Bill Barr Claimed a Threat Meriting a Four Subpoena Investigation Didn’t Merit a Sentencing Enhancement

In the aftermath of the Proud Boys-led insurrection, I’ve been reporting over and over on how Bill Barr’s DOJ treated threats by the Proud Boys against Amy Berman Jackson — which the probation office treated as the same kind of threat as the obstruction charge being used against many of the January 6 defendants — as a technicality unworthy of a sentencing enhancement.

Katelyn Polantz advanced that story last night, reporting that DOJ subpoenaed the four Proud Boys implicated by Roger Stone in his threat against ABJ for grand jury testimony.

Stone — testifying at a court hearing in 2019 to explain the post — said at the time that a person working with him on his social media accounts had chosen it.

Then, at another hearing the same year, Stone named names. Tarrio, the leader of the Proud Boys, had been helping him ​with his social media, Stone said under oath, as had the Proud Boys’ Florida chapter founder Tyler Ziolkowski, who went by Tyler Whyte at the time; Jacob Engels, a Proud Boys associate who is close to Stone and identifies himself as a journalist in Florida; and another Florida man named Rey Perez, whose name is spelled Raymond Peres in the court transcript​.

A few days later, federal authorities tracked down the men and gave them subpoenas to testify to a grand jury, according to Ziolkowski, who was one of the witnesses.

Ziolkowski and the others flew to DC in the weeks afterwards to testify.

“They asked me about if I had anything to do about posting that. They were asking me if Stone has ever paid me, what he’s ever paid me for,” Ziolkowski told CNN this week. When he first received the subpoena, the authorities wouldn’t tell Ziolkowski what was being investigated, but a prosecutor later told him “they were investigating the picture and if he had paid anybody,” Ziolkowski said. He says he told the grand jury Stone never paid him, and that he hadn’t posted the photo.

Tarrio and Engels did not respond to inquiries from CNN, and Stone declined to respond to CNN’s questions. ​The FBI’s Washington, DC, office did not respond to requests for comment from CNN.

A person familiar with the case said it had closed without resulting in any charges.

For what it’s worth, given the interest Mueller showed in Stone’s social media work, given the close ties between Stone’s social media work and that of the Proud Boys, and given that parts of the investigation against Stone continued well after his trial, it’s possible prosecutors used Stone’s comments as a way to ask other questions: about whether Stone had paid four of his closest buddies in the Proud Boys (remember they were also looking for a notebook Stone used for his 2016 book that recorded all of his communications with Trump).

That said, DC’s US Attorney’s office paid for four witnesses to come to DC to testify about whether they had had a role in Stone’s threats against the judge presiding over his case.

That raises the stakes on the things Barr said publicly about this threat. As noted, in a sentencing memo written as Barr’s urging, DOJ claimed that the threat against ABJ “overlap[ped] … with the offense conduct in this case.”

Second, the two-level enhancement for obstruction of justice (§ 3C1.1) overlaps to a degree with the offense conduct in this case. Moreover, it is unclear to what extent the defendant’s obstructive conduct actually prejudiced the government at trial.

And DOJ dismissed the import of a threat against a judge by suggesting that if it didn’t prejudice prosecutors at trial, it doesn’t much matter.

More problematic still was Barr’s testimony before House Judiciary Committee last July, just over two months before the President said the Proud Boys should “stand back and stand by.”

When Congressman Ted Deutch asked Barr if he could think of any other case where threatening to kill a witness and then threatening a judge were treated as mere technicalities, Barr kept repeating, at least five times, that “the Judge agreed with me.”

Deutch: You said enhancements were technically applicable. Mr. Attorney General, can you think of any other cases where the defendant threatened to kill a witness, threatened a judge, lied to a judge, where the Department of Justice claimed that those were mere technicalities? Can you think of even one?

Barr: The judge agreed with our analysis.

Deutch: Can you think of even one? I’m not asking about the judge. I’m asking about what you did to reduce the sentence of Roger Stone?

Barr: [attempts to make an excuse]

Deutch: Mr. Attorney General, he threatened the life of a witness —

Barr: And the witness said he didn’t feel threatened.

Deutch: And you view that as a technicality, Mr. Attorney General. Is there another time

Barr: The witness — can I answer the question? Just a few seconds to answer the question?

Deutch: Sure. I’m asking if there’s another time in all the time in the Justice Department.

Barr: In this case, the judge agreed with our — the judge agreed with our —

Deutch: It’s unfortunate that the appearance is that, as you said earlier, this is exactly what you want. The essence of rule of law is that we have one rule for everybody and we don’t in this case because he’s a friend of the President’s. I yield.

That claim — that ABJ agreed with the analysis of Barr and his flunkies — was a lie, a lie made under oath. ABJ, a liberal judge without Barr’s lifetime authoritarian claims about crime, believed the sentencing guidelines are too harsh. She did not believe these enhancements were mere technicalities.

Indeed, in ruling that the enhancement for the threat against her applied — a threat against official proceedings, the same charge being used against many of the insurrectionists — she talked about how posting a threat on social media, “increased the risk that someone else, with even poorer judgment than he has, would act on his behalf.”

I suppose I could say: Oh, I don’t know that I believe that Roger Stone was actually going to hurt me, or that he intended to hurt me. It’s just classic bad judgment.

But, the D.C. Circuit has made it clear that such conduct satisfied the test. They said: To the extent our precedent holds that a §3C1.1 enhancement is only appropriate where the defendant acts with the intent to obstruct justice, a requirement that flows logically from the definition of the word “willful” requires that the defendant consciously act with the purpose of obstructing justice.

However, where the defendant willfully engages in behavior that is inherently obstructive, that is, behavior that a rational person would expect to obstruct justice, this Court has not required a separate finding of the specific intent to obstruct justice.

Here, the defendant willfully engaged in behavior that a rational person would find to be inherently obstructive. It’s important to note that he didn’t just fire off a few intemperate emails. He used the tools of social media to achieve the broadest dissemination possible. It wasn’t accidental. He had a staff that helped him do it.

As the defendant emphasized in emails introduced into evidence in this case, using the new social media is his “sweet spot.” It’s his area of expertise. And even the letters submitted on his behalf by his friends emphasized that incendiary activity is precisely what he is specifically known for. He knew exactly what he was doing. And by choosing Instagram and Twitter as his platforms, he understood that he was multiplying the number of people who would hear his message.

By deliberately stoking public opinion against prosecution and the Court in this matter, he willfully increased the risk that someone else, with even poorer judgment than he has, would act on his behalf. This is intolerable to the administration of justice, and the Court cannot sit idly by, shrug its shoulder and say: Oh, that’s just Roger being Roger, or it wouldn’t have grounds to act the next time someone tries it.

The behavior was designed to disrupt and divert the proceedings, and the impact was compounded by the defendant’s disingenuousness.

This warning about what happens when people post inciteful language on Instagram might well have served as a warning in advance of January 6. But Barr, in testimony under oath to House Judiciary Committee, pretended that his DOJ had not ignored such a threat.

While it didn’t make the sentencing guidelines, the Proud Boy-linked threats to Credico were sufficiently serious that under FBI’s Duty to Warn, they alerted Credico to the threats. Now we learned that line prosecutors treated the threat against ABJ as sufficiently serious that they obtained grand jury subpoenas to learn more about it.

And in testimony under oath, Bill Barr pretended that ABJ agreed — and it was reasonable for his office to treat — such threats as mere technicalities.

44 replies
  1. Rapier says:

    Barr’s mercy has paved Stone’s way back into the arms of Barr’s beloved Catholic Church. Praise the Lord.

    • emptywheel says:

      As it was he went over his 5 minutes. And what were they supposed to do? Refer him to DOJ for perjury?

      My hope is that Barr’s previous coddling of the Proud Boys becomes a focus of the inquiry into Jan 6, because he effectively told FBI that they should not investigate the Proud Boys (and that’s even assuming he didn’t intervene to make sure no charges were filed in this case).

      • BobCon says:

        The five minute blocs are a stupid part of a stupid process. The Democratic leadership needs to rethink the way they hold hearings.

        • timbo says:

          I have to agree after watching these hearings. The risk though is that the Congress goes off further and further into the weeds of broken rhetoric and redundant questioning, posturing, etc, by Representatives who aren’t interesting in getting to the bottom of something but more interested in being in the limelight, independent of the reason for an inquiry into a serious matter.

    • PeterS says:

      I’m not defending Barr (odious man) but I guess he’d say he wasn’t lying, he just wasn’t answering the actual question. His non-answer was presumably about the final sentence. I suspect that that type of dishonesty would never be actionable in a political context.

  2. yogarhythms says:

    R’s won’t impeach executive branch officials after they have left office.
    Once again you have displayed the gifts of documentary evidence explicitly building foundational stones of Billy’s malfeasance under oath.

    • Peterr says:

      If there’s a case to be made against Barr, it won’t be done via an impeachment run through Congress. DOJ would take it to the federal courts.

      • cavenewt says:

        If there’s a case to be made against Barr, it won’t be done via an impeachment run through Congress. DOJ would take it to the federal courts.

        Yes, please.

    • Rayne says:

      GOP senate was loathe to convict in no small part because Trump had collected millions in fundraising using the Big Lie, money which he now controls and could be used to support sycophants or primary opponents. RNC has a serious problem it won’t admit as it is now fully captured by Trump and doesn’t exist outside him any longer.

      • Lady4Real says:

        I believe the entire GOP is addicted to the money they can grift by telling big dangerous lies. The more they incite violence, the more money they get from their donors. It’s very sick and something needs to be done about that…FULL STOP.

  3. harpie says:

    2/11/20 BARR [ew:] DOJ dismissed the import of a threat against a judge by suggesting that if it didn’t prejudice prosecutors at trial, it doesn’t much matter.
    2/20/20 STONE sentenced
    7/10/20 TRUMP commutes STONE’s sentence “days before he was to have reported to a federal prison in Georgia”
    7/28/20 BARR lies to CONGRESS re: STONE’s PROUD BOY-facilitated threats against Judge ABJ.
    8/18/20 STONE drops his appeal of his sentence “less than an hour before a deadline for a brief outlining their appeal arguments”
    9/7/20 REBIRTH of #StopTheSteal [Jack POSOBIEC and Ali ALEXANDER]
    9/23/20 TRUMP refuses to commit to peaceful transfer of power
    9/29/20 TRUMP to PROUD BOYS: “Stand back and stand by”
    10/15/20 TRUMP refuses to disavow QANON
    10/27/20 OATH KEEPERS leader Stewart RHODES tells Alex JONES they will “protect” TRUMP voters at polls and TRUMP and the WHITE HOUSE on election day.

    • harpie says:

      PHASE II

      11/7/20 AP calls election for BIDEN
      Extremists, including white nationalist movement leaders and PROUD BOYS [ie: TARRIO], begin promoting and planning a “MILLION MAGA March” for 11/14.
      11/9/20 JONES on INFOWARS: organizes and promotes #stopthesteal caravan to D.C. to arrive on 11/13
      11/10/20 OATH KEEPER RHODES tells JONES that TRUMP should invoke the Insurrection Act
      11/14/20 MILLION MAGA March
      12/7/2020 Ali ALEXANDER tweets that he is “willing to give [his] life for this fight.”
      The ARIZONA REPUBLICAN PARTY shares the tweet and adds, “He is. Are you?”
      12/9/20 Neo-Nazi blogger Andrew ANGLIN promotes the Stop the Steal rally on 12/12
      12/10/20 OATH KEEPERS issues a call to action for 12/12 pro-Trump protests in D.C.
      12/11/20 PROUD BOYS chapter in Philadelphia promotes 12/12/DC rally
      12/12/20 Second MILLION MAGA rally. TRUMP flies over the scene in Marine One.
      12/15/20 BARR resigns effective 12/23/21
      12/16/20 THREE PERCENTERs say they “stand ready and [are] standing by” “to answer the call from our President” and they “are ready to enter into battle with General FLYNN leading the charge.”

      • harpie says:

        Additions to PHASE I

        9/10/20 OATH KEEPERS and Stuart RHODES banned by Twitter.
        They recently tweeted there’ll be “open warfare against the Marxist insurrectionists by election night, no matter what you do” and “Civil War is here, right now.”

        9/12/20 TRUMP [on what he’ll do if there are threats of riots on election night:] “We’ll put them down very quickly … it’s called insurrection.” [VIDEO]

        • harpie says:

          When Twitter banned OK / Rhodes, Justin Hendrix retweeted this from Alex Newhouse, “Research Lead @CTECMIIS. Data scientist and extremism researcher. Reluctantly on the QAnon beat now.”:

          1:40 PM · Sep 10, 2020

          This is a huge deal. The Oath Keepers are one of the most prominent predecessors to a lot of the neo-fascist conspiracism latent within QAnon. We wrote about how they were spreading COVID disinfo earlier this year: [link]

          I wrote about the Oath Keepers’ absolutely wild nativist-conspiratorial rhetoric for a class in May 2016. Seems a bit prescient, huh? [screenshot]

        • harpie says:

          When TRUMP said “We’ll put them down quickly”, journalist Vaughn Hillyard [On the Road, Meeting Good Folk | NBC News] responded to Rupar’s clip:

          4:23 PM · Sep 12, 2020

          Instead of the president urging calm & patience on election night, he’s readying the country for conflict. The electorate is anxious about fair results–I hear it everyday from all voters. The president is not tempering the nation’s concerns.

          The part that saddens this journalist is that I’ve traveled all 50 states these last 4 yrs–swamps of Louisiana to Nogales to Poplar Bluffs to Seattle to Maine to understand this country.

          And its worst instincts are being preyed on.

      • harpie says:

        Additions to PHASE II

        11/25/20 TRUMP issues a full PARDON to FLYNN
        3:28 PM TRUMP tweets:

        If the Supreme Court shows great Wisdom and Courage, the American People will win perhaps the most important case in history, and our Electoral Process will be respected again!

        5:30 PM [approx] SCOTUS DENIES Texas v Pennsylvania

        […] Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections. All other pending motions are dismissed as moot. […]

        11:50 PM TRUMP tweets:

        The Supreme Court really let us down. No Wisdom, No Courage!

        12/12/20 TRUMP tweets: WE HAVE JUST BEGUN TO FIGHT!!!
        12/12/20 PROUD BOY leader Enrico TARRIO, calling himself WarTime Tarrio, posts on Parler that he was at the WHITE HOUSE.

        12:00 PM JERICHO March
        FLYNN and his family speak
        https://www. [ ] youtube [ ] .com /watch?v=romt1iWW4Oc
        OATH KEEPER Rob MINUTA provides security for FLYNN

        • harpie says:

          Notice on 12/16 THE THREE PERCENTERS, a group we don’t hear too much about, vow to “enter into battle” following FLYNN.

        • harpie says:

          Also want to put this here about FLYNN / QANON.
          This was retweeted by JJ MacNab:

          11:39 AM · Feb 14, 2021

          THREAD: QAnon was enabled in part by former military and intelligence professionals “gone wild.” They lent credibility to the myth and laundered QAnon messaging to the public, sometimes via E-list “influencers.” Here are some of the key personnel.

          2/ MICHAEL T. FLYNN is at the very center of the Q operation. […]

      • harpie says:

        Another addition to PHASE II

        11/14/20 [Million MAGA March]
        OATH KEEPER MINUTA was photographed with PROUD BOY PEZZOLA.
        PROUD BOY leader TARRIO posted that pic on Parler, and MINUTA replied.


        Enrique Tarrio @NobleLead
        I week ago [eye?symbol] 103588
        Lords of War.
        #J6 #J20
        [PHOTO of Pezzola and Minuta on 11/14]


        Roberto Minuta @Robertominuta [responding]
        1 week ago [?eye?symbol] 79
        Bad ass! Thanks @NobleLead for the picture! Honor to stand with you guys. See you Jan 6

        Oath Keepers and Proud Boys, Brothers in Arms.

    • harpie says:


      12/19/20 TRUMP tweets: “Big protest in DC on January 6th. Be there, will be wild!”
      Planning for January 6 begins. “The Calvary [sic] is coming”
      Ali ALEXANDER says he received a phone call from “people from the WHITE HOUSE”
      12/21/20 Ali ALEXANDER promotes 1/6/21 rally
      12/23/20 BARR’s last day as AG
      TRUMP pardons STONE
      12/27/20 STONE tells TRUMP “exactly how” to continue “as our president. #StopTheSteal #rogerstonedidnothingwrong”
      12/29/20 PROUD BOYS leader Enrique TARRIO writes on Parler that the PROUD BOYS will attend the Jan. 6 event “incognito” and “will spread across downtown D.C. in smaller teams.”
      12/29/20 Ali ALEXANDER claims he planned the upcoming Jan. 6 protest with Republican Reps. Paul GOSAR (R-AZ), Andy BIGGS (R-AZ), and Mo BROOKS (R-AL).
      1/4/21 OATH KEEPERS Stuart RHODES promotes 1/6 event

      1/6/21 [Later that afternoon] Ali ALEXANDER films himself from a spot with a panoramic view of the building. He tells his viewers, “I don’t disavow this. I do not denounce this.”


    • Rayne says:

      12-DEC-2020 — Proud Boy leader Enrique Tarrio posted on Parler a photo of himself waiting at the White House, claiming a “last minute invite to an undisclosed location.” White House spokesman Judd Deere said Tarrio “was on a public White House Christmas tour,” and that Tarrio “did not have a meeting with the president, nor did the White House invite him.”

      Sure would like to know who invited him to the White House if the White House staff didn’t since White House Christmas tours had been canceled due to COVID, and who he met there, and if Trump just happened to drop in or listen into the meeting.

      • harpie says:

        Thanks, RAYNE! There was SO MUCH going on!

        Trump REALLY needed Stone’s connections with
        a] Proud Boys and Oath Keepers, etc, AND
        2] propagandists like Alexander and Jones to pull off the STEAL he NEEDED.

        So, he REALLY needed BARR to fix that for him.
        8:35 AM · Feb 14, 2021

        At least six people providing security for Roger Stone participated in the Capitol attack […]

        Also in that thread, STONE had been “promoting speeches and rallies that he says will happen near the Capitol that [1/6] afternoon. But he never appears.”

        We haven’t heard much from/about Roger Stone lately.

  4. Vinnie Gambone says:

    Proud boys and their ilk have not been enfeebled, sorry to say.
    I receive some email announcements from friends who are vets that frankly alarm me. There is an undercurrent belief being disseminated that a a violent eruption is still imminent. State goppers know what is out on the airwaves and know it’s safest for them not to be perceived as the enemy or else face public vitriol and harassment like what Lou Correa received waiting to board in an airport. Almost like a blood lust going on.

    • skua says:

      The US does not have a great rep in terms of preparation for emerging threats. (Even a recognized threat like cyberwarfare can be bolloxed.) AIUI the State Department had 2 Arabic speakers back in 9/11/2001. And 1/6/2021 showed us that the build up of emboldened and violent rightwing nationalists/domestic terrorists had been overlooked by security services. Even if RW-insurregents have now made it onto the “Current Sexy Threats” list, there are two complexities to them being dealt with effectively.
      The first is the lag in deploying sufficient human resources. It takes time to set up an adequate response. Though the comms of RW insurrgents should hopefully be vulnerable.

      The second complexity is that post-9/11 there wasn’t, say, 30% of senior US security personal having either voted for Bin Laden or with close personal ties to those who did. Whereas now people who voted for Trump or are close to those who did are everywhere.The presence of the former-General and trumpist Michael Flynn’s brother on the 1/6 call about getting emergency National Guard assistance at the Capitol is an example of this complexity. Suddenly reliablity of personel could be a major problem – has this ever been planned for?

      • skua says:

        Tangential: One way to look at 1/6 is to compare it to 9/11.
        Both have functioned as brand name publicity events and received much media attention. 1/6 has put mainstream trumpists in a challenging position – hopefully no further events will occur that make it easier for any of them to side with the armed insurrectionists.
        The official security response to 1/6 has been to cast it as criminal acts and use law enforcement. 9/11 was treated as an act of war and responded to with full-force military invasions.
        9/11 had US Muslims demonised. This far in, the 1/6 insurrectionists are treated as criminals who are separated-from, and not-representative-of Trump’s base.
        9/11 was used by GBW to vastly raise his public profile, portraying himself as “a war president”. And the Patriot Act was passed, 98-1 in the Senate, introducing many changes that were later found to by unconstitutional. Whereas1/6 is generally being treated like a high-profile criminal act and disturbing domestic phenomenon, with Biden only fulfilling his duties in relation to it.
        9/11 was IMO perceived by many Americans as an insult that needed to be revenged, an insult that triggered emotions so high that critical thought was made less likely. So far 1/6 has evoked a wider range of responses, responses that do not seem to be threatening critical thought (except for on-going absences in Trumpists who are either seeking to amplify and repeat 1/6, or excusing Trump’s years long incitement).

  5. harpie says:
    12:33 PM · Feb 19, 2021

    Yes. US District Court Judge Esther Salas, on the gunman who killed her son last year: “They found another gun, a Glock, more ammunition. But the most troubling thing they found was a manila folder with a workup on Justice Sonia Sotomayor.” [CNN LINK]

    Justice Sonia Sotomayor was targeted by gunman, federal judge tells ’60 Minutes’
    Updated 1:48 PM ET, Fri February 19, 2021

  6. Min says:

    Point of personal privilege.

    I know that acronyms are in these days, but not all of us are up to snuff. Common ones like DOJ and AG are fine. If I don’t know one I can look it up. But for others, please, at least once follow the acronym with what it stands for in parentheses. That way I can find out with a local search. E.G., JEH (J. Edgar Hoover). Thanks.

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