HJC Should Ask Bill Barr Why It Would Do Irreparable Harm if He Had to Explain His Actions in the Flynn Case

Unless he comes up with some new excuse, tomorrow Billy Barr will finally show up for an oversight hearing in the House Judiciary Committee.

There are a number of sets of questions that commentators have suggested for the hearing (a strategic set of four topics that will show how Barr is hurting the US, an updated set from JustSecurity, some questions about Geoffrey Berman’s firing).

I could come up with similar lists. They’d be long and — by the time anyone executed them competently on the Democratic side — the big media outlets would have already filed their story on the hearing.

One thing that should be included, however, is the letter that Sidney Powell sent Barr and Jeffrey Rosen in June 2019 and Bill Barr’s actions to deliver on her demands in the subsequent year, actions that DOJ itself admits would do irreparable harm if DOJ had to explain.

The letter was effectively a road map of demands, many of them based off hoaxes, almost all of them unrelated to Flynn’s prosecution or false. It later became the Brady demand that Judge Emmet Sullivan rejected in a meticulous opinion last December. In it, Powell demanded that DOJ conduct a review of the prosecution and then dismiss the prosecution.

At the end of this internal review, we believe there will be ample justification for the Department to follow the precedent of the Ted Stevens case and move to dismiss the prosecution in the interest of justice — whether it be we ink a simple joint motion or sua sponte by the Department.

NYT wrote about this letter in June, calling it “little noticed” but predictably not crediting me, who did noticed it and wrote about it repeatedly.

HJC should raise this letter with Billy Barr for several reasons. First, little in the letter turned out to be true. Indeed, DOJ has asserted in court filings that even where documents Powell asked for existed, none of it was Brady material (and in fact, in spite of Timothy Shea’s claim that these materials were new, that was false, meaning DOJ has no justification for flip-flopping on its call for prison time for Flynn from earlier this year). Powell should have gotten none of it, and yet Barr invented an unprecedented process to give it to her and then use it to self-sabotage the case.

More importantly, the way in which Barr has rolled out the release of these documents has served, in part, to hide the shoddiness of Timothy Shea’s motion to dismiss. Based off a misrepresentation of Bill Priestap’s notes, Shea pretended that the interview with Flynn focused exclusively on the Logan Act. That wasn’t even an accurate reading of Priestap’s own notes. Since then, DOJ has released several more documents that make it clear FBI’s focus was on whether Flynn was a foreign agent (and also provide more evidence that the Flynn 302s track the Agents’ description of the interview), documents that undermine their own motion to dismiss. They’ve either withheld a Bill Priestap 302 explaining what happened or Powell has decided it doesn’t help her. And there are more records that they are sitting on that undermine the claims in their motion to dismiss.

Importantly, while DOJ was making claims that Flynn’s lies were not material, John Ratcliffe was releasing documents that explained why they were.  Of particular note, on February 14, 2017 — weeks after all the meetings DOJ has been focused on, Peter Strzok, in an annotation that made it clear he did not have it in for Trump or his flunkies, also made it clear that FBI didn’t have any phone records yet.

We have very few call logs. NSLs have been issued for Manafort, Page, and Flynn, many of which have not yet been returned.

On February 25, notes from Tashina Gauhar make clear, Strzok and Joe Pientka believed Flynn didn’t believe he had been lying. They also judged — not having phone records or much else yet — that they did not think he was an agent, but they needed to verify that.

That got translated into a later draft summary into a conclusion that Flynn wasn’t a foreign agent.

But as FBI would get first call logs (which would reveal Flynn had also lied about being in contact with Mar-a-Lag0) and then his texts (which would make it clear Flynn knew well about the sanctions Obama had imposed), that would dramatically change the import of his lies. By the time he started cooperating, Flynn made it clear that he and KT McFarland had immediately set about trying to cover up the response Sergey Kislyak gave to Flynn’s request.

After the briefing, Flynn and McFarland spoke over the phone. 1258 Flynn reported on the substance of his call with Kislyak, including their discussion of the sanctions. 1259 According to McFarland, Flynn mentioned that the Russian response to the sanctions was not going to be escalatory because they wanted a good relationship with the incoming Administration.1260 McFarland also gave Flynn a summary of her recent briefing with President-Elect Trump. 1261

The next day, December 30, 2016, Russian Foreign Minister Sergey Lavrov remarked that Russia would respond in kind to the sanctions. 1262 Putin superseded that comment two hours later, releasing a statement that Russia would not take retaliatory measures in response to the sanctions at that time. 1263 Hours later President-Elect Trump tweeted, “Great move on delay (by V. Putin).” 1264 Shortly thereafter, Flynn sent a text message to McFarland summarizing his call with Kislyak from the day before, which she emailed to Kushner, Bannon, Priebus, and other Transition Team members. 1265 The text message and email did not include sanctions as one of the topics discussed with Kislyak. 1266 Flynn told the Office that he did not document his discussion of sanctions because it could be perceived as getting in the way of the Obama Administration’s foreign policy.1267 [my emphasis]

KT McFarland’s 302s would show she told the same untruths that Flynn had told, even after he got fired for telling them. More recently, it became clear that the White House scripted Bannon to deny discussing sanctions as well.

Meanwhile, the government is still withholding the first (known) post-election transcript between Flynn and Kislyak, where he first started this game of deal-making with the country that just attacked us.

All these details may not amount to Flynn acting as an Agent of Russia.

Rather, they amount to a concerted cover-up of the White House role in this sanction discussion. That’s a topic that a sentencing memorandum approved by top people in Bill Barr’s DOJ argued was significant and material, because a concerted effort to undermine sanctions on Russia, “could have been evidence of links or coordination between the Trump Campaign and Russia.”

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.

The concerted effort to hide the extensive coordination on sanctions — involving at least Flynn, McFarland, and Bannon — was designed hide whether the Trump response to Obama’s sanctions amounted to the kind of quid pro quo Mueller was appointed to investigate. A question on sanctions relief is the single one that Trump totally blew off in his responses to Mueller.

DOJ wants to claim that Flynn’s conversations with Sergey Kislyak were totally normal. But not only are they still hiding at least one of them, but they were utterly material to the Mueller investigation.

But then there’s the final reason why HJC should question Barr about the letter from Sidney Powell that he apparently delivered on a year after she demanded: DOJ itself admitted that explaining DOJ’s actions here would do irreparable harm.

The more interesting argument came from Wall. He argued, repeatedly, that DOJ will be irreparably harmed if Sullivan is permitted to hold a hearing on DOJ’s motion to dismiss. In particular, he seemed horrified that Sullivan might require sworn declarations of affidavits.

As Beth Wilkinson, arguing for Sullivan, mentioned, neither Sullivan nor Amicus John Gleeson has called for such a thing. Both are simply moving towards a hearing scheduled for July 16. Wilkinson also noted that District courts hold such hearings all the time. (And they predictably will have to in another case where DOJ has moved to end a prosecution recently, in which — unlike this case — there appears to have been prosecutorial misconduct, Ali Sadr Hashemi Nejad, which I’ll return to).

Wall is literally arguing that DOJ will be permanently damaged if it has to show up and answer for its actions in this case (in particular, to explain why the prosecutors in this case didn’t sign the motion to dismiss).

That Wall argued so forcibly as to the injury that DOJ would suffer if it had to show up and defend its motion to dismiss is all the crazier given that they didn’t file the petition. The only harm that matters here procedurally is any harm to Flynn, not DOJ, and Powell really made no such case.

Indeed, that’s the reason why the DC Circuit granted mandamus in the Flynn case — not because of any injury that Flynn might face from having Sullivan scrutinize the case, but because having to answer for what Barr did here would — simply having to show up to the kind of hearing that DOJ shows up to every day and answer questions under oath — would do grave damage to DOJ.

HJC should take DOJ at its word. DOJ has confessed their actions can’t withstand the least amount of scrutiny. HJC should demand to know why.

51 replies
  1. Rugger9 says:

    Well, I see two possibilities, neither of which involves AG Barr answering questions from in his mind contemptible congressmen. One is that the recent uptick in violence (noting that Richmond VA said the BLMers were white supremacists, a classic Soviet tactic of agent provocateurs) will require AG Barr to send his regrets until calm is restored. The other is that AG Barr shows but is afflicted with the strange CRS (can’t remember stuff) disease that has been affecting GOP types since Reagan and Iran-Contra.

    So, HJC really should bill this as AG Barr’s chance to avoid being impeached by explaining his actions. Barr won’t, so Nadler needs to tee up the impeachment motion as soon as AG Barr leaves the committee room / Zoom meeting.

  2. tinao says:

    Excellant work Marcy! Now, if every damn legislator that is going to be in that room would read and understand what you have just laid out, maybe we could have an INFORMED hearing where grand standing, stupid, russian fed idiots, will understand what their criminal negligence and lies are doing to our institution of justice.
    Even from the Green Isle you are a national treasure!

  3. earlofhuntingdon says:

    Admitting that public disclosure of its conduct would irreparably harm the DoJ is an admission that the DoJ has already caused irreparable harm. The harm has occurred and may be ongoing. But rather than admit wrong and make amends, the DoJ wants the DCC to help hide that conduct and hold, in effect, that it not be liable for the harm it caused.

    A public admission by the DoJ that it has caused irreparable harm is a rare thing. Analogizing with obstruction cases, why go there, if not to hide something worse, which is what the DoJ really wants the courts to protect from disclosure. The most likely something worse is irreparable harm done by and for the President.

  4. FL Resister says:

    So if the “irreparable harm” is that AG Barr is Trump’s toady we can safely assume that exposing Barr will remedy the DOJ’s harm from this act of bad faith.

    • BayStateLibrul says:

      Can he take the 5th?
      I hope Nadler has been prepped for the bullshit and R’s sweet shenanigans. I’m not hopeful unless Barr is given a truth serum

      • Coyle says:

        I’m not hopeful unless Barr is given a truth serum

        He probably wouldn’t survive — too much of a shock to the system. (Which of course is all the more reason to administer it.)

      • bmaz says:

        1) Can he take the 5th? Yes, of course, any criminal defendant can.

        2) Nadler. Nadler is not prepped for diddly squat, and even if he was, Pelosi and Hoyer would NEVER let him go there.

        3) So called “truth serums”, like polygraphs, may not work on psychopaths.

        • AndTheSlithyToves says:

          “3) So called “truth serums”, like polygraphs, may not work on psychopaths.”
          …or reptiles.

        • dadidoc1 says:

          I get the feeling that this hearing will be more Congressional theater with lots of posturing and not much accomplished.

          • bmaz says:

            Sadly, I think you are right. If Barr even shows up, I will bet he never answers, to any reasonable degree, any question propounded to him.

            But the House Dems, at least those in control, fully understand and are acting like it. This starts with Pelosi, Hoyer and Jeffries. As I have said for a very long time.

            • Hika says:

              And therein lies the unfortunate grain of truth in the “both sides are just as bad” baloney.

        • vvv says:

          I have to admit to a belly laugh picturing Barr taking the 5th, and all that might happen thereafter.

          “Any criminal defendant can”, indeed.

      • earlofhuntingdon says:

        Bill Barr’s arrogance and contempt for Congress knows few bounds. He is a master at the non-answer, who can prevaricate for minutes over whether he considered, thought of, intended, etc., without ever getting to the action verb. No one on Nadler’s committee who could wear him down and it would not consider holding him in contempt. He would never need to take the Fifth.

        • Peterr says:

          Eric Swalwell strikes me as best suited to take on Barr. As a former prosecutor, he knows how to argue and build a case, and from his other seat on the Intelligence Committee, he’s well aware of the intelligence community issues involved here.

          Whether he’d get enough time from his colleagues to do any damage is another issue.

  5. BobCon says:

    “I could come up with similar lists. They’d be long and — by the time anyone executed them competently on the Democratic side — the big media outlets would have already filed their story on the hearing.”

    This serves as one more reminder that standing House rules for hearings need to be changed for the next session of Congress. The old five minute ping pong rule was designed for an era of relative comity and significant amounts of aisle-crossing. The GOP in 2021 is going to be significantly worse than the past two years.

    Next year there is going to be at least one open *anon conspiracy theorist in the House GOP, maybe more, and GOP sympathizers on top of the open ones. They will be disrupting hearings under the current rules and pushing conspiracy theories that make Louie Gomert look like a mainstream centrist. These outbursts will be catnip for the DC media, and they will drown out legitimate oversight.

    The House will have a pressing need to call in Trump officials next year to get to the bottom of their schemes. But the likely disappointment of Nadler’s hearing tomorrow is going to be a template for next year if the House Democrats don’t end business as usual.

    • FL Resister says:

      Unfortunately this hearing is held by the House Judiciary Committee chaired by the cringe-worthy Jerry Nader whose best days are behind him so I don’t hold much hope for the outcome unless Adam Schiff, Val Demings, and Hakeem Jeffries will be there to ask questions of Mr. Barr.

  6. rosalind says:

    if Barr shows, it will be solely to provoke a confrontation to be used in Trump teevee ads while smugly blowing off any and all D questions while wearing his “daring us to slap him into tomorrow” smirk.

    • MB says:

      I’m sure he’ll be making his best effort to further his “history is written by the winners” philosophy…

    • Savage Librarian says:

      I say “y” and you say “i.” But, hey, it’s only one little letter now, isn’t it.

  7. earlofhuntingdon says:

    I was struck by this nice explanation about the law of defamation, regarding a newspaper’s ability to publish without liability a witness’s statements. The context is the recent settlement of the WaPo – Sandmann litigation. It made me wonder how the news media could publish anything said by Donald Trump. https://twitter.com/RespectableLaw/status/1287597298881634304

    “A newspaper can report what a third-party said unless it knew the third-party was lying or if the newspaper knew the third-party was so chronically unreliable that nobody would ever believe them about anything.”

    Different rules apply, I suppose. But if the underlying rationale is the same — is the speaker generally regarded as credible or has he a willingness to make up shit about anything, anytime, for any reason, if it results in a slight advantage — the result should be similar.

  8. civil says:

    Some members of Congress are skilled questioners, but I’ve generally been frustrated by how MoCs spend their time in hearings, which is too often a combination of self-indulgent statements and poorly framed questions. I wish there were some public site where members of the public could contribute questions, where they were all combined/organized by clusters. Yes, I know that some people already publish questions (like Dr. Wheeler did here and linked to elsewhere) and that people can and sometimes do write our own MoCs with questions we’d like asked. And I recognize that a single site would make it easier for the person testifying to prepare to avoid questions seen in advance, if that’s the person’s goal. But overall, I still think we’d get better questions and more info with a public site combining questions from lots of different people. And for those witnesses who aren’t trying to avoid answering, being able to read a larger set of questions could help them think about info to include in their written testimony.

    As an aside, here’s the written testimony from tomorrow’s NRC hearing re: “Unanswered Questions About the US Park Police’s June 1 Attack on Peaceful Protesters at Lafayette Square” – https://naturalresources.house.gov/hearings/unanswered-questions-about-the-us-park-polices-june-1-attack-on-peaceful-protesters-at-lafayette-square

  9. Savage Librarian says:

    Barr’s opening statement for HJC is in the link below. But this is how I think many voters will actually hear Barr’s projection in his 3rd paragraph:

    “…I was going to do everything I could to get to the bottom of the grave…. I am simply the President’s factotum who disposes of criminal cases according to his instructions. Judging from the letter inviting me to this hearing, that appears to be your agenda today.”

    “Written Statement of AG Barr HJC 07 28 20”


    • AndTheSlithyToves says:

      “I am simply the President’s factotum who disposes of criminal cases according to his instructions.”
      But Trump denied giving Barr any order to this effect. So did Esper. And, for that matter, so did Barr.
      So many fables, so many untruths. What’s a psychopath to do?

    • earlofhuntingdon says:

      It is rare outside the Vatican for an Attorney General to publicly declare himself a mere factotum of a president, there to dispose of cases as the president sees fit. It is an admission of malfeasance and refusal to perform his constitutional role, which is normally left unsaid. Bill Barr knows that.

      Barr is performing a ritual adverse possession on behalf of the executive. He is redefining the AG’s job according to his perverted notions of executive power – and daring the rightful owners to eject him from it. It’s one more reason Biden needs to work on reform as well as recovery. As with hurricanes and Puerto Rico, the next Bill Barr will come along to finish the job, it’s only a question of when.

      • Tom says:

        My reading of that quote from Barr on page 1 of his statement is that he’s actually denying that he is “the President’s factotum who disposes of cases according to his instructions.” Instead, Barr is claiming that this is the construction put upon his actions by the Democrats “to discredit me”. In other words, Barr denies that he handles cases according to Trump’s wishes.

        • earlofhuntingdon says:

          You’re correct. Barr denies that characterization, which seems to be a Nixonian Big Lie, so big it’s hard for the average person to identify it as a lie.

        • Savage Librarian says:

          Yes, I just wanted to cue up some valuable lines for a potential Lincoln Project ad or facsimile. The truth is there in his own voice. He shouldn’t be able to hide from that. In fact, this is exactly the kind of technique Barr admires and employs in his own historic work product.

  10. sand says:

    If Barr appears at the Judiciary hearing, Adam Demarco will be testifying simultaneously to the Committee on Natural Resources. I’d like to see House members ask Barr simple questions regarding his actions and knowledge in Lafayette Square. It seems there are multiple highly credible witnesses that are able to contradict the admin’s current story. I’d like to see Barr answer some simple questions about what he did that day, realizing that DeMarco will be testifying at the same time. Who gave the on-site orders to Park Police, BOP, Secret Service, and what were those orders? What did Barr say to anyone on site? What force was authorized, when, and why? Keep it tight and simple so that the options for reasonable answers are as limited as possible.

  11. Eureka says:

    This comment relates to the Barr-Trump admin threats to send federal forces to various cities.

    First, as background, EW retweeted:

    ACLU: “Further, contrary to the rhetoric coming from the Trump administration, our analysis found no evidence of any spikes in crime in any of the 29 locations, even when comparing monthly trends over the past two years. [graphs]”

    Are folks in targeted cities seeing any strange new crimes reported which might fluff the rhetoric a bit? Today it was reported that four Philadelphia police cars were serially arsoned, out of the blue of recent activity (i.e. the rioting/looting type stuff was mainly back at the end of May /early June), but done in Center City and West Philly (loosely, where such problems had occurred).

    No suspect info yet; someone on video they want to talk to.

    But when the May-end rioting/looting happened, someone caught on video burning a police car was indicted on _federal_ charges. Given non-protester agitators documented destroying property during the initial demonstrations across the country, it’s surely no stretch to imagine provocateurs/base types ginning up trouble to provoke the “need” for Trump to send “help.” No clue if such applies in the recent incident, though, generally, Schiff’s recent warning about “new” types of foreign interference might apply to stoking this kind of trouble — of a more physical nature as opposed to keyboard warriorhood and voter depression/suppression.

    Several police cars set on fire overnight across Philadelphia

  12. Pragmatic Progressive says:

    HJC seriously needs to move to convene an impeachment investigation into Barr’s conduct at the outset of the hearing. He must be pressed to provide sworn testimony regarding the impact of POTUS “whishing well” an alleged child abuser/sex trafficker right after they were denied bail immediately after commuting the sentence of Stone– a prosecution that Barr himself described as righteous.

    And then Barr must be made to explain why he issued a public statement that USA Berman was leaving which was proven to be a false statement.

    The entire premise of his prepared written remarks is that he is operating independently of 45, but the Berman departure provides clear and convincing evidence to the contrary.

    Hopefully the HJC won’t take the bait and spend all the time discussing the horrors of the U.S. deciding to turn on her own people at home. You can bet Barr has a stable of Oliver North types lined up to take the fall if needed. His stomach turning statement littered with dog whistles should not be allowed to distract from what is so clearly out in the open.

    • earlofhuntingdon says:

      Don’t forget the pony.

      According to Bill Barr’s opening statement, he is not acting independently of the president. He is the president’s “factotum” – Latin for bag carrier – who “disposes of criminal cases [and defendants] according to his instructions.”

    • vvv says:

      They did Berman and Stone as well (pretty good) as could be expected, perhaps, but aside from a snide insult re Epstein, didn’t seem to go there, at least that I heard (watched the whole thing).

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