Don’t get too excited — it’s a review, not an investigation, and one into a practice that has long been legal, as DoJ spokeswoman Kerri Kupec reminds Sean Hannity. However, it will take place under the auspices of US Attorney John Durham’s overall probe into Operation Crossfire Hurricane and the Russia-collusion hypothesis that turned into a special-counsel nothingburger. The US attorney from Western Texas will initiate a review to fold into Durham’s work, specifically to see whether Obama administration officials abused their authority and violated the civil rights of US persons — presumably Michael Flynn, but perhaps others as well:
Attorney General Bill Barr has asked U.S. Attorney for the Western District of Texas John Bash to review the practice of “unmasking” before and after the 2016 presidential election, a controversy that has picked up steam after the Justice Department moved to drop charges against former National Security Adviser Michael Flynn, the DOJ told Fox News on Wednesday night. …
DOJ spokeswoman Kerri Kupec told Fox News’ “Hannity” that U.S. Attorney John Durham, who has been reviewing the origins of the Russia investigation, was looking into “unmasking” but Barr determined certain aspects of the practice needed further review, and Bash has been assigned to do so.
“Unmasking inherently isn’t wrong, but certainly, the frequency, the motivation and the reasoning behind unmasking can be problematic, and when you’re looking at unmasking as part of a broader investigation — like John Durham’s investigation — looking specifically at who was unmasking whom, can add a lot to our understanding about motivation and big picture events,” Kupec said.
USA Today picked up on the interview as well, using a somewhat skeptical tone on the development. In fact, they go right for the “Republicans pounce!®” meme:
Attorney General William Barr has tapped an outside federal prosecutor to look into episodes of unmasking involving Obama administration officials – the latest in a series of probes by the Justice Department on issues that matter to President Donald Trump and his allies. …
Unmasking is a common government practice to reveal the identity of someone who’s mentioned in an intelligence report. But it became a hot-button topic among conservatives in recent weeks after the declassification of a document listing the names of government officials who requested to unmask former national security adviser Michael Flynn before and after Trump’s election. The list includes former Vice President Joe Biden, former Chief of Staff Denis McDonough and several high-ranking intelligence and law enforcement officials.
Republicans have seized on the issue to raise questions about possible wrongdoing during the Obama administration. The declassified documents state that the government officials who requested to unmask Flynn in intelligence documents were authorized to do so.
Were they, though? That’s true in most of the cases with law-enforcement and intelligence personnel. Why, however, did the US Ambassador to the UN ask to unmask Flynn on seven occasions after the 2016 election? Why did our ambassador to Italy and San Marino make an unmasking request? Denis McDonough likely didn’t have standing to make that request, neither being in law enforcement or in a nat-sec position. Even the case for Joe Biden is arguable, given that vice presidents don’t have formal roles in either law enforcement or intelligence operations.
However, authority is only part of the issue. The question Bash will need to explore is this: was that authority abused for political purposes? The use of intelligence against political opponents violates both laws and ethics. If such an abuse gets tied to Operation Crossfire Hurricane and the probe that morphed into a special-counsel nightmare, that could clarify a lot of issues in Durham’s investigation. Oddly enough, the USA Today report completely misses that aspect of “authority,” but don’t bet on Bash or Durham to overlook it.
Still, where established authority does exist, Bash will have his work cut out to prove abuse. That is why it’s dangerous to imbue such intrusive authority without strict accountability independent of the political whims of the moment — it’s too easy to abuse, and too difficult prove it after the fact. In other words, keep expectations low on this aspect of the overall Durham operation, at least unless and until indictments start dropping and someone decides to play Let’s Make a Deal.