The Gordian Knot Protecting
Real Clear Politics
October 15, 2020
Donald Trump and Republicans are furious that U.S. Attorney John Durham has not brought indictments against senior people who spied on the president’s campaign, lied repeatedly to judges in order to do it, and based their intrusions on specious evidence, which they knew to be false -- and had been commissioned by the opposition political party. We know the broad outlines of this coordinated operation, but we still don’t know its full extent, all those involved, and what precise roles they played.
Attorney General William Barr promised major developments in this probe by late spring, then mid-summer, then Labor Day, and now sometime after the election. If, as Republicans say (and the evidence seems to show), there was a systematic effort to weaponize federal law enforcement and intelligence agencies for political purposes, the public has a compelling right to know. This need-to-know is urgent because the Democrats’ presidential nominee, Joe Biden, served as the second-highest ranking member of the administration that conducted these acts.
Why have Barr and Durham delayed issuing indictments or producing a comprehensive report? There are two ways to view this riddle.
The first is that there have been so many practical obstacles to moving quickly, yet properly, to find out what happened. Everything was on hold while bumbling Jeff Sessions was attorney general. The department was, in effect, run by his second-in-command, Rod Rosenstein, who appointed Robert Mueller as special counsel and then let him and his deputy, Andrew Weissmann, operate virtually without restraint.
Mueller’s biased, aggressive team seems to have had one overriding interest: take down the president. (Weissmann confirmed as much in his recent kiss-and-tell memoir harshly critical of Mueller for not doing precisely that.) When that prolonged effort fizzled and with Barr in place of Sessions, the Department of Justice could finally investigate how Trump was targeted and who did it. Barr assigned that task to Durham, a nonpartisan, highly respected career prosecutor with previous experience as an independent counsel.
Durham met predictable resistance from the same agencies that had committed the very acts being investigated. The CIA, now headed by Gina Haspel, and the FBI, now headed by Christopher Wray, refused to turn over any documents they weren’t forced to. Their resistance significantly slowed Durham’s work. So did the pandemic, which prevented grand juries from meeting to consider the evidence he uncovered.
These delays are only half the story.
The other half is the inherent, unresolvable tensions between the political and criminal dimensions of this investigation. Career prosecutors are obliged to be concerned only with assembling solid evidence to win criminal convictions, however time-consuming that is.
If one indictment is part of a broader picture and might reveal information to other targets, prosecutors keep it secret as long as they can.
These procedures pose no problems in ordinary cases. In this case, however, they pose big problems since the crimes being investigated were directed at political figures, had political consequences, and may have been politically motivated. Citizens have a right to know -- right now, before another Election Day -- how the results of the previous presidential election were undermined by the very agencies who are supposed to be the bulwarks of American democracy. The targeting by the FBI and CIA of Donald Trump’s campaign, transition, and presidency corrupts the very idea of free-and-fair elections, the peaceful transfer of power, and nonpartisan law enforcement. If that’s what happened, Americans must know who did it.
The Gordian Knot here is the unavoidable, unresolvable tension between the proper procedures used to investigate complex, white-collar crimes and the inherently political nature of the crimes being investigated in this case. The logic of law enforcement pulls on one end of the rope. The logic of informed, democratic choice pulls on the other end. One demands secrecy; the other, openness. Both are completely legitimate. Because they pull in opposite directions in this case, the knot keeps getting tighter. Secretive criminal investigations proceed with a logic that is fundamentally different from that of free and open democratic elections. Each has its own timetable, and the gap between them cannot be closed by Election Day 2020.
Durham has moved on a legal timetable, not a political one. That’s entirely appropriate. But it comes at a high cost to voters and to the Trump White House. It leaves the attorney general with no way to inform citizens what his department has discovered before they cast ballots. Although Barr could speak about the broad contours of his findings, doing so would seem partisan and, in any case, would be hard to do without naming names. Those names should only be revealed through criminal charges or court cases. Indict or shut up.
Violating that cardinal rule was the same mistake FBI Director James Comey made when he discussed Hillary Clinton’s emails and server. Barr and Durham won’t repeat it.
So, how can citizens acquire the information they need between now and Nov. 3? How can they find out what senior officials in the Obama administration did to surveil political opponents and cover it up when they lost the election?
There aren’t many options. The only realistic one is exactly what President Trump is demanding: Executive branch agencies must release all relevant documents with as few redactions as possible. His demand is entirely political, designed to help him win reelection. Still, he has the legal authority to do it. Whether it helps the country depends on what the documents tell us and whether they disclose any secret intelligence techniques.
What we have seen so far is a textbook example of bureaucrats covering their tracks, even if it harms the country they were hired to serve. Although some redactions are necessary to protect national security and on-going criminal investigations, many others were likely made to protect government agencies from humiliation or worse. That self-protection is why the State Department, FBI, and CIA have refused to give up documents. Lower-level bureaucrats have an additional reason. They fear the disclosures will help Trump.
Now that Election Day is so imminent, these agencies have even more leverage to keep their secrets. Trump cannot fire the Slow-Walkers-in-Chief, Christopher Wray and Gina Haspel, since doing so would ignite a political firestorm, just as firing Comey did. Wray, Haspel, and their colleagues know that, so they try to wait out Trump and hope for the best.
Still, the president does have some levers. John Ratcliffe, who is the director of national intelligence, outranks Haspel and can overrule her. He should do so if he thinks she is stalling to protect her agency or her position. She is vulnerable because she headed the CIA’s London station when Obama’s CIA ran so many anti-Trump operations on her territory. As for Wray, he is Barr’s subordinate in the Justice Department. The AG should override the FBI director unless disclosures would imperil a Durham prosecution. The practical danger is that Wray would complain to the New York Times and Washington Post, just as Comey and his deputy, Andrew McCabe, did. Those friendly publications would undoubtedly reprise their old headlines: “Sources say AG undermining rule of law to help Trump.”
As we peer through a glass darkly, we should remember who failed to inform us about these scandals for years, leaving us with so few options now. It was the Democratic House of Representatives and the mainstream media. On the Senate side, the Intelligence Committee was useless, and the two committees that did try to investigate, Judiciary and Homeland Security, were stonewalled by the very bureaucracies they were probing. They are still being stonewalled. The only breach in this cone of self-serving silence came thanks to the Freedom of Information Act, used by Judicial Watch and a few others to obtain government information hidden from our elected representatives.
The mainstream media has been an embarrassment. It so revered the Obama administration that, instead of reporting on its officials’ malfeasance, it protected them. It is still protecting them, as well as Hillary Clinton and her campaign. The country’s leading news organizations had zero interest in uncovering serious violations of constitutional norms governing fair elections and unbiased law enforcement. Instead, they leaped head-first down the “Trump-Russia collusion” rabbit hole. They emerged dirty but unbowed. One result is that about half the American public now believes the media is a branch of the Democratic Party. Actually, everyone does, but only half thinks it’s a bad thing.
Republican frustration with this coverup is palpable. After four years, they say, we still don’t have a full accounting of how the Obama administration used the powerful tools of law enforcement and intelligence agencies against a political opponent. We ought to know before the election, but we won’t. If the Democrats win and take back the Justice Department, we may never know. Why would a Biden administration ever want to pursue that issue?
This veil of ignorance, constructed so assiduously by its malefactors, goes to the heart of our democratic process. It bears directly on the current election. Yet the biggest questions linger unanswered because Congress and the media failed in their duties. Their failure left only federal prosecutors to investigate, and they couldn’t begin until Mueller and Sessions were gone. Durham’s criminal investigation is necessarily secret, and properly so. It moves at its own deliberate pace. For voters, that’s too slow. The alleged crimes are grave, those involved were high-ranking officials plus the Democrats’ 2016 candidate. The party’s 2020 nominee ranked second only to Barack Obama when the crimes were committed. The unhappy result is this whole nettle of serious crimes remains hidden from voters who deserve to know.
Charles Lipson is the Peter B. Ritzma Professor of Political Science Emeritus at the University of Chicago, where he founded the Program on International Politics, Economics, and Security.