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In a Totally Unresponsive Response to Reggie Walton’s Order, Kerri Kupec Does Not Deny that Bill Barr Misrepresented the Mueller Report

Yesterday, Bill Barr’s flack Kerri Kupec issued a statement purporting to rebut what Reggie Walton (whom she didn’t name) wrote in his scathing opinion suggesting that Barr’s bad faith misrepresentations of the Mueller Report meant he couldn’t trust DOJ’s representations now about the FOIA redactions in it.

Yesterday afternoon, a district court issued an order on the narrow legal question of whether it should review the unredacted Special Counsel’s confidential report to confirm the report had been appropriately redacted under the Freedom of Information Act. In the course of deciding that it would review the unredacted report, the court made a series of assertions about public statements the Attorney General made nearly a year ago. The court’s assertions were contrary to the facts. The original redactions in the public report were made by Department attorneys, in consultation with senior members of Special Counsel Mueller’s team, prosecutors in the U.S. Attorney’s Office, and members of the Intelligence Community. In response to FOIA requests, the entire report was then reviewed by career attorneys, including different career attorneys with expertise in FOIA cases–a process in which the Attorney General played no role. There is no basis to question the work or good faith of any of these career Department lawyers. The Department stands by statements and efforts to provide as much transparency as possible in connection with the Special Counsel’s confidential report. [my emphasis]

It is being treated as a good faith response to what Walton wrote.

Except it’s not. It’s entirely off point.

Walton’s explanation for why he will conduct his own review of the the Mueller Report redactions doesn’t focus on the FOIA response itself. He addresses what happened before the redacted version of the Mueller Report was first released, before the FOIA review actually started.

The Court has grave concerns about the objectivity of the process that preceded the public release of the redacted version of the Mueller Report and its impacts on the Department’s subsequent justifications that its redactions of the Mueller Report are authorized by the FOIA.

[snip]

the Court is troubled by his hurried release of his March 24, 2019 letter well in advance of when the redacted version of the Mueller Report was ultimately made available to the public. The speed by which Attorney General Barr released to the public the summary of Special Counsel Mueller’s principal conclusions, coupled with the fact that Attorney General Barr failed to provide a thorough representation of the findings set forth in the Mueller Report, causes the Court to question whether Attorney General Barr’s intent was to create a one-sided narrative about the Mueller Report—a narrative that is clearly in some respects substantively at odds with the redacted version of the Mueller Report. [my emphasis]

That process preceded the FOIA response entirely, so the part of Kupec’s statement talking about the “good faith” of the “career Department lawyers” (of the sort that Barr is undermining with glee elsewhere) is irrelevant. And Kupec’s claim that Barr was not involved in that later process is also unrelated to whether he was involved in the initial redaction process, a question she doesn’t address.

As Walton notes, the redactions in the FOIA release exactly match those in the initial release, though the justifications are entirely different, which may mean those career attorneys had to come up with exemptions to match the outcome of the process in which Barr was involved.

[D]espite the Department’s representation that it “review[ed] the full unredacted [Mueller] Report for disclosure pursuant to the FOIA,” Brinkmann Decl. ¶ 11, the Court cannot ignore that the Department’s withholdings under the FOIA exemptions mirror the redactions made pursuant to Attorney General Barr’s guidance, which cause the Court to question whether the redactions are self-serving and were made to support, or at the very least to not undermine, Attorney General Barr’s public statements and whether the Department engaged in post-hoc rationalization to justify Attorney General Barr’s positions.

Kupec doesn’t even try to address the central claim of Walton’s opinion: that Barr’s public statements — about whether the report showed “coordination” or “collusion,” and about whether it showed Trump obstructed the investigation — conflict with what it already evident in the unredacted parts of the redacted Report.

As noted earlier, the Court has reviewed the redacted version of the Mueller Report, Attorney General Barr’s representations made during his April 18, 2019 press conference, and Attorney General Barr’s April 18, 2019 letter. And, the Court cannot reconcile certain public representations made by Attorney General Barr with the findings in the Mueller Report. The inconsistencies between Attorney General Barr’s statements, made at a time when the public did not have access to the redacted version of the Mueller Report to assess the veracity of his statements, and portions of the redacted version of the Mueller Report that conflict with those statements cause the Court to seriously question whether Attorney General Barr made a calculated attempt to influence public discourse about the Mueller Report in favor of President Trump despite certain findings in the redacted version of the Mueller Report to the contrary.

These circumstances generally, and Attorney General Barr’s lack of candor specifically, call into question Attorney General Barr’s credibility and in turn, the Department’s representation that “all of the information redacted from the version of the [Mueller] Report released by [ ] Attorney General [Barr]” is protected from disclosure by its claimed FOIA exemptions. Brinkmann Decl. ¶ 11 (emphasis added). In the Court’s view, Attorney General Barr’s representation that the Mueller Report would be “subject only to those redactions required by law or by compelling law enforcement, national security, or personal privacy interests” cannot be credited without the Court’s independent verification in light of Attorney General Barr’s conduct and misleading public statements about the findings in the Mueller Report, id., Ex. 7 (April 18, 2019 Letter) at 3, and it would be disingenuous for the Court to conclude that the redactions of the Mueller Report pursuant to the FOIA are not tainted by Attorney General Barr’s actions and representations.

That is, Walton judges that Barr’s lies about the Mueller Report tainted the subsequent process, no matter how many career Department attorneys were involved.

Significantly, Kupec offers no rebuttal — none — to Walton’s judgement that Barr misrepresented what the Report showed.

As I have noted, it’s unlikely Walton will release much more than was originally released (though he will surely be prepared to release all of the Roger Stone related materials once Amy Berman Jackson lifts that gag). But the three or four places where he might all undermine the tales that Barr told about the Report. Unsealing those redactions would:

  • Explain how the President and his son failed to cooperate
  • Confirm that his son (and possibly his son-in-law) was a subject of the investigation
  • Reveal how several of Trump’s flunkies told concerted lies before they decided to start telling the truth
  • Show why Mueller seriously considered indicting Stone — and possibly even the President himself — for their actions encouraging the hack-and-leak operation

Moreover, on one key point — the redactions for privacy that in the FOIA review were exempted under b6 and b7C — Barr’s initial claims about redactions are an obvious lie: he said those redactions hid “information that would unduly infringe on the personal privacy and reputational interests of peripheral third parties.” Among the people the initial review treated as “peripheral third parties” are Donald Trump Jr. and Deputy National Security Advisor KT McFarland; in Judge Jackson’s review in the Roger Stone trial, redactions protecting privacy and reputational interests even included the President himself.

Importantly, Walton’s in camera review will be critical for the next step, which will be a review of DOJ’s unprecedented b5 exemptions, which already show abundant evidence of politicization (and in which there is good reason to believe Barr has been involved). By reading the declination decisions pertaining to people like KT McFarland, Walton will understand how improper it is to redact her later 302s while releasing her earlier, deceitful ones.

If Kupec would like to do her job rather than play a key role in Barr’s ongoing propaganda effort about the Report, she can explain what role Barr had in that initial review, something not addressed in her off point comment. Even better, she can explain why the redactions on the underlying materials like 302s are so obviously politicized.

But given that she’s not even willing to deny that Barr misrepresented the initial report, I doubt she’ll issue any statement that offers useful commentary on this process.

Mueller Told Trump He Was Being Investigated for Hacking, Wire Fraud, and Mail Fraud

Having followed Carol Leonnig’s reporting since the Scooter Libby case, I’m thrilled she finally wrote — with Philip Rucker — a book, A Very Stable Genius. She is one of the reporters who mixes an ability to read public records with very good sourcing. And while attentive readers of this site will be familiar with much of the reporting in Stable Genius, there are tidbits that make the book well worth your time.

One example is a description of the discussions between Trump’s lawyers and Mueller’s team from summer 2018. In the middle of a description of talks between Jane Raskin and James Quarles, the book reveals that Quarles told Trump’s team that the President was being investigated for hacking, wire fraud, and mail fraud.

In early September 2018, Trump’s lawyers finally reached a conclusion with Mueller over his request for a presidential interview. Trump’s lawyers had argued to prosecutors all summer why they didn’t believe it was necessary to provide the president’s responses to their questions and tried to appear open to a possible compromise for him to provide limited answers. The discussion took the form of a volley of emails and memos between Trump’s lawyer Jane Raskin and her old law firm friend James Quarles.

Some of the correspondence was rudimentary. The Trump lawyers wanted to know what criminal statutes Mueller’s team was investigating as possible crimes and why this would require answers from the president. Raskin’s shorthand version was something to the effect of “You have told us our client is the subject of the investigation and you won’t even tell us what you are looking at.” It took roughly three weeks to get an answer to that question. Quarles responded that the statutes governed the criminal acts of hacking, under the Computer Fraud and Abuse Act, as well as the very general crimes of wire fraud and mail fraud. Trump’s lawyers shrugged. That’s it? That’s useless, they said to each other. They were certain the president hadn’t engaged in any of those crimes.

Mueller’s team would be silent for long stretches, especially later in the summer. At one point, Quarles told the Trump lawyers that it was important to ask about the president’s view of events surrounding his pursuit of the Trump Tower Moscow project, as well as his role in describing Donald Trump Jr.’s 2016 meeting with a Russian lawyer who was expected to provide damaging information on Clinton. Raskin and her colleagues had a shared reaction: “What conceivably is criminal about that? Why do you want to ask about that?” The president’s team also argued that prosecutors were not entitled to question Trump on decisions he made as president because anything prosecutors needed to know from Trump’s time in office could be obtained from the thousands of documents and dozens of witnesses the White House had helped provide. [my emphasis]

That’s a fairly surprising detail!

There’s a heavily redacted section of the Mueller Report that explains why they didn’t charge someone under CFAA (PDF 187) that might pertain to Don Jr’s use of a password to access a WikiLeaks related website before it was public, or might pertain to some skiddies who tried to access Guccifer 2.0’s social media accounts who were investigated in Philadelphia.

More interesting is the 3-page redaction, starting at PDF 186 in the FOIA version, that footnote 1278 makes clear pertains to the publishing of post-hacking emails. That may well related exclusively to WikiLeaks, but it was redacted under exemptions tied to Roger Stone’s case.

And filings in the Roger Stone case — most explicitly, this opinion from Amy Berman Jackson — make it clear that Mueller’s team had shown probable cause to obtain warrants against Stone including CFAA and wire fraud charges as late as August 28, 2018. (The numbering Stone’s lawyers used does not match the timeline, so search warrant 18 is not the last; see footnote 2 of the opinion for the dates of the warrants, which I’ve tracked in the Mueller warrant docket.)

Fourteen of the eighteen warrant applications sought authorization to search for evidence of, among other crimes, the intentional unauthorized access of computers in violation of 18 U.S.C. § 1030. See SW1-SW13, SW18.

[snip]

The fourteen affidavits also sought to search for evidence of violations of other crimes, including 18 U.S.C. § 2 (aiding and abetting), 18 U.S.C. § 3 (accessory after the fact), 18 U.S.C. § 4 (misprison of  a felony), 18 U.S.C. § 371 (conspiracy), 18 U.S.C. § 1001 (false statements), 18 U.S.C. § 1505 (obstruction of justice); 18 U.S.C. § 1512 (tampering with a witness), 18 U.S.C. § 1513 (retaliating against a witness), 18 U.S.C. § 1343 (wire fraud), 18 U.S.C. § 1349 (attempt and conspiracy to commit wire fraud), and 52 U.S.C. § 30121 (foreign contributions ban).

This accords with the timing laid out in Stable Genius: during the period when Quarles and Raskin discussed possible charges against Trump, Stone was still under investigation for hacking or abetting hacks after the fact. And we know from public records that Stone’s efforts to optimize the WikiLeaks releases occurred in close coordination with Trump himself.

This detail may take on renewed import given Reggie Walton’s decision to review the redaction decisions on the Mueller Report himself. DOJ institutionally redacted some details — and sustained those redactions even when Stone asked for an unredacted copy of the Mueller Report — to protect Trump’s privacy.

I still maintain that Walton will release little more than what has already been released, if at all (pending the lifting of the Stone gag, at which point Walton will release everything currently redacted under it).

But if there’s a passage that explains why Mueller considered charging Stone — and possibly even Trump! — with CFAA charges for so long, which would, in turn, explain why Trump worked so hard to obstruct the investigation, Walton might find a way to release it.

Questioning Bill Barr’s “No Collusion” Propaganda, Reggie Walton Orders an In Camera Review of Mueller Report

Before the Trump Administration started really politicizing justice, Reggie Walton had already proven himself willing to stand up to the Executive Branch. During the George W Bush Administration, he presided over the Scooter Libby trial, never shirking from attacks from the defendant. And in the first year of the Obama Administration, as presiding FISA Judge, he shut down parts of the phone dragnet and the entire Internet dragnet because they were so far out of compliance with court orders.

And Walton had already showed his impatience with Trump’s stunts, most notably when presiding over a FOIA for materials related to the firing of Andrew McCabe. He finally forced DOJ to give the former Deputy FBI Director a prosecution declination so he could proceed with the FOIA lawsuit.

So it’s unsurprising he’s unpersuaded by DOJ’s request to dismiss the EPIC/BuzzFeed lawsuits over their FOIAs to liberate the Mueller Report, and has ordered DOJ to provide him a copy of the Report before the end of the month to do an in camera review of redactions in it.

The Court has grave concerns about the objectivity of the process that preceded the public release of the redacted version of the Mueller Report and its impacts on the Department’s subsequent justifications that its redactions of the Mueller Report are authorized by the FOIA. For the reasons set forth below, the Court shares the plaintiffs’ concern that the Department “dubious[ly] handl[ed] [ ] the public release of the Mueller Report.” EPIC’s Mem. at 40; see also id. (“Attorney General[] [Barr’s] attempts to spin the findings and conclusions of the [Mueller] Report have been challenged publicly by the author of the [Mueller] Report. [ ] Attorney[] General[] [Barr’s] characterization of the [Mueller] [R]eport has also been contradicted directly by the content of the [Mueller] Report.”); Leopold Pls.’ Mem. at 9 (“[T]here have been serious and specific accusations by other government officials about improprieties in the [Department’s] handling and characterization of the [Mueller] Report[.]”). Accordingly, the Court concludes that it must conduct an in camera review of the unredacted version of the Mueller Report to assess de novo the applicability of the particular exemptions claimed by the Department for withholding information in the Mueller Report pursuant to the FOIA.

To justify this review, Walton cites Barr’s silence about the multiple links between Trump and Russians and about the reason why Mueller didn’t make a decision about charging Trump with obstruction.

Special Counsel Mueller himself took exception to Attorney General Barr’s March 24, 2019 letter, stating that Attorney General Barr “did not fully capture the context, nature, and substance of th[e] [Special Counsel’s] Office’s work and conclusions,” EPIC’s Mot., Ex. 4 (March 27, 2019 Letter) at 1, and a review of the redacted version of the Mueller Report by the Court results in the Court’s concurrence with Special Counsel Mueller’s assessment that Attorney General Barr distorted the findings in the Mueller Report. Specifically, Attorney General Barr’s summary failed to indicate that Special Counsel Mueller “identified multiple contacts—‘links,’ in the words of the Appointment Order—between Trump [c]ampaign officials and individuals with ties to the Russian government,” Def.’s Mot., Ex. D (Mueller Report – Volume I) at 66, and that Special Counsel Mueller only concluded that the investigation did not establish that “these contacts involved or resulted in coordination or a conspiracy with the Trump [c]ampaign and Russia, including with respect to Russia providing assistance to the [Trump] [c]ampaign in exchange for any sort of favorable treatment in the future,” because coordination—the term that appears in the Appointment Order—“does not have a settled definition in federal criminal law,” id., Ex. D (Mueller Report – Volume I) at 2, 66. Attorney General Barr also failed to disclose to the American public that, with respect to Special Counsel Mueller’s investigation into whether President Trump obstructed justice, Special Counsel Mueller “determined not to make a traditional prosecutorial judgment[,] . . . recogniz[ing] that a federal criminal accusation against a sitting [p]resident would place burdens on the [p]resident’s capacity to govern and potentially preempt constitutional processes for addressing presidential misconduct,” but nevertheless declared that

if [he] had confidence after a thorough investigation of the facts that [ ] President [Trump] clearly did not commit obstruction of justice, [he] would so state. Based on the facts and the applicable legal standards, however, [he] [is] unable to reach that judgment. The evidence [he] obtained about [ ] President[] [Trump’s] actions and intent presents difficult issues that prevent [him] from conclusively determining that no criminal conduct occurred. Accordingly, while th[e] [Mueller] [R]eport does not conclude that [ ] President [Trump] committed a crime, it also does not exonerate him.

Id., Ex. D (Mueller Report – Volume II) at 1–2.

Walton further cites claims that Barr made in his April 18 press conference and letter — where he specifically claimed Mueller had found no evidence of collusion — to judge that Barr lacked candor in his statements about the report.

Similar statements were made in his April 18, 2019 letter. See Def.’s Mot., Ex. 7 (April 18, 2019 Letter) at 1–3 (stating that Special Counsel Mueller’s “bottom-line conclusion on the question of so-called ‘collusion’ [was] [that] [t]he investigation did not establish that members of the Trump [c]ampaign conspired or coordinated with the Russian government in its election interference activities” and that “the evidence set forth in the [ ] [Mueller] [R]eport was [not] sufficient to establish that [ ] President [Trump] committed an obstruction-of-justice offense”).

As noted earlier, the Court has reviewed the redacted version of the Mueller Report, Attorney General Barr’s representations made during his April 18, 2019 press conference, and Attorney General Barr’s April 18, 2019 letter. And, the Court cannot reconcile certain public representations made by Attorney General Barr with the findings in the Mueller Report. The inconsistencies between Attorney General Barr’s statements, made at a time when the public did not have access to the redacted version of the Mueller Report to assess the veracity of his statements, and portions of the redacted version of the Mueller Report that conflict with those statements cause the Court to seriously question whether Attorney General Barr made a calculated attempt to influence public discourse about the Mueller Report in favor of President Trump despite certain findings in the redacted version of the Mueller Report to the contrary.

[snip]

Here, although it is with great consternation, true to the oath that the undersigned took upon becoming a federal judge, and the need for the American public to have faith in the judicial process, considering the record in this case, the Court must conclude that the actions of Attorney General Barr and his representations about the Mueller Report preclude the Court’s acceptance of the validity of the Department’s redactions without its independent verification.

Walton doesn’t say it explicitly, but he seems to believe what the unredacted portions of the report show amount to “collusion,” the kind of collusion Trump would want to and did (and still is) covering up.

Be warned, however, that this review is not going to lead to big revelations in the short term.

There are several reasons for that. Many of the most substantive redactions pertain to the Internet Research Agency and Roger Stone cases. Gags remain on both. While Walton is not an Article II pushover, he does take national security claims very seriously, and so should be expected to defer to DOJ’s judgments about those redactions.

Where this ruling may matter, though, is in four areas:

  • DOJ hid the circumstances of how both Trump and Don Jr managed to avoid testifying under a grand jury redaction. Walton may judge that these discussions were not truly grand jury materials.
  • DOJ is currently hiding details of people — like KT McFarland — who lied, but then cleaned up their story (Sam Clovis is another person this may be true of). There’s no reason someone as senior as McFarland should have her lies protected. All the more so, because DOJ is withholding some of the 302s that show her lies. So Walton may release some of this information.
  • Because Walton will have already read the Stone material — that part that most implicates Trump — by the time Judge Amy Berman Jackson releases the gag in that case, he will have a view on what would still need to be redacted. That may mean more of it will be released quickly than otherwise might happen.
  • In very short order, the two sides in this case will start arguing over DOJ’s withholding of 302s under very aggressive b5 claims. These claims, unlike most of the redactions in the Mueller Report, are substantively bogus and in many ways serve to cover up the details of Trump’s activities. While this won’t happen in the near term, I expect this ruling will serve as the basis for a similar in camera review on 302s down the road.

Update: Here’s the FOIA version of the Mueller Report; here is Volume II. The b1 and b3 redactions won’t be touched in this review. Where Walton might order releases are the b6, b7C redactions. I expect Walton may order these redactions removed, which show that Don Jr and someone else was investigated.

Update: I did a post last August about what Walton might do with these redactions. It holds up, IMO.

Jack Burkman and Jacob Wohl’s Pathetic Disinformation May Finally Matter

Yesterday, Jack Burkman (he of the press conference with his fly down) and Jacob Wohl (he of the precocious financial fraud) had a press conference at CPAC yesterday to spew disinformation.

Again.

They claimed they were releasing all sealed documents from the Roger Stone trial, not just juror questionnaires, but also grand jury testimony. Their statements were inconsistent about whether, by “sealed documents,” they meant everything that had been loaded onto the docket (which might include just Steve Bannon and Randy Credico’s grand jury transcript, both of which were litigated before the trial), or everything released in discovery to Stone.

They purported to be journalists exposing a miscarriage of justice of an American hero, by which they meant Roger Stone.

They were given to us, they did not come from Roger Stone, they did not come from anyone on his defense team, we’ve never met Roger Stone. … What happened was court packing.

They claimed they had a journalistic duty to release these documents to show a systematic conspiracy, led by Judge Amy Berman Jackson, against Stone, to pack the jury. They claimed, “Not a single juror” on Stone’s trial, “watches Fox News,” that they are instead “religious Rachel Maddow viewers.” They also claimed one could never have a lawyer on a jury.

The documents released (which I won’t link) demonstrated, once again, that their implementation was embarrassingly shoddy and their claims were false. All they released were juror questionnaires, and they didn’t release the questionnaires all 12 jurors. They uploaded the questionnaire of one juror twice (making ten total). Those jurors described their media diet this way:

  • occasionally a CNN headline
  • DC Fox 5 News
  • Fox 5 News
  • New York Times, established news sources that appear in my Google Feed (WSJ, Washington Post, etc.)
  • Wall Street Journal
  • NYT, Washington Post, NPR
  • Washington Post, NPR
  • Washington Post, Facebook, Twitter
  • Washington Post, PBS Newswire, NPR
  • Washington Post, Apple News Service, Twitter, Facebook, New York Times, CNN, Politico, The Hill, CBS News, “not regularly, but CNN Shows (Anderson Cooper), MSNBC — Rachel Maddow/Chris Hayes

Admittedly, local Fox News is not the same thing as Fox News Channel, but at least two of the jurors listed it as their primary news diet, a refutation of Wohl and Burkman’s entire premise.

The last bullet — the only one specifically naming Rachel Maddow — is from the foreperson, the woman on whose selection Stone based his bid for a new trial (and for more juror information on which Mike Cernovich is attempting to intervene in Stone’s case). But all the foreperson’s questionnaire shows is that Stone had notice of her liberal news watching diet during voir dire, and his team didn’t choose to disqualify her. That is, they are to blame for her presence on the jury, not ABJ or the DC District Court or anyone but Stone.

Likewise, just four or five jurors said they had heard anything about Stone’s case.  Three who had seen coverage of Stone had generally remembered his arrest (which, given the right wing propaganda suggesting he was ill-treated, would have been helpful to Stone). Again, the foreperson is the one person who commented negatively, describing that he “is accused of inappropriate contact Russian officials in the effort of helping Mr. Trump’s campaign for President.” She is also the person who had the most family members — a niece and a brother — who had been prosecuted for a crime.

Wohl and Burkman claimed that the jury was packed with CIA people and lawyers. In reality, that consisted of two people (including the foreperson) who each said they had a single friend who worked for the FBI, one person whose father had worked for CIA for 2-3 years in the 1960s before the juror was born, and one person whose son is in the Coast Guard.

This is the frothy right’s idea of a Deep State plot against Roger Stone.

Wohl and Burkman did not mention that the juror with the most direct, high level current political connection has a spouse who appears to work for a conservative Republican Senator.

In short, like all their hoaxes, this one was badly executed and based on lies.

But the poor execution may be the downfall. The released documents don’t actually reveal anything beyond what had already been identified during the initial frenzy against he foreperson (and since the foreperson gave credible responses in the hearing, backed by the testimony of two other jurors who said she was one of the last jurors to vote to convict). But Wohl and Burkman failed to redact the handwritten notes about a potential juror on one of the questionnaires.

This is going to make it easier to identify the potential sources for this document, something that ABJ was already trying to do in the hearing earlier this week.

There is a concerted effort on the part of the frothy right to violate every single norm of jury service, all to discredit a slam-dunk case against Roger Stone that even Bill Barr said was righteous. And for once these shithole hoaxsters may have done some good — in the form of helping the FBI figure out who’s behind it all.

The Frothy Right Is Complaining that Amy Berman Jackson Sentenced Roger Stone to 57% of Lower Guidelines

In the aftermath of the news of Roger Stone’s sentence yesterday, some of DOJ’s beat journalists are doing irresponsible pieces giving Bill Barr’s close associates anonymity to lie, with no pushback, about what happened.

Another Justice Department official called Stone’s sentence a “vindication” of the attorney general’s decision last week to insert himself into the process, calling for a revised sentencing memorandum that undercut the line prosecutors’ prior recommendation of seven to nine years in prison. Four prosecutors quit the Stone case over the disagreement, and current and former Justice Department officials grew alarmed Trump was short-circuiting the law enforcement agency’s traditional independence. More than 2,600 former employees have signed onto a letter calling on Barr to resign over his handling of the matter.

Judge Amy Berman Jackson in no way vindicated Bill Barr’s intervention, and any experienced DOJ reporter passing on the claim unchallenged is doing their readers a gross disservice.

Worse still, confusion about what happened yesterday has permitted the frothy right to attack ABJ for what was a lenient sentence.

So I’d like to show how ABJ came up with her sentence. It shows that ABJ sentenced Stone to 57% of the sentence she judged the guidelines call for.

Probation Recommendation: 70-87 months

Between the original sentencing memo and Stone’s own memo, we can obtain what probation initially recommended. It started with a base offense level for Stone’s Obstruction, False Statements, and Witness Tampering of 14 (which would result in a 15 to 21 month guidelines sentence). Then it added four enhancements (Stone even cites the paragraphs of the presentencing report where Probation recommended these enhancements). First, it called for an 8-level enhancement under U.S.S.G. §2J1.2(b)(1)(B), which reads (PDF 243):

If the offense involved causing or threatening to cause physical injury to a person, or property damage, in order to obstruct the administration of justice, increase by 8 levels.

Next, it called for a 3-level enhancement for substantial interference with the administration of justice under U.S.S.G. §2J1.2(b)(1)(2) (meaning, the obstruction worked):

If the offense resulted in substantial interference with the administration of justice, increase by 3 levels.

Probation called for a 2-level enhancement under U.S.S.G. §2J1.2(b)(3)(C) for the extensive nature of Stone’s obstruction:

If the offense … (C) was otherwise extensive in scope, planning, or preparation, increase by 2 levels.

Given a footnote in Stone’s memo (and something ABJ said in the hearing yesterday), it appears that the government objected to the original January 16 recommendation from the Probation office and convinced them to apply this enhancement.

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

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

Finally, it called for a 2-level enhancement U.S.S.G. §3C1.1 2 for obstruction of this proceeding (meaning, his prosecution for the original obstruction charge; this is at PDF 367).

If (1) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (2) the obstructive conduct related to (A) the defendant’s offense of conviction and any relevant conduct; or (B) a closely related offense, increase the offense level by 2 levels.

The sentencing table can be found at PDF 415. It provides a range of 87 to 108 months for a first time offender, as Stone is.

According to the transcript, however, the final recommendation did not apply the 2-level enhancement for the extensive obstruction. That provides a range for 70-87 months.

Prosecution Recommendation: 87-108 months

In May 2017, Jeff Sessions issued an order stating that “prosecutors should charge and pursue the most serious, readily provable offense,” which are, “by definition … those that carry the most substantial guidelines sentence.” It also stated that, “In most cases, recommending a sentence within the advisory guideline range will be appropriate.”

ABJ noted this policy yesterday in the sentencing hearing.

And that’s what the prosecution team did — recommend the same 87 to 108 months the Probation Office came up with. They justified each of the enhancements in their sentencing memo.

They argued the witness tampering enhancement was justified — even in spite of Randy Credico’s letter asking for leniency — because Credico still expressed fear that Stone’s associates might respond to his threats by attacking him, and because the threat itself triggers the enhancement.

Pursuant to U.S.S.G. § 2J1.2(b)(1)(B), eight levels are added because the offense “involved causing or threatening to cause physical injury to a person, or property damage, in order to obstruct the administration of justice.” As detailed above, as part of Stone’s campaign to keep Credico silent, Stone told Credico in writing, “Prepare to die, cocksucker.” Stone also threatened (again in writing) to “take that dog away from you.” Stone may point to the letter submitted by Credico and argue that he did not have a serious plan to harm Credico or that Credico did not seriously believe that Stone would follow through on his threats. 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.” Tr. 11/8/19, at 795.

In any event, it is the threat itself, not the likelihood of carrying out the threat, that triggers the enhancement. Endeavoring to tamper with a witness can involve a wide range of conduct. This enhancement recognizes that when the conduct involves threats of injury or property damage, rather than simple persuasion for example, the base offense level does not accurately capture the seriousness of the crime. To apply the enhancement, there is no “additional ‘seriousness’ requirement beyond the fact of a violent threat.” See United States v. Plumley, 207 F.3d 1086, 1089-1091 (8th Cir. 2000) (applying § 2J1.2(b)(1)(B) to a defendant who told coconspirators to “‘keep our mouth shut,’ because if anyone cooperated with the police he would ‘kick our ass’”); United States v. Bakhtairi, 714 F.3d 1057, 1061 (8th Cir. 2013) (holding there was no seriousness requirement and applying § 2J1.2(b)(1) to a defendant who wrote a menacing email, displayed a loaded rifle to a law partner, and doctored photographs of witnesses children to “add . . . crosshairs”); United States v. Smith, 387 F.3d 826, (9th Cir. 2004) (applying § 2J1.2(b)(1)(B) to a defendant who threatened to kill a witness and “kick [her] ass,” and noting that § 2J1.2(b)(1) does not contain a “seriousness requirement”).

Prosecutors argued the 3-level enhancement for substantial interference was justified because Stone’s obstruction led HPSCI not to call Jerome Corsi and not to subpoena Corsi and Credico for documents, both of which led to errors in the HPSCI report.

Pursuant to U.S.S.G. § 2J1.2(b)(2), three levels are added because the offense resulted in substantial interference with the administration of justice. Because of Stone’s conduct, the House Intelligence Committee never received important documents, never heard from Credico (who pled the Fifth), and never heard from Corsi (who was never identified to the Committee as the real “back-channel” that Stone had referenced in August 2016). The Committee’s report even wrongly stated that there was no evidence contradicting Stone’s claim that all his information about WikiLeaks was from publicly available sources.

Prosecutors argued that the multi-year effort Stone engaged in merited the 2-level enhancement because of his obstruction’s extensive scope.

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. See, e.g., United States v. Petruk, 836 F.3d 974 (8th Cir. 2016) (enlisting a friend to create a false alibi and scripting a false confession); United States v. Jensen, 248 Fed. Appx. 849 (10th Cir. 2007) (giving advance notice of testing and falsifying results of tests).

Finally, prosecutors argued for a 2-level enhancement for all the violations of ABJ’s orders during the trial, notably his implicit threat against her.

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).

Prosecutors then showed how, under the guidelines, this adds up to an 87 to 108 month sentence.

Accordingly, Stone’s total offense level is 29 (14 + 8 + 3 + 2 + 2), and his Criminal History Category is I. His Guidelines Range is therefore 87-108 months.

Barr Recommendation: 30-46 months

In addition to violating DOJ policy of not deviating downwards from the Probation recommendation, the memo submitted under John Crabb Jr’s name (which his statements yesterday strongly indicate he did not write) offered little justification for why it was deviating from the Probation Office recommendation and never ultimately made a recommendation. But the memo suggested two of the enhancements — the 8-level enhancement for making a threat, and the 2-level enhancement for threatening ABJ — should not apply.

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.

It pointed to Credico’s letter to justify ignoring it.

First, as noted above, the most serious sentencing enhancement in this case—the eightlevel enhancement under Section 2J1.2(b)(1)(B) for “threatening to cause physical injury”—has been disputed by the victim of that threat, Randy Credico, who asserts that he did not perceive a genuine threat from the defendant but rather stated that “I never in any way felt that Stone himself posed a direct physical threat to me or my dog.” (ECF No. 273). While Mr. Credico’s subjective beliefs are not dispositive as to this enhancement, the Court may consider them when assessing the impact of applying the enhancement – particularly given the significant impact that the enhancement has on the defendant’s total Guidelines range.

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 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

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

Probably the only part of this memo that really affected ABJ’s sentence was a discussion of avoiding disparities in sentencing, where it mentions Scooter Libby’s 30 month sentence (and Manafort’s obstruction-related sentence, by ABJ, which was just one part of her 7.5 year sentence of him).

Third, the Court must “avoid unwarranted sentencing disparities.” See 18 U.S.C. § 3553(a)(6). In its prior filing, the Government directed the Court’s attention to a non-exhaustive list of witness tampering, false statement, and obstruction of justice cases that resulted in sentences of thirty months (Libby), thirteen months (Manafort), six months (Lavelle), twelve months (Hansen), and thirty-five months (Solofa). While these cases involved lesser offense conduct, the sentences imposed constituted a fraction of the penalty suggested by the advisory Guidelines in this case.

In comments to Lindsey Graham, Bill Barr said he thought the guidelines should say 3.5-4.5 years, slightly more than the guidelines if the witness tampering were removed, but if you eliminate both the witness tampering and obstruction of proceedings enhancement the range would be 30-47 months.

ABJ Guidelines Calculation: 70-87 months

In court yesterday, ABJ started by going through the recommended sentence. Ultimately, she did the following with the guidelines (h/t Andrew Prokop for his great live tweeting):

  • Accepted the 8-level enhancement for witness tampering, but said she’d take Credico’s comments into account
  • Accepted the 3-level enhancement for substantial interference, noting that HPSCI was totally diverted by focusing on Credico
  • Rejected the 2-level enhancement for the extensive nature of Stone’s obstruction (thereby agreeing with the original Probation office recommendation)
  • Accepted the 2-level enhancement for Stone’s obstruction in this prosecution

That works out to a base level of 14 + 8 for the witness tampering threat + 3 for substantial interference + 2 for his obstruction in this prosecution. As ABJ calculated in court yesterday, that amounts to a guidelines offense level of 27, or a guidelines range of 70 to 87 months.

Importantly, these decisions mean ABJ disagreed with both the recommendations made in the Barr memo that she throw out the witness tampering threat and Stone’s interference in this trial (which included the threat against her).

Contrary to what the WaPo lets DOJ claim under cover of anonymity, this in no way vindicates Barr. Rather, it rebukes him, stating that neither of his interventions are valid.

ABJ Sentence: 40 months

Nevertheless, ABJ came up with a sentence of 40 months, a sentence that’s solidly in the range of what Barr wanted (and therefore a sentence he’s on the record as saying is just for Stone’s crimes).

ABJ got there, in part, by taking Credico’s comments into consideration, while still treating Stone’s threat as real. She got there in part by arguing that the sentencing guidelines are “inflated” — something anathema to Bill Barr’s policies at DOJ, and a stance that would say all defendants should be sentenced more leniently, not just Trump’s rat-fucker.

In her sentence, she explicitly said she was ignoring Trump’s comments and comments from the left asking for harsh punishment.

Ultimately, ABJ calculated the guidelines — which she said were inflated (and would be for all defendants) — at 70-87 months. She then sentenced Stone to 57% of the lower end of those guidelines.

And that is what has the frothy right in a tizzy — that she extended Roger Stone the same leniency that she would extend to other defendants, in defiance of Bill Barr’s demands that every defendant not covering up for the President be sentenced harshly.

This is in no way a vindication of Bill Barr. It is also, in no way, abusive.

Update: This has been updated to reflect what the transcript says about the final probation recommendation.

Four Ways Bill Barr Fucked Up the Roger Stone Cover-Up

Let me say at the outset that I’m not imagining, with this post, that Bill Barr won’t succeed in helping Trump to bury the Russian investigation. The power of the President is breathtaking, Trump will still be able to commute Roger Stone’s sentence, and neither Barr nor Trump have any compunction about abusing power.

Still, Bill Barr really fucked up the cover-up for Roger Stone. He did so in at least four ways:

  • He intervened after prosecutors advised a guidelines sentence (of 7-9 years) when Judge Amy Berman Jackson was never likely to impose that. She ultimately sentenced Stone to 40 months, solidly within the sentence Barr demanded after the fact. In other words, he intervened when he didn’t have to, but by doing so he put himself on the record stating that 40 months was a just sentence.
  • He personally intervened. At the sentencing hearing, ABJ asked John Crabb Jr, the prosecutors whose name was on the revised sentencing memo, what happened. He made it clear that US Attorney Timothy Shea had bought off on the harsher sentence, and said the Attorney General was personally involved. Among other things, this led ABJ to note that it is “unprecedented” for DOJ not to request a guidelines sentence. Crabb also declined to say whether he wrote the revised sentencing memo or not, establishing cause to demand those details.
  • After prosecutors withdrew in response to Barr’s intervention, he went on TV to try to contain the damage. In that appearance, he stated quite clearly that this was 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.

  • The whole scandal probably led ABJ to tailor her comments to address it. On top of making clear how outrageous Stone’s obstruction was, she also alluded to the tweets of the President. She ended her statements by saying, “He was not prosecuted, as some have claimed, for standing up for the president. He was prosecuted for covering up for the president.” She backed that by noting Stone’s comment to Randy Credico that he, Stone, couldn’t take the Fifth because it would hurt the President. This establishes a legal record that Stone is going to prison to protect Trump — far stronger than what went in for Scooter Libby, who was also going to prison to protect his superiors.

Add that to Barr’s statements during confirmation that pardoning someone because of their false testimony is obstruction, and when the eventual commutation does come, the record will already be developed that Trump is engaging in obstruction by doing so.

Again, this is not to say that Barr won’t still succeed with this cover-up. But along the way, he did a number of things that will significantly raise the cost of it.

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.

Roger Stone Admitted to Violating 18 USC 115 Under Oath

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

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

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.