How To Be a Handmaiden to Corruption, Barr Memo Press Coverage Edition

Much of the coverage of the Barr Memowritten over a weekend after a 7-hour review of the Mueller Report to justify a public statement to Congress exonerating the former President — continues to magnify the corruption of Barr’s act, rather than expose it.

The memo makes numerous factual errors (errors that can be easily documented thanks to a public record liberated by Jason Leopold). One Judge — Amy Berman Jackson — issued a ruling saying that the memo doesn’t do what it claimed it did (deliberate about whether Trump could be charged). She even included a timeline to show her work. Three more Circuit Judges agreed with ABJ’s opinion that DOJ misrepresented what they claimed they had done — by saying they were making a prosecutorial decision rather than a public messaging decision — in an attempt to keep the memo under wraps.

You’d think that after four judges had called out DOJ for shenanigans with this memo, anyone remotely interested in performing the function of journalism would explain why those judges found the project so suspect, and the import of that to the actual claims made in the memo. CREW spent years doing the hard work of liberating the memo to make it easy for journalists!

Instead, numerous outlets simply parroted the language of the memo that four judges had ruled to be a messaging project, thereby treating the memo as a valid exercise of legal analysis and not a performance of corruption.

I’d like to pay tribute to some of the outlets that chose to be a handmaiden to corruption rather than journalists.

I should say, while I bitched about it the day of the release, the NYT improved their story by adding the work of Charlie Savage. (early version; later version) It still treats the focus on Don McGahn as real rather than tactical and chooses to primarily quote experts explaining the problems with the memo rather than lay that out directly. But it notes (as I did) that the memo doesn’t explain something that was at the core of Mueller’s obstruction analysis — pardons. It provides actual reporting explaining that Merrick Garland’s DOJ wasn’t hiding the substance of this when they fought to keep it sealed last year, they were making a “narrower legal” argument — presumably trying to preserve the exemption it had been sealed under (the b5A deliberative privilege).

After losing in court on Friday, the Justice Department had the option to appeal the case. But the department’s senior leadership decided to release the document, according to a senior official in federal law enforcement. The leadership never opposed airing its contents, but had contested its release on narrower legal grounds, the person added.

Compare that with some of the stenography that remains untouched.

Eric Tucker, Memo sheds light on decision to clear Trump in Russia probe (AP)

Unsurprisingly, Eric Tucker ignores the opinions from four judges who called out this memo and spends three paragraphs ignoring the evidence that this was a hash job instead describing it as a record of “how two of the department’s senior-most leaders arrived at that conclusion,” something the judicial record says it’s not. He then spends seven paragraphs rehashing part of Steven Engel and Ed O’Callaghan’s argument, never calling out factual errors and ignoring their even more problematic treatment of witness tampering. Only after that does Tucker explain that two courts (he only mentions the Circuit) deemed that it had been improperly withheld, without explaining why. Finally, in the last two paragraphs, he quotes from CREW about the substance of the memo, as if he doesn’t have the competence to assess it himself.

Ryan Lucas, DOJ releases a Mueller-era memo to Barr on the decision not to prosecute Trump (NPR)

Unlike the AP, NPR didn’t claim, in its headline, that this memo actually did represent the decision-making process. But Ryan Lucas dedicated much of his story on the memo — paragraphs three and four, and then nine through eleven — parroting the claimed rationale of the lawyers. It describes the rebukes from the judges this way: “A district court judge and a panel of circuit court judges disagreed and ordered its release.” That leaves him free to pitch the question of Barr’s exoneration of Trump (which he calls “declin[ing] to prosecute Trump”) as a he-said, she-said affair, pitting CREW and 1,000 former prosecutors against Trump and his supporters. Lucas ends the piece by describing the current investigation into whether Trump violated the Espionage Act and obstructed an investigation by refusing to return classified documents an investigation into “storing presidential documents at his Mar-a-Lago residence.”

Robert Legare, Government lawyers advised Barr not to bring obstruction charges against Trump after Mueller report, newly-released memo reveals (CBS)

Of 28 paragraphs in this story, twelve report the claimed analysis of the memo unfiltered, as if it really was a predecisional declination memo, as if it really did analyze the entirety of the report, as if it was factually accurate. It dedicates four paragraphs to more recent efforts of Barr and the others involved to justify their decisions or separate themselves from Trump. Rather than describing the years-long fight featuring judges repeatedly calling out both the project of the memo itself and the means by which it was hidden, Legare described only that it, “was ordered unsealed by an Appeals Court after a FOIA request and subsequent lawsuit were filed seeking its release.” Ultimately, then, this article treats the memo as something the judges say it’s not — a view that would be reinforced by an assessment of the actual claims made against the now-public record of the investigation itself.

Ryan J. Reilly and Dareh Gregorian, DOJ releases unredacted memo to Barr on Trump, obstruction in Mueller probe (NBC)

Reilly interrupted breaking a story about an important January 6 militia arrest the other day to cover this live and did a pretty good job on the air. But in the write-up with Dareh Gregorian, they spend paragraphs three through eight quoting at length from the memo. Along the way, they claim the memo “dismiss[ed] Mueller’s concerns about Trump’s … dangling of pardons to some witnesses,” rather than calling it out for ignoring pardons entirely. While the piece noted that Barr “announced that the Justice Department would not prosecute the case the same day the memo was sent to him” and described ABJ’s ruling that, “Barr’s mind had already been made up before the memo was written,” thereby hinting that the memo was just a messaging project, they don’t consider the import of that sequence for the analysis itself. And rather than identifying the problems of the memo themselves, they describe that, “many people strongly disagreed with the analysis laid out in the memo,” and explicitly identify CREW as ” left-leaning,” treating the actual substance as something inaccessible to them and so just a matter for ongoing political dispute.

Alexander Mallin, DOJ releases memo behind Barr’s decision not to prosecute Trump for obstruction (ABC)

To his credit, in the five paragraphs describing what led to the release of the memo with which Alexander Malin starts his coverage, he describes the judges concluding that, “Barr and other DOJ officials were not candid in their statements about the role the memo played in their decision to not charge Trump.” Which makes it all the more mystifying why he dedicates eleven paragraphs of his story quoting the memo at length, with no fact-checking or push-back, as if it the memo really was real analysis that led to Barr’s decision to make an announcement that he wouldn’t have charged Trump if he could have.

I get it. This memo came out amid a flood of news, especially for those of us on the DOJ beat. I get that people rushed to do quick analyses so they could go back to watching dockets in Florida, Georgia, and DC.

But what happened with this memo — four judges overriding a b5 exemption based on their assessment that DOJ misrepresented the function of the memo — is virtually unprecedented. That, by itself, should lead reporters to scrutinize the memo (or at least the process) for the kind of dishonesty the judges judged it was, rather than treating it as a transparent record of legal analysis that ABJ already showed it’s not. All the more so when, as is the case here, thousands of pages recording the underlying evidence (evidence that the authors of the memo explicitly say they’re not going to cite) are publicly available.

If you’re reporting on a document that DOJ made false claims in an attempt to keep secret, parroting what it says at length, with no discussion of why DOJ made misrepresentations to keep it secret, with no effort on your own to test whether what it says is any more true than what was said to keep it hidden, you’re doing readers a disservice.

Four judges and CREW (plus Leopold, with his earlier Mueller Report FOIA) have given you an easy way to reassess what Bill Barr did to pre-empt the results of the Mueller Report in 2019. To instead simply repeat his past claims or those whom he ordered (and worked with) to justify a pre-ordained result is not journalism.

31 replies
  1. TaxesMyCredulity says:

    The most succinct summation is Andrew Weissman’s (whom I believe you quoted previously and Heather Cox Richardson also used in her piece yesterday): “If you successfully obstruct an investigation, you cannot be charged with obstruction as you were not charged with the crime under investigation. Future defendants will have a field day with this memo unless DOJ repudiates it soon.”

    Sure would like to see you on Maddow Monday night so you could explain to other journalists how they’re doing it wrong!

    • Sue 'em Queequeg says:

      Indeed, thank you Dr. Wheeler, and Rayne and bmaz, and all the amazing corps of daily commenters.

      A basic and probably silly question from someone who is definitely NAL, but also genuinely baffled. What do folks know/guess is the reason the MSM continually needs to be held to account as this site faithfully and tirelessly does? Editorial pressure? Fear of losing access to MAGAheads? Groupthink? Failure to recognize the obvious integrity of the site? Just plain lame-brainedness? Some combination?

      • emptywheel says:

        In this case I think it was partly the rush, partly that editors don’t value reading, they value rolodexes.

      • Yorkville Kangaroo says:

        It’s an interesting question and one I’ve thought about a fair bit.

        As far as print goes the two supposed pillars of reportage, the New York Times and the Washington Post, each have a similar problem when it comes to how they approach political news.

        The NYT is a creature of NYC and, in particular, establishment NYC. It is high-brow and is THE organ for ACTUAL high society. I would wager if you stood them all on a big see-saw in order from politically left to poltically right the whole thing would be perfectly in balance. This forces the Times into this ridiculous ‘bothsideism’ stance that we see almost all their writers take. They also seek to differentiate themselves from the Daily News and the Post who basically like to scream at their audience generally from diametrically opposed platforms. A quick browse of their Pulitzer Prizes don’t show a whole hell of a lot of stuff getting at the real roots of American political dysfunction.

        One notable exception was the 2019 investigative reporting into The Donald’s financial empire:

        Note this is not about Trump as POTUS and, frankly, doesn’t really tell us anything more than most establishment New Yorkers already knew.and did themselves.

        The WaPo has the same sort of problem but it comes by way of the polarised political situation the find themselves reporting on and they deal with it in exactly the same way; bothsideism. If they fail to call out Ds the GOP will squeal and cut off access. Likewise it flows the other way.

        When Bernstein and Woodward broke Watergate this situation did not exist. Both parties, especially the GOP, played by the rules.

        When it comes to Cable/TV it’s basically been a case of race to the bottom vs. Fox.

        • DrDoom says:

          In the case of NYT, I believe the rot starts at the top. I believe AG Sulzberger to feel threatened by being surrounded by smart people. This has occurred on both the news and the opinion sides. Krugman, Blow, Gay, and Bouie serving as the exceptions to the rule. The rest of the opinion lineup is hopeless. On the news side, there have been problems for a long time, but the public seems to forget or overlook them. Baquet was an embarrassment. Jason Blair was even worse. Judith Miller was the author of Iraq and Afghanistan, and Maggie Haberman seems to be using Miller as a role model. This is an organization that has repeatedly failed to adhere to journalistic standards over the last generation. That speaks to leadership failure IMO. The culture is poor, and as a result shoddy work is encouraged.

      • L. Eslinger says:

        It’s clear that Mr. Eliason is not shy about applying the word “obstruction” to obstructing obstructors and their acts of obstruction (to borrow from Al Franken).

        Meanwhile, with the cooperation of a wide swath of media outlets, Bill Barr continues his work to whitewash his legacy.

    • skua says:

      A fine tribute to some stenographers.
      As well as memorializing their competence you’ve made it clearer to me what the problems with the memo are. Winners all round.

      (Memo to self: Be selective. Avoid some winnings.)

  2. Klaatu Something says:

    I respect your intelligence but sometimes your reporting depresses the hell out of me, even the institutions that supposedly can be trusted cannot be trusted.

    • earlofhuntingdon says:

      It’s not Marcy’s job to make readers feel good. Religion and the nightly news do that.

      Like Izzy Stone and other investigative journalists, Marcy does something less popular and lucrative. She covers the facts and their implications, which mainstream media avoid. They do that either because their politics find them unpalatable, because they think making readers read would lower their market share, or because they exist to make power look good, whatever it does.

  3. Savage Librarian says:

    Sloppy puppets seem to have no qualms about damaging democracy. Can they even read, or think, or hear? Maybe they ought to consider some other career options. Or, they can start heeding Marcy’s wise and generous observations. That would be a service to all of us, a reputational boost for themselves, and a contribution to a healthier society.

    No puppets! That would be superb. Marcy excels at expelling puppets. Just like Celia:

    “Spain’s Celia Muñoz Ventriloquist Without a Puppet SHOCKS the Judges on America’s Got Talent”

  4. BobCon says:

    “Much of the coverage of the Barr Memo — written over a weekend after a 7-hour review of the Mueller Report”

    Based on the print version of the NY Times that came out Monday morning, I’m pretty sure he already had the memo mostly written and what was going on over that 7 hours was frantically scanning for anything that could be a problem and figuring out last minute adjustments, redactions, or massaging.

    The 3/25 front page of the Times, probably was largely in place by late 3/24. The banner headline “Mueller Finds No Trump-Russia Conspiracy” and all of the supporting pieces filling the entire front page, including the miserable Peter Baker “analysis” headlined “Burden Lifts, Leaving President Fortified For Battles to Come” strongly suggest the bulk of the reporting and editorial work was already done.

    And compared to the usual chaos of Trump White House PR, I think this was a Barr/DOJ operation which had the PR angles locked down well in advance. It wasn’t just the NY Times which hit the ground running this way either — it was a cross a wide swath of the DC press corps.

    And while the press can get into print straight reporting on things like an explosion on a fairly short turnaround, the format and content of most of what appeared on the Times front page was almost certainly sold to reporters and editors well before Barr and company had even finished that 7 hour review.

    • earlofhuntingdon says:

      Much of the coverage, perhaps piggy-backing on itself, assumes that the memo was “prewritten,” not worked up in a hurry over the weekend. But it doesn’t delve into whether that’s true or why it would be so much worse than pulling a couple of all nighter’s in a row.

  5. Fancy Chicken says:

    And this is why in the past year, you Dr. wheeler, have become the absolute first thing I read in the morning. I’ve been a long time periodic reader, but have now come to see you as essential First Things when MSM and even most “prestige” media can’t get the facts straight when our democracy is hanging by a thread. I often direct folks here when I end up in some comments section; I am a generational WAPO subscriber and I sure hope I’ve shamed some of the writers there and noticed that Phillip Bumb there quotes you regularly.

    Thank you, thank you, thank you, for your much needed hard work.

  6. TooLoose LeTruck says:

    For anyone interested, the redacted affidavit is now available to read online…

    And large parts of it are indeed redacted…

    No doubt, this will set off an absolutely ear piercing wail in Trump World…

    “What are they hiding?”

    As far as I could game this out, the DOJ was screwed either way on this one…

    If they released the entire affidavit, could it not damage ongoing investigations and even endanger lives?

    And by releasing a seriously redacted version, it gives Trump the space to rant about the DOJ ‘keeping secrets’…

    Damned if you do, damned if you don’t.

    • Reader 21 says:

      Yes, to all the above—hence bmaz’s wholly justified criticism of the judge to take this exceedingly rare step—there’s a reason things like this are kept sealed, and ‘he felt threatened, or ‘the subject is an unusually effective blackmailer’ isn’t one of them. Norms—ie., unwritten rules—exist for a reason.

      • John B. says:

        Very true, and of course the counselor from AZ is undoubtedly correct, but, the conundrum is what to about an Individual-1 like TFG who lies and lies and lies in the service of spreading propaganda and worse. How does the DoJ combat that? Bmaz says just play it like you would any other case, but this is not like any other case. It’s unprecedented, both the probable criminality and the warrant and search. I actually think at the frisk of more scorn from Bmaz that they are playing this right.

        • Reader 21 says:

          Good points, although I keep coming back to the good counselor’s sage advice that unprecedented interest should not make us break the rules (and what is a norm but an unwritten rule, after all). But I place the blame squarely on the judge here–I think he forced DOJ’s hand here, with his unprecedented demand. Again–and I hear otters presumably well-meaning analysts on the right (Mona Charen, Jack Goldsmith) make similar claims, well it will lead to violence or threats of violence if we uphold the law against Trump – just because the subject or target of an investigation is an unusually effective or violent criminal, should not mean we throw up our hands and discard the constitution or the rule of law. For one who apparently was never overturned on appeal in all his years on the bench – quite a feat, given the makeup of the SCt – the chances of Garland appealing this, where he’ likely lose, tick off the magistrate, and / or lose control over how much to redact, was vanishingly slim.

          That said, I can’t help but think of November, and the possibility of a Jim Jordan threatening subpoenas or contempt of Congress if they don’t release the entire unredacted affidavit to his committee, and then those names mysteriously leaking out. Dan Goldman, who. knows a thing or two about witness intimidation (having been a legendarily successful prosecutor of transnational and Russian organized crime) has long maintained that one of the most under appreciated and certainly under-reported features of the Trump era is violence and threats of violence directed towards witnesses – hopefully this judge took all this into account before issuing his ill-advised ruling.

          • John Gurley says:

            Threats and intimidation tactics are definitely under-reported.

            Unless you are a Republican like Bret Kavanaugh.

            Protesters outside his restaurant, oh-my.

            • Reader 21 says:

              Yes! And who could ever forget the chalk on the sidewalk outside Susan Collins’ house (after Roe was overturned) – heavens to Betsy, if that wasn’t a cause for concern!

  7. Doctor Biobrain says:

    The problem is that to survive in mainstream media you need to be a conformist who naturally defers to authority, which includes anyone who can act like they’re an authority, like if they’re an overweight white guy with a tough face; eg, Dick Cheney, Bill Barr, and Emperor Trump.

    But if you want to talk truth to power and don’t respect authority, you probably won’t get hired, won’t get good assignments, and will be shown the exit as soon as you rock the boat too much. It’s like that in most jobs, but there are fewer media jobs to go around.

  8. Yorkville Kangaroo says:

    And while we’re on the topic of curruption and marginally OT I see His Royal Highness has reared his ugly head again:

    “Lake, Finchem and their lawyers used the court “to further a disinformation campaign and false narrative concerning the integrity of the election process,” she wrote.

    “The lawyers for Lake and Finchem responded that their claims are “legally sound and supported by strong evidence.” Their brief was signed by attorneys Andrew Parker of Minneapolis, Kurt Olsen of Washington and Alan Dershowitz, a well-known former Harvard Law School professor.”

  9. tinao says:

    So addicted to power is billy, that in order to to push his totally corrupt unitary executive powers forward he would hide the crimes of trump. There really is nothing more to say.
    Hey billy, not all Catholics are sick like you. God has mercy on us all though. : – )
    I really want to see more people understand that we our founded on separation of church and state.

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