his later being able to assert, without contradiction, that the White House would not participate in the redaction of that report for public release.
Even if this is Barr’s strategy – and it is far from obvious that is the case – it has a high price. Unfortunately for all of us, acts designed to please this president are often antithetical to the rule of law. They can encourage others in law enforcement or intelligence to do the same, spreading like a virus. Efforts to give a little ground in exchange for Trump’s short-term forbearance are therefore dangerous.
As things stand, Barr has made it harder for the public to believe that he is not leaning on the wheel for his boss. Attorneys general are supposed to avoid that, in part to inspire confidence that justice and intelligence will never belong solely to any one politician or political party.