Schrodinger’s Materiality: Bill Barr’s DOJ Has an Active Filing Arguing Flynn’s Lies Were Material

Bill Barr’s DOJ has this to say about whether Mike Flynn’s lies to the FBI on January 24, 2017 were material.

It was material to the FBI’s counterintelligence investigation to know the full extent of the defendant’s communications with the Russian Ambassador, and why he lied to the FBI about those communications.


The defendant’s false statements to the FBI were significant. When it interviewed the defendant, the FBI did not know the totality of what had occurred between the defendant and the Russians. Any effort to undermine the recently imposed sanctions, which were enacted to punish the Russian government for interfering in the 2016 election, could have been evidence of links or coordination between the Trump Campaign and Russia. Accordingly, determining the extent of the defendant’s actions, why the defendant took such actions, and at whose direction he took those actions, were critical to the FBI’s counterintelligence investigation.


As the Court has already found, his false statements to the FBI were material, regardless of the FBI’s knowledge of the substance of any of his conversations with the Russian Ambassador. See Mem. Opinion at 51-52. The topic of sanctions went to the heart of the FBI’s counterintelligence investigation. Any effort to undermine those sanctions could have been evidence of links or coordination between the Trump Campaign and Russia.

You might be forgiven for believing that Bill Barr’s DOJ didn’t made a vigorous argument to Judge Emmet Sullivan that Flynn’s lies were material, one that remains active before Sullivan, because almost no coverage of recent events concerning Flynn accounts for the posture of the case, in which there are at least four pending decisions before Sullivan. Several of those active representations argue Flynn’s lies were material.

Instead, coverage claims that Bill Barr’s DOJ believes that Flynn’s lies were in no way material. It is true that, in a motion to dismiss the case submitted last week, Bill Barr’s DOJ argued the lies weren’t material.

The Government is not persuaded that the January 24, 2017 interview was conducted with a legitimate investigative basis and therefore does not believe Mr. Flynn’s statements were material even if untrue. Moreover, we not believe that the Government can prove either the relevant false statements or their materiality beyond a reasonable doubt.


In any event, there was no question at the FBI as to the content of the calls; the FBI had in its possession word-for-word transcripts of the actual communications between Mr. Flynn and Mr. Kislyak. See Ex. 5 at 3; Ex. 13. at 3. With no dispute as to what was in fact said, there was no factual basis for the predication of a new counterintelligence investigation. Nor was there a justification or need to interview Mr. Flynn as to his own personal recollections of what had been said. Whatever gaps in his memory Mr. Flynn might or might not reveal upon an interview regurgitating the content of those calls would not have implicated legitimate counterintelligence interests or somehow exposed Mr. Flynn as beholden to Russia.

I know journalists are used to covering the Trump administration as a series of independent outrages, each one drowning out a prior newly inoperative one. But in courts, statements from a given party are presumed to have continuity, at least until those statements are resolved legally.

DOJ, generally, is assumed to have continuity in any proceeding, even between Administrations, and generally only changes position when the law or an interpretation of it changes, and as such would apply to all affected parties.

That’s all the more true within the span of one Administration. And in this case, Trump’s Acting Attorney General Rod Rosenstein agreed Flynn’s lies were material when he approved false statement charges against Flynn in December 2017, Trump’s Acting Attorney General Matt Whitaker’s DOJ argued Flynn’s lies were material when DOJ moved to sentencing in December 2018, Bill Barr’s DOJ argued “the FBI was engaged in a legitimate and significant investigation,” when it successfully defeated a request to dismiss the prosecution last fall, and Barr’s DOJ argued Flynn’s lies were material in January.

It is true that Barr’s DOJ has provided a claimed basis for changing its mind about the legitimacy of the investigation into Flynn and the materiality of the lies he told. It cites “newly discovered and disclosed information” as well as “recently declassified information.”

After a considered review of all the facts and circumstances of this case, including newly discovered and disclosed information appended to the defendant’s supplemental pleadings, ECF Nos. 181, 188-190,1 the Government has concluded that the interview of Mr. Flynn was untethered to, and unjustified by, the FBI’s counterintelligence investigation into Mr. Flynn—a no longer justifiably predicated investigation that the FBI had, in the Bureau’s own words, prepared to close because it had yielded an “absence of any derogatory information.”

1 This review not only included newly discovered and disclosed information, but also recently declassified information as well.

Not only is the reference to “newly declassified information” a tell that this information is claimed only to be new to Flynn, the motion to dismiss does none of the things legal filings are supposed to do to substantiate claims like this. There’s no declaration from Jeffrey Jensen describing the reasons for his review and explaining how, over three years into this investigation, he came to discover “new” information that hadn’t been considered by Rod Rosenstein and Matt Whitaker and Bill Barr or Robert Mueller and Jessie Liu when DOJ had previously argued this was a legitimate investigation. There’s no declaration from a Records Officer explaining how it is that the two files claimed to be new evaded anyone’s attention all these years and proving these documents hadn’t been reviewed by DOJ before. There’s not even a description in the filing specifying what it is that DOJ is claiming to be new, there’s just a citation to docket entries of stuff that was newly turned over to Flynn.

Plus, all of the facts on which this motion to dismiss relies — that the FBI hadn’t found anything in its counterintelligence investigation into Flynn, but decided to keep it open in early January 2017 when they discovered the Kislyak transcripts, and that people in DOJ and FBI had conflicting understandings of the status of the investigation leading up to the interview — has not only been known to DOJ but has been public since March 22, 2018, when Republicans released it in their Russian Report.

Director Comey testified that he authorized the closure of the CI investigation into General Flynn by late December 2016; however, the investigation was kept open due to the public discrepancy surrounding General Flynn’s communications with Ambassador Kislyak. [redacted] Deputy Director McCabe stated that, “we really had not substantiated anything particularly significant against General Flynn,” but did not recall that a closure was imminent.


The Committee received conflicting testimony from Deputy Attorney General  (DAG) Yates, Director Comey, Principal Deputy Assistant Attorney General McCord, and Deputy Director McCabe about whether the primary purpose of the interview was investigating potentially misleading statements to the Vice President, which the Vice President echoed publicly about the content of those calls; a possible violation of the Logan Act; or a desire to obtain more information as part of the counterintelligence investigation into General Flynn.

Sullivan knows well that DOJ knew of this information, because he litigated a long dispute over this information starting in August and wrote an opinion on it in December. He even reviewed two of the 302s the government relies heavily on — those of Mary McCord and Sally Yates — to make sure the summaries DOJ gave to Flynn were sufficient, which is pretty good proof that DOJ knew about them and their representations about the almost-closed investigation and the discussions about the multiple things FBI was investigating. Billy Barr claimed in his interview that this was new to him — something he has not done in a representation to the court — but then described just what appears in the passage from the HPSCI Report, something which was public (and circumstances to which he alluded in his confirmation hearing). In fact, FBI has gone on the record to say that these records had already been shared with DOJ IG (which completed a report in December that didn’t treat them as unusual) and the John Durham inquiry (which began a year ago).

With regard to certain documents in the Michael Flynn matter from the 2016-2017 time period that are now the subject of reporting by the press, the FBI previously produced those materials to the Inspector General and U.S. Attorney Durham,” the FBI said.

So these documents aren’t even new to oversight elements in DOJ outside of the prosecutorial team that argued for the materiality of this case. Because the documents are not new to DOJ, DOJ has offered no valid reason to flip-flop about its view on the legitimacy of the investigation and the materiality of Flynn’s lies.

All the more so given one more detail about this case. Before prosecutors submitted the sentencing memo in January that made an aggressive case for the legitimacy of the prosecution and the materiality of Flynn’s lies, they had to get two extensions to secure the necessary approvals. In December, prosecutors got a week extension for their sentencing memo to get approval from the “multiple individuals and entities” who would need to approve it.

There are multiple individuals and entities who must review and approve the government’s submission, including any changes from the government’s prior sentencing memorandum and its specific sentencing recommendations.

Then, on January 6, the government asked for and got one more day.

As the government represented in its initial motion, there are multiple individuals and entities who must review and approve the government’s submission, including any changes from the government’s prior sentencing memorandum and its specific sentencing recommendations. The government has worked assiduously over the holidays to complete this task, but we find that we require an additional 24 hours to do so. The government respectfully requests that this Court extend the government’s deadline to provide its supplemental sentencing memorandum to Tuesday, January 7, 2020, at 12:00 p.m.

Having twice granted extensions so prosecutors could be sure they got all the approvals they needed for their sentencing memorandum, and absent any claim since they didn’t secure those approvals, Judge Sullivan would be well-justified in treating that sentencing memorandum arguing forcefully for the legitimacy of the investigation into Flynn as the view of the entire DOJ, up to and including the Attorney General.

And since DOJ’s claims to have discovered “new” information since then are not supported by any proof and are in fact refuted by the public record, he has good reason to treat the earlier representations from Bill Barr’s DOJ as the operative one.

In Judge Sullivan’s court, Bill Barr’s DOJ’s claim that Flynn’s lies are material remains an active legal claim in support of sentencing, even while Bill Barr’s DOJ claims something entirely different in opposition to continuing the prosecution. Even Bill Barr has conceded that Judge Sullivan gets to decide whether to accept the motion to dismiss. If Sullivan rejects it, he can move immediately to sentencing, relying on Bill Barr’s DOJ’s argument that Flynn’s lies were material. Bill Barr is arguing with himself here.

Flynn’s supporters have started to argue that Sullivan’s appointment of John Gleeson conflicts with the recent SCOTUS decision in Sineneng-Smith which prohibits courts from seeking out opinions from parties not before the court to present issues that haven’t otherwise been presented.

One week ago, the U.S. Supreme Court issued a 9-0 decision, authored by Justice Ginsburg, that took judges to task for similar amicus antics. Her opinion for the Court in U.S. v. Sineneng-Smith upbraided the U.S. Court of Appeals for the Ninth Circuit for violating a basic aspect of legal proceedings called the “party presentation principle.” In a nutshell, this concept dictates that judges must decide the case as presented by the parties before them. They are not to go out questing for dragons to slay (or issues to tackle) that the parties have not brought before them. As J. Ginsburg put it: “[C]ourts are essentially passive instruments of government … They ‘do not, or should not, sally forth each day looking for wrongs to right. [They] wait for cases to come to [them], and when [cases arise, courts] normally decide only questions presented by the parties.”

That’s not what’s happening here. Judge Sullivan is asking Gleeson to argue the view of a party that remains before the court: that of DOJ, which argued in December 2017 and in December 2018 and in November 2019 and in January 2020 that Flynn’s lies are material and the prosecution just. The issues of materiality have been before the court since 2017, and DOJ has argued for the materiality of Flynn’s lies vigorously. I have no idea what Sullivan plans to do with respect to additional testimony. But even based on the public record as it exists today (not least because the motion to dismiss egregiously misrepresents the exhibits it relies on and in them, presented evidence that the purpose of the Flynn interview was clear), Gleeson could easily substantiate DOJ’s still active representation before Judge Sullivan’s court (in their still-pending sentencing memorandum) that Flynn was rightly prosecuted for material lies to the FBI.

Unlike Trump, Bill Barr doesn’t get to just ignore claims his own DOJ has made in the past. He can claim he has reason to reverse those claims, but there, too, Sullivan has discretion. DOJ would have to ask leave to modify its sentencing recommendation, and provide proof lacking here they have reason to do so. As it stands, however, DOJ has not asked to modify the sentencing recommendation, and thus their claims about materiality remain before Sullivan unchanged, sitting there in the docket right next to Bill Barr’s DOJ’s radically different claims.

There has been some shitty commentary presenting Bill Barr’s motion to withdraw as a Both-Sides issue, but totally misconstruing which are the two sides, claiming it pits DOJ against critics.

The Justice Department argues that the FBI shouldn’t have conducted its Jan. 24, 2017, interview of Flynn, because the bureau was already aware through phone intercepts of what he had discussed with the Russian ambassador and there wasn’t proper justification for continuing the investigation of Flynn. That request to dismiss, put forward by Attorney General William Barr, has been criticized by nearly 2,000 former Justice Department officials and hailed by Trump and his supporters.

But it totally misconstrues the two sides here. They are Bill Barr’s DOJ versus Bill Barr’s DOJ.

This is the rare opportunity where the kind of Both-Sides journalism the Beltway press loves to practice has merit. On one side, there’s Bill Barr’s DOJ, which has a currently active argument that Mike Flynn’s lies were material to a legitimate investigation. On the other side, there’s Bill Barr’s DOJ, which has a different argument (one that conflicts with the exhibits presented with it) that because there was no legitimate investigation at the time, Mike Flynn’s lies were not material.

149 replies
    • posaune says:

      Isn’t perjury a lie committed under oath?
      While false statements would be a lie under an interview or the like?

      • emptywheel says:

        Correct. Flynn pled guilty to lying to the FBI, but Sullivan rightly has noticed that he has materially conflicting sworn statements before his court, which would be perjury unless there’s a good explanation.

        • bmaz says:

          Note, there is no good explanation here.

          Also, Posaune was right, the difference is really the “oath”. There are some other very technical things that affect how jury instructions might be crafted, but are not pertinent here.

          • Rugger9 says:

            How could AG Barr stop Sullivan from investigating this question? Would it be a run to the appeals courts for a directed outcome / verdict? Otherwise I see this process laid out by Judge Sullivan as being a delay generator and the WH simply cannot afford to have bad news dropping out of the sky through the summer in addition to the COVID-19 issues.

            • bmaz says:

              I don’t know yet. I do think a full pardon would divest Sullivan of jurisdiction of the criminal case against Flynn. Could Sullivan investigate above and beyond that? I think so, but this is getting into the deep weeds, and we just don’t know without further facts.

              • vvv says:

                “divest Sullivan of jurisdiction of the criminal case against Flynn”, but not, I think, jurisdiction of the conduct of others (say, attorneys) before the Court. I think they’d likely need their own pardons – but please take this as analysis NOT by a criminal law attorney.

                In the same vein of not practicing within this area of law: To the extent that the Court has sanctions power, would a pardon in the criminal case serve to pardon a witness for perjury within proceedings in that case before the court?

              • jdmckay says:

                “further” facts? Couldn’t help but pause, and notice where that leads thinking based on the meaning of the words. Kind of bizarre AFAIC.

                Obviously you mean some “circumstances” that may or may not “develop”, based on… ???

                This thing just gets abstracterer and abstracterer. What is really going on is a game of “my boat is bigger then your boat”, and the biggest boat wins. Trying to make sense of it is a prescription for confusion. This Flynn saga is more like an LSD trip, with all the players wearing $5k Armani suits operating on the “if you can’t dazzle them with brilliance, baffle them with bullshit” principle.

                And… plz don’t take my comment as personal. I simply find I have to pause often these days and really take stock of things… do a reality check. It is impossible to make sense out of bullshit.

                Our Federal government is completely, totally broken. And the parts are broken too. And the “bigger boats” want it like that.

                There has to be a better way.

  1. Rapier says:

    There is a genius in this that is stunning. Barr and company are licking their chops over their certain loss in Sullivan’s court which will be used to ignore and deligitimize the courts. If Sullivan was a political actor not a judge it would be better to call Barr’s bluff and let Flynn off. Flynn is a fruitcake whose 90 days in jail or even 1 makes no difference.

    • Rugger9 says:

      Letting Flynn off is appeasement and will be useless. It’s better to force DJT and his minions to put their cards out on the table for everyone to see.

      The only problem I see that I noted before is the selection of Judge Gleeson as an advocate with his op-ed on the record to give Barr’s DOJ the leverage to claim unfair bias. I don’t see the wisdom of gift-wrapping appeal points.

      • bmaz says:

        You are right about Gleeson and his baggage. But not so much for appeal, but also the public opinion posture.

        • alfredlordbleep says:

          footnoted: Barr baggage
          Of course, the parallel is Barr’s “audition” letter to Trump in the beginning opining that the Mueller investigation was illegitimate (unitary executive and all that)

  2. Max404 says:

    Billy Barr claimed in his interview that this was new to him — something he has not done in a representation to the court — but then described just what appears in the passage from the HPSCI Report, something which was public (and circumstances to which he alluded in his confirmation hearing).

    Could Sullivan, in a hearing, call Barr as a witness, under oath, to testify that the “information” was new to him, potentially setting Barr up for an indictment for perjury in February, or forcing him to backtrack and thus endangering the current motion to withdraw? Lawyers or even better, EW, please weigh in.

    • pseudonymous in nc says:

      Barr himself isn’t a party in the case and his written and spoken statements aren’t filed before the court. Judges can only judge what’s in front of them. But one reason to have someone adopt the DOJ arguments that were left hanging is ask questions of Timothy Shea that will need some kind of formal response.

      • BobCon says:

        “Needs some kind of formal response” — formal response from Barr specifically?

        I don’t have a good sense of whether there is much opportunity for getting past the passive voice “this position was taken” to the active voice “this person ultimately decided this thing.”

        • pseudonymous in nc says:

          I mean from Shea and Jocelyn Ballentine (the named counsel on the government side). The motion to dismiss has enough vague hand-wavy stuff that Gleeson could potentially raise and request Judge Sullivan ask for a response.

          e.g. “Nor was anything said on the calls themselves to indicate an inappropriate relationship between Mr. Flynn and a foreign power.”

          Really? File the transcripts under seal for the judge to be the judge of that, then.

      • Max404 says:

        My question is, does Sullivan have the option of calling anyone he feels is relevant to an eventual hearing, is such a hearing in the cards now that he is “considering” what to do, and if that were the case, could he call Barr ?

    • timbo says:

      There’s a difference between what is possible in theory and what happens in practice. I can imagine scenarios where Sullivan might be able to summon Barr to explain himself but those would require a lot of back and forth beforehand with other folks at DOJ…development of a record of evidence that directly implicated Barr. In general, a federal judge will not want to summon anyone to their court that doesn’t absolutely have to be there. So far, there is no evidence that Barr absolutely must be there under oath. That could change but it won’t be happening tomorrow. And it likely won’t ever happen. At least that’s what Barr and his minions are currently counting on.

      (Now back to speculating as to whether or not Barr is a Russian asset…I know it must be keeping someone else awake somewhere tonight worrying about that…or maybe I’m alone in that being the most reasonable interpretation of the actions so far from DOJ in its motion from last week to drop the charges with prejudice against Flynn.)

      • Eureka says:

        Nah, the truth is even scarier: he’s a FedSoc asset, American as apple pious.

        He’s just cleansing the feet of the unitary executive.

        • Savage Librarian says:

          Except when 1 + 1 = 10. When is binary not binary? Maybe when it is Rasputin? So, there is a possibility that timbo’s thinking plus Eureka’s thinking is greater than the sum of its parts. Keep in mind the Millian/Morgulis/Kislyak links. And remember the recent push to put the word “God” in the Russian constitution. Autocracy marches on to theocracy. Domination is the goal. Isn’t that what all abusers seek?

          • Eureka says:

            Oh my intention was more proximately historical than binary, while keeping a transnational crime syndicate ball or two in the air. So while I did give pause* before answering as to whether the Leos/Kochs/Barrs of the world were borne from some (20s; 70s-) 80s KGB plot (anti-American-constitutional and exploitive of our values as their activities are), I think it might be more catholic than that. [It’s also my opinion that Catholicism** especially — with its emphasis on the singular father’s authority (well, nested sets of fathers) as God’s representative / earthly gatekeeper(s) — lends itself to (supplicance to) sick notions of and abuses of power (even just within families).]

            IMO Putin is just copying –joining — the “God”-ful authoritarianism of the GOP here (in this historical cycle), while answering their longstanding criticism of Soviet godlessness to boot: it works, and he is not the end-all of cleverity. Everyone has their pragmatic moments. However I am happy to be otherwise informed. I think I get where you are going with e.g. Morgulis — what we might see now as like a Maria Butina of God instead of guns — but I’m missing the ‘turn’ part (of someone like Barr) as opposed to birds of a feather/ old techniques in “international relations.” i.e. more ingratiating or infiltrating than originating.

            So I was mainly seeing it like we have our own dangerous assholes, in tow to their own ‘higher powers’ (back to those transnational syndicates again). Perhaps we are saying similar things where I keep a distinction. While the GOP’s and Putin’s interests are largely now aligned — locked*** — in a positive feedback loop, I think that’s different than considering someone like Barr to be a Russian asset. It is worse, he is ours.

            *Also to histories around Poppy Bush and Kissinger, among others

            **hashtag notallCatholics

            ***somewhat passively but also performatively, and not getting into splitting sticks/carrots and who’s serving; cf. the profusion of love locks on the Pont des Arts in Paris, where the bridge railing collapsed under the weight…and so civil authorities stepped in.

            • P J Evans says:

              I’ll admit that it would be interesting to be alive when the definitive story of Poppy Bush and the agencies gets written. I’ve wondered for some years about the one person I knew personally (long dead) who worked with Bush in the 50s and 60s at Zapata. (My mother once remarked about how often he left a country shortly before a coup.)

              • Eureka says:

                He is the (Where’s) Waldo of just so many events..

                Not to get all punny, but it’s kinda spooky (lol)

            • Savage Librarian says:

              Hey, Eureka, I meant to add Caputo’s name in my list. I’m hoping to hear more about Project Rasputin some day. It is only speculation on my part to think that Millian, Morgulis, and Kislyak might be connected to this. But, yeah, your Maria Butina analogy is what I had in mind.

              The white supremacists/nationalists are emotionally and physically aroused by separatist religion ideology. I think that is what caused me to see how abusive the patriarchal aspect of their “Christianity” is. It’s about domination and control.

              But it also made me question why I would want to honor a god that killed his own son. That has come to epitomize domestic abuse for me, especially since I have witnessed too much abuse in my own lifetime. There is a feedback loop in that patriarchal story that, subconsciously, programs us to reinforce self-defeating practices.

              We might be better off if we could separate the philosophy about Christ from the detrimental rituals, practices and myths that we call religion. Religion has many micro-aggressions that are divisive. For example, claiming that some people are “of faith” and some are “of no faith” is misrepresentative, and, thus, an aggression. The person “of no faith” may actually have very strong “spiritual” beliefs that are not understood or accepted by the person “of faith.”

              My guess is that religion was initially matriarchal because of the mysteries of birth. Upon realizing that the births were the result of seeds having been planted, then we shifted to patriarchal religion, maybe.

              Now we might want something more inclusive and less discriminatory. I believe the story of Christ was trying to teach about the universality of life and death and the consequent need for compassion. But this message was distorted for numerous reasons.

              One reason is that it became anthropomorphized into a “hero” story instead of into a collaboration story. And that led to competing hero stories, similar to sports rivalries, but deadlier.

              IMHO, just as material entities evolve, religion might serve us better if it were to evolve. Enabling a structural system that allows a more responsible means for us to acknowledge and accept mortality might be a start. One that embraces compassion, collaboration, continuity, and universality would be good. But, obviously, we have a long way to go and a lot of work to do before we might even approach a dream like this.

              BTW, here’s a relatively recent post Marcy did about Rasputin and Caputo.

              “Trump Puts his Rasputin Guy, Michael Caputo, at Department of Health and Human Services During a Pandemic” – emptywheel, 4/16/20


              • Eureka says:

                Thanks for elaborating on your kernels, SL, and very eloquently so. I do think we are speaking a common language with different words. This:

                But it also made me question why I would want to honor a god that killed his own son.

                reminds me how it’s recapitulated in old tv dialogue, like the father character saying “I brought you into this world and I can take you out of it.” It also speaks to a lot of older writing I’ve got as I processed witnessing a family in the throes of cruel sacrifice of the spirit and promise of some of their members ( a la ~ ‘Jesus died for your sins’ so you will die for mine.’) Authoritarianism sux, and I think some people catch it — or cannot escape it — from their churches. (As you note, there are many versions within and without the major religions, and spirituality writ large, I’m just pointing back at the controlling apples. And I call that feedback loop, “control the women, control the world.”*)

                I thought of you and our conversation earlier today when I saw this update blurb:

                Protesters urge Philadelphia archdiocese to resume in-person Mass

                A Pennsylvania antiabortion group protested outside the Cathedral Basilica of SS. Peter and Paul Sunday to urge Archbishop Nelson Pérez to resume public Masses throughout the Philadelphia area.

                “The Archdiocese of Philadelphia has for 60 days deprived faithful Catholics of crucial nourishment for our souls,” the Pro-Life Coalition of Pennsylvania said in an emailed statement. “While other U.S. Dioceses have begun this restoration, Philadelphia Archbishop Nelson Pérez has de facto ceded his authority to do so to Pa. Gov. Tom Wolf.”

                In-person Masses throughout the archdiocese have been suspended since March 18. The group claims this has deprived the faithful of spiritual sustenance.

                “This restoration has become urgent and important for the spiritual benefit of Philadelphia Catholics,” the group said. “The receipt of the Eucharist — and not just watching others receive the Eucharist — provides necessary nourishment for the soul, just as actually eating a meal nourishes the body.”

                The language, the language!


                Let us consume you.

                Let the people and America die — let us consume them, the citizens and the state — so we can consume the host. Our consumption is all that is material to any decision-making.

                *To control the (ideas about) women who educate the children means you control everybody. Women are inherently powerful.

                • P J Evans says:

                  The first mistake was when Abraham decided that following orders was better than using his own brain (and moral training), and tried to sacrifice Isaac even when he was given a suitable animal to use instead.

                  • Eureka says:

                    LOL/s it won’t be the last. As is de rigueur, today’s sacrament/sacrifice demanders were shown on the news to be mostly not wearing masks, including lots of white haired folks.

                    My side-concern all along has been a sort of DV angle where, say, women in these households can’t escape participating in the public stuntery because there’s no excuse to be somewhere else (and no social excuse for the men not to bring their wives. And they need numbers).

                    One of the older women had her back turned to the crowd as she struggled to tie on a mask, and the vulnerability busted their charade and broke my heart. A photo focused on (things like) that is what needs to make A1 of the papers when these groups do this shit and media choose to publicize.

  3. BobCon says:

    “I know journalists are used to covering the Trump administration as a series of independent outrages, each one drowning out a prior newly inoperative one. But in courts, statements from a given party are presumed to have continuity, at least until those statements are resolved legally.”

    This is a great contrast that undetlines how far the DC press will go to dodge siding with evidence over spin.

    You’ll see it overall as the convictions and guilty pleas for Trump’s crew pile up. In standard reporting, media will use a legal decision to anchor judgments made through independent reporting — any decent reporter and editor who use a conviction or sworn statement to drop hedge words like “alledged” or “accused by rivals” as long as there is no longer serious doubt about the evidence.

    The DC press will not allow a narrative to be established that Trump has surrounded himself with crooks. They will not even accept the basic reasoning going back to Euclid that A and Not A cannot be true, and one of those things must be a lie. Everything must be hedged, unless even when the hedging violates basic evidence and logic.

    • Savage Librarian says:

      “They will not even accept the basic reasoning going back to Euclid that A and Not A cannot be true, and one of those things must be a lie.“

      If only someone could sit them down in front of the Lincoln Memorial and give them a little history lesson…

      • BobCon says:

        I think 90% of the DC press corps would take Lincoln’s House Divided speech to mean that Lincoln wanted the North to give in to the South on slavery.

        There are far too many disturbing cases of stenographers passing on Republican lies about what MLK said at the Lincoln Memorial, as if there is any reason to believe he was calling for complacency and acceptance of inequality.

      • madwand says:

        Like science they are not interested in history, unless it is revisionist and pertaining to their side; but as shown they are not interested in facts, hence Bill Barrs motion here. Their only real interest is in prevailing and subordination to Trump.

        I was struck yesterday how Kayleigh McEnany who during the presser outside the helicopter looked to Trump for approval after BSing the press about a pandemic response plan, which even if it exists was not followed. I’ve seen this kind of body language at many briefings over the years both in and out of government. Some people want to be sycophants, they see it as their path to success. Truth is sacrificed for expediency and gain as we see continually every day.

        • BobCon says:

          McEnany was previously hired by Jeff Zucker at CNN for the deliberate purpose of punching up their pro-Trump defense. Zucker isn’t even pretending to provide honesty on his network.

          • gmoke says:

            Never forget that Zucker is the guy who greenlit “The Apprentice” and put it on NBC. Zucker made Trmp a TV star almost as much as Mark Burnett did. The feud between Zucker and Trmp may be as real as the old radio feud between Jack Benny and Fred Allen.

            I’ve met Mr Zucker, another Harvard graduate, and believe that he lied to me when I asked him a direct question*, soon after he was booted out of NBC. Of course, he failed upward or at least laterally by landing at CNN. My impression is that he is an odious man.

            * The question was whether ad revenues had increased since the 2008 recession and Zucker looked at me with anger and said, “I don’t know.” He had been head of the network and didn’t know where ad revenues were heading? I don’t believe that for an instant.

              • P J Evans says:

                Zucker probably knows what ad revenues have been, to the day.

                I’m glad I haven’t watched TV for years.

            • BobCon says:

              I absolutely agree that Zucker regarding Trump is pro wrestling kayfabe. Which is really despicable on Zucker’s part, considering the mail bomber who targeted them and the ongoing death threats his employees receive.

              Zucker is also the genius behind the decision to give Jay Leno NBC’s 10-11 pm slot every weeknight, the worst programming decision in TV history. His strategy to win the cable news rating war by doubling down on the format fossilized 30 years ago has left CNN in third place. Wolf Blitzer is still his anchor. He is living proof corporate news is not about profits.

        • Alan Charbonneau says:

          McEnany will be like Sarah Sanders — a former WH press secretary who will be considered for hiring by a only a small group of people.

          “Though Sanders has interviewed with several companies, ‘everybody’s told her no,’ another former White House official told Yahoo News, adding that being labeled a ‘serial liar’ has hurt her job prospects.”

          I’m not sure how reliable yahoo! News is, but I’m inclined to believe this.

          • P J Evans says:

            I would say it’s more reliable than Fox or any of the WH press secretaries of the last 3 years.

          • earlofhuntingdon says:

            SpokesBarbie McEnany has Breck Girl looks that her predecessors lacked, which goes a long way with the Faux Noise boys. But there ought to be consequences for lying for a living. The problem she and her peers face is that lying for a living – say, for Madison Avenue, K Street, or corporate PR – is easier when you have less of a reputation for doing it.

          • vvv says:

            Perhaps that’s why she’s floating a run for office, in that it’s a proven fact that serial liars can get elected, even to the highest of offices.

    • earlofhuntingdon says:

      A verdict that survives appeal is what turns an allegation into a fact. And contra orion’s belt, below, a gut feeling – what everybody knows – might be sufficient for personal decision making; it is not sufficient for the law or sound governance.

      I agree with your comment about the MSM. It is similar to establishment Dems behavior, in that it claims to want A, but doesn’t want it enough to alienate B while pursuing it. So called objective reporting must stay, for example, within the editor/publisher’s narrow Overton Window.

      By the same token, establishment Dems claim to be the party of the working stiff, but refuse to irritate capital in the process. The Democratic House recently proposed legislation that withdrew planned protections for 25 million student loan debtors – including those who lost work after March 12 – because “it was too expensive.” The screeching of brakes broke every progressive eardrum for miles, but Wall Street heard a choral symphony.

      • BobCon says:

        The insanity of the “too expensive” line is that it doesn’t provide any spine to stand against right wing boondoggles.

        They could have saved themselves a world of trouble on PPP if they had held the line on keeping the money for small businesses and kept an asset test for the parent corporation in the language. Instead, they ended up with Ruth’s Chris and Gordon Sundland getting millions while legitimate small businesses got nothing.

        In 2010 Democrats were stuck trying to explain why they swallowed a stingy mortgage relief program after surrendering so much on bank bailouts that asked nothing of CEOs. Pelosi still doesn’t get the traps that are being laid for her.

        • earlofhuntingdon says:

          Or she is fiscally conservative and believes it is more important to keep Wall Street on her side than any so-called, pie-in-the-sky group of progressive Dems or the people they are trying to help.

          Back to the MSM, it was LOL hearing NYT’s Peter Baker call it “hard to reconcile” Trump’s alternative claims, such as “who couldaknowed about a pandemic” vs “we had a plan” and “it’s working beautifully.” Those are not hard, they are impossible to reconcile.

          Baker’s framing brings harsh language to an Alien gunfight. The statements are conflicting mutually exclusive lies by the American president and his SpokesBarby.

          • BobCon says:

            Baker is breathtakingly stupid.

            Despite taking dumb positions, I think a lot of DC reporters and editors are at least medium intelligence, some of them are very smart.

            But Baker is a freaking bag of hammers. He is Steve Carell’s Brick Tamland in Anchorman.

            • pseudonymous in nc says:

              I don’t think Baker’s stupid. I think he’s clever enough to have perfected a form of writing about politics that sucks out any hint of judgment over what may be true or good, like Robert Boyle pumping out air from the bell jar until the creature inside died.

      • vvv says:

        OT: don’t always agree with you, tho’ mostly, but always do like your turns of phrase and have to give kudos for this one:

        “The screeching of brakes broke every progressive eardrum for miles, but Wall Street heard a choral symphony.”

  4. orionATL says:

    look, attorney general william barr is lying to the american public and to the court.

    we don’t need sworn oaths in court to recognize barr’s bare-assed lying. we know lying; lying is an essential human protective behavior; we are born liars; we lie repeatedly thru our lives; we do expect, however, that public officials not lie to us; this requirement is essential to sensible citizen judgments. not surprisingly it is routinely violated by these officials. disparetly, we accept public official lying when it fits our needs and reject it when we find it unuseful.

    • BobCon says:

      What’s frustrating about a lot of coverage of Barr is how much if it memory holes his transparently dirty handling of the Mueller report release.

      Reporters and editors ought to be embedding it in their narratives about Barr. It’s unavoidable — it was headline news, unambiguous, recent, all of the checkboxes they say matter when deciding what’s relevant.

      And in particular, it was aimed at them — he was deliberately working to make them report falsehoods. It’s nuts that the DC press corps doesn’t do their jobs here.

      • Ginevra diBenci says:

        Many of them fell for it. Barr’s invidious attempt to seize and strangle the Mueller narrative would never have succeeded without the DC and national press accepting it as God’s truth. “I guess it’s time to put this behind us” became such an incessant refrain that when the report came out their own egos were invested in glossing over its radical implications. In other words, they got played. And then, in order to conceal that lapse, they got played again. To this day I wonder how many actually read the report.

    • P J Evans says:

      I would say that we expect public officials to not lie to us without necessity: there are some things that they must lie about, such as our spies in other countries.

    • JVO says:

      I’ve yet to meet or practice in front of a judge who accepted any counsel lying to the court. I’ve witnessed more than a few judges become appropriately upset at counsel who make a mistaken lie and appropriately irate at counsel who are proven to have knowingly lied to the court. I expect Judge Sullivan is planning that Judge Gleeson will lay bare the lie being told to the court in the motion to dismiss and who was involved. My only hope is that Billy Barr will lose this gambit with Judge Sullivan (and is made to pay a heavy toll) irrespective of what happens with Flynn.

      • milestogo says:

        I’m not sure what that toll would be. Barr seems heavily protected with the only punitive remedies being impeachment or prosecution for obstruction. Neither seems likely. Losing his gambit regarding his preferred outcome of exaneration for Flynn isn’t really a loss for Barr though it may be for Trump.

  5. The Old Redneck says:

    I’m getting annoyed by the MSM notion that Judge Sullivan is acting contrary to U.S. v. Sineneng-Smith. That case was very different. In that case, the amicus parties came in during the appeal and made a completely new argument. The Ninth Circuit bought that argument, but didn’t address all the other ones. As the Supremes noted, this bait and switch changed the whole nature of the case. That’s why they ruled 9-0 against letting it happen.
    That is not at all true here, for multiple and obvious reasons. But I’m not seeing any commentary making these very important distinctions.

      • The Old Redneck says:

        Well, “multiple and obvious” because you made them that way. MSM journalists should be reading your stuff and giving it the weight it deserves.

    • penalty box says:

      There are two other things about this that the MSM and most commentators about this case are missing. This is no longer an adversarial proceeding. In an adversarial proceeding, i.e. the model of how we arrive at the correct legal result in this country, the idea is that the truth gets shaken about by competing presentations, zealously made. Here the defendant, Flynn, and the prosecutor, the USA, are now on the same side. That is precisely why an outside voice is needed. And it is related to the second thing that people are missing. Barr is in serious jeopardy of violating the ethical rules. They require lawyers to act with candor toward the court. Yeah, you are obligated to zealously represent your client, and that requires you to sometimes bend the law and facts in your favor, but when the proceeding is not adversarial, i.e. what we refer to as an ex parte proceeding, the ethical rules require lawyers to present all material information to the court, not just information that the lawyer thinks helps his client. Barr has committed so many fouls around this requirement it is head spinning. Not providing the transcript of Flynn’s calls with the ambassador. Twisting the words of assistant AG for national intelligence. Omitting the interview notes from the FBI guy. And claiming that that the dismissal motion is based on something new when everything it relies on was known the the DOJ when the charges were filed and the plea made. I’m frankly surprised that Sullivan hasn’t asked for advice about whether he should issue a show cause order to Barr regarding why he should not be referred to the lawyer disciplinary authorities.

      • bmaz says:

        I have no idea in the world exactly who is “missing” even one word of your long comment, and especially not here. Have you been reading us??

        Welcome to Emptywheel, and remember paragraph breaks are your friend.

          • bmaz says:

            Oh, golly. You walk in, blather, can’t use paragraph breaks, tell us what we are “missing”, and now you are already butthurt?

            Yeah, maybe you are in the wrong place. However, if you want consistently intelligent discussion, and don’t think your personal feely feelies are the most important thing the second you waltz in to a very longtime forum you have never been a part of, feel free to come back. Otherwise, spare me.

  6. Das Robot says:

    Posted this comment elsewhere re Sullivan’s move. Supremes 1987:

    This maybe: Young vs US + Vuitton
    The Court held that the “power to punish for contempts is inherent in all courts…and may be regarded as settled law. It is essential to the administration of justice.” Id. at 795 (block quotation and citation omitted). “The ability to punish disobedience to judicial orders is regarded as essential to ensuring the Judiciary has a means to vindicate its own authority without complete dependence on other Branches.” Id. at 796. The power to appoint private attorneys to prosecute contempt of court “satisfies the need for an independent means of self-protection.”

    I guess there are arguments to be made that contempt of a court is beyond the clemency power of the executive much like it is with states because it tramples the Article 3 branches ability to self protect. The prevailing opinion is Grossman but in writing for the majority WH Taft assumed the executive would be reversing an injustice. “Executive clemency exists to afford relief from undue harshness or evident mistake in the operation or enforcement of the criminal law.” I don’t think that’s the case here but it would be an interesting challenge. Probably a waste of time. I suppose you don’t have to experiment to see if a pig can fly (they don’t btw).

        • Molly Pitcher says:

          We have to hope for a crash landing. I remember the pigs were pretty important in Orwell’s “Animal Farm”. I am looking forward to Barr’s porcine version of Icarus.

          • earlofhuntingdon says:

            These guys certainly have the four legs good, two legs better schtick down pat.

          • Das Robot says:

            I think Barr is pretty crafty about covering himself. As disgusting as some of this stuff is I don’t think he’ll fly that close to the sun… He’d have Shea do it for him. Same-same Donald.

      • Tom says:

        Barr is buoyed up by the loathsome, foetid gases churning and roiling at the rotten inner core of his soul’s moral putrefaction.

        • FL Resister says:

          “Abandon all hope he who enter here,” appears to be written at the threshold of the Trump Administration. Those who can’t or won’t, don’t make it. William Barr appears to have no problem with it. Unfortunately, the resultant collateral damage of embracing this mindset has meant disastrous consequences for the Justice Department.
          Trump’s firing of Inspector Generals, the most recent at State Department on Friday night, is an illustration of the point that around Trump, only the most cynical and ethically compromised survive.
          And guys like William Barr and Mitch McConnell appear to revel in their evident belief that power is to be used to the sole advantage of those wielding it.

  7. Peterr says:

    From Marcy:

    And since DOJ’s claims to have discovered “new” information since then are not supported by any proof and are in fact refuted by the public record, he has good reason to treat the earlier representations from Bill Barr’s DOJ as the operative one.

    . . . And the last representation as . . . what?

    Two days ago, Marcy looked at Flynn’s conflicting statements before the Sullivan in a post she appropriately titled “Judge Sullivan to Judge Gleeson: Pick Flynn’s Perjury” that opened like this:

    Since at least last July, I’ve been warning that Sidney Powell’s serial efforts to use Judge Sullivan’s courtroom to rile up the Fox frothers might backfire. In January, I started pointing out that the claims Flynn had made to try to get out of his prosecution presented four materially conflicting sworn statements. Just this morning I pointed out that Sullivan has to figure out what to do with Flynn’s conflicting sworn statements, which are: . . .

    It seems to me that now Sullivan has to figure out what to do with DOJ’s conflicting sworn statements. But this is more than just the question “shall I grant the motion to dismiss or not?” that is sitting on Sullivan’s desk. Timothy Shea put his name to a DOJ document that says there’s new information here. In this post, Marcy delicately fillets that argument, which again makes me wonder about consequences and sanctions.

    As I’ve noted before, Sullivan does not like those who abuse their official positions. He showed his displeasure in great detail in US v Stevens in taking official notice of the prosecution’s illegal activities that made a mockery of his courtroom, in such damning detail that it not only got those attorneys bounced but forced a top-to-bottom review of procedures for handing discovery across the DOJ. From DCBar:

    On April 7, 2009, Judge Emmet G. Sullivan of the United States District Court for the District of Columbia unleashed his fury before a packed courtroom. For 14 minutes, he scolded. He chastised. He fumed. “In nearly 25 years on the bench,” he said, “I’ve never seen anything approaching the mishandling and misconduct that I’ve seen in this case.”

    It was the culmination of a disastrous prosecution: the public corruption case against former U.S. Senator Ted Stevens (R-AK).

    Stevens was convicted in October 2008 of violating federal ethics laws by failing to report thousands of dollars in gifts he received from friends. But a team of prosecutors from the U.S. Department of Justice is accused of failing to hand over key exculpatory evidence and knowingly presenting false evidence to the jury.

    Here, the situation is reverse. Flynn repeatedly pleaded guilty in Sullivan’s court, and Sullivan appeared so convinced of Flynn’s guilt that he wondered if the DOJ ever thought of prosecuting him for treason. Now, the DOJ is coming before him saying “we’ve got key exculpatory evidence” that just came to light — which is apparently nothing remotely close to the truth. It’s not new, it’s not exculpatory, and it’s not even close to being key. As Marcy wrote above

    In Judge Sullivan’s court, Bill Barr’s DOJ’s claim that Flynn’s lies are material remains an active legal claim in support of sentencing, even while Bill Barr’s DOJ claims something entirely different in opposition to continuing the prosecution. Even Bill Barr has conceded that Judge Sullivan gets to decide whether to accept the motion to dismiss. If Sullivan rejects it, he can move immediately to sentencing, relying on Bill Barr’s DOJ’s argument that Flynn’s lies were material. Bill Barr is arguing with himself here.

    Perhaps I might suggest a new title for a future post: “Pick Barr’s Perjury.” Because that’s what Barr is asking Sullivan to do.

  8. Mel says:

    Ben Wittes argued yesterday on his daily Zoomcast that the FBI was not primarily interested in Flynn’s lies. It was likely more focused on his role as an agent of Turkey, a possible conspiracy to commit kidnapping, his questionable interactions including taking payment from RT without disclosing it etc. I don’t know if this is correct but focusing on what Wittes argues only became a charge when Flynn had offered to cooperate and prosecutors were looking for the lowest charge overlooks a great deal of relevant details.

    • FL Resister says:

      I apologize if this is obvious, but since General Flynn cancelled his plea agreement, can he be held to account for his lying about his status as a paid foreign agent for Turkey?

      • earlofhuntingdon says:

        Flynn has asked the court to allow him to withdraw his guilty plea. The court has the power to accept or reject Flynn’s request. It has not announced its decision. I don’t believe Flynn has produced enough to persuade the court to grant his request.

        The court is concerned that Flynn might have committed other crimes during his prosecution. In light of the DoJ’s request to drop all charges, with prejudice, the court has asked for an independent review. It would include whether the court can hold Flynn in criminal contempt, regardless of the DoJ’s wish to wash its hands of the case against him.

  9. earlofhuntingdon says:

    The press continues to fall for Trump’s propaganda, like Charlie Brown legging it for Lucy’s football. Among its recent near misses is its chorus of questions about what crime he’s talking about when Trump says,

    Trump never answers them. He says only, “You know what crime he committed!” The cherry on top is his usual, “It’s disgraceful. It should never be allowed to happen in this country.” Trump, in fact, delivers a perverse riff on 1969’s anti-Vietnam, call and response chart-topper, Whitfield/Starr’s War:

    “(War, huh),
    (What is it good for?)
    Absolutely nothing, uhuh….Absolutely nothing.”

    Except that in Trump’s case, you have to be willing to substitute Barack Obama for War, along with progressives, Democrats, and everyone not a full-Monty Trump supporter. What the MSM misses – like Charlie missing Lucy’s football – is that there was no crime, and nobody, least of all Trump, knows what he’s talking about.

    The Don’s writers are not very original. They’ve cast Trump as the Manchurian Candidate’s Senator Johnny Iselin. Instead of shouting about how many card carrying commies there are in the State Department, Trump shouts about Obama’s “crimes.” But Senator Iselin’s handler makes him work for it: she gives him a different number of commies every time. She wants the press to obsess about how many commies there are, not whether there are any commies.

    Iselin – vain, lazy, and dim-witted – complains that that’s too much work. He wants one number he can remember. His handler looks at the Heinz ketchup bottle he uses to smother his morning steak and eggs. She tells him that there are exactly 57 commies in the State Department. Certainty, and fucking with numbers, make Johnny and Donny very happy.

    • harpie says:

      Here’s WaPo about that:
      How a Flynn theory became central to the Trump reelection campaign
      May 14, 2020 at 10:19 p.m.

      “Two people involved in Trump’s reelection campaign said the effort was designed not only to weaken Biden, but also to tarnish Obama…”

      …to which Biden advisor Andrew Bates responds:
      8:33 AM · May 15, 2020

      A sincere thank you to these two people, who in their zeal to promote Trump’s new coronavirus distraction “strategy” just announced to the country that Bill Barr and Richard Grenell are nothing more than Trump campaign employees in disguise – and committing historic malfeasance.

    • earlofhuntingdon says:

      I used shorthand for the song War’s writers and performer. To be clear, it was written by Norman Whitfield and Barrett Strong. The most famous version of it was probably Edwin Starr’s, which hit number one in 1970.

    • Tom says:

      Speaking of fucking with numbers, there is Trump’s continuing and persistent references to the Spanish flu of “1917”. He said it again just today.

      The coronavirus death total is heading toward 100,000 or more and the White House is acting as if there is nothing they can really do and that people should just get used to it. When the definitive history of the Trump Presidency is written, the section describing the period we’re living through now should be called “Walpurgisnacht”.

      • earlofhuntingdon says:

        Trump has pretty much filled his Second Vietnam Memorial Wall. He will fill a Third and Fourth long before he’s through. The Mall will have room for nothing else. He will manage to do in months what it took a war in SE Asia years to do. And that’s counting only the dead Americans, a rounding error on the full number of dead.

      • earlofhuntingdon says:

        I agree that Trump is intentionally using the wrong date for the 1918-20 flu pandemic. I think he’s being theatrical and stubborn – among his defining characteristics.

        Trump is playing King Canute’s stupid younger brother: He can and will keep the tide from coming in, he will stop Covid-19 in its tracks by wishing it gone, he can invent whatever dates or facts he wants – correcting him is heresy. It’s part of his need for confusion, chaos, and destruction: they make the real world mirror his insides.

        • vvv says:

          Obviously incomplete (“many people are saying” and “sir” come immediately to mind) this (entitled, “3 patterns of dishonesty to look out for in Trump’s remarks”) does mention the “stubbornness”:
          ht tps://

    • Alan Charbonneau says:

      Senator Iselin thinking 57 commies being easy to memorize is like Trump memorizing “build the wall”.

  10. CD54 says:

    Speaking of materiality, outside of Flynn’s exposure within Sullivan’s Court has anyone made a count of the number of perjury charges he could face given his FARA form, his financial disclosure, and his 2016 Security Clearance renewal — without prejudice could be a bitch early next year.

    • earlofhuntingdon says:

      That does rather force Trump into pardon mode. Good news is that he hates to do what he’s supposed to or what would be good for him.

      • Chetnolian says:

        For now there will be no pardon. There is a vague sort of version of the Bannon playbook at work here; everyone who has made a career of working for government is essentially evil.

        Use of a legal process, even if it is transparently lunatic as Marcy has demonstrated, can be presented to the faithful as the workings of good people in Government, to protect the Great Leader from the machinations of those who simply hate him. As the Great Leader can do no wrong, anyone who stands up to him must be evil. Watch for the moment when Judge Sullivan takes one of the steps he clearly must do, may already have in his amicus appointment, and someone will notice that he was appointed by Bill Clinton, ignoring his previous appointments by Reagan and Bush Senior. He then joins the ranks of the evil. One can only hope this has descended into such absurdity that the people who believe it will gradually reduce. But don’t bet on it.

        • Tom says:

          Yes, there is a certain religion vs. science flavour about the whole Flynn case with the Trump True Believers on one side and the traditional legal system on the other.

          Or perhaps Lewis Carroll’s “Through the Looking Glass” is a better comparison. After all, William Barr does bear a more than passing resemblance to Humpty Dumpty, who had this well-known exchange with Alice:

          “When I use a word [i.e., legal filing],” Humpty Dumpty said in a rather scornful tone, “it means just what I choose it to mean–neither more nor less.”

          “The question is,” said Alice, “whether you can make words mean so many different things.”

          “The question is,” said Humpty Dumpty, “which is to be master–that’s all.”

          Barr seems determined to heed his Master’s voice, regardless of the law and legal precedents or the best interests of the country.

          • John Lehman says:

            Mmmm…Lewis Carroll
            Might become a lesson for any misanthropic leaders of the world:

            Trumpty Dumpty sat on a wall,
            Trumpty Dumpty had a great fall
            All the King’s horses and all the Kings men
            Couldn’t put Trumpty together again

            Macabre origin of “Ring around the Rosy” seems to parallel covid 19 also.

            Oh, those British nursery rhymes.

            What’s the famous quote? (To paraphrase) History doesn’t repeat itself but it does rhyme.

    • timbo says:

      But what about the idea of “poisoned fruit” when it comes to all the wrong-doing that came to light if the investigation by the FBI is found to have never been justified to begin with though?

      • earlofhuntingdon says:

        There was never enough done improperly by the FBI in Flynn’s case to justify tossing it. The idea is defense counsel babble. The FBI’s investigation of the execrable General Michael Flynn – who had earlier been removed for cause as head of the DIA – was thoroughly justified. He should never have been within a mile of a top national security post in any administration.

      • vvv says:

        As well, keep in mind that the predication argument is being made, as I understand, about the Russian aspect of the Flynn investigation – pretty much completely ignoring the Turkey, kidnapping plot and other stuff (payments, foreign agent registration, etc.)

        • FL Resister says:

          I am not alone in wanting this shady move to dismiss to blow up in their faces and for Flynn to be held accountable for everything he has done.

  11. Just a railsplitter says:

    Marcy is spot on about the bothside-ism of the media and treating each scandal (indeed, each day) of this administration as a separate outrage.

    At the same time, I have to point out that it is very difficult for even a good journalist to keep the entire picture in view. This is the evil genius of Trump and his consiglieres – bury them in nonsense 24/7, issue conflicting statements every few hours, omit, lie, omit again, distort, threaten, insult, repeat. The sheer scale of this deliberately disorienting grotesque theater is unprecedented. It is directly taken from Putin’s playbook on how to use antics and theatrical performances to gaslight and disorient. This is why one sees otherwise good journalists breathlessly rushing to report many of Trump’s deliberately nonsensical, absurd and mind-bending statements.

    • earlofhuntingdon says:

      Then that’s the story, not what Trump says, which is as changeable as English weather.

    • Tom says:

      If you think of the Trump Presidency as an exercise in pointillism, too many reporters are seizing on the individual dots and dabs of colour rather than stepping back to take in and assess the big picture.

    • RMD says:

      I know journalists are used to covering the Trump administration as a series of independent outrages, each one drowning out a prior newly inoperative one. But in courts, statements from a given party are presumed to have continuity, at least until those statements are resolved legally. […]
      That’s all the more true within the span of one Administration.

      IANAL and the concept of continuity,, expresses the whatness behind a myriad observed behaviors and statements. The whatness of Trump. I feel like a disclaimer ought to accompany every single utterance and action of this *president*. All the more to call into sharper focus the broader pattern, the MO and organizing principle/philosophy. Journalists, it seems, are loathe to ‘make judgements’ and when criticized, fall back on, “I am just reporting the facts, the statements made.”

      Trump deviously exploits this.
      It is exceedingly frustrating to see it continue without some explicit disclaimer.

    • bmaz says:


      “But in courts, statements from a given party are presumed to have continuity, at least until those statements are resolved legally.”

      Lol, no, that is not a real thing.

      • puzzled scottish person says:


        It might not be a ‘real thing’ (that’s Faith No More, obviously) but it was RMD that quoted that, not railsplitter. Credit where it’s due.

      • RMD says:

        bmaz; I thought I included enough of Marcy’s statement to permit comment and usage.

        if continuity is not a ‘real thing’ in law, it is certainly part of pattern analysis.
        I was trying to get at the exasperating discontinuity imposed by media….as if statement made today has no connection to, continuity with, or bearing upon statements made before.

        But I would like you to expand a bit on the idea Marcy was touching on… if there is some legal corollary?

        • bmaz says:

          No, there is no such thing as “presumption of continuity”. It is maybe a general thing that courts expect, but not a legal principle unless you are referring to Islamic law. There “is” a “presumption of regularity” in law as to governments, though I am not sure that is a perfect fit for the assertion.

          • vvv says:

            Makes me think of the concept of “impeachment” – which has not been very successful here, also.

  12. punaise says:

    Lies of the fetid ilk, two by two
    Lies of the fetid ilk, two by two   
    Lies of the fetid ilk, two by two 
    Skip to mal où?, my darling

    Lies of the suo motu, shoo shoo shoo!
    Lies of the suo motu, shoo shoo shoo!
    Lies of the suo motu, shoo shoo shoo!
    Skip to mal où?, my darling  

  13. DaveC says:

    Barely on topic, and leaning towards conspiracy theory, but (Just Security, 5/15/20) is a good read, and certainly a credible concern. Somebody broke the law leaking to David Ignatius about the 12/29/16 Flynn – Kislyak calls. Whatever might have distracted from investigating that in the past, the source of that leak is clearly of intense interest now. Its somewhat surprising that there isn’t an active known Grand Jury investigation. Convening a Grand Jury for that now easily blends into Obamagate allegations. Hope that Grand Jury probes and possible indictments are not weaponized for political ends, but its almost certain there are those in the Trump campaign thinking about going that way.

    • harpie says:

      That is a good read, and Goodman cites Marcy:

      As Marcy Wheeler [link] and Ben Wittes [link] have explained, the intercepted call appears to be an FBI—not an NSA—product. That would stand to reason if Kislyak (the actual target of the surveillance) was in the United States at the time (thanks to Asha Rangappa for raising this important point).

      And, imo, the rest of your comment does NOT “lean toward conspiracy theories”…at all.


      Trump and Barr can be counted on to run the same playbook as they have before –a kernel of actual misconduct [the leak] will be distorted by the Trump team and their congressional and media allies to make it look like an array of other activities that were actually legitimate appear illegitimate. […]
      In the final analysis, “Obamagate” should be best understood as the scandal in which a president manufactured false accusations against former government officials, including his political rival, using the full power of the Justice Department [as you say: “Grand Jury probes and possible indictments”?] and Kremlin-style information warfare tactics to orchestrate it.

      • harpie says:

        Also, see comments just below, about POMPEO sacking [trying to SILENCE] the State Department IG.

  14. harpie says:

    Marcy retweeted Robbie Gramer:

    !!! Now Chairman of House Foreign Affairs Committee Rep. Eliot Engel says the State Inspector General was fired after opening an investigation into Secretary Pompeo “Mr. Linick’s firing amid such a probe strongly suggests that this is an unlawful act of retaliation”

    10:16 PM · May 15, 2020
    Another Inspector General fired on another Friday night. This one sounded the alarm about Giuliani’s manipulation of the State Department. [POLITICO]

    And, getting back to DaveC and my comments above:
    [twitter dot com] emptywheel/status/1261484467379752961
    10:31 PM · May 15, 2020

    Trump is working his way up to fire DOJ IG Michael Horowit, of course, for being the head of CIGIE, trying to impose some oversight over COVID relief, and not ruling that the Russian investigation was politically biased.

    • harpie says:

      Great thread on this by Walt Shaub:
      10:12 PM · May 15, 2020

      A word of caution to reporters covering the news of State Department’s inspector general: The law requires Trump to give Congress 30 days notice BEFORE firing him. Unless Trump has violated that law, what Trump did was give 30-days notice of an intent to fire the IG. […] [read the whole thing]

      [to the press] If, as you did with Maguire, you cover this story by saying Linnick has been fired, you’re repeating your mistake from the Maguire firing. Linick HAS NOT been fired. Saying he has helps Trump move through the news cycle quickly. COVER THIS AS THE START OF A 30-DAY COUNTDOWN! /7

      DO YOUR JOB! The assault on the IG’s is late-stage corruption, and Trump’s kicking down one of the last bulwarks that stand between us and the burgeoning corruption-driven authoritarianism.

      Cover it like you’re a foreign correspondent in a collapsing republic. Because you are. /8

        • harpie says:

          Here’s the answer:

          10:19 PM · May 18, 2020

          Openly gutting the 30 day period required by law or a covid thing? [WaPo link] [screenshot]

          From the article:

          But Linick has since been told that he is physically barred from returning to the State Department even to collect his belongings, complicating his ability to finish his work, said a U. S. official who like others spoke on the condition of anonymity to discuss internal policies.”

    • harpie says:

      NBC has excerpts of Trump’s letter to Pelosi, but no link…and NO mention of the law Shaub mentions, above:

      Trump fires State Department watchdog House Foreign Affairs
      Chairman Eliot L. Engel said the inspector general had been looking into Secretary of State Mike Pompeo.
      May 16, 2020, 12:24 AM EDT / Updated May 16, 2020, 1:27 AM EDT

      Trump wrote he “no longer” had full confidence in the State Department’s inspector general.

      “As is the case with regard to other positions where I, as President, have the power of appointment, by and with the advice and consent of the Senate, it is vital that I have the fullest confidence in the appointees serving as Inspectors General. That is no longer the case with regard to this Inspector General,” […]

      advice and consent of the Senate” is what Shaub is talking about in that thread linked above:

      milquetoast efforts by Grassley and others of Congress that vaguely expressed the mildest concern over Maguire’s firing as though they were really doing something. But that was a publicity stunt because that’s NOT what it looks like when they care. /3 […]

      • harpie says:

        Yeah, “that’s NOT what it look[ed] like when”

        10:56 PM · May 15, 2020

        Though Steve Linick has issued reports critical of the Trump administration as State IG, worth remembering that he played a very large role in the Hillary Clinton email saga in terms of sounding the alarms about classified email on her private server.

      • harpie says:

        This is a CORRUPT CRIMINAL CABAL infecting US.

        That is why
        whether or not John GLEESON wrote an op-ed.

        • Peacerme says:

          I study emotion regulation. We are a numb nation. We need to use anger. (The purpose of anger is to attack. Not power and control that would delegitimate our position, but pure anger. Disgust. Turn away from R messages. Disgust is to turn away. Turn away loudly. Fear: is there a threat to your life health or well being?? Hell Yes!! Fear is valid!!! We need to use it. Narcissists struggle to feel any feelings at all. So they make fun of emotion. They invalidate it. By using lies and manipulation of emotion to persuade. Dems need to use an emotional message. A clear message. Use emotion now. It’s is the only path to connection. We connect through emotion not facts. I love EW because her work is not emotional. It’s factual. Where do we connect most? Over music, sports and now cars!!! Art. Loose thinking. Expression. Feelings. When used effectively and combined with truth it is the atom bomb of effectiveness. We need to pull it together and prepare an emotional message packed with obviously valid points of life. (As if our lives depend on it!!)

      • harpie says:

        Here’s @nycsouthpaw with two screenshots illustrating the difference:
        12:03 PM · May 16, 2020

        1] Sen. Grassley when DOJ IG report on Carter Page FISA is delayed by two weeks vs.
        2] Sen. Grassley when State Dept IG investigating Secretary of State Pompeo is fired by Trump on Pompeo’s recommendation [screenshots]

        • P J Evans says:

          I’ve read elseweb that Linick was looking at Pompeo (and his wife) using staff members for personal stuff. (It was pointed out that when Pompeo ran the CIA, his wife was a “volunteer” there with a nice office and a staff of her own.)

          • OldTulsaDude says:

            Greg Sargent at the WaPo in an opinion piece wrote that the IG who was fired had been looking into the arms sale to the Saudis. That sounds a lot more like it that “aid walking his dog.”

      • RMD says:

        “checks and balances, oversight”… foundational principles in the Constitution have been shredded, torched, and jettisoned by the Trumpian Republican party.

        If you have tests you’ll get results…and that wouldn’t look good. So, We’ll get rid of testing.

        I am reminded of Regan’s deliberate, targeted elimination of the government team studying the causes and source of Acid Rain just before they were readying publication of their findings.

        When asked about acid rain, Regan replied, “We just don’t know what’s causing it, more study is needed.” [mumbling to himself, “study that will not ever see the light of day”]

        Republicans, industrialists and science….no, strike that. Not science bu …. Marketing! and stories, beautiful stories…and villans. Gotta have ’em. And we all know who they are.

    • harpie says:

      So Grassley has “responded”:
      Grassley Statement on Termination of State Dept. Inspector General
      May 16, 2020

      BUTLER COUNTY, IOWA – U.S. Sen. Chuck Grassley (R-Iowa) today released the following statement regarding President Trump’s announced termination of State Department Inspector General Steve Linick:

      “Here again, inspectors general are crucial in correcting government failures and promoting the accountability that the American people deserve. Mr. Linick led the State Dept. IG’s office after the position had been intentionally left vacant for the first four years of the Obama Administration.

      Although he failed to fully evaluate [link] the State Department’s role in advancing the debunked Russian collusion investigation, those shortcomings do not waive the President’s responsibility to provide details to Congress when removing an IG.

      As I’ve said before, Congress requires written reasons justifying an IG’s removal. A general lack of confidence simply is not sufficient detail to satisfy Congress,” Grassley said.

      Grassley is telling us exactly WHY Trump did this…possibly with Grassley’s blessing.

      • harpie says:

        Here’s the Semptember 12, 2019 announcement linked to above at he failed to fully evaluate [link] the State Department’s role

        Johnson, Grassley Push for Transparency Surrounding the October 2016 meeting between Christopher Steele and State Department Officials Sep 12, 2019

        State Department Office of the Inspector General failed to issue report on investigation into the October 2016 meeting between Steele, state department officials in run-up to the Carter Page FISA application. […]

        • harpie says:

          From the Grassley/Johnson September 12, 2019 letter to Linick:

          On May 9, 2019, we wrote to the Department of State (Department) seeking information about the October 11, 2016, meeting between Christopher Steele, Orbis Intelligence employee Tatyana Duran, then-Deputy Assistant Secretary Kathleen Kavalec, and then-Special Envoy Jonathan Winer, who arranged the meeting. Since that letter, we have learned that the Department provided your office information and documents related to that meeting. Our staff contacted your office to understand what actions, if any, the Office of the Inspector General (OIG) took after receiving the information and documents. […]

          There seems to be a LOT of feeding documents and information between Senate Staff and State Department.

          At the end of the letter, they give Linick until 9/26/19 to respond, but complain here on 9/12/19 that he hasn’t responded yet.

        • harpie says:

          And speaking of JOHNSON,

          1] 5/13/20 [twitter dot com] /SenRonJohnson/status/1260653630815789057
          3:30 PM · May 13, 2020

          We are making this information public and pushing for additional relevant disclosures because the American people have a right to know the full truth. [link to:] Johnson, Grassley Release Information About Unmasking of Americans

          2] TrumpTweetsToday: [twitter dot com]
          10:41 AM · May 16, 2020

          America is proud of Ron Johnson. He never gives up!

          3] Walt Shaub, today:
          4:30 PM · May 16, 2020

          Senator Johnson is the committee chair responsible for protecting the inspector general program. Last night, President Trump retaliated against yet another inspector general. What does Senator Johnson do about it? Thank the president for praising him.

        • harpie says:

          Earlier today:
          Senate committee plans vote on Hunter Biden-related subpoena
          05/13/2020 03:25 PM

          […] According to a memo obtained by POLITICO, the Senate Homeland Security Committee plans to vote next Wednesday on Chairman Ron Johnson’s request to issue a subpoena to Blue Star Strategies, a Democratic public-relations firm, as part of the panel’s probe of corruption allegations against Hunter Biden and the Obama-era State Department. […]

          Marcy notes:
          5:26 PM · May 16, 2020

          It doesn’t get enough attention that this is the HOMELAND SECURITY committee.

          Not the Foreign Affairs Committee, or Banking. EVEN IF this were a real scandal, the investigation would be in the wrong place.

          Meanwhile, Johnson has done nothing abt FEMA seizing supplies.

    • harpie says:

      via southpaw:
      11:35 AM · May 18, 2020

      Fox confirms that Hse Foreign Affairs Cmte Chair Engel asked outgoing State Dept Linick to in investigate whether Trump established a fake emergency in order to send arms to Saudi Arabia

      So…not about dog-walking and picking up the dry cleaning after all…

      [Thanks for fixing whatever went wrong! :-) ]

  15. OldTulsaDude says:

    The claim used to be that the office of the president will change Trump; however, 3 1/2 years in, we find that all that has happened is that Trump has shrunk the office of president until it is as small and meaningless as he is.

      • OldTulsaDude says:

        Nice article, but I have to take exception to this quote: “Such facts hardly matter to a president energized by the prospect of combat with both real and imagined enemies.”

        Trump is only “energized” by imaginary combats with imaginary enemies as those victories are easy to produce with a tweet. Reality is different matter altogether.

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