The William Barr Case for Impeaching Donald Trump: From Whom Did Trump Suborn False Statements?

Last month, I argued that a memo William Barr wrote that many say disqualifies him to be Attorney General in fact (or perhaps, “also”) should make him utterly toxic to Trump, because he (unknowingly) makes the case for impeaching Trump.

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.

Today, as part of a rebuttal to Daniel Hemel and Eric Posner’s comments about the memo, Jack Goldsmith reviews an OLC memo they rely on to back my argument.

Barr’s invocation and application of the presidential plain-statement rule, far from shocking, is quite ordinary. It is so ordinary, in fact, that I doubt Mueller is pursuing the theory that Barr worries about, even though press reports have sometimes suggested that he is. (For similar doubts, see the analyses of Mikhaila Fogel and Benjamin Wittes and of Marty Lederman.) Deputy Attorney General Rod Rosenstein implied that Barr misunderstood Mueller’s theory when he stated that Barr did not have the “actual facts of the case.” One can read Rosenstein’s statement, as Marcy Wheeler does, to mean that Mueller possesses facts—including evidence that Trump suborned false statements from Flynn—to show that Trump has obstructed justice under Barr’s “evidence impairment” theory and that, under the Barr memorandum’s separate discussion of impeachment, Trump can be impeached.

If Wheeler is right, then the Barr memorandum is more likely to be cited in support of an article of impeachment of President Trump for obstruction of justice than it is to be cited, as Hemel and Posner suggest, to immunize Trump from obstruction. We will see if the Democrats presiding over Barr’s confirmation hearings are clever enough not to take Hemel and Posner’s suggestion that Barr’s memo is extreme, and instead use Barr’s memo, as Wheeler counsels, “to talk the incoming Attorney General into backing the logic of the Mueller probe and impeachment in a very public way.”

Given the stakes on all this, I wanted to focus on why I think the public record suggests strongly that Trump suborned perjury (actually, false statements), meaning that Barr has already made the case for impeachment.

Mike Flynn lied to hide consultations with the Transition Team at Mar-a-Lago

First, let’s consider what Mike Flynn lied about, which I lay out in detail here. In addition to lies about being a foreign agent for Turkey and trying to undercut an Obama foreign policy decision pertaining to Israeli settlements, Flynn admitted to lying about whether he discussed sanctions during a series of conversations with Sergey Kislyak. The focus in reporting has always been on the conversations with Kislyak, but as the statement of the offense makes clear, Flynn’s conversations with other Transition Team members — most notably his Deputy, KT McFarland — got almost as much emphasis.

On or about January 24, 2017, FLYNN agreed to be interviewed by agents from the FBI (“January 24 voluntary interview”). During the interview, FLYNN falsely stated that he did not ask Russia’s Ambassador to the United States (“Russian Ambassador”) to refrain from escalating the situation in response to sanctions that the United States had imposed against Russia. FLYNN also falsely stated that he did not remember a follow-up conversation in which the Russian Ambassador stated that Russia had chosen to moderate its response to those sanctions as a result of FL YNN’s request. In truth and in fact, however, FLYNN then and there knew that the following had occurred:

a. On or about December 28, 2016, then-President Barack Obama signed Executive Order 13757, which was to take effect the following day. The executive order announced sanctions against Russia in response to that government’s actions intended to interfere with the 2016 presidential election (“U.S. Sanctions”).

b. On or about December 28, 2016, the Russian Ambassador contacted FLYNN.

c. On or about December 29, 2016, FLYNN called a senior official of the Presidential Transition Team (“PTT official”), who was with other senior ·members of the Presidential Transition Team at the Mar-a-Lago resort in Palm Beach, Florida, to discuss what, if anything, to communicate to the Russian Ambassador about the U.S. Sanctions. On that call, FLYNN and the PTT official discussed the U.S. Sanctions, including the potential impact of those sanctions on the incoming administration’s foreign policy goals. The PIT official and FLYNN also discussed that the members of the Presidential Transition Team at Mar-a-Lago did not want Russia to escalate the situation.

d. Immediately after his phone call with the PTT official, FLYNN called the Russian Ambassador and requested that Russia not escalate the situation and only respond to the U.S. Sanctions in a reciprocal manner.

e. Shortly after his phone call with the Russian Ambassador, FLYNN spoke with the PTT official to report on the substance of his call with the Russian Ambassador, including their discussion of the U.S. Sanctions.

f. On or about December 30, 2016, Russian President Vladimir Putin released a statement indicating that Russia would not take retaliatory measures in response to the U.S. Sanctions at that time.

g. On or about December 31, 2016, the Russian Ambassador called FLYNN and informed him that Russia had chosen not to retaliate in response to FL YNN’s request.

h. After his phone call with the Russian Ambassador, FLYNN spoke with senior members of the Presidential Transition Team about FLYNN’s conversations with the Russian Ambassador regarding the U.S. Sanctions and Russia’s decision not to escalate the situation. [my emphasis]

And the 302 (302s are what the FBI calls interview reports) makes this even more clear: Flynn was not only lying about the content of his calls with Kislyak, he was lying about his consultations with McFarland, and through her, the rest of the Transition Team, almost certainly including Trump. Flynn was lying about using language, “tit-for-tat,” that came right out of those consultations.

He was lying to hide that his interactions with Kislyak reflect a deliberate Trump Transition policy choice, rather than his own choice to freelance foreign policy.

Flynn got other people to lie — to the public and to the FBI

But it’s not just Flynn’s lies. It’s also the lies others in the Administration told. According to the NYT story of the relevant emails, at a minimum both McFarland and Sean Spicer would have known that Flynn got instructions ahead of his call with Kislyak and reported positively afterwards.

Mr. Bossert forwarded Ms. McFarland’s Dec. 29 email exchange about the sanctions to six other Trump advisers, including Mr. Flynn; Reince Priebus, who had been named as chief of staff; Stephen K. Bannon, the senior strategist; and Sean Spicer, who would become the press secretary.

That’s important because both McFarland and Spicer lied to the press about the call in early 2017.

Early on the morning of Jan. 13, 2017, McFarland phoned one of the authors of this article to rebut a column in The Washington Post, which said Flynn and Kislyak had spoken “several times” on Dec. 29, the day the Obama administration announced it was expelling 35 Russian officials and taking other punitive measures.

The column, by David Ignatius, questioned why Flynn was engaging in sensitive foreign policy discussions with Russia when Trump had yet to take office.

McFarland insisted in an on-the-record conversation that Flynn and Kislyak had never discussed sanctions and that they had actually spoken before the administration’s announcement on Dec. 29.


McFarland’s earlier account from the on-the-record conversation also matches public statements from Sean Spicer, the transition team’s spokesman and future White House press secretary.

Spicer said that Flynn and Kislyak spoke Dec. 28, before the sanctions were announced, and that “the call centered around the logistics of setting up a call with the president of Russia and the president-elect after he was sworn in.”

“That was it, plain and simple,” he said.

Most of the focus on public statements about the Kislyak calls has been on Mike Pence, but there’s no public record that he was in the loop on discussions about the Kislyak call (nor is there a record of him being interviewed by either the FBI or Mueller, which is one of the reasons I keep saying there’s no public record of him doing anything for which he could or should be indicted).

With McFarland and Spicer, however, we can be sure they both knowingly lied when they told the press that sanctions had not come up.

That’s why I keep pointing to two passages from the addendum to Flynn’s sentencing memo describing the significance of his cooperation. This passage makes it clear there’s some significance to the fact that Transition Team people repeated Flynn’s lies.

This passage makes it clear that, in the wake of Flynn’s cooperation, several other people decided to cooperate.

We know that McFarland is included among the people who decided to be forthcoming with Mueller; Sean Spicer probably is too and others (like Reince Priebus) may be as well. Importantly, we know they decided to be forthcoming after not having been at first. McFarland, at a minimum, lied not just to the press, but also in her first interview with the FBI, after which she made a concerted effort to unforget what really transpired.

Note, too, that that redaction is the last line of the Flynn addendum. While we don’t know what it says, it’s likely that the addendum as a whole reflects something that Mueller seems to be doing with his cooperating witnesses: either finding ways to rehabilitate liars (as he did with Michael Cohen) or using their testimony to pressure others to tell the truth, resulting in witnesses who will be more credible on the stand (which is what I suspect he has done with a number of witnesses with Flynn).

Trump has changed stories about what his Administration knew about Flynn’s lies at least twice

The public record doesn’t actually say how it happened that McFarland and Spice lied about something they should have known to be false. As I’ve laid out, it’s clear that Flynn was not free-lancing when he discussed sanctions with Kislyak, but the record is still unclear about whether he was freelancing when he ordered others to lie about it or not.

But two things strongly suggest he was not.

First, nothing yet has come close to explaining Trump’s actions with Jim Comey, first asking for his loyalty, then, after firing Flynn, asking him to let Flynn’s lies go. That’s all the more true if, as is likely but not publicly proven yet, Pence also knew he was lying when he claimed sanctions didn’t come up in the Flynn-Kislyak call, because lying to Pence is the only explanation Trump has offered for firing Flynn.

It is virtually certain Flynn was following orders — Trump’s orders — when he engaged in discussions about sanctions with Kisylak. And so it is virtually certain that Trump knew, from before he was inaugurated, that his top aides were lying to the press. Yet Trump didn’t find those lies to be a fireable offense until it became clear the lies would lead to a sustained FBI investigation into why Flynn had Kislyak hold off on responding to sanctions.

And over the course of the Mueller investigation, Trump has struggled to come up with a credible explanation for why Flynn’s lies became a fireable offense only after the FBI started looking more closely at his plans for sanctions relief.

Don McGahn wrote a report inventing one explanation for the firing just after it happened (akin to the way he later orchestrated a paper trail justifying Comey’s firing). But even when he wrote the report, it was inconsistent with what Sally Yates told McGahn.

Then, after Flynn flipped and it became clear Comey also documented his side of events (and shared those events contemporaneously with others in DOJ and FBI), Trump’s lawyers tried to massage the story one more time.

Mike Flynn, KT McFarland, Sean Spicer, Don McGahn, and John Dowd (at a minimum — possibly Reince Priebus and others, too) have all had to revise the stories they told the press and even, for some, FBI or Mueller after the fact to try to come up with a non-incriminating explanation for why everyone lied, first to the press, and then to the government.

There’s really only one thing that might explain why at least five top Donald Trump aides or lawyers had to revise stories to try to come up with innocent explanations for non-credible stories they were willing to tell the government from the start. And that’s if Trump were involved in all these lies.

It may well be that Trump didn’t formally suborn false statements before Mike Flynn interviewed with the FBI on January 24, 2017. Perhaps he just instructed Flynn to lie to the press and Flynn sustained the story he had been ordered to tell when the FBI came calling (Trump may well be more involved in the lies that Michael Cohen told to Congress).

But there is little else that can explain why so many people were willing to tell bullshit stories about Flynn (both his conversation with Kislyak and his firing) except that Trump was involved in orchestrating those stories.

Mueller’s obstruction investigation was likely always premised on a theory of obstruction that Trump’s presumed Attorney General nominee William Barr has argued does merit investigation and impeachment: that Trump ordered his subordinates to lie to obstruct an investigation.

 As I disclosed last 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. 

65 replies
  1. Trip says:

    Supposedly Cohen also informed the WH what his narrative would be to the committee. What he said he would testify to was also a known lie. No one stopped him, but we have no way of knowing if he was actually encouraged to take that route.

    • Yvonne says:

      Yessss! I can tell this is an article I will refer to again and again when people ask where the “smoking gun” is.

  2. Hops says:

    Well Trip, we know Cohen liked to tape conversations. So there may be tapes. Lordy, I hope there are tapes…

  3. pseudonymous in nc says:

    As Don McGahn’s uncle noted, you put two lawyers in the room.

    The problem that Barr faces, even given his Iran-Contra chops, is that he doesn’t know the specifics of what was done either during the campaign or in the White House, and he’s grounded in Daddy Bush-era standards of cover-up to protect the president and the office of the presidency. We already have a silhouette defined by lies that goes beyond all that.

    • BobCon says:

      I’m curious how much he knows by now. Priebus and Spicer were supposed to be prodigious note takers, and both are almost certainly JDA members.

      I’ve wondered how much of the early obstruction chatter in the press was the result of Dowd and Cobb trying to precipitate an early battle over obstruction knowing that Mueller had easy access to strong evidence from people like Priebus. If they could get a fight focused on obstruction while they had firm control over Congress, they might figure they could minimize the damage and then use the end of that fight to justify shutting down everything else.

      Barr sending his memo in June 2018 may be a sign of how behind the times he was.

    • J. H. Frank says:

      I’m a bit late to this, but Daddy Bush likely lied to the Independent Counsel, withheld evidence for years, and then definitely granted pardons for Iran Contra.

      The only real change is that there used to be a sense of propriety and decorum when these things were done, but this time it’s repeating as farce.

  4. CaliLawyer says:

    Trump famously trusts his gut than any number of expert brains, so by nature he’s a micromanager. His nitwit children and sychophants are the only people he’s willing to spend any time around. If anyone did some freelancing it’s maybe Manafort for his own selfish (desperate?) reasons, but I don’t think much went on in the campaign and transition that Trump wasn’t in on. Even if Manafort had his own side deal, a marriage of convenience is still a marriage.

    • Diviz says:

      “Remember two things. Number one, I said, we’re going to be saying Christmas again. And, number two, I said I was going to give you a Christmas present.”


  5. Diviz says:

    Question for the Esquires out there: What are the elements of suborning perjury? If Trump were to instruct administration members to lie to the press, but said administration members then told the same lie to the FBI, is the perjury then completely owned by the administration member and not Trump? Trump is well known to love lying to the press, and that is not illegal.

    From DOJ Criminal Resource Manual:

    To establish a case of subornation of perjury, a prosecutor must demonstrate that perjury was committed; that the defendant procured the perjury corruptly, knowing, believing or having reason to believe it to be false testimony; and that the defendant knew, believed or had reason to believe that the perjurer had knowledge of the falsity of his or her testimony.


    Solicitation of perjured testimony also may be prosecuted as obstruction of justice irrespective of whether the perjured testimony took place.

    Is solicitation like diet suborning? That same entry specifies that physical coercion is not necessary for suborning perjury. Where are the lines drawn here?


    • earlofhuntingdon says:

      Separate crimes.  Subborning perjury – eliciting, ordering, persuading someone to commit perjury – is a crime.

      Giving material false testimony, as a witness or to a federal law enforcement officer, or when submitting any number of federal forms requiring a signature, is commiting the crime of perjury.

  6. Alan says:


    Perjury and Subornation of Perjury only apply to false statements under oath. See 18 U.S. Code § 1621 and 18 U.S. Code § 1623, which are cited in the DOJ Criminal Resource Manual that you quoted.

    FBI interviews are not under oath. A conspiracy charge might apply however if the statements violated 18 U.S. Code § 1001

    • Diviz says:

      Thanks @Alan!

      So then suborning false statements itself is not a crime but rather a description of conspiracy to make false statements à la 18 U.S. Code § 1001? I think then I have the same question about conspiracy here. Is there a line between conspiracy to lie to the press and conspiracy to make false statements since the former is American as apple pie and the latter is a crime? In other words they would need not just to show that Trump instructed Flynn to make false statements but specifically to do so to the FBI?

      • Alan says:

        In order to have Conspiracy, there has to be an agreement to commit a crime.  Lying to the press is not a crime, but it might be admissible in an Obstruction case to establish intent.  Lying to the American public might also be grounds for Impeachment and Removal, IMO.

    • J R in WV says:

      Then how did Martha Stewart become guilty of lying to FBI agents and sent to prison for 18 months after an interview with FBI agents? Pretty sure she didn’t swear an oath to those agents…

      I’m pretty sure I’ve seen many other criminal cases where people being interviewed by Federal Agents were indicted and/or prosecuted for not being totally truthful and accurate in their statements to those agents.

      IANAL but I read a lot of news and worked with lawyers a lot in a former life.

      • Alan says:

        Good for you JR for having the sense to realize that what you didn’t read wasn’t true. As I stated above, 18 U.S. Code § 1001

  7. Jenny says:

    Marcy, another excellent post with a wealth of information.  I could use a “guide book” with names, titles and pictures to keep up with the characters and the lies, upon lies, upon lies.

    This soap opera continues with many titles to be created:  Days of Our Lies; General Lies; As the White House Lies; All My Lies; Search for Lies; One Life to Lie; Another Lie; Lies of Life and The Secret Lies

  8. Pete says:

    Responding to @Alan

    So, did Flynn, Cohen, et. al. lie under oath subject to 18 US 1621 or 1623?

    And, if they did, then is Trump’s exposure only if he directed them to lie in those instances? How direct (e.g. verbatim) does the the direction have to be for there to be Trump exposure?

    Would seem hard to prove – as expected.

    • Alan says:

      Cohen certainly committed Perjury when he testified to Congress.  If Trump was involved in those lies, he could have liability for Conspiracy and/or Subornation of Perjury, and it would certainly be grounds for Impeachment and Removal from office, IMO.  Subornation of Perjury would not require that Trump directed Cohen to lie under oath, merely that he convinced him to lie under oath.  Conspiracy requires only that there was an agreement to lie, and Cohen did in fact lie under oath or to the FBI or as part of an official proceeding.  Impeachment has no fixed legal standard–simply that Trump knew Cohen lied to Congress and did not notify Congress of the lies would be grounds for Impeachment and Removal, IMO.

  9. MattyG says:

    Does the memo then point to some kind of debauched right wing/FS long con? The memo’s spirited defense of the office of the president, while superficial, gets DT’s nomination nod, while careful parsing allows an easy out to answer thorny congressional questions regarding a potential presidential indictment/impeachment, and to act on same when the shinola really hits the fan. Effectivley sacrifice DT and his shyt situation to shoe horn another super conservative on the court.

  10. CaliLawyer says:

    I’ve always found Pence’s frequent absences earily fascinating – he’s like the reverse Zelig, nowhere all at once. I recall him being at Mar-a-lago during the Kislyak calls, but maybe I’m wrong about that. He does have a habit of just sitting around silently (see: Pelosi meeting)

  11. earlofhuntingdon says:

    If Trump can commit obstruction of justice, he can commit and be liable for any other crime on the statute books.

    The Don should really pay more attention to the people he hires.  It’s as if he learned nothing from the bankruptcy following the appointment of an earlier spouse, with no obvious qualifications, to run a casino in New Jersey.

  12. Rusharuse says:

    Who (when, where and how) is feeding Trump his lines on Soviet/Russian history?

    “Afghanistan made it Russia, because they went bankrupt fighting in Afghanistan. Russia … the reason Russia was in Afghanistan was because terrorists were going into Russia. They were right to be there. The problem is, it was a tough fight. And literally they went bankrupt; they went into being called Russia again, as opposed to the Soviet Union. You know, a lot of these places you’re reading about now are no longer part of Russia, because of Afghanistan.”

  13. Tech Support says:

    Prior to finding EW, I was definitely of the opinion that Obstruction was going to be an empty pursuit and that all the juice was going to come from collateral investigations like the things referred to SDNY (thanks NYTbama!). This post in combination with the prior is a sobering reminder of what a target rich environment this really is.

    @Bobcon, re: “Barr sending his memo in June 2018 may be a sign of how behind the times he was.”

    I still like the notion that Barr is an establishment mole who has gone undercover to hammer in the final nails. I’ll freely admit that is fanciful and unsupported but the schadenfreude side of my personality is keeping it’s fingers crossed.

  14. Fran of the North says:

    Replying to PJ @ 18:06

    Your sources might be possible. But other than The Dana Mole, that list doesn’t have any Russo-Apologists in it. Frankly, Trump is not smart enough to be spouting Kremlin mis-direction without Cliff’s Notes.

    Pompeo is bright enough to have read the intel and understood the threat. He is compromised all the way down to his garters, but he’s no Putin toady.

    Bolton is a complete right wing nut case. Whether you think he has a grip on reality or not, he has a distinct understanding of where the threats lie, and as soon as Iran and Korea are bombed into the stone age, he’ll identify targets in Russia.

    Trump’s comments are an amalgam of his complete mis-reading of history, along with helpful talking points from somebody who has his direct cell number. Probably somebody holding out the possibility of a branded high rise in Mocba.

    Let’s hope that our intelligence services are listening intently. It’s obvious that our enemies intel services are.

    P.S. Thanks for the TPrincess Update. I don’t doubt that he is an absolutely poor business man. I did see his T branded 757 while at a layover at a NY airport w/in the last 12 months, so even if TShuttle is DOA, he’s riding in a different class, when not on AF 1.

    • P J Evans says:

      There doesn’t really need to be a Russian apologist involved – it reads like what he vaguely remembers of the Afghanistan invasion, mixed with what he vaguely remembers of history since then.

  15. Wajim says:

    To Tech Support & MattyG:

    To (poorly) paraphrase William of Occam, the simplest explanation is more likely true. That is, the long-game Federalist Society/GOP Establishment conspiracy theories you seem to suggest give far too much credit to the vision and skills of most reactionaries (even Mitch McConnell, as cynical ratfuckmaster-in-chief) and far less to the quantum foam of actual political/human reality. However, Trump’s Razor clearly suggests another guide: the most ignorant, expedient, and self-serving explanation is likely accurate.

  16. theresa says:

    I believe that Cohen knew that he was violating campaign finance laws with regards to hush money payments, had discussed the illegality with trump, was given the green light by trump to break the law anyway and lie about it, thus, Cohen decided to tape these particular conversations (with an “s” you notice) with trump, for future “security”.  No doubt that there are more tapes of trump violating the law.  But why did trump strut himself onto the national and international stages, KNOWING full well that he was corrupt and crooked?  VANITY.

  17. Eureka says:

    @ earlofhuntingdon says: January 4, 2019 at 2:57 pm
    If Trump can commit obstruction of justice, he can commit and be liable for any other crime on the statute books.
    The Don should really pay more attention to the people he hires. It’s as if he learned nothing from the bankruptcy following the appointment of an earlier spouse, with no obvious qualifications, to run a casino in New Jersey.
    Yes, yes, and yes: frame it.
    While some of his hires’ opinions might require more attention to detail- as here and in the prior Barr post- to show their work, everything’s coming up Rudy: foot-in-the-mouth of a Big Dick Toilet.

  18. WilliamOckham says:

    I still keep coming back to the question of who and/or what did Flynn give up to get his sweet deal with Mueller. Nothing in the public record explains that. I used to think that it was Pence. I am starting to think that he has documentary evidence of the quid in the quid pro quo. That is, I think that Trump ordered Flynn to call Kisylak to offer up canceling the sanctions as payback for … something.

  19. Artistic Slats says:

    @WilliamOckham: I like your first theory, and I believe the fact that Pence hasn’t been interviewed lends that theory credence. But maybe that’s wishful thinking on my part.

  20. Pat Neomi says:

    It certainly seems very plausible, and even probable, that all of the coordinated lies emanating from so many of the Trump flunkies are indeed borne out of Trump’s complicity in the patient-zero lie(s).

    What continues to completely befuddle me is the wholesale lack of competency displayed by far too many of the ostensibly licensed attorneys in this saga. In what world can Barr unwittingly potentially make the case FOR impeachment and be called a thoughtful lawyer? And then be nominated to be AG?!? What is it about Trump that makes otherwise normally functioning JDs lose their cognitive function? You’d think a former AG would know better than to try to make a case sans the facts… SMH

  21. RisingDown says:

    Question for attorneys in the crew, why would Barr have even sent Rosenstein a memo? Do the heads of DOJ just get unsolicited memos routinely, or would he have been sought out to weigh in?

  22. Avattoir says:

    1. Rising Down:
    “why would Barr have even sent Rosenstein a memo?”
    a. Not “a” memo – THAT memo.
    b. Maybe someone asked him to?

    2. Tech Support:
    “I still like the notion that Barr is an establishment mole who has gone undercover to hammer in the final nails”
    a. After the Saturday Night Massacre, do you remember who it was who ended up as ‘acting’ AG, and therefore the officer who appointed Leon Jaworski?
    b. Barr as Bork kinda fits.

    3. Everyone enjoying Toad’s Wild Dry Run at blackmail?

    • bmaz says:

      Yeah, THAT memo. Hmmm, where could  it have come from? I’ll take a flyer that Len Leo and the FedSoc are right in the middle of that. Which means that Barr is yet another right wing extremist lobbyist joining the euphemistic “drain the swamp” Trump Cabinet.

  23. RisingDown says:

    @ Avattoir and bmaz, exactly my thinking. I keep hearing that Barr sent Rosenstein this -uniquely timed, shall we say- memo. I also think it smells fishy.

    But as a serious question from a novice, would it be normal for Rosenstein to even be sent, let alone review, external advice like this? Would it seem that Rosenstein solicited the input?


      • Avattoir says:

        My initial hire into DoJ was during the Carter era. After Reagan won, a colleague & I wrote complementary letters to the DoJo who’d had something to do with hiring both of us, a political appointee who everyone was sure would be purged within months (and was). In her letter, she extolled the heck out my promise & work (moreso on the promise part; we were both pretty junior), and I for my part did the counterpart  for hers.

        It was intended as the kind of highbrow joke that younger professionals with a liberal background & full of themselves think of as sophisticated & hilarious (We each wrote in the manner of an unreliable witness – after his favorite film, Rashoman.), while lavishly over-praising and thanking our “patron” in excessively formal ways, each closing with the assertion that the “new regime of wise elders” were sure to recognize what we’d witnessed & knew to be true, and pleading to be considered for “honored positions in [his] brave new order”.

        The joke itself died in ignominy: both our letters never reached our patron, because the incoming bunch, which had a ton of experience in seizing the reins of government, on receipt directed them to the expected replacement – someone who would be expected to enter DoJ by appointment.

        But AFAWK that guy didn’t even read our letters. Apparently some secretary under the incoming CoS mistook them as just in the course of the thousands that the incoming team was getting from folks seeking appointment (which, again, neither of us needed, were seeking, wanted, or expected – indeed, as to the last two, the opposite).

        Instead, we received a major lesson in the dynamics of how the tension between large enduring bureaucracy and short term political takeovers can get resolved: we both received upgrades.

        In my case, effectively I got bumped up to run the crim division of a USa office under a political appointee who as far as criminal law was concerned didn’t know his ass from an armadillo (nice old dude who took his reward in the form of a lifetime appointment to the federal bench – as did everyone on his staff, none of whom had ever had any interest in whatever TF I was doing; all those judicial appointments is how I finally came to the attention of HQ, who then took me for an embed & arranged me ‘out’ pretty quickly).

        So: are such letters common? Until all that happened, not as far as I knew.

        • bmaz says:

          Yep. But letters do happen. I currently have an issue going on in TN. Not sure how it will play out.

  24. Trip says:

    Marcy, it looks like this is the guy Putin wants to trade for Whelan:
    Moscow accuses Washington of detaining Russian citizen after arresting ex-U.S. Marine (search under this title~Reuters)

    What happened prior:

    The Federal Bureau of Investigation arrested on Saipan last Saturday a 72-year-old Russian national who had been indicted in Florida in 2017 for alleged involvement in a conspiracy to illegally ship military items to Russia.

    Dmitrii Makarenko was served with an arrest warrant on Saturday at 3am. No other details were available as of yesterday as to why the defendant is on Saipan. ..According to records filed with the U.S. District Court for the NMI, a grand jury sitting in the Southern District of Florida returned an indictment against Makarenko, also known as Dmitryi, on June 15, 2017, charging him with one count of conspiracy to export defense articles without a license, and two counts of money laundering. ..According to the indictment, no defense articles or defense services may be exported or otherwise transferred from the U.S. to a foreign country without a license or written approval from the U.S. Department of State, Directorate of Defense Trade Controls. The ITAR also prohibits attempted exports, re-exports, transfers, trade-shipments, and diversion from foreign countries of previously exported defense articles or services without State Department authorization.
    The indictment said generation 4 ATN MARS night-vision rifle scopes, ATN Odin 61BW IX (30 Hz) thermal multi-purpose monoculars (ODIN 61BW thermal multi-purpose monocular), and Sellier & Bellot firearm ammunition primers are defense articles covered by the USML.
    more at link:

  25. Watson says:

    My two cents on Donald Trump’s recent foray into Afghan history:
    * Our president recites Kremlin foreign policy talking points because he is evidently compromised as the result of his having solved the Trump Organization’s persistent cash flow problems by laundering money for entities in the interpenetrated world of Russia’s oligarchy, security sector, and organized crime.
    * Nonetheless, the Kremlin talking points which characterize the 1979 USSR ‘invasion’ of Afghanistan as a war on terror are largely correct.
    * The soviets came to the aid of a secular leftist government that was targeted by US-sponsored ‘mujahedeen’. (Google: ‘CIA Operation Cyclone’.) In the US, ‘mujahedeen’ are typically referred to as ‘Muslim terrorists’.  
    * The ten year long Afghan campaign was justified to its citizens by the soviet government as a patriotic effort to protect its southern border. See e.g., Zinky boys: Soviet voices from the Afghanistan war by Svetlana Aleksievich. ‘Zinky’ refers to the zinc coffins in which 15,000 of them returned home. Much of the book is the testimony of amputees.
    * Zbigniew Brzezinski, Jimmy Carter’s National Security Adviser, bragged in 1998 about having used the ‘mujahedeen’ to lure the USSR into a Vietnam-type quagmire: ‘What is more important in world history? … Some agitated Moslems or the liberation of Central Europe and the end of the cold war?’
    * The ‘mujahedeen’ have subsequently proliferated under an alphabet soup of names, and the US has continued to use them as foot soldiers for its foreign policy, e.g., in Libya and Syria.

  26. watoosie says:

    I think the fact that Pence has not been interviewed (assuming that he hasn’t been) by OSP does not mean that the OSP assumes he was kept in the dark about the fact that Flynn was lying. As I understand it, Don Jr. has not been interviewed either and many assume he is a target of the investigation. If Pence has not been interviewed it may that he is a subject of the investigation (and not that he is viewed as so-to-speak “innocent”).

    • Avattoir says:

      1. letter as ad?

      Something like that; I think bmaz gets it closer.

      2. letter to cause recusal?

      No way Toad appoints Barr without getting a commitment to resist recusal; but Barr’s an institutionalist, and there are 2 major institutional hurdles facing him:

      – the Senate confirmation process (which we all know can be pretty unsatisfying),

      – then DoJ internal ethics (which can be relentless to ruthless – but Barr would enter with a range of advantages Whitaker could never gain and few if any of his problems).

      I think one thing we can all, uh, look forward to is another one of those Boys Breaking Bread photo ops: Rosenstein & Francisco again, but this time with Barr.

      “Let me understand: They put up all the money, I do all the work. What, if you don’t mind my asking, would you do?”
      “… what I’m good at. Not the work, not the work: presentation.”

  27. bmaz says:

    1) Not necessarily, no, he wrote it as a messenger for a cause via the FedSoc.

    2) No, recusal is now apparently up to the whims of the person in the AG seat, and Barr likely does not have the ethical compass to do so. As Whitaker has not.

  28. Trip says:

    OT, but interesting read.

    Turkey and Russia: The Paradox of Family Resemblance

    Despite their similarities, the likelihood that Turkey and Russia can establish a long-term strategic alliance isn’t high. Both see themselves as empires, and, as a general rule, an empire’s political philosophy is one of universalism and exceptionalism. In other words, empires don’t have friends – they have either enemies or dependencies.
    Moreover, an imperial paradigm has traditionally featured the existence of “frontier zones” – buffer territories that are a source of conflict for historical empires. For Turkey and Russia, the Caucasus, the Balkans, and the Middle East serve as such frontier zones….These days, both in Ankara and Moscow, the ruling elites are readily deploying imperial tropes, talking of the “New Turkey” and “Russian state-civilization” respectively. Yet while both the Turks and the Russians compartmentalize various aspects of their “multifaceted relationship,” the logic inherent in their strategic cultures undermines the potential for building trust-based relations. The issues over which Moscow and Ankara differ today – Crimea, Abkhazia, Nagorno-Karabakh, Kosovo, Cyprus, Syria – broadly belong to the geography where the erstwhile empires of the Ottomans and the Romanovs clashed over several centuries.

    Thus, the stage is set for a repeat of history. It’s only a matter of when the curtain will go up.

Comments are closed.