Even Bill Barr (in His Confirmation Hearing) Agreed that Trump Just Committed a Crime

Three different times during Bill Barr’s confirmation to be Attorney General, he agreed that agreeing to pardon someone for false testimony — as Donald Trump just did for Mike Flynn — would be a crime.

Patrick Leahy, specifically invoking Barr’s sanction of the Caspar Weinberger pardon that squelched the Iran-Contra investigation, asked Barr about pardons.

Leahy: Do you believe a president could lawfully issue a pardon in exchange for the recipient’s promise to not incriminate him?

Barr: No, that would be a crime.

Then, in this exchange from Amy Klobuchar, it appeared to take Barr several questions before he realized she knew more about the evidence than he did, and started couching his answers.

Klobuchar: You wrote on page one that a President persuading a person to commit perjury would be obstruction. Is that right?

Barr: [Pause] Yes. Any person who persuades another —

Klobuchar: Okay. You also said that a President or any person convincing a witness to change testimony would be obstruction. Is that right?

Barr: Yes.

Klobuchar: And on page two, you said that a President deliberately impairing the integrity or availability of evidence would be an obstruction. Is that correct?

Barr: Yes.

Klobuchar: OK. And so what if a President told a witness not to cooperate with an investigation or hinted at a pardon?

Barr: I’d have to now the specifics facts, I’d have to know the specific facts.

Klobuchar: OK. And you wrote on page one that if a President knowingly destroys or alters evidence, that would be obstruction?

Barr: Yes.

Klobuchar: OK. So what if a President drafted a misleading statement to conceal the purpose of a meeting. Would that be obstruction?

Barr: Again, I’d have to know the specifics.

Shortly after that exchange, Lindsey Graham tried to clarify the issue, asking the pardon question at a more basic level, coaching another not to testify, as Trump has done on Twitter repeatedly.

Lindsey: So if there was some reason to believe that the President tried to coach somebody not to testify or testify falsely, that could be obstruction of justice?

Barr: Yes, under that, under an obstruction statute, yes.

Lindsey: So if there’s some evidence that the President tried to conceal evidence? That would be obstruction of justice, potentially?

Barr: [nods]

Admittedly, by the third exchange, both Lindsey and Barr were hedging far more carefully about the set of facts.

But on three different occasions during his confirmation hearing, Barr made some kind of statement that said floating pardons for false testimony would be a crime.

Thanks to records made available by Ric Grenell and Sidney Powell, we know that Trump was personally involved with Mike Flynn’s negotiations with Russia about the UN statement on Israel. We also know that within two days after Flynn intervened to undermine Obama’s sanctions, Trump knew of Flynn’s conversation with Sergey Kislyak.

Flynn lied to cover that up with the FBI, and lied about his knowledge of Trump’s involvement with Mueller.

According to Bill Barr’s own testimony to Congress then, Trump’s pardon of Mike Flynn is obstruction of justice.

27 replies
  1. SaltinWound says:

    This is why I didn’t believe Sidney Powell when she said she turned down a pardon. I think it’s more likely Trump’s people said a pardon wasn’t a good idea. But now options have narrowed and there are no good choices.

    • Hika says:

      I think Flynn, having seen Powell ditched by Trump’s team of crazy lawyers for being too crazy, has lost faith in Powell’s defense of him and wants out now.

  2. graham firchlis says:

    An outrage, about which much legalistic speculation will ensue. Meantime, what are justifiably outraged individuals to do, individually?

    I suggest calling out Flynn for what he is – a traitor – and doing so relentlessly. Every time his name is written or spoken, the term ‘traitor” or a varient should be attached:

    “…the traitor Flynn….:

    “…Flynn’s traitorous behavior…”

    & etc, consistently and frequently. Repetition is the key to successful framing (h/t George Lakoff), so repeat repeat repeat.

    Much interesting discussion here about messaging, and frustration that vague others aren’t effective at doing so. This is an opportunity to take responsibility and sieze control of our language for the sake of righteousness.

    The traitor Mike Flynn….

    Use it, and it will stick.


    • bmaz says:

      Crikey, how many times must we go through this shit? STOP. He is a criminal, NOT a “Traitor”, nor is it “treasonous”. Please stop this nonsense.

      • graham firchlis says:

        I choose my words carefully, even cautiously. The term “traitor” is not primarily the equivalent of “treason.” You can look it up.

        “Treason” is as you correctly point out a legal term with strict constraints and rightly so. Flynn is not guilty of treason, nor currently is anyone else. He should not be so accused.

        “Traitor” in distinction has a primary non-legal meaning in common vernacular, for anyone who violates an oath of trust. It clearly applies to Flynn’s behaviors.

        Please don’t restrict fair use of language by inaccurate misinterpretation of meaning. Flynn hasn’t committed treason, but he is damn certain a traitor.


        • bmaz says:

          No. That is exactly what it is. And you are not using your words cautiously at all. In fact, quite the opposite. And “please” don’t blow poo up peoples here rears.

          Is this the misinformed hill you want to die on?

      • jessef says:

        It is almost like the legal definition of treason isn’t the same thing as the way people actually use it.

        I guess we should all stop describing attempted murder as a violent crime too.

        • P J Evans says:

          The way many people use the word is much looser than the way lawyers use it. Which is why bmaz is against using it here.

        • earlofhuntingdon says:

          No. But in the interest of justice, you might distinguish it from, say, murder, manslaughter, and negligent homicide – all forms of illegal killing, but with different levels of intent and vastly different penalties.

          Accurate use of words matters. It is something one learns in reading a blog run by a PhD in comparative lit.

        • jessef says:

          Except the objection to the word traitor has absolutely nothing to do with “accuracy” of language, it has to do with using legal definitions to constrain otherwise accurate language.

          The “crime of violence” definition has absolutely nothing to do with the interests of justice, which would involve an analysis of the actual underlying crime itself as opposed to an analysis of the elements of the underlying criminal statute. That state law may theoretically allow a DA to indict a pickpocketer for robbery does not mean an -actual- robbery as people use the word robbery is not a violent crime as people use the word violent.

          In fact that is the whole point. Constraining the language people use in everyday speech based on precise legal definitions has the opposite effect of serving “justice.”

          Whether US law allows a treason prosecution if the country is not “at war” has nothing to do with whether a retired general failing to disclose that he is leveraging his position as a high-ranking campaign and government official in charge of national security in order to aid foreign governments is a traitor as people use the word traitor.

        • bmaz says:

          This is complete and utter garbage. “Treason” is a specific crime, delineated by the Constitution, 18 USC §115 and legal precedent. It is not a common law term, it exists ONLY in the legal sense. It is false, misleading and dangerous. And, no, it is not “accurate”. It also plays right into the hands of Trumpian malefactors. If you want to blow that smoke at your local bridge club or potluck, fine. But here we are discussing specific individuals and crimes, and they are NOT “treason”.

          So, we will NOT be bandying it about like it is candy Skittles for desperate souls here. STOP. It is not “treason”, and it is dishonest and asinine to argue it is, in any sense.

        • jessef says:

          No one is saying he should be indicted for the crime of treason. They are saying what he did makes him a traitor as the word is defined by its usage irrespective of what the constitution says about the crime of treason.

          Worth noting, the U.S. Court of Appeals for the Armed Forces had “pause” where the government’s trial counsel said that driving $1,500 worth of marijuana in from Tijuana made the defendant “almost a traitor” but nonetheless found it was a “fair comment on the evidence” based on Merriam-Webster’s dictionary definition of “treason” – “betrayal of a trust.” US v. Barrazamartinez, 58 M.J. 173, 176 (C.A.A.F. 2003).

          Flynn was a retired general who failed to disclose that he was leveraging his position as a high-ranking campaign and government official in charge of national security in order to aid foreign governments, including foreign governments that were deliberately interfering with our elections. And all the while, he was leading people to chant “Lock her up!” about the person who could have very well become president during the next few months.

        • bmaz says:

          I don’t give a damn what you are saying. Stop bandying about the interlocked terms “treason” and “traitor”. It is false and it is wrong. Full stop. You take that garbage somewhere else, and if you insist on using that false and misleading bunk here, we will have a problem. This is not your playground for semantical dishonesty.

        • bmaz says:

          And, no, I am not going to continue arguing this with you. And, no, I do not care about your lame UCMJ Appellate decision that is distinguishable and impertinent. Just stop.

        • earlofhuntingdon says:

          It has everything to do with the accurate use of language. And “otherwise accurate language,” is, in this context, a contradiction in terms.

    • N.E. Brigand says:

      It’s not treason, but it’s understandable how Judge Sullivan got so incensed by Flynn’s behavior that he lost his composure and speculatively used the word treason during Flynn’s aborted sentencing hearing before retracting that line of inquiry later in the hearing. Though I don’t think Sullivan took back his statement to Flynn that “arguably you sold your country out.”

      • Wajim says:

        Wow. Some thread ( Popcorn munching . . .). I was thinking “disloyal” is most accurate and appropriate.

  3. skua says:

    A word that fits Flynn is treacherous.
    Treacherous.Flynn hid his ties to the Turkish government.

    “behaviour that deceives or is not loyal to someone who trusts you” from Cambridge E.D.

  4. N.E. Brigand says:

    In a previous discussion here, bmaz (I think it was) said that Gerald Ford was wrong when he partly justified his pardon of Richard Nixon by citing a passage (that many observers believe to be merely dicta) from Burdick v. United States (1915) that says that accepting a pardon carries an admission of guilt. Fair enough.

    But is the main thrust of Burdick still good law? The part about how the pardoned person doesn’t have to accept the pardon in the first place? Because I’m wondering how that interacts with what Ms. Wheeler describes above (not for the first time): that per parts of William Barr’s testimony, Donald Trump may have committed a crime by doling out a pardon in exchange for Flynn not cooperating.

    If Flynn has the right to reject this improper pardon, why doesn’t his accepting it make him a participant in this new criminal quid pro quo? Even if Trump’s pardon (which we haven’t seen yet, right?) is very broad and lets Flynn off the hook for every crime he might have committed in his entire life right up to the moment the pardon was issued, Flynn can only accept it after that point. And if he does, is he committing a new crime? Does Trump now have to pardon him for accepting the pardon? (And if Trump and Flynn hadn’t previously discussed that twist, I suppose Flynn could safely accept the second pardon.)

    There are probably lots of good legal reasons I’m wrong about this, and I’d be curious to know what they are.

  5. Molly Pitcher says:

    So the real question is how soon can we hang all of these SOBs out to dry. I think after Jan 21, I am going to start a go fund me page for pizza for the cleaned up, new and improved DOJ. I want to see them burning the midnight oil, typing up the indictments.

  6. Chuck says:

    Will DJT make it as the sixth to not attend an incoming inauguration? If he does show, Biden’s address should kick off with, “Arrest those men.”

  7. Hika says:

    If the clamor for Trump to be prosecuted for his crimes in office are heeded and the precedent set that, yes, former presidents can and should be prosecuted for serious crimes, will there be equal fervor for George W. Bush to be prosecuted for involvement in torture and what of Obama’s involvement in the targeted assassination of American’s in overseas locations?
    America’s problem with the rule of law didn’t begin in the Trump era; Trump’s egregiousness just made it manifest to a larger audience.

  8. Exxron says:

    Doesn’t federal prosecution of a former president set a dangerous precedent for a future DJTv2?

    Seems to me that NYS is better positioned to take on this task without the risk of further damage to our fragile institutional norms.

    This may be tangential, but I would love to read a thread considering the extent to which federalist arguments could be applied to advance progressive goals in the courts. That might be a way forward with our current supremes.

    • Chuck says:

      Institutional norms are part of the problem. They are not laws, they are not ideals, they have no sworn allegiance. Jim Crow was an institutional norm.

  9. biff murphy says:

    Thinking back to Senator Harris and Barr’s exchange
    “Has the president or anyone at the White House ever asked or suggested that you open an investigation of anyone? Yes or no, please, sir,” Harris, the former California attorney general, asked Barr.

    “Seems you would remember something like that and be able to tell us,” Harris said.

    Barr told Harris that he was trying to “grapple with the word ‘suggest.’” The White House, he said, had not asked him to open an investigation.

    “Perhaps they have suggested?” Harris asked.

    “I don’t know. I wouldn’t say ‘suggest,’” Barr said.

    “Hinted?” Harris asked.

    “I don’t know,” Barr said.

    We at home knew Barr was lying and has proven in fact to be a liar.
    Billy Barr pushing the envelope since day one…

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