Harbinger? DoJ's "unmasking" probe goes nowhere

The “unmasking” scandal of the previous administration has turned out to be a big nothingburger. The Department of Justice has closed a probe into the numbers and manner in which Obama-era officials requested the identities of “US persons” in NSA surveillance without any charges or even a final report, the Washington Post reported late yesterday.  US Attorney John Bash has left the DoJ after closing out the probe after being appointed to conduct it by Attorney General William Barr, and no further action is apparently contemplated.

That leaves Donald Trump and other Republicans who had argued that it rose to the level of corruption with the problem of failed expectations. And it might not be the only federal probe that could end up doing that, either:

The federal prosecutor appointed by Attorney General William P. Barr to review whether Obama-era officials improperly requested the identities of individuals whose names were redacted in intelligence documents has completed his work without finding any substantive wrongdoing, according to people familiar with the matter.

The revelation that U.S. Attorney John Bash, who left the department last week, had concluded his review without criminal charges or any public report will rankle President Trump at a moment when he is particularly upset at the Justice Department. The department has so far declined to release the results of Bash’s work, though people familiar with his findings say they would likely disappoint conservatives who have tried to paint the “unmasking” of names — a common practice in government to help understand classified documents — as a political conspiracy. …

Kerri Kupec, the Justice Department’s top spokeswoman, had first revealed Bash’s review in May, after Republican senators made public a declassified list of U.S. officials, including former vice president Joe Biden, who made requests that would ultimately reveal the name of Trump adviser Michael Flynn in intelligence documents in late 2016 and early 2017.

In an appearance on Fox News that month, Kupec told host Sean Hannity that Barr had tapped Bash, the top federal prosecutor in San Antonio, to review Obama-era officials’ unmasking requests. She said that though the practice “inherently isn’t wrong,” the frequency with which requests were made or the motive for making them could be “problematic.”

As federal investigations go, this was relatively quick. And for good reason; for a prosecutor to charge someone, he has to establish that an actual crime took place. Unmasking in specific instances of US persons from signals intelligence isn’t illegal in and of itself, let alone making requests for unmasking. It’s up to the relevant agency to determine whether the requestor has the authority to receive the information. They would simply deny access to it — and all we actually know from the data made public thus far is who requested the access, not who actually accessed it.

Another point on legality: The president has the ultimate classification authority, especially among his own top aides. If Barack Obama wanted Samantha Power to access that data, he could have granted Power the legal authority (need to know) to access it. That’s the same ultimate classification authority that allows Trump to declassify everything regarding Operation Crossfire Hurricane, assuming he follows through on that announcement in a formal manner.

It’s very possible to abuse that authority, of course, and even to use the data in an illegal manner. The latter would be the purview of the DoJ, but there’s never been any evidence — other than speculation — that any unmasked information was accessed improperly, let alone used illegally. Bash apparently didn’t find any either. As for the abuse, that’s a job for Congress to handle. The Senate Intelligence Committee has been poking at this since mid-2017, as has the Senate Homeland Security Committee, but thus far they haven’t come up with anything.

In other words, it’s not terribly surprising that this probe ended up going nowhere at the DoJ. It’s what happens when no crime gets committed, or at least what should happen. In a way, this is a credit to William Barr, although it’s unlikely that either his allies, his opponents, or his boss will see it that way. The circumstances were unusual enough to investigate whether a crime was committed, and it only took five months for Barr’s assigned deputy to determine none was.

One does have to wonder, though, what this means for other DoJ probes into other potential abuses. John Durham has been working the Operation Crossfire Hurricane probe for a lot longer, and so far he’s only gotten one indictment — Kevin Clinesmith, who got called out in IG Michael Horowitz’ report for lying to the FISA court. That was low-hanging fruit, and the lack of any other indictments thus far does have to make people wonder whether Durham’s investigation will come a cropper in the end, too.

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