Bill Barr Performed the Corruption He Was Trying To Deny

Perhaps I have a perverse sense of humor.

But between bouts of yelling about the Barr Memo, I’ve been laughing my ass off.

There are a number of reasons I’m laughing, some that I won’t share because I don’t want to spoil what I expect to be the punchline. But one reason I can’t stop laughing is that Robert Mueller managed to get Barr to perform — and put down in writing!! — precisely the corruption Mueller was trying to document: corrupt interference in a criminal prosecution.

I can’t imagine that Robert Mueller intended to elicit this response from Billy Barr and the lawyers who had been overseeing Mueller’s work for almost two years. But because they made the corrupt decision to override Mueller’s studied refusal to made a final conclusion about whether Trump committed obstruction (in my opinion, Mueller viewed Volume II of the Report as an impeachment referral and so did this for separation of powers reasons), they ended up putting together a shoddy memo justifying their decision.

One reason it worked out that way was because Barr and his flunkies were working quickly: a rushed effort over the course of the weekend to substantiate false claims to share with Congress.

According to Barr’s book, he remembers getting the Mueller Report around 1:30PM on March 22, 2019.

As Amy Berman Jackson laid out in a timeline accompanying her decision ordering the release of the memo, starting with a draft of the letter to Congress by Steven Engel at 8:36PM on March 22, 2019 and working through the weekend, five men including Engel (according to some emails quoted by ABJ, Barr was present as well) drafted both the letter to Congress and the declination memo in parallel.

As ABJ pointed out (this was a second basis on which she ruled that DOJ had to release the memo, one the DC Circuit said it didn’t need to consider given all the other reasons it had laid out to uphold her decision), the drafting of the letter to Congress — which she showed in the left column — actually preceded the memo — in the right column — advising Barr that because one goal under the Justice Manual is to,

promot[e] confidence on the part of the public and individual defendants that important prosecutorial decisions will be made rationally and objectively on the merits of each case,

Barr should,

examine the Report to determine whether prosecution would be appropriate given the evidence recounted in the Special Counsel’s Report, the underlying law, and traditional principles of federal prosecution.

The public record, then, shows Barr telling Congress about his prosecution declination before he decided to read the Report or even accept the recommendation of people who claimed to have read the Report. It was all completed over a weekend in which the people supposedly advising him were at the same time being directed by him, everyone together in the Attorney General’s conference room for the weekend.

The men finished their letter to Congress announcing that Trump had not committed any crime just after 4:30PM on Sunday and then finalized the declination memo first thing Monday morning.

These men weren’t reading the 400-page Report to figure out what it said (and there’s evidence that neither Rod Rosenstein nor Barr ever read it closely). They were instead trying to figure out how to debunk a Report they had skimmed over the course of seven hours.

And that haste showed up in several places in the memo.

There’s the admission that their recommendations were largely the part of earlier discussions, including from before Barr was hired (as Barr described it, one of the lawyers, Henry Whitaker got pulled in for the first time over the weekend), and therefore only partly about the Report itself.

Over the course of the Special Counsel’s investigation, we have previously discussed these issues within the Department among ourselves, with the Deputy Attorney General, and with you since your appointment, as well as with the Special Counsel and his staff. Our conclusions are the product of those discussions, as well as our review of the Report.

They repeat that admission to explain why they dedicate fully a third of the single page discussing legal precedents to a discussion that happened on July 3, 2018, before the evidence about the Stone interactions with Russia, Paul Manafort’s ties with Konstantin Kilimnik, and Michael Cohen’s interactions with the Kremlin were fully developed.

In our prior discussions, the Special Counsel has acknowledged that “we have not uncovered reported cases that involve precisely analogous conduct.” See Special Counsel’s Office Memorandum to the 600.4 File, Preliminary Assessment of Obstruction Evidence, at 12 (July 3, 2018).

And there’s the footnote explaining that they just weren’t going to cite any facts.

  1. Given the length and detail of the Special Counsel’s Report, we do not recount the relevant facts here. Our discussion and analysis assumes familiarity with the Report as well as much of the background surrounding the Special Counsel’s investigation.

The other reason this memo embodies corruption is that corruption lays at the core of the statute Mueller rested his obstruction analysis on: 18 USC 1512(c)(2) — the same statute DOJ is using in the January 6 prosecutions. So Barr’s 9-page memo had to find a way to claim those actions weren’t corrupt, without entirely parroting the analysis he did in the audition memo he used to get the job, and without acknowledging Barr’s three statements — made under oath during his confirmation hearing — that trading pardons for false testimony would be obstruction (the word “pardon” does not appear in this memo).

Predictably, that discussion was really shoddy. In a key passage, for example, they adopt just one possible measure of corrupt intent, personal embarrassment, something that is only mentioned four times in the Report, always in conjunction with a discussion of at least marginal criminal exposure. Then they use that as a straw man central to their dismissal of Mueller’s lengthy analysis and their decision not to actually engage with Mueller’s analysis.

The Report thus suggests that the President’s exercise of executive discretion for any improper reason, including the prevention of personal embarrassment, could constitute obstruction of justice if it impeded a pending investigation. As we have discussed with you, we do not subscribe to such a reading of the obstruction-of-justice statutes. No reported case comes close to upholding a conviction of such breadth, and a line of Supreme Court precedent, including Arthur Anderson, weighs heavily in favor of objectivity and certainty in the federal criminal law. In order to reach the conclusions in this memorandum, however, we do not believe it necessary to address this disagreement further, because in our view, Volume II of the Report does not establish offenses that would warrant prosecution, even under such a broad legal framework.

Much of their subsequent analysis, dismissing the ten possible examples of obstruction in the Report, was simply factually inaccurate (and in once case, conflicted with something Barr’s own DOJ said a year later). It was not just the then-ongoing Roger Stone conspiracy investigation that refuted the claims Barr had rubber-stamped in secret, and it was not just the ongoing Roger Stone investigation that Barr later took unprecedented steps to thwart so as to protect his basis for exonerating the President. They made claim after claim that wasn’t even an accurate representation of the Report. Just as one measure, as noted, the memo doesn’t use the word pardon at all; the Mueller Report uses it 67 times.

It was only the expectation that all this would remain secret that let Barr and his flunkies entertain the fantasy that any of this could, “promot[e] confidence on the part of the public and individual defendants that important prosecutorial decisions will be made rationally and objectively on the merits of each case.” So they had to keep it secret.

And so, after it was written, a snowball of additional corruption followed, with DOJ making false claims about what was in the memo, and DOJ making more false claims, and Barr taking extraordinary steps to try to ensure that later facts didn’t prove him wrong.

But you don’t have to go further than these nine pages to see that this intervention just dripped with the corruption they were trying to deny.

45 replies
  1. greenbird says:

    laughter is best when details are understood, and nuances begin to obnoxiously tickle.
    i enjoy, at least, knowing you are laughing!

    (OT: Michigan and Ireland dogs have mysterious virus.)

    • greenbird says:

      sending this post – and a treat ? – to Mueller? …

      and yes, ok, i’m laughing now. like rain during drought.
      salute, marcy.

  2. Peterr says:

    From that footnote in the memo:

    Our discussion and analysis assumes familiarity with the Report . . .

    Therein lies the problem.

    Middle school teachers everywhere recognize this language. It is a sign that the student wrote their book report after pulling an overnighter to finish it, not having actually read the whole book.

    • Tom-1812 says:

      Yes, we don’t want to have to address what the Report actually says, so we’ll just skip that part and jump ahead to Barr’s novelized version of it.

    • earlofhuntingdon says:

      …We don’t have time to read it because it’s more important to prepare and publish our reasons for vehemently but dismissively disagreeing with it.

      Besides, it’s easier to defend claims of negligence and willful lack of knowledge than corruption and obstruction.

  3. flounder says:

    KT McFarland basically live blogged Mike Flynn’s phone call with Kislyak while at a dinner at Mar a Lago, but the Barr a Lago Memo says they can’t be sure that Trump was read into it.

      • SaltinWound says:

        Is there reason to believe everything Flynn told Kislyak is true? I mean, I believe Trump knew, but also, Flynn is a liar.

        • emptywheel says:

          Some reasons to believe Trump knew are:
          1) There’s reason to believe Trump was on speaker phone for the first call (which has not been released)
          2) Flynn told Kislyak Trump knew
          3) Bannon likely testified that Trump knew
          4) WH told Bannon to testify to HPSCI that Trump didn’t know

  4. icelanterns says:

    I’ll never forget the look on Rosenstein’s face as Billy was shoveling this shit–he wanted to crawl under a rock

      • Purple Martin says:

        Yes. My favorite quote on that is from Jonathan Bernstein (Bloomberg):

        There’s a clip circulating of Dr. Deborah Birx, a member of the coronavirus task force, reacting in resigned disbelief as Trump launches into this digression. It was astonishing in a sense. But also: par for the course. Birx is every health-policy expert when he talks health care, every trade expert when Trump talks tariffs, every defense expert when he talks about the military. He combines uncanny confidence with a total lack of knowledge on topic after topic.

        A couple of my former co-workers were a lot like that. But they were not in charge of anything.

  5. phred says:

    Thanks EW. So if the DOJ acted corruptly, who investigates that corruption? Presumably the DOJ is conflicted, so can’t objectively investigate itself. Then what?

    • emptywheel says:

      There actually is or was an investigation into some of this at OPR. But as bmaz will happily tell you, that’s where corruption goes to be hidden most effectively.

      • phred says:

        Thanks EW, I was afraid of that. Any investigation is only as good as the internal reviewers, which is depressing. Kinda like the IG currently covering things up willy nilly over at the Secret Service.

        I hope among the J6 committee reforms there is some thought given to how best to conduct reviews of corruption within agencies outside of those agencies. Clearly, OPR and the IG system isn’t cutting it.

        • phred says:

          I need refreshers from time to time because I find it so hard to believe that this is the system we have. My brain refuses to remember it because it just can’t be right ; )

          It’s like asking a team that, say, banged on some drums to investigate itself over whether maybe they might have been cheating their way to the World Series ; ) Only an external review can even attempt to portray itself as independent.

          It’s nuts that DOJ and other agencies can whitewash this stuff.

  6. Tom-1812 says:

    Reminds me of Barr’s claims before the 2020 election that foreign governments were going to interfere in the process by sending in counterfeit ballots without being detected. He cited no evidence to support his assertion but instead said he based his statement on “common sense” and “logic”. A CNN report of September 3, 2020 cited an expert on election law, Professor Rick Hasen of the University of California, who said Barr’s claim was “ridiculous” and “ludicrous”.

    • Raven Eye says:

      The counterfeit ballot theory is one that always amazes me. I mean, how STUPID can people be?

      Consider how many unique ballot versions even a moderately populous county/parish needs to produce during a general election. Just walking across a street can put you in a different congressional district but you could still be in the same district for county supervisor. In jurisdictions where cities are political subdivisions of counties, that congressional district, somewhere else in the area, could include both incorporated and unincorporated areas.

      Also, counterfeit ballots are most effective where there are tight races. So the planning has to be careful to inject just enough “tipping” ballots to do the job and not raise suspicions.

      Trump is too willfully ignorant to never grasp these points. Barr, on the other hand, knew it was a false concept before he ever spoke or wrote it. He just lied to make points.

      • sls642 says:

        The voter fraud claims are simply part of the “pick your voters” scheme the Repubs have had in place for ages, way before TFG. Ballot manipulation is another story.
        Take Broward County in 2018, why we have Rick Scott siting in the Senate. Broward, the most Democratic county in Florida had a weird, fold over type ballot. One the Supervisors throughout the state were told not to use due to significant undercounts. The Broward Supervisor used one anyway and guess which race wound up in the foldover and generated large undercounts? That would be the Rick Scott/ Bill Nelson Senate race. And who was this Supervisor who was either brain dead or just following orders? A Jeb Bush appointee.
        So yes, you can rig elections but D’s will need lessons from the R’s on how it’s done.

  7. TimB says:

    There is now a full-throated public attack on the integrity of the _current_ Justice Department, linking the current investigations of Mr. Trump to the investigations, also supposedly biased and corrupt, of the late Obama administration and of Mr. Mueller as special counsel. The frothers amplify this to an attack on the entire US justice system (“defund the FBI.”)

    Your reporting clarifies the bias and corruption in the leadership of the DOJ in the last administration, protecting a spectrum of lawless acts by the then president and his allies. No need to assume (for it is all mere assumption) any lack of integrity in the present DOJ to explain the difference in approaches.

    Committing together to learning the truth is an important value, and this time it is immediately and practically important. Thanks!

  8. PeterS says:

    To be clear, is anyone here saying they think Trump would have been found guilty of obstruction, beyond a reasonable doubt? I’d have thought many defence attorneys would feel pretty comfortable with the “hey, everyone knows I’m a bullshitter” defence.

    P.S. I’m not for a moment disputing the fact that it’s a shitty memo.

    • Yorkville Kangaroo says:

      I doubt anyone here would KNOW what the DoJ ACTUALLY dredged up.

      However, what IS known is that:

      1) Mueller specifically stated that his investigation did NOT exonerate The Donald
      2) The investigation itself was obstructed by at least both Flynn and Stone and a full investigation was thus never completed and was shut down fairly quickly by Barr when he took over the reins

      Make of that what you will.

  9. bawiggans says:

    Barr’s actions appear to partake of the same assumption that runs through everything Trump, namely that no matter how egregious the act, one need only buy enough time for the public’s cultivated ADD to carry its attention away to some new entertainment. Outrunning karma need only be a short sprint if you believe you have a sufficiently protective bubble to reside in or that End Times are at hand. Even now, as justice appears to be catching up, the damage has been done and the alfa perpetrators will pay mostly in reputational damage that converts to credits in Trumpworld anyway. As if climate change were not enough, the Trump era critiques our endemic short-term thinking.

  10. Jim Luther says:

    I find it remarkable that there has been little to no call for reform at the Justice Department in general, and the OLC and OPR in particular. Although the Justice Department has been a positive force on a number of issues, such as investigating more corrupt local police forces, it also has a long history of turning a blind eye to other issues. In addition, the Justice Department has been the tip of the spear in a number of our nation’s most authoritarian episodes like AG Tom Clark’s List of Subversive Organizations (McCarty era), AG John Mitchell’s Watergate and War on Drugs, and AG Bill Barr’s obstruction of corruption investigations.

    I think there would be more support for Justice leadership, policies, procedures, and timelines if it did not have such a troubled history. I, for one, would not be totally surprised if a unpublished OLC opinion existed, or will come into existence, that former presidents can be convicted, but not punished (or similar nonsense).

  11. Legonaut says:

    “There are a number of reasons I’m laughing, some that I won’t share because I don’t want to spoil what I expect to be the punchline.”

    I watch this space for the hard work, quality & intelligence of those who post & comment herein, which usually exceed my own meagre resources. Once again, I must confess to being outclassed because I don’t find any of this funny at all.

    After years of the Mueller investigation, I can’t see anything resembling a “punchline” in these revelations. It’s not like DOJ is going to prosecute Barr et al for their corruption (beyond anything Trump did), so once again everyone walks.

    I can only hope future posts can bring enlightenment for the plebes like myself.

  12. rattlemullet says:

    Asking honestly of the professionals here at EW, that know the DoJ far better than I. How much of the politicalization remains inside the DoJ from trumps tenure? I think the appointment of Merrick Garland was a very wise choice for Biden to have made. Men like Sessions and Barr not to mention all the acting AG’s, certainly many of them had a vested political interest that did not align with the integrity of the department.

    • YGorkville Kangaroo says:

      Quite often it’s not really the political persuasion of the operatives that are the problem. Certainly it is for the upper echelons but, by and large, it’s the inbred culture of organisations such as these that is the main problem. It doesn’t matter whether it’s DoJ, FBI, CIA, DHS, Secret Service, etc. It even runs down to other organisations like local police, branches of the armed services and so on. They are all fraternities (regardless of the presence of women) with all the typical fraternal rules and obligations, spoken and unspoken. There is an overwhelming desire to protect one’s ass by defining the organisation as separate and ‘special’ and these organisation and the people inculcated into them will do almost everything in their power to insure that no one is ever really able to see in the windows.

  13. SMF88011 says:

    Do you know what amazes me? This isn’t the first time Barr pulled this kind of thing. I wonder how many of you forget that he was known as Coverup-General Barr back in the early 1990s.

  14. Username_TBD_26AUG2022-0454h says:

    Is there any chance that Barr would face legal exposure?

    [FYI – you may NOT use a real person’s name and/or title without proving you are that person; the name you attempted to use here, “Fmr. House Majority Leader Eric Cantor” has been replaced with a temporary placeholder denoting the date and time of this comment. Pick another unique username with a minimum of 8 letters to participate in comments. /~Rayne]

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