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Bill Barr’s Screed Is About Mike Flynn, Nora Dannehy, and Robert Mueller

Bill Barr delivered a remarkable screed last night at the radical right Hillsdale College. Numerous people have and will unpack both the glaring contradictions and the dangerous assertions in it.

But I want to point out that it is quite obviously about Barr’s attempts to overturn the prosecutions of Trump’s flunkies for covering up their efforts to help Russia interfere in the election.

A big part of it is targeted towards independent counsels (though, tellingly, Barr assails the independent counsel statute that used to be, not the one that left Robert Mueller closely supervised by Rod Rosenstein).

As Justice Scalia observed in perhaps his most admired judicial opinion, his dissent in Morrison v. Olson: “Almost all investigative and prosecutorial decisions—including the ultimate decision whether, after a technical violation of the law has been found, prosecution is warranted—involve the balancing of innumerable legal and practical considerations.”

And those considerations do need to be balanced in each and every case.  As Justice Scalia also pointed out, it is nice to say “Fiat justitia, ruat coelum. Let justice be done, though the heavens may fall.”  But it does not comport with reality.  It would do far more harm than good to abandon all perspective and proportion in an attempt to ensure that every technical violation of criminal law by every person is tracked down, investigated, and prosecuted to the Nth degree.

[snip]

This was of course the central problem with the independent-counsel statute that Justice Scalia criticized in Morrison v. Olson.  Indeed, creating an unaccountable headhunter was not some unfortunate byproduct of that statute; it was the stated purpose of that statute.  That was what Justice Scalia meant by his famous line, “this wolf comes as a wolf.”  As he went on to explain:  “How frightening it must be to have your own independent counsel and staff appointed, with nothing else to do but to investigate you until investigation is no longer worthwhile—with whether it is worthwhile not depending upon what such judgments usually hinge on, competing responsibilities.  And to have that counsel and staff decide, with no basis for comparison, whether what you have done is bad enough, willful enough, and provable enough, to warrant an indictment.  How admirable the constitutional system that provides the means to avoid such a distortion.  And how unfortunate the judicial decision that has permitted it.”

Justice Jackson understood this too.  As he explained in his speech:  “If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted.”  Any erosion in prosecutorial detachment is extraordinarily perilous.  For, “it is in this realm—in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself.”

And part of it is a restatement of the arguments Acting Solicitor General Jeff Wall made before the DC Circuit, arguing that even bribery was not reason for a judge to override DOJ’s decisions on prosecutions.

I want to focus today on the power that the Constitution allocates to the Executive, particularly in the area of criminal justice.  The Supreme Court has correctly held that, under Article II of the Constitution, the Executive has virtually unchecked discretion to decide whether to prosecute individuals for suspected federal crimes.  The only significant limitation on that discretion comes from other provisions of the Constitution.  Thus, for example, a United States Attorney could not decide to prosecute only people of a particular race or religion.  But aside from that limitation — which thankfully has remained a true hypothetical at the Department of Justice — the Executive has broad discretion to decide whether to bring criminal prosecutions in particular cases.

And the rest suggests that career prosecutors have been putting targets on the heads of politically prominent people and pursuing them relentlessly.

Once the criminal process starts rolling, it is very difficult to slow it down or knock it off course.  And that means federal prosecutors possess tremendous power — power that is necessary to enforce our laws and punish wrongdoing, but power that, like any power, carries inherent potential for abuse or misuse.

[snip]

Line prosecutors, by contrast, are generally part of the permanent bureaucracy.  They do not have the political legitimacy to be the public face of tough decisions and they lack the political buy-in necessary to publicly defend those decisions.  Nor can the public and its representatives hold civil servants accountable in the same way as appointed officials.  Indeed, the public’s only tool to hold the government accountable is an election — and the bureaucracy is neither elected nor easily replaced by those who are.

[snip]

We want our prosecutors to be aggressive and tenacious in their pursuit of justice, but we also want to ensure that justice is ultimately administered dispassionately.

We are all human.  Like any person, a prosecutor can become overly invested in a particular goal.  Prosecutors who devote months or years of their lives to investigating a particular target may become deeply invested in their case and assured of the rightness of their cause.

When a prosecution becomes “your prosecution”—particularly if the investigation is highly public, or has been acrimonious, or if you are confident early on that the target committed serious crimes—there is always a temptation to will a prosecution into existence even when the facts, the law, or the fair-handed administration of justice do not support bringing charges.

[snip]

That is yet another reason that having layers of supervision is so important.  Individual prosecutors can sometimes become headhunters, consumed with taking down their target.  Subjecting their decisions to review by detached supervisors ensures the involvement of dispassionate decision-makers in the process.

And it excuses, in one sentence, calling for probation even after a just prosecution.

Other times it will mean aggressively prosecuting a person through trial and then recommending a lenient sentence, perhaps even one with no incarceration.

Of course, none of this makes sense, and Barr’s own behavior — from removing Senate confirmed US Attorneys to put in people accountable only to him, from seeking prosecution of Democratic officials, and from launching the Durham investigation because he was just certain there was criminal wrong-doing in the Russian investigation — belies his words.

Perhaps it does so in the most basic way. If we hold our Attorney General politically accountable through elections, then we need to make sure elections are fair. We definitely need to make sure that elections are not influenced by hostile foreign powers cooperating with one candidate. The 2016 election wasn’t fair, and Bill Barr is doing his damndest to make sure the voters won’t be able to use the 2020 election to hold him politically accountable for interfering with the punishment of those who worked to cheat.

Because of Barr’s corrupt view on cheating at elections, he ensures that Vladimir Putin has more say over who gets prosecuted than experienced American prosecutors.

Aaron Zelinsky

Beware DOJ Inspectors General Bearing Investigations, Aaron Zelinsky Edition

When DOJ IG got evidence, in the form of Jim Comey’s memos documenting that every safeguard against White House interference in DOJ and FBI investigations had broken down, DOJ Inspector General Michael Horowitz instead investigated whether Comey had mishandled classified information, ultimately referring Comey for prosecution.

When FBI Inspection Division got evidence that someone kept leaking false information to Sara Carter claiming Andrew McCabe had promised to “fuck Trump,” it turned into a DOJ IG investigation into whether McCabe had lied. After withholding the evidence of a key witness, Michael Kortan, the IG Report was used to justify the firing of McCabe.

When DOJ IG conducted an investigation into the leaks and conduct of various FBI Agents, it ended up being a report that exclusively reported on anti-Trump texts from Agents, and not pro-Trump leaks and texts — it even provided misleading graphics that falsely suggested only anti-Trump leaks happened. That led to the disclosure, during an investigation, of those texts, and ultimately to Peter Strzok’s firing.

That’s why I’m wary about the NBC report today that DOJ’s Inspector General is investigating the Roger Stone sentencing.

The Justice Department inspector general’s office has begun investigating the circumstances surrounding the sentencing recommendation for Roger Stone, a longtime friend of President Donald Trump’s, according to two sources familiar with the matter.

The investigation is focused on events in February, according to the two sources, who spoke on condition of anonymity. Stone’s prosecutors have said that is when they were told to seek a lighter sentence than they had previously considered.

[snip]

A source familiar with the matter said comments Zelinsky made during his testimony triggered the inspector general’s office to open an investigation. It is not known how far the office has proceeded in its investigation, whom it has interviewed or whether it has found any evidence of wrongdoing.

That’s particularly true given Kerri Kupec’s confidence — in a statement to Politico’s Josh Gerstein — that Billy Barr’s DOJ welcomes this review.

A Justice Department spokeswoman confirmed that the agency’s Office of Inspector General is looking into Barr’s move in February to seek a lighter sentence for Stone after rank-and-file prosecutors and an acting U.S. attorney hand-picked by Barr had already submitted a recommendation of seven to nine years in prison for the conservative provocateur, who has been a political sounding board for Trump for more than two decades.

“We welcome the review,” a department spokeswoman, Kerri Kupec, said on Monday evening.

Gerstein further notes that this probe did not come with an announcement to HJC.

In the past, Horowitz has written to members of Congress to confirm that he has launched inquiries in high-profile cases in which lawmakers demanded a review. It was not immediately clear why Horowitz was being more tight-lipped about the investigation into the Stone sentencing decision.

Even aside from past history and the warning sign that Gerstein notes, there’s one more reason to believe that Horowitz’ IG Report will once against serve to damage — if not provide an excuse to fire — someone who investigated Trump.

DOJ IG cannot investigate the actions lawyers take as lawyers. And virtually everything Aaron Zelinsky testified to in the House Judiciary Committee hearing pertains to actions Barr flunky Timothy Shea and others took as lawyers. Moreover, during the hearing, Jim Jordan made a point to get Zelinsky to name precisely who he claimed had accused Barr of politicized decisions. By the end of the hearing, Republicans were claiming that those people had not said what Zelinsky claimed.

DOJ IG can’t investigate why Timothy Shea engaged in unprecedented interference in sentencing. It can, however, investigate whether Zelinsky’s testimony matches that of more complicit supervisors in the DC US Attorney Office. And that’s what’s likely to happen.

Judge Sullivan Amicus John Gleeson Lays Out How DOJ Is Arguing Against DOJ, then Invokes Barr’s Other Interference

When Judge Emmet Sullivan holds a hearing on DOJ’s motion to dismiss the Mike Flynn prosecution later this month, DOJ will likely refuse to answer any questions about why just Timothy Shea, Bill Barr’s lifelong flunky, signed the original motion to dismiss.

But even without raising that issue, retired Judge John Gleeson — acting as Sullivan’s amicus to oppose the motion — has amplified Shea’s role in his reply brief, submitted today.

He did so by noting that Shea’s argument is fundamentally incompatible with things DOJ claimed before Barr intervened (in filings arguing against Flynn’s Brady claims) and with things DOJ has claimed since (in a response brief signed by AUSA Jocelyn Ballantine).

Effectively, then, Gleeson has laid out that even DOJ believes DOJ lied in their motion to dismiss.

He does so, first of all, with materiality. Gleeson lays out that the government didn’t bother to defend the radical claims about materiality made in the Shea motion.

Although the Government attempts to respond to other arguments in my brief, it offers no response here. It does not claim I have misapprehended or misapplied the law. It never explains why one legal rule—the one set forth in its motion—applies to Flynn, while a different legal rule applies to everyone else. It never explains why its own lawyers erred so grievously in stating the law. It never explains why Flynn’s statements, in this setting, were not even capable of affecting the FBI’s general function. The Government’s silence on these crucial points is, by itself, sufficient to establish that its claims about materiality are pretextual.

Then, Gleeson argues that the government not only got the standard wrong, but misstated the evidence. To support it, he did what I’ve been clamoring for for months — he pointed to the government’s own claims about the materiality of Flynn’s lies (though he relies on a different and weaker filing than the government’s most aggressive statement on materiality, which had to he delayed twice to get senior DOJ review), noting that not that long ago the government argued aggressively that Flynn’s lies were material.

I have explained that the evidence demonstrating materiality here is so strong that the Government could satisfy an even tougher standard than the law requires—specifically, by demonstrating that Flynn’s statements had an actual effect on a specific FBI investigation. See ECF No. 225 at 41–42, 48–49. The Court need not take my word alone for this point. It can take the Government’s own word, as set forth in briefs submitted (unlike the Rule 48(a) motion) by the prosecutors who actually investigated this case, explaining that Flynn’s lies in fact affected the FBI’s investigation into contacts between the Trump campaign and the Russian government (a.k.a. “Crossfire Hurricane”). See ECF No. 132 at 10–11 (stating that Flynn’s “false statements to the FBI . . . were absolutely material”).

He also shows that the response brief — the one signed by Ballentine — offers no response on materiality itself but instead, “kick[s] up administrative dust.”

[T]he Government now abandons any discussion of the supposedly “critical”—but actually irrelevant—“predication threshold” that formed the backbone of its original motion. See ECF No. 198 at 16; see also id. at 2–5, 13–18. Instead, the Government refers vaguely to an irrelevant internal draft closing memorandum, “disagreement” about protocol, and other supposed “procedural irregularities,” ECF No. 227 at 2, 26–27, none of which is either particularly irregular or has any legal significance in proving materiality, see ECF No. 225 at 42–44. The Government seeks to conceal its retreat by kicking up administrative dust, but the bottom line is that it no longer stands by its own motion’s implausible reasoning.

Significantly, he mocks what is, in Billy Barr’s little mind, the real reason Flynn’s case should be dismissed: that many of the people who prosecuted Flynn have since been hounded out of government and are suing. Gleeson points out not just that two of them (Andrew McCabe and Lisa Page) are not witnesses to Flynn’s lies, but that in other places the government celebrates the experience of Peter Strzok and Joe Pientka (and had disclosed Strzok’s damning texts before Flynn pled guilty both times).

[T]he Government trots out a new explanation for its materiality rationale. The Government previously claimed to believe that the available evidence, taken at face value, showed Flynn’s statements to be immaterial. But it now says it has a different concern: that the witnesses it would rely upon to introduce the evidence might lack credibility with a jury. ECF No. 227 at 27–28. As this Court well knows, shifting explanations are classic red flags of pretext. See, e.g., Foster, 136 S. Ct. at 1751; Geleta v. Gray, 645 F.3d 408, 413 (D.C. Cir. 2011).

In any event, this claim makes no sense. The Government asserts without explanation that it “would need to prove its case” by calling as witnesses individuals from the FBI whose credibility could be impeached. ECF No. 227 at 27. But two of these “witnesses” were not present for Flynn’s false statements, so it is entirely unclear why their testimony would be required or even permitted (under evidentiary rules) in the Government’s case-in-chief. And more generally the Government’s professed credibility concerns are not plausible. They center on professed evidence of political bias by an interviewing agent that both the Government and Flynn have known about from the start of the case, see ECF No. 122 at 8–9; ECF No. 144 at 25– 34 (this Court discussing, at length, the history of the referenced text messages and why they do not cast doubt on Flynn’s guilty plea), and two pages after assailing the agents’ credibility, the Government does a back-flip to proclaim the very same agents “highly experienced investigators” whose assessment of the interview should be credited, see ECF No. 227 at 30. As I previously explained—without response from the Government—“[n]o competent lawyer thinks this way.” ECF No. 225 at 55.

To defeat the government’s claims that it would have a hard time proving Flynn’s lies were false, Gleeson points out a key disagreement Flynn has with the government. The government (in the form of prosecutor Ballantine, but others signed the brief too) maintains prosecutors did not commit any abuses.

[T]he Government affirmatively rejects Flynn’s own principal account of why his prior admissions of falsity should not be credited: namely, that prosecutors had threatened him with charges against his son. Compare ECF No. 160-23 at 8 ¶ 34 (Flynn Declaration describing “intense pressure,” including “a threat to indict my son Michael”), and id. at 11 ¶ 46 (“I allowed myself to succumb to the threats from the government to save my family . . . .”), with ECF No. 227 at 28 n.1 (“[T]he [G]overnment’s motion is not based on defendant Flynn’s broad allegations of prosecutorial misconduct. Flynn’s allegations are unfounded . . .”).

Given that Flynn repeatedly admitted to lying—and given that the Government is unwilling to accept Flynn’s claims about why those admissions were untrue—the Government struggles to offer a coherent account of why it doubts its ability to prove falsity.

Even Billy Barr, in sworn testimony before the House Judiciary Committee, said there were no Brady violations here (though he lied, under oath, about whether files had been withheld from Judge Sullivan).

Having shown how DOJ disagreed with itself on materiality and falsity, Gleeson then notes how DOJ invented a completely new reason — interests of justice — to dismiss the case.

The Government’s Rule 48(a) motion stated that “continued prosecution of Mr. Flynn would not serve the interests of justice.” ECF No. 198 at 12. It then elaborated on the reason: “the Government does not have a substantial federal interest in penalizing a defendant for a crime that it is not satisfied occurred and that it does not believe it can prove beyond a reasonable doubt.” Id. The Government thus asserted that the “interests of justice” would not be served by pursuing a case in which the Government doubts it could prove materiality or falsity. See id. at 12–20. No free-standing “interest of justice” policy reason is apparent in the Government’s motion.

But the Government now insists otherwise, asserting that it has always advanced a third “separate” and “alternative” reason for dismissal wholly unrelated to the difficulty of proving the elements of its case. ECF No. 227 at 23, 25–26. While this conclusion would come as a surprise to any careful reader of the Government’s motion, it would not surprise anyone familiar with doctrines designed to uncover pretext. See Foster, 136 S. Ct. at 1751 (where a party’s “principal reasons” have “shifted over time,” it can be inferred “that those reasons may be pretextual”).

And what exactly is the Government’s non-merits reason for dismissal? The answer is unclear, since the Government never quite explains its newly minted rationale in the sole paragraph devoted to it. See ECF No. 227 at 25–26. It gestures vaguely at “enforcement priorities” and “policy assessments,” id. at 24, then rattles off a disjointed string of allegations regarding “circumstances surrounding the interview,” id. at 25. But these are just the same facts that are legally irrelevant to its materiality and falsity assertions. The Government does not explain what additional supposed significance it has suddenly “assess[ed]” those facts to have, or why Flynn’s conviction disserves the “interests of justice,” see id. at 23, given that his guilt is both conceded and readily provable. While the Government conveniently asserts that these “policy assessments” are “quintessentially unreviewable,” id. at 24, it never actually explains what the policy is, what judgment it made, or why the conduct of the FBI agents in question would warrant dismissal of this case given Flynn’s demonstrable and confessed guilt. See id. at 23–26.

Having shown that DOJ (in Ballantine’s reply) already showed that DOJ (in Shea’s motion to dismiss) was wrong, Gleeson notes that DOJ hasn’t even mentioned his arguments showing that there’s a more logical explanation for all this–that Trump demanded it.

As detailed in my opening brief, Flynn is a close ally of President Trump, who personally pressured the FBI director to “let this go” within weeks of Flynn’s crime, who has since repeatedly made clear his desire for Flynn to avoid criminal liability, see ECF No. 225 at 17, 56– 59, and who has expressed a desire to re-hire Flynn within his administration, see Max Cohen, Trump Says He Would Welcome Michael Flynn Back to His Administration, POLITICO (July 15, 2020, 11:08 AM), https://perma.cc/5EG4-CLTQ. Allowing dismissal for these “irregular” reasons would necessarily “implicate this Court” in denigrating “settled, foundational norms of prosecutorial independence.” ECF No. 225 at 59.

The Government does not disagree with any of this—presumably because it cannot. Indeed, the Government nowhere even mentions the President’s personal lobbying, let alone his virulent attacks on those previously involved in this prosecution. Based entirely on evidence already in the public view, the only coherent explanation for the Government’s exceedingly irregular motion—as well as its demonstrable pretexts—is that the Justice Department has yielded to a pressure campaign led by the President for his political associate. This Court need not “exhibit a naiveté from which ordinary citizens are free” by pretending otherwise. United States v. Stanchich, 550 F.2d 1294, 1300 (2d Cir. 1977). It should instead deny the Government’s request for leave under Rule 48(a) and proceed to sentencing.

Gleeson is exploiting DOJ’s failures to address his claims. But he’s probably right.

Gleeson expands the record to include solid evidence of prosecutorial abuse

Sullivan did not and will not order further discovery in this case. But Gleeson got three key pieces of additional information into his brief. He cited the SSCI Report describing why Flynn’s lies were material.

In its bipartisan report assessing Russia’s interference with the 2016 presidential election, the U.S. Senate Intelligence Committee similarly concluded that the “series of communications between Flynn and Kislyak” on sanctions was relevant to assessing “what Moscow sought to gain and the counterintelligence vulnerabilities associated with the Transition.” REPORT OF THE SELECT COMMITTEE ON INTELLIGENCE UNITED STATES SENATE ON RUSSIAN ACTIVE MEASURES CAMPAIGNS AND INTERFERENCE IN THE 2016 U.S. ELECTION, VOLUME 5: COUNTERINTELLIGENCE THREATS AND VULNERABILITIES, S. Doc. No. 116-XX, at 702 (1st Session 2020).

He pointed to Aaron Zelinsky’s testimony describing how Billy Barr personally intervened to sabotage the Roger Stone prosecution.

Most notably, there is now concrete evidence of another prosecutorial decision infected by “heavy pressure from the highest levels of the Department of Justice . . . based on political considerations.” See Oversight of the Department of Justice: Political Interference and Threats to Prosecutorial Independence: Hearing Before the H. Comm. on the Judiciary, 116th Cong. 2 (2020) (statement of Aaron S.J. Zelinsky, Assistant U.S. Att’y), https://perma.cc/48ZV-23EK. This prosecutorial decision concerned the Government’s sentencing recommendation for Roger Stone, another well-connected political ally of the President who committed serious crimes. There, as here, the President publicly assailed the Department of Justice for pursuing the prosecution. And there, as here, the Department of Justice succumbed to that corrupt pressure— though only after all four career prosecutors resigned from the case. As one of those career prosecutors later testified, senior officials at the Department of Justice exerted “significant pressure” to go easy on Stone, against the record of the case, customary prosecutorial practice, and departmental policy. Id. at 2. This occurred “because of [Stone’s] relationship to the President,” id., and “because the U.S. Attorney”—who also signed the Rule 48(a) motion in these proceedings—“was ‘afraid of the President,’” id. at 10.11

And he used that to invoke the case of Geoffrey Berman.

11 Perhaps those officials had reason to worry: the President recently fired a prominent and wellrespected U.S. Attorney who was investigating his associates. See Paul Le Blanc et al., White House Admits Trump Was Involved in Firing of Top US Attorney After Trump Claimed He Wasn’t, CNN (June 22, 2020), https://perma.cc/TPB5-ZXGQ.

Had he waited a few hours, he could have cited how John Durham’s deputy, Nora Dannehy, just resigned in part because of political pressure.

While Gleeson has not had the opportunity to develop a record about why this particular Barr intervention is thoroughly corrupt, he manages to show that Billy Barr here argues against Billy Barr, and in similar cases, did have a political purpose.

At the very least, he has succeeded in establishing a record that Billy Barr’s own DOJ disagrees with him.

There’s Lots of Reason to Think Steve Bannon Lied; But He May Also Have Told the Truth, Once

The LAT has a big scoop on some criminal referrals the Senate Intelligence Committee made on July 19, 2019. The biggest news is that SSCI referred Steve Bannon for his unconvincing story about his Russian back channel — though it’s likely that Bannon cleaned up that testimony in January 2019.

Don Jr

The LAT describes that the Committee believed that the Trump spawn lied about when they learned about the Aras Agalarov meeting.

In the two page-letter, the committee raised concerns that testimony given to it by the president’s family and advisors contradicted what Rick Gates, the former deputy campaign chairman, told the Special Counsel about when people within the Trump campaign knew about a June 9 meeting at Trump tower with a Russian lawyer.

This conflict in stories was previously known; it shows up in the Mueller Report.

It’s interesting primarily because the referral took place after Don Jr’s second SSCI interview, which was on June 12, 2019. It stands to reason that the failson’s willingness to sit for a second interview with SSCI — but not any interview with Mueller — strongly suggests that he had reason to know that Mueller had evidence that SSCI did not. If the only thing that SSCI believed Don Jr lied about was the June 9 meeting, then it suggests they did not know Mueller’s full focus.

Sam Clovis

LAT also says that SSCI believes Clovis lied about his relationship with Peter Smith, the old Republican rat-fucker who made considerable effort to find Hillary’s deleted emails.

The committee also asked the Justice Department to investigate Sam Clovis, a former co-chairman of the Trump campaign, for possibly lying about his interactions with Peter W. Smith, a Republican donor who led a secret effort to obtain former Secretary of State Hillary Clinton’s missing emails.

Clovis could not be reached.

That Clovis lied is not surprising — it’s obvious from the interview reports released thus far in the BuzzFeed FOIA that his story changed radically over the course of a few hours. Notably, however, SSCI only referred Clovis for lying about Peter Smith. It’s pretty clear that Clovis also lied, at least at first, about the campaign’s willingness to cozy up to Russia.

There are four redacted descriptions of people who lied to Mueller in the Report; one of those may explain why Clovis was not charged.

Note that Clovis’ lack of candor about other topics makes his denials that George Papadopoulos told him about the email warning equally dubious.

Erik Prince and Steve Bannon

Finally, the story says SSCI referred Erik Prince and Steve Bannon for their conflicting stories about their back channel to Kirill Dmitriev.

According to the letter, the committee believed Bannon may have lied about his interactions with Erik Prince, a private security contractor; Rick Gerson, a hedge fund manager; and Kirill Dmitriev, the head of a Russian sovereign fund.

It is well-established that Prince lied (indeed, HPSCI also referred his testimony). His lawyer made similar denials to the LAT as he has made elsewhere.

Matthew L. Schwartz, a lawyer for Prince, defended his client’s cooperation with Capitol Hill and Mueller’s office.

“There is nothing new for the Department of Justice to consider, nor is there any reason to question the Special Counsel’s decision to credit Mr. Prince and rely on him in drafting its report,” he said.

Given that DOJ turned over an email from Schwartz to Aaron Zelinsky in response to a FOIA in the Stone case, it’s clear both that Prince was being investigated for issues beyond just his lies about the Russian back channel, but also that it’s likely that Billy Barr interfered with that investigation while he was “fixing” the Mike Flynn and Roger Stone ones, as well.

That’s interesting because SSCI referred Bannon as well.

Like everyone else, it’s not news that he shaded the truth at first. Bannon was scripted by the White House to deny discussing sanctions prior to Mike Flynn’s call to Sergei Kislyak. Bannon’s efforts to shade the trute were apparent from one of his early 302s. A Stone warrant affidavit describes Bannon denying his conversations with Roger Stone about WikiLeaks before he admitted at least one.

When BANNON spoke with investigators during a voluntary proffer on February 14, 201’8, he initially denied knowing whether the October 4, 2016 email to STONE was about WikiLeaks. Upon further questioning, BANNON acknowledged that he was asking STONE about WikiLeaks, because he had heard that STONE had a channel to ASSANGE, and BANNON had been hoping for releases of damaging information that morning.

And for Bannon’s fourth known Mueller interview, he got a proffer, suggesting his testimony changed in ways that might have implicated him in a crime.

What’s most interesting, given how everyone agrees his testimony and Prince’s materially differ, is that he testified to things before the grand jury he subsequently tried to back off. More interesting still, only the relevant parts of Bannon’s grand jury testify got shared with Stone. That means other parts — presumably, given the proffer agreement, the more legally damning parts — remain secret.

SSCI believes that Bannon may have lied to the committee.

But unlike all the others listed here, there’s reason to believe Bannon may also have told the truth to the grand jury, once, possibly relating to his actions involving Erik Prince.

That all may be moot if Barr managed to squelch any Prince investigation while he was negating the Stone and Flynn prosecutions. But he can’t entirely eliminate grand jury testimony.

The Maryland US Attorney’s Office Included Erik Prince in a FOIA Response on the Stone Sentencing

Jason Leopold once again did more for overseeing DOJ than the House Judiciary Committee managed — this time beginning the process of liberating documents held by the US Attorney’s Office pertaining to Roger Stone’s sentencing. As Leopold notes in his story on the documents, this was the first of several installments, so more interesting documents may come out later.

This installment clearly all came from the Maryland US Attorney’s office, reflecting the mailbox of Aaron Zelinsky, who has always been and remains employed there; he returned there full time after he resigned as a Special AUSA assigned to the Mueller team. The remaining installments — at least those from the EOUSA — will likely mirror this production, but also include emails involving Timothy Shea’s Chief of Staff, David Metcalf, JP Cooney, John Crabb, and Alessio Evangelista, who were also involved in the events of February 10 and 11.

Maryland may have responded quickly to this FOIA because it is more sympathetic to Zelinsky’s efforts. Indeed, the most interesting exchanges in these emails show Zelinsky discussing these matters with people in that office. On February 10, he kept Jonathan Lanzner in the loop, letting him know when, “looks like they are blinking.” The following day, just after DOJ disavowed the sentencing memo approved just the night before (which the prosecutors appear to have found out about via media reports), Zelinsky made an urgent request of three others in MD USAO. There was some discussion of precedent and a drafting of a document. But after Zelinsky withdrew from the case, he alerted them that “we will not have the opportunity to do” whatever they were trying to do.

As discussed, I have filed the withdrawal motion and emailed the public corruption chief JP Cooney. I withdrew just after I sent the email below notifying him. As we discussed, I do not believe he has the power to compel  me to stay in the case. There are currently three attorneys on the docket for the United States. In addition, JP has indicated that Main Justice will file a motion of somekind in the case later today and we will not have the opportunity to do this.

Nevertheless, there’s a follow-up with Lenzner later in the day. In it, Zelinsky makes it clear that his Memorandum of Understanding (presumably pertaining to his SAUSA role tied to Mueller) only pertains to Roger Stone.

The suggestion that these events may have affected other cases, to which Zelinsky’s MOU did not apply, is particularly interesting given that DOJ deemed an email to Zelinsky from Erik Prince’s lawyer attaching a story about that investigation, sent after everything started blowing up, to be responsive to this FOIA.

I see no reason why that email would be included in this FOIA response (the attached WSJ story, for example, does not mention the Stone). But for some reason, Maryland’s US Attorney’s office considers it responsive to the Leopold FOIA.

I’ll have more to say about this FOIA response in a bit.

I have included all the emails, save some inquiries from journalists, in the timeline below. Note that it is difficult to distinguish between b5 (deliberative) and b6 (privacy) in these redactions, so I may have gotten a few of those wrong.

February 10

7:49: Zelinsky sends his US Attorney email, “Zelinsky Withdrawal Motion Draft 2.docx.”

7:52: Zelinsky forwards his draft withdrawal motion, still titled, “Zelinsky Withdrawal Motion Draft 2.docx,” to Adam Jed and Jonathan Kravis (but not Michael Marando), stating, “A much slimmer version — let me know what you think.” Note that the email he attached the draft to has a time stamp of 7:46, preceding the one above. This appears to be substantially the motion he submitted the following day.

9:01: A Maryland US Attorney employee, Paul Budlow, responds to Zelinksy regarding a “Presentations Skills for Training and Trial” course in March, saying only “Thanks.” The email was likely responsive because of what Zelinsky said to Budlow on Friday, February 7, which is redacted under b6.

9:40: Email from John Kruzel at The Hill.

1:25: Zelinsky sends Marando his withdrawal letter, now titled, “Zelinsky Withdrawal Motion Draft Final.docx.”

2:04: Zelinsky writes Jonathan Lenzner at Maryland’s US Attorney’s office with the subject line, “Looks like they are blinking.” It is redacted under b5.

2:05: Timothy Shea’s Chief of Staff David Metcalf emails Zelinsky, “If you actually want to talk, let me know.” The rest is redacted under b6.

2:07: Zelinsky responds to Metcalf. The first line is redacted under b6. The email then says, “What would you like to discuss? I am a bit busy because of Stone sentencing memo (as I’m sure you’re aware) and I [redacted, b6].

2:08: Lenzner responds. It is redacted under b5.

2:11: Zelinsky responds. It is redacted under b5.

3:25: Michael Marando emails the other three prosecutors, attaching a “Joint Submission re Redactions.docx,” with the subject link, “Can you let me know if this is OK?”

3:58: Zelinsky responds again to Metcalf, “I’m headed out now. Happy to talk by phone.” The rest of the email is redacted under b6.

4:22: Marando forwards email reading, “Counsel, the attached documents were filed with the Court under seal today.” Marando’s email that forwarded the PACER entry to Stone’s lawyers cc’ing the other prosecutors, which is (still sealed) docket number 278, is included in this FOIA production as well, but the time is not legible.

4:22: Kravis emails Zelinsky, “Final draft attached. Let me know when we have the ok to file.” He attaches, “stone sentencing memo 2-10-20.docx.”

4:22: Kravis emails Cooney, John Crabb, Alessio Evangelista, cc’ing the Stone prosecutors. “Final draft attached. Let me know when we have the ok to file.” Attached is “stone sentencing memo 2-10-20.”

4:28: Zelinsky responds to Kravis, “This says [redacted] got thirteen months. I thought it was 14?

4:30: Zelinsky responds again to Kravis, “Never mind. Looks like thirteen in all news stories.”

4:32: Zelinsky responds to Marando, “Thanks for doing this.”

6:02: Zelinsky receives ECF notice of the prosecutors’ sentencing memo, which was filed at 6:01.

6:07: Cooney emails “Team,” stating, “I just let Jonathan know that you have the green light to file the pleading.” The rest of the email is redacted under a b6.

7:04: Zelinsky responds to Cooney thanking him. The rest of the email is redacted under b6.

10:57: Zelinsky receives notice of Stone’s sentencing memo, which was filed at 10:55.

February 11

7:03 AM: Zelinsky forwards the sentencing memo from Stone’s attorneys, including the leniency letters, to the other prosecutors in the case, making some comment that was redacted for b5 and b6 reasons.

7:04 AM: Zelinsky responds to the Cooney email from the evening stating, “Thanks JP,” with the balance redacted for b6.

8:32: Adam Jed writes the other Stone prosecutors with the subject line, “Stone’s sentencing memo.” The content is redacted under b5.

9:50: Zelinsky responds to the other prosecutors regarding an email all four plus Timothy Shea got sent, calling them “Corrupt Whores” and “Are Poor FuckingEvil,” complaining they called for “7 to 9 years for Rodger [sic] Stone?” and calling them, “COCKROACHES.” Apparently this email merited a response, because he said,

I’ll draft a response. Good news– we know the U.S. Attorney won’t get this threat because he doesn’t use email.

12:02: Marando forwards an inquiry from The Hill’s John Kruzel, asking about the Fox story that DOJ is changing Stone’s sentencing recommendation, to Cooney, saying only “FYI.”

12:07:11: Cooney responds to Marando’s question, False.

12:07:32 PM: Marando forwards the 12:07:11 email from JP Cooney to Zelinsky.

12:13: Zelinsky responds to Marando and Kravis in the Cooney “False” thread, linking CNN journalist Shimon Prokupecz’s tweet quoting DOJ disavowing of the sentencing memo:

DOJ on Roger Stone: “This is not what had been briefed to the department,” the official told CNN. “The department believes the recommendation is extreme and excessive and is grossly disproportionate to Stone’s offenses.”

12:50: Zelinsky sends “Zelinsky Withdrawal Motion Draft February 11.pdf” to Neil White and John Sippel at Maryland’s US Attorney’s office, stating,

Dear Neil and John,

Sorry to buy you with an urgent request.

Quick background:

[long paragraph redacted under b5]

1:00: White responds. The first line is redacted under b5. The rest reads,

Jon briefed me about this earlier today. I tried calling you and I am happy to chat this afternoon. I can be reached at [redacted].

1:04: Zelinsky responds to White, cc’ing Roann Nichols, “Neil — on phone with DC now. Will call in a moment.”

1:13: Zelinsky emails Neil White cc’ing Roann Nichols, “Just tried you again. Thanks,”

1:55: Cooney sends an email, with only two periods, to Kravis, with the subject “memo.”

2:02: Kravis forwards the email from Cooney to the other prosecutors.

2:34: Zelinsky receives ECF notice of a letter in support of sentencing.

2:55: Kravis sends Zelinsky an email with the subject line, “Send me your notice?”

2:55:18: Zelinsky responds to Kravis. The first sentence is redacted under b5. The rest says, “JP approved this yesterday. If you see any typos, let me know!” He attaches, “Zelinsky Withdrawal Motion Draft February 11.docx.”

2:59: Zelinsky receives ECF notice of his withdrawal motion, which was filed at 2:58.

2:59:23: Zelinsky emails Cooney, cc’ing the other prosecutors, Withdrawal, attaching, “Zelinsky Withdrawal Final Signed FINAL.pdf”:

Dear JP,

Pursuant to our conversation yesterday and your approval of this filing yesterday, I am now filing the attached withdrawal from the Stone case and resigning as a SAUSA in DC.

2:59: Zelinsky again responds to Kravis with the file, “Zelinsky Withdrawal Motion Draft February 11.docx.”

3:00: Cooney responds to Zelinsky, “I am not approving of you withdrawing from this case right now.”

3:02: Zelinsky forwards Nichols and White the Cooney response, adding:

Dear Roann and Neil,

As discussed, I have filed the withdrawal motion and emailed the public corruption chief JP Cooney. I withdrew just after I sent the email below notifying him. As we discussed, I do not believe he has the power to compel  me to stay in the case. There are currently three attorneys on the docket for the United States. In addition, JP has indicated that Main Justice will file a motion of somekind in the case later today and we will not have the opportunity to do this.

Thanks for all yoru [sic] help.

3:04: Leo Wise responds to Zelinsky, explaining, Attached is a rough redlined draft. Also attached is the case [redacted] is also attached. The subject of the email and the names of the attachment are also redacted.

3:30: News Alerts from Law360 that includes reference to the sentencing memo filed the day before.

3:41: Steven Brill writes the Stone prosecutors urging them to “speak out against improper internal pressure.”

3:55: Zelinsky receives Kravis’ withdrawal motion from ECF; it was filed at 3:54.

4:04: Zelinsky forwards an email from NBC’s Kevin Breuninger asking for a statement on his withdrawal to the press people in Maryland’s US Attorney’s office, telling them, “I’m just going to forward these to you. THanks! Sorry!” Other standard emails he forwarding included one from The Hill, CNN (Katelyn Polantz), CBS, CNN (Wolf Blitzer).

4:04: Zelinsky forwards an email from Reuters’ Brad Heath, with the subject line 44.5, asking if the notice of withdrawal was his own decision; Zelinsky forwarded it to the press people in Maryland’s US Attorney’s office

4:38: Zelinsky receives ECF notice that John Crabb filed an appearance in the case

4:46: Zelinsky receives ECF notice of the revised sentencing memo, which was filed at 4:44

5:01: Marcia Murphy, one of the press people in MD USA, responds Zelinsky regarding an email he forwarded from CNN explaining,

Aaron,

I have responded to all the inquiries you forwarded with something similar to the below statement. I tried to make it clear that I was responding on your behalf, so they wouldn’t think the office was preventing you from making a statement. If you get anymore, I will be happy to respond. Have a good evening. Hope you get some rest! Marcy

5:32: Zelinsky receives Marando’s notice of withdrawal from ECF; it was filed at 5:30.

7:08: Michael Cunningham, in the Maryland US Attorney’s Office, emails the NYT story on the Stone prosecutors withdrawing to Zelinsky, saying, “Very proud of you!”

9:10: Zelinsky responds to Cunningham: “Thanks! Just doing what any of us would have done in the circumstance.”

10:03: Lenzner responds to the Nichols and White email. His response is redacted under b5.

10:21: Zelinsky responds to Lenzner, starting, “Thanks. My MOU is certainly only for the Stone case.” The rest is redacted under b5.

10:36: Zelinsky responds to a thread involving Stuart Sears about a panel on Political Prosecutions involving, among others, Jeannie Rhee (the panel would later get delayed until September). The first part is redacted under b5. It finishes, “Thanks for the kind invitation.”

11:26: Zelinsky forwards an email from Erik Prince’s lawyer, Boies Schiller’s Matthew Schwartz to Michael Marando, explaining, FYI I don’t plan to respond. The email itself reads:

Aaron —

I hope all is well. I couldn’t help but notice the article just published in the Wall Street Journal, which suggests that the Department is on the verge of charging Mr. Prince. What’s going on?

 

Earlier This Year, Billy Barr Minimized Threats of Violence against Judges

Billy Barr lies, a lot.

One of the things he has lied about — first anonymously to irresponsible beat reporters and then repeatedly on the record — is that Amy Berman Jackson agreed with his sentencing recommendation in the Roger Stone case. To Steve Inskeep, for example, Barr first lied by hiding that he created a dispute by replacing Jesse Liu with his crony Timothy Shea  so Shea could start disagreeing with prosecutors.

I was the decision maker in that case because there was a dispute. And usually what happens is, disputes, especially in high profile cases, come up to the attorney general. It’s not unusual for there to be a dispute in a high-profile case and for it to be resolved by the attorney general. And what actually happened in that case is that the four prosecutors who had prosecuted the case, the first line, they wanted to recommend a seven to nine year sentence on Stone, and the U.S. attorney felt that was too severe and was not justified under the circumstances.

Barr then claimed that all he did, in replacing the sentencing memo written by prosecutors adhering to DOJ guidelines on calling for the maximum sentence with one calling for far less, was to lay out the relevant information and let Amy Berman Jackson decide.

And what I said was set forth all the relevant information and leave it to the judge’s discretion to select the right decision, which is also not uncommon in the department. And that judge actually gave the sentence that I thought was correct, which was half of what the line prosecutors were recommending. They could not point to any case even remotely close to the seven to nine year sentence. The cases were essentially centered on about two and a half to three years. The judge gave him three years and four months, which I thought was a fair sentence under the circumstances. And it was essentially what I was proposing, or thought was fair. And so the proof of the pudding is in the eating. I made that decision based on what I was felt was fair to that person.

Aaron Zelinsky has made it clear that, in fact, even in the first memo, prosecutors were ordered to downplay certain information.

The more important detail — given that an anti-feminist Trump supporter allegedly targeted the family of federal judge Esther Salas, killing her son and also shooting her spouse — is how he overrode the sentencing recommendation of prosecutors.

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.

ABJ disagreed with both of those changes (though she did rule against the government’s enhancement on scope), taking Credico’s letter asking for leniency into account but also noting that in his grand jury testimony Credico had described being genuinely fearful of Stone’s thuggish buddies, and insisting on the import of the threat against her.

She got to close to the same conclusion as Barr, however, because she believes that sentencing recommendations are too harsh.

On one side, Barr dismissed the import of physical threats against a witness and a judge (while otherwise backing harsh sentencing). On the other side, ABJ insisted in the import of threats to participants in the judicial system, while finding sentencing recommendations generally too harsh.

ABJ in no way agreed with Barr’s logic, in part because she felt it important to punish threats against judges. Barr, however, thought it more important to go easy on Trump’s rat-fucker than reinforce the danger of threats to judges.

Then Trump commuted Stone’s sentence, showing that he doesn’t much give a damn if people threaten witnesses and judges either (unsurprisingly, because he does so much of it himself).

In the wake of the attack on Salas, Barr has taken to the press, proclaiming how serious he thinks such attacks to be.

U.S. Attorney General Bill Barr also offered his condolences to Judge Salas and her family.

“This kind of lawless, evil action carried out against a member of the federal judiciary will not be tolerated, and I have ordered the full resources of the FBI and U.S. Marshals Service to investigate the matter,” Barr said in a statement.

Bullshit.

You don’t get to proclaim how serious you think attacks on judges are if earlier this year you took extraordinary measures to minimize threats on a judge. The actions Barr and Trump took earlier this year sent the message that it doesn’t much matter if someone undermines the entire judicial system by intimidating judges and witnesses — particularly if they’re supporters of Trump.

Billy Barr wants you think he’s a hard ass on such violence. But earlier this year, he took unprecedented action to dismiss the import of violence against judges. No credible journalist should print his statements without explaining that Barr is part of the problem.

HJC Democrats Do Little to Limit Jim Jordan’s Assault on Public Health and Rule of Law

Jim Jordan, a self-purported libertarian, garnered the love of authoritarian Donald Trump by yelling. And yelling. And yelling.

But his normally obtuse manner of engagement didn’t undermine the dual threat he posed in today’s hearing on the ways Billy Barr is politicizing justice. Democrats failed to get him to abide by the committee rule that he wear a mask when not speaking (not even while sitting in close proximity to Jerry Nadler, whose wife is seriously ill). At one point, Debbie Mucarsel-Powell called him out on it. But Republicans on the committee thwarted the means by which Nadler was enforcing the rule — which was to not recognize anyone not wearing a mask — by yielding their time to Jordan.

Jordan used the time he got to attack the integrity of the witnesses unanswered, make repeated false claims about the conduct of the Russian investigation (both pre-Mueller and under him), and softball Barr’s own actions.

There were exceptions, mind you. Joe Neguse brilliantly got Michael Mukasey to talk about how normal it is — and was for him, when he had the job — for Attorneys General to show up for oversight hearings. Neguse then revealed that the last time an Attorney General had as systematically refused to appear for oversight hearings as Barr, it was Bill Barr, in his first tenure in the job. Val Demings got Mukasey to lay out that Barr himself has said the President was inappropriately interfering in investigations, but no one followed up on the significance of that admission. Likewise, after Demings got Mukasey to affirm a statement he made during confirmation to be Attorney General that he was never asked what his politics were, she didn’t follow up and ask whether it would have been appropriate for Mueller to ask prosecutors about their politics, or even for Republicans to ask Zelinsky about the partisan leanings of Mueller prosecutors in this hearing. No one used Jordan’s repeated questioning of Mukasey about the sheer number of unmaskings of Mike Flynn to ask Mukasey to lay out the real national security questions that might elicit such a concerted response to what was apparently one conversation, to say nothing of testing whether Mukasey actually understood what Jordan was misrepresenting to him.

Worse still, no Democrats asked Mukasey questions that would have laid out how complicit he is with some of Trump’s crimes, particularly the politicization of investigations into Turkey.

Then, long after Republicans sand-bagged anti-trust attorney whistleblower John Elias, presenting cherry-picked results of the whistleblower complaint he submitted, Mary Gay Scanlon circled back and laid out how he submitted the complaint, how it got forwarded, and laid out that Office of Professional Responsibility didn’t actually deal with the substance of his complaint, but instead said even if true, it wouldn’t affect the prerogatives of the department. Even there, neither she nor anyone laid out the significance of OPR (which reports to the Attorney General) reviewing the complaint, rather than DOJ IG, which has statutory independence. The way Elias got sandbagged should have become a focus of the hearing, but was not.

And no Democrats corrected the false claims Jordan made, particularly about the Flynn case, such as when he ignored how Bill Priestap got FBI to cue Flynn on what he had said to Sergey Kislyak or the date of notes released today that Sidney Powell had every Republican, including Mukasey, claim came one day before they had to have. No one even asked Mukasey why he was agreeing with Jordan about Obama’s pursuit of Mike Flynn when the prosecution happened under Trump (and recent documents have shown both Peter Strzok and Jim Comey working hard to protect Flynn). Mukasey would have made the perfect foil for such questions. He even could have been asked how often DOJ flip flops on its position from week to week, as Barr has in the Flynn case.

Even worse, no one circled back to get Aaron Zelinsky to correct the premise of Jordan’s questions about whether Amy Berman Jackson’s final sentence accorded with the initial sentencing memo or not, much less his cynical reading of one sentence out of context to falsely portray ABJ as agreeing with DOJ’s second memo.

Finally, Democrats did almost no fact-finding (indeed, it took Jordan to lay out the hierarchy of the politicization of the Stone sentencing). For example, while Eric Swalwell got Zelinsky to agree that the Mueller Report showed gaps in the investigations, he did not invite Zelinsky to describe what specific gaps he would be permitted to identify in the Stone investigation, such as that DOJ was not able to recover any of Stone’s texts from shortly after the election until a year later, in 2017. No one circled back to invite Zelinsky to explain that he had been able to describe Paul Manafort’s testimony implicating Trump directly in Stone’s work because descriptions of that testimony were hidden by DOJ and just got declassified — months after Stone’s sentencing. Hakeem Jeffries got Zelinsky to lay out one thing that prosecutors had been forced to leave out in the initial sentencing memo — Randy Credico’s testimony about how freaked out he was about Stone’s threats — but he left it there, without follow-up to learn if there had been anything more (like Stone’s discussions personally with Trump).

The testimony of the witnesses — especially Donald Ayer, who had to testify over Louie Gohmert’s tapping of a pencil to try to drown out his testimony — was scathing. But the Democratic members of the committee left them hanging out there, which is going to further disincent other witnesses from testifying. This hearing was far too important not to do better prep work to ensure the risks the witnesses took on will be worth it going forward.

Sometime today, Nadler said he’s reconsidering his earlier statement that the committee would not impeach Barr. But unless Democrats seriously up their game — both on preparation and on discipline — then any impeachment of Barr will be as ineffectual of the Ukraine impeachment, if not worse.

Even the First Roger Stone Sentencing Memo Was Politicized

Mueller prosecutor Aaron Zelinsky’s testimony for a House Judiciary Committee hearing on how Trump and Barr are politicizing DOJ has been released. As a number of outlets are reporting, he will testify about how, when Bill Barr flunky Timothy Shea was bending to pressure to “cut Stone a break,” Shea did so because he was “afraid of the President.”

I’m more interested in a few details about the actual drafting of the memos, some of which I’ll return to. The original draft of the sentencing memo was drafted by February 5; it was not only approved, but deemed “strong.”

The prosecution team – which consisted of three career prosecutors in addition to myself – prepared a draft sentencing memorandum reflecting this calculation and recommending a sentence at the low end of the Guidelines range. We sent our draft for review to the leadership of the U.S. Attorney’s Office. We received word back from one of the supervisors on February 5, 2020, that the sentencing memo was strong, and that Stone “deserve[d] every day” of our recommendation.

On February 7, the hierarchy started intervening. In addition to asking to drop the enhancements (which is what the final memo did), DOJ big-wigs also asked prosecutors to take out language about Stone’s conduct.

However, just two days later, I learned that our team was being pressured by the leadership of the U.S. Attorney’s Office not to seek all of the Guidelines enhancements that applied to Stone – that is, to provide an inaccurate Guidelines calculation that would result in a lower sentencing range. In particular, there was pressure not to seek enhancements for Stone’s conduct prior to trial, the content of the threats he made to Credico, and the impact of his obstructive acts on the HPSCI investigation. Failure to seek these enhancements would have been contrary to the record in the case and to the Department’s policy that the government must ensure that the relevant facts and sentencing factors are brought to the court’s attention fully and accurately.

When we pushed back against incorrectly calculating the Guidelines, office leadership asked us instead to agree to recommend an open-ended downward variance from the Guidelines –to say that whatever the Guidelines recommended, Stone should get less. We repeatedly argued that failing to seek all relevant enhancements, or recommending a below-Guidelines sentence without support for doing so, would be inappropriate under DOJ policy and the practice of the D.C. U.S. Attorney’s Office, and that given the nature of Stone’s criminal activity and his wrongful conduct throughout the case, it was not warranted.

In response, we were told by a supervisor that the U.S. Attorney had political reasons for his instructions, which our supervisor agreed was unethical and wrong. However, we were instructed that we should go along with the U.S. Attorney’s instructions, because this case was “not the hill worth dying on” and that we could “lose our jobs” if we did not toe the line.

We responded that cutting a defendant a break because of his relationship to the President undermined the fundamental principles of the Department of Justice, and that we felt that was an important principle to defend.

Meanwhile, senior U.S. Attorney’s Office leadership also communicated an instruction from the acting U.S. Attorney that we remove portions of the sentencing memorandum that described Stone’s conduct. Again, this instruction was inconsistent with the usual practice in the U.S. Attorney’s Office, and with the Department’s policy that attorneys for the government must ensure that relevant facts are brought the attention of the sentencing court fully and accurately.

Ultimately, we refused to modify our memorandum to ask for a substantially lower sentence. Again, I was told that the U.S. Attorney’s instructions had nothing to do with Mr. Stone, the facts of the case, the law, or Department policy. Instead, I was explicitly told that the motivation for changing the sentencing memo was political, and because the U.S. Attorney was “afraid of the President.”

Ultimately, Tim Shea approved the prosecutors’ inclusion of the enhancements, but took out the language about Stone’s conduct.

On Monday, February 10, 2020, after these conversations, I informed leadership at the U.S. Attorney’s Office in D.C. that I would withdraw from the case rather than sign a memo that was the result of wrongful political pressure. I was told that the acting U.S. Attorney was considering our recommendation and that no final decision had been made.

At 7:30PM Monday night, we were informed that we had received approval to file our sentencing memo with a recommendation for a Guidelines sentence, but with the language describing Stone’s conduct removed. We filed the memorandum immediately that evening.

That means even the first sentencing memo — the one that made a strong case for prison time — had been softened by Barr’s flunkies, in some way not laid out in Zelinsky’s opening statement.

Here’s the first sentencing memo. One thing lacking from that memo — but in Zelinsky’s opening statement — pertains to Stone’s discussions directly with Trump.

And that summer, Stone wasn’t just talking to the CEO, Chairman, and Deputy Chairman of the campaign. He was talking directly to then-candidate Trump himself.

On June 14, 2016, the Democratic National Committee (DNC) announced that it had been hacked earlier that spring by the Russian Government. That evening, Stone called Trump, and they spoke on Trump’s personal line. We don’t know what they said.

On August 2, [sic — this should be July 31] Stone again called then-candidate Trump, and the two spoke for approximately ten minutes. Again, we don’t know what was said, but less than an hour after speaking with Trump, Stone emailed an associate of his, Jerome Corsi, to have someone else who was living in London “see Assange.”

Less than two days later, on August 2, 2016, Corsi emailed Stone. Corsi told Stone that, “Word is friend in embassy [Assange] plans 2 more dumps. One “in October” and that “impact planned to be very damaging,” “time to let more than Podesta to be exposed as in bed w enemy if they are not ready to drop HRC. That appears to be the game hackers are now about.”

Around this time, Deputy Campaign Chairman Gates continued to have conversations with Stone about more information that would be coming out from WikiLeaks. Gates was also present for a phone call between Stone and Trump. While Gates couldn’t hear the content of the call, he could hear Stone’s voice on the phone and see his name on the caller ID. Thirty seconds after hanging up the phone with Stone, then-candidate Trump told Gates that there would be more information coming. Trump’s personal lawyer, Michael Cohen, also stated that he was present for a phone call between Trump and Stone, where Stone told Trump that he had just gotten off the phone with Julian Assange and in a couple of days WikiLeaks would release information, and Trump responded, “oh good, alright.” Paul Manafort also stated that he spoke with Trump about Stone’s predictions and his claimed access to WikiLeaks, and that Trump instructed Manafort to stay in touch with Stone.

Surely there’s someone sharp enough on HJC who can note this discrepancy and ask Zelinsky whether there was similar language in the sentencing memo that Tim Shea took out because he’s “afraid of the President.”

Zelinsky knows little about the drafting of the second memo — he describes that he heard about it in the press and the rest of his understanding appears to come from what he was told in the office.

What he was told was that DOJ actually considered attacking its own prosecutors in the memo.

We repeatedly asked to see that new memorandum prior to its filing. Our request was denied. We were not informed about the content or substance of the proposed filing, or even who was writing it. We were told that one potential draft of the filing attacked us personally.

This is akin to the Mike Flynn motion to dismiss, which insinuated that prosecutors had engaged in misconduct. The Attorney General and his flunkies are attacking career officials at DOJ to perform for the President like trained seals.

In the passage where Zelinsky offers his opinion of that second memo he notes that it matched Trump’s tweet of the interim day.

The new filing stated that the first memo did not “accurately reflect” the views of the Department of Justice. This new memo muddled the analysis of the appropriate Guidelines range in ways that were contrary to the record and in conflict with Department policy. The memo said that the Guidelines were “perhaps technically applicable,” but attempted to minimize Stone’s conduct in threatening Credico and cast doubt on the applicability of the resulting enhancement, claiming that the enhancement “typically” did not apply to first time offenders who were not “part of a violent criminal organization.” The memo also stated that Stone’s lies to the Judge about the meaning of the image with the crosshairs and how it came to be posted on Instagram “overlaps to a degree with the offense conduct in this case,” and therefore should not be the basis for an enhancement.

The new memo did not engage with testimony in the record about Credico’s concerns. Nor did the new memo engage with cases cited in the old memo where the obstruction enhancement was applied to non-violent first-time offenders. And the memo provided no analysis for why Stone’s lies to Congress regarding WikiLeaks overlapped at all with his lies two years later to the judge about his posting images of her with a crosshairs. The new memo also stated that the court should give Stone a lower sentence because of his “health,” though it provided no support for that contention, and the Guidelines explicitly discourage downward adjustments on that basis.

Ultimately, the memo argued, Stone deserved at least some time in jail– though it did not give an indication of what was reasonable. All the memo said was that a Guidelines sentence was “excessive and unwarranted,” matching the President’s tweet from that morning calling our recommendation “horrible and very unfair.” [my emphasis]

Zelinsky’s read of that second memo also complains that it left out the record on Randy Credico’s response to Stone’s threats. In his opening statement, he provides this detail, which I don’t recall from the trial (Amy Berman Jackson was able to rely on Credico’s grand jury transcript in her sentencing, because Stone had submitted that with one of his filings).

Then, fearful of what Stone’s associates might do to him, Credico moved out of his house and wore a disguise when going outside.

Credico explains that he grew a thick mustache and wore a cap and sunglasses. Dressing up as John Bolton is indeed a fearful disguise.

The detail that Credico moved out of his house, taken in conjunction with the detail from the Stone warrants that Stone hired a private investigator to find an address to “serve” Credico with a subpoena he never served him, is especially chilling.

Stone hired a PI to hunt Credico down after Credico took measures to hide from him and (Credico has always emphasized) Stone’s violent racist friends.

In addition to making it clear that Shea politicized even the first memo in some way, Zelinsky hints at ways that Stone’s witness tampering was more aggressive than widely understood.

Let’s hope those details come out in tomorrow’s hearing.

A Discussion of a Pardon for Assange Is Why Stone’s Threats against Credico Worked

Given events of the last several days, I want to return to an exchange from Roger Stone trial. It came during Aaron Zelinksy’s questioning of Randy Credico. The exchange started with a discussion of a May 21, 2018 email exchange between Stone and Credico.

It started when Credico told Stone “you should have just been honest with the house intel committee… you opened yourself up to perjury charges like an idiot…”

Stone responded by threatening Margaret Kunstler.

You are so full of shit. You got nothing. Keep running your mouth and I’ll file a bar complaint against your friend Margaret.

Without any more context, Credico responded,

Go right ahead she’s no Assange lawyer never has been…

Several months earlier, Stone had threatened to expose that, in September 2016, Credico had forwarded a Stone request to find out of Assange had any emails relating to Libya and R.K. Paul to Kunstler.

But the questioning in the trial suggested this May 2018 threat related to something else. After getting Credico to read through the May 2018 email, Zelisnky immediately pivoted to something else: how Credico put Stone in touch with Kunstler in 2016 to discuss a pardon for Assange.

Q. What did you write to Mr. Stone on May 21st, 2018?

A. “Go right ahead. She’s not Assange’s lawyer.”

Q. I’m sorry. Below that. Let’s start at the first message, “You should have.” All the way at the bottom.

A. Where? Where am I? Here, “You should have.”

“You should have just been honest with the House Intel Committee. You’ve opened yourself up to perjury charges like an idiot. You have different versions. Maybe you need to get into rehab and get that memory straight.”

Q. What did Mr. Stone respond?

A. I don’t see it here.

Q. Just above that, do you see —

A. Oh, yes. “You are so full of S-H-I-T. You got nothing. Keep running your mouth and I’ll file a bar complaint against your friend Margaret.”

Q. And when he says “your friend Margaret,” who is he referring to?

A. Margaret Ratner Kunstler.

Q. Had you put Mr. Stone directly in touch with Ms. Kunstler after the election?

A. Yes, I did.

Q. And why had you done that?

A. Well, sometime after the election, he wanted me to contact Mrs. Kunstler. He called me up and said that he had spoken to Judge Napolitano about getting Julian Assange a pardon and needed to talk to Mrs. Kunstler about it. So I said, Okay. And I sat on it. And I told her–I told her–she didn’t act on it. And then, eventually, she did, and they had a conversation.

Q. And at this time period, in May of 2018, how did you feel about having put Ms. Kunstler directly in touch with Mr. Stone?

A. I was — I was ashamed of myself that I had done that. I should have never done that, you know. I don’t blame him; I blame me for doing that.

Q. For the remainder of 2018, did you continue to be concerned about Mr. Stone?

A. Remainder of 2018?

Q. Yes, sir.

A. Well, yes, I did.

Q. Why were you concerned about Mr. Stone?

A. Well, this is it, right here. This is the crux of it, is bringing Margaret into this, Mrs. Kunstler into it. That was the crux of it.

The suggestion — at least in the context of this particularly threat — is that it was the late 2016 contact, not the September 2016 one, that Credico primarily worried about.

For what it’s worth, this is not the only time Credico denied that Kunstler was Assange’s lawyer (even though he bragged about that colloquially during the election). During cross-examination from Robert Buschel, Credico dodged mightily, even claiming — in a statement that might put complaints about surveillance of Assange at the Ecuadorian embassy in a different light — that Assange has “about 1,000 lawyers.” Though ultimately Credico said that Kunstler represented Sarah Harrison, not Assange.

Q. Margaret Kunstler is one of WikiLeaks’s lawyers?

A. You’ll let — she’s going to have to describe her role as a — what her role is with WikiLeaks. You know, I don’t — he has — Julian Assange has about 1,000 lawyers. You know, Michael Ratner was one of his lawyers. Alan Dershowitz was one of his lawyers.

Q. Thank you.

A. There are a lot of lawyers. All right? But, that — you know, who’s a lawyer —

THE COURT: The question is, do you know —

THE WITNESS: I don’t consider —

THE COURT: — do you have personal —

THE WITNESS: — her to be his lawyer. I consider her to be — to know people, be part of a team.

BY MR. BUSCHEL: Q. That was —

A. Yes.

Q. — giving legal advice to WikiLeaks?

A. I don’t know if they gave to WikiLeaks or somebody else. I think it was somebody else, Sarah Harrison, maybe, but not — I don’t think she was giving legal advice.

That’s consistent with what Kunstler herself testified, though she also said that she “sometimes represented WikiLeaks.”

Q. Who have you represented who is connected to WikiLeaks?

A. I have represented Sarah Harrison. I still represent Sarah Harrison. She was — did work at WikiLeaks, but she no longer does.

Q. How long had you represented her?

A. For about four and a half years.

Q. How did Ms. Harrison become your client?

A. She became my client because the lawyers representing Mr. Assange decided that it would be helpful to have a second lawyer for Ms. Harrison, and I was asked to do that.

Q. Do you know who the founder of WikiLeaks is?

A. Yes.

Q. Who is it?

A. Julian Assange.

Q. Have you, as an attorney, ever represented Mr. Assange?

A. Only to the extent that I sometimes represented WikiLeaks, so it kind of overlaps. But technically, I don’t know.

Q. Have you ever spoken with Mr. Assange?

A. Yes.

Q. How often have you spoken with him?

A. I think about a total of under ten times.

Q. When is the last time that you have spoken with Mr. Assange, if you can remember?

A. Probably the end of 1918.

Q. I’m sorry, do you mean 2018?

A. Yes, I’m sorry, 2018.

So something about what happened in late 2016 served as a point of leverage over Credico.

As I have noted, Stone used Credico’s shared support for a pardon for Assange as leverage through early January 2018, by which point Stone’s buddy’s government had charged Assange as part of a bid to stave off an Ecuadorian-Russian exfiltration attempt.

Right in the middle of Credico’s claims about what WikiLeaks was up to in early October 2016, for example, on October 3, he pushed Stone to get Trump to back asylum for Assange.

Then there are the exchanges on the topic that MoJo reported on a year ago from early January 2018.

In the wake of Stone’s successful effort to get Credico to plead the Fifth, the President’s rat-fucker suggested that if Credico publicly revealed that he couldn’t be Stone’s back channel, it might screw up efforts he claimed he was making to get Assange a pardon.

They resumed the discussion about a pardon several days later, when Stone sent Credico Jerome Corsi’s story on Ecuador’s grant of a diplomatic passport to Assange.

Remarkably, given what has transpired since, Credico informed Stone that the British government was not honoring the diplomatic passport, observed that “Infowars ” — which in this case would be Corsi — “doesn’t know what they’re talking about,” then taunted, ‘Maybe your back Channel knows more than I do.”

The current operative story, of course, is that Corsi was the backchannel, though Credico wouldn’t have known that at the time.

It’s certainly possible that Stone was blowing smoke, raising something he knew Credico cared deeply about, pardoning Assange, to get him to toe the line. It’s likely, too, he was just taking reporting on efforts made in late 2017 to liberate Assange and claiming credit for it.

But at the very least, it shows that Stone used a pardon for Assange — something Credico still spends a lot of time pushing — as leverage to try to get Credico to sustain his cover story. It doesn’t explain why that point of leverage was so effective, though.

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

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.