Trump’s Hail Mary vs Biden? Hail Durham; Hail Barr! Or will Biden Hail Dunn-Bauer?

William Barr by Nancy Ohanian

The one thing, which could plausibly sink Biden’s ticket and (less easily) re-elect Trump’s ticket, would be bombshells from the Attorney General William Barr-delegated investigation, by U.S. Attorney John Durham, of the Russiagate investigation (which includes, without being limited to, criminal conduct).

That’s my view, and apparently the view of the two VSPs who have recently published, in the VSP forum Just Security, the following two shots across Durham’s bow.

[July 25th 2020-- 1st Shot: Danger to US Intelligence Analysis:]

• one wonders whether the long-running investigation shepherded by John Durham... is being readied for a role as the next election-shaping "October Surprise." If true, the reported nature of Durham’s investigation poses a serious threat to US foreign intelligence collection and analysis extending well beyond any political impact.

Author:

• George Croner: Former principal litigation counsel at the National Security Agency. He is a Senior Fellow at the Foreign Policy Research Institute, and a member of the Advisory Council at the Center for Ethics and the Rule of Law (CERL) at the University of Pennsylvania Law School. Follow him on Twitter @GeorgeCroner.

[August 6th 2020-- 2nd Shot: Open Letter to Durham:]

• If the conclusion is reached by you [Durham] or others at the Justice Department that a report on your investigation should be issued, or that criminal indictments are warranted, these actions should be deferred until after the 2020 presidential election.

Author:

• Fred Wertheimer (@FredWertheimer)... served from 1981 to 1995 as President of Common Cause, a national citizens’ advocacy group. is the Founder and President of Democracy 21... primary focus is campaign finance issues and laws and it promotes government integrity, transparency and accountability policies to accomplish its goals.

Barr has publicly predicted that Durham will find new evidence of old allegations and perhaps new examples of improper conduct. Barr's prediction seems credible to me because the contrary arguments tend to be less granular, tend to over-simplify the findings of previous investigations, and tend to delay as long as possible addressing new disclosures that keep trickling out from Rightwing lawsuits under the Freedom of Information Act.

Although the strength of evidence Durham may find is impossible to predict, what is already foreseeable is that Barr would probably like to balance several competing pressures, such as:

1- Barr has long opposed constraints on Presidential power, and clearly hates the way that Russiagate was used against Trump.
2- Barr must hate being vilified by the many elite critics of his performance as Trump’s attorney general.
3- Barr has occasionally admitted that Trump himself is one reason that Barr's work in the Trump administration is so stressful (and of course Barr can see as well as anybody else that Trump's casual polarizing of the populace is bad for preservation of domestic and imperial institutions).

Bottom line, Barr’s sweet spot is probably for Durham to bring any indictments, and to make any other public indications of his findings, soon after the November 3 vote count has been finalized, and to push them forward as far as possible before the new Administration takes office. This approach would:

1- Cool off the TDS rage of Barr’s critics (by not helping Trump get re-elected);
2- Vindicate some of Barr’s previously vilified actions; and
3- Deliver to the next administration the gift of reinforced Presidential powers/immunities (which will be greatly appreciated behind the scenes, even if not in public rhetoric).

Durham himself presumably appreciates how the above balancing would play out for Barr, and similarly for Durham himself, without there needing to be any express discussion of such crass matters between two such experienced government lawyers.

So how bad will Durham’s results be for Biden? Nobody knows, but everybody knows it could easily be bad enough to undermine the ‘honeymoon’ (if any) available to Biden. This feeds through to Biden’s selection of Vice Presidential running mate. For example:

1- Biden might hesitate to select Susan Rice, because any Durham dirt on Biden would probably also splash onto Susan.
2- Biden might hesitate to select the Republican (close to W. Bush) Condoleeza Rice out of concern that this would further incentivize Barr and Durham to wound Biden so grievously that he must hand over the Presidency to his Republican Vice President.
3- Of course, if much today’s polarization in D.C. is basically an intensified version of the Kabuki of prior decades, then a Biden selection of Condi could be part of a deal in return for Barr and Durham downplaying Biden’s role in whatever dirt they find. That would be win-win for everybody who is anybody (which of course does not include us, or Bernie, or even political neophyte E. Warren). The main barrier to this type of deal would be that Biden doesn’t appear to have the mental bandwidth for this kind of plotting. Also, his inner circle doesn’t appear to have the type of beltway lawyer whom Barr would be comfortable trading winks and nudges with.

But the second circle, according to [Poliitico’s Biden’s Retro Inner Circle], contains just such a person:

• “Anita is the go-to person on both, ‘How do we go on offense and dominate the news cycle?’ and ‘How do we clean this mess up?’” said a former colleague. (Dunn’s husband, Bob Bauer, Obama’s former White House counsel, is also a key member of the larger Biden brain trust.)

Why Emanuel Nixed The Release Of The Torture Photos

-by Doug Kahn

Appointing John Durham as prosecutor, no matter how broad his scope of investigation, will have only one near-term result: he'll immediately go into court to make sure the military photos of detainee abuse won't be released anytime soon. And he'll win.

According to the Washington Post: "Durham's mandate, the sources added, will be relatively narrow: to look at whether there is enough evidence to launch a full-scale criminal investigation of current and former CIA personnel who may have broken the law in their dealings with detainees." There is absolutely no public support, and no moral justification, for prosecuting the 'foot soldiers' (CIA employees and the Blackwater contractors we hired as professional torturers back in 2002 and 2003) while leaving Dick Cheney and his line of command alone. So this appointment is for some other purpose.

Here's the timeline. In September 2008, the appeals court decided in favor of the ACLU and its FOIA request for the photos, filed in 2003. This May, the White House announced President Obama had decided not to appeal to the Supreme Court. On May 28, the administration changed its tune and asked the appeals court to "recall its mandate" to release the photos in prospect of a Supreme Court appeal. The appeals court agreed on June 10. Since then, Obama has asked for, and received, two extensions on its deadlines for filing at the Supreme Court. On August 7, they petitioned the Supreme Court to hear an appeal.

It's all about the torture photos, and the conniption fit CIA chief Leon Panetta threw at the White House last month. Panetta had a heated argument with a "senior White House official," a formulation the Washington Post uses when it means Rahm Emanuel. Obama's chief of staff versus Clinton's chief of staff. It makes sense to me that Rahm and company concluded early this year to proceed with domestic accomplishments like health care reform and the energy bill, and that prosecuting anyone in the Bush administration would make bipartisan support from Republicans in Congress impossible. Releasing the photos (reportedly displaying horrific abuse at non-military, CIA prisons) would create a firestorm of criticism that would force Obama to act against Cheney and crew, not just the CIA guys. So the photos have to be withheld for as long as possible. You have to figure Panetta objected to having CIA employees taking the heat for boss Cheney.

The courts have already soundly rejected arguments that letting the public see the photos would harm the detainees; they'd be redacted to hide the identities of the victims. There were claims that anger over the photos would harm US troops, by inciting more attacks in Iraq and Afghanistan, also rejected. Rahm needs some specific people to be harmed in order to prevail, and naming a prosecutor gives him those people: a few CIA employees and contractors. They'll just tell the court that the photos are certain to prejudice people who would end up being on the jury in any trial, and the pool of prospective jurors is every adult American.

Any ethical, moral Attorney General would reject prosecuting only the little guys. So Holder appoints a prosecutor to start to get ready to begin to prepare to commence looking for evidence to use in asking a grand jury (which might be convened) for an indictment against possible suspects who might have violated the (as yet undetermined) legal instructions from unnamed Bush administration lawyers vis a vis how to grill 'illegal enemy combatants' (definition currently in legal limbo) in an 'enhanced' manner. As opposed to torturing them fair and square, as it were.

We shouldn't hold our breath.

Obama administration to Bush regimistas: Not to worry, we've got your back

No, nobody got off at Nuremberg because they were "only following orders," but at Nuremberg we at least tried to make sure the people who gave the orders were prosecuted.

"I applaud Attorney General Holder’s decision to appoint a prosecutor to review the shocking violations of law that took place under the Bush administration. We cannot simply sweep these abuses under the rug. This investigation should not be limited to those who carried out interrogations or to whether the abuses they engaged in were officially sanctioned. The abuses that were officially sanctioned amounted to torture and those at the very top who authorized, ordered or sought to provide legal cover for them should be held accountable.”

-- Sen. Russ Feingold (D-WI), in a statement issued this afternoon

(As Zachary Roth reported for TPMMuckraker, similar sentiments were voiced by Senate Judiciary Committee Chairman Pat Leahy of Vermont and, in a joint statement, by House Judiciary Committee Chairman John Conyers of Michigan and Constitution Subcommittee Chairman Jerry Nadler of New York.)

by Ken

On torture, on the political subversion of the Justice Department, the Homeland Security Department, and everything else in the Executive Branch, on the campaign of lies that took the country to war -- on just about any issue of American governance in the yeas 2001-08, there is so much misconduct that's in urgent need of investigation with a view to whatever prosecutions may still be possible that it's hard to believe the only one the Obama administration has so far seen fit to pursue is into actual acts of torture by CIA interrogators. (As I write, rumors are in the air that one result, not yet explained, may be the resignation of CIA director Leon Panetta.)

With the five-year-old CIA inspector general's report now released, and the attorney general in possession of a report by his department's Office of Professional Responsibility, the adminstration clearly wants to appear on top of the issue. First, President Obama announced that the decision of whether to prosecute anyone would be left entirely to Attorney General Eric Holder, and then the AG announced that he has appointed John Durham, "a longtime federal prosecutor from Connecticut" (seen here in 2006 when then-AG Judge Malarkey named him to investigate the case of the destruction of CIA interrogation tapes), as the NYT's David Johnston and Jeff Zeleny put it, "to examine nearly a dozen prisoner abuse cases in which detainees were held by the Central Intelligence Agency." Among those cases are four that are being reopened after being closed by Bush regime self-investigators.

Should these people be prosecuted? I don't know. I'm not crazy about the idea of them going un-punished, but really, in terms of sending messages, is this one anywhere near the top of the list of those we need to be broadcasting? Yes of course, the U.S. officially rejects the "I was only following orders" defense, as we made clear in the Nuremberg prosecutions after World War II. But for goodness' sake, at Nuremberg we didn't have low-level flunkies being tried while the people who gave the orders were going scot-free.

Now that the U.S. political opposition has adopted the Rule of Lies and Lawlessness as its basic operating principle, it should be more painfully clear than ever that people in this country who get their hands on the levers of power will try to get away with absolutely anything they don't believe they're likely to be appropriately punished for. The perpetrators and their enthusiasts are, of course, the very same people who are wont to lecture the rest of us about the importance of law and order. I'd laugh if it was funny.

You've got to congratulate the attorney general for what amounts to a lose-lose proposition. His move is likely to be fairly unpopular politically among Americans who haven't been helped to understand why prosecuting government lawbreakers is so important (the standard explanation for why so little serious investigation of Bush era criminality has been investigated), as well with members of supporters of the president who don't understand why his administration doesn't grasp this either, while at the same time accomplishing hardly anything toward correcting the problem of government machinery that approved and executed a torture policy.

Hey, I'm just improvising here, but maybe in the future we can just make sure the people who carry out our torture policies aren't government employees. Maybe we could hire, like, contractors to do our dirty work for us, beyond the reach of the law.

The pathetically limited reach of the law, I should have said.

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