The Barr Memo Relied on Covering Up the Ongoing Roger Stone Conspiracy Investigation

DOJ has released the memo that Ed O’Callaghan and Steven Engel used to claim there wasn’t evidence to charge Trump with obstruction.

A key part of it is a claim that the evidence in Volume I was “conclusive” that there wasn’t evidence to charge any of Trump’s flunkies with conspiring with Russia.

Only at least O’Callaghan knew that the evidence wasn’t conclusive. On Page 178, the Mueller Report they claimed was conclusive revealed that they had referred Stone for further investigation into whether he had conspired with Russian to hack.

The Office determined that it could not pursue a Section 1030 conspiracy charge against Stone for some of the same legal reasons. The most fundamental hurdles, though, are factual ones.1279

1279 Some of the factual uncertainties are the subject of ongoing investigations that have been referred by this Office to the D.C. U.S. Attorney’s Office.

DOJ covered that footnote up for another 20 months, releasing it only the day before the 2020 election.

From that point forward, Barr had to make sure that DOJ wouldn’t pursue that investigation into Stone, because it would expose the lie at the core of his cover-up.

54 replies
  1. greenbird says:

    there’s prolly a great reason not to, but today especially i long for a ‘pdf version button’ to add a particular post with high caloric content covering SO MANY THINGS at one time.
    so, it be wednesday, not friday, but as joker said: ‘ and here we go ‘

  2. Ginevra diBenci says:

    I read the memo. I don’t recommend it for anyone with hypertension. The moral of the story? If you just do your obstruction extensively, often in public–and you wield enough power to keep your henchmen in line, with pardons promised to those who take the fall–you will get away with it.

    You simply need to install loyalists in those high places where lofty decisions like these get made. The memo’s argument presents a boys’ club set-up: based on our prior “discussions” and this theory we made up about obstruction requiring a proven crime as predicate, this particular “President” gets a free pass.

    • earlofhuntingdon says:

      Yes, the memo slavishly accepts Trump’s view of his own actions. It exhibits disbelief – despite copious fictional and non-fictional examples to the contrary – that an executive could ever issue orders under the guise of a question or lament: “Who will rid me of this turbulent priest?”

      It recites that Mr. Comey did not “act” as if he had received an order to obstruct an investigation. But it does not take a law degree to distinguish that description from one where Mr. Comey believed that Trump had given him such an order, albeit in indirect language, and that he was dismissed for not following it.

      • bmaz says:

        Yes. But I hope people are starting to figure out why I have very long said an AUSA/DOJ would have to be crazy to try to prosecute off of the Mueller Report at this point. If I was a defense atty on such an attempt, I would stick that memo so far up DOJ’s butt that it might never get recovered. The Mueller Report is still a nice factual record, but absolutely useless as a basis for prosecution now. And it is not just the memo, it is the fact that half the public thinks it is infirm and bogus. Completely unusable.

        • Dmbeaster says:

          Mueller himself had a lot to do with that perception. This is true both as to the report and his public statements about it. I understand the institutional thinking motivating him, but our system of government by laws took a hit too.

          • Rapier says:

            Muller’s silence when Barr threw him under the bus was,,, well it was a certainty. I made a comment long ago about Muller being a good soldier and so he is. That’s why I am very skeptical that our institutions will save us from Caesar’s

            I apologize if that makes no sense to you.

          • Theodora30 says:

            Put the blame on the media. Mueller made it clear that he had not ruled on an obstruction charge because DOJ prevented indicting a sitting president. It was obvious he wasn’t implying that Trump hadn’t obstructed justice but the media chose to succumb to Barr’s framing and ignored what Mueller had made clear.

            As for Barr, he is a believer in the rightwing “unitary executive” theory that a president has total control of the executive branch. I think that is why Barr strongly supported Bush I pardoning Caspar Weinberger for his part in Iran Contra and its coverup.
            In fact Barr has given speeches bragging about how he urged Bush to pardon not only Weinberger but a;sp all of Bush’s other co-conspirators which the Independent Counsel rightly slammed as “completing the coverup”. Those pardons kept Bush’s personal diary from being used as evidence at their trials which would have not only proven Bush had lied to the public for years when he claimed to have been “out of the loop” on Iran Contra but could also have put him in legal jeopardy.

        • John Gurley says:

          So, if a segment of the population is falsely convinced certain facts are untrue, they are unusable in Court?

          • bmaz says:

            You can try and use them at will. But you may get your brains beat out with them. Seriously, other than rose colored glass wearing mopes on the internet, am not sure how this is even a question. If you are asking it, you don’t know.

            • rgt says:

              “get brains beat out” ?
              is that another thing that is so obvious i don’t ask ?

              Having 1/2 the country suspect Mueller report is a tribute to the propaganda storm.

              Too bad for Nixon that Roger A. didn’t get Faux going soon enough.

        • Vox Clamantis says:

          There was no way Barr was ever gonna charge Trump with a crime while POTUS for the same reason Mueller and Rosentein were never gonna charge Trump with a crime while POTUS. Because DOJ decided a long time ago that you can’t ever charge a POTUS with a crime while POTUS.

          “The indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions”

          Plus, as the Barr (actually Rosenstein) memo clearly states, it would be hard as hell to prove Trump did everything he did in court and even if you had him dead to rights, you still can’t indict him per OLC. So, the memo is Rosenstein’s parting gift to Barr to let Trump off the hook (temporarily) until he wasn’t POTUS anymore. What else could they do?

          By downplaying the Mueller report and following OLC guidelines, they avoided the worst case scenario: A President under indictment against DOJ policy with unlimited pardon power, the national GOP and a mob of militias at his disposal. Plus a few petrodictators supporting his ulitimate fight for survival.

          But remember, those 17 sealed cases Mueller handed off are still sealed, untouched by Trump or Barr. Memory-holed by everyone till Garland decides to unseal them. Indicted by the Republican Mueller and Republican Rosenstein, kept hidden and protected by the Republican Barr. Biden and Garland are totally clean. The Barr memo was simply a fake get-out-of-treason card for Trump and the GOP till he was no longer POTUS, stripped of all his power and OLC protection.

          • bmaz says:

            Lol. Golly. Thanks for the help! Surely, nobody here could have ever sorted anything out without your input. Even though we have been doing that for years. And when you invoke “treason”, you lift your mask and expose yourself for a blithering idiot. Thanks for playing.

          • BrokenPromises says:

            “The indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions”

            A perfect broken promise. My simple question is why? It’s nonsensical in the extreme as far as justice is concerned. It states that *rump could actually have shot someone on Fifth Av and not been charged. Absurd. It on the face voids impeachment. I am not interested in Bmaz lawyerly “That’s not how it works” No not how it works is our system of governance not actually working as accountability is voided. No system aspiring to justice can sidestep justice. We are in the mess we are because of the long slippery slope of doing just that. In the *rump situation it includes the Manson family type jury acquitting him while verbally trampling our constitution.
            We are broken by their broken promise to the rule of law.

        • Alan Charbonneau says:

          Absolutely. While an impartial observer might see that “…the memo slavishly accepts Trump’s view of his own actions…” it’s not nearly enough to get 12 jurors to come to a unanimous verdict.

          Barr’s ham-fisted defense of his decision not to charge May read as astonishing gibberish, but it is the kind of defense an attorney with modest skill could mount in court to defend his decision. It would not be difficult to create reasonable doubt in the minds of more than one juror, though only one is needed for a hung jury.

  3. Jenny says:

    Men are subject to powerful passions and appetites, and, if unrestrained, are capable of ruthlessly riding roughshod over their neighbors and the community at large.
    William Barr

    The responsibility of the Department of Justice, when it comes to law enforcement, is to determine whether crimes have been committed and to prosecute those crimes under the principles of federal prosecution.
    William Barr

    • bmaz says:

      “…and to prosecute those crimes under the principles of federal prosecution.”

      I am here to tell you, there is one hell of a lot that goes into “the principles of federal prosecution”. It is not just the feel good one sided analysis of the J6 Committee or the internet commentariat. Real lawyers usually show up and fight.

        • bmaz says:

          Don’t care if guilty or innocent, and most CDL’s do not. Dirty little secret, most criminal defendants are probably guilty of “something”. But what? And how? When? What is the evidence? And they have to shut up until that can be ascertained.

          • Ginevra diBenci says:

            Most all of us humans are guilty of something. Thanks to perception bias and systemic tilt toward charging those perceived as generally guilty, most of us never get nailed for the lawbreaking we commit thoughtlessly every day–the unsignaled lane change, for example, or jaywalking to cut a few steps off the walk to the dentist.

            Those whom law enforcement’s net does catch may be no guiltier than we are. Defense lawyers provide the indispensable framing perspective.

  4. PeterS says:

    Assuming a counterfactual, where it would be public knowledge that (only) Stone was still being investigated, the authors of this memo would surely have come up with something pretty much the same.

  5. earlofhuntingdon says:

    Charlie Savage makes a nice point here.

    The memo, “argues against interpreting obstruction laws as applying to officials with supervisory authority over investigations, which echoes a memo that private citizen Barr wrote for Trump’s team in 2018 before he became attorney general.”

    By all means, let’s not have obstruction statutes apply to executives and those directly supervising investigations and prosecutions. That allows politicians and their top legal appointees more room for maneuver.

    • emptywheel says:

      Yup. It’s a key point. But the NYT didn’t include that in their report (or ANY of Charlie’s analysis), but instead had Mike Schmidt write shit without admitting he was wrong about Mueller.

  6. Scott Rose says:

    Just because Bill Barr’s idiosyncratic view of obstruction is given the lie by a mountain of examples from case law does not necessarily mean that Barr would be laughed out of a law school lecture hall, with the students honking clown horns at him, for teaching his view.

      • AndTheSlithyToves says:

        Perhaps the George Mason University of today, but certainly not the actual George Mason, who split with George Washington, refusing to sign the Constitution without a Bill of Rights. It’s ironic—to me at least—that the current-day Christo Fascists wrap themselves in the mantle of Mason, who would have abhorred a charlatan like Trump.

    • skua says:

      Lovely to see sarcasm successfully transmitted on the internet.

      “laughed out of a law school lecture hall” and “the students honking clown horns at him” – wonderful alliteration, stresses, and imagery.

  7. Peterr says:

    Some of the factual uncertainties are the subject of ongoing investigations that have been referred by this Office to the D.C. U.S. Attorney’s Office.

    Other factual uncertainties are how long this Office would continue to be allowed to function, should certain avenues be pursued; the extent to which this Office would be able to refer matters to other US Attorneys for prosecution; and the extent to which those US Attorneys would be able to function free of interference from senior DOJ leadership.

    • Yorkville Kangaroo says:

      The factual uncertainties probably relate directly to both Flynn and Stone; Flynn for false statements and Stone for false statements and obstruction.

      And this makes the statement that they couldn’t possibly bring a case more ridiculous because they didn’t get all the information.

      Personally, if it was still covered under the statute of limitations, I’d haul both their asses into an interrogation room and ask the same questions and see what they could be charged with by lying and obstruction in 2022.

      Though bmaz may know a reason why that wouldn’t work.

  8. Savage Librarian says:

    Flip Pro Flop

    He knew how to crack a whip,
    Give the boot through a tip,
    Make sure faucets didn’t drip,
    Refuse to honor any lip.

    He didn’t have to shed one drop
    of blood to kill, or have to mop
    up after news he’d lop,
    or wade through rivers of his slop.

    He just had to stop a flip,
    Clam up any frisky yip,
    Cancel out a murky blip,
    Make sure yaps were on full zip.

    He didn’t have to put a stop
    to gridlock or a stony prop,
    Or seance with his long gone Pop,
    No, Chump was owned to be a flop.

    [7/13/20; rev. 8/24/22]

  9. jdmckay says:

    3 quick things.

    First, an acknowledgement: of all the years I have been following your work, this series I think is the most precise, illuminating and comprehensively persuasive work you have ever done. And that is saying a lot. And a little bit of levity sprinkled in here and there (underbus) make all this even better. Big tip of the hat, you are in rarefied air with what you have done here.

    On subject of this post, I just can’t help thinking a thorough review of Barr’s “work” as AG would turn up patterns of corruption; lying to cover up (who knows what else) for DJT. Not that Garland doesn’t have his hands full now, but…

    Lastly, until somewhere over a year into DJT’s presidency I had a built in “filter” that kicked in often when I read stuff that seemed “too far out there”, pretty much telling myself even these guys would not do something like that (Manafort selling carving up of Ukraine f/ex). I have gradually had to train myself to recognize and discard this filtering, as at this point in time I am of the mind there is nothing too dastardly, harmful or wrong that these people will not do.

    DJT’s foibles are inflicting a massive cost beyond the obvious, seriously undermining the overall health of society.

    • emptywheel says:

      There WAS an investigation into some of the stuff that Barr had done. But it would have been OPR and therefore guaranteed to be useless.

    • gmoke says:

      “…pretty much telling myself even these guys would not do something like that….”

      Having spotted Trmp for a conman the first time he appeared in NYC news, it is my firm belief that when all is said and done we will discover that he has been in the pocket of the Russians, Saudis, Chinese, and anyone else who paid him from the get go. It wouldn’t surprise me that he has been passing on the most secret information to foreign governments since day one.

      But I could be wrong.

  10. N.E. Brigand says:

    Moving forward, can other defendants charged with obstruction of justice cite this memo (to the degree that their alleged obstructive acts are similar to those that many people believe Donald Trump committed) to argue selective prosecution?

    • Peterr says:

      IANAL, but I can’t imagine a defense attorney trying to use this piece of legal crap to somehow help their client. You’re just telling the judge “we got nothin’.”

        • Playdohglobe says:

          Bmaz, At the risk of incurring CDL wrath, I ponder as you see the state of affairs with regards to Trump as a defendant who deserves competent counsel if once indicted, in your fertile imagination is there enough money, a price point that you would defend him if indicted for the crimes suspected by the search at MAL? And truly work to get him free of conviction.

          • bmaz says:

            Theoretically, sure. The problem is he would not pay. Probably getting too old for such things anyway. But of course there is that price point.

  11. Molly Pitcher says:

    This is a terrifying OT. From the Daily Beast:

    “Democrats Need to Win State Elections to Stop Republicans From Rewriting the Constitution” “Republicans are very close to being able to completely bypass Congress and call a constitutional convention. Beating the GOP in local races is the only way to stop them…Republicans are laying the groundwork to completely remake the U.S. Constitution through state legislatures, and there’s a good chance they could succeed….Republicans already control 30 state legislatures—they’d only need three more to be able to call a constitutional convention.”

    • Peterr says:

      The Daily Beast needs to read the second half of Article 5. It takes two-thirds of the states to call a constitutional convention which could propose amendments, but then it takes affirmative votes in 3/4ths of the states to approve the amendments:

      The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

      • Yorkville Kangaroo says:

        This has been on the radar for a long time from at least the 1960’s.

        These calls are usually based on a specific portion of the Constitution such as Campaign Finance reform or a Balanced Budget.

        This methodology is one of two ways to propose Constitutional amendments, The other is what we would deem the ‘ordinary’ way, i.e. Congress may propose them by a vote of two-thirds of both houses.

        However, this methodology of holding a Convention of States is potentially more fraught than the ‘ordinary’ one as it has the potential to open up a Pandora’s Box of issues all lilely to be just as fractious and crazed as what we see play out day by day in Washington.

        Worse still is the fact that, as pointed out by Peterr it is supposed to take 3/4 of the states to ratify an amendment. However and apparently, the 1787 Convention did NOT follow this rule so here comes our friends at SCOTUS!

        You could quite literally have half the states representing as few as 18% of the population at a Convention pass an amendment under this model.

        Perhaps this might be a good new topic for one of the owners/mods to start ‘investigating’?

        • wrog says:

          the 1787 Convention did NOT follow this rule

          It’s not that they didn’t follow the rule. That rule didn’t exist yet. What they didn’t follow was the corresponding rule in the Articles of Confederation that required unanimity for amendments to the Articles of Confederation… which is what the 1787 convention was originally supposed to be about, which the attendees changed their minds about after, like, the first week.

          … the point being that Rhode Island never sent any delegates and ultimately objected to the whole process. Which should have been Game Over.

          But they were ignored. Once there were 9 states on board as per the new document, that was that; first elections for President + Congess took place in 1788 and Washington at al just plowed straight ahead as if they had a mandate. Rhode Island held out until late 1790, when they figured out they’d be worse off if Vermont got admitted before them, and so they finally changed their ratification vote so that they could be admitted first.

          And that’s the real danger of new national convention, that they can just make up their own ratification rule just like the last one did.

  12. Silly but True says:

    It was good to see U.S. v Arthur Anderson getting some love from OLC here. While we’re 20 years down that road, it’s always a good thing when Andrew Weissman’s corrupt prosecution can get more shade.

  13. SMF88011 says:

    I just wanted to thank you all for helping me understand more about and how the law applies to these issues we face now. I cannot believe that so many people have gotten away with the things that they did for so long.

    On a side note, someone suggested I read a NYT article on William Barr. I think that the following quote is something important:

    “By age 8, he had taken up the bagpipes, which would become a lifelong hobby.”

    It tells me that he has been enjoying his being annoying to others all his life. ;)

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