Will Amy Berman Jackson Finally Break the Spell of OLC Feeding Bullshit FOIA Claims to DC District Judges?

Yesterday, Judge Amy Berman Jackson ruled that the government must turn over a memo written — ostensibly by Office of Legal Counsel head Steve Engel — to justify Billy Barr’s decision not to file charges against Donald Trump for obstructing the Mueller Investigation. The Center for Responsibility and Ethics in Washington FOIAed the memo and sued for its release. The memo itself is worth reading. But I want to consider whether, by making a nested set of false claims to hide what OLC was really up to, this opinion may pierce past efforts to use OLC to rubber stamp problematic Executive Branch decisions.

A key part of ABJ’s decision pivoted on the claims made by Paul Colburn, who’s the lawyer from OLC whose job it is (in part) to tell courts that DOJ can’t release pre-decisional OLC memos because that would breach both deliberative and attorney-client process, Vanessa Brinkmann, whose job it is (in part) to tell courts that DOJ has appropriately applied one or another of the exemptions permitted under FOIA, and Senior Trial Attorney Julie Straus Harris, who was stuck arguing against release of this document relying on those declarations. ABJ ruled that all three had made misrepresentations (and in the case of Straus Harris, outright invention) to falsely claim the memo was predecisional and therefore appropriate to withhold under FOIA’s b5 exemption.

Colburn submitted two declarations. ABJ cited this one to show that Colburn had claimed the OLC memo was designed to help Billy Barr make a decision.

Document no. 15 is a predecisional deliberative memorandum to the Attorney General, through the Deputy Attorney General, authored by OLC AAG Engel and Principal Associate Deputy Attorney General (“PADAG”) Edward O’Callaghan . . . . As indicated in the portions of the memorandum that were released, it was submitted to the Attorney General to assist him in determining whether the facts set forth in Volume II of Special Counsel Mueller’s report “would support initiating or declining the prosecution of the President for obstruction of justice under the Principles of Federal Prosecution.” The released portions also indicate that the memorandum contains the authors’ recommendation in favor of a conclusion that “the evidence developed by the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense.” The withheld portions of the memorandum contain legal advice and prosecutorial deliberations in support of that recommendation. Following receipt of the memorandum, the Attorney General announced his decision publicly in a letter to the House and Senate Judiciary Committees . . . .

* * *

[T]he withheld portions of document no. 15 – the only final document at issue – are . . . covered by the deliberative process privilege. The document is a predecisional memorandum, submitted by senior officials of the Department to the Attorney General, and containing advice and analysis supporting a recommendation regarding the decision he was considering . . . . [T]he withheld material is protected by the privilege because it consists of candid advice and analysis by the authors, OLC AAG Engel and the senior deputy to the Deputy Attorney General. That advice and analysis is predecisional because it was provided prior to the Attorney General’s decision in the matter, and it is deliberative because it consists of advice and analysis to assist the Attorney General in making that decision . . . . The limited factual material contained in the withheld portion of the document is closely intertwined with that advice and analysis. [emphasis original]

Brinkmann submitted this declaration. ABJ cited it to show how Brinkmann had regurgitated the claims Colburn made.

While the March 2019 Memorandum is a “final” document (as opposed to a “draft” document), the memorandum as a whole contains pre-decisional recommendations and advice solicited by the Attorney General and provided by OLC and PADAG O’Callaghan. The material that has been withheld within this memorandum consists of OLC’s and the PADAG’s candid analysis and legal advice to the Attorney General, which was provided to the Attorney General prior to his final decision on the matter. It is therefore pre-decisional. The same material is also deliberative, as it was provided to aid in the Attorney General’s decision-making process as it relates to the findings of the SCO investigation, and specifically as it relates to whether the evidence developed by SCO’s investigation is sufficient to establish that the President committed an obstruction-of justice offense. This legal question is one that the Special Counsel’s “Report On The Investigation Into Russian Interference In The 2016 Presidential Election” . . . did not resolve. As such, any determination as to whether the President committed an obstruction-of-justice offense was left to the purview of the Attorney General. [emphasis original]

Key to this is timing: Colburn twice claimed the memo was provided to Barr before he made any decision, and based on that, Brinkmann not only reiterated that, but claimed that Mueller’s Report “did not resolve” whether Trump could be charged, which left the decision to Barr. Both were pretending a decision had not been made before this memo was written (much less completed).

In an almost entirely redacted section, ABJ explained how the first part of the memo is actually a strategy discussion (which, a redacted section seems to suggest, might have been withheld under some other FOIA exemption that DOJ chose not to claim because that would have required admitting this wasn’t legal advice), written in tandem by everyone involved, about how to best spin the already-made decision not to charge Trump.

The existence of that section contradicts the claims made by Colburn and Brinkmann, ABJ ruled.

All of this contradicts the declarant’s ipse dixit that since the Special Counsel did not resolve the question of whether the evidence would support a prosecution, “[a]s such, any determination as to whether the President committed an obstruction-of-justice offense was left to the purview of the Attorney General.” Brinkmann Decl. ¶ 11.

Then, after ABJ decided she needed to review the document over DOJ’s vigorous protests, she discovered something else (again, she redacted the discussion for now) that made her believe claims made in a filing written by Straus Harris not just to be false, but pure invention with respect to the role of Principal Associate Deputy Attorney General Edward O’Callaghan, who was privy to what Mueller was doing and the import Mueller accorded to the other OLC memo dictating that Presidents can’t be prosecuted.

And the in camera review of the document, which DOJ strongly resisted, see Def.’s Opp. to Pl.’s Cross Mot. [Dkt. # 19] (“Def.’s Opp.”) at 20–22 (“In Camera Review is Unwarranted and Unnecessary”), raises serious questions about how the Department of Justice could make this series of representations to a court in support of its 2020 motion for summary judgment:

[T]he March 2019 Memorandum (Document no. 15), which was released in part to Plaintiff is a pre-decisional, deliberative memorandum to the Attorney General from OLC AAG Engel and PADAG Edward O’Callaghan . . . . The document contains their candid analysis and advice provided to the Attorney General prior to his final decision on the issue addressed in the memorandum – whether the facts recited in Volume II of the Special Counsel’s Report would support initiating or declining the prosecution of the President . . . . It was provided to aid in the Attorney General’s decision-making processes as it relates to the findings of the Special Counsel’s investigation . . . . Moreover, because any determination as to whether the President committed an obstruction-of-justice offense was left to the purview of the Attorney General, the memorandum is clearly pre-decisional.

Def.’s Mem. in Supp. of Mot. [Dkt. # 15-2] (“Def.’s Mem.”) at 14–15 (internal quotations, brackets, and citations omitted).13

13 The flourish added in the government’s pleading that did not come from either declaration – “PADAG O’Callaghan had been directly involved in supervising the Special Counsel’s investigation and related prosecutorial decisions; as a result, in that capacity, his candid prosecutorial recommendations to the Attorney General were especially valuable.” Id. at 14 – seems especially unhelpful since there was no prosecutorial decision on the table.

I noted the problem with O’Callaghan’s role here, and argued there are probably similar problems with an OLC opinion protect Trump in the wake of Michael Cohen’s guilty plea.

In her analysis judging that an attorney-client privilege also doesn’t apply, ABJ returns to this point and expands on it, showing that in addition to Steve Engel (the head of OLC), O’Callaghan, who was not part of OLC and whom the memo never claims was involved in giving advice to Billy Barr, was also involved in generating the memo; the record also shows that the people supposedly receiving the advice, such as Rod Rosenstein, actually were involved in providing the advice, too.

While the memorandum was crafted to be “from” Steven Engel in OLC, whom the declarant has sufficiently explained was acting as a legal advisor to the Department at the time, it also is transmitted “from” Edward O’Callaghan, identified as the Principal Associate Deputy Attorney General. The declarants do not assert that his job description included providing legal advice to the Attorney General or to anyone else; Colborn does not mention him at all, and Brinkmann simply posits, without reference to any source for this information, that the memo “contains OLC’s and the PADAG’s legal analysis and advice solicited by the Attorney General and shared in the course of providing confidential legal advice to the Attorney General.” Brinkmann Decl. ¶ 16.19

The declarations are also silent about the roles played by the others who were equally involved in the creation and revision of the memo that would support the assessment they had already decided would be announced in the letter to Congress. They include the Attorney General’s own Chief of Staff and the Deputy Attorney General himself, see Attachment 1, and there has been no effort made to apply the unique set of requirements that pertain when asserting the attorney-client privilege over communications by government lawyers to them. Therefore, even though Engel was operating in a legal capacity, and Section II of the memorandum includes legal analysis in its assessment of the strengths and weaknesses of the purely hypothetical case, the agency has not met its burden to establish that the second portion of the memo is covered by the attorney-client privilege

19 The government’s memorandum adds that “PADAG O’Callaghan had been directly involved in supervising the Special Counsel’s investigation and related prosecutorial decisions,” Def.’s Mem. at 14, but that does not supply the information needed to enable the Court to differentiate among the many people with law degrees working on the matter.

ABJ notes (and includes a nifty table in an appendix showing her work) that in fact the letter to Congress that was supposed to be based off the decision the OLC memo was purportedly providing advice about was finished first, meaning it couldn’t have informed the decision conveyed in the letter to Congress.

A close review of the communications reveals that the March 24 letter to Congress describing the Special Counsel’s report, which assesses the strength of an obstruction-of-justice case, and the “predecisional” March 24 memorandum advising the Attorney General that [redacted] the evidence does not support a prosecution, are being written by the very same people at the very same time. The emails show not only that the authors and the recipients of the memorandum are working hand in hand to craft the advice that is supposedly being delivered by OLC, but that the letter to Congress is the priority, and it is getting completed first. At 2:16 pm on Sunday, March 24, the Attorney General’s Chief of Staff advises the others: “We need to go final at 2:25 pm,” and Rod Rosenstein, the Deputy Attorney General, summons everyone to a meeting at 2:17 pm. Attachment 1 at 4. At 2:18 pm, Steven Engel in the OLC replies to this email chain related to the draft letter, and he attaches the latest version of the memo to the Attorney General, saying: “here’s the latest memo, btw, although we presumably don’t need to finalize that as soon.”

As a result, ABJ rules that this was neither pre-decisional nor candid advice from someone acting in the role of attorney given to another, and so the document must be released.

Ultimately, this is a finding that the claims made by DOJ — by Colburn, Brinkmann, and Straus Harris — have no credibility on this topic. She cites Reggie Walton’s concerns (in the BuzzFeed FOIA for the Mueller Report itself) about Billy Barr’s lies about the Mueller Report and notes that DOJ has been “disingenuous” to hide Barr’s own “disingenuous[ness].”

And of even greater importance to this decision, the affidavits are so inconsistent with evidence in the record, they are not worthy of credence. The review of the unredacted document in camera reveals that the suspicions voiced by the judge in EPIC and the plaintiff here were well-founded, and that not only was the Attorney General being disingenuous then, but DOJ has been disingenuous to this Court with respect to the existence of a decision-making process that should be shielded by the deliberative process privilege. The agency’s redactions and incomplete explanations obfuscate the true purpose of the memorandum, and the excised portions belie the notion that it fell to the Attorney General to make a prosecution decision or that any such decision was on the table at any time. [redacted]

ABJ is careful to note (in part to disincent Merrick Garland’s team from appealing this, which she has given DOJ two weeks to consider doing) that this decision is limited solely to application of the claims made before her. The often-abused b5 exemption is not dead.

The Court emphasizes that its decision turns upon the application of well-settled legal principles to a unique set of circumstances that include the misleading and incomplete explanations offered by the agency, the contemporaneous materials in the record, and the variance between the Special Counsel’s report and the Attorney General’s summary. This opinion does not purport to question or weaken the protections provided by Exemption 5 or the deliberative process and attorney-client privileges; both remain available to be asserted by government agencies – based on forthright and accurate factual showings – in the future.

But this leaves the question about what to do about all this lying — Colburn and Brinkmann and Straus Harris’ misrepresentations to protect the lies of Billy Barr and his team. Billy Barr is gone, along with Rosenstein and Engel and O’Callaghan and Brian Rabbitt (Barr’s Chief of Staff), who “colluded” (heh) to make it appear that this process wasn’t all gamed for PR value from the start.

There’s little (immediate) recourse for their lies.

But as far as I know, Colburn and Brinkmann and Straus Harris remain at DOJ, now having been caught offering misrepresentations to protect former superiors’ lies after their past equivalent representations have — for decades — been accepted unquestioningly by DC District Judges. I’ve raised concerns in the past, for example, about claims that Colburn made in 2011 (to hide drone killing opinions) and in 2016 (to hide a long-hidden John Yoo opinion on which surveillance has been based).

The reason ABJ and Reggie Walton caught DOJ in lies about the Mueller Report is not that DOJ hasn’t long been making obviously questionable claims to hide rubber stamp opinions from OLC behind the b5 exemption and obviously questionable claims to withhold documents in FOIA lawsuits. Rather, they caught DOJ in lies in this case because Billy Barr was a less accomplished (or at least more hubristic) liar than Dick Cheney (and because DOJ cannot, in this case, also make expansive claims about secrecy in the service of National Security). It is also the case that when John Yoo and David Barron rubber stamped Executive Branch excesses, they were more disciplined about creating the illusion of information being tossed over a wall to a lawyer and a decision being tossed back over the wall to the decision-maker. That was merely an illusion at least in Yoo’s case — he was both in the room where decisions were made and massaging the analysis after the fact to authorize decisions that were already made.

It would be nice to use this decision to go back and review all the dubious claims Colburn and Brinkmann have made over the years. Rudy Giuliani’s potential prosecution may offer good reason to do so in the case of Steve Engel’s equally dubious opinion withholding the Ukraine whistleblower complaint from Congress.

But at the very least, what this opinion does is show that career DOJ employees have, at least in the Bill Barr era, made less than credible claims to cover up DOJ lies, and in this case, lies about how OLC functions as a rubber stamp for Executive Branch abuse.

We may have no (immediate) recourse about the people whose abuse necessitated such misrepresentations for their protection — Barr and Rosenstein and O’Callaghan and Engel and Rabbitt — though their future legal opponents may want to keep this instance in mind.

But it is becoming a habit that when DC judges check DOJ claims in FOIA suits, those claims don’t hold up. At the very least, more scrutiny about the claims made in these nested set of declarations may finally pierce the bullshit claims made to protect OLC’s role in rubber stamping Executive Branch abuse.

66 replies
  1. Peterr says:

    The kind of legal misrepresentation ABJ identifies here is only going to change if individual lawyers are held accountable for the claims they sign their names to when submitting filings to the court. I’m reminded of Emmet Sullivan’s reaction to lies told in US v Stevens, where he instigated an investigation against individual prosecutors. It wasn’t enough to simply throw out the case, but he went after the lawyers who lied to him.

    Walton didn’t go quite that far, but calling our the sitting AG for lying and refusing to extend any benefit of the doubt to any statements made by him was drastic. “Sorry, you’ve proven I can’t take your word for anything in this matter. Hand over the unredacted documents, so that I can see whether the Attorney General of the United States is continuing to lie or is telling the truth.” And — surprise, surprise — the AG was lying once more.

    Now it’s ABJs turn. She cited Walton repeatedly, and if I’m Colbern, Brinkman, or Straus Harris, I would be worried. She named them and quoted them at length, only in the end to say that the record shows clearly that they lied to a federal judge. That timeline is devastating — the “advice memo” wasn’t even finished when the “decision letter” was sent to Congress — and there’s no way to look at this and wiggle out of it as people having two different interpretations of the facts. They lied, and she caught them.

    Yes, that leaves Barr, Rosenstein, and others who have left the DOJ who had a role in this to be held to account. ABJs opinion here will make it harder for corporate boards to justify hiring them, harder for white shoe firms to add them to the masthead, and harder for law schools to hire them. (Of course, I think I said the same thing about John Yoo, and he’s still around. Sigh.) Maybe a couple of bar associations will be setting this behavior against their standards, and will hold them to account in that way.

    If Garland chooses not to appeal, I am really interested in seeing what is uncovered when those redactions are unsealed in two weeks. Beyond the large redactions of documents and discussions, there are a couple of single-sentence or short redactions of phrases that caught my eye as being potentially very very interesting. Among other things, they appear likely to name names in ways that often get obscured.

    I understand the convention that legal cases and filings from DOJ are considered “the government” or “the people” stating things before the court. In cases like this, however, it is individual lawyers who made individual misrepresentations and told individual lies. The fact that ABJ called them out by name is a refreshing change, and would be enhanced only by holding them individually accountable.

    Stay tuned.

    • bmaz says:

      Lol, we shall see, but I would not bet much that anything will happen. There are really only two paths to joy with bar authorities. One is for ABJ to make a direct and specific referral. Even that would likely be brushed off. The other is to do what Sullivan did, ie appoint a special prosecutor like Hank Schuelke. Do note, however, that as bad as Schuelke nailed the Stevens prosecutors, they eventually wormed out of it (RIP David Margolis), except the one guy who suicided.

      • Peterr says:

        I hear you, but I’m disappointed.

        It was a sea change in the Roman Catholic church when bishops quit covering up for “problem priests,” and the folks pushing hardest for that were other priests.

        It was a sea change when police officers began testifying against other cops in use of force cases (such as in the Chauvin trial), because they realize that by not holding bad cops to account, it makes them all look bad.

        For your sake, bmaz, I hope the legal profession catches up with this. Letting lawyers get away with lying to the court like this when ordinary folks would get the book thrown at them is not a good look, and perpetuates the notion that lawyers are a plague upon the earth. For the sake of good lawyers, the bad ones must be held to account. The federal judge who sanctioned Kris Kobach, the Secretary of State of Kansas at the time, for lying to her and refusing to follow basic procedures of the court gets this. Among other things, she ordered him to take additional basic legal continuing education classes – a humiliating order when given to an elected official of the state of Kansas.

        • bmaz says:

          Oh, “lawyers” get nailed for this more than you’d think, just not DOJ lawyers.

          As to cops testifying, that was some of the most objectionable bullshit in history in the Chauvin trial. Truly insane and inappropriate. Chauvin would get convicted again, which is fine if done right, but I do hope he wins an appeal, that trial was atrocious. And, no CNN, the motion for new trial is perfunctory, and not news in the least; it will be summarily denied. Will have to be on appeal, which the mot for new trial simply protects.

        • Peterr says:

          The “just not DOJ lawyers” part is exactly the problem. Prosecutors getting off without a sanction ought to have every defense attorney in the country screaming, yet what I seem to see is folks like you shrugging your shoulders.

          “Forget it, Jake — It’s Chinatown DOJ.” is no way to run a courtroom.

        • bmaz says:

          Meh, no shoulder shrugging here. I’ve been on this beat since long before we met. But I do recognize what I’ve seen.

        • Charles says:

          “A lawyer who practices in Portland, Oregon, has received a five-year suspension for firing six bullets into the law office of a colleague, narrowly missing the law firm manager who was in the building.” –https://www.abajournal.com/news/article/lawyer-gets-suspension-for-firing-gun-into-colleagues-law-office

          I agree very much with your assessment, Peterr. The rule of law is no stronger than its application to judges and lawyers.

          I think the permissiveness evolved because, first, there used to be a standard of professionalism–not just in law, but in medicine and science. That standard meant that those who did wrong would face consequences even if those weren’t visible to the public. Also, there used to be a presumption that cops and prosecutors were good guys who might abuse their powers, but only in the service of the greater good.

          But now we’ve have seen police committing murder, prosecutors framing suspects, the DoJ lying for purely political reasons, and very senior judges getting appointed despite lying under oath and/or being known to be incompetent. I don’t know when the backlash will happen, but if, as and when it does, it is going to leave a lot of people with their ears ringing.

        • Peterr says:

          My reference to the Chauvin trial wasn’t so much about the legal issues you are talking about, but the mere fact that there were cops willing to speak out like that.

          In the litany of cases highlighted by the Black Lives Matter movement, this stood out as far different from other cases even from the recent past.

          As the LGBT civil rights folks pointed out long ago (especially with respect to the AIDS crisis and demonizing GLBT folks by the right), silence=consent. To find cops unwilling to remain silent is a sign of progress.

        • Troutwaxer says:

          A friend of mine said of the Chauvin trial, “What we received tonight is punitive treatment from the prison-industrial complex, who sacrificed one of their own to preserve the system.” I don’t think I disagree much, and would certainly want to see how other trials play out before deciding that this is a trend.

        • Leoghann says:

          These claims of a trend starting, based on the Chauvin trial, have the same ring to me as Antonin Scalia’s claim that, because Obama had been elected President, we were then living in a “post-racial America.” Pure lip service, way before the pudding comes out of the oven.

        • hollywood says:

          What was atrocious about the Chauvin trial? I don’t see it. Cops can testify. The judge can allow their testimony. The defense can object but those objections (if made) can be overruled. If not made, the objections are waived. If Chauvin’s case is that he was following practice and training other cops including the Chief are allowed to testify as to what practice and training are, which they did to his detriment. Quite clearly the police testimony was a strong admission against the department’s interest. That gives them extra credibility.

        • bmaz says:

          I have explained this relentlessly, including at least in part again above. Thanks for explaining how trials work, but I am familiar.

        • hollywood says:

          Forgive me but I don’t see where “above” you explained this: “As to cops testifying, that was some of the most objectionable bullshit in history in the Chauvin trial. Truly insane and inappropriate.”
          Humor me, what’s the explanation?

        • bmaz says:

          No. I have been through this repeatedly. Do your own research, I do not owe you squat. And your understanding of trial law and evidentiary procedure is of elementary school level. So, please, spare me your demands.

        • subtropolis says:

          How about you spare us all the toddler-level excuses? Not to mention the abuse. Get a hold of yourself.

        • Rayne says:

          Knock it off. If this issue goes any further in this thread, commenters persisting will find themselves in purgatory for a while.

          As for anyone who seeks an explanation, use the Search tool. We’re not going to rehash what’s already been discussed ad nauseam, effectively DDoSing conversation in this thread.

          ADDER: I meant it. You know who you are. I am not amused; set a better precedent.

        • BobCon says:

          It’s dreary, but lawyers aren’t the only profession. In most states medical review boards, for example, are a joke. Larry Nassar didn’t have his license revoked until 2017.

          DOJ can’t revoke licenses, but it is worth asking if they need to strengthen their internal standards and reviews.

          In theory they could go as far as creating a parallel system to the security clearance system, where violation of ethical standards would have a similar effect on employment opportunities as losing top secret clearance would have on a DOD engineer.

          I realize, though, that would be an incredibly massive undertaking, and the security clearance system is held together with paperclips and duct tape as it is. It would be nice, though to see abusers declared unfit for federal duties.

        • earlofhuntingdon says:

          “Self-regulation” is code for No regulation, whether in business or a profession.

        • Hug h says:

          Having worked in the Investment Management Business for over 3 decades, I was thinking the exact same thing! SEC oversight of SRO’s was a good idea until… IT WASN’T. One might reasonably argue that with a healthy and fairly functioning legal, tax, regulatory and business community/systems in the US, Donald Trump would have been chewed up and spit out LONG before he ran for President.

        • Thomas says:

          I recall a case in Texas where a lawyer transmitted a bribe from his client to the mayor. The mayor did time. The lawyer got off scot free. Bar association didn’t touch him.

      • hollywood says:

        Why would it be ‘brushed off”? We are talking about a possible referral from a respected district court judge. I don’t think that gets brushed off by various state bars. It may be dragged out, but I think it gets considered.

    • What Constitution? says:

      What are the odds that Trump will pay former lackey Bill Barr’s legal fees (ask Rudy about that)? And before it gets to that actual point, is the DOJ going to pay the legal expenses of its own current lawyers who are going to need to defend themselves from the sanctions being arrayed in their direction?

  2. OldTulsaDude says:

    What a strange dichotomy – the lack of accountability feeds the powerlessness, and anger about that powerlessness feeds the populists’ validation of the “righteous” use of that same power.

  3. Savage Librarian says:


    The fabulists are full-on creep,
    as they try to wrangle up their peep,
    Now it’s not the same old sheep
    whose fleecy company they keep.

    They find it hard to go to sleep,
    while counting who will make the leap
    above the fence, grown so steep,
    even Pinocchio would want to weep.

    It’s no surprise they’re downtrodden,
    Their values are so misbegotten,
    Time & again they’ve been caught in
    the Big Lie, and its stench is rotten.

    Of many clashes they have fought in,
    this one the dye makes a spot in,
    It won’t wash out. They bought in
    to fanatics who the future’s not in.

    The fabulists are full-on creep,
    We all can see their sewage seep,
    Soon we’ll see just how deep
    they’re in a hole, by their rank heap.

    • Ginevra diBenci says:

      SL, thanks as always for your verve and originality. I wish I thought *I* could get away with rhyming “caught in” and “rotten,” but I don’t have your chutzpah. We here at EW are just lucky that you do!

      • Savage Librarian says:

        Yesterday the handle broke off my toilet. I found a tiny pull chain (from an old light fixture) & a plastic coated paper clip in my junk drawer and improvised a temporary means to flush. It works better than I thought it would.

        That’s how I think of verses I share. Most of them are less than optimal, but they still wend their way through the pipeline of public creativity. If you look at that stanza as ABAB, then “caught in” might sound like “cod in” (Maine or New England accent.) Then it rhymes with downtrodden. But the synaptic value of the whole, hopefully, exceeds the sum of the mnemonic rhymes.

        • Ginevra diBenci says:

          So even as a transplant, I’ve lived in NE long enough to hear it right. Which is how I got myself cod in here from the outset.

  4. Rapier says:

    Rosenstein was the big rat in the kitchen here. I gather he is a skilled institutional player but he had reached the top of the DOJ which is nice but it makes one relatively poor so what was the point of being Barr’s lackey? There isn’t a big time firm in America who wouldn’t have taken him on board at much much much better pay.

    • Alan says:

      Rosenstein promised a soft landing – or words similar to that. A real smelly rat through and through. He had me fooled for a while.

    • timbo says:

      Seems like Edward O’Callaghan might also have been part of the problem. Basically, Barr and Rosenstein needed a significant level of separation between their decisions and Mueller’s team of lawyers. O’Callaghan seems to have insulated the two of them well enough from Mueller and the actual facts on the ground. Not that Barr wasn’t aware of this insulation—no, he just used it effectively enough to keep Trump protected longer by using this insulation. All the lying to the court is because of all of these folks trying to cover their own asses with their own institutional insulation from being held responsible for their predetermined determinations and so-called “legal advice”.

  5. scribe says:

    To answer the question posed by the headline: “not likely”.

    The long and the short of it is that DoJ’s misrepresentations or outright lies in filings or oral presentations in all fields other than Trump will be blithely accepted and continue to go into the roach motel that was the DoJ’s internal ethics police. That, unless and until something as egregious as the Ted Stevens prosecutorial misconduct comes to light. Even then, as we know from following in that in real time, the lying and cheating prosecutors there got off with the proverbial wrist-slap. Save for the one who offed himself.

  6. greenbird says:

    the first page-and-a-half: i should just memorize it.
    but in any case, let the piercing commence with gusto.
    we’ll see if there be any further wobbling.

  7. Bay State Librul says:

    Can Senator Whitehouse try his magic?
    Wasn’t Barr extensively/aggressively questioned by Sheldon on The Mueller Report.

    • scribe says:

      Won’t happen. The current AG is a Democrat. Whitehouse only gets wound up and such if it’s Republicans he’s going after.

  8. John Lehman says:

    ….” career DOJ employees have, at least in the Bill Barr era, made less than credible claims to cover up DOJ lies, and in this case, lies about how OLC functions as a rubber stamp for Executive Branch abuse.”

    Mmmmmm…just what is the pay grade for being a professional liar in the DOJ?…….guess it depends on how convoluted, obfuscating and believable you’re able to forge your lies. Professional lying …. where does a person obtain a degree in that?

  9. harpie says:

    That is indeed a “nifty table” ABJ includes in that appendix…very Marcy-like!

  10. Jenny says:

    Thank you Dr. Marcy.
    Exposing layers of lies. “… ‘Billy Barr’s lies about the Mueller Report and notes that DOJ has been “disingenuous” to hide Barr’s own “disingenuous[ness].’”

    “Robert Mueller is the equivalent of a William Barr attorney. Robert Mueller was executing the powers of the attorney general, subject to the supervision of the attorney general, Robert Mueller work concluded when Robert Mueller sent Robert Mueller work to the attorney general. At that point, it was my baby, and I was making a decision as to whether or not to make it public.”
    – William Barr (Found on CNN 2 years ago)

  11. Tom says:

    OT but related to the discussion above on Ye Antient Arte of Lyinng … I wonder if it’s occurred to the GOP (of which Liz Cheney has revealed almost all of her male colleagues to be members of the Gelded Old Party) that by taking the high jump into the total immersion baptismal cesspit of Trump’s Big Lie about the 2020 Presidential election, they will also have to ascribe to the 45th President’s other Articles of Faith: such as, that it was Ukraine, not Russia, who tried to sabotage the 2016 election; that Paul Manafort, Roger Stone, and the rest of that scurvy crew “did nothing wrong”; that Trump built the border wall and Mexico somehow paid for it; that any and all criminal or civil court proceedings against him are part of an overarching “witch hunt”; that he’s “a very stable genius”, and so on. If they fail to do so, they know they’ll soon be carrying their faggots on their back as they trudge their weary way past the jeering crowds of The Base on their way to the charred stakes of the Smithfield public execution grounds.

    By shackling themselves to Donald Trump’s rotting political corpse, the Republicans have guaranteed that, as the coming weeks, months, and possibly years go festering by, they will only continue to attract more and more right-wing scavengers, blow-flies, and other crawling vermin to their party. People of substance and integrity will steer clear of the GOP.

    • John B. says:

      yes, I agree…it’s just not sustainable as a platform or as an “ethos”. It has to come tumbling down at some point; thus the desperation to have set in Republican rule forever with voter suppression, gerrymandering and the courts to back them up.

    • madwand says:

      Yep if one wants to be a Republican then he has to buy into all the crap they articulate, though that probably isn’t the right word, regurgitate might be more appropriate. Along with all that Tom has said, one has to buy into the hate lying just beneath the surface starting with Democrats, liberals of all stripes, blacks and people of color, Black Lives Matters and Antifa, Hollywood and most actresses and actresses, scientists, homosexuals, LGBTQ, to say nothing of atheists. One thing I know it’s hard to keep track of all these people to hate, and I am probably leaving out a bunch and I don’t know exactly how the right manages all this, but hey every Sunday, someone will remind them.

      • rip says:

        It’s so easy. Just anyone who isn’t exactly like me is suspect.
        Male / Female
        White / non-White
        European / non-European
        Protestant / non-Protestant
        Evangelical / non-…

        Goes on forever. Segregate your flock so you can fleece them the easiest. White dumb evangelicals are taken to the cleaners.

    • Jenny says:

      Some GOP representatives from the “my way or the highway” team are angry because Cheney fist-bumped President Biden. Plus she reminds them about Jan 6th insurrection Trump incited. They don’t want to hear it or confront it, they want to “move on.”

      • Tom says:

        Yes, Cheney’s refusal to play along and “be a good German” only highlights the rest of the GOP’s moral cowardice and craven submission to Donald Trump. And pretty soon Liz will be outside of the tent pissing in instead of inside the tent pissing out, as LBJ would have put it.

        Can’t help but gloat over the possibility that Rudy Giuliani will decide the only way to save himself from his apparent pending legal difficulties is to begin cooperating with the government and spill the beans on the former President. What will the GOP do if Rudy, the main spear carrier for The Big Lie contingent, suddenly admits, “Nah, I’ve just been shootin’ shit all these months. Joe Biden really won the 2020 election.”

  12. punaise says:

    This will probably merely amuse bmaz: a fellow over at DKos filed a formal complaint:

    My Bar Complaint Against Former Attorney General William Barr

    This article is a follow up to one I did yesterday summarizing a court decision where the judge suggested Former Attorney General William Barr lied to Congress and his DOJ filed knowingly false affidavits in court. The Attorney General’s duplicity was related to the DOJ’s supposedly broadly considered conclusion that Mueller’s investigation failed to prove Former President Trump obstructed justice.

    Today I followed up by filing a formal Complaint with disciplinary board of the District of Columbia Bar against Former Attorney General Bar. The narrative of my complaint was as follows…

    • bmaz says:

      Link doesn’t work but, yeah, mild amusement.

      Seriously, if that bunk was going to work, I’d have done it a loooong time ago. It is not going to accomplish squat.

    • scribe says:

      I wouldn’t be surprised if there’s some circular financial flow going on there, because the only thing that “bar complaint” will do is generate fees for Barr’s defense counsel, possibly paid out of his malpractice insurance. Might even be the proper subject of government indemnification for the fees, seeing as how the complaint relates to his government service.

      • Hika says:

        Nope. No corrupt circular flow of funds involved. He’s do-gooder/well-intentioned citizen who’s silly enough to believe that a bar association might care about their rules of professional conduct and enforce them without fear or favor for the good of the profession and the community they serve.

  13. Max404 says:

    If I remember correctly, de Toqueville in “Democracy in America” describes how, contrary to all the other roles in American society which each have “natural” counterpoints of power to keep them in check, lawyers in America are ultimately only constrained by some internal sense of ethics. He observed that this was a built in weakness in American society that would someday cause trouble. Already in the 1830’s it was clear, to him at least, that the American law profession had potentially unchecked power.

  14. GKJames says:

    A system’s only as good as its component human parts. With gratitude, then, to ABJ, Walton, Sullivan and other judges who, from their lonely outposts (unlike the folks upstairs, they don’t have colleagues to hide behind), maintain the healthy skepticism — especially with respect to representations by the government (who routinely, but undeservedly, gets the benefit of doubt) — necessary for the legitimate administration of justice.
    Their willingness to slog through a swamp of deception to come out the other side with a viable version of reality despite the best efforts of (purportedly) public servants is a service to us all … even if the miscreants will continue to thrive.

  15. tinao says:

    Repeat aloud and often.
    May the universe’s karma be swift so that fools learn it’s just not worth it.
    I am very grateful to the federal judges who are not fools.

  16. earlofhuntingdon says:

    Glenn Greenwald acts like a goombah, even if his weapon of choice – to paraphrase Woody Guthrie – uses ink instead of gun oil. His ambition seems to be to make more money than Tucker Carlson, and he seems willing to exploit any outrage to get there. He’s many things, but being a reporter is not one of them.


  17. earlofhuntingdon says:

    I’m with Dan Froomkin regarding the pernicious effects of media headlines. Deconstructing them is a full-time occupation. A recent one from the Guardian – “Wyoming stands up for coal with threat to sue states that refuse to buy it.”

    The Guardian harms its readers and the environment with its favoritism. When it says the state “stands up” for something, it implies steadfastness and courage. It elides agency when it uses “coal” as a substitute for specific mining companies, which dominate the state’s politics and economy. The Guardian buries on paragraph 9 of 16 that there’s no legal basis for the suits: “Legal experts have said the new strategy is on shaky ground.” It buries its conclusion – that the effort is doomed – in the final paragraph, which few readers will get to.

    A more accurate headline might read, “Big Coal Companies Extort Wyoming Officials,” followed by, “Seek to extort states and ruin environment to keep profits high. Strategy costs less than paying traditional K Street lobbyists.”


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