Thursday, October 15, 2020

The Gordian Knot That Stymies Trump And Barr

The "Gordian Knot" is a metaphor that Charles Lipson uses in an overall excellent article today. Whereas I took aim at NRO for what I regarded as one-sided criticism of Trump's public statements about Barr's failure to indict before the election, Lipson addresses the conundrum facing both Trump and Barr: The Gordian Knot Protecting Obamagate Secrets. After all--Trump and Barr are on the same side and want the same result. For all Trump's calls for 'indictments now', we know he really wants more than that. He wants the whole story out in the open, just as Barr does.

Lipson points out that there are two causes for the delay--that it was two years before Trump got an effective Attorney General in place (Barr)--a factor that Trump himself has acknowledged. While that's easy enough to agree with, my quibble with Lipson on this score is that he by placing heavy blame, deservedly, on the hapless Jeff Sessions, he lets Never Trumpers in the House (above all, Paul Ryan) and Senate (start with Richard Burr ...) off the hook. There's no lack of blame to go around. Even if the ferocity of the Dems' Russia Hoax assault took the GOP by surprise, effective counter measures were available. Once they were galvanized--after the 2018 midterms--they had lost control of the critical House committees, thanks in large part to Paul Ryan. 

That has left AG Barr acting largely on his own without the more effective support he should have had. In that regard, Lipson points out the obstacles that Barr has faced. Some of these obstacles, be it noted, are in fact obstacles that--ultimately--only the president can remove. Barr has shouldered this burden without complaining, so keep that in mind. Barr lacks the authority to coerce declassification on his own:

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 second cause for delay--the other half of the story--that Lipson identifies is simply the inherent conflict between law and politics. There's no getting around that and, since Lipson says it so well, I'll let him say it here, too:

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.


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. ... 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.

So, Trump and Barr find themselves at opposite ends of a rope in a tug of war (another rope metaphor)--except that they happen to be on the same side. Trump's political rhetoric is designed to rally public support. If successful, Barr will have a relatively clear path ahead. To this point Trump has resisted using his ace in the hole--truly extensive declassification. That is ultimately his decision, and one supposes that he has had searching discussions on that score with his legal advisers--probably including Barr. Barr, for his part, appears to have accepted that he may need to shoulder the appearance of blame at this point for the greater good. If Trump wins in November, all that will be water over the dam. If Trump loses, the onus will once again be on Barr to effectively communicate the results of his investigation to the nation. No thanks to the Never Trumpers.


  1. And Trump is president until mid January next year. A lot can be done in that time even if he is not re-elected.

  2. As I recall, Charles Lipson has never been a fan of President Trump.

    1. Re that, I have no idea. What I do know is that he recognizes in this article that Trump's political concerns are equally as legit as are Durham's (and Barr's) legal concerns.

  3. I appreciate your efforts, Mark, to provide your experienced, insightful and encouraging wisdom about this situation.

    Your blog is very important.

  4. "A lot can be done in that time even if he is not re-elected."
    Most of that with very little impact.
    Everyone who really matters will act, in accordance with the Romanian proverb:
    "the head that stays bowed doesn't get chopped off".
    One way or the other, the DS will dictate terms, for at very least four years, unless a Franco emerges to hugely adjust things.

  5. What Giuliani said yesterday suggests Barr is just a bystander, waiting for people to enforce the law.

    Giuliani: "I delivered these facts at the request of the attorney general to the united states attorney in a
    district that i'm not allowed to identify. He's interviewed one witness. Really a meaningless witness and done

    Giuliani: "The justice department in the person of the united states attorney in the southern district of new york had this evidence back in october november 2019, or he had some of this evidence brought to him by a well-respected lawyer on behalf of four or five ukrainians. He chose not to investigate it, but instead to open the phony investigations of a lot of people, including i'm told a phony investigation
    of me, which has never resulted in anything except to try to intimidate me."

    1. Whatever you say. Barr must be just a bystander. That's why he's vilified far and wide by Dems. They're wasting their time on a bystander.

    2. I'd hope, that opening "a phony investigation of me", would be actionable enough for Barr, e.g. under the "color of law" statutes.

    3. "I'd hope, that opening 'a phony investigation of me', would be actionable enough for Barr, e.g. under the 'color of law' statutes."

      Unlikely. That's generally a rather high bar. It would have to be shown that the US Attorney was acting without a fiber good faith, reasonable suspicion, and with malice. Giuliani knows that. Even if true, it would be hard to prove.

  6. The DOJ is like a super tanker. It takes time to make a turn, especially after 30 years of hiring momentum.

    I’m astonished, as with Trump, Barr has made as much progress as he has, with the opposition he has had.

  7. Just a random thought about lil Huntskins laptop.

    Any chance DoJ has been sitting on it because something on it bears on Obamagate? Maybe something that needed to be kept quiet until fully explored.

    Some, including yours truly, have made remarks about how helpful it would have been during the impeachment fiasco. The reality is that 1) Democrats never had anything resembling hard evidence of an impeachment level action, and they knew it. 2) An impeachment trial is strictly a political process. It really comes down to power in the Senate. If some group of Republican senators were going to shiv him what was on the laptop would have made no difference what so ever.

    Maybe sitting on it was seen as a worthwhile risk.

    On the other hand maybe Wray really is the rat-bastard everyone thinks he is.
    Tom S.

    1. I think the issue there is the USA in Delaware David Weiss. He was appointed by Trump but he has a long history with the Biden family, Beau in particular.

      The laptop it's self should be a gold mine of data. So far the dates I've noted were 2015 - 2019 in use. 3-4 years of anyone's digital history is astronomical and what we've seen so far is very tip of the iceberg.

      I am sure their campaign is in complete panic mode.

  8. I'm just an onlooker, so I may lack perspective. But what I see is a lot of very corrupt people in FBI and DOJ. I'm afraid I have no faith whatsoever that they will do the right thing.