“Fill the Silence:” On Obstruction, Listen to DOJ and Merrick Garland

Happy Valentines Day, the day on which TV lawyers proclaim that DOJ has let the statutes of limitation on Trump crimes expire, in this case, Trump’s request of Jim Comey that he let the Mike Flynn investigation go.

As I noted in a relevant post last week, Randall Eliason wrote a column last week demanding that the “Biden Justice Department [] issue a report on the Mueller report.”

Today, Ben Wittes and Quinta Juercic wrote a worthwhile piece positing five different possibilities for how Garland dealt with the Mueller Report. Those five are:

  1. “Garland considers the matter closed as a result of Barr’s having closed it.”
  2. DOJ “review[ed] Barr’s judgment but agrees with him on any of a number of legal positions that would make a prosecution of the former president nearly impossible.”
  3. DOJ “quietly reopened the matter, at least for paper review—that is, not for investigation but to review the conclusions based on the collected evidence—and agreed with Barr’s judgments on the facts.”
  4. DOJ “quietly began reviewing Barr’s judgment and is letting certain statutes of limitations lapse because it considers the later fact patterns more plausible criminal cases than the earlier ones.”
  5. “The Garland-run Justice Department never even considered the question of whether to, well, consider the question.”

It’s a worthwhile piece because it gets inside the brain of a DOJ institutionalist and attempts to game out how they might think.

But their discussion is absolutely silent about several pieces of public evidence showing Garland’s DOJ taking action, even while demanding that Garland, himself, “fill the silence.”

That is, they make the mistake of claiming DOJ has been entirely silent. It has not been. They simply haven’t listened to what DOJ has already said.

“The matter” was not closed as of November 2020

Jurecic and Wittes treat “this matter” as a self-evident whole, without defining what they mean by it. I assume when they use the term, “this matter,” they’re referring to Trump’s obstructive actions described in the second Volume of the Mueller Report.

Such shorthand is why, in my own post, I pointed out that most people engaging in this discussion (and I include Jurecic and Wittes in this group), account for the fact not all of Trump’s criminal exposure was in the second Volume. Materials unsealed in September 2020, for example, confirm that DOJ continued to investigate Trump for a big infusion of cash from an Egyptian bank in September 2016 until that summer (CNN’s reporting on it confirmed that timing).

A footnote unsealed (and therefore buried and still all-but unreported) the day before the 2020 election revealed that the investigation into whether Roger Stone conspired with Russia continued after Mueller shut down. Redactions that (in an earlier release) were identified as relating to the Stone matter treated that matter as an ongoing investigation in November 2020.

Similarly, in October 2020, DOJ treated the investigation into a pardon dangle for Julian Assange as an ongoing investigation. In fact, one of the issues that Lawfare treats as exclusively a matter of obstruction –Trump’s direction to Corey Lewandowski to order Jeff Sessions to shut down the entire Russian investigation — likely relates closely to the pardon dangle to Assange, because it came days after Stone told Assange he was intervening with the highest level of government to alleviate Assange’s woes.

We don’t know how many of the ten referrals still redacted in November 2020 remain ongoing; when DOJ released information to Jason Leopold last week, they just chose to release the four pages covered by a DC Circuit order and not a full reissued report. But we do know that “the matter” of the Mueller investigation was not closed as recently as November 2020.

DOJ IG was investigating follow-on obstruction

Both before Trump was ousted by voters and since, reports confirmed that DOJ’s Inspector General was investigating things that should be treated as follow-on obstruction, most explicitly Billy Barr’s efforts to undercut the Roger Stone prosecution but also Barr’s preferential treatment of Paul Manafort as compared to Michael Cohen (the latter will be part of Michael Horowitz’s review of BOP COVID response). Given DOJ IG’s past work, it’s not clear that this will be very critical of Barr’s own role.

One way or another, though, we have weeks-old confirmation that some of it remains under review. Depending on what DOJ IG finds, it’s possible (though unlikely) that might provide predicate to reopen past decisions.

But such a review also means that, because DOJ IG reviews add years to any investigative process, there will be a significant delay before we hear about such matters.

Merrick Garland has told you what he thinks about the OLC memo on prosecuting a President (and, to a lesser extent, OLC memos generally)

Two of Lawfare’s possibilities, especially the second, rely on a deference to OLC, including the declination memo that Amy Berman Jackson partially unsealed (and about which further unsealing the DC Circuit is currently considering).

We know that Garland’s DOJ will defer to most previous OLC memos, in part because his DOJ did so in fighting further unsealing of this memo. But we know even more about what Garland thinks of the memo prohibiting charging a president from an exchange on the topic Garland had with Eric Swalwell in October.

Garland: Well, Office of Legal Counsel memoranda, particularly when they’ve been reviewed and affirmed by Attorneys General and Assistant Attorneys General of both parties, it’s extremely rare to reverse them, and we have the same kind of respect for our precedents as the courts do. I think it’s also would not normally be under consideration unless there was an actual issue arising and I’m not aware of that issue arising now. So I don’t want to make a commitment on this question.

Swalwell: I don’t want to talk about any specific case but, just, in general, should a former President’s suspected crimes, once they’re out of office, be investigated by the Department of Justice?

Garland: Again, without, I don’t want to make any discussion about any particular former President or anything else. The memorandum that you’re talking about is limited to acts while the person was in office, and that’s all I can say.

Swalwell: And should that decision be made only after an investigation takes place before deciding beforehand a general principle of we’re not going to investigate a former President at all? Would you agree that if there are facts, those should be looked at?

Garland: Again, you’re pushing me very close to a line that I do not intend to cross. We always look at the facts and we always look at the law in any matter before making a determination.

In the exchange, Garland makes quite clear that, “it’s extremely rare to reverse” OLC memos because, “we have the same kind of respect for our precedents as the courts do.” Garland also explained that memo and any others (including Barr’s declination memo), “would not normally be under consideration unless there was an actual issue arising and I’m not aware of that issue arising now.”

One reason the memo is not at issue right now is because, “The memorandum that you’re talking about is limited to acts while the person was in office.” But as has often been ignored (though I pointed it out last month), the most recent known version of an OLC memo prohibiting the indictment of a sitting president is significantly premised on the constitutionality of a President being prosecuted after he leaves office even if he was acquitted by the Senate for the same conduct in an impeachment trial.

Randolph Moss, serving as Assistant Attorney General for OLC in 2000, famously wrote the following:

Our view remains that a sitting President is constitutionally immune from indictment and criminal prosecution.

Less famously, however, the first 11 pages of that more famous memo rely on this earlier OLC memo from Moss:

We conclude that the Constitution permits a former President to be criminally prosecuted for the same offenses for which he was impeached by the House and acquitted by the Senate while in office.

By stating that those odious OLC memos remain valid — that is, by deferring to OLC precedent — Garland was in the same breath saying that a former President can be indicted, including for things he was acquitted of in the Senate.

Obviously, Mueller’s findings never made it to the Senate. But Trump’s attempt to coerce Ukraine did and Trump’s attempted coup did.

There are four relevant investigations that tell you how Garland’s DOJ has approached this

In their piece and podcast, Jurecic and Wittes speak as if what Garland would do is entirely hypothetical, as if we don’t know what DOJ would consider palatable regarding earlier criminal exposure.

Except we do know, a bit, because four of the eight investigations into Trump flunkies that have been publicly confirmed provide some insight. For example:

  • Tom Barrack: Barrack confirmed in a recent filing what prior reporting had laid out: this investigation arose out of the Mueller investigation. “As early as December 2017, Mr. Barrack voluntarily produced documents and met with prosecutors in the Special Counsel’s Office investigation, which was led by Robert Mueller and included prosecutors from the Eastern District of New York.” It’s possible it was the first of those ten referrals that remained sealed in November 2020. If it was, it is an indication DOJ would pursue a prosecution arising out of the Mueller investigation that was substantially complete before Trump left, though even in that case it took four months after Garland was sworn in.
  • Erik Prince: It’s not clear whether the investigation into Erik Prince that Billy Barr shut down in 2019-2020 arose out of the Mueller investigation (though it is clear that any Mueller investigation into Prince had been closed by September 2020). I first alluded to a renewed investigation into Prince in this post, and NYT has since publicly confirmed it. I’m no more certain about the scope of the renewed investigation than the NYT, but I do know it is in a different District and it does overlap with the prior investigation, at least somewhat. That doesn’t tell you what DOJ would require to reopen a closed Mueller investigation, but it does show that Lisa Monaco would permit a prior, closed investigation to be reopened, perhaps with a new hook or newly acquired evidence.
  • Rudy Giuliani: The confirmed investigation into Rudy pertains to his Ukraine influence-peddling with a scope from May 2018 through November 2019. As such, except insofar as those actions were a continuation of efforts Paul Manafort had started in 2016, they say nothing about how Garland would treat a continuing Mueller investigation. But we do know one utterly critical fact and another key detail: First, the warrants to seize Rudy’s phones were approved on Monaco’s first day in office. That’s a pretty compelling piece of proof that Garland’s DOJ is not going to shy away from Trump’s closest flunkies. Significantly, SDNY successfully fought to get a privilege waiver spanning from January 1, 2018 (so before Rudy started Trump obstruct the Mueller investigation) through the date of seizure, April 28, 2021 (so through the attempted coup). This tells you that Garland’s DOJ could investigate Rudy for any of his suspected criminal actions, and no one would know about it.
  • Robert Costello: Costello is the lawyer through whom, the Mueller Report describes, Rudy was dangling a pardon for Michael Cohen for back in April 2018 (so within the scope of the privilege review). Currently, he is both Rudy’s lawyer overseeing that privilege review and Steve Bannon’s lawyer. After getting Bannon out of his Build the Wall fraud indictment with a pardon (sound familiar?), Costello helped Bannon walk into a contempt indictment based off non-cooperation with the January 6 investigation. All that background establishes that Costello is just tangential to the Mueller Report (though where he appears, he appears as part of the efforts to obstruct the investigation). But the details of DOJ’s seizure of Costello’s toll records after he made some contradictory claims in FBI interviews on the Bannon contempt case are worth examining closely. That’s because DOJ’s interest in the toll records cannot pertain solely to the January 6 subpoena to Bannon; the scope of the seizure not only predates the subpoena, but predates the establishment of the committee entirely (and happens to cover the entirety of the privilege review Costello oversaw). It’s tough to know what to make of this, but it is indication, like the approval of warrants targeting Rudy, that Garland’s DOJ will take fairly aggressive action pursuing obstruction and other crimes.

Trump is likely on the hook for other obstructive actions

The Lawfare piece claims that, aside from the pardons of Manafort, Stone, and Flynn, there’s no new evidence pertaining to Mueller-related obstruction (and other crimes).

And it’s not like new evidence has emerged since Mueller issued his reports—save the 2020 pardons of Manafort, Stone and Flynn.

But that’s not true. On top of whatever evidence DC USAO obtained on Stone after Mueller shut down (one of which was Andrew Miller’s long-awaited testimony), the government appears to have obtained more evidence on the other example of direct conspiracy with Russia. In the years since Mueller finished, the government has apparently developed new certainty about two details Mueller expressed uncertainty about: Konstantin Kilimnik is a “known Russian Intelligence Services agent,” and he, “provided the Russian Intelligence Services with sensitive information on polling and campaign strategy” in 2016. That suggests DOJ obtained new evidence (and may be why FBI put a $250,000 reward out for Kilimnik’s arrest in summer 2020). Whatever new details are behind this increased certainty, it could change DOJ’s understanding of Manafort’s actions as well. Add in the fact that Treasury accuses Kilimnik of continuing such information operations into the 2020 election — when Rudy was the pivot point — and Trump’s three big scandals may be converging.

But there may well be other obstructive acts, pertaining to the Mueller crimes, as well. Amid all the discussion of Trump’s destruction or removal of classified Presidential Records when he left the White House, for example, there has been little consideration about whether any of those documents pertain to Mueller or the other two investigations Trump obstructed. The January 6 Commission has already confirmed, for example, that some of the Trump documents they obtained were ripped up, and since the investigation into January 6 started immediately, it is highly likely the attempted document destruction happened while the investigation was pending. CNN’s most recent update on Trump’s stand-off with the Archives (in which someone who sounds like Impeachment One Defense Attorney Pat Philbin refused to turn over a document NARA knew to come looking for) is consistent with obstruction, possibly tied to the original Perfect Transcript.

None of this is proof of discrete new evidence on obstruction. Rather, it looks more like the never-ending wave of obstruction all runs together, with the pardons for Stone and Flynn (either, like Stone, known to be under investigation or closely tied to someone, Sidney Powell, known to be)  linking the obstruction of Mueller with the implementation of the coup attempt.

I can’t explain what, precisely, Garland’s DOJ is doing with the Mueller Report (besides prosecuting Trump’s top donor as a foreign agent on a referral from it). But it is simply false that DOJ has been silent about it.

Where DOJ has been speaking, however, is in active dockets and not in a three year old report.

116 replies
  1. Ken Haylock says:

    Trump literally attempted to shut down the Mueller investigation on multiple occasions, & then installed William Barr as AG, prima-facie specifically because he wrote him a letter that tied itself in knots to explain why Trump hadn’t obstructed justice in his view, & because he once covered up Ronald Reagan’s crimes in Iran Contra, [which crimes at least had the slight merit that they were committed in pursuit of depraved US foreign policy rather than being entirely personally self-serving]. If Trump cannot be prosecuted for explicitly attempting to shut down the Mueller investigation into his own criminal activity while in office, then no president will ever be subject to criminal investigation again, however egregious the crimes.

  2. Byandlarge says:

    “ That doesn’t tell you what DOJ would require to reopen a closed Mueller investigation, but it does show that Mueller will permit a prior, closed investigation to be reopened, perhaps with a new hook or newly acquired evidence.”

    Did you mean “… Garland will permit…”?

    Thanks for all you do, Dr. Wheeler! Always love your detailed, informed perspectives.

  3. Ben Soares says:

    Oleg Deripaska can sort this whole mess out, with a story of his choosing.

    I always fall back to Pelosi’s choice of the word ” Imposter” , of all the words she could use, she rests on imposter.

  4. DrFunguy says:

    Incomplete sentence?
    “ Such shorthand is why, in my own post, I pointed out that most people engaging in this discussion (and I include Jurecic and Wittes in this group), [ARE MISSING THE FACT THAT?] not all of Trump’s criminal exposure was in the second Volume.”

    • emptywheel says:

      Yes, see above. I especially needed an editor today. I blame the sea, the sun, and the Terrorist Foster Dog.

      • Rugger9 says:

        My Fierce Creature princess terrier blames squirrels, skateboarders and other riff-raff.

        Anyhow on Molly’s OT below, let’s remember that Garland’s not even close to the only opportunity for Individual-1 to face some serious liability (criminal and otherwise) and to have Mazars essentially start the process to turn state’s evidence is a big deal indeed. They know where everything sloshed in TrumpOrg finances.

        Of course, that means someone (like NYS AG Letitia James) would need to take this latest gift and prosecute. Will Garland’s DoJ do it? He should but that depends on how much the IRS gives him to work with.

        • Leoghann says:

          I very seldom do a double-take on the news, but I did on the Mazar’s item. This potentially opens up a whole new Special Kingdom of Suffering for the the Fraudulent Family.

          • Rugger9 says:

            One of the talking heads noted that because Mazars said the TrumpOrg data couldn’t be relied upon for years that revelation may lead to loans being called in early because the material breach in making the contracts and their valuation.

            Eric of course vows to go after the NYS AG and Mazars with all the rage of dreaming sheep. Good luck with that, Eric (who didn’t even get Individual-1 to take his phone call on J6). One wonders how family life is with Lara these days given the different levels of respect between them in MAGA world.

    • harpie says:

      And the UPDATE on that CNN article elicited from me:
      What about documents from 2016/17 transition period?

      This story has been updated to remove a specific reference as to where boxes were stored in Mar-a-Lago. The previous location mentioned was where documents were kept during his presidency, and the current location is not known.

      Now there is a new sentence added to that update:

      The story has also been updated Sunday to include a statement from the GSA.

      GSA’s Emily MURPHY refused to allow a normal transition to a BIDEN administration.
      TRUMP did nothing BUT OBSTRUCT a peaceful transfer of power.

      • Bay State Librul says:

        This is all good news.
        However, can someone tell me the scenario if DOJ fails to act.
        I need to know the worst-case scenario, so I can prepare to leave the country, and take up citizenship in Ireland.

      • Rugger9 says:

        Former GSA head Murphy could be considered an accessory IF (big if) criminality beyond mere incompetence could be proven. Recall that her schtick was that she couldn’t act on the transition while the election was still in doubt, which provided cover and time for Individual-1 to potentially haul stuff off (although that particular “when” isn’t clear to me yet). Whether Murphy knew that record-napping was going on is what has to be established. I don’t think there is enough evidence yet to nail her to the wall.

        Has anyone been able to confirm when things went to Mar-A-Lago (and Bedminster, Doral, etc.)? Those would be periods when the classified docs would be most subject to sharing with non-patriots foreign (like Vlad and MBS) and domestic (like Flynn, PBs, OKs, etc.) and likely subsequent transmission to other adversaries.

    • FL Resister says:

      Paul McLeod of BuzzFeed has put up a brilliant thread on the trucker fiasco.

      Paul McLeod@pdmcleod·2h
      Anti-mandate protesters are holding a twitter space “emergency meeting” in response to the state of emergency.

      One who was at the Windsor/Detroit border blockade tells a story of how their communications were infiltrated, leading to organizational collapse…

      Paul McLeod@pdmcleod·2h
      Protesters were using Zello, a live communications app. The problem was counter-protesters were spamming their channels with the gay cowboy anthem Ram Ranch.

      Paul McLeod@pdmcleod·2h
      So they moved to a new channel. The problem was the moderator of the channel turned out to be a double agent. “This person gained our trust. We trusted them as a moderator,” the guy says.

      “Traitor! Traitor!” another person yells.

      Paul McLeod@pdmcleod·2h
      That moderator who turned out to be “part of the resistence” apparently shut things down and ruined their ability to communicate, allowing the police to roll up the blockade. “It’s a morale blow,” he said.

      Another guy adds: “What a clusterfuck.”

      Paul McLeod@pdmcleod·2h
      Aaaand someone started playing Ram Ranch on this feed.

      “Christ on a cross!” one protester yells.

      Paul McLeod@pdmcleod
      Things have kind of fallen apart as the resistance infiltrates the space. “Yeah I’ve got a plan. Why don’t we go full court press tonight. I mean full court press. Fuck these cops,” says one guy though honestly I’ve lost track of who is legit and who is mocking them.

      [FYI, I’ve tried to clean up this comment to make it readable. Next time please just point to the Twitter thread (the link has also had tracking removed) and give a brief summary about the thread. I don’t have the time to make a habit of editing comments for legibility, even if the self-pwnage is epic. /~Rayne]

      • FL Resister says:

        My sincere apologies for the above sloppiness.
        I ran out of time to repair. Please please edit at will.
        The main point is, McLeod wasn’t able to tell who was spoofing and who were themselves.

  5. Jeremy Daw says:

    “Garland: Well, Office of Legal Counsel memoranda, particularly when they’ve been reviewed and affirmed by Attorneys General and Assistant Attorneys General of both parties, it’s extremely rare to reverse them, and we have the same kind of respect for our precedents as the courts do.”

    Question, is he aware of SC actively tossing precedent? Would this affect his decision making?

  6. harpie says:

    Marcy, the other day, you tweeted [regarding that CNN article]:

    6:12 PM · Feb 11, 2022

    This is confusing bc it seems to point to Pat Philbin (tho John Eisenberg was involved in this stuff), bc neither was overtly a Trump Impeachment 2.0 defense attorney.

    If it was Eisenberg, it’d be hugely problematic since he helped hide the Ukraine transcript.

    Is Eisenberg a possibility?

  7. Molly Pitcher says:

    Important OT from the NYT:


    “Accounting Firm Cuts Ties With Trump and Retracts Financial Statements”

    “Donald J. Trump’s longtime accounting firm abruptly cut ties with his family business last week amid ongoing criminal and civil investigations into whether Mr. Trump illegally inflated the value of his assets, court documents filed on Monday show…..

    The letter [ to the Trump Organization on Feb. 9,] instructed the Trump Organization to essentially retract the documents, known as statements of financial condition, from 2011 to 2020. In the letter, Mazars noted that the firm had not “as a whole” found material discrepancies between the information the Trump Organization provided and the actual value of Mr. Trump’s assets. But given what it called “the totality of circumstances,” the letter directed the Trump Organization to notify anyone who received the statements that they should no longer rely on them.”

    • TooLoose LeTruck says:


      I was just about to comment on this very same bit of news and you beat me to it.

      From an NBC article on the same:

      “In a letter from Mazars Group General Counsel William J. Kelly to Trump Organization Chief Legal Officer Alan Garten, the auditing firm said its work from 2011 to 2020 is “should not be relied upon.”

      A frickin’ DECADE’S worth of financial statements down the proverbial toilet… somehow that metaphor seems appropriate in the moment.

      As they say in Scotland… Oouch’mon!

      And those bad numbers are undoubtedly also laced into the Trump Org’s federal tax returns… for any tax return I ever helped with, the numbers always flowed downhill from the federal to the state return, and not the other way around… and I find it next to impossible to believe the Trump Org would be so… daft… as to produce one set of bogus numbers for the state return but not use the same numbers in the federal return, or even produce a completely different set of bogus numbers for the federal return…

      I might be wrong… but…

      • vicks says:

        If lying is the only way the Trump Organization could qualify for loans this could/should cut off his ability to obtain any new (legit) financing, and I’m NOT an expert, but existing lenders MAY now have a fiduciary responsibility to investigate whether or not mis-information affected the approval of any loans Trump currently holds with their banks.

        • TooLoose LeTruck says:

          I would think what you just said here is almost undoubtedly true…

          I’m not a full fledged CPA but I have a couple of decades of experience handling money as a full charge bookkeeper and accountant… I’ve produced hundreds of sets of financial statements and assisted on multiple tax returns over the years.

          I read what’s being said here today in these news releases and I just keep hearing rather loud explosions coming from within Trumpworld…

          I could be wrong but I don’t think I am…

          To have your longtime accountants suddenly back away from a decade of work done on your behalf, at your behest?

            • BobCon says:

              I think with Trump it’s reasonable not to assume anything until more facts are in. For all we know the taxes are fine but there’s a weird financial fraud involving the cryogenically frozen brain of Fred and 12 muskrats. Heavens help the government accountants who have been working on this case.

              But I think it’s fair to say that this is a flashing red alert for creditors that if they don’t see Eric, Ivanka and Junior showing up in their offices with briefcases full of Krugerrands first thing tomorrow morning, it’s time to cancel all lines of credit.

              • Badger Robert says:

                Firm counsel took a look at the statements and realized none of the information had been audited. It was all based on submissions by the client. Counsel is looking for a way to limit the liability of the company to the Trump businesses that might claim the accountants are responsible for the unaudited information, or the creditors.
                But if asset/liability statements and profit/loss statements are imaginary, then some of losses claimed against taxable income were probably fictitious.

                • TooLoose LeTruck says:

                  Probably fictitious?

                  None of the information had been audited?

                  Given the Trump family’s reputation going back multiple decades, I’m having a hard time believing Mazars did Trump’s financials for the ten years in the news and never wondered if the numbers were bad… which makes me suspect Mazars somehow knew what they were doing…

                  Now that this has erputed to the degree that it has, it s/b interesting to watch the involved parties try to assign blame to the other side.

                  • bmaz says:

                    Right? These questions have been evident for a very long time. But the rats are really scurrying now. And this is unlikely to clear Mazars of much. But they probably had to cut the line somewhere, even if too late.

                  • earlofhuntingdon says:

                    Mazars worked for the Trump family for much longer than the last ten years. More like the last forty. David Cay Johnston would have the details, but I think the relationship started with Fred Trump, Donald’s daddy.

                    The last ten, though, are the most relevant and will probably pick up a few open tax years, not to mention the financials used with virtually all of Trump’s current debt.

                    The warning from Mazars would make most lenders deem their debt relationship “reasonably insecure,” which would trigger reviews, demands for more collateral, or calls on that debt. It’s what happens when you remove a bottom card in the Trump House of Cards.

                  • P J Evans says:

                    Apparently they had one person who handled all of the former guy’s accounts. So it’s possible that no one else ever saw any of the paperwork on either side.

                  • Eureka says:

                    Minimally, Trump side iteratively cooked the books in interaction with Bender for Mazars (who, being part of it, would have been aware of this procedure — and any discrepancies — if not responsible for advice prompting changes for the final numbers):

                    Jeff McConney, Trump’s Loyal, ‘Low Profile’ Money Man Who Could Bring Him Down
                    Asawin Suebsaeng Jose Pagliery Updated Jun. 11, 2021 1:12PM ET / Published Jun. 10, 2021 8:17PM ET

                    But while McConney developed a trusted reputation, and had the responsibility of monitoring the money flow, he was kept out of the room when the company’s top officials got creative with financial statements, according to one source with direct knowledge of the company’s inner workings.

                    For example, when it came time to prepare tax paperwork, McConney would bring printouts of the company’s numbers and meet one-one-one with Weisselberg. At that point, he’d leave the room, and Weisselberg would discuss the documents with the company’s go-to taxman at Mazars USA, Donald Bender. Those two would then be joined by Donald Trump himself—and then Bender would eventually leave the room so that just Weisselberg and Trump could finalize the numbers as they saw fit, this source said.

                    That process was alluded to in an October 2007 issue of Worth magazine, where Trump praised his core in-house financial advisers, singling out people like McConney and Weisselberg.

                    “I listen to what they have to say, and make my own decisions in the final analysis,” Trump told Worth. “I know the responsibility rests with me, but I have excellent people and I respect their input.”

                    Trump continued that Weisselberg, McConney, and assistant controller Eric Sacher all worked well together. “I meet with them as we need to, maybe a couple of times a week, and with Allen on a daily basis,” he said.

                    internal link removed, emphasis added.

                    Not sure throwing up hands and a disclaimer will cover this (see CJ’s comment just below citing ProPublica).

                • CJ says:

                  The Pro Publica piece from a few years ago (https://www.propublica.org/article/meet-the-shadowy-accountants-who-do-trumps-taxes-and-help-him-seem-richer-than-he-is) suggests that there were extensive disclaimers on at least some of the statements explicitly indicating that they were unaudited:

                  > A two-page disclaimer explained that the report (which claimed a net worth of $3.5 billion) was based entirely on “the representation of the individual whose financial statements are presented.” In other words, all the numbers came from Trump.

            • earlofhuntingdon says:

              If I recall correctly from one of the exposes, one Mazars partner did all the Trump work, work that was segregated from other, presumably real, accounting work. Wonder if that partner remains with the firm.

              The bigger scandal is why these non-audit, non-substantive review letters exist in the accounting world. They create the appearance of propriety, while verifying virtually no accounting information. Trump benefited from them for decades. How many other questionable businesses have as well?

              [NB: lost two earlier comments from this thread, from about 4.45 pm.]

              [Your comments have been freed from auto-mod. Not certain why they went in the holding bin, could be security is ratcheted up./~Rayne]

              • earlofhuntingdon says:

                Mazars explicitly did not conduct audits or standard reviews of the supposedly financial information Trump or his organization supplied them. It seems to have accepted at face value whatever Trump’s people told them, and limited itself to checking the arithmetic.

                The arrangement would have been worked out by Trump, but it seems to have been the same one worked out by Trump’s dad when he ran the business.

              • MB says:

                If I recall correctly from one of the exposes, one Mazars partner did all the Trump work
                FYI, yes you recall correctly and the Mazars guy who “specialized” in only working for Trump – his name is David Baker.

                  • MB says:

                    U R correct!

                    For some reason, I was searching for Donald Baker, found nothing on that name, then tried David Baker and he was a Mazars guy, therefore 2 + 2 = 5. (I knew the initials were DB anyway)…

              • Leoghann says:

                I’ve read it was a different Mazar’s partner who was exclusively tasked with the Trump, et.al. work. That would be Donald Bender, who is identified as a “long-time executive” of the company.

              • Rayne says:

                Mazars’ executives might still have exposure since they would have allowed the compartmentalization of the Trump org business in a way that avoided adequate oversight. I can’t recall what the code might be but I’m fairly certain there’s a conspiracy charge related to this kind of fuzzy accounting.

                Just realized while I was thinking about the various kinds of frauds there’s another charge possible against accountants responsible for reporting Trump org income: 18 USC 1027 – False statements and concealment of facts in relation to documents required by ERISA. This is one more challenge related to Allen Weisselberg’s fudged income used to pay for tuition and not reported as compensation.

    • harpie says:

      Oh…those tax returns TRUMP hid from US in 2016.

      …or maybe not…laugh if you must, but I’m really not sure how the financial statements relate to tax returns…

      • TooLoose LeTruck says:

        I’m pretty sure the returns are based on the financial statements.

        Financial statements are like P&Ls and balance sheets, amongst other kinds of financial reports, and I don’t see how tax returns could be produced w/out the numbers in those statements.

        If the numbers in the statements are bad, the numbers in the tax returns, both state and federal, are almost assuredly bad too.

        If the Trump Organization’s long time accounting firm is backing away from a decade’s worth of work, that cannot bode well for the Trump Org.

        • P J Evans says:

          I know that I rely on 1099Rs and other data from my broker – if it doesn’t say “FINAL” on it, it’s not reliable. I keep the paperwork and the returns, too.

      • vicks says:

        It appears Trump lied about his fortune to make it look like like he could easily pay back these loans, and then turned around gave lower numbers to reduce his taxable income on his income taxes (the lower your taxable income the less you pay in taxes)
        Two separate problems for Mr. Trump.

        • Rayne says:

          We’ve covered the likelihood Trump committed fraud with false asset valuations since Michael Cohen’s testimony before the House Oversight Committee in 1Q2019 (See Foiling a Good Walk, March 4, 2019).

          Trump’s likely done more than tax fraud (26 USC 2701), bank fraud (18 USC 1344), and false statements for finance (18 USC 1014) — probably insurance fraud and wire fraud (18 USC 1343), too. Some of this also could be charged at state level.

          The surface on Trump org frauds has only been scratched if Trump’s courses were run the way his father’s businesses were run.

          • Leoghann says:

            Among the legion fraudulent insurance claims will be the supposed damages, in the millions, to those two New York golf courses by heavy rains. My work as a landscape contractor included work on various golf courses, and several million dollars rain and flooding damage would constitute complete destruction. None of the aerial views shows either course floating, in chunks, in the Atlantic.

          • John Lehman says:

            “…. run the way his father’s businesses were run.”

            Ugliest part of the businesses:

            Immortalized in Woody Guthrie’s Fred Trump ballad

            I suppose
            Old Man Trump knows
            Just how much
            Racial Hate
            He stirred up
            In the bloodpot of human hearts
            When he drawed
            That color line
            Here at his Beach Haven family project

            • Rayne says:

              Sometimes fraud is super obvious, right out in the open, and the only reason it’s an allegation is that the perps weren’t charged and prosecuted. That’s it. We have a lawyer who’s told us Trump+Trump org fraudulently reported values, we can see the gaps in reported values between what was submitted in financials and reported to municipal authorities, and there’s been ZERO effort to correct the gaps in spite of an attorney’s testimony and demands by municipal authorities. Now we wait the tedious process of subpoena compliance/refusal followed by charges.

    • BobCon says:

      No mincing words in the lede:

      “Donald J. Trump’s longtime accounting firm cut ties with his family business last week amid ongoing criminal and civil investigations into whether Mr. Trump illegally inflated the value of his assets, court documents filed on Monday show.”

      Notably this is NOT the reporting of the Times DC bureau or National beat reporters. They would bury any connection to criminal issues in a final sentence, if they mentioned it at all.

      Watch now for them to either continue to ignore the story, or else run opinion pieces masquerading as reporting explaining why this is actually bad news for the Democrats.

      • BobCon says:

        And by this morning, they have seriously watered down the lede:

        “Donald J. Trump’s longtime accounting firm cut ties with him and his family business last week, saying it could no longer stand behind a decade of annual financial statements it prepared for the Trump Organization, court documents show.”

        It’s deeply unfair to readers to have these kind of stealth edits being made. Reporters have to put their names out front — editors who do spin work should have to put their names on their product too.

    • harpie says:

      So, this letter from Mazar’s, to the TRUMP Mob, made public today [2/14/22], was written [2/9/22] two days before Durham’s latest filing [2/11/22] and all the manufactured outrage that enabled.

      • harpie says:

        New first date in this TL:
        How the right embraced the false claim that Hillary Clinton ‘spied’ on President Donald Trump
        Glenn Kessler 2/18/22

        On Feb. 7, [2/7/22] former Trump administration aide Kash Patel aired an interview with his former boss on Epoch Times TV. Former president Donald Trump predicted there would be “a lot coming” from special counsel John Durham and that Durham would “fully expose” Democratic efforts to tie his campaign to Russia.

        “All of the things they said about me and Russia — it was them and Russia,” Trump said. “It was them and Russia, they worked with Russia.”

        Four days later [2/11/22], in a filing that appeared in electronic federal court records shortly before midnight, Durham made new claims about the case that exploded across right-leaning media during the weekend. […]

        • harpie says:

          2/7/22 PATEL / TRUMP interview on Epoch Times
          2/9/22 MAZAR’s letter to TRUMP Mob written
          2/11/22 DURHAM filing
          2/14/22 MAZAR’s letter to TRUMP Mob made public
          2/18/22 KESSLER writes article

        • harpie says:

          2/12/22 PATEL statement:
          3:51 PM · Feb 12, 2022

          New statement from our Senior Fellow #KashPatel on the latest Durham filing. [screenshot]


          Patel’s statement made an odd distinction. Rather than refer to the Executive Office of the President, as was mentioned in the filing, he referred to the hacking of “Trump Tower and the Eisenhower Executive Office Building.” That suggested he knew something more than what was in the filing.

  8. civil says:

    The 5th volume of the SSCI report on Russian interference implied that Trump had lied under penalty of perjury in some of his written responses to Mueller’s questions, and it turns out that Mueller discussed this possibility in his report, but that discussion only became public later, in a less-redacted version of his report. Relevant discussions:

    • punaise says:

      Is this worth noting?: (via Digby)

      An unpublished investigative compilation sometimes referred to as the “Alternative Mueller Report” has been located in Justice Department files and could be released soon, according to a letter filed in federal court Thursday.

      “At least for posterity, I had all the [team] members … write up an internal report memorializing everything we found, our conclusions, and the limitations on the investigation, and provided it to the other team leaders as well as had it maintained in our files,” wrote Weissmann in “Where Law Ends: Inside the Mueller Investigation.”

  9. civil says:

    Re: the OLC memo, a bill was introduced in the House tolling the statutes of limitation for federal crimes committed by the President or VP prior to or during their term of office, but the bill didn’t go anywhere:
    They should either pass this or else make clear that the President and VP can be indicted but not tried criminally while in office.

  10. Bay State Librul says:

    Before passing judgment on Mazars’ exposure, heed the words of Clarke Hayden, the “pro bono” accountant on the Good Wife.

    “Where does an accountant put his mistakes?”

    “In the footnotes”

    • Rugger9 says:

      One other large set of things might also come out of this Mazars revelation. I agree with many above that they probably cut ties a little too late, but it would also mean that the tax returns may also become public since I would expect the NYS AG among others to now need to examine those returns to compare valuations with other transactions.

      I had noted before that Mazars knows where everything sloshed in the financial side, perhaps as well as Weisselberg does. FWIW I would also speculate that this is the event that pushed Weisselberg to cut a deal in his own case.

      • earlofhuntingdon says:

        Trump is a master at compartmentalizing. I’m sure Mazars knows, or has deduced, more than he thinks, but it probably doesn’t know where all the loot a is buried.

        • J R in WV says:

          When you say “Trump is a master at compartmentalizing. I’m sure Mazars knows, or has deduced, more than he thinks, but it probably doesn’t know where all the loot a is buried.” you leap to the assumption that the Trump Org had a big bundle of loot to hide.

          I on the other hand suspect most of the skullduggery is to hide the very sharp point that there is no boodle of loot to hide, and that to the contrary, the Trump Org is actually barely surviving on MAGA Hat sales and donor fraud, with the outgo far out weighing the income.

          Being actually and publicly broke [ as opposed to “bankrupt” according to an attempt to remain a “billionaire” ] would break TFG’s poor miserly heart, and it can’t happen soon enough~!!~

          • Rugger9 says:

            Your scenario of money woes has legs especially when considering how much debt TrumpOrg used in its businesses (except for the golf courses in the UK, go figure). I would also expect that Mazars signed off in accordance with GAAP or IFRS (the two standards differ) in an accountable sort of way.

            There’s something like 400 – 500 M$ of debt service coming due, even if the notes aren’t called back for rechecking Mazars’ numbers. While apparently Individual-1 has been making some hay, the pile of cash he’s fleeced from the rubes will not cover that bill and because of Mazars’ letter no reputable regulated bank will restructure the debt.

            Maybe DJT can live in one of Jared’s slums.

      • Rugger9 says:

        I’d noted on an earlier thread that the Mazars filing is chock-full of financial landmines, including:

        Banks calling in loans (i.e. Deutsche Bank or others) because the financial state was not represented truthfully (is it also an SEC violation?). The best hope for TrumpOrg and Individual-1 for the 500 million or so dollars coming due this year for payments was to renegotiate but if the loan is called for cause that could crash the whole TrumpOrg empire.

        Banks wouldn’t lend to him either because of the previously known track record of stiffing people he’s owed money to now combined with the admission by Mazars that the last ten years (at least, I’d bet they extend it farther back later) were not honest numbers makes TrumpOrg radioactive for otherwise respectable lenders.

        Incidentally, that also make Individual-1 more susceptible to Putin’s manipulations (like getting access to certain documents). It may also catapult the UK and/or the Scottish Parliament (still not clear who can do this…) to launch the UWO investigation since the already sketchy cash deals for the UK properties got even more sketchy especially if Mazars also includes those transactions in their ‘editing’.

        Mazars had to have real fears for themselves to have outed TrumpOrg the way they did here. Accountants at this level are to be seen and not heard, exceptionally discreet about their clients and capable of completely burying all skeletons quietly. This was a very long-term Mazars client and Mazars had to have reassured their other clients that their secrets remain safe otherwise Mazars will lose those other clients as well. Let’s see who else drops Mazars after Mazars dropped TrumpOrg, but this was not a decision Mazars would take lightly because of that potential blowback.

        “Follow the money” doesn’t just apply to Watergate for investigations.

        • JohnJ says:

          In an article talking to David Cay Johnston he says;

          “Donald Bender, the Mazars accountant who prepares Trump’s tax returns, testified before the Manhattan grand jury. And New York has this very unusual law, if you testify before the grand jury, you are granted immunity,” he said.

          This could get good?

            • Rugger9 says:

              DC Johnston is a biographer, not a lawyer and racketeering mentions that rhyme with pico leads to grouchy comments from bmaz. Really, conspiracy is just as much time and easier to prove so TV (not-) lawyer speculation is not helpful.

              We could do a pool on which shoes drop first, maybe on when Weisselberg throws in the towel on Individual-1 and sings. What’s also nice (in a schadenfreude kind of way) about the Mazars notice is that all of the older politically active kids are exposed as well to serious potential liability.

              DJT’s power is transactional, in that he can only wield it when he has leverage (money, threats, power) but as it appears Individual-1 has lost two out of three options and will soon lose the fourth. No one cares about the crazy bozo at the end of the bar if they can’t do anything to anybody.

              • JohnJ says:

                Sorry, I thought I remembered bad comments about Johnson, which is why I included the source.

                My only interest was the immunity for the accountant and wondering if that was important.

                I have read what bmaz thinks about the racketeering charge and wasn’t trying to promote that garbage. That was Johnson’s opinion.

                • bmaz says:

                  Ohhhh, yesterday, and today, are not very good days for the Trumps. David Cay is right about that. It is still not the RICO, but it is not good for them at all.

                • earlofhuntingdon says:

                  NY state racketeering laws, not the federal RICO, although it is modeled after it. Conveniently, state criminal law convictions could not be pardoned by a future Republican president.

              • earlofhuntingdon says:

                David Cay Johnston is a Pulitzer Prize-winning journalist; an expert on business, taxation, and the law; and a lecturer at the management and law schools at Syracuse University. He has more than fifty years experience teaching and working at the Detroit Free Press, the Philadelphia Inquirer and the LA and NY Times. He has researched Donald Trump and his businesses for decades.

                • Rugger9 says:

                  I’m not questioning DC Johnston’s credentials except about racketeering. He hasn’t prosecuted any cases as far as I know, unlike bmaz (and Popehat, etc.) who seem to be coherent on RICO things.

                  Aside from that topic, Johnston is a reliable source.

          • vicks says:

            Giving immunity to Trump’s main contact at Mazars means he (Bender) could take down not just Trump (for fraud) but some higher in his own company if he implicates others were involved
            Out of curiosity, the description below makes it sound like immunity would apply to federal charges as well?
            “Unlike the majority of United States jurisdictions, grand jury witnesses in New York automatically receive transactional immunity, unless they decide to waive immunity, in writing, before the grand jury, and with their lawyer present. A witness who receives transactional immunity can never be prosecuted for any crime involved in their testimony before the grand jury. Even witnesses who actually confess to crimes before a grand jury can never be prosecuted for those crimes.
            Prosecutors must be careful in deciding what witnesses to call before a grand jury, so that they do not immunize a witness for a crime, and must, when appropriate, demand that a witness waive transactional immunity.”

            • Rugger9 says:

              Since that is apparently the case in NYS it may be better to let the Mazars letter claims be confirmed at the lowest possible level. As noted elseweb, this is the kind of thing that takes down accounting firms with a sickening thud, and given how connected Mazars is there will be some other powers that be that will not be too keen on having Mazars’ accounting practices examined for other high rollers.

              • earlofhuntingdon says:

                Other than refusing to work with the Trumps and that the firm might be cooperating – big deals – there’s nothing new in Mazars’ letter. Mazars was always explicit that the Trump financials were unreviewed and unaudited. What might be new is that the business world might finally take notice of it.

                • Rugger9 says:

                  Fair enough, but TrumpOrg used these statements to convince investors and partners to play ball with them. I wonder if this is also something FINRA or the SEC would be involved with as well (i.e. is TrumpOrg publicly traded?) and if SEC does have jurisdiction they have shown in the past to have little tolerance for fraud affecting the upper level investor class. That’s a new wrinkle, I think in addition to the litany of frauds Rayne set out so well.

                  • earlofhuntingdon says:

                    That would require Trump to make independent statements regarding the accuracy of those numbers not made by Mazars. The business world accepted those unsupported statements – in effect, press releases – for decades.

                    It was only after Trump’s sixth bankruptcy that banks, except DB, finally walked away. Now, everyone else should, too, especially including any potential replacement for Mazars.

                    Were I a CPA, Trump could not pay me enough, even in advance, to run his numbers. They would be impossible to verify, let alone audit, and any statement I might make about them would amount to an insurance policy, for which the premium would never be enough to justify the risk.

                • earlofhuntingdon says:

                  Something else that may have gotten Mazars to turn tail and run away from TFG is that Mazars prepared the Trump tax returns. Paid preparers have certain obligations regarding those returns, regardless of whether they have written indemnities from their client.

                  • Epicurus says:

                    Mazars most significant problem re: the returns would be if they provided tax advice to the Trump Organization above and beyond answering questions a normal preparer must/might ask. Neither Mazars nor Wesselberg is going to answer that question positively, I would imagine.

                    The focus of the NYS case seems to be overstating and understating asset values on the financial statements vis-a-vis those on the tax returns. Mazars most likely is going to have to explain why there may have been differences, having provided F/S and tax services for the same assets. Most likely there are book accounting (mark-to-market for example) and tax accounting (cost) differences generally seen on M1 and M2 reconciliations on the returns. If the differences can be explained and are not material (Mazars said in its letter to the TO that it hadn’t concluded there were material differences) especially considering valuation processes for mark-to-market the AG case falters. I think the NY AG and/or the NYC AG hired tax specialists and I would suspect this is where they are concentrating.

                    Property valuation is squishy stuff, especially in the NYC world. Were I the AG I would ask the lenders if they did a valuation of the Trump properties covered by the financial statements and if so, let me see it. If the valuation holds up – and of course it would, i.e. it supports the loan principal and interest payback provisions, it doesn’t much matter what Trump told them. They had a verifiable basis for the loan and weren’t defrauded. If the tax returns are properly at cost, there is no issue. I would guess it pretty much comes down to whether the lenders performed their own valuations.

            • timbo says:

              Uh, the Feds would have to agree to state granted immunity on a case by case basis, wouldn’t they? The legal code and practice is that there must be a signed non-prosecution agreement at the Federal level to have Federal immunity I believe.

  11. tinao says:

    “Ooaaaah” (great sigh of relief.) Thank you so much Empy and crew. You guys are steady stars in a whorl of blinking lights!

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