The James O’Keefe Attorney General
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The James O’Keefe Attorney General

Release of the Mueller Report Marks William Barr’s Date With History; Odds Are He’ll Screw It Up

David Cay Johnston

William Barr, please do the right thing and release the full Mueller report.

After all, you don’t need to be attorney general, as you yourself have said. You certainly don’t need your government paycheck, a pittance compared with your private sector pay.

And what will your grandchildren and their grandchildren think about you, a concern that motivated Senator Sam Ervin when he chaired the Watergate hearings four decades ago?

Oh, do I wish that would be a persuasive argument. But Barr’s past conduct shows it is not.

Honor and integrity are not part of Barr’s legal DNA. Neither is respect for our Constitution and the norms of decency, not to mention international law.

Barr is a lawyer whose actions reveal that he thinks right makes might so long as he agrees with the leader holding the might.

Barr thinks right makes might, justifying anything in pursuit of what he imagines is some greater good.

He sees his job as justifying anything in pursuit of what he imagines is some greater good.

And deceptively editing of official government documents, at least in the version made public, is a Barr skill, as an incident from 1989 reveals. Maybe that’s where Breitbart and its former video con man, James O’Keefe, got their first lessons in deception.

We already know that Barr wrote a misleading four-page letter summarizing the hundreds of pages in the report by Special Counsel Robert S. Mueller and his team. We know Barr held back the summaries on issues prepared by Mueller’s prosecutors. We know Barr dishonestly described the Mueller report because people from team Mueller told friends, knowing no doubt that the friends would alert journalists.

And we can expect that what we will see when the Mueller report is released tomorrow, April 18, will be not just heavily redacted, but redacted in ways that lead us away from facts and truths.

Barr’s deceptive letter to Congress.

This kind of deception is nothing new for Barr, a right-wing warrior whose track record shows the ends justify the means – which they never do.

In 1989 he wrote a memo titled “Authority of the FBI to Override Customary or Other International Law in the Course of Extraterritorial Law Enforcement Activities.” At the time Barr was the deputy attorney general, though he would soon begin his first stint as attorney general.

Ron Ostrow, The Los Angeles Times’ veteran Justice Department reporter, explained the memo when he broke the story. He wrote that the memo said FBI agents have “authority to apprehend fugitives from U.S. law in foreign countries and return them to the United States without first obtaining the foreign state’s consent.”

Barr’s memo “reversed a ruling dating back to the Carter Administration that had denied the FBI such authority to take unilateral action overseas,” Ostrow wrote. “The Carter ruling even had warned that federal agents could face kidnapping charges abroad if they used such tactics.”

When reporter Ostrow asked Barr about the memo, Barr stonewalled. “I just don’t discuss the work of the office of legal counsel,” Barr said.

Ostrow smartly suggested the memo would be used to justify invading Panama and seizing dictator Manuel Noriega, who was both a valuable source of American intelligence and a drug lord associate. Events later showed Ostrow was right.

Under international law any nation must first obtain the permission of another country to seize a suspect, as we just saw in the arrest by British police of Julian Assange, now being held while awaiting a hearing on extraditing him to the United States. This rule of law is why the 12 Russian GRU officers indicted by a grand jury working with Mueller will not be tried (unless they foolishly set foot outside Russia and another government agrees to capture them for or with us).

At least superficially the George H.W. Bush administration claimed ignorance. As The Washington Post put it, “the White House and State Departments quickly distanced themselves from the legal opinion after it was revealed yesterday.”

That made sense since then-President George H.W. Bush had run the CIA, and held other positions, and was aware of international law. And so, of course, was State.

It also made sense because sending FBI agents without permission to foreign soil is an act of war, though it may not necessarily spark one given the dominance of American military forces.

The Justice Department’s Office of Legal Counsel considered such FBI kidnappings in the late 1970s when the FBI sought approval to kidnap Robert L. Vesco, a fugitive financier then living in Central America.

Justice lawyers back then concluded that “U.S. agents have no law enforcement authority in another nation unless it is the product of that nation’s consent,” and that arrests by U.S. agents without foreign approval are “regarded as an impermissible invasion of the territorial integrity of another state.”

The Carter era officials warned that agents who make such overseas arrests may face extradition to the foreign country on kidnapping charges.

In 1985, during the Reagan era, a Senate hearing was told that “seizure by U.S. agents of terrorist suspects abroad might constitute a serious breach of the territorial sovereignty of a foreign state and could violate local kidnapping laws.”

That testimony came from Abraham D. Sofaer, the chief State Department lawyer under Reagan.

Sofaer also suggested senators consider the adoption of similar policies by other governments.

“How would we feel if some foreign nation . . . came over here and seized some terrorist suspect . . . because we refused . . . to extradite that individual?”

What no one knew back then and would not until Bill Clinton assumed office was that the summary of the memo Barr wrote was misleading. The full memo is here.

In the 1989 case, Barr issued what NYU law professor Ryan Goodman writes was a document “replete with quotations from court cases, legal citations, and the language of the OLC opinion itself. Despite its highly detailed analysis, this 13-page version omitted some of the most consequential and incendiary conclusions from the actual opinion. And there was evidently no justifiable reason for having withheld those parts from Congress or the public.”

So, unless leopards change their spots, don’t expect the redactions in the Mueller report to just protect national security and grand jury secrets (which Barr says he will not ask the grand jury judge to allow being made public). Expect to be misled.

How should we feel if we get not only less than the full Mueller report but a version that is edited like a James O’Keefe video?

Remember O’Keefe and his Project Veritas. That word is Latin for truth, but O’Keefe videos were anything but, deceptively edited to make it appear people said and did things that were in some cases the exact opposite of the truth and in all cases misleading.

If Barr fails in his duty and gives us a deceptively edited Mueller report, as seems almost certain, maybe we should label him, just like we name sports stadiums and law schools.

We could call William Barr “the James O’Keefe Attorney General.”

Featured image: William Barr (AP)

April 17, 2019