NBC has a story that has caused a bit of panic, reporting that “Biden hopes to avoid divisive Trump investigations, preferring unity.”

The panic is overblown, given that the main point of the story is that Biden is hoping that DOJ will resume a more independent stance than that taken, especially, by Billy Barr.

Biden wants his Justice Department to function independently from the White House, aides said, and Biden isn’t going to tell federal law enforcement officials whom or what to investigate or not to investigate.

“His overarching view is that we need to move the country forward,” an adviser said. “But the most important thing on this is that he will not interfere with his Justice Department and not politicize his Justice Department.”

If there were to be investigations of Trump, everyone should want them to be completely insulated from the White House.

The story raises two more specific types of investigations which are both likely moot.

They said he has specifically told advisers that he is wary of federal tax investigations of Trump or of challenging any orders Trump may issue granting immunity to members of his staff before he leaves office. One adviser said Biden has made it clear that he “just wants to move on.”

Another Biden adviser said, “He’s going to be more oriented toward fixing the problems and moving forward than prosecuting them.”

New York state already has a tax investigation into Trump, so a federal one would be duplicative. And the pardon power is absolute; there’s little likelihood DOJ could investigate the pardons that Trump grants, because doing so would be constitutionally suspect.

All that said, attempting to move forward may not be as easy for President Biden as it was for President Obama.

That’s because there are a number of investigations that implicate Trump that are either pending (as of right now, but I don’t rule out Trump trying to kill them in the interim) or were shut down corruptly, to say nothing of the obstruction charges Mueller effectively recommended (which aforementioned pardons would renew, even in spite of DOJ’s declination prior to pardons). At a minimum, those include:

• The Build the Wall fraud case against Steve Bannon and others that might, eventually, implicate the failson or his close buddies
• The Igor Fruman and Lev Parnas graft which clearly implicates Rudy Giuliani and by all rights should always have included Trump’s extortion of Volodymyr Zelensky; given the timing of David Correia’s plea, it’s likely there will be grand jury testimony from him banked
• Other foreign agent charges against Rudy
• The investigation into Erik Prince for selling his private mercenary services to China
• False statements charges against Ryan Zinke that Jeffrey Rosen attempted to kill
• Various campaign finance and grift charges implicating Roger Stone, Paul Manafort, and Brad Parscale, to say nothing of the hush payments involving Trump personally
• Possible hack-and-leak charges against Roger Stone from 2016, as well as the related pardon quid pro quo for Julian Assange implicating Trump himself
• The possible aftermath of Judge Sullivan’s decisions in the Mike Flynn case, which could include perjury referrals or an invitation for DOJ to prosecute Flynn on the foreign agent charges he pled out of

All of these investigations still do or were known to exist, and if they no longer exist when Biden’s Attorney General arrives at DOJ, it will be because of improper interference from Barr.

The last of these might get particularly awkward given that multiple people at Billy Barr’s DOJ, possibly in conjunction with Sidney Powell and Trump campaign lawyer Jenna Ellis, altered documents to concoct a smear targeting Joe Biden in a false claim that he invented a rationale to investigate Flynn for undermining sanctions on Russia. You cannot have an independent DOJ if the people who weaponized it in such a way go unpunished. Except investigating such actions would immediately devolve into a partisan fight, particularly if Republicans retain control of the Senate. (This particular issue will most easily be addressed, and I suspect already is being addressed, via a DOJ IG investigation.)

Still, in the other cases, DOJ may need to decide what to do with investigations improperly closed by Barr, or what to do with investigations where just some of the defendants (such as Fruman and Bannon) get pardons.

And all this will undoubtedly play against the background of the confirmation battle for whomever Biden nominates. I would be shocked if Mitch McConnell (especially if he remains Majority Leader) didn’t demand certain promises before an Attorney General nominee got approved.

So none of this will be easy.

A far more interesting question will pertain to what President Biden does about the ICC investigation into US war crimes in Afghanistan, crimes that occurred during both the Bush and Obama Administrations. Mike Pompeo launched an indefensible assault against the ICC in an attempt to block this investigation, sanctioning ICC officials leading the investigation. Biden’s Secretary of State will have to decide whether to reverse those sanctions, effectively making a decision about whether to look forward to ignore crimes committed (in part) under Barack Obama.

Win or lose, Donald Trump will be looking for vengeance once the election is over. Either he will lose, and want to punish those he deems responsible, or he will win and want to punish the folks he’s had to put up with despite their failures to do what he wanted. One way or another, Trump will want to make certain people pay and pay dearly after the voting is over.

It might be to get rid of people who have angered him by not being sufficiently publicly loyal and submissive.

It might be to get rid of people who angered him by not being sufficiently good at making Trump look good before the election.

It might be to get rid of people who angered him by making him look bad, indecisive, or (gasp!) wrong.

It might be to get rid of people who stood up to him in private and made him back down on something, even if that backing down was only done in private.

It might be to get rid of people who stood up to him in public, and he had to simply take it at the time because Trump would have paid a price if he got rid of them when it happened.

Put me down for Trump demanding that the following people be forced to walk the plank:

• Doctors Tony Fauci at NAIAD, Stephen Hahn at FDA, and Robert Redfield at CDC, along with HHS Secretary Alex Azar for not keeping these disloyal doctors in line;
• Bill Barr for failing to deliver any indictments and convictions of any Bidens or Clintons, John Durham for dragging his feet on his reports that would have made that happen, Christopher Wray for being the FBI director and generally annoying, whoever approved letting Andrew Weissmann reveal that Manafort was breaking the gag order in his case by communicating with Sean Hannity, and a host of other US Attorneys who didn’t behave according to Trump’s rules;
• General Mark Milley for publicly apologizing for taking part in the infamous Bible-waving photo op created by driving protesters out of Lafayette Park with chemical agents, various generals and admirals who refused to back Trump’s call to deploy US troops to American cities he didn’t like, and Secretary of Defense Mark Esper for not keeping these military folks in line;
• Dr. Sean Conley, for not being more deceptive with the press around Trump’s COVID-19 status;
• Mark Meadows for undermining Conley’s initial “he’s doing great” press remarks, as well as for more generally not keeping the WH functioning smoothly (as if that were possible, given his boss);
• Mike Pompeo for failing to get Ukraine to do Trump’s bidding, as well as for not keeping folks like Fiona Hill in line.

But I must admit this is an incomplete list. Who else do you think might be on Trump’s Naughty List? Add your own thoughts in the comments.

Note: I also left off the list a bunch of folks like Mitch McConnell, Andrew Cuomo, Savannah Guthrie, and Cy Vance that Trump would demand walk the plank, but who remain outside his ability to make that happen. I also didn’t include Ivanka, Jared, Don Jr, or Eric, as he can’t fire his family. Though of course, he could disinherit them . . . for whatever that’s worth.

Virtually every book about the FBI or the Mueller investigation that has come out in recent years has described that Andrew McCabe is a superb briefer — meaning, in part, he can present complex issues to a hostile audience clearly. That’s why the reason his attorney, Michael Bromwich, gave for delaying testimony that was scheduled makes a lot of sense.

As a letter Bromwich sent to Lindsey Graham laid out, McCabe agreed to a voluntary interview in September, provided a series of conditions were met. One — that McCabe have access to his unclassified calendars and notes — has already been thwarted by DOJ, which refused to turn them over (as Bromwich laid out in a letter to Michael Horowitz last week, after inventing reasons not to share the materials that might make McCabe’s testimony more useful, FBI admitted they wouldn’t turn them over because of McCabe’s lawsuit against the Bureau).

But another of the conditions was that the testimony be in person. Bromwich noted that Republicans spoke over both Sally Yates and Jim Comey when they earlier testified remotely. “[A] witness answering questions remotely via videoconference is at a distinct disadvantage in answering those questions,” Bromwich wrote. “A fair and appropriate hearing of this kind – which is complex and contentious – simply cannot be conducted other than in person.”

But the COVID outbreak among those who attended the Federalist Society super-spreader event last weekend has made such in-person testimony too dangerous.

Mr. McCabe was still prepared to testify voluntarily and in person on October 6 as recently as the latter part of this past week. However, since that time, it has been reported that at least two members of your Committee – Senators Mike Lee and Thom Tillis – have tested positive for Covid-19, and it may well be that other members of the Committee and staff who plan to attend the hearing will test positive between now and then, or may have been exposed to the virus and may be a carrier. Under these circumstances, an in-person hearing carries grave safety risks to Mr. McCabe, me, and senators and staff who would attend.

McCabe is not wrong. There’s abundant reason to distrust Lindsey Graham’s claimed negative test. Mike Lee was haranguing publicly at several public events last week before he was diagnosed. And Chuck Grassley (who has far more mask discipline than his colleagues, but who was unmasked for part of the Comey hearing last week) refuses to be tested.

Still, it’s crazy that SJC has become too dangerous for a regular oversight hearing, but Lindsey still plans to push on with the Supreme Court confirmation process that caused that COVID outbreak.

In this post, I showed how Billy Barr justified a lenient sentence for Roger Stone in part by treating threats against judges as a technicality.

As I laid out in this post, prosecutors asked for the following enhancements:

• 8 levels for the physical threats against Randy Credico
• 3 levels for substantial interference
• 2 levels for the substantial scope of the interference
• 2 levels for obstructing the administration of justice

The last of these, per the original sentencing memo, had to do with Stone’s threats against ABJ.

Finally, pursuant to U.S.S.G. § 3C1.1, two levels are added because the defendant “willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the prosecution of the instant offense of conviction.” Shortly after the case was indicted, Stone posted an image of the presiding judge with a crosshair next to her head. In a hearing to address, among other things, Stone’s ongoing pretrial release, Stone gave sworn testimony about this matter that was not credible. Stone then repeatedly violated a more specific court order by posting messages on social media about matters related to the case.

This enhancement is warranted based on that conduct. See U.S.S.G. § 3C1.C Cmt. 4(F) (“providing materially false information to a magistrate or judge”); see, e.g., United States v. Lassequ, 806 F.3d 618, 625 (1st Cir. 2015) (“Providing false information to a judge in the course of a bail hearing can serve as a basis for the obstruction of justice enhancement.”); United States v. Jones, 911 F. Supp. 54 (S.D.N.Y. 1996) (applying §3C1.1 enhancement to a defendant who submitted false information at hearing on modifying defendant’s conditions of release).

Barr’s memo got to the outcome he wanted by eliminating the 8-point enhancement for physically threatening Credico and the 2-point enhancement for threatening ABJ.

The memo suggested the 8-level enhancement shouldn’t apply, first, because doing so would double Stone’s exposure.

Notably, however, the Sentencing Guidelines enhancements in this case—while perhaps technically applicable— more than double the defendant’s total offense level and, as a result, disproportionately escalate the defendant’s sentencing exposure to an offense level of 29, which typically applies in cases involving violent offenses, such as armed robbery, not obstruction cases. Cf. U.S.S.G. § 2B3.1(a)-(b). As explained below, removing these enhancements would have a significant effect on the defendant’s Guidelines range. For example, if the Court were not to apply the eight-level enhancement for threatening a witness with physical injury, it would result in the defendant receiving an advisory Guidelines range of 37 to 46 months, which as explained below is more in line with the typical sentences imposed in obstruction cases.

[snip]

Then, Barr’s memo argued (and this is the truly outrageous argument) that Stone’s attempts to obstruct his own prosecution overlapped with his efforts to obstruct the HPSCI investigation.

Second, the two-level enhancement for obstruction of justice (§ 3C1.1) overlaps to a degree with the offense conduct in this case. Moreover, it is unclear to what extent the [defendant’s obstructive conduct actually prejudiced the government at trial.]

Effectively, this language treated threats against a judge as unworthy of enhancement.

The Attorney General of the United States found a way to go easy on the President’s life-long rat-fucker by downplaying the importance of threats against those participating in trials.

After an anti-feminist Trump supporter allegedly targeted the family of federal judge Esther Salas in July, Barr claimed to care about such attacks on judges, even though he had treated the threat against ABJ as a technicality.

Unbelievably, the very next week, when Barr lied under oath about treating threats to judges as a technicality, he would have known of another threat against a judge.

Not just any judge.

Another judge presiding over a case against a Trump flunky, Emmet Sullivan. In August, a Long Island man, Frank Caporusso, was charged for threats left on Sullivan’s Chambers phone.

On May 15, 2020, Deputy United States Marshal Louie McKinney, Jr. discovered threatening statements made against Victim One and his staff while listening to voicemails left on Victim One’s Chambers’ telephone line. One voicemail, which recorded a male caller speaking for approximately 30-31 seconds, stated:

We are professionals. We are trained military people. We will be on rooftops. You will not be safe. A hot piece of lead will cut through your skull. You bastard. You will be killed, and I don’t give a fuck who you are. Back out of this bullshit before it’s too late, or we’ll start cutting down your staff. This is not a threat. This is a promise.

[snip]

Investigation also revealed social media accounts that appear to belong to the defendant. These accounts, primarily a Twitter account, contain posts and images calling various politicians and celebrities “morons” and “sycophants.” The last “tweets” were sent on July 3, 2020. Additionally, a twitter reply was sent at 10:48 p.m. on May 14, 2020 (the same evening the voicemail was left).

WaPo’s Ann Marimow first suggested the timing of the threat suggested it was Sullivan and Newsday confirms it.

According to sources, Caporusso accessed the “dark web,” including sites that encouraged people to take action against the judge for his overall handling of the Flynn case.

So after Bill Barr treated a threat against a judge presiding over a Trump associate as a technicality, an apparent QAnon nutter with a long gun responded to Sullivan’s actions in QAnon supporter Mike Flynn’s case by threatening to assassinate Sullivan.

Yesterday, Billy Barr had his DOJ intervene in E Jean Carroll’s defamation lawsuit against Donald Trump.

In a filing submitted under the name of Director of DOJ’s Torts Branch, James Touhey, Jr., DOJ claimed that when President Trump accused Carroll last year of making up the rape to sell books and help Democrats, accused other men of rape, and called Carroll unattractive, he was acting in his official capacity as President of the United States.

6. James G. Touhey, Jr., the Director of the Torts Branch within the Civil Division of the Department of Justice, certified that the defendant employee,President Trump, was acting within the scope of his office or employment at the time of the incident out of which the claim arose. The claim asserts defamation based on a written statement issued to the press and two statements the President made in interviews in June 2019 in which the President vehemently denied accusations made in Plaintiff’s then-forthcoming book. The President explained that these accusations were false and that the incident she alleged never happened. Acting pursuant to 28 C.F.R. § 15.4(a),the Attorney General’s delegate certified that President Trump was acting within the scope of his office as President of the United States when he publicly denied as false the allegations made by Plaintiff.

As with other corrupt interventions by Barr’s DOJ, no SDNY attorney signed the filing.

If the move to replace Donald Trump with the US government as defendant succeeds, the entire suit will be dismissed, because the US government cannot be sued for defamation.

The move comes one month after the judge in the case, Verna Saunders, ruled Trump could not delay a deposition and DNA test in the lawsuit.

As I contemplated Barr’s decision to claim that accusing a credible alleged rape victim was all part of Trump’s job as President, I thought briefly about what it says of Bill Barr’s faith, that he would make it official DOJ policy to condone attacks on claimed rape victims like this.

But then I remembered that Bill Barr is of the generation of Catholics where that is the job of the official bureaucracy, to throw all the institutional weight of the Church into protecting alleged rapists and suppressing credible accusations, even to the point of attacking the victims.

And so Bill Barr will further degrade an institution that’s supposed to guard the interests of the less powerful in society, and instead use the power of the institution to corruptly hide how depraved those leading the institution really are.

Steve Bannon and three associates just got indicted in SDNY for defrauding investors in their We Build the Wall “charity,” from which they skimmed about a million dollars.

The alleged fraud here is pretty garden variety: raising funds to pay for a wall and instead pocketing a good chunk of the money.

But it’s significant because it comes just months after Billy Barr tried to replace then-US Attorney Geoffrey Berman with a handpicked successor. Berman responded by insisting that all SDNY investigations would continue as they were proceeding, and he refused to resign until he ensured that his Deputy, Audrey Strauss, would take over.

No one knew this indictment was in the works (and the arrest, by postal agents, makes the surprise more delicious). Which means the other times that Barr has hastily replaced a US Attorney with a flunky could represent similar cases into fraud well beyond the Russian-related crimes we know about. (Note, the Timothy Shea indicted along with Bannon is not the Barr flunky named Timothy Shea whom Barr installed in DC.)Indeed, Erik Prince was a key advisor to this organization; there’s good reason to suspect that an investigation into him got killed at the same time Barr intervened in the Flynn and Stone prosecutions.

Michael Cohen warned the entire Republican Party. If they didn’t stop hanging out with Trump, they would go to jail.

He tried to warn them, anyway.

The judge agreed with me, Congressman.

The judge agreed with me.

The judge agreed with me.

Bill Barr spent a lot of time in yesterday’s hearing claiming the federal officers in Portland have to violently suppress the protests in Portland because the protests are an assault on the Federal courthouse.

He also lied, repeatedly, to cover up the assault on the judiciary he ignored.

In just one exchange with Ted Deutch, Barr claimed at least six times that Judge Amy Berman Jackson agreed with his analysis on the Roger Stone sentence.

Barr tried — and ultimately succeeded — in dodging Deutch’s question, which is whether there was ever a time in the history of the Justice Department where DOJ considered threats against a witness and a judge just a technicality.

Deutch: You said enhancements were technically applicable. Mr. Attorney General, can you think of any other cases where the defendant threatened to kill a witness, threatened a judge, lied to a judge, where the Department of Justice claimed that those were mere technicalities? Can you think of even one?

Barr: The judge agreed with our analysis.

Deutch: Can you think of even one? I’m not asking about the judge. I’m asking about what you did to reduce the sentence of Roger Stone?

Barr: [attempts to make an excuse]

Deutch: Mr. Attorney General, he threatened the life of a witness —

Barr: And the witness said he didn’t feel threatened.

Deutch: And you view that as a technicality, Mr. Attorney General. Is there another time

Barr: The witness — can I answer the question? Just a few seconds to answer the question?

Deutch: Sure. I’m asking if there’s another time in all the time in the Justice Department.

Barr: In this case, the judge agreed with our — the judge agreed with our —

Deutch: It’s unfortunate that the appearance is that, as you said earlier, this is exactly what you want. The essence of rule of law is that we have one rule for everybody and we don’t in this case because he’s a friend of the President’s. I yield.

The exchange is interesting for a lot of reasons — Barr’s story on the timeline on replacing Jesse Liu and Timothy Shea’s subsequent interventions in the Stone and Mike Flynn cases does not hold up in the least, though now he’s on the record, under oath, with that story.

As to the part where there is a public record, Barr was wrong on the facts. For example, while Barr claims that Randy Credico said he didn’t feel threatened by Stone after Stone made threats against him, Credico has said he feared what Stone’s thuggish friends might do. And, as Amy Berman Jackson noted in the sentencing hearing, Credico described to the grand jury how he wore a disguise and lived in hiding out of fear.

I note, since the defense has informed me that I can consider this material, that that is not consistent with his grand jury testimony, which was closer in time to the actual threats, at which time he said he was hiding and wearing a disguise and not living at home because he was worried, if not about Trump, about his — about Stone, but about his friends. So, I think his level of concern may have changed over time.

The revised sentencing memo that Barr falsely claimed ABJ agreed with suggested “the Court [] not [] apply the eight-level enhancement for threatening a witness with physical injury.” But ABJ explicitly said the guideline applied, but she said would account for the nature of the threats and Credico’s leniency letter in deciding whether the sentence should apply the full guideline enhancement.

The guideline plainly applies. Even if one considers the threat to the dog to be property damage, that’s covered too. Application Note 5 explains that the guideline includes threats of property loss or damage, quote, Threatened as a means of witness intimidation.

But as the second government’s memorandum appears to be suggesting, as the defense has argued, the vague nature of the threat concerning any physical harm and its actual impact on Mr. Credico can be considered when I determine whether this sentence should fall within the guideline range or not, and they will.

In other words, ABJ said Stone should be punished for the kinds of threats he made about Credico, but that the enhancement itself was too severe.

ABJ similarly argued the opposite of what Barr did with regards to the enhancement for Stone’s obstruction of his prosecution, which the revised sentencing memo claimed, “overlaps to a degree with the offense conduct in this case,” and argued may not have, “actually prejudiced the government at trial.”

ABJ scoffed at DOJ’s erroneous claim that an enhancement designed to address entirely post-indictment actions could overlap — as DOJ claimed — with the pre-indictment actions charged in the indictment.

The supplemental memorandum says: Well, this enhancement overlaps, to a degree, with the offense conduct in this case.

I’m not sure I understand that assertion. As proposed, the guideline is not meant to cover any pre-indictment conduct at all. And, yes, the guideline says it doesn’t apply if obstruction of justice is the charge of conviction; but, that’s not true, say the guidelines, if there is further obstruction during the prosecution.

The government also said in its supplemental memo: It’s unclear to what extent the defendant’s obstructive conduct actually prejudiced the government at trial. But that isn’t the test. Obstruction is an attempt; it doesn’t have to be successful. And the administration of justice is a little bit more than whether they got in the prosecution’s way.

And she laid out, at length, the import of Stone’s threats and lies.

Even after he first denied and then acknowledged personally selecting the crosshairs photo, he sat there telling me: Yes, I’m going to follow any restrictions on talking about the investigation; but, forgetting to mention that he had a book on the subject wending its way to publishers as we spoke. I certainly haven’t seen anything that would attribute that to mere anxiety.

The defense also says his conduct, quote: Didn’t cause significant further obstruction of the prosecution of the case, close quote.

[snip]

But, certainly, A., threatening or intimidating a juror or a fact-finder in the case; F., providing false information to a judge; and J., not complying with the restraining order. While the orders here are not the ones specifically mentioned in the list, it’s not necessary that there’s an exact fit. The list is supposed to be illustrative.

And given the similarity of the conduct in this case to what’s listed in A., F., and J., I find that the guideline applies. The defendant engaged in threatening and intimidating conduct towards the Court, and later, participants in the National Security and Office of Special Counsel investigations that could and did impede the administration of justice.

I suppose I could say: Oh, I don’t know that I believe that Roger Stone was actually going to hurt me, or that he intended to hurt me. It’s just classic bad judgment.

But, the D.C. Circuit has made it clear that such conduct satisfied the test. They said: To the extent our precedent holds that a §3C1.1 enhancement is only appropriate where the defendant acts with the intent to obstruct justice, a requirement that flows logically from the definition of the word “willful” requires that the defendant consciously act with the purpose of obstructing justice.

However, where the defendant willfully engages in behavior that is inherently obstructive, that is, behavior that a rational person would expect to obstruct justice, this Court has not required a separate finding of the specific intent to obstruct justice.

Here, the defendant willfully engaged in behavior that a rational person would find to be inherently obstructive. It’s important to note that he didn’t just fire off a few intemperate emails. He used the tools of social media to achieve the broadest dissemination possible. It wasn’t accidental. He had a staff that helped him do it.

As the defendant emphasized in emails introduced into evidence in this case, using the new social media is his “sweet spot.” It’s his area of expertise. And even the letters submitted on his behalf by his friends emphasized that incendiary activity is precisely what he is specifically known for. He knew exactly what he was doing. And by choosing Instagram and Twitter as his platforms, he understood that he was multiplying the number of people who would hear his message.

By deliberately stoking public opinion against prosecution and the Court in this matter, he willfully increased the risk that someone else, with even poorer judgment than he has, would act on his behalf. This is intolerable to the administration of justice, and the Court cannot sit idly by, shrug its shoulder and say: Oh, that’s just Roger being Roger, or it wouldn’t have grounds to act the next time someone tries it.

The behavior was designed to disrupt and divert the proceedings, and the impact was compounded by the defendant’s disingenuousness. As the opinion in Henry pointed out in U.S. versus Maccado, 225 F.3d 766, at 772, the D.C. Circuit even upheld a §3C1.1 enhancement for failure to provide a handwriting example because such failure, quote, Clearly has the potential to weaken the government’s case, prolong the pendency of the charges, and encumber the Court’s docket.

And the record didn’t show a lack of such intent. The defendant’s conduct here certainly imposed an undue burden on the Court’s docket and court personnel, as we had to waste considerable time convening hearing after hearing to get the defendant to finally be straight about the facts, to get the defendant to comply with court orders that were clear as day, and to ensure that the public and that people who come and go from this building every day were safe. Therefore, I’m going to add the two levels, and we are now at a Level 27.

Contrary to the government’s claim that Stone’s lies and threats had no effect on the case, ABJ laid out the risks of the threat and the added time she and court personnel had to expend responding to them.

It is true that ABJ ended up around where Barr wanted Stone’s sentence to end up, but as she explicitly said, she got there the same way she would have for any defendant, but deciding that the sentencing guidelines are too severe. If Barr agreed with that then other people would benefit from Barr’s brief concern about prison sentences.

That didn’t happen.

But Barr is not afraid to lie and claim it did, under oath.

I’m not Marcy — I won’t do justice to this developing story the way she would especially after midnight. But I need to put something up to capture Attorney General Bill Barr’s bizarre Friday evening attempt to fire Geoffrey Berman, U.S. Attorney for Southern District of New York.

Some background leading up to this evening’s half-assed Friday Night Massacre:

1990-1994 – Berman served as Assistant U.S. Attorney for the Southern District of New York while Rudy Giuliani was U.S. Attorney.

TBD – Berman became a partner at Greenberg Traurig; he ran their New Jersey office.

January 2016 – Giuliani joined Greenberg Traurig as global chair of cybersecurity and crisis management practices.

November 2016 – Trump asks SDNY’s then-USA Preet Bharara to stay on.

March 2017 – Attorney General Jeff Sessions asks all 46 holdover USAs from Obama administration to resign. Bharara declined; he also refused a phone call from Trump. He was fired the next day.

May 2017 – Giuliani supported Berman for U.S. Attorney though he was originally considered for New Jersey.

Who will be New Jersey’s next U.S. attorney?

President Donald Trump is deciding between one of Gov. Chris Christie’s criminal defense attorneys and another high-powered Jersey-based lawyer at a New York firm connected to former New York Mayor Rudolph Giuliani, according to a source with direct knowledge of the process.

Vying for the coveted job are Craig Carpenito, who defended the governor during the Bridgegate scandal and its fallout, and Geoffrey Berman, who runs the New Jersey office of the New York law firm Greenberg Traurig, where Giuliani is global chair of its cybersecurity and crisis management practices.

The candidates’ dueling mentors reveal an across-the-Hudson struggle for Trump’s ear.

Trump interviewed Berman and others for the USA-SDNY role.

January 2018 – Sessions announced Berman’s appointment to USA-SDNY.

April 2018 – Berman remained un-nominated by Trump, continuing to work as an interim acting USA; because the 120-day appointment period expired, the Chief Judge of the Southern District of New York ordered Berman appointed as USA-SDNY under 28 U.S.C Section 546(d), until Trump nominated a USA-SDNY and they were approved by the Senate.

Which bring us to Friday evening’s drama…

At 9:15 p.m. ET, the Justice Department issued an announcement of appointment via press release over Twitter.

Associated Press and other media outlets immediately began reporting that Berman had been fired.

At 11:14 p.m. ET, Berman issued a statement via Twitter:

Berman’s status rests on the interpretation of 28 USC 546(d), the law says Berman remains until fired AND replaced by a Senate-approved nominee for USA>

How convenient that the House of Representatives Judiciary Committee had already called a hearing for next Wednesday June 24 about political influence on law enforcement, with Department of Justice employees John Elias and Aaron Zelinsky scheduled to appear as whistleblowers before the committee.

HJC’s committee chair Rep. Jerry Nadler has already tweeted that Berman would be invited to appear before the same committee hearing.

It wouldn’t take much to move from this hearing to a vote for an impeachment inquiry inquiry into Bill Barr’s work as Attorney General — there was plenty of reason to pursue impeachment before Friday night’s half-assed massacre.

~ ~ ~

There’s a lot to unpack here. Have at it.

I’m publishing this now and will add some additional follow-up material here in the morning, including Berman’s recusal from the Cohen case, the investigation into Giuliani, and Berman’s effort to distance SDNY from the White House.

 

This is an open thread.

Bill Barr’s sloppy lying may finally be catching up to him.

The press should have stopped treating the Attorney General as credible after he obviously lied about the contents of the Mueller Report. But he continued to be accorded the courtesy of the office, through changing DOJ stories about his involvement in Trump’s effort to coerce a quid pro quo in Ukraine (and the impeachment that followed) and his cover stories to explain unprecedented interference in the prosecution of Trump flunkies.

But over the course of the last week, the press has gone from reporting anonymous DOJ scoops, to noting how later DOJ claims conflicted with that scoop, to outright debunking of Barr (even if they’re not yet treating him as the consistent liar they recognize Trump to be).

On Tuesday, WaPo had a scoop citing an anonymous DOJ official stating that Barr personally ordered the attack on protestors, perhaps an effort to shift the focus from Trump.

Attorney General William P. Barr personally ordered law enforcement officials to clear the streets around Lafayette Square just before President Trump spoke Monday, a Justice Department official said, a directive that prompted a show of aggression against a crowd of largely peaceful protesters, drawing widespread condemnation.

The claim took the heat off of President Trump.

In a presser on Thursday, Barr offered a more elaborate explanation. He claimed he made the decision to move the perimeter around the White House on Trump’s orders — to protect the White House from protestors — before the arrival of protestors on Monday.

On Monday, the president asked me to coordinate the various federal law enforcement agencies, not only the multiple department of justice agencies, but also other agencies such as those in the Department of Homeland Security. So we had a coordinated response and worked with the National Guard and also with the DC police. That morning, we decided that we needed more of a buffer to protect the White House and to protect our agents and secret service personnel who could be reached by projectiles from H Street. I made the decision that we would try to move our perimeter northward by a block to provide this additional protection. And later at 2:00 on Monday, I met with all the various law enforcement agencies and we set our tactical plan. And that plan involve moving our perimeter a block North to I Street. It was our hope to be able to do that relatively quickly before many demonstrators appeared that day.

Unfortunately, because of the difficulty in getting appropriate units into place, by the time they were able to move our perimeter up to I street, a large number of protestors had assembled on H Street. There were projectiles being thrown and the group was becoming increasingly unruly. And the operation to what… They were asked to three times if they would move back one block, they refused. And we proceeded to move our perimeter out to I Street.

In the same presser, he claimed that he saw “instigators” before the move to push them back, thereby claiming both advance planning but also an imminent threat.

I think one of the difficulties is that while there are peaceful demonstrators and participants in these protests, the instigators, those committed to violence, basically shield themselves by going among them and carrying out acts of violence. I saw the projectiles on Monday when I went to Lafayette Park to look at the situation. And as one of the officials said, he pointed out various knots of people where the projectiles were coming from and we could see… and it was a lot of demonstrators. And it’s hard to know exactly where they’re coming from. Frequently, these things are thrown from the rear of the demonstration, but we could not continue to protect the federal property involved and protect the safety of our agents with such a tight perimeter. And so our object was to move it out by one block. Next question, please.

On Friday, however, Barr started backing away from responsibility. That day, the AP reported that Barr had not given the tactical move to attack the protestors. Instead, some unnamed person who could not be directly tied to a Barr (and therefore a Trump) command did that.

On Friday, Barr told the AP that both he and U.S. Park Police were in agreement on the need to push back the security perimeter. He said he attended a meeting around 2 p.m. Monday with several other law enforcement officials, including Metropolitan Police Chief Peter Newsham, where they looked at a map and decided on a dividing line. Under the plan, the protesters would be moved away from Lafayette Park and federal law enforcement officials and members of the National Guard would maintain the perimeter line, Barr said.

[snip]

Barr said it was a Park Police tactical commander — an official he never spoke to — who gave the order for the law enforcement agencies to move in and clear the protesters.

“I’m not involved in giving tactical commands like that,” he said. “I was frustrated and I was also worried that as the crowd grew, it was going to be harder and harder to do. So my attitude was get it done, but I didn’t say, ‘Go do it.’”

Barr insisted there was no connection between the heavy-handed crackdown on the protesters and Trump’s walk soon after to St. John’s Church.

Finally, on Sunday, Margaret Brennan interviewed Barr on Face the Nation, one of the first times during this tenure as AG Barr has sat for an interview with someone who was neither (like Pete Williams or Pierre Thomas) someone he knew from the Poppy days, nor (like Catherine Herridge) a right wing stenographer. Brennan challenged a lot of these inconsistencies, leading to Barr to make a comment — that pepper balls are not tear gas — that has been widely mocked since.

MARGARET BRENNAN: I want to ask you about some of the events of the week. On Monday, Lafayette Park was cleared of protesters. You’ve spoken about this. The federal agents who were there report up to you. Did you think it was appropriate for them to use smoke bombs, tear gas, pepper balls, projectiles at what appeared to be peaceful protesters?

BARR: They were not peaceful protesters. And that’s one of the big lies that the- the media is- seems to be perpetuating at this point.

MARGARET BRENNAN: Three of my CBS colleagues were there. We talked to them.

BARR: Yeah.

MARGARET BRENNAN: They did not hear warnings. They did not see protesters–

BARR: There were three warnings.

MARGARET BRENNAN:–throwing anything.

BARR: There were three warnings given. But let’s get back to why we took that action. On Friday, Saturday and Sunday, OK, there were violent riots in- at Lafayette Park where the park police were under constant attack at the- behind their bike rack fences. On Sunday, things reached a crescendo. The officers were pummeled with bricks. Crowbars were used to pry up the pavers at the park and they were hurled at police. There were fires set in not only St. John’s Church, but a historic building at Lafayette was burned down.

MARGARET BRENNAN: These were things that looters did.

BARR: Not looters, these were- these were the- the violent rioters who were- dominated Lafayette Park.

MARGARET BRENNAN: But what I’m asking about–

BARR: They broke into the Treasury Department,–

MARGARET BRENNAN: –on Monday when it was a peaceful protest.

BARR: I’m going to- let me get to this, because this has been totally obscured by the media. They broke into the Treasury Department, and they were injuring police. That night,–

MARGARET BRENNAN: Sunday night?

BARR: Sunday night, the park police prepared a plan to clear H Street and put a- a larger perimeter around the White House so they could build a more permanent fence on Lafayette.

MARGARET BRENNAN: This is something you approved on Sunday night?

BARR: No. The park police on their own on- on Sunday night determined this was the proper approach. When I came in Monday, it was clear to me that we did have to increase the perimeter on that side of Lafayette Park and push it out one block. That decision was made by me in the morning. It was communicated to all the police agencies, including the Metropolitan Police at 2:00 p.m. that day. The effort was to move the perimeter one block, and it had to be done when we had enough people in place to achieve that. And that decision, as I say, was communicated to the police at 2:00 p.m.. The operation was run by the park police. The park police was facing what they considered to be a very rowdy and non-compliant crowd. And there were projectiles being hurled at the police. And at that point, it was not to respond–

MARGARET BRENNAN: On Monday, you’re saying there were projectiles–

BARR: On Monday, yes there were.

MARGARET BRENNAN: As I’m saying, three of my colleagues were there.

BARR: Yeah.

MARGARET BRENNAN: They did not see projectiles being thrown–

BARR: I was there.

MARGARET BRENNAN: –when that happened.

BARR: I was there. They were thrown. I saw them thrown.

MARGARET BRENNAN: And you believe that what the police did using tear gas and projectiles was appropriate?

BARR: Here’s- here’s what the media is missing. This was not an operation to respond to that particular crowd. It was an operation to move the perimeter one block.

MARGARET BRENNAN: And the methods they used you think were appropriate, is that what you’re saying?

BARR: When they met resistance, yes. They announced three times. They didn’t move. By the way, there was no tear gas used. The tear gas was used Sunday when they had to clear H Street to allow the fire department to come in to save St. John’s Church. That’s when tear gas was used.

MARGARET BRENNAN: There were chemical irritants the park police has said–

BARR: No, there were not chemical irritants. Pepper spray is not a chemical irritant.

It’s not chemical.

MARGARET BRENNAN: Pepper spray, you’re saying is what was used–

BARR: Pepper balls. Pepper balls.

MARGARET BRENNAN: Right, and you believe that was appropriate. What I want to show you is what a lot of people at home who were watching this on television saw and their perception of events. So while the president says that he appreciates peaceful protest, around the same time, this crowd–

BARR: Well, six minutes- six minutes difference–

MARGARET BRENNAN: Right, around same time the area is being cleared of what appear to be peaceful protesters using some force. And after the speech is finished, the president walks out of the White House to the same area where the protesters had been and stands for photo op in front of the church where the protesters had been. These events look very connected to people at home. In an environment where the broader debate is about heavy handed use of force in law enforcement, was that the right message for Americans to be receiving?

Along the way, however, Barr’s explanation got more and more inconsistent.

What started out as an apparent effort to shield the President from direct responsibility for attacking protestors to clear way for his photo op became, by the end of the week, an effort to create a legal justification — protestors throwing things — while still distancing the time of the order from the photo op.

That’s a conflict Phil Bump highlighted in a particularly good job of shredding Barr’s statements, relying on an earlier detailed timeline he did. In addition to mocking Barr’s claim that pepper balls are not tear gas because they’re naturally occurring, Bump shows how Barr’s statements yesterday conflict with the justification for using tear gas.

“Here’s what the media is missing,” Barr said to Brennan on Sunday. “This was not an operation to respond to that particular crowd. It was an operation to move the perimeter one block.”

The problem with that framing is twofold.

First, it contradicts that same statement from the Park Police that serves as the backbone of the tear-gas defense. In that statement, the Park Police claim that protesters “began throwing projectiles including bricks, frozen water bottles and caustic liquids” at 6:33 p.m. This prompted the effort to clear the square to “curtail the violence that was underway.” There’s nothing about this being a planned operation.

What’s more, Barr himself made the claim to Brennan that the protesters were being violent at the time that the effort to remove them began.

“Three of my colleagues were there,” Brennan told him. “They did not see projectiles being thrown.”

“I was there,” Barr replied. “They were thrown. I saw them thrown.”

The timing of Barr’s visit is important, and we’ll get to it in a bit. But suffice it to say that video evidence from the period not only doesn’t back up the Park Police claim, it also doesn’t show Barr reacting to any such events.

It has been rare, possibly unprecedented, for the press to track Barr’s obvious lies this closely, even in the case of legal cases (like the Flynn prosecution) where Barr’s flip-flops are docketed.

I think a lot of things explain the unusual attention to Barr’s flip-flops. The assault on protestors and Trump’s tone-deaf photo op was so pathetic, the White House went into damage control. And because there were so many journalists at Lafayette Park, there were a slew of witnesses attesting to inconsistencies and inaccuracies in the official version of the story (starting with the Park Police’s flip-flops on the tear gas). Now, Barr is in a position of accusing three CBS reporters and at least one WaPo reporter, whose versions of this story differ dramatically from his own, of lying: His word against the reports of outside observers who have film to backup those reports.

But Barr’s changing excuses may also be partly explained by one other thing.

As noted, Barr’s first instinct seemed to be to distance the President from the order targeting peaceful protestors, and as he has repeatedly done, he took responsibilty (and Kayleigh McEnany happily gave him responsibility). But that created new problems: including why the Attorney General was ordering cops, many of them not within his chain of command, but more importantly, why Trump —  through orders given to Barr who executed those orders by issuing orders of his own — had responded to First Amendment protected activities with a violent assault.

The stakes of the answers to that question may have gone up with the filing of a lawsuit captioned, “Black Lives Matter v. Donald Trump:” Bill Barr is a named defendant.

Defendant William Barr is the Attorney General of the United States. He is sued in his individual and official capacity. He personally issued the order that resulted in the unlawful actions complained of in this lawsuit.

[snip]

At approximately 6:08 pm, Defendant Barr entered Lafayette Square.

At 6:10 pm, Defendant Barr was behind the law enforcement officials in Lafayette Square pointing north towards St. John’s Church. The Department of Justice subsequently acknowledged that Defendant Barr personally ordered that Lafayette Square be cleared.

Let me be clear: because this suit focuses on Bivens complaints about the violation of Constitutional rights, it probably won’t succeed in terms of the damages requested. Recent proceedings have largely gutted Bivens.

But what the suit does do is trace a link between Barr’s actions and the complaints of the plaintiffs (who include a 9-year old boy, a Navy veteran, and a former Eagle Scout). It does so through some of the same details that Barr is now trying to obfuscate.

And what the lawsuit may do is force a way to make the events that Barr is trying to cover up public.

Barr’s lies are consistent with all his other lies. He makes broad claims to power — not authority — and then he keeps changing the story as needed to try to give his claims retroactive legal cover.

This time, he may be forced to do so in court.

Update: WaPo did an unbelievably detailed piece showing no evidence for Park Police claims of dangerous projectiles, and making evident how the clearance of the Square led to the photo op.

[Update at the bottom of this post. /~Rayne]

Apart from the purely economic rationale that a function which has so repeatedly failed should not continue to be funded, there are ample reasons why policing as we know it in this country needs to be deconstructed and replaced — in shorthand, defund the police.

Last night on HBO, John Oliver did an amazing job of discussing the problems with policing in America. It’s so good I can’t add anything. It’s a primer from which we should start.

Yet Oliver’s work was tremendous not just because it examined the history of this country’s failure to reform policing, but because the end of his program gave a black voice a platform long overdue (31:56).

I want to reverse what he did by insisting you listen to author Kimberley Jones first, her entire comment and not just the excerpt Oliver shared. This is a powerful statement you should not miss:

And then watch John Oliver’s program last night. In this order you can see that everything about policing in America has been constructed on lies.

You’ll hear and read puzzlement about calls to defund the police.

What does it mean? asked because their privilege has never forced them to look carefully at how fucked up policing is in the U.S. (note carefully the person and context surrounding them when they ask).

What do they want instead? as if “they” are a separate group, disclosing the bias at the root of the problem.

Why can’t we just fix it? again, privilege blinds those who ask to how fatally flawed policing has been from the start. Some who have internalized this country’s systemic oppression will also ask this same question.

The wealth of this country was built on economic theft, and American policing has been constructed to preserve this massive looting of hundreds of years of black lives.

What Kimberley Jones doesn’t point out is that the looting didn’t stop with black lives. The ground Americans stand on was stolen from yet more brown people who were eradicated, and then farmed and developed by stolen people under whips and chains and at gun point. The theft continues apace under a legal system which ensures the gap of wealth remains uncrossable, that power likewise remains solely in the hands of those with wealth.

There is no fixing a police system designed to protect capital created from ongoing crime.

 

Defund the police, by which it means see with clear eyes the original sin of placing preservation of property rights over human rights, the original sin of treating some humans as less worthy than others.

Defund the police, by which it means to re-prioritize our spending with those same clear, open eyes with an aim to realize reasonable distributive justice, developing and preserving human lives.

 

UPDATE — 09-JUN-2020 11:15 AM ET —

Because there’s a lot of complaining about the unofficial slogan, “Defund the Police,” I think these couple of tweets are worth consideration.

“Defund the police? Impossible!” they cried as they defunded education, healthcare, social security, welfare, planned parenthood, public transit…

— Andrew *is tired of this* Nguyen (@batwingdings) June 7, 2020

A criminologist told me if you want to imagine a world with no police presence, just know that we already have that. It’s called the suburbs.

— Touré (@Toure) June 8, 2020

Quit complaining. Focus: we need to change how we ensure public safety. What are you doing about it?

Start attending your local county/city/town/village council meetings. Research your local law enforcement entity’s performance. Are municipalities measuring complaints against law enforcement along with use of force? What has your locality done to ensure there is adequate access to mental health care, addiction, housing, and domestic crisis intervention, all of which affect the number of calls to police?

You can also do other research right now before you attend a local meeting.

Citizens Police Data Project – https://www.CPDP.co

CPDP takes records of police interactions with the public – records that would otherwise be buried in internal databases – and opens them up to make the data useful to the public, creating a permanent record for every CPD police officer. Examine this as a model for tracking your local law enforcement’s performance.

Mapping Police Violence – https://mappingpoliceviolence.org/nationaltrends

A research collaborative collecting comprehensive data on police killings nationwide to quantify the impact of police violence in communities. Check your state against others for trends in death by cops.

Police Use of Force Project – http://useofforceproject.org/

This Campaign ZERO project investigates the ways in which police use of force policies help to enable police violence in our communities. Read their report examining 100 communities.

Police Union Contract Project – https://www.checkthepolice.org/

This Campaign ZERO project reviewed police union contracts and police bill of rights legislation to examine how they make it more difficult to hold police accountable. Read their summary report of 81 cities in 15 states.

The Open Policing Project – https://openpolicing.stanford.edu/

This project at Stanford University aims to help researchers, journalists, and policymakers investigate and improve interactions between police and the public by collecting and analysing data from police traffic stops across the country. Read their findings.

Policing Project – https://www.policingproject.org/

This NYU School of Law project works to ensure accountability and democratic participation on the front end, before police violence requires ineffective back-end accountability. Read their work to date.

National Police Accountability Project – https://www.nlg-npap.org/

A National Lawyers Guild project dedicated to holding law enforcement accountable for misconduct. If you’re a lawyer, check for one of their online webinars.

 

This is NOT an open thread. Please stick to this topic in this thread.