Saturday, February 23, 2019

Bill Barr: Deep State Actor--Or Not?

One area in which I've received a fair amount of pushback from commenters has been my belief that Bill Barr may be exactly what is needed as AG if the country is to navigate the Russia Hoax--undoubtedly the most significant political scandal in our history--without grave damage to our constitutional form of government. The Team Mueller "probe" phase may be winding down, but no one should be under any illusion that calm waters lie ahead.

As far as Barr himself goes, let me offer two brief quotes for the positive case, from differing perspectives. First, Jonathan Turley, a very liberal law professor who also happens to be a leading expert on impeachment. In 5 myths about William Barr he writes in frankly glowing terms of the presumptively conservative Barr, with an added caution:

I testified Wednesday in favor of his confirmation before the Senate Judiciary Committee. I have known Barr for many years and represented him, along with other former attorneys general, during the Bill Clinton impeachment period. He is one of the best lawyers I have ever known, as well as one of the most educated and circumspect. For that reason, I have been taken aback by many false accounts of his views and background.
People are free to disagree with his view of executive power or with his tough on crime approach. However, critics seems to be more interested in reconstructing his record than in recognizing it. Even the most direct answers seem to get distorted.

Next up, Conrad Black, a Trump partisan, presents the hopes--and the reason for hope--that many Trump supporters place on Barr in The Greatest Constitutional Crisis Since the Civil War. In doing so he also alludes to a fact of political life in this republic that I pointed out in a comment recently: Barr is not the sole hope; he is not operating totally on his own:

This entire monstrous travesty [the Russia Hoax] is finally coming apart without even waiting for the horrible disappointment of the special counsel’s inability to adduce a scrap of evidence to justify his replication of Torquemada as an inquisitor and of the Gestapo and KGB at rounding up and accusing unarmed individuals who were not flight risks. The collapse of this grotesque putsch, under the irresistible pressure of a functioning attorney general and Senate committees that are not hamstrung by NeverTrumpers, will cause a revulsion against the Democratic Party that will be seismic and prolonged.

So, with that introduction, let's turn to what we know about Barr and his past relationship to the Deep State. Because the fact of the matter is, Barr does have strong ties to the Deep State, ties that go back to the very beginnings of his career in Washington.

Barr grew up on the Upper West Side of Manhattan--"New York City's cultural and intellectual hub"--the son of a professor at Columbia University. Barr himself attended Columbia, receiving an undergraduate degree in Government and an MA in Government and Chinese Studies (1973). Barr had spent one summer internship at the CIA and, upon receiving his MA he went to the CIA full time as an analyst, where he worked until 1977. That was the year he obtained his JD (with highest honors) from George Washington U. During 1977-1978 he held a fairly prestigious clerkship with a federal appellate judge for the DC Circuit--considered the most important federal court in the land, short of the SCOTUS. Barr didn't join the DoJ until 1989. During the intervening years he was in private practice but also, from 1982-1983 he served as Deputy Assistant Director for Legal Policy in the Reagan White House.

Turning back to Barr's CIA years, those were important and formative years for him. Just how formative can be seen in this WSJ article--Attorney General Nominee Barr Helped Navigate CIA Through Rocky Times With Congress:

Mr. Barr first came into the CIA in 1971 as a summer intern before obtaining a full-time position as an intelligence analyst in 1973. By the mid-1970s, the CIA and FBI were facing a growing public outcry after a series of journalistic exposés revealed highly controversial covert activities at home and abroad. 
Mr. Barr transferred to the CIA’s office of legislative counsel two years later at the height of the turmoil. That liaison job put him in the center of a showdown between the agency and Congress over access to some of the intelligence community’s most closely guarded secrets.
In early 1975, Congress created two special committees to look into reports of intelligence abuses. Those committees—led by Sen. Frank Church of Idaho and Rep. Otis Pike of New York, respectively—would produce landmark reports that ushered in major changes in the ways that the CIA, FBI and other intelligence agencies were allowed to operate. 
The panels would go on to reveal a trove of CIA, FBI and National Security Agency secrets such as domestic surveillance of activists, drug experimentation on human subjects, involvement in assassinations of foreign leaders and the disruption of the internal politics of foreign states. 
Much of Mr. Barr’s work with the CIA during those years involved answering questions from Congress on an array of issues, including the Church and Pike investigations, according to declassified CIA documents and Mr. Barr’s own published recollections. 
Through it all, Mr. Barr learned his way around Congress, gained national security experience and forged an important professional relationship with George H.W. Bush, who was serving as the CIA’s director. Mr. Barr would help prepare Mr. Bush for briefings on Capitol Hill. 
It was Mr. Bush who nominated Mr. Barr to serve as attorney general in 1991. He worked as U.S. Attorney General until 1993. 
Mr. Barr, in the 2001 oral history, said his background in the agency had given him acumen and experience that helped him at the Justice Department during the Bush presidency.

So, when Barr's strong views on protecting the Executive Branch are referenced it's easy to see that those views have roots at the very beginning of his career and come from first hand experience. It also comes as no surprise to learn that once Barr entered service at the DoJ under the first President Bush, he was quickly given access to top level national security briefings and participated fully in policy discussions from a legal standpoint:

Mr. Bush first appointed Mr. Barr as assistant attorney general for the Office of Legal Counsel in the late 1980s, where then-Attorney General Richard Thornburgh viewed him as skilled in national security matters. Mr. Thornburgh named Mr. Barr to the so-called deputies committee of high-ranking officials who are briefed on such affairs, even though Mr. Barr wasn’t yet the deputy attorney general.

That involvement only intensified as Barr advanced to Deputy AG and, in 1991-1993, served as Attorney General. The following account is drawn from a liberal source with a decidedly anti-Barr and anti-Trump animus, but it poses an important question, which is exactly the question that skeptical commenters have posed: "Will Barr protect the investigation of Special Prosecutor Robert Mueller? Or will he act on a tightly argued memo in which he claimed Mueller has already exceeded his authority?" First we note Barr's continued involvement with Deep State concerns during his years as AG:

At age 41, Barr was one of the youngest men ever to hold that office. He left after one year and went on to a long career in corporate law and public service. ...
In his first turn as attorney general in 1991, Barr handled three legal issues of deep concern to the CIA. He helped resolve all three issues favorably for the agency’s leaders and the president. ...

Here are those three "legal issues".

The first "legal issue" or scandal involved BCCI--The Bank of Credit and Commerce International. BCCI operated internationally and had connections with governments and intelligence services all over the world. But as the hanky panky at BCCI came to the attention of bank regulatory agencies, so too did the involvement of the CIA, which led to Congressional investigations as well as criminal probes:

BCCI’s owners specialized in evading regulators so that they could speculate and bribe with the depositors’ money. As the fraud mounted and spread, law enforcement officials and bank regulators the world over discovered what the CIA had been trying to hide. 
Senate investigators, led by John Kerry, found the agency had numerous BCCI accounts. Kamal Adham, the former chief of Saudi intelligence and a CIA collaborator, played a leading role in the bank’s dealings. 
In 1991, federal prosecutors in Tampa launched an investigation of money laundering at BCCI. The District Attorney of Manhattan investigated a broad array of bank activities and found itself getting zero cooperation from colleagues in the Justice Department and CIA. Barr sat on the influential deputies committee of the National Security Council, which controlled the paperwork.

This all came up as Barr was up for confirmation as AG. Once he was confirmed, it was clear sailing for investigators, kind of:

“We didn’t have a problem once Barr was in there,” Moscow said. “We got cooperation. We prosecuted seventeen people here in New York. Of course, the biggest guys got away.”

The second legal issue involved the CIA's secret funding of Saddam Hussein during the Iran Iraq War. Of course, while the mechanics of US support may have been secret, there was no secret about which side the US was on. The allegation made is that Barr slow walked the investigation, which he called "complete nonsense."

Lastly, as AG Barr was centrally involved in the Iran-Contra pardons. As is usual with Barr, he is very straightforward in presenting his position:

President Bush had been defeated for reelection; Barr urged Bush to use his pardon power freely before leaving office. Like Trump today, Bush was under investigation by a special prosecutor, Judge Lawrence Walsh, for his role in the Iran-Contra conspiracy. 
Also under investigation were former defense secretary Caspar Weinberger and two top CIA officials, Clair George and Dewey Clarridge. They had all plotted to evade a congressional ban on aid to the counterrevolutionaries in Central America by illegally selling weapons to Iran. 
In his oral history, Barr says he urged Bush to pardon the CIA men on the grounds that they were victims of the “criminalization” of foreign policy. When it came to pardon power, Barr said he “favored the broadest” use. 

“There were some people arguing just for Weinberger, and I said, ‘No, in for a penny, in for a pound.’”

So, there we have it--Bill Barr, coming of age in the Deep State.

But that all ended in 1993, something like 26 years ago. The question is, how will that background affect Barr, now that he's once again leading the DoJ? I will argue--and only events going forward can provide confirmation--that Barr's reaction today may be different from what his severest critics expect: a knee jerk tendency to "save the institutions" of the Intelligence Community (IC) by covering up their misdeeds and even criminal activity in the course of the Russia Hoax.

First, of course, we have to ask, What has Barr been up to for the past 26 years. The answer is that he's been active in legal practice:

Upon leaving the DOJ in 1993, Barr was appointed by Virginia Governor George Allen to co-chair a commission to reform the criminal justice system and abolish parole in the state.
Later in 1994, Barr became Executive Vice President and General Counsel of GTE Corporation, where he served for 14 years. During his corporate tenure, Barr directed a successful litigation campaign by the local telephone industry to achieve deregulation by scuttling a series of FCC rules, personally arguing several cases in the federal courts of appeals and the Supreme Court. In 2000, when GTE merged with Bell Atlantic to become Verizon Communications, he left that position. While at GTE, from 1997 to 2000, Barr also served on the Board of Visitors of the College of William & Mary in Williamsburg.
In 2009, Barr was briefly of counsel to the firm Kirkland & Ellis. From 2010 until 2017, he advised corporations on government enforcement matters and regulatory litigation; he rejoined Kirkland and Ellis in 2017.

Yes, there's a gap in there of about 9 years. Apparently during those post GTE years he was general counsel and executive president of Verizon Communications.

Here's what I see in this. Having spent 20 years basically defending Republican administrations against Democrats in Congress, championing the Executive Branch, Barr has spent the past 26 years in the private sector, largely fighting legal battles against the Administrative State. On behalf of giant corporations. Nevertheless, I suggest that in a broad sense this provides Barr with a very different perspective than the one he may have developed during his earlier years. In no way am I suggesting that his views on separation of powers issues have substantially changed--I believe they have not. However, they may be somewhat more nuanced, given the changed circumstances since Barr's time in government--especially with regard to the IC.

Again, recall what Turley said about Barr--praising him as "one of the most educated" lawyers he has ever known. That education was focused on "government." We have to assume that, busy as he may have been over those 26 years, Barr has followed public events closely. I also believe it's safe to say that he has been concerned at what he has seen. He says as much when he states that his reason for accepting the office of AG is motivated by a desire to be helpful "in these circumstances."

Now, two considerations regarding Barr and the Deep State. First, regarding Barr's experience with the Deep State, and then some remarks regarding the structure of the Deep State.

Barr's Deep State experience was largely gained in the battles over "domestic spying" and foreign policy. Democrat controlled Congresses led the charge against the Executive Branch. One of their "solutions" to a problem that may or may not have actually existed was FISA, which was passed in 1978 when Barr had just left the CIA. And we've all seen how that particular "reform" has worked out. I would expect that Barr would be in at least general sympathy with Judge Robert Bork's views on FISA--which were briefly presented in What The Carter Page Case Tells Us About The Flaws In FISA. That in turn suggests that Barr may not be any reflexive defender of FISA--certainly not as it currently exists.

Also very much to the point is what Barr somewhat cryptically referred to as "these circumstances," by which he can only really mean the current crisis occasioned by the Russia Hoax. Yes, the Executive is once again under attack, but this time the attack has been led by agencies of the Executive Branch. Not exclusively, perhaps, but I believe that it's inarguable that but for the full support of the key IC agencies there would never have been the attempted coup that we are witnessing. That should be plenty enough to give even the most ardent defender of the Executive Branch, such as Barr, pause for thought.

Then again, we have to ask, how did this situation come about, that the IC would attempt a coup--albeit with encouragement from elements in the Legislative Branch as well as the Democrat (or some would argue, Uniparty) establishment? I believe a major part of the answer lies in the very different structure of the IC as it exists now, as compared to Barr's days in government. Consider.

While the term "intelligence community" has been in use for many years, it's easy to forget that, 10 years after Barr left government service, the 2004 Intelligence Reform and Terrorism Prevention Act (IRTPA) substantially revised the statutory organizational relationships of the IC member agencies. While the IC is far from a unitary community, it is now far more subject to coordinated control in particular circumstances. I would argue that after 8 years of shaping under the Obama administration, the capacity for concerted action (as in a coup) were greatly enhanced. When Chuck Schumer openly stated, "Let me tell you: You take on the intelligence community — they have six ways from Sunday at getting back at you," he was talking about the new "reformed" IC, not the one Bill Barr came of age in. Once again, Barr, a student of government as well as of the Constitution, almost certainly has views on this development, and there's no reason to assume--based on his background and experience--that those views are favorable or that he will reflexively defend the IC. I think it's true to say that Barr's loyalties in this sense are to the Executive as such, not to the IC. He cannot help but be fully aware of the dangers to our very constitutional order that arise from a united IC that has fallen under the control of partisan and radical politicians.

Obviously I can offer no guarantees. The issues themselves are difficult, and may be beyond his ability to resolve--even if given the opportunity. However, I would certainly argue that Barr deserves the benefit of the doubt


  1. Sometimes (often? always?) a new executive hired to run an existing organization immediately removes the previous leadership's underlings, for obvious reasons.
    Can that be done at DOJ/FBI? If not, then there's no hope.

    1. Yes, to some extent. Or if not removed, reassigned. In the current situation the biggest problem is Rosenstein, who will be gone sooner rather than later. He was the real bottleneck. Another problem was that Trump went to the mat to get Rachel Brand confirmed as Associate AG (#3), and then she quit after less than a year. Some of the other top jobs--Solicitor General, for example--are in good hands. Michael Horowitz at OIG is also well regarded and has done a good job, but his hands have been tied by Rosenstein. If Barr gives him his full support that could lead to dramatic results.

  2. Obama used his 8 years to infest all the Executive Branch agencies with partisan activist cronies that are uninhibited by the rule of law (see for example the IRS malfeasance which Sessions refused to prosecute). The rot within DOJ/FBI runs deep and cannot be cured by attempted personnel musical chairs. If Barr really wants to clean house, he must first expose the coup in all it's glorious criminality. As with the coup itself, you cannot proceed in half measures . . . in for a penny, in for a pound. That will be the tell.

  3. Unknown, I agree. I can't see how half measures could work. And he's got the resources to do that job, IMO, as well as the understanding of what's at stake based on past experience. He's handled high stake, hugely complex litigation before in the private sphere--now's the time to do it for the country.

  4. Black says the entire Russian conspiracy is coming apart. Where is it coming apart? At the Heritage Foundation? It's still going strong on CNN & MSM in general. I've yet to hear a single Democrat say it was all a house of cards.

    To Black I say: it's not coming apart until serious numbers of self-described independents see things that way. Is there evidence for this happening?

    1. Black is right. Here's a great interview of two very knowledgeable liberals, both saying: Ain't no collusion. The drumbeat of preparation in the MSM, "don't expect too much from Mueller," is reaching a crescendo and Schiff, Nadler, and the rest are desperately looking for a new narrative. All you need to do is search something like I just did: "poll majority think mueller politic motivated." Poll after poll showing that CNN and the MSM haven't succeeded in shaping public opinion. And those aren't outlier polls are conservative oriented polls. Read my "Deflection?" blog from this morning. It shows the type of narrative they're grasping at. Tin foil hat stuff.

    2. I'm with you on the tinfoil hat stuff in re "Deflection." I'm trying very hard not to despise these people. It may be a losing battle.