On Unrealistic Expectations for Mueller Report Obstruction Charges

Among those whinging that Merrick Garland hasn’t imprisoned Donald Trump yet, there is an apparent belief that the Mueller Report left obstruction charges all wrapped up in a bow, as if the next Administration could come in, break open the Report, and roll out fully-formed charges.

Even among those with a more realistic understanding of the Mueller Report, people continue to call for some public resolution of the obstruction charges, as Randall Eliason did here and Quinta Jurecic did here. Jurecic even updated her awesome heat map of the obstruction charges, with the date the statute of limitations (if an individual act of obstruction were charged outside a continuing conspiracy) would expire for each.

None of that is realistic, for a whole range of reasons.

The obstruction-in-a-box belief is based on a misunderstanding of the Mueller Report

First, the belief that Merrick Garland could have come into office 11 months ago and rolled out obstruction charges misunderstands the Mueller Report. Many if not most people believe the report includes the entirety of what Mueller found, describes declination decisions on every crime considered, and also includes a volume entirely dedicated to Trump’s criminal obstruction, a charging decision for which Mueller could not reach on account of the OLC memo prohibiting it. None of that is true.

As I laid out in my Rat-Fucker Rashomon series, the Mueller Report is only a description of charging decisions that the team made. My comparison of the stories told in the Report with those told in the Stone warrant affidavits, Stone’s trial, and the SSCI Report show that Mueller left out a great deal of damning details about Stone, including that he seemed to have advance notice of what the Guccifer 2.0 persona was doing and that Stone was scripting pro-Russian tweets for Trump in the same period when Trump asked Russia, “if you’re listening — I hope you are able to find the 30,000 emails that are missing.”

And, as DOJ disclosed hours before the 2020 election, Mueller didn’t make a final decision about whether Stone could be charged in a hack-and-leak conspiracy. Instead, he referred that question to DC USAO for further investigation. In fact the declinations in the Mueller Report avoid addressing any declination decision for Stone on conspiring with Russia. The declination in the report addresses contacts with WikiLeaks (but not Guccifer 2.0) and addresses campaign finance crimes. The section declining to charge any Trumpsters with conspiracy declines to charge the events described in Volume I Section II (the Troll operation) and Volume I Section IV (contacts with Russians), in which there is no Stone discussion. Everything Stone related — even his contacts with Henry Greenberg, which is effectively another outreach from a Russian — appears in Section III, not Section IV. The conspiracy declinations section doesn’t mention Volume I Section III (the hack-and-leak operation) at all and (as noted) in the section that specifically addresses hack-and-leak decisions, a footnote states that, “Some of the factual uncertainties [about Stone] are the subject of ongoing investigations that have been referred by this Office to the D.C. U.S. Attorney’s Office.” This ongoing investigation would have been especially sensitive in March 2019, because prosecutors knew that Stone kept a notebook recording all his conversations with Trump during the campaign, many of which (they did have proof) pertained to advance notice of upcoming releases. That is, the ongoing investigation into Stone was also an ongoing investigation into Trump, which is consistent with what Mueller told Trump’s lawyers in summer 2018.

That’s not the only investigation into Trump that remained ongoing at the time Mueller closed up shop. The investigation into a suspected infusion of millions from an Egyptian bank during September 2016 continued (per CNN’s reporting) until July 2020, which is why reference to it is redacted in the June 2020 Mueller Report but not the September 2020 one. I noted both these ongoing investigations in real time.

The Mueller Report also doesn’t address the pardon discussions with Julian Assange, even though that was included among Mueller’s questions to Trump.

So contrary to popular belief, Volume II does not address the totality of Trump’s criminal exposure.

That ought to change how people understand the obstruction discussion in Volume II. For all the show of whether or not Mueller could make a charging decision about Trump, the discussion provably did not include the totality of crimes Mueller considered with Trump.

All the more so given the kinds of obstructive acts described in Volume II. The biggest tip-off that this volume was about something other than criminal obstruction charges, in my opinion, is the discussion of Trump’s lies about the June 9 meeting in Trump Tower. As Jurecic’s heat map, her extended analysis, and my own analysis at the time show, the case that this was obstruction was weak. “Mueller spent over eight pages laying out whether Trump’s role in crafting a deceitful statement about the June 9 meeting was obstruction of justice when, according to the report’s analysis of obstruction of justice, it was not even a close call.” At the time, I suggested Mueller included it because it explained what Trump was trying to cover up with his other obstructive actions during the same months. But I think the centrality of Vladimir Putin involvement in Trump’s deceitful statement — which gets no mention in the Report, even though the Report elsewhere cites the NYT interview where that was first revealed — suggests something else about this incident. Because of how our Constitution gives primacy in foreign affairs to the President, DOJ would have a very hard time charging the President for conversations he had with a foreign leader (Trump’s Ukraine extortion was slightly different because Trump refused to inform Congress of his decision to blow off their appropriation instructions). But Congress would (in a normal time, should) have no difficulty holding the President accountable for colluding with a foreign leader to invent a lie to wield during a criminal investigation. Trump’s June 9 meeting lie is impeachable; it is not prosecutable.

Similarly, several of the other obstructive acts — asking Comey to confirm there was no investigation into him, firing Comey, and threatening to fire Mueller — would likewise be far easier for Congress to punish than for DOJ to, because of how expansively we define the President’s authority.

That is, these ten obstructive acts are best understood, in my opinion, as charges for Congress to impeach, not for DOJ to prosecute. The obstruction section — packaged up separately from discussion of the other criminal investigations into Trump — was an impeachment referral, not a criminal referral. I think Mueller may have had a naive belief that Congress would be permitted to consider those charges for impeachment, such an effort would succeed, and that would leave DOJ free to continue the other more serious criminal investigation into Trump.

It didn’t happen.

But that doesn’t change that a number of these obstructive acts are more appropriate for Congress to punish than for DOJ to.

Bill Barr did irreparable damage to half of these obstruction charges

Bill Barr, of course, had other things in mind.

Those wailing that Garland is doing nothing in the face of imminently expiring obstruction statutes of limitation appear to have completely forgotten all the things Billy Barr did to make sure those obstruction charges could not be prosecuted as they existed when Mueller released his report.

That effort started with Barr’s declination of the obstruction charges.

Last year, Amy Berman Jackson forced DOJ to release part of the memo Barr’s flunkies wrote up the weekend they received the Mueller Report. The unsealed portions show that Rod Rosenstein, Ed O’Callaghan, and Steven Engel signed off on the conclusion that,

For the reasons stated below, we conclude that the evidence described in Volume II of the Report is not, in our judgment, sufficient to support a conclusion beyond a reasonable doubt that the President violated the obstruction-of-justice statutes. In addition, we believe that certain of the conduct examined by the Special Counsel could not, as a matter of law, support an obstruction charge under the circumstances. Accordingly, were there no constitutional barrier, we would recommend, under the Principles of Federal Prosecution, that you decline to commence such a prosecution.

This was unbelievably corrupt. There are a slew of reasons — from Barr’s audition memo to the way these officials include no review of the specific allegations to the fact that some of these crimes were crimes in progress — why this decision is inadequate. But none of those reasons can make the memo go away. So unless DOJ were to formally disavow this decision after laying out the reasons why the process was corrupt (preferably via analysis done by a quasi-independent reviewer like the Inspector General), any prosecution of the obstruction crimes laid out in the Mueller Report would be virtually impossible, because the very first thing Trump would do would be to cite the memo and call these three men as witnesses that the case should be dismissed.

But Barr’s sabotage of these charges didn’t end there. At his presser releasing the heavily-redacted report, Barr excused Trump’s obstruction because (Barr claimed) Trump was very frustrated he didn’t get away with cheating with Russia unimpeded, thereby deeming his motives to be pure.

In assessing the President’s actions discussed in the report, it is important to bear in mind the context.  President Trump faced an unprecedented situation.  As he entered into office, and sought to perform his responsibilities as President, federal agents and prosecutors were scrutinizing his conduct before and after taking office, and the conduct of some of his associates.  At the same time, there was relentless speculation in the news media about the President’s personal culpability.  Yet, as he said from the beginning, there was in fact no collusion.  And as the Special Counsel’s report acknowledges, there is substantial evidence to show that the President was frustrated and angered by a sincere belief that the investigation was undermining his presidency, propelled by his political opponents, and fueled by illegal leaks.  Nonetheless, the White House fully cooperated with the Special Counsel’s investigation, providing unfettered access to campaign and White House documents, directing senior aides to testify freely, and asserting no privilege claims.  And at the same time, the President took no act that in fact deprived the Special Counsel of the documents and witnesses necessary to complete his investigation. Apart from whether the acts were obstructive, this evidence of non-corrupt motives weighs heavily against any allegation that the President had a corrupt intent to obstruct the investigation.

These claims were, all of them, factually false, as I laid out at the time. But because he was the Attorney General when he made them, they carry a great deal of weight, legally, in establishing that Trump had no corrupt motive for obstructing the investigation into his ties to Russia.

And after that point, Barr made considerable effort to manufacture facts to support his bullshit claims. Most obviously, he sicced one after another after another investigator on the Russian investigation to try to substantiate his own bullshit claims. In the case of Barr’s efforts to undermine the Mike Flynn prosecution — which investigation lies behind four of the obstruction charges laid out in the Mueller Report — the Jeffrey Jensen team literally altered documents to misrepresent the case against Flynn. Similarly, a Barr-picked prosecutor installed to replace everyone who was fired or quit in the DC US Attorney’s Office, Ken Kohl, stood before Judge Sullivan and claimed (falsely) that everyone involved with the Flynn prosecution had no credibility.

If we move forward in this case, we would be put in a position of presenting the testimony of Andy McCabe, a person who our office charged and did not prosecute for the same offense that he’s being — that we would be proceeding to trial against with respect to Mr. Flynn.

So all of our evidence, all of our witnesses in this case as to what Mr. Flynn did or didn’t do have been — have had specific findings by the Office of Inspector General. Lying under oath, misleading the Court, acting with political motivation. Never in my career, Your Honor, have I had a case with witnesses, all of whom have had specific credibility findings and then been pressed to go forward with the prosecution. We’re never expected to do so.

Again, so long as this testimony remains credible, you can’t pursue obstruction charges remotely pertaining to Flynn, meaning four of the obstruction charges are off the table.

Barr also chipped away at the other charges underlying the obstruction charges, intervening to make it less likely that Roger Stone or Paul Manafort would flip on Trump and help DOJ substantiate that, yes, Trump really did cheat with Russia to get elected. Barr also got OLC to undercut the analysis behind charging Michael Cohen for the hush payments (which may have made it impossible for SDNY to charge Trump with the same charges).

Meanwhile, John Durham toils away, trying to build conspiracy charges to substantiate the rest of Barr’s conspiracy theories. Along the way, Durham seems to be tainting other evidence that would be central to any obstruction charges against Trump. For example, in the most recent BuzzFeed FOIA release, all parts of Jim Comey’s memos substantiating Trump’s obstruction that mentioned the Steele dossier were protected under a b7(A) exemption, which is almost certainly due to Durham’s pursuit of a theory that Trump’s actions with Comey were merely a response to the Steele dossier, not an attempt to hide his Flynn’s very damning conversations with the Russian Ambassador during the transition. That is, Durham is as we speak making evidence unavailable in his efforts to invent facts to back Barr’s claims about Trump’s pure intent in obstructing the Mueller investigation.

As noted, all of these efforts are fairly self-obviously corrupt, and most don’t withstand close scrutiny (as the altered documents did not when I pointed them out). But before DOJ could pursue the obstruction charges as they existed in the Mueller Report, they would first have to disavow all of this.

Inspector General Michael Horowitz was reportedly investigating at least some of this starting in 2020. And I trust his investigators would be able to see through much of what Barr did. But even assuming Horowitz was investigating the full scope of all of them, because of the pace of DOJ IG investigations, the basis to disavow Barr’s efforts would not and will not come in time to charge those obstruction counts before the statutes of limitation expires.

The continuing obstruction statutes have barely started

In addition to obstructing the punishment of Paul Manafort and Roger Stone and undermining the theory behind the Michael Cohen hush payment charges, Bill Barr also worked relentlessly to undermine the prosecution of Rudy Giuliani.

There were undoubtedly a lot of reasons Barr needed to do that. If he didn’t, he might have to treat Trump’s extortion of Ukraine (which was the follow-up to Manafort’s Ukraine ties in 2016). Rudy was central to Trump’s own obstruction of the Mueller investigation. And if Rudy were shown to be an Agent of Russian-backed Ukrainians, it would raise significant questions about Trump’s larger defense (questions for which there is substantiation in Mueller’s 302s).

I understand there was a sense, in the middle of Barr’s efforts, that prosecutors believed they could just wait those efforts out.

And then, literally on Lisa Monaco’s first day on the job, DOJ obtained warrants to seize 16 devices from Rudy. During all the months that people have been wailing for Garland to act, Barbara Jones has been wading through Rudy’s phones to separate out anything privileged (and, importantly, to push back on efforts to protect crime-fraud excepted communications). Almost the first thing Lisa Monaco did was approve an effort to go after the key witness to the worst of Trump’s corruption.

There are many reasons I keep coming back to that seizure to demonstrate that Garland’s DOJ (in reality, Monaco would be the one making authorizations day-to-day) will not back off aggressive investigations of Trump. Even if DOJ only had warrants for the Ukraine investigation, it would still get to larger issues of obstruction, because of how it relates to impeachment. But even if it were true those were the only warrants when DOJ raided Rudy, there’s abundant reason to believe that’s no longer true. If DOJ got warrants covering the earlier obstruction or Rudy’s role in the attempted coup, no one outside that process would know about it.

Then, in recent days, DOJ made another audacious seizure of a lawyer’s communications, a seizure that only makes sense in the context of a larger obstruction investigation, this time of the January 6 investigation, yet more evidence that DOJ it not shying away from investigating Trump’s crimes.

Indeed, DOJ currently has investigations into all the nodes of the pardon dangles, too: Sidney Powell’s work for Trump on a thing of value (the Big Lie) while waiting for a Mike Flynn pardon; Roger Stone’s coordination with militias before and after he got his own pardon; promises to the Build the Wall crowd — promises kept only for Bannon — tied to efforts to help steal the election; and Rudy’s role at the center of all this.

There would be no reason to charge the pardon dangles from 2019 (the balance of the obstruction charges that Barr didn’t hopelessly sabotage) when DOJ has more evidence about pardon bribes from 2020, including the devices of the guy at the center of those efforts, and the direct tie to the January 6 coup attempt to tie it to. Indeed, attempting to charge the earlier dangles without implicating everything Trump got out of the pardons in his attempted coup would likely negatively impact an investigation into the more recent actions.

Even assuming Mueller packaged obstruction charges for DOJ to indict, rather than Congress to impeach, the deliberate sabotage Barr did in the interim makes most of those charges impossible. The exceptions — the pardon dangles — all have additional overt acts to include that sets aside Barr’s past declination.

DOJ cannot charge the Mueller obstruction charges. But they also cannot explain why not, partly because of the institutional necessity to move beyond Barr’s damage, but partly because doing so would damage the possibility of charging the continuation of that very same obstruction.

One obstruction crime is actually a conspiracy crime

I forgot one more detail that’s really important: One of the listed acts of obstruction, Trump’s efforts to have Jeff Sessions shut down the investigation, appears to be a Stone-related conspiracy crime. As I noted, that effort started nine days after Roger Stone told Julian Assange, “I am doing everything possible to address the issues at the highest level of Government.”

Especially given that it is among the weaker obstruction crimes, this is one that would be better pursued as a conspiracy crime (though it would be tangled up in the Assange extradition).

Update: As Jackson noted on Twitter, DC Circuit should soon weigh in on ABJ’s efforts to liberate more of Barr’s declination memo.

67 replies
  1. P J Evans says:

    There also seems to be a belief that all of the potential charges and investigations involving 1/6 and the former guy require that Garland sign off personally, as if he’s the only one at DOJ who can make decisions.

    • Ken Muldrew says:

      Charging a former president with crimes associated with his time in office is something that would have to be approved by the top executive. It’s a pretty serious matter.

  2. Rapier says:

    I’ve always known it as tragedy that we will never know what Mueller really thinks. I had thought that maybe someone from his shop would start blabbing out of school, but no.

    Mueller and Barr go way back together. Another layer of tragedy.

    • emptywheel says:

      I’m fairly confident not all members of his team understood parts of this. And I’m fairly confident that those that do won’t blab.

  3. Oldguy99 says:

    Thanks very much for this analysis, which in large part reflects the skill with which Bill Barr hamstrung a post-Trump DOJ. One thing that really struck me while reading it was the contrast between the skill of Barr and the apparent incompetence of Giuliani. It is hard to believe both were central to Trump’s dealings. Have you considered writing an an analysis of how the key lawyers advising and protecting Trump (maybe Cohen, Cipollone, McGahn, Barr and Giuliani) came into their roles and how they influenced the arc of the Trump administration? Something like that would make a pretty compelling book.

  4. Chris E says:

    I’m just a guy. And I’m ready to say fuck everything and grab our own fucking justice.

    [I’m letting your comment through this time to make a point: we do NOT advocate violence here, nor do we espouse vigilantism. This is what countries hostile to democracy want from us, a destabilization of democratic process. Demand more democracy and more rule of law instead of less. The next comment advocating violence as a solution or vigilantism in lieu of democracy will be binned. /~Rayne]

  5. SteveL says:

    It’s difficult for me to see Mueller—with his tremendous experience in DC as “naive” about the prospects of congress doing its duty on impeachment. I see him more as focused on fulfilling his proper role while recognizing his inability to control independent actors like congress.

    • emptywheel says:

      That’s a fair critique.

      I guess I should have said hopeful. If it had worked, there would have been an impeachment and DOJ could have pursued the other charges.

      One other thing Mueller was trying to do, I’m fairly certain, was to spin stuff off in such a way as to make them harder to kill (kind of like how Obi Wan said he’d be more powerful dead!). The Stone prosecution WASN’T for the crimes in chief, but it furthered that investigation, such that they might be able to pick up the pieces of it now.They didn’t add easily pardonable charges to Manafort before Turmp left and whatever else Trump did, he didn’t do preemptive pardons for Manafort and Stone’s Russian crimes. So it’s still possible those will get charged.

      So by shutting down when he did (before Barr fired him), he was able to stash prosecutions such as the one against Barrack away until such time as Barr wouldn’t obstruct them.

      • Jimmy Anderson says:

        Thank you – for your excellent setting out of the realities of the situation.

        “So by shutting down when he did (before Barr fired him), he was able to stash prosecutions such as the one against Barrack away until such time as Barr wouldn’t obstruct them.”

        ……and you left us with just a little glimmer of hope.

  6. WilliamOckham says:

    All of this AND pursuing obstruction charges from the Mueller report would be terrible for American democracy because it would be a distraction from what we really need DOJ to do right now: Roll up the criminal conspiracy to steal the election. Even though the coup is bigger than just the criminal conspiracy, it will be very difficult to stop it if the criminal participants get away.

    • Frank Anon says:

      I respectfully disagree that the investigation of potential foreign penetration of the highest levels of our government is any less dangerous than the 1/6 coup. I have wondered, for example, what motivated Donald Trump to tote one or two dozen boxes of papers to Mar a Lago when he couldn’t have cared about a single paper while in office. Was he directed, was he selling confidential material, was he fulfilling a role for the russians? And most importantly, judging from the disinfo going around on and about 1/6, are they tied together? I would think so, and I think the ties between them can only be discovered with investigations in parallel. My personal, unqualified pile of educated guesswork is that Trump was an asset of Russia, and almost everything that has occurred since 2016 is in some way attempts to hide and perpetuate this, including staging a coup to if not keep power, to at least create an epic distraction for something, anything. And I also think the amount of “useful idiots” is profound around 1/6, who may be clearly able to say what they did, but not convincingly why.

      • Norskeflamethrower says:

        “I respectfully disagree…”

        Me too!

        [Hey Norske, please do yourself and us a favor: check your username and email address for typos next time you comment. I’m having to correct your entries too often to clear auto-mod. Thanks. /~Rayne]

      • Norskieflamethrower says:

        “I respectfully disagree…”

        Me too!!

        [In case you missed this request in your previous comment: please do yourself and us a favor: check your username and email address for typos next time you comment. I’m having to correct your entries too often to clear auto-mod. Thanks. /~Rayne]

  7. Phaedrus says:

    I’m not in any way an expert in Law. What I see is a lawless President with public evidence of witness tampering, obstruction, document destruction, election fraud, bribery, and countless other crimes… many of these pointed out on this very blog. These have been known before, during and now after his presidency and yet I see nothing being done about it and, if history is any guide, nothing will be done.
    We watched Obama’s justice dept ignore torture and evidence destruction as well as massive bank fraud, document and title fraud and privacy laws being broken by government and corporations.
    Your posts tracking the ins and outs of some of these investigations are very interesting to me – but every time you castigate people for being impatient at high level criminality being ignored it smacks of naivete. I’m sure it must be galling for someone so knowledgeable to hear know-nothings pontificate in these realms… but they’re point isn’t wrong (though their analysis probably is).
    Maybe this is how it is all supposed to work… perhaps your time could be better spent explaining how what, to me, seems like ongoing and continual criminality by our leaders and corporations is actually justice and rule of law?

    (Note: I really love your work)

    • Rayne says:

      perhaps your time could be better spent explaining” <<-- this is a form of policing speech. Perhaps you could spend more time in your own state/province/county/municipality contributing to improved oversight and governance, making direct demands from your elected/appointed/hired officials to provide justice.

      • Phaedrus says:

        Yeah, I see how the tone could be taken that way… but it’s not my meaning.

        “That guy on TV complaining about a DOJ not doing anything about massive criminality is dumb. Not because the DOJ IS doing anything, we all know historically they don’t, but because .”

        So, yeah, Marcy et. al. are smarter than TV guy, but I think we all knew that (why I read this and don’t watch TV guy). This post is one of many, and I wanted to say that it seems like being pedantic about syntax on a sinking titanic.

        • emptywheel says:

          My complaint is entirely about people who admit they’re not familiar with the evidence mouthing off as if they’re qualified to talk about the evidence.

          That’s an anti-liberal stance — and frankly really dispiriting for someone who has kicked her ass for the last year to keep up with the firehose. It should not tolerated among self-described rational thinkers.

        • Phaedrus says:

          It’s your blog – write your passion. You are well within your rights to point out morons. I do the same in my field, and I’m sure people could launch the same criticism.

        • JVO says:

          Phaedrus, I think your points are spot on and I don’t see them as criticism of EW. I see them as properly phrasing the issue. Case in point: former US Attorney Alexander Acosta who gifted Epstein the non-pros deal. He was not the only one involved in making that happen! How far has the cancer spread in the DOJ? Barr has also had to account for nothing! While I appreciate the discussion regarding the speed of the DOJ, your shifting focus to the many substantial injustices left festering rings true with me. Where are Ghislaine’s little black book and Epstein’s hard drives? etc. etc. etc.
          Power corrupts. Absolute power corrupts absolutely.
          Money = Power!

  8. sleutherone says:

    Dr. Wheeler, you must have been reading my mind. This summarizes beautifully what I was trying to resolve in my head when I asked the question in the last post. I was looking at the list of pardons and how pardons work to see how Barr’s mucking up the pardon system mucked up downstream cases.

    The multi-pronged approach Barr used to protect Trump and those around him around him also included pressure on the AUSAs, such as Aaron Zelinsky in Stone’s case. Though IANAL I know lawyers hate to be witnesses. What are the odds that attorney testimony on these issues might be used in a downstream obstruction case?

    • Ed Walker says:

      Actually I’m not sure lawyers mind being witnesses. I’m pretty sure lawyers don’t want to call lawyers as witnesses, though. No matter how hard the advocate works at it, a good lawyer/witness can make sure their point comes into evidence.

      • sleutherone says:

        Mr. Walker, I see your point regarding attorney not wanting to call attorneys as witnesses. I have worked with criminal attorneys for most of my career and even provided training to them in my areas of expertise. That is where they have told me they do not wish to be called. It’s not that they fear it but that it complicates their case(s). It is in that vein I asked the question.

        It is unfortunate that so many attorneys had front row seats to so much of the wrongdoing related to these cases. It may be that they are the only witnesses and thus the only ones able to fill a particular hole and get to some of the covert crimes/criminals. Maybe there is no real answer to the question until more time passes and more of the cases are revealed. Thanks.

        • Leoghann says:

          More things are revealed as time passes, but only if those who are committed to uncovering the truth retain their commitment through hell and high water. Assuming our public school system hasn’t been repurposed to enforce religio-political indoctrination by then, I fully expect there to be statements in history and government texts that include the phrase, “now, of course, we know that . . . .”

  9. harpie says:

    Best sentence I’ve read in a long time [Thanks, Marcy!]:

    There would be no reason to charge the pardon dangles from 2019 (the balance of the obstruction charges that Barr didn’t hopelessly sabotage) when DOJ has more evidence about pardon bribes from 2020, including the devices of the guy at the center of those efforts, and the direct tie to the January 6 coup attempt to tie it to.

  10. Rugger9 says:

    I note a couple of things derived from the news this morning about the missing call logs. First, ewwwwww about where some of them reportedly ‘ended’ up. Second, how could Haberman, et al be remotely surprised that the WH staff would in all probability be using private phones (if not burners) precisely to avoid scrutiny. What will be done about the revelations remains to be seen.

    The fact that Individual-1 and his minions refused to stop their activities may have influenced Barr in leaving when he did. Barr left when he did to save his own skin from imminent prosecution, and the current ‘white hat rehabilitation tour’ is more proof of that. When Barr goes off this mortal coil he will have a whole lot to answer for which would land him in Dante’s Ninth Circle for betraying his nation. In the Nixon administration, IIRC the AG also went to prison for Watergate peccadillos.

    Something I still can’t figure out is why Karl Rove appears to have no involvement here given how many other sordid examples exist of his activities to establish the GQP as rulers of all America. It’s not like he has scruples beyond looking out for himself.

    While there are those who think Navarro’s subpoena is long overdue (including me) let’s not kid ourselves that any useful information will be developed because Navarro is a true MAGA warrior. However, it will get him on record under oath to be leveraged later.

    • Alan Charbonneau says:

      You recall correctly:
      John Newton Mitchell (September 15, 1913 – November 9, 1988) was an American convicted criminal, lawyer, the 67th Attorney General of the United States. Due to multiple crimes he committed in the Watergate affair, Mitchell was sentenced to prison in 1977 and served 19 months.

    • Leoghann says:

      Nixon’s AG, John Mitchell, did indeed go to prison for his “Watergate peccadilloes.” And, for those of us who clearly remember that wild time, bless Martha Mitchell’s heart!

      • KC says:

        Poor Martha, she never got enough credit. I was just getting going in college, actually taking class called “The American Presidency.” Prof was obviously liberal tho I didn’t realize it at the time. What I learned had me change my major from poli-sci / pre law to business. But Martha was the real deal.

  11. Paulka says:

    Does anyone wonder why the average American is losing faith with the American justice system and as an extension, democracy itself?

    • bmaz says:

      Frankly, what I wonder about is where people like you come to spew crap like that. Try going to some actual courts instead of blurting nonsense on a computer keyboard.

      • Paulka says:

        I find it disturbing that I have repeatedly been attacked for posting what is apparently unpopular opinions.

        Consider, if you will, the BLM protests of 2020. That was a result of the pent-up frustrations of the average American to racial injustice enacted by the police on the African American community for decades.

        What I contend, and I do see it echoed on this website, is that the rampant, and to date unpunished, blatant corruption by Trump and his cohorts, following on the heels of the crimes of the Bush era, is causing a lack of faith in the justice system. I will be thrilled to be proven wrong, but history has told us that Trump and the political leaders that caused 1/6 along with all of the crimes of the past 5 years will go generally unpunished.

        By all means, let the process play out. But be aware that the average American does not follow the intricacies of the legal wranglings. They see Trump blatantly flaunt the law, break it in front of their eyes and see nothing happen.

        That will lead to discontent. I don’t know what the left-wing equivalency to the MAGA world is, where they assault the Capitol. It certainly led to BLM, and before that, Occupy Wall Street. Fortunately, we tend to live in a fact-based reality. Perhaps the discontent will be expressed by avoiding the ballot box come this November or November 2024.

        Because NOT holding those obviously accountable will have negative impacts as much as trying and failing.

        I will add that attacking people who voice this discontent is counterproductive.

        • bmaz says:

          Ah yes, the same old repetitive claptrap. What is really “counterproductive” is repetitively blowing the same nonsense about a subject you clearly know little to nothing about. Again go spend some time in various courts, you might actually learn something.

        • JVO says:

          Bmaz, what if you and Paulka are both correct? Your refusal to even accept Paulka’s fair point and directly address it, proves his point imho!

        • RWood says:

          We’ve had this conversation already.

          Most here recognize the war being fought within the legal system, and like myself, are putting a great amount of faith into it being the solution to trump and his ilk.

          But there is another battle being fought, one of public perception, that is equal to if not greater in importance than the one being waged in the courtrooms.

          I’ve said before that this is a psychological warfare campaign being waged by the trump machine, and I was quickly dismissed when I said it, but I’ve seen nothing here, on CNBC, or any of the other left-leaning media to change my mind. The only way to fight such a campaign is to wage the same in return.

          To win against trump and his cult of followers will require both wars being fought, and taking a pass on the Mueller report is just handing them a win.

          Sometimes the fight is more important than the win. Such is the case here. We don’t need to win, we want the exposure the fight provides. Will they WIN by investigating trump, Barr, and the others involved in the Mueller report? No. Marcy has established that very well. But the investigation would shine a very bright light on what happened and why. Barr on the stand under oath explaining why he did the things he did is the win. It may not end in justice, but its certainly better then being seen as not even trying at all. In the PW war Barr on the stand is worth more than Barr in a jailcell.

          A great example of this is the numerous lawsuits filed by Sydney Powell. She never planned to win any of them, but they served their purpose by keeping the big lie alive and giving the cult something else to fear. So what if she ends up losing everything years later, the win they wanted was already accomplished and they’ve been stacking more wins on top of it ever since.

          What we think here on this blog is nothing compared to what the cult thinks, their numbers are greater, and until the dems start addressing that they are just bombing the ground the enemy walked on yesterday.

          If this battle is only fought in the courtrooms it will be lost.

        • gknight says:

          Very well said, RWood.
          And not only that, but I have recently become a great admirer of Dr. W’s great job here on this site. Thanks!

        • BobPDX says:

          Haven’t been here in a while. This site helped keep me sane for four long years :-)
          I see that bmaz is still lunging off the leash at people who write opinions different than his own, or that somehow don’t pass his standards. Gets old.
          I’ll check back some other time.

  12. skua says:

    The described institutionalism in the US government is probably as poisonous to the nation as the Catholic hierarchy’s institutionalism is to the credibility of the RCC.
    It will be a brighter day if fallible Horowitz eventually comes through.

  13. Charles says:

    “This [Rosenstein et als decision not to prosecute] was unbelievably corrupt. ”

    If the Justice Department fails to publicly repudiate it, then it leaves the impression that the Department remains corrupt.

    I realize that prosecuting Trump may be incredibly difficult, and that Barr’s Justice Department may have fouled those prosecutions to make them even more difficult. There may even be the practical reason that Trump has left DoJ easier crimes to prosecute. Maybe they don’t want to flood the zone with so many indictments that it gives Trump an opportunity to further delay consequences. None of us knows the reasoning for DoJ not prosecuting.

    But there are a number of reasons why leaving the obstruction stone unturned represents a failure of DoJ. Obviously it undermines public confidence, increasing the sense that there are two systems of justice, and creates an undesirable departmental precedent. It also further enshrines the notion that norms need to be respected even when doing so causes serious harm.

    But the most important reason is seen in the bigger picture. There is an ongoing breakdown in the rule of law that is seen in the intimidation of lawmakers and public officials, the open parades of white nationalists and attacks on historically black colleges and universities, the refusals to cooperate with the January 6 Committee, the resistance to public health measures, and dangerous protests like the truckers’ blockades. States like Florida and Ohio are refusing to recognize binding referenda. The Supreme Court’s actions in the shadow docket have abrogated legally-protected rights. There haven’t been significant consequences for many powerful wrongdoers in the last 30 years. Enron, the financial crisis, the torture of prisoners, massive tax evasion…. all through this country, we see the rule of law weaken as the rich and powerful discover that they can do anything.

    This sort of thing feeds on itself. It can only be stopped by making examples of some rich and powerful people so that others re-calculate their actions.

    I don’t know whether the Mueller obstruction charges are the right place to start that process.

    I do know that it has to start somewhere.

    And I know that Trump is the most conspicuous example of a powerful lawbreaker.

    • Leoghann says:

      One of the reasons I hate Facebook as a forum is the ease with which someone can comment based on the heading of the original post, without having read a damned word of the linked article (or, usually, the comment thread). With what you just wrote, you’ve proven that you did exactly that. It would be nice if you’d go back and read Marcy’s post, beyond “this was unbelievably corrupt.” Who knows? You might learn something.

      • Charles says:

        You’re wrong on so many levels.

        I read Marcy’s feed regularly. I read her posts regularly, including this one. I’ve listened to arguments from legal experts such as I visit Facebook maybe once a month. I’ve defended her against attacks by people like Aaron Mate and Walt Shaub.

        I also support a number of organizations that promote independent journalism and press freedom. And it’s because of abusive posts like yours on Emptywheel that I refuse to contribute to this website and her operations. We–all who care about keeping this a democracy– need an independent media, yes. But we do not need abusers.

  14. Rugger9 says:

    I see a report on DKos that Individual-1 included some Top Secret and TS-SCI documents in his boxes hauled off to Mar-A-Lago. Not only is that illegal as hell (and as a former POTUS, he lost his power to ‘insta-declassify’ with pixie dust) but it also makes me wonder if and when these were shared with Vlad.

    • Anon_Jj99 says:

      it’s lucky for Trump that he’s just a privileged white man openly confessing to past crimes and promising to commit more of them, and not, for example, a black man selling loose cigarettes on a street corner, because there are serious consequences for that

      [Welcome to emptywheel. Please use a more differentiated username when you comment next as we have had numerous community members who’ve posted under some variant of “Anon.” I’ve changed your username this time so it’s distinctive; stick with this in future comments or use something else besides just “Anon.” Thanks. /~Rayne]

    • skua says:

      Re secret documents taken to Mar-A-Lago:
      Is the declassification process mandated by law or regulation?
      If regulation then 45 could say that the removal was de facto declassification by the then POTUS?
      I hope otherwise and that this matter leads to a ceasation of Trump’s corruptions.

      • P J Evans says:

        “De facto declassification” is the pixie-dust stuff. There is a legal procedure, and even presidents are supposed to follow it, but like so many other procedures, the former guy didn’t, and we’re learning after the fact that enforcement of so much is tradition rather than reality.

        • skua says:

          Looks like another instance where the unforseen situation, of Congress twice refusing to hold a POTUS to adequate standards, and about half of the actual voters declaring a con-artist to be a great leader, has the national security processes of the republic failing.
          To me the pixie dust looks more like our faith in tradition and normal procedure being followed when there are no criminal penalties for breaches.

        • Leoghann says:

          I’m really hoping that, once the Congressional Democrats increase their majorities in the 2022 election, one priority becomes putting some enforcement-sharp teeth into some of the laws, like the Hatch and Presidential Records Acts. Of course it won’t help the current situation, but it should prevent future scoff-laws from following in 45’s footsteps.

        • KC says:

          I’d say its more adherence has been tradition and honorable, Trump demonstrated the most critical traditions need to be codified, w/enforcement and penalty severe enough to deter.

  15. Ddub says:

    Thanks for this fantastic analysis.
    There sure is something going on as the Senate Republican leadership and TFVP to TFG all remembered that it was a fair election at the same time.
    A shared decision, new information? Either way it would seem to bode if not well at least better.

  16. Dopey-o says:

    Question for BMAZ and other attorneys here. Regarding all the complaints that Garland should step up and indict all the perps, Tomi Ahonen writes that the DOJ is staffed with 10,000+ career professionals who want to enforce the law.

    He goes on to catalog all the investigations under the Trump administration, and seems confident that the mills of justice are grinding away.

    Ahonen’s calm tone makes me want to believe his analysis. Right or wrong?
    Recalls the expression “Steely-eyed rocket man.”

    • Leoghann says:

      There have been a few commenters in the past year who have compared the current Jan6 time frames to those of other big prosecutions, none of which were even a tenth the size of this one. I’d invite you to research a few cases for comparative data. You’ll realize that Garland’s DOJ is actually kicking ass.

      Thanks to its algorithms, my Google news feed gives me, daily, several case publications from DOJ. I can assure you that everything else isn’t going wanting, while all the prosecutors work on the insurrection.

    • emptywheel says:

      I find Ahonen really unreliable. They did a thread on the Oath Keepers once that was just made up out of thin air.

  17. KC says:

    I’m new here, kind of stumbled in. I thank you so very much for the detailed explanations … I want to know as much of the truth as possible, esp when it conflicts with what I may have otherwise believed to be correct, objective, and factual.

    It is amazing that *anyone* can fully grasp and follow this true rat’s nest and as you say, firehose, of endless revelations and activity. My unwavering respect and appreciation.

  18. Randy says:

    “So unless DOJ were to formally disavow this decision after laying out the reasons why the process was corrupt …” And DOJ won’t do this because? I am pretty sure John Mitchell would have invoked this rule if it existed.

  19. Christopher Rocco says:

    Looks like the latest FOIA request came through and there’s another version of the Mueller report released, which reveals declinations to charge junior and Stone. Reported by Buzzfeed and The Daily Beast.

  20. gknight says:

    Very well said, RWood.
    And not only that, but I have recently become a great admirer of Dr. W’s great job here on this site. Thanks!

  21. Thomas says:

    I am just blown away, Dr Wheeler.
    You just cleared up a LOT of misunderstandings that I had.
    In addition, given your assessment, it seems that there are investigations ongoing that are simpler than the ones that I was awaiting, which still address the obstruction OMERTA and the original central crime, AND which are not tainted by Barr’s criminal meddling.
    I am amazed by your encyclopedic talents to construct narratives that are within the confines of legal possibility.
    Thank you.

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