Bill Barr Defended Yevgeniy Prigozhin Last Night

While he didn’t do so explicitly and may not have the clarity of thought to even realize it, but in his screed at radical right wing Hillsdale College, Bill Barr effectively defended Yevgeniy Prigozhin’s attempts to interfere in American elections.

That’s because — in a speech attacking Robert Mueller’s work — he took an extended swipe at exotic interpretations of law.

In recent years, the Justice Department has sometimes acted more like a trade association for federal prosecutors than the administrator of a fair system of justice based on clear and sensible legal rules.  In case after case, we have advanced and defended hyper-aggressive extensions of the criminal law.  This is wrong and we must stop doing it.

The rule of law requires that the law be clear, that it be communicated to the public, and that we respect its limits.  We are the Department of Justice, not the Department of Prosecution.

We should want a fair system with clear rules that the people can understand.  It does not serve the ends of justice to advocate for fuzzy and manipulable criminal prohibitions that maximize our options as prosecutors.  Preventing that sort of pro-prosecutor uncertainty is what the ancient rule of lenity is all about.  That rule should likewise inform how we at the Justice Department think about the criminal law.

Advocating for clear and defined prohibitions will sometimes mean we cannot bring charges against someone whom we believe engaged in questionable conduct.  But that is what it means to have a government of laws and not of men.  We cannot let our desire to prosecute “bad” people turn us into the functional equivalent of the mad Emperor Caligula, who inscribed criminal laws in tiny script atop a tall pillar where nobody could see them.

To be clear, what I am describing is not the Al Capone situation — where you have someone who committed countless crimes and you decide to prosecute him for only the clearest violation that carries a sufficient penalty.  I am talking about taking vague statutory language and then applying it to a criminal target in a novel way that is, at a minimum, hardly the clear consequence of the statutory text.


The Justice Department abets this culture of criminalization when we are not disciplined about what charges we will bring and what legal theories we will bless.  Rather than root out true crimes — while leaving ethically dubious conduct to the voters — our prosecutors have all too often inserted themselves into the political process based on the flimsiest of legal theories.  We have seen this time and again, with prosecutors bringing ill-conceived charges against prominent political figures, or launching debilitating investigations that thrust the Justice Department into the middle of the political process and preempt the ability of the people to decide.

This criminalization of politics will only worsen until we change the culture of concocting new legal theories to criminalize all manner of questionable conduct.  Smart, ambitious lawyers have sought to amass glory by prosecuting prominent public figures since the Roman Republic.  It is utterly unsurprising that prosecutors continue to do so today to the extent the Justice Department’s leaders will permit it.

As long as I am Attorney General, we will not.

Our job is to prosecute people who commit clear crimes.  It is not to use vague criminal statutes to police the mores of politics or general conduct of the citizenry.  Indulging fanciful legal theories may seem right in a particular case under particular circumstances with a particularly unsavory defendant—but the systemic cost to our justice system is too much to bear.

He even ad-libbed a comment to more specifically attack Michael Dreeben, the top member of the Solicitor General’s office, who was a member of the Mueller team.

The Obama administration had some of the people who were in Mueller’s office writing their briefs in the Supreme Court, so maybe that explains something.

Mueller considered a range of exotic applications of law.

He considered charging Don Jr for accessing a private website using the password provided by people associated with WikiLeaks. But he didn’t charge the failson, arguing the intent wasn’t there.

He considered charging Don Jr. for accepting an offer of campaign dirt from a foreigner, Aras Agalarov. He didn’t charge it, in part, because Don Jr is too stupid to know that accepting campaign help from foreigners is illegal.

Mueller considered charging Roger Stone for accepting campaign assistance from foreigners Julian Assange and the GRU in the form of stolen emails. He didn’t charge it, in part for First Amendment reasons.

Every other charge, save one, was a routine application of law:

  • George Papadopoulos, for lying to the FBI about when he got offered campaign dirt
  • Mike Flynn, for lying to the FBI about undermining sanctions imposed on Russia for interfering in the election and lying to DOJ about having secretly worked for the Turkish government
  • Paul Manafort and Rick Gates, for money laundering, cheating his taxes, lying to DOJ on a FARA form, and (in Manafort’s case) trying to get witnesses to lie
  • Michael Cohen, for lying to Congress about the lucrative business deal Trump was chasing during the election
  • Roger Stone, for lying to Congress about a lot of things, including that he kept the campaign informed of his efforts to optimize the data stolen by Russian intelligence officers, as well as for threatening Randy Credico
  • Alex Van der Zwaan, for lying to the FBI about Gates’ ongoing ties to Russian intelligence officer Konstantin Kilimnik
  • Richard Pinedo, for stealing the identities of other Americans and selling them, including to Russian trolls
  • A bunch of GRU officers, for hacking the DNC and other targets
  • A bunch of paid trolls, for stealing the identities of American people and hiding their own true identity while paying for trolling infrastructure

The single indictment that Mueller brought that was a hyperextension of criminal law was against Yevgeniy Prigozhin, his trolls, his troll farm, and his shell companies for engaging in political activities in the US without registering; the theory of the case evolved over time to include getting unsuspecting Americans to engage in politics on behalf of foreign actors. Those are the charges that DOJ dropped (and I defended the decision, even though Barr’s rant makes me think questions about politicization may have merit). My suspicion is that Mueller charged it, in part, to be able to incorporate Prigozhin (and by extension, Vladimir Putin) into the indictment. But it was a stretch. Just what Barr says: a legal theory crafted — probably in part to establish a precedent for future tampering using social media — to go after a bad person, Prigozhin. The two subsequent complaints against Prigozhin’s trolls have not included the FARA charge.

But if Barr is speaking about Prigozhin, here, it raises real questions about why Interpol dropped the Red Notice against Prigozhin. Did Barr drop that request?

There’s one more investigation into foreigners helping Trump that Barr seems to be defending. Barr’s complaint that people in Mueller’s office wrote briefs for the Supreme Court also seems to suggest Barr disapproves of the Mystery Appellant case, which is understood to involve a bribe. That was the only case argued to the Supreme Court.

Mueller won that legal fight, even if the mystery foreign company who challenged a subpoena effectively avoided complying by lying anyway.

But by invoking Dreeben — one of the most respected Appellate lawyers in the country — Barr seems to be complaining that Trump might be investigated for accepting a bribe.

48 replies
  1. earlofhuntingdon says:

    Mr. Barr is against exotic interpretations of the law? Would that include an exotic interpretation of the FTCA, by having the DoJ take over the defense of a defamation suit against the president, relating to conduct that long preceded his presidency – other than his denial of rape – and substituting the United States for him?

    • earlofhuntingdon says:

      And charging protesters with sedition for exercising their right to speak, assemble, and petition their government? Is that what Bill Barr considers exotic?

      • subtropolis says:

        The projection is strong, as always. But I think that he is, primarily, laying the groundwork for his own PR defence. Should re-election fail he could soon become the target of a Special Prosecutor.

  2. BobCon says:

    The bit in that speech about the AG being accountable to Congress was a joke too.

    What he means is that the only brake on the AG (and the president who authorizes him) is legislation, which must specifically address the issue at hand — broadly worded laws don’t apply.

    In effect, Congress can only reactively rein in the AG after he acts, and only with a law passed by a veto-proof majority, and only after all challenges have been exhausted in the courts. In short, never.

    In Barr’s view, presidential powers are viewed expansively, so authority over foreign policy encompasses almost anything, and authority such as executive privilege need not be enumerated in the Constitution. Unwritten Congressional powers such as investigation, however, have no grounding in the Constitution.

    It’s a crackpot paranoid construct designed to let him assert the opposite of what he actually means, which is an authoritarian executive free to do anything he can get away with.

        • John B. says:

          Well, they did impeach him once, so she did go along with that. She’s hoping the election finishes him off. We all are.

        • earlofhuntingdon says:

          In a narrow, lackadaisical way that avoided documenting Trump’s greater crimes, yea.

          Had she taken a more aggressive approach toward impeachment, those crimes would have been better and officially documented and the task of voting Trump out of office might be considerably easier. It might also have made it easier to keep out of office in future those who helped him commit those crimes.

        • Timmer says:

          I have seen a number of post here critical of the recent impeachment effort. Will a kind soul please inform what would have most appropriate as charge(s). But please, I don’t want to be abused,again, by the person bmaz.

        • earlofhuntingdon says:

          Then this might be the wrong playground. The topic is too broad for a single comment. I suggest you start by skimming EW’s past posts about Trump’s impeachment. There are many.

        • bmaz says:

          She really did not. Pelosi forced the most constrained, limited and idiotic impeachment effort in history. And she intentionally did so to avoid proper use of impeachment investigatory powers, which is still being pointed out by courts noting that the House relies on legislative purpose basis standing as opposed to the almost unquestionable impeachment basis standing. Pelosi’s “impeachment” effort is one of the biggest and most derelict legislative cockups and jokes in our lifetimes.

        • subtropolis says:

          Those impeachment investigatory powers were shown to be pretty damned weak. It seems to me that she declined to go full pursuit for much the same reason that Mueller gave up on forcing Trump to appear in person, under oath — an acknowledgement that the delay wasn’t worth it.

        • bmaz says:

          Lol, they were NOT. Instead they were shown to be neglected by a derelict Speaker of the House. You are in the wrong location to pitch bullshit.

        • BobCon says:

          Pelosi has a lot of tools she could use, but won’t.

          I think the closest analogy I can think of is the NFL coach who goes conservative with a lead in the 4th quarter on the theory that having fewer points on the board is somehow better than having more.

        • Rugger9 says:

          All very good points here, and I think Pelosi’s trying to run out the clock without grasping the political usefulness of forcing the GOP to repeatedly vote on the record to condone crimes.

          Don’t think for a minute that if the roles were reversed that the GOP would pass up this opportunity, remember how many times they looked at Benghazi (and still call it up as a boogeyman even though the GOP starving of the State Department security budget is why this happened) or Seth Rich or Whitewater.

          Pelosi already has hundreds of bills on McConnell’s desk, she doesn’t really need to pass more legislation (aside from COVID support and the budget since the FY starts in about 2 weeks). So, she has legislative time to do this.

        • earlofhuntingdon says:

          LOL. And not analogous situations. But Mueller did underestimate the deep cynicism and unconstitutional authoritarianism of his former colleague.

  3. drouse says:

    So the criminalization of politics trope makes its appearance again. That’s the line the Bushies used when people started pointing out that their policies were violating the law. Which they did in ways both large and small. Because there was no significant accountability imposed, they feel free to trot out the same old shit once again.

    • Rugger9 says:

      The Bushies also had a policy of burrowing their supporters into civil service which is paying off for the GOP as well.

  4. Spencer Dawkins says:

    “To be clear, what I am describing is not the Al Capone situation — where you have someone who committed countless crimes and you decide to prosecute him for only the clearest violation that carries a sufficient penalty.”

    It’s odd, how Al Capone bubbled to the top of Barr’s mind. That’s also a name that comes to my mind, when we’re talking about Donald Trump.

    One wonders what the US government would have done if the jury had acquitted Capone for tax evasion, the way the US Senate did not convict Trump for the charges in his impeachment … we did think those were the clearest violation(s) that carried a sufficient penalty.

    • earlofhuntingdon says:

      A lot of us thought the House’s list of impeachable offenses was not sufficient, and did not identify “the clearest violation(s) that carried a sufficient penalty.” Leadership did not craft an indictment so much as write a simple Hollywood through-line, which it thought would be easy to follow.

      That left out Trump’s highest crimes and misdemeanors, including his systemic abuse of power and other assaults on government. Given that the GOP-controlled Senate was unlikely to convict this ham sandwich for any crime, that narrow indictment was a lost opportunity to document the crimes of the most corrupt president ever to hold office. It’s an analog to the DoJ not investigating Trump’s financial crimes that comprised the center of his web of corruption.

      • Chris.EL says:

        ianal (duh)

        suppose Pelosi (correctly) sized up the opposition (number of Republicans in the Senate) and saw the impeachment effort as a no-win exercise.

        Pelosi tried; don’t know her, etc. but maybe she did her best under the circumstances?
        … taken from Barr’s speech as memorialized by ms. EW:

        … “In case after case, we have advanced and defended hyper-aggressive extensions of the criminal law. This is wrong and we must stop doing it.

        The rule of law requires that the law be clear, that it be communicated to the public, and that we respect its limits. We are the Department of Justice, not the Department of Prosecution.”

        ~~~~~end Barr quote~~~~~



        I’m not sure which is a greater waste of time; bagpipe practice or golf.

        • earlofhuntingdon says:

          A high schooler could have predicted that a GOP-controlled Senate would not convict Trump on any crimes for which the House impeached him.

          Impeachment’s purpose in that circumstance was to document Trump’s major crimes and expose them to the American people – and to expose Republicans’ abject support for them. Ms. Pelosi’s response was a tired, meh. She treated it as a relief valve. Only she knows why.

        • BobCon says:

          A chronic issue with Pelosi (and Schumer) is a failure to understand how to build a public case for an agenda. She is really better suited for Steny Hoyer’s position, which is closer to a COO than the speaker’s chair — she would have been a dynamite majority leader.

          It’s a bit ironic that she holds the seat of the late rep Phil Burton, who was one of the most visionary progressive leaders in the House, and a fantastic organizer and advocate. He transformed the House into an activist force in the late 1960s and 1970s, and understood how to recruit and empower liberal officeholders in a coalition — to great extent he was the opposite of how Pelosi sees the House.

        • Molly Pitcher says:

          I think Pelosi suffered from not having a law degree and prosecutorial experience. She has the lifelong political experience and that shows.

        • BobCon says:

          I think this profile gives a good explanation of how her background as the daughter of the mayor Baltimore formed her approach to politics:

          She’s really good at the kind of vote counting and favor calling her father did before her — she is one of the best speakers in modern times in that regard.

          H.L. Mencken described the antagonism in Baltimore politics between reformers and “get it done” types, and I think that also bears out in how she views the world. There are strong and weak sides to both perspectives, but right now in particular I think the most pressing need is for long term strategic vision. A speaker doesn’t necessarily need to have that vision themselves, and can get by with outsourcing it. I don’t think Pelosi is willing to even do that, however.

        • bmaz says:

          Think that is a very fair assessment. Pelosi is very competent at what she does, including whipping and counting votes. This moment in time needs much more than that though.

        • BobCon says:

          If we are lucky enough to have Biden win, I think she will be a major help in the short term in getting the first part of his agenda passed.

          But I have a lot of concerns on how she will handle her promised transition out of the speakership in 2022. I am very worried that she will rally support for someone very like her, with a focus on controlling everything from the speaker’s office and being unable to transfer power to activist committee chairs. I think she has a lot of antagonism toward younger women reps that is not helpful, and a lot of reluctance toward rebuilding the infrastructure of the House — staffing, capacity to hold hearings and investigate, legal offices, as well as the support offices such as the GAO, CBO and the Congressional Research Service.

        • readerOfTeaLeaves says:

          It will be interesting to see how COVID changes not only the structure, but the functions and relationships, in D.C.

          It seems badly broken, but it also seems a bit more challenging to centralize so much in the Speaker’s office when half the Congress is logging in from their home districts.

          The point about staffing, however, remains true whether the Congress Zooms, or doesn’t. Ditto CBO, GAO, and Research.

  5. Njrun says:

    It’s funny how being in a Democratic administration is seen as evidence of bias, can’t trust any decision made by a Democrat when it comes to Republicans, but that same logic doesn’t apply to Republican operatives when they make decisions about Democrats. Republican motives are never questioned.

    It’s almost as if Republicans want to paint Democratic governance as illegitimate on its face.

  6. earlofhuntingdon says:

    Donald Trump says America needs to reform its educational system. I wholeheartedly agree. Only a third of Americans know that 6 million Jews were murdered in the Holocaust, along with millions of other people. And that’s just the civilians. Only 3% could name a concentration or death camp other than Auschwitz – not Bergen-Belsen, or Sobibor or Treblinka, or the assembly points in France and the Netherlands. Many knew nothing about Auschwitz.

    But Trump envisions a Lynne Cheney educational system on steroids. Re-education camps would necessarily follow, because the gap between the new information and the old would be so wide. Then would come encouraging children to say something when they see something, even or especially about their friends and parents – that is, those who failed to get with the program.

    Donald Trump really wants to stay in office. Not holding office could rapidly lead to his defending multiple suits and prosecutions, and ugly disclosures about the Trump Organization, his debts, and taxes. Trump is a psychopath. He knows no restraint, he has no understanding of harm to other people. He will do things we can’t imagine. It will cost us dearly. Not confronting him will cost us infinitely more.

    • Molly Pitcher says:

      Today Trump announced he wants “patriotic training” in schools, because we are filthy-ing up their little minds with anti-American things like the 1619 project of the NYT, and teaching that there is racism in Amurca that doesn’t exist.

      Listening to him, all I could think of was Hitler youth and Rolf Gruber who blew the whistle on the Von Trapp family.

      • BobCon says:

        Dave Weigel of the Washington Post has noted that the Trump campaign has digested the polls and has tried to move away from the foaming and failing “law and order” attacks and try to pivot to the economy — but Trump himself won’t do it.

        Only the heavily online subsection of his base even has a foggy idea what he’s talking about. It’s always possible this goes beyond the chorus, but I wouldn’t be surprised if polling soon shows greater faith in Biden’s ability to improve schools, just as it did with lowering unrest.

    • earlofhuntingdon says:

      Trump has already ordered the uniforms and arm bands for the New Trump Youth. He promises to resell them to local groups for the same small mark-up he offers the Secret Service, or SS, as he likes to call them.

      • Chris.EL says:

        every time I hear about the Holocaust, see photos, read stories about families torn apart, etc. it breaks my heart.

        I mourn for those who were persecuted and killed, tossed aside, their homes and all belongings taken, their hair forcibly cut, teeth pulled, medically experimented on, deloused, gassed, dumped into mass graves, cremated, it makes me sick.


        Look at Donald Trump: family history of avoiding military service at all costs! Lying about genuine race: no, we’re not German, we’re from Sweden! Making money from providing lodging and brothels!

        Now youth indoctrination for Trump.

        Also sounds like a good side tributary to fund and siphon off more cash!

        ~~~~~~~side thought~~~~~~~~

        Isn’t there ANYONE in the U.S. Government that can STOP the payments of money to Trump’s businesses???

      • vvv says:

        I predict the arm bands shall be red, with a white circle and the logo within (perhaps, “MAGA”, or similar) done in black lightning bolts.

    • bmaz says:

      Do you have a better source? And, by the way, before you keep belligerently posting the same thing over, and over, and over again, maybe ponder that your comment may be full of shit and/or that nobody here owes you instant attention. And don’t think we do not know your history going back to 2009.

      • soothsayer says:

        Wait, what?

        “And don’t think we do not know your history going back to 2009.”

        Ha, I am not whoever you think I am. I can assure you of that.

        I am unaware of this specific source being of issue? Enlighten me, please.

        Sointanley, your wish is my command her commandant.

        I hope these are better to your predilections, full references are at the bottom of that page.

        Ha, censorship, I see. We all, have a right to our opinions. This isn’t Russia or China, one would hope. Btw, thank you for you(r) thoughts. Much appreciated her commandant.

      • soothsayer says:

        All humor aside, you are mistaken that I am whoever you mistake me for.

        I promise you, sincerely, I am not, because I have never come to this board since before May of 2020. I swear on all that is holy and my life.

  7. soothsayer says:

    You sound like a certain J.

    No I am not, but you are making something up that is for sure. Not sure why.

    As I said, I enjoy reading and posting here, and have only ever done both since May 2020.

    If you prefer I do not post here, it is your board, just let me know. But I do not know you, and have nothing against you, and I wish you trusted me, I am being sincere and I apologize for whatever mixup you are making. I respect your decision either way. Cheers

      • soothsayer says:

        Short for John. Apologies, I was just thinking aloud.

        I wish I could give you trust, but as many are anonymous on here, I feel odd giving more details about myself than I already did when I first joined in May 2020. By the way, why do you even think I am someone else? Also, may I ask, who is this someone else? Apologies, I sincerely just have no idea who or what you mean.

      • soothsayer says:

        Also, just note, as I am originally from Canada remember (if you do from when I first joined in May 2020 and shared that info), that I will now be caught in circular loop of apologies, for whatever it is, even though I didn’t do it, and so apologies for that.

      • soothsayer says:

        Oh, I do want to say, though I am definitely not who you think I am, that I want to apologize for making assumptions about any particular public persons, as I sense this is an issue for you, especially if you felt it was not based on any facts. I actually, truly apologize. Because, that I agree with.

        Sorry, also, because as I mentioned, you now have me in that circular loop of apologies O_o.

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