Tea Leaves on the Garland-Monaco DOJ and the Stay in Andrew McCabe’s Lawsuit

The effort to figure out precisely why moderate Merrick Garland and career DOJ employee Lisa Monaco are having the Department of Justice sustain shitty positions adopted under Bill Barr has reached a fever pitch. In my piece on Monaco, I noted one thing — her presumed approval, on her first day in the job, of a raid on Rudy Giuliani — that suggests some people are mistaking a likely effort to sustain DOJ as an institution for an effort to protect Trump.

I’d like to point to another tea leaf — something that happened (perhaps coincidentally) on Monaco’s third full day on the job. That’s when the two sides in Andrew McCabe’s lawsuit moved to stay discovery pending an effort to settle the case.

The parties jointly move this Court to stay all discovery in this proceeding, for 45 days after this motion is granted, and to extend all previously set case deadlines and events by 45 days. The parties request this relief so that they may explore the possibility of settlement.

Good cause exists for the requested relief, because the stay and extension would allow the parties to focus their efforts on discussing settlement expeditiously, free from any competing obligations and ongoing disputes related to discovery, and without burdening the Court with potentially unnecessary discovery disputes. The parties propose to update the Court two business days before the stay’s expiration about whether a further stay and extension is warranted.

On its face, a settlement with McCabe would look like a stark reversal of a Trump policy. Top levels of Trump’s DOJ signed declarations swearing that McCabe’s firing was for cause. At that level, the interest in settling the lawsuit looks like a pretty serious reversal.

That said, depending on how broadly Judge Randolph Moss ruled discovery must extend (an issue that is still pending), McCabe’s lawsuit could seriously embarrass DOJ. Even just his case in chief, in which DOJ IG and OPR ignored the testimony of key witness, FBI press person Michael Kortan (with whom McCabe’s office worked on the story that DOJ claims he was trying to hide), full discovery could badly embarrass DOJ. Still more so if the extent to which DOJ pushed to indict McCabe, allegedly after the grand jury rejected charges against him, became public. By the end of Barr’s tenure, DOJ had altered a McCabe document and submitted it to Emmet Sullivan, another potentially damaging revelation (though one probably outside any imaginable scope of discovery).

And that’s just what we know about. In the weeks leading up to McCabe’s testimony before the Senate Judiciary Committee, DOJ was refusing to share documents that McCabe needed to adequately prep for his appearance.

I’m not sure what this particular move suggests about DOJ. But I know that full exposure of the witch hunt against McCabe would badly damage DOJ, including some career employees who served Barr’s whims. But a settlement would also damage the Trump DOJ, because it would prove that Trump politicized his entire DOJ to take out perceived enemies.

That is, amid all the other tea leaves, what happens with the McCabe suit may indicate which damage to DOJ the Garland-Monaco DOJ seems most intent on avoiding.

Update: The two sides just filed an update: No settlement has been reached, but they remain in talks.

Consistent with their April 23, 2021 Joint Motion to Stay Discovery and Extend All Case Deadlines (Dkt. 56), the parties submit this joint notice regarding the current stay of litigation.

On April 27, 2021, this Court granted the parties’ joint motion for a 45-day stay of all discovery so that the Parties could focus on exploring the possibility of settlement. No settlement has been reached, but the parties are continuing their discussions. In the event that they agree that a further stay is warranted, they will so notify the Court by filing another joint motion to extend the stay and related deadlines.

Welcome to Lisa Monaco’s DOJ, E Jean Carroll Lawsuit Edition

During Lisa Monaco’s confirmation hearing, several people joked about how few questions she was getting. Because Vanita Gupta had been targeted by Republicans, Monaco was left for broad swaths of the hearing, a spectator to that effort.

There were some good exchanges. In addition to complaining about DOJ’s refusal to respond to questions from Democratic members of Congress, Sheldon Whitehouse asked about OLC, to which Monaco provided an anodyne answer that was enough for Whitehouse, who was going to vote for Monaco one way or another. Josh Hawley asked some legitimately good questions, including about end-to-end encryption. To those questions, Monaco hewed a middle ground and an adherence to the laws on the books. John Cornyn asked the same question Republicans harped on with Merrick Garland, whether she would let John Durham finish his work, to which she responded that her job is to make sure he has the resources to do so, which (while more nuanced that it sounded) shut down that line of questioning.

It was a testament to how shallowly Republican staffers interpreted Lisa Monaco’s long career that Chuck Grassley asked Monaco whether she had involvement in Crossfire Hurricane — the answer was obviously no, given her White House role at the time. But Grassley didn’t ask whether her position at the nexus of Mike Flynn’s efforts to obtain information from the Obama White House in advance of making calls with Sergey Kislyak that Flynn lied to hide would affect her view of the Russian investigation. Perhaps only Susan Rice was more personally betrayed by Mike Flynn’s outreach to Russia, and yet Republicans seemed to not even realize that Flynn and KT McFarland sent Tom Bossert to query Monaco in advance of Flynn’s covert call with Russia, making her the Obama person most directly victimized by Flynn’s underhandedness.

That blithe ignorance of how Monaco’s personal history might affect her tenure extended beyond the Senate Judiciary Committee. For example, while every Assange supporter has targeted Biden and Garland for their pleas to drop the Assange prosecution, none have thought about the fact that Monaco was in charge of the response to the 2016 Russian interference campaign that led even WikiLeaks sympathizers in the Obama Administration to completely reconsider Assange’s game and his longterm relationship with Russia (then again, Assange supporters, almost to a one, have convinced themselves to believe bullshit propaganda about that decision being made under Trump).

Most people have failed to ask these questions about Monaco’s career experiences, even though as Deputy Attorney General, Monaco runs DOJ on a day-to-day basis and makes a lot of these decisions and serves as a key advisor to Garland where she doesn’t.

As a result of the very surface approach to Monaco’s career, there were a whole slew of questions in her confirmation hearing that should have been asked (and should be asked before Monaco’s close associate Matt Olsen is confirmed as National Security Division head), but were not. When Lisa Monaco was Robert Mueller’s top advisor in 2006, for example, what role did she play legalizing the phone dragnet aspiring to collect the phone records of all Americans under FISA’s Section 215? Given her past failures to fulfill promises of transparency, specifically as it relates to FISA, what can she do to ensure she will deliver on such transparency as Deputy Attorney General? What was her role in the execution of Anwar al-Awlaki, and what does that say about her willingness to support unfettered executive authority? With the value of hindsight, does Monaco believe that she was suckered into continuing John Brennan’s permissive approach to drone strikes as White House Homeland Security Advisor, and if so what would she do to give herself the leverage to actually change bad policies baked in by her predecessors?

Don’t get me wrong: Monaco has almost unparalleled qualifications to be Deputy Attorney General, she brings a lot of great qualities to the job, and I’m sure she’s a lovely person. But there was almost no consideration about what affect her long tenure at DOJ and in National Security roles would have on her view towards Presidential authority and DOJ institutional precedent before she was confirmed.

Indeed, in perhaps the question that got closest to asking how she would treat initiatives from career DOJ officials already in place, Monaco explained to Amy Klobuchar that she viewed her job as to empower the people at DOJ she believed operated from an inherently unpartisan stance.

Klobuchar: After the last four years where civil servants withstood political interference, what do you see your role is as restoring the trust in the Department of Justice?

Monaco: Well Senator, as I said in my opening remarks, I think that the career men and women of the Justice Department are its backbone. They’re the people that enforce the law independently, faithfully, fairly, impartially, without any consideration of improper motive. I think they simply want to do their job. They want to do their job with the resources and the tools to keep the American people safe, to prosecute violent crime, to administer justice with compassion, and with humility, as Judge Garland talked about before this committee. And they want to see equal justice under law, and they want to do the work that this Committee has done on a bipartisan basis to administer criminal justice reform. And so I think my role is to ensure that they’ve got the tools and resources to do their job and to protect them from improper influence, any partisan motive, because I think they just want to do their job.

This is the belief system that leads Monaco to respond to a question about career DOJ prosecutor John Durham’s clearly politicized investigation by saying that her job is to make sure he has the resources he wants to continue that investigation.

In her role at DOJ, Monaco has overseen some key wins: with the announcement yesterday that FBI had seized much of the ransomware payment that Colonial pipelines had paid Dark Side hackers, with her quiet presence on the public line listening as Paul Hodgkins made the first pure guilty plea of the January 6 investigation, with the decision — on her first full day in office — to let SDNY resume its investigation into Rudy Giuliani’s foreign influence peddling.

But also under her leadership, DOJ has delayed notice to NYT about an effort to get their Internet records in a clearly politicized investigation. DOJ has moved to hide the contents of a Bill Barr memo that clearly abused his authority and the role of OLC (and with that decision, protected career employees who were making similarly dubious claims when Monaco ran the National Security Division). DOJ has defended a lot of legal stances that were obviously political on their face, most recently and egregiously by sustaining DOJ support to give Trump immunity from suit in his attack on alleged rape survivor, E. Jean Carroll. That is, as she did before with Cheney’s Stellar Wind and Brennan’s drone program, Monaco seems to have chosen not to make a clean break from the horrible policies of her predecessors, choosing instead to ensure the continuity of the institution.

Again, Lisa Monaco oozes intelligence and competence; she’s undeniably qualified to be where she’s at. But she also got where she’s at by cleaning up the messes left by Stellar Wind, the torture program, and John Brennan’s drone program by improving those shitty policies without demanding any accountability for the abuse of DOJ and presidential authority they entailed. Plus, as a career DOJ official, she’s going to defend professionals who did stupid things on the orders of a deeply politicized boss.

Particularly in the wake of the decision to defend Trump against Carroll’s suit, people are wondering how Merrick Garland could make such a horrible decision. My suspicion is they would be better asking what Lisa Monaco’s role was in the decision.

DOJ Reaches a Non-Prosecution Agreement with the MCC Guards Bill Barr Used as Scapegoats for Jeffrey Epstein’s Death

Back when DOJ rolled out a draconian prosecution against two of the prison guards — Michael Thomas and Tova Noel — whose negligence created the opportunity for Jeffrey Epstein to kill himself, I noted all the ways they were being made scapegoats so Billy Barr could avoid admitting that his own system-wide failures to address staff shortages in the prison system played a far more important role in Epstein’s death.

That he calls these “screw-ups” didn’t prevent his DOJ from filing a six count indictment this week against the guards on duty the night Epstein died, Michael Thomas and Tova Noel, an overarching conspiracy charge along with false records charges for each of five prisoner checks one or both of them had claimed to have done that night, but did not.

It’s an odd indictment.

It shows that in addition to Thomas and Noel, two other guards filed false records, one — along with Noel, for a 4PM prisoner check during which Epstein wasn’t even on the floor — and another –again with Noel, for a 10PM check.

Furthermore, there’s no evidence that they failed to complete the checks because they were trying to facilitate suicide. Indeed, Thomas is described as one of the guards who had found Epstein before his earlier suicide attempt succeeded on July 23. More importantly, when Epstein was found dead (the indictment is very unclear about who first found him, though the implication is Thomas was), both defendants immediately admitted they hadn’t done their job.

NOEL told Supervisor-1 “we did not complete the 3 a.m. nor 5 a.m. rounds.” THOMAS stated, “we messed up,” and “I messed up, she’s not to blame, we didn’t do any rounds.”

Additionally, there’s no time of death in the indictment, leaving open the possibility that Epstein died before Thomas came on shift at midnight, meaning one of the other guards would be the other responsible party.

While the conspiracy charge relies, in part, on a ConFraudUs argument — effectively arguing that by making false records claiming they had done their rounds, they impaired the lawful function of the government, the indictment also alleges they intended to impair “the investigation or proper administration” of government.

Sure, they impaired their supervisor’s ability to bust them for slacking (and, for two hours, literally sleeping) on the job. Sure, they impaired an escalating bed check system that was unnecessary in any case to find Epstein.

It’s certainly possible that the government suspects there’s more to this, that Thomas, having been involved in thwarting Epstein’s first suicide, he got recruited to facilitate his second one. It’s possible the government is suspicious about the fact that Noel walked up to the door of Epstein’s unit around 10:30PM. Certainly, by larding on six charges, they’re holding an axe over the guards’ heads to make them plead out quickly. Though there’s no reason to believe either one of them was involved in the more important failure, to make sure Epstein had a cellmate who could have called guards right away.

But as presented, the evidence presented in this indictment suggests not so much a conspiracy to make it easier for Epstein to kill himself, but instead, a conspiracy — one involving other guards on the SHU that night — to cut corners to make their thankless job easier. Part of that seems driven the pay and understaffing leading guards to take taxing overtime shifts; both defendants were working an overtime shift that night, with Noel working 16 hours straight that day.

I don’t mean to apologize for the defendants for behavior that, with several other factors, created the opportunity for Epstein to kill himself.

Rather, I mean to highlight how the grunts in this story are being threatened with long prison sentences, while the guy (once again) watching videos himself rather than fixing the systemic problems gets away with calling it “a perfect storm of screw-ups.”

The government was pushing to take the two guards to trial last year.

Before COVID scotched that plan, Thomas’ lawyer, Montell Figgins, unsuccessfully tried to obtain documents that would show the guards’ misconduct was not only known to Bureau of Prisons management before Epstein’s death, but also required because of how badly prisons were understaffed.

The requested documents in this motion are essential to Mr. Thomas’ ability to prepare a defense. Mr. Thomas contends that the conduct with which he is being charged is: 1) rampant throughout the BOP; 2) made with knowledge and acquiescence by the leadership of the BOP; and 3) is the direct result ofBOP policies and mismanagement that forced the defendant to engage in conduct for which he is now being charged criminally.

Figgins also argued that there were necessarily other people — other guards and supervisors — who had to be complicit in their actions.

Additionally, Michael Thomas is charged with making false statements for signing certain count slips and round sheets. However, what the government has deliberately failed to clarifiy [sic] is that those documents have to be approved by supervisors and are signed and/or initialed by other BOP employees. If this is the case, why is Michael Thomas and Tova Noel the only two employees charged with making false statements.

The judge denied that request, accepting the government’s representation that, among other things, the prosecution had investigated this thoroughly and any IG Report showing a systemic problem at the Metropolitan Corrections Center and Bureau of Prisons more generally was far from completed and therefore anything that existed would be deliberative.

Since then, the trial has been delayed over and over because of COVID, and would not have taken place until sometime in October or later.

But now it’s almost certainly not going to happen at all.

Yesterday, the government moved to enter non-prosecution agreements against the two defendants, arguing that the investigation they had already said merited prosecution now merits no prosecution.

After a thorough investigation, and based on the facts of this case and the personal circumstances of the defendants, the Government has determined that the interests of justice will best be served by deferring prosecution in this District.

In addition to 100 hours of community service, Thomas and Noel are required to cooperate with the Inspector General’s investigation the drafts of which they had been denied in discovery last year.

The defendants will cooperate with a pending Department of Justice Office of Inspector General review by providing truthful information related to their employment by the Bureau of Prisons, including about the events and circumstances described in the Indictment;

This indicates that the IG Report still is nowhere near done. It may also indicate that the IG requires their cooperation to lay out an accurate chain of authority for the circumstances behind Epstein’s suicide, cooperation they would have been legally entitled to withhold under a Fifth Amendment claim pending trial.

Their prosecution, had it succeeded, would have made a full report by the IG impossible; now their punishment is to cooperate with the IG.

All this strongly suggests that Figgins was absolutely right, a year ago, when he argued that a full investigation of the events would show that Thomas and Noel were, in the least worst case scenario, just bit players in a larger system of incompetence and neglect that allowed Epstein to take his secrets to the grave. The evidence still strongly suggests that Epstein was allowed to kill himself by that neglect.

But given the seeming confirmation that Thomas and Noel were being scapegoated to short-circuit a larger investigation and given that DOJ IG did not complete its investigation while Bill Barr retained some ability to influence the investigation, there may be more to it.

It remains unclear whether Bill Barr’s refusal to staff prisons adequately led to Epstein’s death or something more malign happened. Whichever it is, these two prison guards very nearly became sacrifices in Barr’s effort to hide his own complicity.

On Merrick Garland’s Confirmation

As you may, or may not, have heard, Merrick Garland was confirmed, by a vote of 70-30, as the next Attorney General for the United States a few minutes ago. That is a good thing. Garland is a competent, and stabilizing, presence that will be very good for the Department of Justice. And, man can the DOJ use that about now.

But, before people do too many backflips, remember that Merrick Garland is no avenging liberal hero. He has a horrible record on criminal justice issues, and very long has. He is a built in stabilizer, but certainly not as the once and future cure for the ills of the justice system, which at his new job will be front and center.

Is Garland the cure? No. He is an admirable and good man that will restore some bit of normalcy and, hopefully, consistent competence to the DOJ. That alone means everything right now in the wake of the disastrous Jeff Sessions, Matt Whitaker and William Barr eras under Donald Trump. The resetting and stabilization is critical right now.

There are a bunch of just below the AG nominees Biden has made that are great. As Marcy noted previously, Vanita Gupta and Kristen Clarke are excellent people. And, yes, even Lisa Monaco (as DAG) will likely be a competent and worthy person in leadership. Didn’t see me saying that ten years ago. There are also outstanding former DOJ people like Sam Bagenstos and Sasha Samberg-Champion returning to government, even if not at the DOJ, and they are taking pay hits to do so. Be thankful for those, and similar, people because that is also truly good stuff.

In short, all are tectonic shifts in the right direction from the disastrous Trump years. But, as to Garland, let’s wait and see. He was a good and stable choice. Before you place your hopes and dreams on him too much, however, let him show his work. On criminal justice, his history of work has been, shall we say, rather uneven. There were several warts when Obama nominated Garland for the Supreme Court, and there still are. For now though, great.

Congress versus the Constitution: Merrick Garland’s Second Reconstruction

Early morning Eastern Time on January 6, I wrote a post arguing that Merrick Garland was a better Attorney General pick than a lot of people assumed. By the end of the day, the January 6 insurrection made him look like an even better pick, based on his successful prosecution of right wing terrorist Timothy McVeigh. When he testified on Monday, Garland surpassed even those expectations, in large part because he described as his mission the same one DOJ had when originally founded 151 years ago: protecting the rights of people of color in the face of right wing terrorism.

Celebrating DOJ’s 150th year reminds us of the origins of the Department, which was founded during Reconstruction, in the aftermath of the Civil War, to secure the civil rights promised by the 13th, 14th and 15th Amendments. The first Attorney General appointed by President Grant to head the new Department led it in a concerted battle to protect black voting rights from the violence of white supremacists, successfully prosecuting hundreds of cases against members of the Ku Klux Klan.

Almost a century later, the Civil Rights Act of 1957 created the Department’s Civil Rights Division, with the mission “to uphold the civil and constitutional rights of all Americans, particularly some of the most vulnerable members of our society.”

That mission remains urgent because we do not yet have equal justice. Communities of color and other minorities still face discrimination in housing, education, employment, and the criminal justice system; and bear the brunt of the harm caused by pandemic, pollution, and climate change.

150 years after the Department’s founding, battling extremist attacks on our democratic institutions also remains central to its mission. From 1995 to 1997, I supervised the prosecution of the perpetrators of the bombing of the Oklahoma City federal building, who sought to spark a revolution that would topple the federal government. If confirmed, I will supervise the prosecution of white supremacists and others who stormed the Capitol on January 6 — a heinous attack that sought to disrupt a cornerstone of our democracy: the peaceful transfer of power to a newly elected government.

This mission is all the more important — and optimistic — given the strains on Congress in the wake of January 6.

Given the delay caused by the former President’s attempted coup, impeachment, the delayed Senate organizing resolution, and a recess, this week, kicked off by Garland’s hearing, has been the first week where the 117th Congress has moved to account for the events of January 6. How Congress responds — and its effect on mid-term elections in 2022 — will have a key role in deciding whether the Republic survives Trump’s efforts to steal an election, or whether those events just harbor a decline into white supremacist authoritarianism.

How Congress responds to the events of January 6 is especially critical given disputes about the form of a 9/11 style commission to assess the event. Nancy Pelosi and Mitch McConnell disagree on key details: whether Democrats should have more representatives on the commission, and how broad the scope will be.

Senate Minority Leader Mitch McConnell slammed House Speaker Nancy Pelosi’s draft proposal for a commission to investigate the Jan. 6 attack on the U.S. Capitol, calling it “partisan by design.”

The Kentucky Republican said he agrees the siege on the Capitol warrants a “serious and thorough review,” but said he thinks Pelosi’s proposal falls short of the standard set by the commission established after the Sept. 11, 2001, terrorist attacks, upon which Pelosi said she would model this new panel.

“The 9/11 Commission was intentionally built to be bipartisan, 50-50 bipartisan split of the commissioners was a key feature,” McConnell said Wednesday on the Senate floor. “It both helped the effectiveness of the investigation itself, and help give the whole country confidence in its work, and its recommendations.”

It’s unclear whether the two sides can come up with a plan for a 9/11 type commission, both because there’s virtually no comity between the two parties and because Republicans have prioritized protecting Trump, their party, and the members of Congress who played a role (with another member implicated yesterday by her spouse’s Three Percenter truck decal). I suspect such a commission may have to wait until other events change the GOP’s current commitment to Donald Trump.

One thing that might change the GOP’s current capture by Trump is the DOJ investigation.

While there are some DOJ decisions that raise questions for me and while it is not yet clear how the courts will finally decide to treat January 6, Merrick Garland’s confirmation will presumably only raise confidence in DOJ’s actions. Virtually all members of the Senate Judiciary Committee, for example, praised his role in the prosecution of Timothy McVeigh during his confirmation hearing (see my live tweet here). Unless DOJ really bolloxes key cases — or unless they shy away from witnesses like James Sullivan, Ali Alexander, and Enrique Tarrio, who can tie the insurrection directly to Trump’s close associates — I expect the investigation and eventually prosecution of those responsible will make the GOP’s continued support of Trump far more toxic (as a few of the GOPers who’ve been censured for their vote to convict Trump have suggested will happen).

The prosecution of January 6 will be the easy part.

The real question, I think, is how Garland weathers GOP attempts to demand prosecutions that Billy Barr primed them to expect.

For example, numerous members (especially Lindsey Graham and Chuck Grassley, whose shared staffer Barbara Ledeen and her spouse were implicated in the Russian investigation) demanded that Garland promise to keep John Durham on, citing Barr’s promise to keep Mueller on during his confirmation hearing, at a point when Barr had already made public statements about the investigation while admitted he knew fuckall about the actual facts.

Garland repeated, over and over, that he can’t make such a commitment until he speaks with Durham. No one knows what Durham continues to pursue that has made his investigation last as long as the Mueller investigation. What is known is that Durham hasn’t interviewed key witnesses and his public filings exhibit fundamental misconceptions about the Russian investigation and precisely the kind of bias he purports to be investigating. Garland repeatedly answered that he didn’t know of any reason to remove Durham early. But he also noted that precisely what Graham and others are demanding about Page — some kind of investigation — happened with the Horowitz report. Notably, Garland knew a detail Republicans refuse to acknowledge: that Horowitz’s ongoing investigation into FISA reveals that the problems in the Carter Page Woods file were no different than other FISA applications, and the more general problems may be a pattern as well.

Given Garland’s emphasis on civil rights, I was at least as interested in Republican attempts to undermine such an effort. Most pathetically, John Kennedy engaged in a colloquy about whether systematic racism exists, whether he, himself, can be racist if he doesn’t think he is, “who wins,” as if equality is a zero sum game. Tom Cotton tried to play games about the difference between racial equality and racial equity.

Finally, there will be GOP pressure to either both-sides political violence, equating actions they claim without evidence were perpetuated by Antifa with January 6, or to limit the extent of the prosecution. With regards to the latter, Garland argued that this investigation will proceed like all investigations, working their way up if the evidence dictates it. That is a position utterly consistent with support for prosecuting Trump’s associates, or maybe even Trump.

With regards to efforts to both-sides political violence — which was Trump’s defense to impeachment and has already played a key role in Republican efforts to dodge accountability for their role in January 6 — Garland gave the kind of judicious answer to Josh Hawley that every Democrat should be prepared to offer. The violence in Portland was criminal (and to the extent it was, it was prosecuted). But it was not an attempt to interrupt the processes of government, such as by interrupting trials.

The Republicans have for years successfully pressured DOJ to try to criminalize their political opponents. As DOJ continues its massive investigation into the insurrection, these efforts will grow more urgent.

Merrick Garland will be confirmed without cowing to Republican efforts to equate their own assault on the Constitution with Democratic politics. But such efforts will intensify after he assumes office, particularly if Durham fails to find the crimes that really don’t exist and as DOJ gets closer to Trump or members of Congress. DOJ has about 18 months to right itself after Bill Barr’s damage, and we shall see how long Garland continues to retain the goodwill of Republicans.

Merrick Garland Is Killing It

The SJC hearing is on the major cable channels and CSPAN. Streaming everywhere too I assume. It is really good viewing, as these things go. Yes, Ted Cruz came across as applicant to replace Sean Hannity. Yes Chris Coons preened for the cameras.

I generally have a fair amount of criticism for Ben Sasse, but he did extremely well today. Surprisingly so. Pat Leahy, despite a bit of rambling pontificating, did as well.

I would love to have a cross-examiner with a killer instinct like Katie Porter in the SJC.

Bottom line is that Merrick Garland is absolutely slaying this hearing.

On Conspiracy

In comments, Harpie went back to Elizabeth de la Vega’s summary of conspiracy.

Since Eureka brought this up above, I figured it might be timely to post it again:

Conspiracy Law – Eight Things You Need to Know.
One: Co-conspirators don’t have to explicitly agree to conspire & there doesn’t need to be a written agreement; in fact, they almost never explicitly agree to conspire & it would be nuts to have a written agreement!
Two: Conspiracies can have more than one object- i.e. conspiracy to defraud U.S. and to obstruct justice. The object is the goal. Members could have completely different reasons (motives) for wanting to achieve that goal.
Three: All co-conspirators have to agree on at least one object of the conspiracy.
Four: Co-conspirators can use multiple means to carry out the conspiracy, i.e., releasing stolen emails, collaborating on fraudulent social media ops, laundering campaign contributions.
Five: Co-conspirators don’t have to know precisely what the others are doing, and, in large conspiracies, they rarely do.
Six: Once someone is found to have knowingly joined a conspiracy, he/she is responsible for all acts of other co-conspirators.
Seven: Statements of any co-conspirator made to further the conspiracy may be introduced into evidence against any other co-conspirator.
Eight: Overt Acts taken in furtherance of a conspiracy need not be illegal. A POTUS’ public statement that “Russia is a hoax,” e.g., might not be illegal (or even make any sense), but it could be an overt act in furtherance of a conspiracy to obstruct justice.

de la Vega has been consistently good on conspiracy going back to the first failed impeachment effort and the lead up to it. I posted this at least once before, think on a post I penned, but not sure, so am going to put this out here again.

At any rate, here are a set of model jury instructions (that I have previously patterned off of for real trials) for a conspiracy case. They are for a drug case, but conspiracy is conspiracy, and the law is pretty much the same, and has long been. What Harpie cited from de la Vega is correct. But to give you a look at how it actually goes down in a court, check out actual pattern jury instructions, because real instructions are always the guide in a real criminal trial. Substitute in the elements for 18 USC §373 and 18 USC §2101, or any of the other various putative crimes being discussed ad nauseam and you will get the picture.

As you read through them, keep in mind the question of “what holes could a competent criminal defense attorney drive a truck through here given a beyond a reasonable doubt burden?”

Now would Trump acquire an actually competent criminal defense attorney were, in the unlikely event he is really charged? Now there is a great question! But, if he were to, there are currently still a LOT of holes. People are getting ahead of themselves. Read the instructions, they scan pretty fast. But keep in mind that once you charge and put a defendant, any defendant, on trial, things are not as easy as they are here or on social media.

While Lindsey Graham Was Stalling Merrick Garland’s Confirmation He Was Hoping for Imminent Hunter Biden and John Durham News

One of the very last things Lindsey Graham did as Senate Judiciary Chair was to send a letter to Acting Attorney General Monty Wilkinson urging him not to do anything about two investigations that — according to his addled little brain — “Democrats would rather go away.” In addition to the Delaware investigation of Hunter Biden, Lindsey included the John Durham investigation in that.

I was even the primary sponsor of bipartisan legislation, favorably reported out of the Senate Judiciary Committee, to protect Special Counsel Mueller’s probe from being terminated. Special Counsel Mueller of course found no evidence of collusion between the Trump campaign and Russia, but it was important for public trust that the probe be completed without interference.

We now find the shoe on the other foot. We have two properly predicated, ongoing investigations Democrats would rather go away: Special Counsel John Durham’s investigation of the Crossfire Hurricane investigation and the investigation by the Delaware U.S. Attorney’s Office into Hunter Biden. Special Counsel Durham’s probe has already yielded a felony conviction.

I am writing to respectfully request that you refrain from interfering in any way with either investigation while the Senate processes the nomination of Judge Merrick Garland to the position of Attorney General. The American public deserve the truth and must know that these investigations will continue without political interference.

There’s a lot that’s ridiculous about this letter. It is laughably false to claim that Mueller “found no evidence of ‘collusion,'” — that would be a false claim even if Lindsey had used the legally relevant term of “conspiracy.”

The shoe is not on the other foot. In contradistinction to Trump’s incessant focus on the Russian investigation, there has been no peep about these investigations from the Biden White House. Instead, Hunter Biden rolled out a book deal the other day, which led his father to focus on the import of recovery from addiction, not legal risk.

Lindsey waves Durham’s single felony conviction around — as compared to Mueller’s much more productive investigation and based on evidence entirely derived from Michael Horowitz’ investigation — even after presiding FISA Judge James Boasberg concluded that Kevin Clinesmith did not commit that crime out of any ill-will and sentenced him to a year of probation.

It’s just such a pathetic effort to sustain conspiracy theories Trump chased, and in spite of the Fox News piece on this letter quoting someone that sounds remarkably like Lindsey Graham talking about an ongoing investigation he shouldn’t know about off the record, it’s not actually clear that either of these will result in a showy prosecution. Hell, for all we know, Durham has shifted his focus to what the FBI Agents who were sending pro-Trump tweets on their phones did during the investigation or why Bill Barr’s DOJ submitted altered documents to a criminal docket, precisely the crime Clinesmith pled guilty to.

To repeat, Graham wrote this to urge Wilkinson, who remains in charge of DOJ and oversees the Durham investigation (Acting Deputy Attorney General John Carlin probably oversees the Hunter Biden one) because Merrick Garland remains the most senior Cabinet official who hasn’t been confirmed yet. This was one of his last acts as Chair of SJC.

But the other major final stunt before handing his gavel over to Dick Durbin was precisely that delay. In spite of Garland’s bipartisan support and in spite of Durbin’s exhortations to stop delaying, Lindsey simply didn’t take up Garland’s nomination when he counterparts were doing so. And so DOJ may not get a confirmed Attorney General until late February or early March.

Probably, Lindsey primarily stalled this confirmation just to impose a price on Democrats for impeaching the former President.

But I had been wondering whether Lindsey didn’t have more in mind, perhaps the delay of charges that DOJ would not unseal without Garland’s sanction. And that may be the case.

But along with that delay, Lindsey has also delayed his opportunity to obtain assurances from Garland that he’ll leave these two investigations Lindsey is obsessed about untouched.

The Press Continues to Help Billy Barr Whitewash His Complicity in January 6

Among the things Bill Barr did in his second tour as Attorney General were to:

In short, over an extended period, Bill Barr laid the groundwork for the two-month effort to undermine the election that culminated in a coup attempt. The outcome of Barr’s actions — the disparate treatment by the department of Trump supporters, the empowerment of right wing terrorists, the continued influence of Powell and Rudy —  was foreseeable. Nevertheless, Barr persisted with those policies that laid the groundwork for the January 6 insurrection.

In spite of that record, Barr continues to find journalists willing to spin a fairytale completely inconsistent with this record, one of Barr standing up to Trump as he pursued this path.

Consider this account of Bill Barr’s decision to quit from Jonathan Swan.

It provides a dramatic account of how Barr denounced Trump’s conspiracy theories — all rooted in claims about the delayed counting of mail-in ballots that Barr had stoked for months.

The president’s theories about a stolen election, Barr told Trump, were “bullshit.”

White House counsel Pat Cipollone and a few other aides in the room were shocked Barr had come out and said it — although they knew it was true.

It describes Barr’s frustration with Trump’s demands about the Durham investigation without mentioning that Barr repeatedly fed those expectations.

He was sick of Trump making public statements and having others do so to whip up pressure against U.S. Attorney John Durham to bring more prosecutions or to put out a report on the Russia investigation before the election.

It also allows Barr to call Rudy and Sidney “clownish,” without mentioning that those very same clowns had gotten Barr to squander the credibility of DOJ on similarly outlandish conspiracy theories, including but not limited to the Mike Flynn prosecution.

For good measure, the attorney general threw in a warning that the new legal team Trump was betting his future on was “clownish.”

[snip]

The president had become too manic for even his most loyal allies, listening increasingly to the conspiracy theorists who echoed his own views and offered an illusion, an alternate reality.

[snip]

But Barr’s respite ended after Election Day, as Trump teamed up with an array of conspiracy theorists to amplify preposterous theories of election interference, arguing that Biden and the Chinese Communist Party, among others, had stolen the election from him.

It presents the conflict over using the military to quell summer protests, without mentioning Barr’s own role in militarizing the response (to say nothing of treating BLM more harshly than right wing terrorists).

By the late summer of 2020, Trump and Barr were regularly skirmishing over how to handle the rising Black Lives Matter protests sparked by the death of George Floyd while in police custody. As the national movement unfurled, some protests had given way to violence and looting. Trump wanted the U.S. government to crack down hard on the unrest.

The president wanted to invoke the Insurrection Act and send the military into U.S. cities. He wanted troops in the street.

[snip]

Besides, Barr asked, what was the endgame for adding the military to the mix? Federal forces could end up stranded in a city like Portland indefinitely.

Trump grew more and more frustrated, but Barr pushed back harder, standing his ground in front of everyone in the room. He was ready, willing and able to be strong, he said. But, he added, we also have to be thoughtful.

In short, this dramatic profile presents a fictional character, wise old Attorney General Bill Barr, who stood up against the President’s worst instincts, wisely resisting the urge to politicize investigations, trump up claims of voter fraud, chase the theories of Sidney Powell and Rudy Giuliani, and back a violent crackdown against Trump’s opponents.

Except that profile is entirely fictional. That Bill Barr is a myth carefully crafted with the help of obliging reporters.

The reality is that over two years of not just tolerating these efforts, but usually taking affirmative steps to foster them, Billy Barr helped to create this monster, even though he was one of the people with the obligation to stop it.

With his corruption as Attorney General Bill Barr fostered this monster. He should get no credit for skipping out before the predictable outcomes of his own actions blew up on January 6.

Why Merrick Garland Is a Better Attorney General Pick Than You Think

Politico reports that, Joe Biden will pick Merrick Garland to be Attorney General. As I was discussing this morning, it was fairly clear that Biden was delaying this decision until after the Georgia race, which made it clear that Garland was likely going to be his choice if Dems took both seats. Pending Biden’s decisions on other positions, this pick is better than you think.

First, Garland’s resignation from the DC Circuit opens up a judgeship that Biden can fill right away, with confidence his judge will be confirmed. He is likely to pick someone far more liberal than Garland. The candidate will almost certainly be a person of color, probably a Black woman. And she’s likely to be in her 40s. In short, Garland’s resignation allows Biden to start counteracting the damage Trump has done to courts right away, and in the second most important court in the country. Biden will start his Administration with an important judicial appointment that will likely have an impact for decades.

The other positions that matter are Deputy Attorney General — who is the person who runs DOJ on a day-to-day basis — and the Assistant Attorneys General, especially at the Criminal Division and Civil Rights Division. Reporting has said that Biden will emphasize diversity in these roles, and he’s likely to pick people to Garland’s left (because most candidates will be to his left). If that is right, then it means the people running DOJ day-to-day will be more liberal Democrats, with someone who is viewed as a well-respected, fairly non-partisan person leading the department.

In general, that will give Republicans confidence that Biden is not simply replacing a hyper-partisan Barr with someone as partisan as Barr was, even while ensuring that the people who do much of the work will be solid liberals.

I also think this makes it more likely that DOJ could investigate and prosecute Trump. As AG, Garland would only have oversight over a select set of decisions in such an investigation. For example, he would likely have to approve subpoenaing Trump Organization to figure out if Trump got a bribe via an Egyptian bank during 2016 (though such a subpoena would be easier to do after Trump is out of office and if New York State charges other corruption crimes). The most important step Garland would have to approve would be any charges of Trump (or presumably those close to him).

But Garland would not be involved in the day-to-day investigation. He would sign off on any major steps against Trump, but prosecutors well below Garland’s level will conduct the investigation (including investigations already in process that implicate Trump).

That’s honestly how Democrats should prefer any prosecution of Trump, that they be sufficiently well-predicated and substantiated enough to get Garland’s blessing. And if any hypothetical prosecution of Trump does have his blessing, it’ll be more likely to be viewed as a legitimate prosecution, not payback.

My biggest concern about this appointment is criminal justice reform (something that would be pursued in the Criminal and Civil Rights Divisions). One item of note, however: Garland has been recusing on death penalty cases in recent weeks, obviously in anticipation that he might get this appointment. One reason he would do so is an expectation that Biden might change policy significantly in this regard. At the very least, it suggests it is something that has come up in conversations between the two.

Garland is not my first choice: Doug Jones would have been. But there are advantages this appointment gives Biden that Jones does not.

Update: And here are those other positions.

Biden is expected to announce Garland’s appointment on Thursday, along with other senior leaders of the department, including former homeland security adviser Lisa Monaco as deputy attorney general and former Justice Department civil rights chief Vanita Gupta as associate attorney general. He will also name an assistant attorney general for civil rights, Kristen Clarke, the founder of Lawyers’ Committee for Civil Rights Under Law, an advocacy group.

Gupta and Clarke are precisely the kinds of people who will attend to civil rights issues. It will genuinely be exciting to have the two of them working on these issues, as both are superb (as someone noted on Twitter, Clarke’s pinned tweet right now is about her lawsuit against the Proud Boys for damaging a Black church in DC).

In addition to being Obama’s Homeland Security Assistant, Lisa Monaco was also a top lawyer at DOJ, including at FBI. I think she’ll bring real weight at FBI, without needing to swap out Chris Wray. Ironically, she is the one person in Obama’s orbit who had a direct role in Mike Flynn’s efforts to undermine Russian sanctions (which she largely imposed), because Tom Bossert consulted with her on how the Russians were responding to the sanctions and then reported back to his bosses, including Flynn, minutes before Flynn called Kislyak.

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