The President’s Conspiracy Theories Get More Whacko than George Papadopoulos’

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Perhaps because the entire legal establishment is pushing back against Bill Barr’s wholesale politicization of DOJ, the President is disturbed on Twitter. After launching a 3-tweet tirade against juror Tameka Hart and Judge Amy Berman Jackson based off a Judge Andrew Napolitano appearance on Fox on Friends (that perhaps unsurprisingly neglects to remind his followers that Napolitano made a case in favor of Trump’s removal by the Senate). he then launched a 3-tweet tirade against the Stone prosecution more generally.

I’m interested in it because of the way Trump attempts to deploy all the other conspiracy theories he has against the Russian investigation to the Stone prosecution, to which they simply don’t apply.

Start with the way Trump claims that 1) the Mueller investigation was “illegally set up” based on the Steele dossier and 2) “forging documents to the FISA Court.”

This is a conceit that has worked well since Paul Manafort, fresh off a meeting with an Oleg Deripaska deputy, suggested Trump could use attacks on the dossier to attack the Mueller Report.

Except one glaring fault of the dossier is that Roger Stone, who had already made comments that suggested he had a direct role in the operation by the time FBI opened investigations on the four initial subjects of it, doesn’t appear in the Steele dossier.

Moreover, whatever else the DOJ IG Report on the Carter Page FISA applications showed, it also showed that the predication of the investigation had nothing to do with the Steele dossier; in fact, Steele’s reports didn’t make it to the investigative team until about six weeks after opening the investigation.

Further, the suggestion that Kevin Clinesmith’s alteration of an email in June 2017 to claim that Page was “not a source” for CIA had anything to do with Roger Stone’s investigation falls flat given that Mueller’s team obtained the first warrant targeting Roger Stone on August 4, 2017, and there’s no insinuation anywhere that Stone ever spoke with Carter Page. (Indeed, in spring 2016, Stone was bitching to Rick Gates that he was not in the loop of foreign policy discussions.) In fact, had Roger Stone been more closely associated with Trump’s freebie foreign policy team, than both Page and George Papadopoulos’ claims to know nothing of campaign efforts to optimize WikiLeaks’ releases would be anything but exculpatory, as DOJ IG treated them, since Stone was doing just that in the time period when they were asked by informants.

Plus, Robert Mueller testified under oath that his team didn’t have anything to do with the Carter Page FISA order. And the investigative record shows that the investigation into Page was largely done by the time Mueller took over.

There’s simply no tie between either the Steele dossier or the Page FISA warrants and Roger Stone’s prosecution.

Trump continues to claim that Mueller interviewed to be FBI Director, even after evidence showing that Steve Bannon, Reince Priebus, and Don McGahn debunked this in real time, not to mention Rod Rosenstein’s 302 that shows that Mueller specifically said he did not want to be interviewed before he met with Trump about Jim Comey’s replacement. That is, a bunch of witnesses — all Republicans — say Trump is wrong.

The most interesting accusation is that the prosecutors who won a conviction against Stone “were Mueller prosecutors.”

Two were: Aaron Zelinsky and Adam Jed.

But two weren’t. Jonathan Kravis (the sole prosecutor who quit DOJ entirely) and Michael Marando were career DC prosecutors brought in to prosecute the case after Mueller shut down. These were, pointedly, not Mueller prosecutors, and the case still went off without a hitch.

In fact, in his interview the other day, Bill Barr made quite clear that this prosecution happened on his watch, and he believes it’s a righteous prosecution.

BARR: Well, as you know, the Stone case was prosecuted while I was attorney general. And I supported it. I think it was established, he was convicted of obstructing Congress and witness tampering. And I thought that was a righteous prosecution. And I was happy that he was convicted.

If Trump has a problem with the guy who prosecuted the case against Roger Stone, he has a problem with his Attorney General Bill Barr.

Which may be why Trump — who shouldn’t be affected by mere lies by Roger Stone to Congress — is threatening to “sue everyone all over the place.” Of course, he is affected by Stone — Stone is going to prison to protect the President, to avoid describing the multiple conversations they had about optimizing the WikiLeaks releases. And suing (whom?!?!) won’t help Trump suppress that.

The President sounds crazier than George Papadopoulos in this rant, and his conspiracy theories are just as unhinged. Which is, I guess, what happens when all the conspiracy theories you’ve been using to undermine the prosecution implicating you turn out to be utterly irrelevant to the most important firewall to protect.

Roger Stone Admitted to Violating 18 USC 115 Under Oath

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Yesterday, Judge Amy Berman Jackson scheduled a phone scheduling hearing to take place on Tuesday, the same day when the government must submit a response to Roger Stone’s latest request for a new trial.

MINUTE ORDER as to ROGER J. STONE, JR. An on-the-record scheduling telephone conference call is set for February 18, 2020 at 11:00 AM in Courtroom 3 before Judge Amy Berman Jackson. In a separate email from the Deputy Clerk, counsel for the parties will be supplied with both the dial in telephone number and pass code to give them access to the call. SO ORDERED. Signed by Judge Amy Berman Jackson on 2/16/20.

Contrary to a lot of the chatter about the meeting, I think it’s unlikely to pertain to the withdrawal of the prosecutors who prosecuted the case. More likely, the judge has reviewed the underlying juror questionnaire for Tomeka Hart and assessed the credibility of Stone’s concern (and I’d caution that the request may have real merit, even if his lawyers pretty much bolloxed the opportunity to raise it).

But if Stone were really to get a new trial, there would seem to be another factor that ABJ might want to raise for Stone’s consideration: how the threat against her — that he admitted to, under oath — would be treated in a new trial.

When ABJ held a hearing last February 21 about whether she should revoke Stone’s bail, he repeatedly claimed that he did not intend, by posting a picture of her with crosshairs on it, as a threat. But she got him to admit, under oath, that the image could have a malicious impact, regardless of his intent.

THE COURT: Why is it consistent with how sorry you were, when you sent the apology, to continue for the next two days to speak publicly about the fact that you’re being treated unfairly in this situation as well, that it’s really this symbol, that it’s really that symbol, it’s the media going after you. How is that consistent with your telling me that you’re deeply and sincerely sorry?

THE DEFENDANT: Because that was a reference to what I believe was a media distortion of my intent. It was — I did not have a malicious intent, Your Honor.

THE COURT: Do you understand that what you did could have a malicious impact, notwithstanding your intent?

THE DEFENDANT: That’s why I abjectly apologized and I have no rationalization or excuse. I’m not seeking to justify it.

After he had made that admission, Stone admitted that he affirmatively selected the image with the crosshairs on it.

THE COURT: Okay. I’m just trying to get to the facts here. We started with somebody else did it and you didn’t see it. Then it was, “No, somebody else found it, but I posted it.” Now you’re telling me somebody else found more than one image and you chose this one, is that correct?

THE DEFENDANT: Just randomly, yes, Your Honor.

THE COURT: You closed your eyes and picked?

THE DEFENDANT: No, I just — I do ten of these a day. I’m — I’m trying to struggle with the situation.

THE COURT: Randomly does not involve the application of human intelligence. You looked at multiple pictures and you chose one, is that correct —

THE DEFENDANT: Yes, but —

THE COURT: — or not correct?

THE DEFENDANT: That is correct.

Stone tried very hard to hide the names of the Proud Boys who were involved in selecting the image, by repeatedly said that up to five of them were, but he persistently named Jacob Engles as the person who had his credentials to be able to post such an image.

Q. On the day of your Instagram post, did you give anyone else your phone?

A. Yes.

Q. Who?

A. Multiple people.

Q. Name them.

A. Let’s see. At some point Jacob Engles, I believe, had it. I really don’t — I’m not certain. I’m sorry. I — my house is a — like a headquarters. I have many volunteers.

THE COURT: I thought you said you had five.

THE DEFENDANT: Five is a lot.

One way or another, Stone’s efforts to claim someone else did this (even after admitting he chose the image) amounted to a claim that it was a group effort.

In issuing her ruling tightening his gag order, ABJ made it clear she believed the image could incite others to commit violence.

What concerns me is the fact that he chose to use his public platform, and chose to express himself in a manner that can incite others who may feel less constrained. The approach he chose posed a very real risk that others with extreme views and violent inclinations would be inflamed.

She used Stone’s own sworn testimony to establish that there was, in fact, nothing ambiguous about his intent.

The defendant himself told me he had more than one to choose from. And so what he chose, particularly when paired with the sorts of incendiary comments included in the text, the comments that not only can lead to disrespect for the judiciary, but threats on the judiciary, the post had a more sinister message. As a man who, according to his own account, has made communication his forté, his raison d’être, his life’s work, Roger Stone fully understands the power of words and the power of symbols. And there’s nothing ambiguous about crosshairs.

The logic here is precisely the logic prosecutors cited, when discussing Randy Credico’s belief that Stone, himself, was not a threat to him but his thuggish friends were. But because this threat happened after Stone’s indictment, it was not charged as a threat the same way the threats against Credico were. Instead, they were treated as a 2-level enhancement that adds an additional six months under the sentencing guidelines.

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.

But threatening a Federal Judge is itself a crime, 18 USC §115.

threatens to assault, kidnap, or murder, a United States official, a United States judge, a Federal law enforcement officer, or an official whose killing would be a crime under such section,
with intent to impede, intimidate, or interfere with such official, judge, or law enforcement officer while engaged in the performance of official duties, or with intent to retaliate against such official, judge, or law enforcement officer on account of the performance of official duties, shall be punished as provided in subsection (b).

If I’m understanding the law correctly, a threat like the one Stone made carries a potential sentence of up to 6 years, by itself (treating the tampering with Credico as a threat resulted in a 3 year increase in sentencing range).

While the FBI would have to do some leg work to establish precisely what happened with that post — and which “volunteer” selected the image and whether all of the imagines selected included some threat — Stone has admitted to his conduct already under oath. Adding that charge would eliminate the debate about the threats against Credico, because ABJ has made it quite clear that she did consider this a threat that, at the last, posed the risk of inciting others.

Roger Stone might want to think twice before he goes the way of Mike Flynn, where every effort to delegitimize the slam dunk conviction for a crime brings the risk of further time.

The Stakes and Misinformation about the Andrew McCabe Declination

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Amid the other crazy events of the week, DOJ informed Andrew McCabe he would not be prosecuted as a result of the criminal referral arising from DOJ IG’s finding that he lacked candor when asked about an October 30, 2016 Devlin Barrett story.

While it’s possible the Tuesday Afternoon Massacre and Jessie Liu’s removal had some role in the timing of this notice, one thing is clear: McCabe got notice primarily because Judge Reggie Walton had imposed a deadline in a CREW FOIA to release some transcripts about the stalled decision-making process. Probably, DOJ made the decision last fall after a grand jury refused to charge McCabe, but stalled on giving McCabe notice because DOJ knew it would piss off Trump. But since the court transcripts would reveal some of that, the FOIA deadline finally forced DOJ’s hand.

In the aftermath of the McCabe news, a bunch of frothy Republicans, including Chuck Grassley, have analogized the investigation into McCabe with the investigations into Roger Stone (for conducting a two year cover-up, including making threats against a witness and a judge) and Mike Flynn (for lying multiple times to the FBI, continuing to fudge the truth in the ongoing investigation, and lying to hide that he was on Turkey’s payroll at a time when he was Trump’s top national security advisor). Even taken on their face, that’s a ridiculous comparison, one that dismisses the import of threatening judges and secretly serving as agents for frenemy governments while receiving intelligence briefings. The accusations against the men are different, with a lack of candor allegation against McCabe versus lying against the others, and egregious mitigating factors implicating national security with the others. Whereas grand jury reportedly refused to even charge McCabe, a jury found Stone guilty of every count with which he was charged.

More importantly, the comparison has treated the allegation against McCabe with a seriousness that the underlying record — as laid out in McCabe’s lawsuit against DOJ — does not merit.

And McCabe’s lawsuit may provide a partial explanation for why DOJ stalled so long before declining to prosecute the case. That’s because a key part of DOJ’s defense against McCabe’s lawsuit is that they could or even had to move so quickly to fire McCabe because there was reasonable reason to believe that McCabe had committed a crime for which he could be imprisoned.

Mr. McCabe was given seven days to provide oral and written responses to the notice of proposed removal to ADAG Schools. That response period was a departure from the 30-day response period more frequently provided for a proposed removal. But FBI policy governing the removal of Senior Executive Service (SES) employees provides that “if there is reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment can be imposed, the advance notice may be curtailed to as little as seven days.” FBI SES Policy at 16 (attached as Ex. 2). Given the Inspector General’s findings that Mr. McCabe lacked candor under oath, findings which Assistant Director Will seconded after her independent assessment, there was reasonable cause to believe that Mr. McCabe had committed a crime for which a sentence could be imposed—and, therefore, a sound basis for affording Mr. McCabe seven days to respond.

DOJ has excused their rush to fire McCabe based on having reasonable grounds to believe he could be prosecuted for lies, but the rush to fire McCabe resulted in DOJ ignoring clear evidence that the IG Report was fundamentally flawed in a way that easily explains why a grand jury would refuse to indict. So the lawsuit, if McCabe gets discovery, is likely to show that he was rushed out the door to prevent him from building the case that he was being rushed out the door based on a case riddled with problems.

When the IG Report came out, I found it pretty compelling and therefore the criminal referral understandable (though I did not believe criminal charges would be upheld), even while noting the big push to make that happen before McCabe retired delegitimized it. But now it’s clear that the report didn’t get the normal level of pre- and post-publication review, McCabe’s OPR process was rushed to beat his retirement deadline, and had either of those processes been conducted in the normal fashion, they would have likely caught significant problems with the report.

Indeed, McCabe presented compelling evidence — even in a very rushed written response submitted to OPR hours before Jeff Sessions fired him — that he had at least colorable explanations to rebut the IG Report allegations.

As laid out, the IG Report accused McCabe of lacking candor about two kinds of things: first, whether he had told Comey he was a source for the WSJ story, and what role he and Lisa Page had in the story. Both the middle meetings — May 9, 2017, hours before Comey’s firing and his ascension to Acting Director, and July 28, 2017, in the context of a meeting about the discovery of the Page-Strzok texts — were on two of the most momentous days of McCabe’s career. The other two pertain to whether or not McCabe told Comey about his involvement in the WSJ story, which the IG Report portrayed as a difference of opinion about a casual meeting the two had, about which the IG sided with Comey’s version.

Thus, to a significant degree, the question of McCabe’s candor pivoted on whether he had really told Comey he was involved in the WSJ story.

And, as McCabe alerted OPR before he got fired, the IG Report included no mention of one of the most central players in the October 2016 WSJ story, FBI’s Assistant Director of Public Affairs Michael Kortan, with whom McCabe worked closely on the WSJ story. In other words, the IG Report suffers from the kind of egregious failure to include exculpatory information that it just took FBI to task about in the Carter Page IG Report (which also happens to be true of the Carter Page IG Report generally and its treatment of Bruce Ohr specifically). So when the IG Report sides with Comey’s version of the story because,

no other senior FBI official corroborated McCabe’s testimony that, among FBI executive leadership, “people knew generally” he had authorized the disclosure,

The Report can only make such a claim because it entirely left out the testimony of one of the most central players, Kortan. And as McCabe has made clear, in the OPR adjudication, his team did not get the exculpatory information involving Kortan until two days before the final decision.

Reports of why the grand jury refused to indict have pointed to Kortan’s testimony, and it’s clear why: because his testimony totally undermines the conclusions of the IG Report and therefore any basis to indict him.

Most importantly, McCabe submitted an email showing that he informed Comey (and some of the other senior FBI people whom the IG Report claimed didn’t know he was involved) that he was involved in the WSJ story.

With the declination of McCabe, DOJ has admitted that a key reason they claim to have relied on (a claim McCabe disputes) on rushing McCabe’s firing is false: he’s not likely to face prison time, because a grand jury won’t even indict him. And that may increase the chances that McCabe will get to prove precisely why he was rushed out the door with Trump screaming about him all the way.

SSCI Has Already Dismissed One of the Key Issues John Durham Is Investigating

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The other day, the NYT had an update on another area included in John Durham’s 9-month investigation of the Russian investigation. Durham appears to be chasing a theory (based on what predication, aside from Bill Barr’s fevered imagination, it’s unclear) that John Brennan tricked the FBI into investigating Trump by fooling them into believing Russia wanted Trump elected.

Questions asked by Mr. Durham, who was assigned by Attorney General William P. Barr to scrutinize the early actions of law enforcement and intelligence officials struggling to understand the scope of Russia’s scheme, suggest that Mr. Durham may have come to view with suspicion several clashes between analysts at different intelligence agencies over who could see each other’s highly sensitive secrets, the people said.

Mr. Durham appears to be pursuing a theory that the C.I.A., under its former director John O. Brennan, had a preconceived notion about Russia or was trying to get to a particular result — and was nefariously trying to keep other agencies from seeing the full picture lest they interfere with that goal, the people said.

[snip]

The Justice Department has declined to talk about Mr. Durham’s work in meaningful detail, but he has been said to be interested in how the intelligence community came up with its analytical judgments — including its assessment that Russia was not merely sowing discord, but specifically sought to help Mr. Trump defeat Hillary Clinton in the 2016 election.

A key part of this involves the credibility assigned to a Russian source and the CIA’s initial unwillingness to share his identity.

One fight, they said, concerned the identity and placement of a C.I.A. source inside the Kremlin. Analysts at the National Security Agency wanted to know more about him to weigh the credibility of his information. The C.I.A. was initially reluctant to share details about the Russian’s identity but eventually relented.

But officials disagreed about how much weight to give the source’s information, and the intelligence community’s eventual assessment apparently reflected that division. While the F.B.I. and the C.I.A. concluded with “high confidence” that Mr. Putin was specifically trying to help Mr. Trump win the election, the National Security Agency agreed but said it had only “moderate confidence.”

As with much of the Durham investigation, this likely came from a partisan investigation — specifically the HPSCI Report on Russian interference that the GOP released with little Democratic involvement. It found that

(U) Finding #16: The lntelllgence Communi· tv Assessment judgments on Putin’s strategic intentions did not employ proper ana· lytic tradecraft. (U) While the Committee found that most ICA analysis held-up to scrutiny, the investigation also identified significant intelligence tradecraft failings that undermine confidence in the JCA judgments regarding Russian President Vladimir Putin’s strategic objectives for disrupting the U.S. election. Those judgments failed to meet longstanding standards set forth in the primary guiding document for IC analysis, ICD 203, Analytic Standards including:

(U) ”Properly describe quality and credibilit:y of underlying sources.”

(U) “Properly express and explain uncertainties associated with major analytic judgments.”

(U) “Incorporate analysis of alternatives ·- [particularly] when major judgments must contend with significant uncertainties or … high-impact results.”

(U) Base confidence assessments on “the quantity and quality of source material.”

(U) “Be informed by all relevant information available.”

(U) “Be independent of political considerations.”

[snip]

The Committee’s findings on ICA tradecraft focused on the use of sensitive, [redacted] intelligence [redacted] cited by the ICA. This presented a significant challenge for classification downgrade. The Committee worked with intelligence officers from the agencies who own the raw reporting cited in the ICA to downgrade the classification of compartmented findings [redacted]

In short, in the same way that the HJC/OGR echo chamber of shoddy propaganda injected George Papadopoulos’ claims into Durham’s investigation, the HPSCI report likely gave Barr a way to demand this prong of the investigation.

The thing is, however, the Senate Intelligence Committee has also reviewed this intelligence — notably, at a time after the CIA source behind it had been exfiltrated (and after abundant other evidence proving that Putin really did prefer Trump came in). And SSCI had no problem with the conclusion.

The ICA states that:

We assess Russian President Vladimir Putin ordered an influence campaign in 2016 aimed at the U.S. presidential election. Russia’s goals were to undermine public faith in the U.S. democratic process, denigrate Secretary Clinton, and harm her electability and potential presidency. We further assess Putin and the Russian Government developed a clear preference for President-elect Trump.[2]

  • The Committee found that the ICA provided a range of all-source reporting to support these assessments.
  • The Committee concurs with intelligence and open-source assessments that this influence campaign was approved by President Putin.
  • Further, a body of reporting, to include different intelligence disciplines, open source reporting on Russian leadership policy preferences, and Russian media content, showed that Moscow sought to denigrate Secretary Clinton.
  • The ICA relies on public Russian leadership commentary, Russian state media reports, public examples of where Russian interests would have aligned with candidates’ policy statements, and a body of intelligence reporting to support the assessment that Putin and the Russian Government developed a clear preference for Trump.

The ICA also states that:

We also assess Putin and the Russian Government aspired to help President-elect Trump’s election chances when possible by discrediting Secretary Clinton and publicly contrasting her unfavorably to him.[3]

  • The Committee found that the ICA provided intelligence and open source reporting to support this assessment, and information obtained subsequent to publication of the ICA provides further support.
  • This is the only assessment in the ICA that had different confidence levels between the participating agencies—the CIA and FBI assessed with “high confidence” and the NSA assessed with “moderate confidence”—so the Committee gave this section additional attention.

The Committee found that the analytical disagreement was reasonable, transparent, and openly debated among the agencies and analysts, with analysts, managers, and agency heads on both sides of the confidence level articulately justifying their positions. [my emphasis]

Significantly, over time that conclusion has held up.

In fact, an even more recent SSCI Report — released in recent weeks — makes it clear that what is obviously this same reporting stream provided the “wake up” call that led the IC to take the Russian attack as seriously as they should have. The intelligence is introduced (but entirely redacted) on page 11, but the description of Brennan’s action — and the degree to which this intelligence was closely held thereafter — makes it clear that this is the CIA HUMINT.

According to Director Brennan, he recommended that the intelligence be briefed to the Gang of Eight, stating, “I think it’s important that this be a personal briefing.”

[snip]

According to multiple administration officials, the receipt of the sensitive intelligence prompted the NSC to being a series of restricted PC meetings to craft the administration’s response to the Russians’ active measures campaign. These restricted “small group” PC meetings, and the corresponding Deputies Committee (DC) meetings, were atypically restricted, and excluded regular PC and DC attendees such as the relevant Senior Directors within the NSC and subject matter experts that normally accompanied the principals and deputies from the U.S. Government departments and agencies.

According to former NSC Senior Director for Intelligence Programs, Brett Holmgren, no one other than the principals participated in the initial PC meetings, due to the sensitivity of the intelligence reporting. Mr. Holmgren further stated that the “reports were briefed verbally, often times by Director Brennan. So I didn’t get access to a lot of these reports until the November or December time frame.”

To be clear, ultimately this more recent SSCI Report comes down on the same side that the Durham inquiry seems to be — that CIA ended up holding this too close, making it difficult for other agencies to properly vet it. This SSCI Report argues that the close hold led to a less robust response than the US should have mounted.

So all four reviews — HPSCI’s, SSCI’s ICA assessment and 3rd volume, along with Durham’s current review — agree that the CIA held this information really closely. But the bipartisan reports that assess whether the conclusion held up over time — just the SSCI ones — not only find that CIA was right, but that that view marked the belated moment when the US IC started taking the attack seriously enough.

In other words, John Durham is investigating something that the proper oversight authorities already have deemed the correct result that actually came too late and not broadly enough, and trying to find fault with it. Bill Barr is trying to get Durham to criminalize an intelligence conclusion that is the one thing that didn’t lead us to get more badly damaged by the attack.

The Size of Bill Barr’s Cover-Up Hints at the Magnitude of What He’s Covering Up

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After the Tuesday Afternoon Massacre — where four prosecutors withdrew from the Roger Stone case rather than be party to Bill Barr interfering in the prosecution of Trump’s rat-fucker — we learned on Friday that Bill Barr had deployed a third US Attorney — Saint Louis’ Jeffrey Jensen — to the DC US Attorney’s office as part of an elaborate cover-up for Trump’s crimes. I’m going to attempt to lay out the full scope of Barr’s attempted cover-up. This post will serve as an overview and I will update it with links to the known or suspected evidence and crimes that Barr is covering up. I’m not including efforts to launch or sustain investigations into those Trump perceives to be his enemies.

The cover-up has the following aspects:

Interim US Attorneys oversee investigations implicating Trump’s actions

Geoffrey Berman, Southern District of New York: For the most part, Berman seems to have operated independently after his appointment as US Attorney for SDNY, but there are recent concerns that investigations implicating Trump have been stymied:

  • Hush payments: After getting Michael Cohen to plead guilty to covering up Trump’s past sex partners during the election and obtaining testimony from National Enquirer, the investigation closed with no further charges on or before July 17, 2019.
  • Ukrainian grifters: There are conflicting stories about the scope of the investigation into Ukrainian grifters Lev Parnas and Igor Fruman, particularly with regards to how seriously SDNY is considering charges against Rudy Giuliani. WaPo reported steps taken implicating Rudy’s activities on February 14, 2020. But Parnas has insinuated that his sudden arrest on October 9 was an attempt to keep him silent; Barr visited SDNY that day and subsequently visited Rupert Murdoch at his home. SDNY showed unusual concern for the privacy of third parties as Parnas tried to share more information with the House Intelligence Committee. And Bill Barr has not recused in spite of a clear conflict and a request from Parnas.
  • Halkbank: Barr tried to pre-empt an indictment of Turkey’s Halkbank with a settlement.

Timothy Shea, District of Columbia: While Berman worked for several years without any show of corruption, that’s not true of Timothy Shea, a trusted Barr aide. The very first day he started work — having been installed by Barr with just a day’s notice — he started questioning the guidelines sentence of Roger Stone, who has promised to remain silent about details of Trump’s involvement in his efforts to optimize the release of emails stolen by Russian. Then, Shea worked with Bill Barr to reverse the guidelines sentence recommended by career prosecutors. In addition, Shea’s appointment coincided with the start of a “review” of other prosecutions and investigations of Trump associates in DC including, but not limited to, Mike Flynn and Erik Prince.

Confirmed US Attorneys “review” investigations into Trump and his associates

John Durham, Connecticut: In May 2019, Barr ordered John Durham to conduct an investigation into the origins of the Crossfire Hurricane investigation of Trump associates’ ties to Russia. He predicated the investigation, explicitly, on the absence of evidence. In clear contrast to the Mueller investigation, DOJ has produced no documentation regarding the scope of the investigation (including whether Durham could pursue crimes by Trump’s associates or even Barr himself if he found evidence of a crime), and Barr has remained personally involved, completely negating the entire point of appointing a US Attorney to conduct the investigation. Republicans have described the point of this investigation as an effort to discredit the Mueller investigation. It has included the following:

  • Bill Barr’s worldwide tour chasing the hoaxes rolled out through George Papadopoulos via the right wing echo chamber
  • Some disinformation likely fed via Rudy
  • The legitimate criminal investigation of FBI Attorney Kevin Clinesmith, the actual venue for which should be Washington DC
  • CIA’s 2016 determination — confirmed by more recent intelligence collection and reviewed approvingly by the Senate Intelligence Committee — that Russia not only wanted to hurt Hillary, but help Trump in the 2016 election
  • Communications between John Brennan and Jim Comey and Andrew McCabe

Jeffrey Jensen, Eastern District of Missouri: The “review” Jeffrey Jensen is conducting of DC US Attorney cases seems to couple with Durham’s investigation. It reportedly is second-guessing decisions made by prosecutors on the Mike Flynn and Erik Prince investigation, as well as other non-public investigations. The review is almost certainly assessing rumors started by known propagandists that have already been investigated three times, including by FBI’s Inspection Division, rumors already reviewed and dismissed in a meticulous 92-page opinion from Emmet Sullivan. This “review” seems to have been part of the installment of Shea at DC and may amount to an attempt to thwart investigations that Jessie Liu let proceed without political interference.

DOJ diverts disinformation from Rudy Giuliani to another confirmed US Attorneys

In recent weeks, Barr has appointed Scott Brady, US Attorney for Western District of Pennsylvania, to vet incoming information from Rudy’s foreign influence peddling in Ukraine. It’s unclear whether Barr did this to try to make something out of that disinformation, or to prevent evidence that might support foreign influence peddling charges against Rudy from getting to prosecutors in SDNY.

Richard Donoghue, Eastern District of New York: Donoghue is apparently “handling certain Ukraine-related matters.” In connection to that, Jeffrey Rosen put Donoghue in charge of coordinating all investigations that pertain to Ukraine,

to avoid duplication of efforts across Offices and components, to obviate the need for deconfliction at a later stage of potentially overlapping investigations, and to efficiently marshal the resources of the Department to address the appropriate handling of potentially relevant new information.

That in and of itself is not problematic. But by putting Jensen in charge of intake, presumably before it gets to Donoghue, Rosen has ensured that information that — because it is disinformation — would be incriminating to Rudy, not Joe Biden (or anyone else).

DOJ prevents full investigation of Ukraine complaint

Barr and his DOJ engaged in multiple acts of obstruction of the Ukraine complaint. First, Barr did not recuse from a complaint mentioning him by name. Then (knowing that Barr was personally implicated), DOJ did not conduct a full assessment of the whistleblower complaint, which would have identified a tie to the SDNY investigation of Lev Parnas and Igor Fruman. Then OLC invented an excuse not to share whistleblower complaint with Congress, which resulted in a significant delay and almost led Ukraine to make concessions to obtain aid. Then, DOJ did not share whistleblower complaint with FEC as required by Memorandum of Notification. Finally, DOJ made a comment claiming Trump was exonerated, precisely the abuse — speaking about ongoing investigations — that Jim Comey got fired for.

Bill Barr Trying to Dig Sidney Powell out of the Hole She Dug for Mike Flynn

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Both NYT and NBC are reporting that Bill Barr has gotten yet another US Attorney (after he gave CT’s John Durham and WDPA’s Scott Brady similar politicized errands), St. Louis’ Jeffrey Jensen, to politicize DOJ. Jensen has been tasked — along with some of Jeffrey Rosen’s aides — to second guess the investigation of Michael Flynn and other non-public cases (though probably ones that include Jared Kushner and Paul Manafort).

This latest assault on judicial independence started two weeks ago.

Over the past two weeks, the outside prosecutors have begun grilling line prosecutors in the Washington office about various cases — some public, some not — including investigative steps, prosecutorial actions and why they took them, according to the people. They spoke on condition of anonymity to discuss the sensitive internal deliberations.

That’s about the time Sidney Powell submitted what amounted to a second motion to dismiss for prosecutorial misconduct, which prosecutors correctly explained included no new claims of misconduct but a whole bunch of things that Emmet Sullivan had already dismissed in a meticulous 92-page opinion, with appendix.

That — plus the fact that Powell flip-flopped on whether or not prosecutors should get a continuance to be able to get Covington lawyers to explain how much Mike Flynn lied to them for his FARA filing — likely means Sidney Powell got a heads up about this.

Back in June, it seems clear, Bill Barr told Sidney Powell it would be safe to blow up Mike Flynn’s plea deal, perhaps believing that things he saw on Fox News — including a bunch of hoaxes that Sara Carter had started, and which FBI had already investigated multiple times. Powell proceeded to make Flynn’s legal woes worse and worse and worse. Alarmingly, she had Mike Flynn submit a sworn statement that radically conflicts with other sworn statements he already made. In other words, based on Bill Barr apparent reassurances that Flynn should pursue an absolutely insane legal strategy, Flynn turned his probation sentence into additional perjury exposure.

And so now Bill Barr is sending off his minions to try to undo the damage that Flynn and Powell created for themselves by trying to suggest that multiple lies to the FBI somehow amounted to an ambush because Flynn was so sure the FBI was on his side that he lied convincingly.

The Timeline Suggests Bill Barr Removed Jesse Liu to Intervene for Trump’s Rat-Fucker

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Far be it for me to doubt Bill Barr’s ability to manufacture a cover-up. He’s damn good at it, that’s why he was hired, and he’s got a lot of power to use to execute one.

But it’ll be harder this time around than it was for Poppy Bush, in part because Barr’s principal has the propensity to go off half-cocked, the frothy right doesn’t think rationally, and Barr himself may believe what he sees on Fox News more than what he sees in court dockets, to the extent he even reviews court dockets.

That’s particularly true given the timeline leading up to the Tuesday Night Massacre, because it appears to show that Bill Barr removed Jessie Liu — and then Trump withdrew her nomination excusing that removal — mostly (at least as far as what is visible thus far) to intervene for Trump’s rat-fucker, Roger Stone.

At least as the timing of the DOJ filings reflect, Barr intervened with the strategy he claimed to Pierre Thomas to apply with Roger Stone with Mike Flynn, providing reasons for Judge Emmet Sullivan to sentence lightly, but leaving it up him. Importantly, Jessie Liu proved willing to do that on January 29; she signed the softened Flynn sentencing memo (though it’s possible Trump submitted her nomination on January 6 in response to the discussions around the initial, harsher memo).

The next day, per dates included in the Roger Stone sentencing memo, DOJ submitted an objection to the January 16 Presentence Investigation Report.

Probation and the Government, however, incorrectly maintain that the following offense level increases are applicable:

Specific Offense Characteristics U.S.S.G. §2J1.2(b)(1)(B) 8 level increase ¶76 1

Specific Offense Characteristics U.S.S.G. §2J1.2(b)(1)(2) 3 level increase ¶77

Obstruction of Justice U.S.S.G. §3C1.1 2 level increase ¶80

Obstruction of Justice 2 U.S.S.G. §2J1.2(b)(3)(C) 2 level increase ¶77

1 Paragraph references are to the Presentence Investigation Report, dated January 16, 2020, (“PSR”). [Dkt. #272].

2 Government’s Objection to Presentence Investigation Report, dated January 30, 2020.

Possibly, given footnote 2, they added language to substantiate the extent to which Stone went to sustain his cover-up.

Pursuant to U.S.S.G. § 2B1.2(b)(3)(C), two levels are added because the offense was otherwise extensive in scope, planning, or preparation. Stone engaged in a multi-year scheme involving (1) false statements in sworn testimony; (2) the concealment of important documentary evidence; (3) further lies in a written submission to Congress; and (4) a relentless and elaborate campaign to silence Credico that involved cajoling, flattering, crafting forged documents, badgering, and threatening Credico’s reputation, friend, life, and dog. Stone’s efforts were as extensive, if not more extensive, than those of other defendants who received this two-level enhancement at sentencing.

That’s when Barr appointed Timothy Shea as interim US Attorney, effective just two business days later, the one way to take Jessie Liu out of the command structure immediately.

According to Barr’s interview, Shea started asking questions about Stone’s sentencing a week before the memo got submitted. That means Shea spent his first day focused on the Stone sentencing. That makes it hard to believe he was installed for any other reason but to help Stone out.

The first Trump-related motions — basically to remove Flynn’s attorney-client privilege so Covington’s lawyers can expound on how many lies Flynn told them about Russia and his work for Turkey — showed no discernible Barr influence (though Flynn’s reversal on continuing these discussions may have).

Barr provided several somewhat contradictory explanations for what happened on February 10 to Thomas. He claims that Shea “came by” DOJ and alerted Barr that line prosecutors still wanted to recommend the 7-9 year sentence calculated by the Probation Office. Then Barr suggested that he got involved here because line prosecutors who have decades of experience are too junior to make “life or death” decisions.

What other industry allows life or death decisions to be made by the most junior level of the business.

Not long later, however, Barr denied intervening in a case.

Most cases don’t come up to the Attorney General because people are doing a good job.

Some people saying AG intervening in a case. That’s preposterous! We have an escalation system that tries to get the difficult issues that are, you know, people are arguing about, to get them up for resolution and it’s the Attorney General’s decision to decide it.

But here’s the key: Barr claims he only got involved in Stone’s sentencing memo because “difficult issues” got escalated.

Except they only got escalated because he had just installed his hand-picked flunky to oversee this. This wouldn’t have been escalated if Liu were still in place.

All the evidence suggests that Bill Barr replaced Jessie Liu to give himself an excuse to intervene personally in Stone’s sentencing.

And what will it get him? I suspect Judge Amy Berman Jackson would never have sentenced Stone to 7 to 9 years —  the harsher sentence — in any case (especially given that she only gave Paul Manafort 7.5 years). She probably would have given Stone 4-5 years and might still, a slight enhancement for the threat against Randy Credico, but not much. But this drama about sentencing is likely not the big question, given that Stone is likely to have his sentence commuted, one way or another, on November 4, the day after election day. So the real question is how much of the next nine months he serves in prison, which ABJ has some control over, especially given Stone’s propensity to make threats when he’s not in prison or gagged. If ABJ sentences Stone to 4-5 years — close to what Barr has now signed off on in very public and intrusive fashion — but sends him to prison right away, it’s less likely Trump will do something immediate, like pardon him. Whereas, had Barr not intervened, it would have had the same effect but without Barr’s tacit approval for a 3-4 year sentence.

I can’t decide whether the plan here is to make judges look unreasonable — which could happen when Sullivan sentences Flynn to prison, except for the really atrocious details about how Flynn was secretly working for a frenemy government while purportedly advising Trump on national security issues. Or whether it’s to minimize sentence time — which Barr hasn’t done by endorsing a sentence just a year or so less than what ABJ might be inclined to give anyway.

Meanwhile, after inventing a way to remove Jessie Liu immediately, Lou Dobbs and a bunch of other frothers convinced the President to withdraw her nomination, possibly encouraged by the threat of questions about all this in her confirmation hearing, which was scheduled for yesterday. She resigned yesterday from whatever desk Trump parked her at to make way for Shea. She’s a pretty loyal Trumpster, so it’s unclear whether she’ll go quietly. But if she chooses, as a private citizen she’s now entitled to respond to subpoenas from Congress, and between her and Jonathan Kravis (who also resigned entirely from DOJ), she can explain what is really going on.

Meanwhile, Shea is now on the clock: he has until June 2 to complete shutting down any investigations into Trump. Unless the Senate confirms a successor that has not yet been confirmed, then Chief Judge Beryl Howell will be able to pick his replacement. And she was none too happy about this week’s drama.

December 10, 2019: Trump announces intent to nominate Jessie Liu to Treasury

January 4: DOJ asks for one more day to submit Flynn supplemental sentencing memorandum; signed by Liu

January 6: Trump nominates Liu to Treasury

January 7: DOJ submits harsh sentencing memo that nevertheless asks for guidelines sentence; signed by Liu

January 16: Probation Office completes Stone PSI recommending 7-9 years

January 22: DOJ notices court that they’ve provided the last of the Flynn 302s; signed by Liu

January 29: DOJ submits reply sentencing memo, with probation recommendation; signed by Liu

January 30: DOJ submits objection to Stone PSI; Barr appoints Timothy Shea DC US Attorney, effective February 3

February 3: Shea starts; per ABC interview, starts asking questions about the sentencing

February 5: Senate acquits Trump

February 9: DOJ files motion to continue briefing schedule and motion to confirm waiver of attorney-client privilege; signed by Jocelyn Ballentine; Brandon Van Grack not on motions, but probably in preparation for hearing

February 10: Shea “comes by” DOJ and tells Barr the team wanted to recommend 7-9 recommendation; Barr “under the impression” that “what was going to happen was what I had suggested;” DOJ files sentencing memo recommending 7-9 years; Barr claims he decided at night to amend recommendation

February 11:

3:07: Aaron Zelinsky withdrawal

3:56: Jonathan Kravis withdrawal

4:34: John Crabb Jr. files appearance

4:40: Supplemental sentencing memo created, signed by John Crabb Jr

5:27: Adam Jed withdrawal

5:39: Michael Marando withdrawal

6:10: Supplemental sentencing memo finalized

February 12: Trump withdraws Liu’s nomination; DOJ submits response to motion to dismiss; signed by Brandon Van Grack; Jessie Liu resigns from Treasury desk she was parked at to make way for Shea

February 13: Bill Barr does staged interview where he dodges any real explanation for his interference

June 2: Timothy Shea’s interim appointment expires

ABC Conducts an “Exclusive” “Interview” about Sentencing Guidelines without Asking about Sentencing Guidelines

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Update: Overnight ABC posted the full interview. It does discuss sentencing guidelines without talking about the significance of Barr overriding them. As laid out here, Barr provides three inconsistent explanations for why he intervened.

In its story writing up its “exclusive” “interview” with Attorney General Bill Barr, ABC gets to the core of the issue: The Attorney General not only intervened to override the sentencing recommendation of career prosecutors, but he did so in defiance of the sentencing guidelines recommended by the Probation Office.

In a stunning reversal, the Justice Department overruled a recommendation by its own prosecution team that Stone spend seven to nine years in jail and told a judge that such a punishment – which was in line with sentencing guidelines – “would not be appropriate.”

Yet ABC didn’t ask Barr about the sentencing guidelines, at least not in the clip posted. Nor did Pierre Thomas ask any of the follow-up questions about that:

  • How he could ever justify overriding line prosecutors on a sentencing recommendation that deviated from guidelines.
  • Whether he had ever done so in the past.
  • How he could be–as he claimed to be–surprised that prosecutors resigned given that this action is unprecedented and not justified by sentencing guidelines.
  • Whether he believed sentencing guidelines were too harsh and should be amended downward, even while he maligns District Attorneys around the country for advocated lesser sentences.

In short, in this “interview” ABC didn’t ask Barr the first question that needs to be answered. As a result, Thomas waltzed through this interview to its typical Bill Barr conclusion, where others are at fault for asking why guidelines designed to prevent precisely this kind of politicized tampering were overridden, where Bill Barr has a right to be “irritated” for being called out for engaging in such a naked political act.

Instead of asking that basic question, ABC allowed the Attorney General to claim that the problem was not Barr’s actions, which have rightly been described as unprecedented, but instead the President’s tweets.

Bill Barr Usurped the Power of a Judge Who Was Threatened Herself to Decide the Import of Violent Threats

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Presentence Investigation Reports — the report the Probation Office gives to the government and defendants before they write their sentencing memos –are not public. But thanks to Roger Stone, we know that the 7-9 year sentence originally proposed by the government is precisely what the Probation Office recommended for Stone.

Probation and the Government, however, incorrectly maintain that the following offense level increases are applicable:

Specific Offense Characteristics U.S.S.G. §2J1.2(b)(1)(B) 8 level increase ¶76 1

Specific Offense Characteristics U.S.S.G. §2J1.2(b)(1)(2) 3 level increase ¶77

Obstruction of Justice U.S.S.G. §3C1.1 2 level increase ¶80

Obstruction of Justice 2 U.S.S.G. §2J1.2(b)(3)(C) 2 level increase ¶77

1 Paragraph references are to the Presentence Investigation Report, dated January 16, 2020, (“PSR”). [Dkt. #272].

2 Government’s Objection to Presentence Investigation Report, dated January 30, 2020.

That means that the Attorney General lied to the Senate Judiciary Chair, Lindsey Graham, when — according to Graham — he told him that “that the guidelines call for 3 1/2 to 4 1/2 [yrs] for an offense like this.”

What Barr has done, effectively, is to unilaterally eliminate any punishment for Stone’s threats against Randy Credico (see PDF 243 for where that enhancement is laid out in the sentencing guidelines). He has done so even though prosecutors noted that while Credico doesn’t think Stone would hurt him or his dog Bianca, he does think that Stone’s ghoulish buddies might do something.

But Credico testified that Stone’s threats concerned him because he was worried that Stone’s words, if repeated in public, might make “other people get ideas.”

And Barr made that unilateral decision — to discount the import of threats of violence — in a case where Stone threatened the judge, Amy Berman Jackson, herself, in response to which even Stone’s lawyers agreed that the threats might incite others to act. ABJ imposed a gag in this case, very specifically, because Stone had already made public statements that she believed might incite others to take action.

What concerns me is the fact that he chose to use his public platform, and chose to express himself in a manner that can incite others who may feel less constrained. The approach he chose posed a very real risk that others with extreme views and violent inclinations would be inflamed.

[snip]

As a man who, according to his own account, has made communication his forté, his raison d’être, his life’s work, Roger Stone fully understands the power of words and the power of symbols. And there’s nothing ambiguous about crosshairs.

Bill Barr lied to Lindsey Graham, and did so in such a way to ensure that the President’s rat-fucker would face no repercussions for the violent threats he made against Credico and has made against others, including ABJ.

And if he cared at all about his oversight role, Lindsey Graham would call Barr on his lies, not parrot them.

Mind you, ABJ could still sentence Stone to the full 9 years (which I doubt she would have done in the first place). If she does, you can be sure she’ll be the target of a lot of violent threats that Bill Barr will continue to ignore.

Tea Leaves: Brandon Van Grack Remains on the Mike Flynn Case

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When the government moved Sunday to have Emmet Sullivan recognize that Mike Flynn had waived attorney-client privilege so Flynn’s former attorneys could testify about how he lied to them, Brandon Van Grack was not on the filing. In the wake of yesterday’s resignations from the Roger Stone team, however, Van Grack is on the filing the government submitted today in Flynn’s case, their response to Flynn’s second attempt to have the entire prosecution thrown out.

That suggests that, as seemed likely at the time, the government is prepared to put Van Grack on the stand if Sullivan does have a hearing with sworn witnesses.

Meanwhile, today’s filing reads like this:

Flynn’s complaints have nothing to do with the crime he pled guilty to, lying to the FBI on January 24, 2017.

Flynn’s complaints have nothing to do with the crime he pled guilty to, lying to the FBI on January 24, 2017.

Flynn’s complaints have nothing to do with the crime he pled guilty to, lying to the FBI on January 24, 2017.

Flynn’s complaints have nothing to do with the crime he pled guilty to, lying to the FBI on January 24, 2017.

Flynn’s complaints have nothing to do with the crime he pled guilty to, lying to the FBI on January 24, 2017.

Flynn’s complaints have nothing to do with the crime he pled guilty to, lying to the FBI on January 24, 2017.

Flynn’s complaints have nothing to do with the crime he pled guilty to, lying to the FBI on January 24, 2017.

Flynn’s complaints have nothing to do with the crime he pled guilty to, lying to the FBI on January 24, 2017.

Flynn’s complaints have nothing to do with the crime he pled guilty to, lying to the FBI on January 24, 2017.

Flynn’s complaints have nothing to do with the crime he pled guilty to, lying to the FBI on January 24, 2017.

Across 11 pages, prosecutors really did mention the irrelevance of Sidney Powell’s latest complaints to the charges against her client ten different times. Just one other thing broke up the monotony of that and repeated descriptions of how FBI misconduct pertaining to FISA applications targeting Carter Page don’t affect Flynn. That’s when the government noted that Powell’s accusation that the government committed a Brady violation for not turning over 302s from the interviews of Flynn’s lawyers in advance of the Bijan Kian trial would require a time machine.

Moreover, the government could not have disclosed those interview reports to the defendant before he pleaded guilty because they occurred six months later.

I still think Judge Emmet Sullivan might ask prosecutors for an ex parte version of the Electronic Communication that came out of the August 17, 2016 briefing.

But otherwise, he’s likely to agree with prosecutors: Powell continues to raise shit that has nothing to do with the case at hand.

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