“The Buck Stops at the Top:” In January, Bill Barr’s DOJ Decided the Correct Decision Was to Send Mike Flynn to Prison

I’d like to make one more point about Billy Barr’s rant last night. Over and over again, Barr suggested that line prosecutors have been making hyper-aggressive decisions that the Department of Justice cannot answer for and that his involvement simply amounts to ensuring that the decisions DOJ makes are ones he’s willing to take responsibility for.

Indeed, aside from the importance of not fully decoupling law enforcement from the constraining and moderating forces of politics, devolving all authority down to the most junior officials does not even make sense as a matter of basic management.  Name one successful organization where the lowest level employees’ decisions are deemed sacrosanct.  There aren’t any.  Letting the most junior members set the agenda might be a good philosophy for a Montessori preschool, but it’s no way to run a federal agency.  Good leaders at the Justice Department—as at any organization—need to trust and support their subordinates.  But that does not mean blindly deferring to whatever those subordinates want to do.

This is what Presidents, the Congress, and the public expect.  When something goes wrong at the Department of Justice, the buck stops at the top.  28 U.S.C. § 509 could not be plainer:  “All functions of other officers of the Department of Justice and all functions of agencies and employees of the Department of Justice are vested in the Attorney General.”

And because I am ultimately accountable for every decision the Department makes, I have an obligation to ensure we make the correct ones.  The Attorney General, the Assistant Attorneys General, and the U.S. Attorneys are not figureheads selected for their good looks and profound eloquence.

They are supervisors.  Their job is to supervise.   Anything less is an abdication.

To the extent Barr is talking about the Mueller investigation, every single prosecutorial decision was reviewed by Acting Attorney General Rod Rosenstein. For those decisions, then, Barr’s not actually talking about decisions made by line prosecutors. He’s talking about decisions overseen by someone vested, like him, with all the authority of DOJ.

For precisely the reason Barr lays out — that DOJ must be able to answer for things DOJ does — it’s highly unusual for DOJ to flip-flop on prosecutorial decisions that past Attorneys General have approved.

But with one action in the Mike Flynn prosecution — possibly one he thought of when he invoked probation sentences in one of his last paragraphs — Barr’s interventions into the cases of Donald Trump’s flunkies is far worse than that.

In short, it is important for prosecutors at the Department of Justice to understand that their mission — above all others — is to do justice.  That means following the letter of the law, and the spirit of fairness.  Sometimes that will mean investing months or years in an investigation and then concluding it without criminal charges.  Other times it will mean aggressively prosecuting a person through trial and then recommending a lenient sentence, perhaps even one with no incarceration.

In moving to dismiss Flynn’s prosecution, Barr was overriding a decision he himself had approved of. In January, DOJ called for prison time for Flynn, citing the materiality of his lies and his abuse of trust.

The defendant’s offense is serious, his characteristics and history present aggravating circumstances, and a sentence reflecting those factors is necessary to deter future criminal conduct. Similarly situated defendants have received terms of imprisonment.

Public office is a public trust. The defendant made multiple, material and false statements and omissions, to several DOJ entities, while serving as the President’s National Security Advisor and a senior member of the Presidential Transition Team. As the government represented to the Court at the initial sentencing hearing, the defendant’s offense was serious. See Gov’t Sent’g Mem. at 2; 12/18/2018 Hearing Tr. at 32 (the Court explaining that “[t]his crime is very serious”).

The integrity of our criminal justice depends on witnesses telling the truth. That is precisely why providing false statements to the government is a crime. As the Supreme Court has noted:

In this constitutional process of securing a witness’ testimony, perjury simply has no place whatsoever. Perjured testimony is an obvious and flagrant affront to the basic concepts of judicial proceedings. Effective restraints against this type of egregious offense are therefore imperative. The power of subpoena, broad as it is, and the power of contempt for refusing to answer, drastic as that is — and even the solemnity of the oath — cannot insure truthful answers. Hence, Congress has made the giving of false answers a criminal act punishable by severe penalties; in no other way can criminal conduct be flushed into the open where the law can deal with it.

United States v. Mandujano, 425 U.S. 564, 576 (1975); see also Nix v. Whiteside, 457 U.S. 157, 185 (1986) (“[t]his Court long ago noted: ‘All perjured relevant testimony is at war with justice, since it may produce a judgment not resting on truth.’”) (quoting In re Michael, 326 U.S. 224, 227 (1945)). All persons carry that solemn obligation to tell the truth, especially to the FBI.

The defendant’s repeated failure to fulfill his obligation to tell the truth merits a sentence within the applicable Guidelines range. 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. For similar reasons, the defendant’s false statements in his FARA filings were serious. His false statements and omissions deprived the public and the Trump Administration of the opportunity to learn about the Government of Turkey’s covert efforts to influence policy and opinion, including its efforts to remove a person legally residing in the United States.

The defendant’s conduct was more than just a series of lies; it was an abuse of trust. During the defendant’s pattern of criminal conduct, he was the National Security Advisor to the President of the United States, the former Director of the Defense Intelligence Agency, and a retired U.S. Army Lieutenant General. He held a security clearance with access to the government’s most sensitive information. The only reason the Russian Ambassador contacted the defendant about the sanctions is because the defendant was the incoming National Security Advisor, and thus would soon wield influence and control over the United States’ foreign policy. That is the same reason the defendant’s fledgling company was paid over $500,000 to work on issues for Turkey. The defendant monetized his power and influence over our government, and lied to mask it. When the FBI and DOJ needed information that only the defendant could provide, because of that power and influence, he denied them that information. And so an official tasked with protecting our national security, instead compromised it.

This was no decision made by rogue line prosecutors, Brandon Van Grack and Jocelyn Ballantine. In December, Jessie Liu signed a request for an extension so that the “multiple individuals and entities” that had to approve the new sentencing recommendation could do so.

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.

And then again in January, Jessie Liu got an extension so the “multiple individuals and entities” who had to review the sentencing memo could do so.

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.

Bill Barr says he is responsible for making the correct decision, and his DOJ reviewed the decision to imprison Mike Flynn at length. Taking him at his word, that means Bill Barr believed, in January, knowing all the details that were “new” to Timothy Shea when he wrote his motion to dismiss, but not new to Michael Horowitz and John Durham, who had already reviewed them, that the correct decision was to send Mike Flynn to prison.

It’s bad enough that Barr has repeatedly refused to stand by decisions made by others imbued with the authority of the entire DOJ under 28 U.S.C. § 509.

But Bill Barr won’t even stand by his past decisions.

49 replies
  1. Skillethead says:

    Wait. In the very first sentence, does Barr admit that playing politics is important in law enforcement, or did I read that wrong?

    • P J Evans says:

      That’s sure what it looks like to me. Did he somehow skip world history, with all its bad examples of this, in all of his schooling?

    • Tom says:

      I think Barr is saying that trained and experienced career prosecutors can’t be trusted to do their job, that they’ll recklessly begin investigations half-cocked and bungle their cases because they’re not in a position to see the Big Picture the way their elected superiors are.

      Barr sees his staff as a bunch of hyperactive, rambunctious puppies who are liable to pee on the carpets of Very Important People if they’re not kept on a short leash.

      • bmaz says:

        Which is, of course, the exact antithesis of everything the DOJ has ever professed to be and stand for. Was it always true? No, not always, but they at least put on the air of trying.

  2. Ed Walker says:

    This speech is indicative of a rotten mind. I note that Barr delivered it to the students of Hillcrest College, which is a very conservative religious school. I wonder how this would go over in front of the Bar Association of New York City.

    Perhaps the audience would be polite. But I think this administration, and Billy in particular, do not deserve any civility. I’d have booed the ugly bastard, and I’m pretty sure I wouldn’t be the only one.

  3. earlofhuntingdon says:

    I like Nicolle Wallace, but I have to disagree with her about Bill Barr. He is not dumb or pickled by having watched too much Faux Noise. Dick Cheney is not a whole lot smarter than Barr.

    As with last night’s talk at Hillsdale, Barr is not recounting history or making a reasoned argument. He is performing propaganda. He’s also distracting from 200,000 dead Americans, and a lot of shite that Trump has done or has planned to stay in office.

    • graham firchlis says:

      Cannot abide Nicole Wallace.

      She has been part and parcel of the rise of the Radical Reactionary Republican Party, and now pretends to be shocked and surprised at how it all turned out.

      The whole crew of them, guilty as sin in creating our current disaster, should be shunned not celebrated. Steve Shmidt, Michael Steele, Rick Wilson, all conspired to advance and support Bush-Cheney; the likes of Bill Kristol, Hugh Hewett and George Will have been at it for decades. Relentlessly wrong about everything, we’re now supposed to believe they are suddenly enlightened and full of opinions worth listening to. For two hours, every work day.

      If they were truly appalled and rejecting what their beloved Party stands for, the lot of them would do penance for the rest of thier lives working quietly in homeless shelters and food banks instead of continuing to rake in the big bucks trying to convince us they had nothing to do with birthing Trump.

      Soon as they see a pretty face they’ll be right back on the Rightwing bandwagon, like Trump never happened.

      Room for all their claptrap, but no time on MSNBC for the wonderful Joan Walsh or the perfectly relevant brilliance of Masha Gessen and Nina Khrushcheva. Shameful.

    • Vicks says:

      By claiming the states stay at home orders were as outrageous a violation of civil liberties as slavery, Barr also seems to be suggesting that any outrage Trump’s followers may decide they want to have over the shut downs belongs in the same box as the emotions driving the BLM movement.
      I think it may be a call to action

  4. earlofhuntingdon says:

    Corporate and government bureaucrats have their share of master craftsmen. Dick Cheney was a real one. On that score, Bill Barr doesn’t hold a candle to him. But Barr tries hard, which has led him, I think, to adopt what I consider the sycophantic bureaucrat’s worst trait. He is willing to reinvent reality on the whim of his CEO.

    When a CEO decides one thing on day one, and whimsically changes it on day two, Barr is the sort of bureaucrat who doesn’t just comply. He acts as if the first decision never was, the revised decision has always been, and everyone who disagrees is tendering their resignation. That would make Barr and Trump’s lives easier, but everyone’s else’s infinitely harder.

    • AndTheSlithyToves says:

      “He is willing to reinvent reality on the whim of his CEO.”

      Since Trump is so impaired, my guess is that Barr’s main job is to get him over the finish line in any way possible.
      If that entails spouting Opus Dei nonsense to make Trump look less deranged, so be it. I’ll be amazed if Trump makes it to the debates, let alone to election day.

    • emptywheel says:

      Agree that Barr is nowhere near the match of Cheney for bureaucratic mastery. Almost no one is.

      But I also think he has a harder job bc what Trump is demanding is so much more obviously egregious (and because Trump runs his mouth).

      • earlofhuntingdon says:

        Agreed. Shrub was an absentee president, allowing Cheney to initiate largely what he wanted. Shrub mostly went along, Scooter Libby’s pardon and a few other issues aside. As he did with Ford and Bush Sr., he was also able to adjust well to occasional setbacks and changes of course.

        Barr is probably trying to follow that game plan, but is swamped by Trump’s changing whims. As you note, so many of them are illegal, irrational, openly destructive, or give the game away.

        • Rugger9 says:

          Libby’s sentence was commuted, DJT pardoned him in a distinction that was important at the time since it kept the 5th Amendment in play to prevent testimony. However, this point of doing what the “CEO” wants described AG Barr perfectly and explains the head-snapping change in plans.

          If it were Cheney (I used “Darth” as his moniker) or Barr in the Oval Office, either one would have been more quiet about the damage being done and we never would have found out half of it until it was too late. This means we must seize the opportunity to extirpate the current GOP and their fans out of government.

  5. BayStateLibrul says:

    Slogans win, Heaven Help Us!

    Orwell 1945

    War is Peace
    Freedom is Slavery
    Ignorance is Strength

    Deplorables 2020

    Corporations are People
    Coronavirus is Slavery
    Treason is Loyalty

  6. harpie says:

    1] When Kyle Chene tweeted this:
    12:14 PM · Sep 17, 2020

    Last night, AG BARR made case for political role in DOJ and said of FBI agents: “Whose agents do you think you are?”

    Today, Rep. Demings gave WRAY a change to respond: “We, the FBI, work for the American people,” Wray said.

    2] Marcy responded:
    12:14 PM · Sep 17, 2020

    Donald Trump gonna fire another FBI Director, y’all.

    • harpie says:

      Here are 2 TRUMP tweets responding to news of WRAY’s testimony:

      1] ABC quotes Wray saying:

      “violent anarchist extremists…who self-identify with the antifa movement” are “just one part” of investigations into domestic terror, which also includes “racially motivated violent extremists, the militia-types, and others.”

      Trump responds:
      8:06 PM · Sep 17, 2020

      …And I look at them as a bunch of well funded ANARCHISTS & THUGS who are protected because the Comey/Mueller inspired FBI is simply unable, or unwilling, to find their funding source, and allows them to get away with “murder”. LAW & ORDER!

      2] C-Span reports:

      FBI Director Wray: “We certainly have seen very active, very active efforts by the Russians to influence our election in 2020…to both sow divisiveness and discord and…to denigrate Vice President Biden.”

      Trump responds:
      8:20 PM · Sep 17, 2020

      But Chris, you don’t see any activity from China, even though it is a FAR greater threat than Russia, Russia, Russia. They will both, plus others, be able to interfere in our 2020 Election with our totally vulnerable Unsolicited (Counterfeit?) Ballot Scam. Check it out!

      [From TWITTER on this TRUMP tweet:
      ! Learn how voting by mail is safe and secure [link]]

  7. harpie says:

    On “lock-downs”:

    1] 9/14/20
    Federal District [Pa] Judge William STICKMAN IV: [a] solution to a national crisis can never be permitted to supersede the commitment to individual liberty that stands as the foundation of the American experiment.

    2] 9/16/20
    BARR: But putting a national lockdown, stay at home orders, is like house arrest. Other than slavery, which was a different kind of restraint, this is the greatest intrusion on civil liberties in American history.

    The Stickman quote is from this Will Bunch piece, retweeted by bmaz:
    Even if Joe Biden wins, Trump and Mitch McConnell’s judges could block U.S. progress for decades
    Will Bunch September 17, 2020

    When a precocious twentysomething named William Stickman IV wrote letters to the Pittsburgh Post-Gazette in the early 2000s attacking the “leftist sharks’ angered by then-Sen. Rick Santorum’s equating of homosexuality to incest and accusing the paper of anti-Catholic bias in its coverage of priest abuse scandals, the youth wasn’t just showing off. Stickman was arguably showing he had what it takes to be a part of a future surge in young white male right-wing federal judges under President Trump and Senate Majority Leader Mitch McConnell. […]

    • harpie says:


      […] [With his ruling, Stickman] amplified a key pro-Trump talking point on the pandemic in Pennsylvania, the state that may be the decider in the 2020 race.

      And perhaps more importantly, Stickman’s controversial ruling also offered an early and arguably frightening window into how more than 200 conservative federal judges confirmed during Trump’s term — nearly 70% of them white men, many in their 30s or early 40s — could rule deep into the 21st century on issues such as climate change, workers’ rights, expanded government health care, and women’s reproductive rights. […]

      • harpie says:

        BARR, on all these Federalist Society Judges being pushed onto our courts certain prosecutors:

        […] I am reminded of a passage by CS Lewis:

        It may be better to live under robber barons than under omnipotent moral busybodies. The robber baron’s cruelty may sometimes sleep. His cupidity may at some point be satiated. But those who torment us for our own good will torment us without end, for they do so with the approval of their own conscience.

        They may be more likely to go to heaven, I don’t know, but at the same time likelier to make hell on earth. […]

        • soothsayer says:

          I am a fan of CS Lewis, and understand the sentiment Mr Lewis is looking to portray.

          But egad. No, just no.

          How much more ghastly gas lighting can he do, and no less by abusing many core sensibilities from shared literature.

          • Tom says:

            Barr could have quoted Emerson: “A foolish consistency is the hobgoblin of little minds”. Or Walt Whitman:

            “Do I contradict myself?
            Very well then I contradict myself,
            (I am large, I contain multitudes.)”

            • soothsayer says:

              Ha, very good.

              I like that Walt Whitman is considered “America’s poet … He is America.”

              As well, the facts that Walt is a Humanist, especially due to my recently finding out a relative is deep into Humanism; conversely, that Barr seems to have no insight on being human or the human condition, but moreso is naturally drawn to anything that causes adversity and harm to the human condition. Again, very good reference.

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