UPDATED: Is Bill Barr Shirking His Responsibility?

That's what sundance at CTH has been claiming for months now--because Barr hasn't secured the declassification of a list of documents that sundance has compiled. Last night in HPSCI Member Devin Nunes Files Lawsuit Against Fusion-GPS Claiming Racketeering and Conspiracy sundance makes the following claim: in the context of a Hannity interview with Devin Nunes regarding his lawsuit against Fusion GPS and Campaign for Accountability--Sara Carter also weighs in (PDF of complaint in Nunes v. Fusion GPS and CfR):

The Nunes lawsuit alleges Fusion GPS participated in racketeering and conspiracy smear campaign Nunes and the House Intelligence Committee; in an attempt to impede the committee investigation of coordination between the Clinton campaign, Fusion GPS and the FBI.  [Cloud Link to lawsuit – Scribd Link to lawsuit]. 

According to the Tick-Tock club everyone must work together with Senator Lindsey Graham because the “Deep State” will attempt to obfuscate, hide information, block oversight and impede any effort to highlight damaging institutional information. 

In essence what they are saying is that U.S. Attorney General Bill Barr is incapable of releasing the information.  CTH does not agree. AG Barr is capable, he’s just not delivering; quit defending his inaction. Stop the nonsense.

If Barr is "capable" (perhaps in contrast to Jeff Sessions) of doing what's necessary and required but simply refuses to "deliver"--by sundance's standards--then one is left to suppose that Barr's course of "inaction" is deliberately chosen. In other words, he doesn't want the information to come out!


Sundance thinks that the Hannity interview supports his claim, but I beg to differ. What Nunes, backed by Sara Carter, is saying is that "everyone has to pull together", meaning that civil lawsuits are an essential part of the mix of actions that will be necessary to expose the entire scope and detail of the "soft coup" (Carter's term) attempt against President Trump. What needs to be kept clearly in mind is the difference between the standard of proof in Nunes' civil suit (he's asking for $9,900,000 in damages), which entails proving by a "preponderance" of the evidence--basically, at least 51%, if you want to quantify it--and the standard of proof in a criminal prosecution--"beyond a reasonable doubt"--which is a very high standard.

Nunes' lawsuit is focused on the Steele "dossier"--opposition research on behalf of the Clinton campaign--and three ethics complaints that were later brought against Nunes. Here's Nunes' concluding summary:

Fusion GPS, Simpson and Steele fraudulently developed the “Steele Dossier” and disseminated it to U.S. Government officials and the press as if the salacious accusations were true. Plaintiff investigated this wrongdoing, causing Fusion GPS and Simpson to retaliate against him and to take action that was intended to harass, intimidate and influence Plaintiff in the performance of his congressional investigation. That retaliation and obstruction of justice consisted of a coordinated effort by the Defendants to manufacture “ethics” complaints against Plaintiff and to utilize the press (McClatchy) as a weapon to pressure Plaintiff to back off his investigation of Fusion GPS and Simpson. Defendants’ corrupt acts of racketeering are part of their regular way of doing business. That way of doing business must end here and now.

Opposition research, while sometimes unsavory, is not illegal--per se. It involves core First Amendment rights, and it's easy to imagine why Barr would be loath to begin his efforts to clean up the mess left by the Russia Hoax by launching a criminal investigation of activity that is not illegal in an of itself. There could be crimes involved in presenting the fraudulent "dossier" to the US Government but the bottom line is this: Barr would be required to prove beyond a reasonable doubt that Simpson and Steele knew the "dossier" was a fraud. Not that they simply failed to verify it. In sharp contrast, FBI officials are required to verify the facts that they submit to the FISC. To prove beyond a reasonable doubt that the FBI used the "dossier" in without verifying it, knowing that it was unverifiable, yet not revealing these problems to the FISC is a very reasonable undertaking--despite the high burden of proof. In short, it's far more practical for Barr to attempt to prove that government officials engaged in criminal activity--illegitimately using the "dossier"--than it is to attempt to prove that the exercise of activities that are facially protected by the First Amendment are in fact part of a criminal conspiracy.

The same goes for the filing of ethics complaints. Barr doesn't want to be in the position of seeming to discourage the filing of ethics complaints against the Congressional members of a particular party. Nunes understands that, and that's why you don't hear him demanding that Barr launch a criminal investigation in that direction.

On the other hand, while discovery in a civil lawsuit may not be as powerful a tool as grand jury subpoenas, Nunes' civil lawsuit may well be able to uncover key information that would shed light on aspects of the Russia Hoax that could place Simpson and others in the light of co-conspirators in a criminal conspiracy. Barr might then be able to draw Glenn Simpson, Fusion GPS, and Campaign for Accountability into a criminal investigation. Of course, Barr and Durham are undoubtedly--should undoubtedly be--on the alert for any such evidence.

Sara Carter, beginning shortly after the 7:15 mark, says this:

What we're seeing now, and I like the use of the word "conspiracy in the legal sense," because what we've seen is a vast network. Not only spying overseas, but spying within the White House, which is what the ACLJ is looking into, and what Devin Nunes is looking into, which is Fusion GPS being at the epicenter of all of this. And what I'd like to know what John Brennan knows. I'd like  to know when he knew about that dossier, if he leaked that dossier to people in the Gang of Eight, in particular, and how far that web spread, because once we know those answers we will know who to indict and who to charge. And I'm sure that's exactly what John Durham is doing.

Maybe sundance has better sources than Carter, and John Solomon, but I'm skeptical. Durham has to approach this investigation very logically. Ideally, Simpson would be a primary target, against whom there is clear evidence of criminal wrongdoing, and from whom Durham would obtain information to work up the ladder to the most important players. However, in this situation, the only crime Durham may have to work with against Simpson may be the false testimony before Congress. I don't know the details of all this, so I'll give Durham the benefit of the doubt. Durham will have a far stronger hand to play against Simpson if he can uncover evidence that he was more than an opposition researcher who may have lied to Congress--evidence that he was a witting co-conspirator with government officials. Nunes' lawsuit could prove useful in that regard and could go in directions that Barr and Durham would prefer not to go at this point--or, not publicly. And that includes investigating the role of members of a co-equal branch of government--the Legislative Branch.

Barr and Durham have to be primarily concerned with building a watertight prosecution. Not providing sundance with documentation for his blog. I'm as frustrated as anyone at how long this is taking, but I think it's wrong at this point to be casting these types of aspersions.

UPDATE: Perhaps a good example of the different dynamics at play here is the issue is the use that Nunes makes of the allegation--true, in my opinion--that Glenn Simpson "lied" both to HPSCI and to the Senate.

For Barr and Durham to make productive use of that allegation--which they may yet do--they need to believe that they can prove the elements of perjury ("knowing and intentional" lying under oath) beyond a reasonable doubt. Note, also, that Simpson's alleged perjury, because it came after most of  the important events (opening Crossfire Hurricane, getting the FISA, etc.) isn't probative of much else--unless Simpson can be tied in to the Russia Hoax as a co-conspirator. That isn't easy, but Nunes' civil suit could turn up--through discovery and depositions--the kind of facts that make that possible.

For Nunes, on the other hand, those concerns don't apply. Nunes is concerned precisely with actions taken against himself, after all those criminal acts in the Russia Hoax had already taken place. Nor does Nunes need to prove that Simpson did, in fact, commit perjury. He is simply alleging that Simpson engaged in racketeering activity in order to intimidate Nunes from making a criminal referral. None of that needs to be proven beyond a reasonable doubt. On the other hand, of course, part of the racketeering allegation requires that Nunes prove that racketeering was part and parcel of Fusion GPS' ordinary course of business. That won't be easy to prove, but Nunes may not care. He's off to the discovery and deposition stage of things, and if his lawsuit is later dismissed he may have accomplished much of what he was after in the first place. And he may have aided the cause of justice into the bargain.

These are the kinds of considerations that need to be taken into account when discussing the Barr/Durham investigation and comparing it to other legal activity surrounding the Russia Hoax. Durham is obviously not going to discuss his case theory publicly, so we need to be patient--although I see no reason why more could not be done in terms of declassification.