Emmet Flood Steps in It Again: William Barr’s Memo Makes Compelling Case that Trump Must Be Impeached

Back when Emmet Flood got Jeff Sessions replaced with big dick toilet salesman Matt Whitaker, I asked why the normally superb White House Counsel had done something that posed such a likelihood of causing chaos.

Maybe it’s just the Trump effect, in which normally competent people become bumblers in Trump’s aura, or maybe it’s just the unique difficulties of trying to defend the guy, but I think Flood has fucked up again. That’s because of the specific content of a William Barr memo sent to Rod Rosenstein, first reported by WSJ last night. While I’m certain Barr didn’t intend to do so, the memo makes a compelling case that Trump must be impeached.

The memo is long, lacks pagination, and presents an alarming view of unitary executive power. Barr also adopts the logically and ethically problematic stance of assuming, in a memo that states, “I realize I am in the dark about many facts” in the second sentence, that he knows what Mueller is up to, repeating over and over claims about what theory of obstruction he knows Mueller is pursuing.

Yet even before Barr finishes the first page, he states something that poses serious problems for the White House.

Obviously, the President and any other official can commit obstruction in this classic sense of sabotaging a proceeding’s truth-finding function. Thus, for example, if a President knowingly destroys or alters evidence, suborns perjury, or induces a witness to change testimony, or commits any act deliberately impairing the integrity or availability of evidence, then he, like anyone else, commits the crime of obstruction.

Probably by the time Mueller’s office captured Peter Strzok’s testimony on July 19, 2017 — and almost certainly by the time they obtained Transition emails on August 23, 2017 (perhaps not coincidentally the day after Strzok’s 302 was formalized) showing Trump’s orchestration of Mike Flynn’s calls with Sergei Kislyak — Mueller has almost certainly had evidence that Trump suborned false statements from Mike Flynn. So even before he finishes the first page, Trump’s hand-picked guy to be Attorney General has made the argument that Trump broke the law and Mueller’s obstruction investigation is appropriate.

Even if Barr hadn’t indicted the President on page one of his memo, on page three he completely invalidates the rest of his argument when he argues he would be wrong if Trump actually had engaged in “illegal collusion.”

[E]ven if one were to indulge [what Barr invents as] Mueller’s obstruction theory, in the particular circumstances here, the President’s motive in removing Comey and commenting on Flynn could not have been “corrupt” unless the President and his campaign were actually guilty of illegal collusion.

Much later he says that obstruction becomes ripe after the underlying conspiracy (which he again calls collusion) has been established.

[T]he predicate for finding any corruption would be first finding that the President had engaged in the wrongdoing he was allegedly trying to cover up. Under the particular circumstances here, the issue of obstruction becomes ripe after the alleged collusion by the President or his campaign is established first.

By June 2018, by the time Barr wrote this, I’m fairly certain Mueller had the goods on an illegal conspiracy between Trump and the Russians, even if all the witnesses to it had not yet signed up as cooperating witnesses against the President. So again, because he writes about something he doesn’t understand, he has accidentally made the case that the President has broken the law and should be investigated for doing so.

And I’m not the only one who seems to think that. After giving the WSJ an anodyne quote on all this last night, Rod Rosenstein gave a far more interesting statement today, saying, “Our decisions are informed by our knowledge of the actual facts of the case, which Mr. Barr didn’t have.” The only way Mueller’s known obstruction inquiry could be consistent with Rosenstein’s comment is if my two observations are correct: that Mueller had reason to pursue Trump for obstruction, and that he has evidence that Trump’s campaign entered into an illegal conspiracy.

Which is a bummer for the President because, over and over, Barr points to the role of impeachment in a case where the President abuses his plenary prosecutorial powers like Trump has. Most notably, he tries to distinguish the Nixon and Clinton impeachments (the latter, bizarrely, given that it doesn’t remotely fit his standards for acceptable investigations of the President) from Trump’s behavior by arguing that, “the acts of obstruction alleged against Presidents Nixon and Clinton in their respective impeachments were all such ‘bad acts’ involving the impairment of evidence.” While the evidence suggests Trump is also exposed in the conspiracy case, Barr argues here that just Trump’s acts of obstruction are sufficient to impeach him.

And here’s why I blame this all on Emmet Flood. As the updated WSJ story now makes clear, Barr sent a copy to Emmet Flood.

But people familiar with the matter said Mr. Barr did send a copy to Emmet Flood, the White House lawyer handling the Mueller probe.

If Flood read this memo (at a time, mind you, when Barr was under consideration to serve on Trump’s defense team), then it is malpractice to then appoint Barr, knowing the memo would come out.

Then there’s the fact that the memo got reported and released now. Apparently, while Trump has not yet officially appointed Barr (he may be trying to play games with Matt Whitaker’s status as Acting Attorney General), the White House has started to share background information, which may be how this memo got liberated. While White House Counsel Pat Cipollone presumably has resumed control over nominations process, but since Flood was involved in finding a new AG (and since so much of the AG hiring seems to be focused on getting Trump out of his legal problems with Mueller), Flood was likely in the loop on that decision.

Whatever the case, the fact that Barr wrote all this down and then it got liberated will make it a lot harder for Barr to invent some other reason to do what he helped Poppy Bush do, pardon his way out of a serious legal problem with Iran-Contra.

Indeed, the hullabaloo around this memo now — and Democrats’ opportunity to get Barr to confirm that if there is evidence that Trump told Flynn what lies to tell about the Russian sanctions conversation (more evidence is likely to be public by that point) — then an obstruction investigation would be valid and impeachment would be the logical recourse. That may make Barr problematic for Trump. If Dems on Senate Judiciary Committee are worth their salt (and several of them are more than up to this task), they will be able to talk the incoming Attorney General into backing the logic of the Mueller probe and impeachment in a very public way.

Trump might try to prevent that by failing to nominate Barr, but if he did, it’d make it more clear that his sole criterion for an Attorney General at this point is someone who’ll help him out of his legal woes.

That may be why Matt Whitaker has finally taken the Hail Mary step of — six weeks into his tenure as “Acting” Attorney General — decide to forgo the ethical review for recusal on the Mueller probe that DOJ’s ethical advisor told him would result in a recommendation that he recuse.

Update: This post has been updated to reflect WSJ’s clarification that Emmet Flood did receive the memo. Earlier, WSJ subsequently quietly added a sentence (which it has subsequently removed, though it a google search on the sentence still brings up the article) noting that Barr had shared his treatise with “the top lawyer representing the White House in the Mueller probe,” which in context would seem to mean Emmet Flood.

As I disclosed in July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

53 replies
  1. pseudonymous in nc says:

    It’s stuff like this that makes me wonder what kind of evidentiary foundation Flood is working from, even before considering the clown act of Rudy911. You don’t have to be a supergenius to read between the lines in the Cohen and Flynn statements of facts and sentencing memos, especially if you also have all those JDAs to draw upon.

    Do they know enough about that extended time period to hope that some of it won’t emerge as evidence? Do they not know the extent or the details but are betting on the under? Is it a best effort to create an exculpatory narrative — updated daily! — when their client lies about everything?

    As EW says, “X is okay unless Y or Z” isn’t a great legal strategy unless you’ve entirely ruled out Y or Z, even if it kicks the can down the road when dealing with the media.

    • emptywheel says:

      Right: Regardless of who’s behind the Barr pick, that the entirety of his lawyers together couldn’t figure out this could backfire is an indication how badly they’re reading what Mueller has. Admittedly, the memo itself was in June, so at a time when Gates was busy cooperating but before Cohen had flipped.

      Still, by that point, Trump’s lawyers were on their second or third attempt to spin the McGahn memo justifying the Flynn firing. So they had to have known.

      • Drew says:

        What if Flood has simply decided that his job is to protect the presidency but not this president? His job has always been in the WH counsel’s office, not Trump’s personal defense team. Trump always lies about all facts (and so does Rudy, at least). So Flood can understand the truth, but choose to act according to the information given him by the President & Rudy, i.e. assuming the President’s complete innocence in the face of all improbabilities.

        Hiring Barr would thus be less about protecting Trump than a Republican view of the office–and Barr’s memo leaves him the out of discovering the truth and letting Trump walk the plank.  I’m pretty sure Barr has an eye out to not going to jail with a crowd that has a propensity for doing just that. Flood too, for that matter.  Though I must say, Flood has been pretty invisible, so this is purely speculation.

  2. Boy C says:

    Whoa. When it rains it Floods I guess. Hopefully SJC has this hearing scheduled ahead of the 300 other ones coming. But even if SJC dems can get Barr to say it, the Rs still have to vote for impeachment.

  3. Wajim says:

    Can’t wait for the book(s), Ms. Wheel. Awesome good work. Curious, has Cipollone even completed his security clearance yet?  I do try to keep up, but haven’t seen anything about it.

  4. Joseph Cannon says:

    Obviously, Barr left himself an out. Nothing surprising there. Neither was I surprised when Rosenstein said that Barr was not privy to the full story.

    The important thing about Barr — the thing that everyone, left and right, seems intent on ignoring — is that he was a CIA lawyer. Literally. When GHWB was DCI, he was Bush’s right-hand man when it came to shutting down the congressional investigations of the intelligence community. Barr went to work for Shaw, Pittman, Potts & Trowbridge (now Pillsbury Winthrop Shaw Pittman), a CIA law firm which represented the likes of Ted Shackley and Ed Wilson. He worked for Southern Air Transport. He helped BCCI get a major foothold in America. He covered up Iraqgate (the secret arming of Saddam Hussein during the Reagan and GHWB administrations) by refusing calls for a special prosecutor. I could go on.

    Barr is, in short, spookier than Caspar. Thus, the question of whether or not he shuts down Mueller is really the question of whether the intelligence community supports Trump or wants rid of him. And I think — I’ve always thought — that this is an open question.


    • chromiumbook0000 says:

      Very interesting insight and question posed, JC. Can’t imagine Trump is getting much sleep these days as he tries to delineate between i) those who are working with him; and ii) those who are claiming to be working with him but, in fact, are gathering intelligence on him.  I assume the people who he originally felt most safe/comfortable with were those who he knew were similarly compromised (ie individuals who he or others have kompromat on), but that group is certainly no longer a safe haven given how many have been flipped.  Paranoia must be striking deep.

    • chromiumbook0000 says:

      Hi Marcy,

      Great angle as always.  I follow you on almost all of this, but curious why you view it to be potential “malpractice to then appoint Barr, knowing the memo would come out”?

      It seems like Mueller is being extremely mindful of the SCO’s scope of powers to ensure that precedents dont get set that could be abused for political purposes in the future.  I view what appears to be his decision to make the Moscow Tower deal as the “start date” as an example of this.  Granted I’m sure part of this decision is because it’s a clean and powerful starting point, but Mueller presumably could torch Trump if the SCO included Bayrock, Schnaider, Baku/Azerbaijan laundromat, etc. in the investigation and it’s hard to argue that those deals/that background is not relevant to what happened with Trump’s election and subsequent presidency (the players are all still very much involved).  However, i think Mueller is probably very sensitive to the precedent that investigating that far back would potentially set.  The definition of where the line/hashmark gets drawn – how far back the SCO should be able to go? how tangential an angle they should be able to investigate (e.g. Stormy Daniels payment)? – is a very legitimate question/concern of those who are defenders of Trump and, really, should also be of those who want to see him impeached because the role/party will inevitably be reversed at some point in the future.  I admittedly did not read the entire doc  and i do not understand the legal mechanics of this investigation even remotely as well as you/Bmaz so i may be missing an important element of the thought process, but from my non-expert peruse/review, the memo itself seems to raise some legitimate questions (and as you mentioned, gives itself the giant caveat of “dark about the facts”) so i’m curious why just the receipt of it by Flood and subsequent nomination of Barr would be grounds for malpractice?

  5. anaphoristand says:

    If Flood were disturbed by the Whitaker debacle, would pushing Barr (precisely FOR the conclusions you draw from his memo) be defensible as dutiful representation of the office (if not necessarily its current inhabitant)?

  6. new-radical says:

    It occurs to me that I seem to remember that every time I heard George W. say “democracy” he really meant “capitalism”.

    These lawyers are now trying to figure out the next directional course, not just for the USA, but for western society as a whole, and they have lost their moral compass, because they seem to be doin’ the G.W. thing.


  7. oldoilfieldhand says:

    Would love to be a fly on the wall when the boys in the White House Counsel’s Office discuss this post!

  8. Rapier says:

    “Trump might try to prevent that by failing to nominate Barr”

    It’s going on two weeks since he said he would nominate Barr. In a similar vein it is still open to question if Whitaker’s appointment was legal. Makes no difference, it’s a fait accompli. If you think about it that describes most everything going on now.

    I assume Flood is thinking ‘what are you going to do about it?’ I would be overjoyed to be proven wrong. Until then cue Karl Rove

    The aide said that guys like me were ‘in what we call the reality-based community,’ which he defined as people who ‘believe that solutions emerge from your judicious study of discernible reality.’ […] ‘That’s not the way the world really works anymore,’ he continued. ‘We’re an empire now, and when we act, we create our own reality. And while you’re studying that reality—judiciously, as you will—we’ll act again, creating other new realities, which you can study too, and that’s how things will sort out. We’re history’s actors…and you, all of you, will be left to just study what we do’.

    • bmaz says:

      Don’t think it is a fait accompli. If you object, speak up to your Senators. It may well not be much, but it is what you actually can do. It is worth the effort. Beyond that, keep informed, and that is what this blog is, and tries to be, consistently about.

      • Worried says:

        To follow this blog, as BMAZ says, is to stay informed; maybe ahead of the curve.

        I confess that when Marcy connects the dots, I sometimes have a hard time following. IANAL, so the subtleties of legal proceedings are difficult for me to understand. BUT, by reading all of the expert commentators here, I have understood the issues much better than I could by reading my newspaper.

        If only we weren’t discussing high crimes and misdemeanors at the highest level of our government.  It is so depressing.

    • vertalio says:

      Maybe the WH is simply waiting for a friendlier Senate first, in a few days.

      After pissing them off with that last-minute shutdown veto threat.



  9. Jenny says:

    As I am not a lawyer, I have a questions for the lawyers on EW.

    Did Barr write this to get attention in order to get his foot in the door and to be AG?  If so, seems rather reckless from a seasoned lawyer with knowledge and experience inside and outside the government.  He even said that he is “in the dark about many facts.”   Then why write the memo?  Deliberate? Set up?  Power play for a job? To spy? Ruse?

    Confusing and fishy.  In my book there are no accidents.

  10. Jockobadger says:

    Thanks bmaz, I just sent it to Adam Smith, my USR. This site is truly a remarkable resource. I’m continually impressed that you people can actually keep track of all of the shenanigans.

  11. klynn says:

    It would be great to have Mattis’ letter enlarged and run on a two page full spread in all McClatchy papers, WaPo too.

  12. Rusharuse says:

    End of day(s):
    Trump tweets Mattis into retirement while refusing to keep Govt open – unless they pay him 5 billion . . Whitaker refuses to refuse, starts getting OSC briefings which he passes on to Trump.

    It’s getting dark outside!

  13. new-radical says:

    OT – Quick one on closing down the Government. Trump has no sense of history. He should better understand the story of Rome’s Praetorian Guard, who were responsible for bumping off and then replacing many of Rome’s Emperors before they were themselves disbanded by Constantine.
    In a more modern era Indira Ghandi lost it to her own body guards.
    So if Trump puts the Spending Bill in his pocket. He will go off to Mar-a-Largo for Christmas and display his “conspicuous consumption” to his own Praetorian Guard who are part of the Government that will enjoy their Christmas, not with their families, but in the company of their Emperor, watching his back with no paycheck.
    “Curiouser and curiouser!” Cried Alice.

  14. punaise says:

    @ Rusharuse at 6:21 pm

    Good call:

    Goodbye General Jim
    Though we never knew you at all
    You had the grace to bolt (yourself)
    While those around you crawled
    They crawled out of the swampwork
    And they whispered into the drain
    They set you on the dreadmill
    And they made you change your game

  15. HRHTish says:

    This reply is for Joseph: SHHHHHHHHHHHHHHH if you’re thinking what I am thinking, best not to draw attention to it.

  16. DrFunguy says:

    TPM is reporting: “A federal appeals Thursday froze a lower court case accusing Trump of violating the Constitution’s emoluments clause, halting discovery in the matter pending the resolution of the appeal.”
    I guess (IANAL) this is a normal way for things to proceed.
    However, at this time, with the winds of history blowing strong against the empire, nothing seems normal.

  17. Tech Support says:

    Thinking about Barr “as a spook” makes me wonder if the memo might not be some sort of honeypot. It LOOKS like an attack on Mueller but is actually a deliberate, crypto-justification of impeachment whose mechanisms have the benefit (from Barr’s viewpoint) of not threatening the theory of the unitary executive?

    • Trip says:

      I think that’s what HRHTish and Joseph Cannon were driving at. But then again, these people have no shame bullshitting their way into jobs, in a blind ambition sort of way, so who knows?

  18. Trip says:

    I think that’s what HRHTish and Joseph Cannon were driving at. But then again, these people have no shame bullshitting their way into jobs, in a blind ambition sort of way, so who knows?

  19. earlofhuntingdon says:

    Everything’s a game for Trump.  Everything is fair game in his effort to distract from his crimes and avoid liability for them.  Everything.  The stakes, for once, really are existential.  He’s liable to make them existential for everyone else.

  20. thedatacafe says:

    The WSJ article has: “The person also said Mr. Barr shared the memo with the top lawyer representing the White House in the Mueller probe around the same time he gave it to Mr. Rosenstein.”

    It would mean the WH counsel in June/July 2018 received it – would it be McGahn, or would it be Flood?

  21. Avattoir says:

    Things for someone better at tea reading than I to work out:

    1. Everyone’s treating Barr as if he’s been nom’d – except, he’s actually NOT been nom’d.
    Rather, in typical Toad cut-rate regional tent carny House of Freaks illusion fashion, Toad’s spoken slatheringly of him & Toad Hole has said “it’s … coming”.

    It could just be that Cardboard Consigliere McGahn and Fill-In Flood held Toad back from finalizing until Big Slick [You’ll Never] Cipollone arrived, cuz neither wanted to face the wrath of Toad on being counselled to be prudent about an impulse that hit him between cheese burgers while watching Hannity.

    Why? That Barr memo that fearless leader has been dissecting, for one; for another, tho hardly unreservedly effusive, there’s been a potentially unsettling amount of praise for Barr among former centrist government service normative types for Barr being an “institutionalist”; also, the expectation that some of the sharper pencils among the SJC Ds, including possible future DNC noms, will find themselves unable to restrain from asking Barr about the ‘alleged’ interview of Barr as a Toad defense attorney.

    2. What if it’s not that the Big Dick Sales Rep tool is the placeholder for Barr, but the opposite, with floating the illusion of nominating Barr serving as a kind of laser in the eyes to distract from a plan to give Whitaker as much room as possible to see how far he can get in gumming up the works at DoJ?
    How is that inconsistent with this? https://tinyurl.com/yccowvb7

    • bmaz says:

      The Barr Memo, in all its page length glory, is really pretty something, no?

      I am not sure how Barr gets past that. It makes Whitaker’s talking head TV moments look minor, in reference.

  22. Erica says:

    Has anyone considered, Flood’s decision was seen through the lens of this article and he maybe trying to rid us of this president, while at the same time trying to appease the president without losing his job? I’m hoping we have some undercover patriots who are appeasing Trump but preceed cautiously for the sake of the Country and are secretly trying to take him down! I can’t see Flood not realizing the significance of the memo considering what we know as of today! Seems he maybe trying to conspicuously, get Trump out.

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