Amy Berman Jackson Accuses Bill Barr of a Preemptive Strike on the Mueller Report

I was down so many rabbit holes today I forgot to link to Amy Berman Jackson’s unsealed opinion, which she released today (here’s the redacted version).

Much of what had previously been redacted pertained to the first section, which got released last night. Otherwise, there’s ABJ’s accusation that DOJ was hiding that Bill Barr launched a pre-emptive strike on the Mueller Report.

But given ABJ’s notice that she’s still considering whether to grant the government a stay, I think this footnote (the bold was formerly redacted) is of interest.

18 There is no need for the Court to determine what its ruling would have been had the agency candidly informed it that the purpose of the document was to provide legal analysis to help shape the assessment of the Special Counsel’s report that the Attorney General was planning to announce for the reasons set forth in Section I of the memorandum. It is the government’s burden to support its withholdings.

This is the question before her now, whether the advice in the redacted section is so tainted by its purpose that she’ll release the full memo.

My guess is she won’t — unless there’s something about the analysis itself, such as that it obviously replicates Barr’s opinion about the investigation that he used to get hired, or if it misrepresents the results of the investigation (remember, ABJ presided over Paul Manafort’s DC proceedings and Roger Stone’s trial, so she knows what Mueller found as well as anyone). And the pardons Trump has since offered the people whose lies he guaranteed by dangling those pardons may alter this calculus, particularly if the analysis contradicts Barr’s agreement, offered three times in his confirmation hearing, that dangling pardons for false testimony would be obstruction.

Until then, DOJ has already launched its appeal.

20 replies
  1. Rugger9 says:

    I’m not so sure that Judge ABJ would be so accommodating of the Garland DOJ view, since this discussion fundamentally is about the government lying to her court and I doubt she’s tolerant of such goings-on. The appeal will be fought up through the levels, and perhaps this is the test case for OLC memos. Who would argue for justice or truth here if Garland’s DOJ passes on it? Will Judge ABJ appoint an amicus like we saw in the Flynn case?

    When will we know, a month or so?

  2. Rugger9 says:

    OT, but related in corruption terms: it seems our AZ Secretary of State has been stripped by the GQP AZ legislature of the ability to defend the state in election lawsuits seeking to overturn the results (it’s been given to the AG, a GQP person according to ABC15), continuing a pattern by GQP legislatures hamstringing any D attempt to actually follow the laws or do their constitutional duties in many red states.

    This is on top of the tech company (Wake TSI) not renewing its contract for the hand count, and another inexperienced firm (StratTech Solutions) has taken over in another ongoing trend reported by AZ Central. Given how “flexible” the rules already were and the well-documented lack of security for the ballots among many other sins preventing admissibility in court, how long will it take for the pressure on the AZ GQP to build enough to make them stop the madness? Will a boycott be needed (sorry, bmaz)?

  3. x174 says:

    i don’t see how Judge Jackson can defer to the Garland doj. by contradicting her own order will amount to her, in effect, a cover-up of a cover-up. the court has not only to maintain its integrity, it has to maintain the perception of its integrity. if she backs down at this extremely late date, Jackson and the court will become tainted by being transparently engaged in perpetuating a cover-up. for Jackson and her court to be seen as covering-up for a stooge like barr is patently contemptible. either we abide by the law to we don’t; sometimes it is just that simple.

    • Rayne says:

      Recommend reading two twitter threads.

      Jennifer Taub:

      And Marcy:

      • Rugger9 says:

        Reading through both threads I am enlightened about why Garland’s DOJ might want to file such a thing like this appeal, but this is an opportunity for Biden / Garland’s DOJ to come clean on what Barr was doing.

        Time to cut the Gordian knot.

        Given who is behind this and why they did their deeds, there is no good reason to help DJT or his minions like Barr out of their jam. If the concern is finger-pointing whataboutism let’s remember the GQP will do it anyway. Every day that Garland’s DOJ defends what appears to be deliberate lying to Judge ABJ’s court means that Garland owns more of it as an accessory. As of now, he can still pin this on Barr and DJT as a unit. Later, it will be harder and the GQP will blame Garland and Biden anyway (and HRC, Kamala Harris, Dr Seuss, Wile E. Coyote, etc…).

        Breathlessly awaiting the “winged words” (h/t Homer) of NoLongerPurelyCivilHat who so far has been retweeting up a storm.

        • Rayne says:

          If you think about it, they are trying to cut the knot but not with a simple blow. They are trying to finesse this without causing massive damage. Now it’s back on the judge to take a careful whack at the massive knot left by others.

          • OmAli says:

            Barr essentially lying to her court, on top of Roger stone threatening her…

            “This is intolerable to the rule of justice,” she said. “The court cannot just sit idly by and say ‘that’s just Roger being Roger.'” BBC

            How can she NOT force Garland to release this?

          • OmAli says:

            The poison of the Trump administration (and I am sure we don’t don’t yet understand the half of it) is like a nasty boil, which at some point is going to burst. Wouldn’t it be better just to lance it? It’ll be a hell of a clean up, but it would be good for the country to see the entire, stinking horribleness of it.

            • Rayne says:

              The one thing which would truly unwind the Gordian knot: making the case that hiring Barr was itself a corrupt act intended to protect executive actions before his hiring and after, and everything Barr did to protect Trump was corrupt. The pre-text of every communication and subsequent decision then becomes open to review and unprotected by the executive’s deliberative privilege.

              His 19-page memo established his position that the SCO investigation did not have his support months before he was nominated and approved. He’d already made up his mind instead of allowing the facts to lead him to a decision whether to prosecute or not; the OLC’s internal deliberations never even had a chance.

              • Dutch Louis says:

                So Bill Barr, as announced by himself, from the start and with the willing help of legally educated apparatsjiks purposefully and constantly misused the judicial system in all possible ways to keep the GOP and DJT in power. What else serves Justice better than unveiling this nasty truth in every detail?

                • Rayne says:

                  Well, Dutch Louis, as you are not from the US, perhaps it’s not clear there may be long-term repercussions a wholesale refusal to protect the *executive branch* on the ability of the executive to function. For example: if another nation — let’s say the Netherlands — had uncovered harmful information which could seriously affect the safety and security of NATO members, and the executive branch wanted more of the covert information supporting it provided by a known beleaguered dissident before making a decision, but the executive wanted to assure the security of the dissident informant. Should we later demand everything related to this discussion is disclosed, at risk to the dissident, the Netherlands, NATO security? Or should there be some point at which this deliberation remains secure?

                  Let’s say it’s not something as obviously clear cut as that, but a security consideration which isn’t fully developed, possibly because a tangential or parallel investigation is under way. How does the DOJ ensure that the executive branch retains its privilege to deliberate with a degree of secrecy for security reasons if we simply demand now that EVERYTHING is unveiled, thereby establishing a precedent that the executive doesn’t have deliberative privilege that its co-equal branches enjoy?

                  That’s a rhetorical question to you as a non-citizen. It’s not merely rhetorical to Americans.

  4. JamesJoyce says:

    Self interest is enlightening, Mr. Barr.

    Goebbels garbage and lies..

    Neither political party really wants to do away with the
    OLC Frankenstein Monster.

    This has allowed a Muscovite President protected by all his men including Putin, his owner, but removal is not proper, and in fact preempted because of a “legal creation” by a “legal counsel.”

    Sound more like a modern day “Nuremberg Law.”

    America thrown under a bus.

    No wonder why republicans voted to acquit x 2.

    “Energy” and “Money” come before Country, just like “Slaveowners” Vlad?

    George Floyd understands this connection as do most.

    Some can’t.

    • Rayne says:

      Okay, you’ve vented spleen in two threads. Do you have something more constructive to add than just more emotional dumping?

      Don’t speak for George Floyd. Leave that to the deceased’s family and the Black community on this day of all days.

      Lastly, learn how to type. Use the same username typed the same way each time you comment or your comments will be stuck longer in moderation.

    • JamesJoyce says:

      Apparently the moderators don’t get the connection either!

      Moderation aka censorship.

      I don’t troll..

      Barr played
      America 🇺🇸


  5. anaphoristand says:

    For as much as you’ve hit on Barr’s confirmation hearing acquiescence that yes, a hypothetical exchange of pardons for non-cooperation with an SCO would amount to obstruction, I can’t imagine Bill Safire’s “Cover-Up General” would’ve left that legal liability just lying there. Which is part of why I’ve always suspected the operational Mueller Report OLC memo in question would’ve been tempted to further the two earlier such memos foreclosing the indictment of a sitting President by extending that prohibition to any Executive Branch investigation of his in-office actions, thus (in all likelihood) poisoning the well on any post-term employment of SCO’s proceeds to tee up an obstruction indictment.

  6. Greg Worley says:

    Question for any federal court stuff knowers:
    Is there some law or rule that says federal district court judges can’t hold someone in contempt? Seems to me that Judge Jackson was directly contempted/perjured-at by Barr and all the flunkies that signed off on various pleadings and affidavits. If she’s so sure of that why doesn’t she just issue orders to show cause or whatever and start hammering folks. Or is that just not done, dearie?

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