The Word “Pardon” Doesn’t Appear in the Barr Memo

As I noted in this post, there’s something missing in this passage — indeed, in the entirety of — the Barr Memo declining prosecution of former President Trump.

We likewise do not believe that the President’s public statements exhorting witnesses like Flynn, Manafort, Stone, or Cohen, not to “flip” should be viewed as obstruction of justice. The Report makes clear that the President equated a witness’s decision to “flip” with being induced by prosecutors to manufacture false evidence against others. We cannot say that the evidence would prove beyond a reasonable doubt that the President’s statements, most of which were made publicly, were intended to induce any of those witnesses to conceal truthful evidence or to provide false evidence. Once again, this conclusion is buttressed by the absence of any clear evidence that these witnesses had information that would prove the President had committed a crime. The President’s public statements could be viewed as efforts to defend himself from public criticism related to the Special Counsel’s investigation or to discourage the witnesses from making what the President believed might be false statements in exchange for a lesser sentence. Those statements do not warrant a prosecution for obstruction of justice.

The word “pardon.”

That’s important for two reasons. First, Barr said repeatedly, under oath, as part of his confirmation hearing, that trading false testimony for a pardon would be obstruction. Here’s what he said, for example, in response to a question from Lindsey Graham.

Lindsey: So if there was some reason to believe that the President tried to coach somebody not to testify or testify falsely, that could be obstruction of justice?

Barr: Yes, under that, under an obstruction statute, yes.

Here’s what he said to Patrick Leahy.

Leahy: Do you believe a president could lawfully issue a pardon in exchange for the recipient’s promise to not incriminate him?

Barr: No, that would be a crime.

And pardons are a critical part of the discussion in the Mueller Report to substantiate obstruction. The word pardon appears 67 times. Indeed, contrary to the discussion in the Barr Memo that claimed most of Trump’s witness-tampering happened in public, several of the discussions of pardons described in the Mueller Report involved non-public communication.

A voicemail that John Dowd left for Rob Kelner in November 2017 was presented as background to Trump’s public discussion of a pardon for Mike Flynn.

I understand your situation, but let me see if I can’t state it in starker terms. . . . [I]t wouldn’t surprise me if you’ve gone on to make a deal with . . . the government. . . . [I]f . . . there’s information that implicates the President, then we’ve got a national security issue, . . . so, you know, . . . we need some kind of heads up. Um, just for the sake of protecting all our interests if we can. . . . [R]emember what we’ve always said about the President and his feelings toward Flynn and, that still remains . . . .835


On December 1, 2017, Flynn pleaded guilty to making false statements pursuant to a cooperation agreement.841 The next day, the President told the press that he was not concerned about what Flynn might tell the Special Counsel.842 In response to a question about whether the President still stood behind Flynn, the President responded, “We’ll see what happens.”843 Over the next several days, the President made public statements expressing sympathy for Flynn and indicating he had not been treated fairly.844 On December 15, 2017, the President responded to a press inquiry about whether he was considering a pardon for Flynn by saying, “I don’t want to talk about pardons for Michael Flynn yet. We’ll see what happens. Let’s see. I can say this: When you look at what’s gone on with the FBI and with the Justice Department, people are very, very angry.”845

Paul Manafort told Rick Gates that Trump was “going to take care of us,” which Gates took to suggest a pardon.

In January 2018, Manafort told Gates that he had talked to the President’s personal counsel and they were “going to take care of us.”848 Manafort told Gates it was stupid to plead, saying that he had been in touch with the President’s personal counsel and repeating that they should “sit tight” and “we’ll be taken care of.”849 Gates asked Manafort outright if anyone mentioned pardons and Manafort said no one used that word.850

And the private comments Robert Costello made to Michael Cohen — again in the context of Trump’s public comments about Cohen not flipping — led him to believe Trump would, at least, pay his defense fees.

In an email that day to Cohen, Costello wrote that he had spoken with Giuliani.1026 Costello told Cohen the conversation was “Very Very Positive[.] You are ‘loved’. . . they are in our corner. . . . Sleep well tonight[], you have friends in high places.”1027

By issuing his prosecution declination while Trump’s attempted witness tampering was still in progress, Barr ensured that the corrupt trade-off would and could  be completed, at least with Flynn, Stone, and Manafort.

And in doing so, he ensured that ongoing investigations wouldn’t find precisely the evidence he was sure didn’t exist.

27 replies
  1. Alda Earnest Goodpeople says:

    As more and more evidence is discovered or elucidated of Trump’s, Barr’s, GOP’s, and/or others’ corruption of the investigations into Trump, the GOP, Russia, and/or others — what, “if any”, impact will this have on the fruits of John Durham — “secretly” and/or retrospectively installed by Barr, to seemingly and/or corruptly defend Trump, Russia, the GOP, Barr, and/or others once out of office?

    Similarly, “if” it is elucidated that Trump and the GOP did conspired in an ongoing manner with Russia (arguably a sanctioned enemy of the US) — BEFORE the 2016 elections, and/or thereafter — a priori and a fortiori in the context of (ongoing or overtly furthered) treason, insurrection, elections fraud, destruction of US documents/property, 14th Section 3 violations, and/or its obstruction by corruption — how “legitimate”, “eligible”, “legal”, and/or “enforceable” are investigations, investigators, judges/SCOTUS, contractors, pardons, clemency, privilege, executive orders, laws, regulations, bills, nominations, confirmations, appointments — if facilitated by those who were not eligible for public office, and/or by those who made themselves ineligible for public office before the same were facilitated?

      • Alda Earnest Goodpeople says:

        “Learn from yesterday, live for today, hope for tomorrow. The important thing is not to stop questioning” — Albert Einstein

        Thanks for staying on topic, answering the questions at hand, furthering important discourse, exercising superb tone, and generally being a warm and encouraging facilitator open to the perspective and writing style of others.

        Emptywheel is so lucky to have you and Bmaz, as your colorful contributions surely comfort readers and contributors, encourage their return, exponentially increase your followers, and personally elevate you both to the status of click bait gods.

        All hail the click bait gods, tow the line, or be punished in what amounts to baked-in and divine perfect design?

        These are emphatics quotes and not scare quotes, silly goose, but grammar sites specify they will irritate some readers if overused, my bad. To be honest, I find your articles and comments (and those of Bmaz) equally unreadable and intolerable, so it must be a lover versus hater personal chemistry thing.

        Accordingly, please continue to hate on Empty Wheel contributors, while I continue to love the work of Dr. Wheeler and Ed Walker, regardless.

        Cue apocalyptic threats from the zombie lemmings…

        • SteveB says:

          There are good reason why people “toe the line”

          Towing a line is a method of fishing for mackerel and attracts seagulls


        • Ravenclaw says:

          Interesting! Here I thought it was from naval custom: when the captain inspected the ship’s crew daily, each group was exhorted to stand in a more-or-less straight row along one of the seams in the deck – to “toe the line.”

        • Rayne says:

          You just spent 192 words to bitch about moderation. Not a particularly effective use of your time or ours.

        • LeeNLP says:

          “Accordingly, please continue to hate on Empty Wheel contributors…”

          Just a tiny handful of contributors, not all. And it’s not hating- refusing to don kid gloves is not the same as hating. This site does informed deep dives into hard legal questions, and maintains its integrity through services like our much beloved attack dog bmaz, who, even though he barks sometimes (with occasional nips where warranted) does not chew. Much more like keeping sheep in line by nipping at their hooves than attacking to kill or for sheer pleasure.

          IMO it might be nice to add a banner at the top of the site which states “Bring a tough skin, or quickly develop one, all ye who comment here”. There are no “safe spaces” here. :)

        • earlofhuntingdon says:

          There are plenty of “safe places” here. There are more for those who do their homework or show a willingness to do it, and for those who do not repeatedly say stupid things or have a negative learning curve. Ignorance is curable, and occasionally lovable. Stupidity is terminal.

        • Yorkville kangaroo says:

          I have ALWAYS used capitalised letters to denote emphasis (where emboldening is unavailable) because, as you would be aware, quotation marks are generally used for quotations.

          I also use emojis to denote other difficult concepts that are less clear in this type of written correspondence.

          *note to mods – given the nature and scholarship of the assembled herein I deign to never darken YOUR door with an emoji – but do I get points for the false electors reference?*

  2. HEW says:

    Memo: “The Report makes clear that the President equated a witness’s decision to “flip” with being induced by prosecutors to manufacture false evidence against others.”

    That may be what the most lying president ever said in public, but it doesn’t mean he believed it to be true. Trump knew that if Manafort, Stone or Flynn honored deals to tell what really happened, then it would incriminate him. His public statements were designed to simultaneously dangle pardons to obstruct justice, and failing that, to declare in advance any statements pursuant to a deal that incriminated him to be “lies.” I think the members of Trump’s defense team at DOJ were sophisticated enough to understand this dynamic at the time.

  3. Tom Marney says:

    I know everyone here remembers the letter signed by 800 former federal prosecutors, but this seems like a good time to post a reminder. https://apnews.***com/article/b1c6307dec214ec09e2cfda47b22603a


    “I thought it was so clear, when you look at the evidence and the things that investigation determined that Donald Trump had done, it met all the elements” of a strong case for obstruction of justice, she said this week in an interview from her Boise office. “I thought that stood in stark contrast with what William Barr said in that letter and that press conference.”

    Olson is now one of more than 800 former federal prosecutors who have come together to make an extraordinary assertion: It is only the presidency itself that prevents Trump from facing felony charges for obstruction of justice.

    The attorneys – including appointees by Republican and Democratic presidents, serving in administrations dating back to Carter – have signed a letter asserting that Trump’s actions to impede the investigation into Russian election meddling, as described in the Mueller report, amount to “overwhelming” evidence of obstruction.

    DOJ follows a standing Office of Legal Counsel (OLC) policy that a sitting president cannot be indicted. What the prosecutors’ letter asserts is that if he were anyone else – literally any other American citizen – his conduct would have resulted in “multiple felony charges for obstruction of justice.”

    “The Mueller report describes several acts that satisfy all of the elements for an obstruction charge: conduct that obstructed or attempted to obstruct the truth-finding process, as to which the evidence of corrupt intent and connection to pending proceedings is overwhelming,” the letter reads. “These include: The President’s efforts to fire Mueller and to falsify evidence about that effort; The President’s efforts to limit the scope of Mueller’s investigation to exclude his conduct; and The President’s efforts to prevent witnesses from cooperating with investigators probing him and his campaign.”

  4. Another dude from G-ville says:

    “The Report makes clear that the President equated a witness’s decision to “flip” with being induced by prosecutors to manufacture false evidence against others.”

    That’s a pretty amazing statement…

    • John Paul Jones says:

      Indeed. One would think that DOJ officials, supposed to prosecute without fear or favour, would have a little bit more to say in defense of their own work and their own employees, rather than (apparently) taking as fact Trump’s implication that any prosecution of him and his helpers was bound to be corrupt. Instead, they chose to re-broadcast.

  5. Savage Librarian says:

    Super-Duper Barr Abuser

    Hey there, Mr. Empty Suit,
    Tell us who’s the bigger galoot,
    One on 5th Ave. who can shoot,
    Or one who is a sneakier brute?

    One who lives in hot pursuit
    of power he dreams is absolute?
    Or one who wants to institute
    his own pompous parachute?

    One who doesn’t give a hoot,
    virtue signaling his salute,
    while indulging forbidden fruit,
    as he gives us all the boot?

    Or one who ripped out at the root
    truth he tried hard to make moot,
    Didn’t he hear that from old Newt?
    Democracy may be more resolute!

  6. Yorkville Kangaroo says:

    “The Report makes clear that the President equated a witness’s decision to “flip” with being induced by prosecutors to manufacture false evidence against others.”

    Because all of my FBI guys say this is what it means!

Comments are closed.