Billy Barr’s OLC Declinations

The NYT reported yesterday that, in a bid to retroactively exonerate the President, Billy Barr pursued ways to overturn the campaign finance conviction of Michael Cohen.

But Mr. Barr spent weeks in the spring of 2019 questioning the prosecutors over their decision to charge Mr. Cohen with violating campaign finance laws, according to people briefed on the matter.

As part of that effort, Barr got the Office of Legal Counsel to write a memo (though not a formal opinion) about the applicability of criminal campaign finance law to efforts to squelch public information.

At one point during the discussions, Mr. Barr instructed Justice Department officials in Washington to draft a memo outlining legal arguments that could have raised questions about Mr. Cohen’s conviction and undercut similar prosecutions in the future, according to the people briefed on the matter.


The New York Times reported previously that Mr. Barr had questioned the legal theory of the campaign finance charges against Mr. Cohen, but it was not known that the attorney general went so far as to ask for the draft memo or had raised his concerns more than once.

The memo, written by the Justice Department’s Office of Legal Counsel, addressed the Southern District’s somewhat novel use of campaign finance laws to charge Mr. Cohen. Before Mr. Cohen’s guilty plea, the only person known to face criminal charges for payments meant to keep negative information buried during a political campaign was the former senator and Democratic presidential candidate John Edwards, who was not convicted.

Mr. Barr argued, among other things, that such cases might be better suited to civil resolutions by the Federal Election Commission than to criminal prosecutions, according to people with knowledge of the discussions.

Mr. Cohen, who reported to prison in May 2019, was recently released on furlough and is currently serving his sentence at his Manhattan home, after citing health concerns related to the coronavirus.

There is no indication that the Justice Department planned to issue a formal opinion on the campaign finances charges. Such a step, if taken, might have raised questions about the validity of the case against Mr. Cohen and affected any future effort to investigate Mr. Trump or others in his circle for similar conduct.

The news that Barr got OLC involved in criminal charging matters has repercussions on several other levels.

First, it means that potentially before Mueller finished his report, OLC would have established new ground on campaign finance crimes. That’s important because two of the declinations in the Mueller Report involve Trump’s acceptance of campaign dirt from foreigners — both the people at the June 9 meeting, and Roger Stone’s apparent optimization of the WikiLeaks releases. While that’s a different application of campaign finance (and not one that’s a clear cut case), OLC’s involvement on one application before the Mueller Report release opens the possibility that Steve Engel similarly weighed in on another, with direction from Barr about what they should decide.

Add in the fact that Engel, along with PDAG Ed O’Callaghan, did the analysis behind Barr’s decision to decline to prosecute Trump for obstruction of justice. It would be inappropriate for OLC to make a prosecutorial decision in any case, all the more so given that OLC has an opinion saying that no one DOJ should be making such decisions at all. Now add in the fact that Engel must have weighed in during the weeks leading up to this decision about campaign finance issues.

It’s now widely agreed (though was always clear from the public record) that Trump lied in his responses to Mueller about his conversations with Roger Stone about WikiLeaks. And his hints that Stone would be pardoned are one of his most obstructive acts. Effectively, then, Engel would be playing both sides of the prosecutorial decision, setting the rules and then applying them, which isn’t how justice is supposed to work.

Finally, consider that the Stone prosecutors were prepared to introduce Stone’s lies to HPSCI about coordinating with Trump on his campaign efforts as 404(b) evidence (effectively to show that his lies were systematic). That Stone was coordinating (he kept asking Rick Gates for lists, which should have been purchased from the campaign, and he asked Steve Bannon to get him funding from Rebekah Mercer during the period when Bannon was running the campaign) would seem to be a campaign finance issue. This is another matter that OLC’s review of campaign finance may have implicated.

It’s not just that Barr went out of his way to make it legal for outsides to pay to suppress bad news, but it’s that he’s secretly rewriting campaign finance law in ways that may have wider implications. And by doing so, Barr may have limited other prosecutorial decisions implicating Trump.

80 replies
    • earlofhuntingdon says:

      Soon after Donald Trump admits a mistake. When you’re doing God’s work, malign treatment is a mortal’s lot.

      • John Lehman says:

        “ Soon after Donald Trump admits a mistake.”
        Ya right…never… may he rot in hell until we all feel sorry for him.

        • John Lehman says:

          Alright…so how long will he and his minions have to rot in hell until they realize they are not doing God’s work?

          Sorry, you got me going.

        • Yargelsnogger says:

          It will take about as long in hell for his minions to realize they are not doing god’s work as it will take for me to begin feeling sorry for them. IE: Sometime after all the black holes left in the universe have evaporated.

  1. earlofhuntingdon says:

    There’s always a lot of housekeeping a new president wants to do, even more so when he takes over the presidency from the other party. That will be especially true at the DoJ. Bill Barr will have left a mountain of elephant scat on the DoJ’s floors. Joe Biden will need a credible dedicated reformer as Attorney General.

    This is also true for other agencies: Trumpies have posted virtual “For Sale” signs on many of them. (And DHS needs wholesale restructuring for other reasons.) But DoJ is a linchpin that keeps the wheels of other agencies from coming off.

    There are several political heavyweights who might fit the bill as AG. But people are the foundation of commitment as well as policy, which makes sub-Cabinet-level appointments just as crucial. Dawn Johnsen, for example, would make a fine Deputy AG. That post runs the department’s day-to-day operations. Mind you, it requires a Democratic Senate majority to do any of this, or we’ll face years of the Merrick Garland treatment for every important post.

  2. Rugger9 says:

    Maybe Kamala Harris since Val Demings isn’t a lawyer. The knock on Harris here in CA is that she was too “law-and-order” and deferential to the police (like Klobuchar was).

    • earlofhuntingdon says:

      Depends on Joe’s choice as his Vice President. More than is normal for any VP, his choice would be heir presumptive for the Democratic nomination four years later.

    • Troutwaxer says:

      I’m not a big fan of Kamala Harris, but I can see her as Biden’s Attorney General, with a brief to chase down Russian moles and politicians who commit crimes.

      • bmaz says:

        You have to be kidding me. Harris as VP is not perfect, because she will not energize the progressive side of the base, but she is a very good politician and competent to stand and deliver.

        The last place in the world anybody should ever want Kamala Harris is as AG. That is the worst scenario in the world. She was fucking horrible as a DA and then AG in California. Harris’ history as a “prosecutor” is despicable. She is a good politician, and fine as a VP, though far from perfect. But as AG, hell no.

        • bmaz says:

          No, she is not even a lawyer, much less experienced in the DOJ. After Trump and Barr, you want someone with serious institutional knowledge of DOJ that can return a sense of framework and normalcy, before you even think about reform. Maybe somebody like Marty Lederman.

        • Dana says:

          Because of the relatively recent climate around law enforcement, Harris is seen as less than admirable. In her day,she was the aggressive DA and AG everyone wanted. She has the doggedness and strength to be the AG to get to the bottom of all things Trump.

        • vvv says:

          Perhaps not as much a part of her political persona, but another former prosecutor (but notably with an actual George Floyd case controversy of her own – she previously declined to prosecute the offender cop), is Amy Klobuchar. Or is Berman or Preet looking for a job? ;-D

        • bmaz says:

          Well, hi there “Dana”. Aren’t you the one that last time you popped in tried to spew some garbage about “Black Lives Matter” and “black lives matter” being completely different things? Yes, yes you are that person even though you try to mask it.

          As to Harris, thanks for the attempted edification, but I have known of Kamala Harris since she was the DA in San Francisco, long before she was AG for California. Her record in both jobs was fucking abysmal. And, no it is not that “everybody wanted it”. What a crock of shit.

          Also, I have been dealing with lying, abusive and murderous cops in my day job for over three decades, and you importuning it is because of “the relatively recent climate” shows you are either a troll or ignorant.

  3. Marinela says:

    Good point about Democratic Senate majority. So important.
    Giving the GOP base, no accountability when they obstruct, cannot wait to see if they are going to hold the majority.

    Even if Senate changes majority to dems, they need to be sharp and focused.
    Not sure Chuck S. would be the right person to lead, but let’s win it first.

    • AndTheSlithyToves says:

      Mitchell only had to cover up cheating and lying on a national scale (with the small bit of interference through Anna Chennault in SE Asia), whereas Barr is having to tamp down an election coup of international proportions.

  4. Tim says:

    This site is much more enlightening and deep than much of the rants one must endure at dKos.
    Thank you Marcy.

    • earlofhuntingdon says:

      Many of their “stories” are written by viewers rather than by a professional journalist like Marcy Wheeler. Their quality varies, and they lack continuity and depth – two of the exceptional characteristics of Marcy’s work.

      • gmoke says:

        Marcy Wheeler has a doctorate in comparative literature with an interest in and history with the business use of language. She may have become a professional journalist through her years of work parsing government documents here and at Firedoglake but she didn’t start out that way and, I believe, has little or no formal training in the field. What she brings to the party is a scholar’s eye and a clear understanding of the texts in front of her, both of which are hard to find even among the best journalists.

        Marcy Wheeler is invaluable because she don’t put up with crap and makes it explicit. Unfortunately, she’s proven just a tad too explicit for TV.

        • earlofhuntingdon says:

          A number of us have been reading Marcy since she wrote at The Last Hurrah, before FDL, so you’re preaching to the choir.

          I suspect her formal training in writing and in the analysis and abuse of the written word exceeds that provided at most journalism schools. That she does not mince words would make her anathema to the MSM, which prefers Shields & Brooks to actual opinion and news coverage. Its claim that she has a potty mouth – while true – is not while it normally refuses to have her on.

        • Rayne says:

          Fuck that add-on “unfortunately.” There’s a goddamn child rapist in the White House and he’s populated our government with his corrupt henchmen with the aid of a transnational organized crime syndicate. If media explicitly telling the public he grabs women by the pussy in his own words hasn’t been enough to put the brakes on this disastrous occupation, Marcy can’t be explicit enough.

          Question why cable TV isn’t being more explicit about Trump’s criminality when they can show explicit sex for entertainment.

        • bmaz says:

          Eh, gmoke is good. He was right about the original shunning, but Marcy has been back on numerous times. Mostly on Chris Hayes I think, but some others too. I even remember snoring on the couch once, and my wife walks by and goes “IS THAT MARCY??” Yes, yes it was, it turns out.

        • MB says:

          I used to see Marcy pop up occasionally on Democracy Now, up through the release of the Mueller report. Has she been on since? Ever since the David Cay Johnston vs. Glenn Greenwald debate segment about Russiagate, I think Amy’s been a little shy about taking sides, although she depends on Glenn still for explanations of the ongoing Brazilian debacle(s)…

      • P J Evans says:

        The “front pagers” are generally pretty good, and so are a number of those who aren’t. The rest are pretty much hit-or-miss. But Kos doesn’t exist to be a journalism site: it’s explicitly dedicated to electing more and better Dems, and the strong community grew up around it.

  5. curveball says:

    The smell test began and ended when Barr suggested to the SDNY that the Cohen matter would be better handled at the Federal Election Commission. The six-member bipartisan FEC would have done nothing. Could have done nothing. By Republican design. When it has a quorum they force the draw. When Republicans have the White House, they don’t fill vacancies, at least not with any of the required Democrats. Republicans had turned the FEC into a hamstrung, grid-locked burial ground for any regulation of elections – especially limits on money. See no evil, period. That effort was systematized when Don McGahan was appointed to the commission in 2008, along with Matthew Petersen, another Republican operative.
    Ah, the Federalist Society network. When McGahan was White House counsel, Petersen was nominated to be a federal trial judge in D.C. (Surely McGahan was behind it.) But Petersen had never, ever handled a matter in any court and totally bombed when asked during his confirmation hearing if he knew the meaning of “a motion in limine” or the “Daubert standard.” He had no idea. A million lawyers and law students rolled their eyes. Petersen’s nomination was pulled because of guffaw-fueled pushback.

    • Rugger9 says:

      No kidding, especially when one of the commissioners went to some kind of Koch Brothers gig leaving the FEC unable to continue its work. I’m sure that was an “accident”.

  6. vicks says:

    Here is a transcript and interview Steve Inskeep did with Barr for Morning Edition on NPR that ran yesterday.
    I heard part of it last night while driving, and listening to his voice, his tone, his manipulative wording I couldn’t shake the image of a cunning sociopath.

    • AndTheSlithyToves says:

      “I couldn’t shake the image of a cunning sociopath.”
      My vote goes to “psychopath”–born not made. (Don’t forget the Jeffrey Epstein connections through daddy dearest.) I’m still wondering how his friendship with Robert Mueller is going these days.

    • civil says:

      Agreed re: Barr, but I was also really frustrated with Inskeep. He didn’t ask good questions/follow-ups. For ex., Inskeep should have asked “Why did you want Berman out immediately, instead of nominating Clayton and having Berman simply continue as US Attorney until Clayton was confirmed?,” and when Barr said “New York is one of the preeminent offices in the Justice Department. The president had never made an appointment to that office,” he should have pointed out that Sessions appointed Berman as interim US-A and asked why Trump didn’t nominate anyone within 120 days or in the 3 years after the court appointed Berman, given SDNY’s “preeminence.” In the discussion of voting by mail, he should have asked what Barr’s evidence is of “fraud” in the states that already vote entirely by mail, whether he objects to the many people who already VBM for a reason other than what Barr found acceptable (“traveling around the world”): McEnany, seniors, etc., … And there are more examples like this. It astounds me that so many journalists aren’t better interviewers.

      • P J Evans says:

        The leading theory is that they don’t want to lose “access” to these oh-so-important people.

      • Molly Pitcher says:

        The real sin Inskeep committed was not regularly reading this site. When Barr prevaricated about Flynn’s guilt and having been treated badly by the FBI and his innocence, Inskeep neglected to point out that Flynn had plead guilty TWICE to the charges.

  7. OldTulsaDude says:

    Can the OLC be defunded by the House? I would like to see the OLC forced to be staffed by the opposition party but that would run into constitutional issues.

  8. Zinsky says:

    I’m not an attorney but I had business law in college. The intent to deceive (scienter) is at the heart of the crime that Cohen committed (at the bidding of Trump). Call it a campaign finance violation or call it a fraudulent books and records case, the fact Cohen set up a shell company and used his personal home equity line of credit to fund it, shows clear intent to deceive.

    • layperson says:

      Can someone please direct me to where in the US Constitution the executive branch is authorized to make a law or establish a judicial precedent by way of a Department of Justice (DOJ), Office of Legal Counsel (OLC) memo or formal opinion?

      Maybe I am mistaken, but it seems that a DOJ OLC memo or formal opinion is afforded by congress and the federal judiciary a force of law status reserved for presidential executive orders.

      When a confirmed officer or official of the DOJ OLC generates a memo or formal opinion that the executive seeks to have the force of law or to set legal precedent shouldn’t it then first require the president to put it in and sign an excecutive order saying so?

      What about be referring it to congress for submission into a bill to be passed and sent back to the president to be signed into law?

      Does the executive branch sidestep constitutional separation of powers when it generates a DOJ OLC memo or formal opinion then represents this legal instrument as having the force of law or establishing a legal precedent for the federal judiciary to be bound by?

      Who in congress or the federal judiciary or anywhere has legal standing to challenge the constitutionality of a specific DOJ OLC memo or formal opinion that is proffered by the executive branch to have the force of law or establish a judicial precedent?

      In other words, what recourse do congress and the federal judiciary have to deal with the executive branch supposedly making a law and establishing a legal precedent?

      Thank you for your patience with me for not getting this.

      • earlofhuntingdon says:

        Actually, only the Executive branch considers an OLC opinion as a binding and authoritative interpretation of federal law. It is often correct. It has also been wrong or damagingly self-serving, such as in its Nixon-era claim that a president may not be indicted while in office.

        The OLC can change its mind. (It rarely does.) The judiciary and legislature, OTOH, can ignore OLC opinions, agree with them, or make clear that the OLC has FUBARed the law and misinterpreted judicial precedent and/or congressional intent. To do that, it takes a judicial case or controversy and an opinion that survives appeal intact, or federal legislation.

  9. civil says:

    Re: the hush money payments, another legal issue is that Trump omitted his debt to Cohen on the financial disclosure form he filed in 2017. He tried to get away with not certifying it (“I CERTIFY that the statements I have made on this form and all attached schedules are true, complete and correct to the best of my knowledge”), but eventually did certify it after Walter Shaub — who hadn’t yet resigned from the Office of Government Ethics (OGE) — insisted. Then on Trump’s 2018 form, he claimed in a footnote that “In the interest of transparency, while not required to be disclosed as ‘reportable liabilities’ in 2016 expenses were incurred by one of Donald J. Trump’s attorneys, Michael Cohen. Mr. Cohen sought reimbursement of those expenses and Mr.Trump fully reimbursed Mr.Cohen in 2017.” It’s not true that Trump wasn’t required to report it. The OGE stated to the DOJ that “the payment made by Mr. Cohen is required to be reported as a liability [on Trump’s 2017 financial disclosure form]” ( ), and under the Ethics in Government Act, Trump could be subject to civil and/or criminal liability for knowingly omitting required information. Not that I expect the DOJ under Barr to pursue it.

  10. PhoneInducedPinkEye says:

    Would it make sense for Biden’s AG to appoint a bunch of special councils, maybe one for each executive institution, to dig into all this corruption? May help firewall the admin from accusations of political prosecutions, and will free up time and energy for the admin to focus on legislation.

  11. Vicks says:

    I had no idea that Barr was terrorizing the marijuana industry, what else do you suppose he has been up to?
    Trump’s working hard to pay down his debt to Putin by pulling troops out of Germany and looking the other way after learning Putin put in an order to have American soldiers killed. What do you bet Trump knows their identities?
    After 3+ years of watching democrats sitting on their hands as Trump built his power I hate to say it but I don’t think the Dems have what it takes to take this administration down on their own.
    And then along came Covid 19.

      • earlofhuntingdon says:

        That Lucian Truscott piece in Salon needs wider circulation. He’s been around the block a few times and has much to compare this administration with. Trump’s corruption is as unprecedented as his incompetence.

        Truscott’s comparison of Bill Barr to John J. McCloy (See, Kai Bird, The Chairman) is accurate and enlightening. Both were groomed to be senior courtiers to America’s elite. Both have done an admirable job at it. Seeming to be fair, likeable Wall Street gentlemen, they pursued the ends of wealth. That benefits accrued to anyone else was incidental, an error in the equation. Henry Kissinger, another courtier to power, who believed that lies in service to their cause were necessary acts of statesmanship, said of McCloy, “if we followed in his footsteps, we were in the path of doing God’s work.”

        Barr’s current assignment is to protect Donald Trump from the consequences of his corruption. That’s not because he has any great interest in Donald Trump. It’s because Trump occupies the Oval Office (when he’s not in bed inhaling McDonald’s sandwiches). Barr would dismiss criticism of the president’s crimes as he would the Donatists’ view that men must be faultless for their priestly ministry to be legitimate. Only God is perfect. Bill Barr’s religious fantasy rationalizations aside, he’s just a courtier for power, the more the better.

      • Vicks says:

        Thanks for the link
        Pretty scary when you think of the damage that can be done with the power that this administrations has built.
        I wonder if Barr is still using “I’m landing the plane right now” as a euphemism for covering Trump’s ass?
        At the time it didn’t make much sense when he used it to describe what he was doing with the Mueller report but lately, it couldn’t be more obvious.

  12. CD54 says:

    Was just reading late comments here about DOJ corruption/clusterfuck and heard my playlist on Billie Holiday’s “Moanin’ Low” — enough said.

  13. Mitch Neher says:

    Ms. Wheeler wrote, “. . . [Barr’s] secretly rewriting campaign finance law in ways that may have wider implications. And by doing so, Barr may have limited other prosecutorial decisions implicating Trump.”

    IOW, P. G. FUBARr is trying to prevent the indictment of “Individual 1” after “Trump” is out of office.

    P. S. I still think Trump has a pocket self-pardon that he hasn’t accepted yet such that not even Blinky Bill knows about it.

    Yes. All his love is in vain.

    • Mitch Neher says:

      When the train, it left the station
      With two lights on behind
      When the train, it left the station
      With two lights on behind
      Well, the blue light was my blues
      And the red light was my mind
      All my love’s in vain

    • Spencer Dawkins says:

      I’m more uninformed about the subject of my question than usual, but …

      If there’s a law
      And Individual-1 and a cast of hundreds break it,
      And Barr and his minions change DoJ policy about how it’s enforced,
      Does that matter beyond the time Individual-1 leaves office, or perhaps more accurately, Barr being replaced as AG?

      I would have thought that Individual-1 would be dead meat the moment a new AG says, “no, Billy Barr was wrong about that, here’s how we’re going to enforce that law in the real world”.

      The law, and the acts that seem to break the law, weren’t changed by Barr’s shenanigans, or am I confused about that?

      Thanks for clues in advance …

  14. Vicks says:

    Trump said he wasn’t going to New Jersey to play golf this weekend to “ensure law and order is enforced” in DC
    “The arsonists, anarchists, looters, and agitators have been largely stopped. .. I am doing what is necessary to keep our communities safe”
    Whatever he has up his sleeve (Trump bareback on a horse statue?) sounds like a ratings bonanza and I’ve been watching Fox “news” for over an hour hoping some footage, and nothing.
    They did keep talking about the need to wear masks as of their viewers had never heard of it before.
    Odd place, Fox “news” I should probably turn it off…

    • P J Evans says:

      So *that’s* what he was doing at his VA golf course today. Couldn’t possibly have anything to do with the forecast of rain and T-storms for Bedminster all weekend. /s

  15. Frank Probst says:

    “Add in the fact that Engel, along with PDAG Ed O’Callaghan, did the analysis behind Barr’s decision to decline to prosecute Trump for obstruction of justice. [link to memo in original]”

    I’m sure it’s been discussed previously, but I just found out about this memo today, and it’s worth noting that page 1 is heavily redacted and pages 2-8 (out of 9) are redacted entirely.

    • bmaz says:

      Sure. But keep in mind that there were two earlier, from different administrations, OLC opinions that gave them an easy track for this. It is “not” just this one. Now I have problems with the earlier ones, but they have never been retracted and are still sitting out there.

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