(Bloomberg Opinion) -- U.S. District Judge Reggie Walton has recently been forced to consider a recurring question of the Trump era: Whether to take the president seriously or literally.
Walton had to decide how to treat a series of tweets from President Donald Trump announcing that he had declassified all documentation related to the FBI’s investigation in to Russian interference in the 2016 election with no redactions. Those tweets, posted in early October, caught the eye of Buzzfeed journalist Jason Leopold, who last year had filed a Freedom of Information Act request for the unredacted summaries of interviews conducted by Special Counsel Robert Mueller’s office in his investigation. If Trump had really declassified all of this material about the FBI investigation, Leopold thought, surely Buzzfeed could get the goods, right?
Maybe not. As it turns out, not even the Trump administration believes that the president meant what he said, or in this case tweeted. A Justice Department lawyer, relying on White House legal guidance, argued that Trump’s tweets about declassification did not mean that everything Buzzfeed and other news outlets were requesting would be declassified.
This was not good enough for Walton. Why, he wanted to know, was the word of a White House lawyer as to the president’s policy more reliable than the president’s own word? So this week White House Chief of Staff Mark Meadows offered a further clarification, explaining that there was no order to declassify the interview summaries before the November election. Walton was satisfied, and ruled against Buzzfeed.
That said, the question persists: What exactly did Trump mean in his tweets about declassifications and the Russia investigation? The Justice Department and Meadows have argued that it is a reference to a 2019 executive order that gave Attorney General William Barr the authority to overrule objections of the FBI and the intelligence community in declassifying documents.
By and large, that order has helped better inform the public. For example, in May the Office of the Director of National Intelligence released the transcript of former National Security Adviser Michael Flynn’s conversation during the 2016 presidential transition with Russian ambassador Sergei Kislyak. The transcript reinforces Barr’s judgment that the FBI lacked an investigative basis to interview Flynn and ultimately charge him with making false statements to the bureau. Other documents give a fuller picture of how some of the FBI agents involved in the investigation were dubious of the theories of prosecutors in the special counsel’s office.
The ideal way for these declassifications to work is for them to be accompanied by a non-biased assessment from an impartial observer, such as an inspector general. This is why the report from Justice Department Inspector General Michael Horowitz on the FBI’s omissions and misrepresentations to the federal surveillance court was so damning. Horowitz was able to lay out all of the evidence and arrive at judgments. As a result of his oversight, the surveillance court demanded reforms and accountability.
This was the original plan for Barr’s investigation of the FBI’s investigation. He appointed U.S. Attorney John Durham to lead it, and found other U.S. attorneys outside of the main Justice Department to assist. But Barr recently informed Republican lawmakers that Durham would not be finishing his report before the election. This may explain both Trump’s tweets and the increased pace of declassifications in the last month.
When Horowitz released his report in 2019, both Barr and Durham said that they did not agree with his conclusion that the FBI had properly opened the initial investigation into the Trump campaign’s ties to Russia. Presumably Durham’s report will provide further explanation. In lieu of that report, Barr and the director of national intelligence have declassified a series of reports, interviews and notes. But none of them have challenged Horowitz’s findings.
The case against opening the FBI investigation will require a narrative report from a neutral party — and that neutral party, Durham, has said it won’t be ready by Election Day. The president can tweet all he wants, but he can’t change that fact. Trump, like the rest of America, will just have to wait.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Eli Lake is a Bloomberg Opinion columnist covering national security and foreign policy. He was the senior national security correspondent for the Daily Beast and covered national security and intelligence for the Washington Times, the New York Sun and UPI.
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