Government Officials Shouldn’t Act Like Pundits
Last Wednesday, Attorney General William Barr told Congress the Justice Department will review “both the genesis and the conduct of intelligence activities directed at the Trump campaign.” Reviews like this are appropriate. The FBI has too much power not to be subject to oversight, both internal and external.
But Barr went beyond acknowledging that internal review, telling a House subcommittee in open testimony that “I think spying did occur.” The word “spying” stood out. It’s not how the legal or intelligence communities typically refer to investigations, and apes the language of conspiracy theories about a “deep state” trying to undermine Trump.
The reaction was predictable, with swift criticism from the left. The president’s supporters defended Barr’s language in a repeat of a scene that has played out repeatedly during Trump’s presidency. The toxic notion that our leaders should be held not to the highest standards, but the lowest common denominator has become unfortunately common in Republican circles. Trying to excuse bad behavior by pointing to the bad behavior of others is almost unavoidable when defending Donald Trump and it’s now extending to the rest of his administration.
Here’s what we know: A memo by California Rep. Devin Nunes , the former chair of the House Intelligence Committee, revealed that the FBI opened a counterintelligence investigation into the Trump campaign in July 2016 because one of the campaign’s foreign policy advisers, George Papadopoulos, told Australian diplomat Alexander Downer that Russia had dirt on Hillary Clinton before that became public. And we know the FBI acquired FISA warrants to investigate former Trump adviser Carter Page as a possible Russian agent beginning in October 2016, after Page had left the Trump campaign, but before the election. Investigating a presidential campaign is serious business, especially when the White House is held by the opposing party.
So serious, in fact, that the term “spying” should not be bandied about lightly. And Barr, an experienced attorney and public servant, is typically careful with his language, as seen in his letters summarizing the Mueller report’s topline legal conclusions. When New York Democratic Rep. Nita Lowey pressed Barr to elaborate on his letter, the attorney general appropriately declined “to say anything more about it until the report is out and everyone has a chance to look at it.” It’s unlikely his “spying” comment was a mistake, and he hasn’t corrected it.
However, the most inappropriate aspect of Barr’s statement is not “spying” but “I think.” Despite admitting “I have no specific evidence that I would cite right now,” Barr told Congress he had prejudged the case. Unsurprisingly, the president and pro-Trump media ran with it. Tucker Carlson declared Barr “confirmed” that “the Obama administration spied on Donald Trump’s presidential campaign.” And Trump’s re-election campaign sent out a fundraising request claiming Barr said “unlawful spying did occur.” If we give Barr the benefit of the doubt and assume he did not coordinate with the White House on the “spying” language in advance, he still created the appearance of politicization, allowing more overtly political actors to exaggerate his claim.
When this received criticism, Trump apologists stepped up to excuse it. The Washington Examiner’s Byron York defended Barr’s use of “spying” by pointing to “common usage” in the media. But when it comes to the word “collusion,” York recognizes that DoJ should use the formal legal definitions of “conspiracy” and “coordination.” The Wall Street Journal’s Kimberly Strassel crowed after Barr’s testimony that “media members are stunned and scared,” as if DoJ’s job is to settle pundits’ squabbles. And National Review’s Andrew McCarthy dismissed concern over Barr’s comments by pointing to claims that “POTUS is a ‘Russian agent.’ POTUS is ‘Putin puppet’; POTUS is ‘tool of the Kremlin.’”
However, no matter how ridiculous those conspiracy theories, they did not come from the sitting attorney general. Barr is not a pundit. He’s not an activist on Twitter. He’s not even a member of Congress. He is the country’s chief law enforcement officer. McCarthy, a lawyer who previously served as assistant United States attorney for the Southern District of New York, surely knows the difference.
McCarthy, Strassel, York, and others criticize Trump-Russia coverage, and then argue that the media fueling conspiracy theories somehow justifies the attorney general fueling conspiracy theories. This is two-wrongs-make-a-right (or at least an okay) logic—always flawed, but especially misguided when applied to the AG. It casts the Department of Justice as just another partisan institution, no different from Fox News or MSNBC.
These attempts to politicize the legal system are hallmarks of the Trump presidency. Sounding like a pundit, Trump denounced unfavorable rulings from “Obama judges,” prompting a rare public comment from Chief Justice John Roberts in defense of the independent judiciary. In 2017, Trump pardoned former sheriff Joe Arpaio, who was found guilty of violating a court order, and this month reportedly told the head of Customs and Border Protection to break the law and close the border, promising a pardon if he got arrested. And Trump repeatedly lamented that his first attorney general, Jeff Sessions, did not do more to “protect” him, as if Sessions was his personal lawyer.
The president’s ire at Sessions stemmed from the AG’s decision to recuse himself from the Russia investigation, a decision that was undoubtedly correct. The FBI was investigating possible links between the Russian government and the Trump campaign, Sessions was a member of the Trump campaign, and one cannot impartially investigate oneself. His recusal left Deputy Attorney General Rod Rosenstein—also appointed by Trump and confirmed by the Republican Senate—in charge of the case. Trump spent the better part of two years publicly denigrating Sessions for this basic act of integrity before requesting his resignation after the 2018 midterm elections.
Many who defend, or at least excuse, this behavior know that politicizing, or even appearing to politicize the Justice Department is wrong. For example, many Republicans criticized Obama AG Loretta Lynch for meeting Bill Clinton on the tarmac of the Phoenix airport in June 2016 while Hillary Clinton was under investigation. Andrew McCarthy correctly argued this meeting created “the appearance of impropriety” and called for Lynch to recuse herself “[u]nder the ethical standards that apply – if standards actually matter to anyone anymore.” In a March 2019 press conference, Senator Lindsey Graham (R-SC), an attorney and the chair of the Senate Judiciary Committee, called for an investigation into Lynch and the tarmac meeting.
They clearly know presidents and attorneys general should be held to the highest standard. But having committed themselves to this unethical president, they’ve decided those standards don’t matter anymore, and the best rationalization they can come up with is some other people do it too.