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Felipe Marquez’ Plugged-In Misdemeanor Guilty Plea

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Seven January 6 defendants are known to have pled guilty on Friday:

  • (Reportedly, though it hasn’t been docketed yet) Terry Brown, the last of a group of people arrested in the Capitol Visitor’s Center the day of the riot to plead out
  • Brandon Harrison and Douglas Wangler, who traveled to DC from Illinois together and, after Trump’s rally, walked to the Capitol and entered the East door after the Oath Keepers had already done so; they saw a pile of wood on the floor when they entered
  • Brandon and Stephanie Miller, an Ohio couple who bragged about witnessing history on Facebook
  • Cleveland Meredith Jr, who showed up — armed, but late — to insurrection but made credible threats against Nancy Pelosi (and did something else that remains sealed)
  • Felipe Marquez, who drove his Tesla Model 3 from Miami and claimed while inside the Capitol that, “we only broke some windows”

The Meredith plea — the only one that wasn’t a misdemeanor trespassing plea — was pretty interesting because his prosecutors still haven’t revealed the substance of some sealed filings that will be taken into consideration at sentencing. Plus, Judge Amy Berman Jackson, who was threatened by Roger Stone and some Proud Boys two years before they teamed up to set off an attack on the Capitol, seemed unimpressed with Meredith’s claims that his threats against Pelosi weren’t all that serious.

But the Marquez plea may be more interesting over time. At the very least, that’s because he may mark a decision by DOJ to let edge obstruction defendants plead down to 18 USC 1752, the more serious of the two misdemeanor trespassing charges.

As I’ve laid out repeatedly, DOJ has used 18 USC 1512(c)(2), part of the crime of obstruction, to charge those who allegedly expressed the clear intent to prevent the vote certification with a felony. Upwards of 200 people, total, have been charged with obstruction, including Marquez. But among those charged with obstruction, there’s a great range of actions taken on January 6. Those charged include those who participated in a conspiracy — like Graydon Young and Josiah Colt, Jacob Chansley, who left ominous comments for Mike Pence on his dais seat and blew off repeated orders to vacate the Senate Chamber, and Paul Hodgkins, who brought his Trump flag to the Senate floor but left when the cops instructed him to.

I laid out here how Hodgkins, after he was the first to plead guilty, was sentenced to 8 months in prison after getting a three level enhancement for significantly obstructing the vote certification. But since that happened, at least ten different defendants have challenged this application of obstruction, posing difficult decisions for a number of judges.

Indeed, in the last several days, a number of defendants charged with obstruction have explicitly waived Speedy Trial rights to await the outcome of these challenges. That’s going to create a backlog in the already enormous logjam of January 6 defendants.

So I wonder whether DOJ will begin let the edge 1512 cases plead down to 1752. Particularly given judges’ apparent willingness to jail the misdemeanor defendants, for defendants not given a “significant obstruction” enhancement like Hodgkins got, the sentencing guideline is not that different, with up to a year available under 1752 (and probation after that), versus a range of 8 to 14 months on obstruction (that in reality might be closer to 3 to 8 months). The primary (but nevertheless significant) difference would be the felony conviction.

To be clear, Marquez is not the first to plead down like this. Eliel Rosa pled to the less serious trespass charge, 40 USC 5104 after being charged with obstruction, but there may have been evidentiary reasons DOJ agreed to do that, and as an immigrant from Brazil, he risks deportation after his sentence in any case. Karl Dresch was charged with obstruction but pled to 5104 after serving six months in pre-trial confinement. Kevin Cordon, who was charged with obstruction but pled guilty at the same time as his brother — who was charged only with trespassing — pled to 1752 instead of obstruction, just like Marquez did.

In other words, in cases where there are other circumstances that make such a plea worthwhile to DOJ, they’re certainly willing to consider it.

Still, it’s possible that Marquez represents a shift on DOJ’s part to do that for more defendants, as part of an effort to avoid a big backlog pending the review of the 1512 charge.

Or, maybe not.

There were several other details of Marquez’ plea hearing of interest. The hearing started by talking about some kind of pretrial violation (possibly some kind of non-arrest run-in with law enforcement), which led to two new conditions being added to Marquez’s release, a mental health evaluation and a specific requirement to alert the government of any contact with law enforcement. That’s not how plea hearings usually start, but AUSA Jeffrey Nestler reaffirmed that DOJ wanted to go forward anyway. Judge Rudolph Contreras even asked whether the request for mental health evaluation raised questions about Marquez’ competency to plead guilty, though neither his attorney, Cara Halverson, nor Nestler, had any concerns about that.

Nestler, by the way, is one of the key prosecutors on the omnibus Oath Keeper case, and ably defended DOJ’s application of obstruction in that case in a hearing on Wednesday. Aside from that large group and cooperating Oath Keeper witness Caleb Berry, the only other January 6 case, besides Marquez’, that he is prosecuting is that of Guy Reffitt, who has ties to the 3%ers.

In addition to the oddities in Marquez’ plea hearing, there’s something not in his plea agreement that is standard boilerplate for all the plea agreements thus far: a cooperation paragraph. That paragraph is not a full cooperation agreement; rather, it simply requires the defendant to agree to be debriefed by the FBI. Here’s how it appears in Cordon’s plea agreement down from obstruction to 1752.

Your client agrees to allow law enforcement agents to review any social media accounts operated by your client for statements and postings in and around January 6, 2021, and conduct an interview of your client regarding the events in and around January 6, 2021 prior to sentencing.

Its absence suggests that Marquez has already been debriefed. Indeed, an April motion to continue the case described that the evidence against Marquez included, “social media data, cell phone extraction data, as well as custodial interview files,” suggesting he was interviewed on his arrest.

That Marquez may have already provided truthful information is of interest because he spent part of the riot in Jeff Merkley’s office. His statement of offense describes his actions there obliquely:

While inside the Capitol, Marquez entered the private “hideaway” office of Senator Merkley where he sat at a conference table with other rioters.

His arrest affidavit describes a video Marquez posted to Snapchat from his time there.

3:45 to 4:11 – This clip is from inside a conference room.2 Several people are seated and standing around a mahogany table. Some people say, “No stealing; don’t steal anything.” At 4:02, a hand is visible, holding a light-tan colored vape pen similar to the one MARQUEZ was holding in the car in the clip from 0:54 to 1:54. At 4:04, someone pushes over a table lamp and says, “Why would I want to steal this bullshit.”

4:11 to 4:20 (end) – In this clip MARQUEZ turns the camera lens to film himself. He is wearing a red “KEEP AMERICA GREAT” hat and has a yellow gaiter around his neck, similar to what he was wearing in the earlier clip from 0:54 to 1:54. MARQUEZ appears to still be indoors, with a distinctive blue piece of artwork – the same as seen in Senator Merkley’s hideaway office – on the wall behind him. This is a screenshot of MARQUEZ’s face from the video:

2 Based upon conversations with representatives of the United States Capitol Police, the conference room in which MARQUEZ is present appears to be Senate room S140, the private “hideaway” office of Senator Merkley within the U.S. Capitol. The artwork visible on the walls of the conference room in MARQUEZ’s Snapchat video is also visible on a video that Senator Merkley posted to Twitter on January 6, 2021, at 11:36 pm, documenting some of the damage to his office.

Still, none of these descriptions reveals what Marquez might have seen (and subsequently shared) while in Merkley’s office.

Presumably partly because there’s little to no security footage of what went down, the investigation into what happened in Merkley’s office is one of the most interesting subplots of the investigation. There have been a number of trespassers who seem to have been arrested just to get their footage of what happened.  There’s a defendant who has never been charged who was, nevertheless, given discovery on the laptop that got stolen from Merkley’s office. And in the last few weeks, Brandon Fellows (who like Marquez has been charged with just obstruction but spent time in Merkley’s office) got a CIPA notice, meaning the government wants to use classified evidence against him.

In short, we simply don’t know. There’s something interesting about this plea. But it’s unclear what that is.

The Network Effect: The 3%ers Incitement, Terrorist Enhancements, and California’s Anti-Maskers

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At a hearing for Danny Rodriguez on August 31, Judge Amy Berman Jackson asked, as she had in the last hearing, why Rodriguez wasn’t included in the indictment with a bunch of other men who, like him, are accused of assaulting Michael Fanone, a case over which she is also presiding. As also happened in that last hearing, ABJ asked about a plea offer. In July, AUSA Kimberly Paschall said Rodriguez might not be offered a plea deal at all. On Tuesday, Paschall said he would only be offered a plea deal if he were willing to be debriefed first, prosecutor’s jargon meaning that someone will only be permitted to plead guilty if he cooperates against others. Paschall also said that any plea would necessarily include the 18 USC 1361 charge against Rodriguez for breaking a window because it carries a terrorism enhancement. When prompted by Rodriguez’ attorney (who sourced her intelligence to Twitter), Paschall admitted there may be a superseding indictment against Rodriguez, widely assumed to be some kind of conspiracy indictment with other extremists from Southern California.

As HuffPo reported in February (relying heavily on the work of online researchers including Deep State Dogs), before his arrest Rodriguez was a well-known participant in a group of Southern California anti-maskers, one who had been reported for assault even before boarding a plane to DC in January.

Rodriguez, who goes by “Danny” and “DJ,” is well known among Trump supporters in the Los Angeles area as a superfan of the former president. Multiple news outlets have featured him in their coverage of the local pro-Trump movement in recent years, in articles that included his name and photo. He regularly attended the weekly Trump rallies in Beverly Hills last year. He was recognizable there by his dark-rimmed glasses and the many distinctive pins on his hat, which has a big GOP elephant symbol on the brim.

Rodriguez coordinated with other members of this network — including Gina Bisignano — while at the riot.

What Paschall basically admitted in Tuesday’s hearing is that DOJ intends to hold Rodriguez accountable as a terrorist, possibly in conjunction with his network of right wing operatives. But for all the reports (on Twitter) about network members flipping on each other, the network of extremists still manages to sow violence in front of the LAPD with impunity.

There are other public signs, however, that DOJ is going after this network. In June, DOJ rolled out a conspiracy indictment against six Three Percenters, including Alan Hostetter and Russell Taylor. In spite of explicit threats of execution detailed in it, it doesn’t include a crime of terrorism like the one charged against Rodriguez. While the Three Percenter ties, the plans to come to DC armed, and the defendants’ role in a January 5 Stop the Steal rally attracted a lot of attention, the import of a Telegram channel described in it got less focus.

On January 1, 2021, [Russ] TAYLOR created a Telegram chat called “The California Patriots-DC Brigade” (the “DC Brigade”) and invited other individuals to join. TAYLOR, HOSTETTER, WARNER, KINNISON, MARTINEZ, and MELE all joined, along with more than 30 others.

In the “about” section that described the purpose of the DC Brigade group, TAYLOR wrote:

This group will serve as the Comms for able bodied individuals that are going to DC on Jan 6. Many of us have not met before and we are all ready and willing to fight. We will come together for this moment that we are called upon.

In a series of messages on January 1, 2021, TAYLOR further explained the purpose of the group. In one message, he explained: “This thread is exclusive to be utilized to organize a group of fighters to have each other’s backs and ensure that no one will trample on our rights. Also, if there is key intel that we need to be aware of tor [sic] possible threats.” He added: “I am assuming that you have some type of weaponry that you are bringing with you and plates as well.” TAYLOR also asked members to identify if they had previous law enforcement experience, military experience, or “special skills relevant to our endeavors,” as well as the planned date and time of their arrival in D.C.

There were 36 people in this thread and DOJ may have arrested just 4 before this conspiracy charge, leaving at least 26 others who participated in a channel about coming armed to the Capitol still out there.

In recent days (close to three months after the conspiracy indictment), DOJ has started arresting those participants. On August 26, for example, DOJ arrested Jeffrey Scott Brown on charges of assault, civil disorder, and trespassing based in part on him spraying an irritant at the police.

The government cited Brown’s participation in Taylor’s Telegram channel to substantiate pre-meditation for his violence.

During the course of the investigation into the events of January 6, 2021, law enforcement has identified communications that documented planning and coordination amongst individuals in advance of January 6, 2021. As detailed below, the investigation has established that JEFFREY SCOTT BROWN participated in a Telegram group chat on an encrypted messaging app in the days leading up to January 6. In the Telegram chat “about” section was the following description: “This group will serve as the Comms for able bodied individuals that are going to DC on Jan 6. Many of us have not met before and we are all ready and willing to fight. We will come together for this moment that we are called upon.”

One of the members of this chat was Telegram user “JB” (UID XXXXXX1832). On January 5, 2021, at approximately 6:30 a.m. PST, Telegram user “JB” posted a picture of himself with the caption “Boarding LAX.” LAX is the airport code for the Los Angeles International Airport.

Yesterday, another of the participants on Taylor’s Telegram channel, Ben Martin, was arrested for his sustained efforts to get and keep the North doors of the Capitol open.

Among the pictures of Martin included in his arrest affidavit at that North door are some also included in a detention memo for Matthew Klein that depict the Klein brothers, already charged with conspiracy for their efforts to open it.

Martin’s arrest warrant describes Facebook Messenger discussions Martin had with an RT who, like Russell Taylor, publicly called for violence in advance of the riot. That RT invited Martin to a Telegram channel that sounds (except for RT’s boasts about its size) just like The California Patriots-DC Brigade.

A search warrant of the MARTIN Facebook account identified by the tipster revealed that the account was registered as “benjamin.martin.90410.” A review of the account further revealed communications between MARTIN and a Facebook account associated with R.T. Based on a different investigation, R.T. is known to the FBI to have advocated for violence in the lead-up to January 6, organized others to travel to D.C. for January 6 (some of whom participated in the riot at the U.S. Capitol), and to have participated himself in the riot at the U.S. Capitol on January 6. MARTIN’s account contained communications occurring on January 3, 2021, between R.T. and MARTIN through Facebook Messenger in which MARTIN and R.T. discussed traveling to Washington D.C. for January 6, 2021. In the communications, R.T. invited MARTIN to join a Telegram chat for “a group of 200+ California patriots that are going to DC Jan 6,” which MARTIN accepted and joined. On January 6, 2021, MARTIN sent four messages to R.T. that stated, “we need to meet”, “I just spoke to Peggy Hall she said we need to meet”, and “I am in DC as we”, “well” [sic].

Consider what you have in this network:

  • Ties to two militias, the Three Percenters and the Proud Boys
  • Organization based in localized, violent anti-mask activism
  • A direct tie to one of two organized rallies on January 5
  • A Telegram channel tying a group of participants together
  • The use of blowhorns and radios during the riot to maximize impact
  • Taylor’s description of a plan, formulated at least by December 30, to “surround the capital,” followed by Simon’s sustained efforts to open a new front on the North side of it
  • Discussions in advance of executing traitors followed by an assault on Michael Fanone that caused a heart attack
  • By dint of Rodriguez’ damage to a window of the Capitol, a crime of terrorism that can (and Paschall is intent, will) carry a terrorism enhancement

At Tuesday’s hearing, Paschall didn’t seem sure whether they will end up charging Rodriguez in a conspiracy with some of the others (though she said DOJ would likely finalize their decision on that point by October 1). Certainly, it doesn’t seem like local law enforcement in LA is anything but an impediment.

But this network of extremists is a good place to look to understand how the various parts of the riot came together.

Don’t Ignore What Trevor McFadden Has to Say about January 6

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Tierney Sneed had a good article yesterday summarizing how starkly some of the judges presiding over January 6 cases have described it. For example, Sneed quoted liberally from the comments Randolph Moss made in sentencing Paul Hodgkins, comments that the government and other judges are quoting frequently.

“It means that it will be harder today than it was seven months ago for the United States and our diplomats to convince other nations to pursue democracy,” Judge Randolph Moss said at a July 19 sentencing hearing. “It means that it will be harder for all of us to convince our children and our grandchildren that democracy stands as the immutable foundation of this nation. It means that we are now all fearful about the next attack in a way that we never were.”

[snip]

Moss, a nominee of President Barack Obama, said that the attack “threatened not only the security of the Capitol, but democracy itself,” as he sentenced Paul Hodgkins, a rioter who pleaded guilty to obstructing an official proceeding.

“Our elected representatives from both political parties came together that day to perform their constitutional and statutory duty to declare, in the word of the statute, the person elected president,” Moss said at the July 19 hearing. “The mob’s objective was to stop that from happening. They were prepared to break the law to prevent Congress from performing its constitutional and statutory duty. That is chilling for many reasons.”

She includes judges appointed by Democrats (in addition to Moss, Amy Berman Jackson and Beryl Howell) and Republicans (Reggie Walton and Royce Lamberth).

As someone who thinks January 6 was exceptionally dangerous, it’s comforting to hear some judges agree. But I think that, to make a case about how judges are interpreting January 6, you would need to include the statements of a judge like Trevor McFadden, as well.

Of the District Judges carrying the heavy January 6 case load, four — Carl Nichols, Dabney Friedrich, Tim Kelly, and McFadden — are Trump appointees. Unlike some of Trump’s DC Circuit appointees, they’re all serious judges, with time as prosecutors or in other DOJ roles. Trump appointees aren’t necessarily going to be more favorable for January 6 defendants. While Nichols may have burnished his right wing bonafides clerking for Clarence Thomas, for example, that means he spent a lot of time with a Justice who is generally awful for non-corporate defendants’ rights. Former public defender and Obama appointee Tanya Chutkan has already made decisions (on bail) that are more favorable to defendants than the Trump appointees, for example, and I expect that to continue (the judge presiding over the Oath Keeper conspiracy case, Amit Mehta, has also served as a public defender).

Still, as recent Republican appointees, the Trump judges are an important read and voice on this investigation. Both by disposition and record on the court, Friedrich is probably the Trumpiest judge, but thus far the most interesting case she has been assigned is that of Guy Reffitt, the III Percenter who threatened his kids if they revealed his role in the riot; in that case, she approved an order allowing prosecutors to use his face to open a laptop with pictures from the insurrection. Nichols has a bunch of cases, such as the Pollocks or former Green Beret Jeffrey McKellop, that may get interesting down the road, but thus far his most active cases have involved presiding over the plea deals of a group of people arrested on trespass charges on the day of the attack. Tim Kelly is presiding over the bulk of the Proud Boy cases, which by itself gives him a pretty full docket (but is also why DOJ really fucked up by treating Ethan Nordean’s invocation of the Kavanaugh protests so blithely); his decisions thus far have been totally fair. The decisions of Trevor McFadden, who is presiding over the omnibus Tunnel assault case, have also been fair.

I think McFadden’s statements should be included in any read of what these judges think of January 6 because he has pulled a number of the ones that, because the defendants’ political speech has been implicated in the cases against them, will provide an early read about how a Republican with solid political ties will view the balancing of political speech and threat posed by January 6.

In addition to the Hunter and Kevin Seefried prosecution (the latter of whom was pictured carrying a Confederate flag through the Capitol), McFadden is presiding over the prosecutions of American Firster Christian Secor, Cowboys for Trump founder Couy Griffin, and Neo-Nazi Timothy Hale-Cusanelli.

In these cases, McFadden has expressed a fair amount of nuance in his views as he has presided over some genuinely difficult decisions.

He did take the way Hale-Cusanelli expressed his bigotry into account when he decided to hold him without bail (which was genuinely one of the most difficult detention decisions, in my opinion, and I was leaning towards release before McFadden made the decision), but in significant part because he may have acted on those views in the past and because his promises of action were alarming and intimidating his colleagues.

Having said all of that, we don’t typically penalize people for what they say or think. I think for purposes of my analysis, I need to — I’m trying to figure out whether this well-documented history of violent and racist language does suggest that the defendant poses a danger to the community.

[snip]

I also note the government’s evidence that the defendant appears to have surrounded himself, to a certain extent anyway, with people who have encouraged this behavior and people who may even agree with him. And I agree with the government’s concern regarding potential escalation of violence at this point given all that has occurred. And I am concerned for the safety of the confidential human source. I think given all of the facts here in the government’s motion, I mention it is pretty obvious to the defendant anyway who this person is. And I am concerned given all of the defendant[‘]s — all of the things he said in the past about committing violence against those who he feels are pitted against him. And given the sum evidence that the defendant has been willing to put these thoughts into action in the past, I think I do have a duty to protect that confidential source.

McFadden did, however, release someone with similarly repugnant views, Secor, even though Secor had been arming himself, in part because Secor had third party custodians — his parents — willing to vouch for him and put up a $200,000 bond. McFadden seems to be seeking to separate out hateful speech from where that speech turns violent and, if nothing else, that struggle deserves close attention.

But he’s also not viewing DOJ’s response to January 6 as driven predominantly by First Amendment issues. In a decision rejecting Griffin’s attempt to throw out one of the trespassing charges DOJ has used — which Griffin, because he did not enter the Capitol, was uniquely situated to challenge — McFadden dismissed Griffin’s claims of political discrimination.

The Government moved to detain Griffin before trial. It described Griffin’s political views as “inflammatory, racist, and at least borderline threatening advocacy.” Gov’t’s Mem. in Supp. of Pretrial Detention at 2, ECF No. 3. The Government also highlighted the gun rights advocacy of Cowboys for Trump, as well as allegedly violent statements made by Griffin.

[snip]

Finally, Griffin complains of discriminatory prosecution. He contends that he was targeted and “selectively charged . . . because the government loathed him and his politics.” Def.’s Reply at 3. “Few subjects are less adapted to judicial review than the exercise by the Executive of his discretion in deciding when and whether to institute criminal proceedings, or what precise charge shall be made, or whether to dismiss a proceeding once brought.” United States v. Fokker Servs. B.V., 818 F.3d 733, 741 (D.C. Cir. 2016) (cleaned up). So “the presumption of regularity” applies to “prosecutorial decisions and, in the absence of clear evidence to the contrary, courts presume that prosecutors have properly discharged their official duties.” Id.

Griffin comes up short on providing the “clear evidence” required for this Court to surmount the presumption of regularity—and the separation of powers. He points to “hundreds or perhaps thousands of other individuals ‘remaining’ in the same area” as him on January 6 who have not faced charges under 18 U.S.C. § 1752. Def.’s Mot. at 24. The Court hesitates to credit these unsupported numbers, especially as the Government continues to charge new individuals with offenses related to January 6. Nor is the Court concerned by the Government’s statements about Griffin when seeking to detain him pretrial; detention hearings require the Court to consider the defendant’s history and personal characteristics, as well as his potential dangerousness.

Griffin highlights the Government’s dismissal of charges under 18 U.S.C. § 1752 in “the interests of justice” in United States v. Christopher Kelly, 21-mj-128 (D.D.C. 2021). According to news reports, the Government moved to drop the charges after determining Kelly did not enter the Capitol building. See Feds move to drop charges for Capitol riot defendant, Politico, June 1, 2021, https://www.politico.com/news/2021/06/01/feds-capitol-riot-defendant-491514 (“‘Since he was not inside, in the interest of consistency in the investigation, the charges were dropped,’ the official said.”). Even so, the Government could rationally forgo federal prosecution as to most trespassers while deciding that Griffin’s leadership role in the crowd, position as an elected official, and more blatant conduct at the scene merited him different treatment. Not all differences amount to discrimination. In any event, presumably Kelly and the other uncharged protestors surrounding Griffin on the Capitol steps share his “politics,” Def.’s Reply at 3, complicating his complaint of bias here.

Griffin also points to the numerous uncharged protestors who broke through USCP barricades to occupy the Capitol steps on the eve of Justice Kavanaugh’s Senate confirmation vote. See Def.’s Notice at 2, ECF No. 39; see also Kavanaugh Protesters Ignore Capitol Barricades Ahead of Saturday Vote, Roll Call, Oct. 6, 2019, https://www.rollcall.com/2018/10/06/kavanaugh-protesters-ignore-capitol-barricades-ahead-ofsaturday-vote/. Disparate charging decisions in similar circumstances may be relevant at sentencing. Cf. 18 U.S.C. 3553(a)(c) (“the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct”). But this is not a basis to dismiss the charges. [My emphasis]

McFadden based his decision on this point in part on separation of powers (the basis for some of his decisions that have been deemed pro-Trump) and presumption of regularity, as well as basic facts. He deemed reasonable the possibility that prosecutors viewed Griffin’s leadership role to be more important to prosecute. He suggested he might sentence Griffin (if he were found guilty) leniently based on a comparison with similarly situated protestors against Kavanugh. But he also based his decision on the notion that Griffin’s threats of violence (raised in a detention challenge conducted before Michael Sherwin departed) could pose a genuine concern to the government.

McFadden is not treating this investigation as a witch hunt against people with right wing views.

But at the same time, McFadden has deviated from his colleagues’ more alarmist language to refer to January 6. At least twice in hearings (including on this Griffin challenge), McFadden admonished an AUSA who referred to January 6 as an insurrection. Have you charged anyone with insurrection, McFadden rightly asked. In a court room, these are not empty terms. They are also names of crimes. And DOJ needs to be careful not to accuse these defendants of crimes that — for whatever reason — they haven’t charged.

It’s not that McFadden thinks January 6 was not serious. In the same Hale-Cusanelli hearing, he described, “Obviously, the January 6th riot was a serious and sui generis threat to our country’s body politic.” But thus far (he has not presided over any of the six cases that have been sentenced yet), he has adopted a more moderate tone in discussing the event.

It’s true that, for the moment, some District Court Judges will frame how we think of January 6. In Munchel, the DC Circuit, too, described January 6 in grave terms (albeit in a passage of Robert Wilkins’ majority opinion not joined by Greg Katsas).

It cannot be gainsaid that the violent breach of the Capitol on January 6 was a grave danger to our democracy, and that those who participated could rightly be subject to detention to safeguard the community. Cf. Salerno, 481 U.S. at 748 (“[I]n times of war or insurrection, when society’s interest is at its peak, the Government may detain individuals whom the government believes to be dangerous.” (citations omitted)).

But ultimately, the six Republican appointees on the Supreme Court will have their say about what this event was — at least about whether hundreds of people committed felony obstruction in trying to halt the peaceful transfer of power. And with that in mind, commentators and DOJ would do well to watch carefully for the specific aspects of January 6 that Trevor McFadden finds most troublesome.

The Still Active Konstantin Kilimnik Investigation

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The government just released reprocessed versions of the Sam Patten 302s that it released in January 2020 as part of BuzzFeed’s FOIA for the Mueller interviews, with just one new disclosure (evidence that Steve Bannon knew of the DNC email release in advance). As a reminder, Sam Patten was the business partner of Konstantin Kilimnik who pled guilty in 2018 for FARA violations.

That DOJ released 40 pages in almost exactly the same form as it previously released them is not unique to Patten. DOJ likewise released George Papadopoulos, KT McFarland, and Erik Prince’s 302s with almost no new disclosures. Effectively, DOJ used its monthly release to BuzzFeed as an obnoxious way of conveying that, except for details showing that even Jerome Corsi was a cover story for Stone’s activities in 2016, DOJ isn’t going to release any more details about the Mueller investigation.

But the heavily redacted 302s are actually of significant interest. That’s because between the time these 302s were first released in January 2020 and now, the Senate Intelligence Committee released its own Russian investigation report, in August 2020. That report relied heavily on the 302s that remain so heavily redacted.

In fact, the declassification of the SSCI Report conducted by ODNI under John Ratcliffe at a time he was declassifying a slew of other documents to help Trump disclosed a great deal of material that, given the recent DOJ release, DOJ claims remain sensitive. The great majority of these passages — and indeed the majority of what remains redacted — were redacted in part using a b7A redaction, indicating an ongoing investigation. I’ve put in the materials that appear in the SSCI Report that remain redacted in this week’s release below, marking with italics what DOJ has released in the 302s.

Effectively, then, this structures the information already released by SSCI in such a way to show how the investigation of Patten — and through him, Manafort and Kilimnik progressed. It also shows what DOJ claims remains sensitive.

Patten interviewed in January 2018 with SSCI and lied to hide that he had used a straw donor to buy Inauguration tickets for Kilimnik and one of the Ukrainian oligarchs who was paying Manafort. Patten seems to have admitted his error as soon as Mueller got involved, because his first Mueller interview, on May 22, 2018, effectively truthfully admits to the crime he would eventually plead guilty to. But that 302 also describes what he learned of Kilimnik’s two trips to the US during the campaign (most of the details about the first one remain redacted). It describes how Patten let himself discount warnings that Kilimnik was a Russian spook, and also reveals how he continued to keep Kilimnik in the loop about the FBI investigation of him.

Heavily redacted passages seem to describe the relationship between Oleg Deripaska and Kilimnik, as well as Deripaska’s business in other countries.

A description of what bloggers and journalists Patten paid remains heavily redacted; the implication is that these are overseas, but given the career track of certain American journalists, the notion that Kilimnik or his bosses would buy off the press remain of interest. Discussions of Patten’s communications — many of which are surely included in unredacted form in the SSCI Report — remains entirely redacted.

Patten’s second interview, on May 30, 2018, provides a lot more details that would be pertinent to Manafort. Of particular interest, Kilimnik made a real effort to get Patten a job in the Trump Administration, an offer that Patten declined (he has publicly said he voted for Hillary in 2016). And Kilimnik pressed similar Ukrainian policies with Patten as he did with Manafort. His efforts to cultivate the two of them, it seems clear, was significantly an effort to carve up Ukraine for Russia.

A September meeting would have been prep for the Manafort trial that was due to start the next week.

And then after Mueller declared that Manafort had lied while he pretended to cooperate, Mueller brought Patten back — with a non-Mueller AUSA — for a substantive interview, much of which remains redacted. It’s clear that even then, Mueller was still trying to figure all that Kilimnik had done during his May 2016 trip to the US.

On the day Patten first appeared before the grand jury, Kilimnik texted him to try to get him to lie about the Inauguration tickets. And after Patten’s guilty plea was made public, Kilimnik offered to get one of the oligarchs to pay his bills. Parts of these documents that remain redacted show how Kilimnik was attempting to undermine the Russian investigation in other ways.

Among the things the 302s show is how Kilimnik was handling Patten — and presumably was also handling Manafort. For example, Patten used some of the same operational security that Manafort did with Kilimnik. Of particular interest, through at least the Inauguration, Kilimnik was lying to Patten about remaining in touch with Manafort. He was keeping his efforts with these two men compartmented.

The government’s sentencing memo in this case describes that, in addition to Manafort, Patten cooperated in “a number of other criminal investigations.”

Specifically, Patten was a potential witness in the case of United States v. Manafort, No. 17-cr-201 (ABJ), and he was willing and able to testify about Paul Manafort’s work in Ukraine for the Opposition Bloc and related matters. To prepare for his anticipated testimony, Patten met with prosecutors before trial and he provided documentary evidence supporting his expected testimony. Ultimately, because Manafort pled guilty in that case, Patten’s testimony was not needed. In addition, due to his prior work and experience as a political consultant overseas, Patten has served as a valuable resource for the government in a number of other criminal investigations, providing helpful information about additional individuals and entities

Between the sentencing memo and a May 2020 memo in support for early termination of his probation, the government referred to at least two meetings are not included in these 302s, with one taking place on April 17, 2020, not long before the FBI offered a $250,000 reward for Kilimnik in June 2020 and just a few months before Amy Berman Jackson first moved towards unsealing the Manafort breach documents in July 2020.

So one of those other investigations was likely into Kilimnik, suggesting the government conducted not just a counterintelligence investigation into him, but a criminal investigation into his role in 2016. But there’s virtually no chance that Kilimnik will ever wander into a country where the US can extradite him. Which will make for an interesting explanation when BuzzFeed asks why its reprocessed 302s continue to redact information that was declassified last year.

January 5, 2018: Patten SSCI interview

March 20, 2018: Attempted FBI interview

[release]

May 22, 2018 Mueller interview

Weissmann present

[first release]

[second release]

Presidential Inaugural Committee

In early January 2017, Kilimnik asked Patten to obtain tickets to the inauguration through the Presidential Inaugural Committee (PIC). According to Patten, Kilimnik made this request on behalf of Lyovochkin.623 Patten eventually obtained tickets through a straw purchaser, intended for Kilimnik, Lyovochkin, and Vadim Novinsky, a Ukrainian businessman and politician affiliated with the OB.

[snip]

Patten eventually obtained tickets through a straw · purchaser, intended for Kilimnik, Lyovochkin, and Vadim Novinsky, a Ukrainian business man and politician affiliated with the OB.6

[snip]

That evening [January 19], Patten, Kilimnik, Lyovochkin, and a pollster who had worked with Kilimnik and Patten in Ukraine had dinner together

On January 19, Patten, Kilimnik, Lyovochkin, and a pollster had dinner together.

That evening, Patten, Kilimnik, Lyovochkin, and a pollster who had worked with Kilimnik and Patten in Ukraine had dinner together.6

FARA

Some discussion of work in Ukraine. Heavily redacted, including b7A.

Konstantin Kilimnik

Background on ties at IRI.

Patten told the SCO that after he had left IRI, an IRI employee who worked at IRI’s Belarus desk, Trig Olson, made a claim that Kilimnik leaked information to Russian intelligence.1061 Olson based his assessment on a situation where information provided in a meeting that Kilimnik had attended was leaked to Russian intelligence.1062 Patten ultimately confronted Kilimnik about Olson’s allegation, and Kilimnik denied he was the source of the leak.1063

Patten said he was skeptical of Olson’s allegations about Kilimnik’s ties.to Russian intelligence in part because he believed Olson had a score to settle with Manafort because Olson had been fired from the McCain Campaign by Rick Davis, Manafort’s former business partner.

Kilimnik’s two trips to the US during the campaign

Patten wrongly believed that Kilimnik had flown to NY to meet with Manafort.

Patten was under the impression that Kilimnik may have traveled using private air travel arranged by Manafort, potentially on the Trump-owned plane.

Kilimnik told Patten that John Kerry’s Chief of Staff, Jonathan Finer, was “in space” at a meeting on May 6, 2016

Kilimnik was frustrated by this meeting, stating that he met “Finer or whatever the fuck is his. name. In total space.”

Patten said he understood “[i]n total space” to mean “in outer space” and.therefore not well informed on issues involving Ukraine.

August 2

At the meeting, Manafort walked Kilimnik through the state of the Trump Campaign, including its internal polling data, and Manafort’s plan to win

[snip]

This polling data included internal Trump Campaign polling data from Trump Campaign pollster and longtime Manafort associate Anthony Fabrizio.

[snip]

Kilimnik told Patten that at the New York cigar bar meeting, Manafort stated that they have a plan to beat Hillary Clinton which included Manafort bringing discipline and an organized strategy to the campaign. Moreover, because Clinton’s negatives were so low [sic]-if they could focus on her negatives they could win the election. Manafort discussed the Fabrizio internal Trump polling data with Kilimnik, and explained that Fabrizio ‘s polling numbers showed that the Clinton negatives, referred to as a ‘therm poll, ‘ were high. Thus, bas~d on this polling there was a chance Trump could win..

SSCI interview

Unredacted includes lies about FARA and PIC.

Additionally, Sam Patten, another key witness in the investigation due to his close relationship with Kilimnik, similarly engaged in conduct designed to obfuscate his relationship with Kilimnik. Patten withheld and deleted documents related to Kilimnik that were relevant to the Committee’s investigation.

Oleg Deripaska

Boyarkin

According to Patten, Kilimnik has met with Deripaska and Deripaska associates, including Boyarkin. Patten understood that Kilimnik was in continuous contact with Deripaska and his inner circle. FBI, FD-302, Patten 5/22/2018.

[snip]

Patten told the FBI that he recalled having a Skype call with Boyarkin and Kilimnik on May 24, 2015, about the Guinea project.1004 Patten told the Committee during his interview that he did not know a “Viktor Boyarkin.”1005 Patten later told the SCO that he did not lie to the Committee because at the time he only knew Boyarkin as “Viktor,” a Russian associate of Kilimnik’s who worked for Deripaska.1006

FBI, FD-302, Patten 5/22/2018. As noted above, Patten told the SCO that the proposals he worked on with Kilimnik related to Guinea, Kazakhstan, and others were for Deripaska. FBI, FD-302, Patten 5/22/2018

Viktor Yanukovych

Payments to Journalists/Bloggers

Largely b7A

Specific communications

Largely b7A

Steve Bannon (including advance knowledge of DNC release)

Largely unredacted

FBI visits

Some unredacted, including Patten telling others of FBI

During the execution of a search warrant on Patten’s home, Patten used his wife’s phone to send a text message to Kilimnik and then deleted the message:

[snip]

Patten told the FBI that after an initial visit to his home by what Patten believed to be FBI agents, he deleted emails, some of which pertained to work he had performed for Cambridge Analytica in Mexico because he had been told that his work there was “off the books.” FBI, FD-302, Patten 5/22/2018.

[Redacted (Kilimnik undermining RU investigation)]

One long B7A paragraph

Patten used foldering with Kilimnik.

Patten also engaged in foldering with Kilimnik.

May 30, 2018 Mueller interview

[first release]

[second release]

Andrew Weissmann present

2007

Half unredacted, discussion of rumors that Akhmetov was providing funding to Yushenko

Patten’s first engagement in Ukraine

Partially redacted, discussion of what Manafort was doing at same time

Patten wasn’t sure how all the bills got paid.

Patten, whom Kilimnik recruited to come to Ukraine in 2014 to assist the OB and who reported to Kilimnik, recalled that although Kilimnik worked from an office in Manafort’s firm in Kyiv, it was unclear to Patten whether Lyovochkin or Manafort was paying Kilimnik.213

213 Patten stated that he was hired by, paid by, and reported to Lyovochkin through Kilimnik for his 2014 work in Ukraine.

[snip]

Patten recalled one occasion during his first meeting with Manafort in Kyiv where Manafort had spoken highly of Kilimnik and called Kilimnik a “powerful little dude.”

2015

Patten described some contention over whether he worked for Lyovochkin or for Vitali Klitschko.

Patten’s Ukraine work with Kilimnik in support of Lyovochkin is consistent with Gates’s characterization. In early 2015, Vitali Klitschko, a former opposition leader during the Maydan protests, hired Patten to assist in his Kyiv mayoral campaign. Kilimnik arranged the meeting where Klitschko hired Patten. Lyovochkin, who was ostensibly not a part of Klitschko’s campaign or political party, paid Patten from an offshore account Lyovochkin controlled. Patten recalled one 2015 meeting with Klitschko and Kilimnik in which Klitschko kicked Kilimnik out of the meeting and told Patten that Patten worked for him (Klitschko) and not Lyovochkin. Klitschko told Patten that he kicked Kilimnik out because Kilimnik was too close to Lyovochkin. Patten, who worked in support of Klitschko for approximately a year, was paid $800,000—solely by Lyovochkin.

[redacted information about scope of work, including Guinea]

Redacted

Redacted

Redacted

2016 Current US policy to the Ukraine and Russia

Unredacted discussion of recent work

Manafort remained in the background of the campaign after being fired.

Kilimnik told Patten that Manafort stayed in the background, but still maintained contact and stayed close to Trump.

Kilimnik tried to convince Patten to get Manafort to get him an Admin job

Patten said he declined Kilimnik’s offer

[snip]

Kilimnik specifically sought to leverage Manafort’s contacts with the incoming Trump administration to advance Kilimnik’s agenda, particularly with regard to the Ukraine plan. Kilimnik thought that Trump could solve Ukraine’s problems because of Manafort’ s connection to Trump.

[snip]

After the U.S. presidential election, Kilimnik and Patten began developing ideas for peaceful settlement to the conflict in eastern Ukraine. Kilimnik and Patten drafted a paper outlining the plan, which was to decentralize power, limit Kyiv’s role in running the country, engage in direct bilateral talks between Poroshenko and Putin, and focus on local elections.763 The plan included having the United States serve as an honest broker and work directly with Russia at the highest levels to resolve the conflict.764

[snip]

Kilimnik used his work with Patten to test the viability of a Yanukovych return. Patten recalled conducting at least one poll with Kilimnik in 2017 as part of their ongoing work for the OB.767 In mid-2017, Kilimnik and Patten organized a survey at Kilimnik’s urging to, in part, discreetly measure voters’ openness to Yanukovych’s return768 According to Patten, Kilimnik thought that if Yanukovych returned to politics in eastern Ukraine, it would help the OB because Yanukovych would bring strong leadership back to the OB.769

Patten recalled that the poll tested a wide variety of issues, but included questions designed to test voters’ sentiment ofYanukovych. FBI, FD-302, Patten 5/30/2018. See also Email; Kilimnik to Patten and Garrett, July 11, 2017 (SSC! 2017-4885-3-000054) (responding to focus group testing, Kilimnik asked if respondents were “open to Yanuk return” which he believed was an “important question.”).

2017

Privacy-related redactions on recent work

Presidential Inaugural Committee

About half redacted

This section includes reference to “VY” having a Brussels office, which a later question makes clear he didn’t know was the Hapsburg Group

Hapsburg Group

Patten unfamiliar

Alex Van Der Zwaan

redacted

May 31, 2018 Grand Jury appearance

Kilimnik texts Patten about his grand jury testimony

[first release]

[second release]

FBI Agent takes pictures of something on Patten’s phone, almost certainly texts from Kilimnik about the grand jury testimony.

Texts from Kilimnik

On May 31, 2018, the day Patten was scheduled to testify before a grand jury, Kilimnik asked Patten if there was “anything I can help you with on the GJ [grand jury].”1095 Patten expressed concern to Kilimnik about his testimony related to purchasing inauguration tickets for Lyovochkin and money from Lyovochkin transferred to Patten for that purpose. 1096 Kilimnik offered Patten an “explanation,” suggesting to Patten a fabrication he could offer to the grand jury:

How about they sent it to us for a poll they wanted to do, and because they (as they typically do) canceled the poll you decided to use it for inauguration tickets. Do your client a favor. One failed to come, no one actually attended other than you and SL. Business development for us. 1097

June 6, 2018 Mueller interview

[first release]

[second release]

Weissmann present

[Redacted (consulting and FARA)]

Largely b7A

Department of State

Short section, b7A

June 12, 2018 Mueller interview

[first release]

[second release]

Weissmann present

Short FBI phone interview, redacted topic.

Patten and Kilimnik exchanged a December email after the one Kilimnik sent to Manafort

Patten may have written a one page Iraq solution proposal and provided it to Kilimnik, which Patten assumed would be provided to Manafort. At the time of the December email, Patten knew that Kilimnik was in Moscow and it was possible that Kilimnik shared this email with someone in Russia, but Patten did not know if Kilimnik did share it

August 31, 2018 Guilty plea

Guilty plea

September 6, 2018 Mueller interview

[first release]

[second release]

Weissman and Rhee present

Public update on restricted Facebook page

Review of

  • A document on travel information; Patten describes that someone called and informed him all his work had been for Opposition Block
  • A document about a parallel campaign to one Manafort and Gates had been running in Ukraine
  • A document pertaining to Petro Poroshenko
  • A document showing someone editing a document Patten had written
  • Possibly another document
  • A document about the political persecution of the Party of Regions members for advice on media campaign
  • Another document on work that was not reported under FARA
  • A response to a news article Patten sent
  • A 2017 BGR email on which he had put a FARA notice

Somewhere Lyovochkin get mentioned:

Patten further noted that Lyovochkin had previously managed Manafort’s account for Yanukovych.

September 19, 2018

[first release]

[second release]

Attorney proffer of screenshots of a PDF, almost certainly of Kilimnik’s offer to pay Patten’s legal fees.

In September 2018, Kilimnik offered to arrange for Patten to receive money from Lyovochkin even after Patten’s work for Lyovochkin had ceased and Patten’s cooperation with the Government was public. Kilimnik asked Patten about the possibility of”sending a post-factum invoice for lobbying to SL.” Kilimnik further stated that SL is “ready to do it” as compensation for Patten’s legal costs. Text Message, Klimnik to Patten, September 16,201

November 27, 2018 Mueller interview

[first release]

[second release]

Weissmann and anon AUSA present

Redacted

Redacted

Outreach to Mike Flynn

Patten’s latest contact with redacted

Ukraine

Miscellaneous

7 redacted questions (possibly whether he knew someone or specific documents), all but one b7A

Patten explained that he was unaware of any wedding, which is what Kilimnik said he was doing on his trip to the US in May 2016.

Patten, who was in contact with Kilimnik during his trip and met with him while he was in the United States, was unaware of any wedding.

[snip]

Patten understood that the main purpose of Kilimnik’s trip was to meet with Manafort.

[snip]

Patten recalled that Kilimnik stayed with him for one night during one of his trips to the United States, and later believed it might have been this trip.

More details around the inauguration.

The day of the inauguration, Patten, Lyovochkin, and Kilimnik had lunch in Alexandria, Virginia.627 Kilimnik told Patten that he was nervous that he would see Manafort because Kilimnik knew that Manafort resided in Alexandria.628 Patten believed Kilimnik was trying to distance himself from Manafort in furtherance of his work in Ukraine.629 Unbeknownst to Patten, Kilimnik and Lyovochkin met with Manafort at the Westin in Alexandria during this trip.630

[snip]

According to Patten, he and Kilimnik watched the inauguration in the lobby of the Mandarin Oriental hotel in Washington; D.C., where Patten understood Kilimnik was staying.632 That evening, Patten and Lyovochkin briefly attended an inaugural ball .. Kilimnik told Patten that he was staying in his hotel room.633

Ukrainian peace plan

Patten recalled Kilimnik discussing exiled former PoR members living in Moscow-including Yanukovych-whom Kilimnik collectively called “the refugees.”765 Kilimnik was interested in these refugees and their possible return to politics in Ukraine.766

[snip]

The poll revealed that Yanukovych was not viable at that time.770 While Patten was.aware thatKilimnik would periodically mention Y anukovych, Patten claimed he never got the sense that Kilimnik was trying to push Yanukovych’s retum.771 Patten also believed that Kilimnik was attempting to distance himself from Manafort in furtherance ofKilimnik’s own ongoing work in Ukraine.772

April 17, 2020 post-Mueller DOJ interview

Later meeting with DOJ.

Bill Barr Is Not Dick Cheney

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Imagine if David Addington had co-signed the torture memos written by John Yoo?

I wanted to comment on a Quinta Jurecic column about the Barr Memo that Merrick Garland’s DOJ chose to withhold parts of, as well as this thread from Kel McClanahan responding to Jurecic. Their exchange focuses on how judges may have responded to Donald Trump’s Administration, and what kind of the traditional deference we should expect Garland’s DOJ to get. I’d like to add a few points that may show one possible angle for accountability for Bill Barr moving forward.

Those points start in the difference between Dick Cheney and Bill Barr. Bill Barr is not Dick Cheney. Both men were the masterminds of horrible policy under their respective (most recent) president. Both, in different ways, badly politicized the government. But Dick Cheney was, in my opinion, the most accomplished master of bureaucracy that DC had seen in a very long time. Barr, by contrast, either didn’t have Cheney’s bureaucratic finesse or just didn’t fucking care to hide his power plays. And the difference may provide means for accountability where it didn’t under Obama.

The worst Bush policies that Cheney implemented were torture and Gitmo, warrantless wiretapping, and the Iraq War. The first two implemented illegal policies by using Office of Legal Counsel to sanction them in advance. And, significantly (but not entirely) because of that, Obama never found the political means to fully excise those earlier policies. Obama only ever got paper prohibitions on torture, he never closed Gitmo, and one of the last things Loretta Lynch did was finalize an effort to legalize the last bits of Stellar Wind by approving EO 12333 sharing rules.

I believe that’s because Cheney used OLC specifically and the Executive bureaucracy generally to make any reversals more costly, a reversal of a position of the Executive Branch, rather than a treatment of crime as crime.

Barr used OLC too, plus he shielded a bunch of epically corrupt efforts to turn DOJ into the instrument of Trump’s personal will under his prerogative as Attorney General, especially prosecutorial discretion. The Barr Memo itself — a request to be advised to make a decision that Trump was not guilty of obstruction and then to announce it — was what he claims to be an instance of prosecutorial discretion. The decision to engage in unprecedented interference with Roger Stone’s sentencing was billed as an incidence of prosecutorial discretion. The decision to reverse the Mike Flynn prosecution, which entailed reversing prosecutorial decisions his own DOJ had approved at the highest levels, adopting a standard on crime that was inconsistent with every precedent, and ultimately included inventing evidence and altering documents, all that was billed as an instance of prosecutorial discretion. The decision to not only protect Rudy Giuliani from legal consequences of participating in an information campaign waged by a known agent of Russia, but also to ingest that disinformation and use it to conduct a criminal investigation of Trump’s rival’s son was also billed as an instance of prosecutorial discretion.

But in all those actions, Barr took steps that necessitated further exercise of corruptly exercised “prosecutorial discretion,” which snowballed. This is why the content of the Barr memo, which we can anticipate with a high degree of certainty, matters. The Barr memo necessarily addresses the pardon dangles (as well as the stuff that Barr said couldn’t be obstruction if a President did it). And I believe that the content of the Barr memo likely contributed to this snowball effect, possibly leading Barr to take later steps to try to limit the impact of having issued a prosecutorial declination for a crime still in progress, which in turn snowballed.

The aftermath of this effect is one detail that Jurecic and McClanahan don’t address. Jurecic says that under Trump,

judges were, perhaps unconsciously, responding to their own distrust in Trump’s oath of office by denying him—in one form or another—the presumption of good faith

She argues that Amy Berman Jackson’s anger about the memo is just another instance of this. That may be true, in part.

But it is also a fact that after ABJ presided over the Stone and Manafort cases, and as such ABJ has a detailed knowledge of what the Mueller Report showed that Barr did not get in the 48 hours while he was trying to get advice on how best to give Trump a clean bill of health (and, indeed, his public comments show he never got that detailed knowledge). In both those cases, Barr abused his discretion as Attorney General to try to make a pardon unnecessary, the snowball effect that his memo may have necessitated.

In service to his effort to minimize Stone’s prison time, Barr treated a threat against ABJ personally as a technicality. Then he lied about what he had done, falsely claiming that he had used the same thought process ABJ had when in fact he instead said threats against her could have no effect on the trial. After he treated the threat against ABJ as a technicality in the Stone case, a Mike Flynn supporter riled up by the lies Barr mobilized to try to overturn Flynn’s prosecution threatened to assassinate Emmet Sullivan. And even after that, Barr kept throwing more and more resources at undoing two decisions Emmet Sullivan made in December 2019, that Flynn’s lies were material and that prosecutors had not engaged in misconduct in his prosecution.

With his memo on the Mueller Report, Barr turned at least the year-plus prosecution of Roger Stone over which ABJ presided — and to a lesser degree the 18-month Paul Manafort prosecution — into legal nullities, in advance.

In short, it may be true that judges generally and ABJ specifically distrusted the good faith of Barr and DOJ’s effort to protect Barr.

But it is also the case that in the wake of this memo, Barr usurped the judicial authority of both ABJ and Emmet Sullivan and he took steps that minimized and contributed to dangerous threats against both.

ABJ is angry. Reggie Walton is angry. Other DC District judges are angry. But they’re angry in the wake of  Attorney General Bill Barr usurping their authority and dismissing violent threats against them and their colleagues.

This is one way Barr is different from Cheney. Cheney’s decisions, too, involved treating judges like doormats. In the effort to legalize a part of Stellar Wind in 2004, for example, DOJ told Colleen Kollar-Kotelly that she had no authority to do anything but rubber stamp a massive pen register that might collect the Internet records of millions of Americans. But DOJ did that in secret; it was years before any but a handful of Kollar-Kotelly’s colleagues even knew that, and I’m one of the very few human beings who understands that that happened. Where such claims happened in public, as with detainee fights related to Gitmo, even SCOTUS ultimately defied Cheney’s claims about Article III authority in Boumediene. But unlike Barr, Cheney maintained the illusion of legal order, in which Article III could rein in Article II.

Then there’s how they used OLC.

Jurecic portrays the dispute between ABJ and DOJ as one about their candor about the content of the memo.

For all the rhetorical fireworks, the substantive dispute between the government and Jackson is relatively narrow. It more or less boils down to an argument over whether or not the Justice Department was adequately precise in court about the specific arguments the memo addressed, and whether the department misled the court on the subject.

That’s part of it, but there’s another part that Jurecic and McClanahan don’t address — and that DOJ did not address at all in their response to ABJ, something that goes as much to the core of the deliberative claim as the substance of what Barr was trying to do.

ABJ complained not just that DOJ’s two declarants, Paul Colburn and Vanessa Brinkmann, and the attorney arguing the case, Julie Straus Harris, weren’t sufficiently clear about the substance of the memo (and I’m somewhat sympathetic to those who said she should have figured this out).

ABJ also made several process complaints about the memo — first, that Brinkmann’s declaration did not include details that are required in such declarations:

[Brinkmann] does not claim to have any personal knowledge of why the document was created or what its purpose might be, and while she states generally at the beginning of the declaration that she consulted with “knowledgeable Department personnel,” she does not state that she spoke with any particular person to gain first hand information about the provenance of this document. Id. ¶ 3. Instead, she appears to rely on her review of the document itself to make the following unattributed pronouncements about the decision that is supposedly at issue:

While the March 2019 Memorandum is a “final” document (as opposed to a “draft” document), the memorandum as a whole contains pre-decisional recommendations and advice solicited by the Attorney General and provided by OLC and PADAG O’Callaghan. The material that has been withheld within this memorandum consists of OLC’s and the PADAG’s candid analysis and legal advice to the Attorney General, which was provided to the Attorney General prior to his final decision on the matter. It is therefore pre-decisional. The same material is also deliberative, as it was provided to aid in the Attorney General’s decision-making process as it relates to the findings of the SCO investigation, and specifically as it relates to whether the evidence developed by SCO’s investigation is sufficient to establish that the President committed an obstruction-ofjustice offense. This legal question is one that the Special Counsel’s “Report On The Investigation Into Russian Interference In The 2016 Presidential Election” . . . did not resolve. As such, any determination as to whether the President committed an obstruction-of-justice offense was left to the purview of the Attorney General. [emphasis original]

She also complained that Straus Harris included a “flourish” on similar topics that was not based on the declarations before her.

The flourish added in the government’s pleading that did not come from either declaration – “PADAG O’Callaghan had been directly involved in supervising the Special Counsel’s investigation and related prosecutorial decisions; as a result, in that capacity, his candid prosecutorial recommendations to the Attorney General were especially valuable.” Id. at 14 – seems especially unhelpful since there was no prosecutorial decision on the table.

These are complaints about process, how certain content got into the declarations and memos submitted before her court, as much as they are about content. Again, DOJ simply blew off these complaints in their response to ABJ.

ABJ explains why they’re important in the section of her opinion addressing any claim to attorney-client privilege.

There are also other problems with the agency’s showing.

While the memorandum was crafted to be “from” Steven Engel in OLC, whom the declarant has sufficiently explained was acting as a legal advisor to the Department at the time, it also is transmitted “from” Edward O’Callaghan, identified as the Principal Associate Deputy Attorney General. The declarants do not assert that his job description included providing legal advice to the Attorney General or to anyone else; Colborn does not mention him at all, and Brinkmann simply posits, without reference to any source for this information, that the memo “contains OLC’s and the PADAG’s legal analysis and advice solicited by the Attorney General and shared in the course of providing confidential legal advice to the Attorney General.” Brinkmann Decl. ¶ 16.19

The declarations are also silent about the roles played by the others who were equally involved in the creation and revision of the memo that would support the assessment they had already decided would be announced in the letter to Congress. They include the Attorney General’s own Chief of Staff and the Deputy Attorney General himself, see Attachment 1, and there has been no effort made to apply the unique set of requirements that pertain when asserting the attorney-client privilege over communications by government lawyers to them. Therefore, even though Engel was operating in a legal capacity, and Section II of the memorandum includes legal analysis in its assessment of the strengths and weaknesses of the purely hypothetical case, the agency has not met its burden to establish that the second portion of the memo is covered by the attorney-client privilege.

19 The government’s memorandum adds that “PADAG O’Callaghan had been directly involved in supervising the Special Counsel’s investigation and related prosecutorial decisions,” Def.’s Mem. at 14, but that does not supply the information needed to enable the Court to differentiate among the many people with law degrees working on the matter.

Effectively, the details inserted into declarations and memos without the proper bases — the flourishes — both hint at and and serve to hide that there is no regularity to either the prosecutorial decision or the OLC advice included in this memo. Had Brinkmann supplied the details that would make her declaration proper — “well, I asked Ed O’Callaghan and he said this wasn’t so much Engel giving Barr advice but instead a bunch of men sitting in Barr’s office laying a paper trail” — it would have given the game away. But that’s what the record describes, and the import of the unexplained structure of this “OLC memo” — which normally would be given great deference in the case of deliberative claims — which is co-authored by someone acting in a prosecutorial role.

And rather than address ABJ’s complaints, the DOJ response admits that OLC is not authorized to make decisions for other parts of DOJ.

One relevant factor in determining whether a document is predecisional is whether the author possesses the legal authority to decide the matter at issue. See, e.g., Electronic Frontier Found. v. DOJ, 739 F.3d 1, 9 (D.C. Cir. 2014) (“OLC is not authorized to make decisions about the FBI’s investigative policy, so the OLC Opinion cannot be an authoritative statement of the agency’s policy.”).

And unstated in this Frankenstein structure is that the memo asks Ed O’Callaghan to make a decision that OLC has said that prosecutorial figures cannot make about the President.

This is why the comparison with Cheney is useful. John Yoo and Steven Bradbury wrote some unbelievably inexcusable memos to authorize the illegal actions Cheney wanted to pursue. They were used as (and indeed, at one point CIA asked for) advance prosecutorial declinations for crimes not yet committed. But with one exception from Bradbury, they maintained the form of an OLC memo. They started their memos with the assumptions that their ultimate audience had asked them to consider, performed the illusion of legal review, and provided the answer they knew their audience wanted.

Imagine if John Yoo had put David Addington or John Rizzo’s names on his memo as co-author; it would change the legal value of the memo entirely. Sure, we know that Yoo was right there in the room as Addington planned the torture program. But he nevertheless performed the illusion of legal advice.

Not so here.

I think McClanahan is right that the declarations being made to hide OLC memos from FOIA release have always been dodgy. I complained about Colburn pulling tricks in 2011 and 2016, for example. But to the extent that anyone looked at those memos — and to the extent that Barack Obama tried to break from the policies justified by them — they nevertheless had the appearance of regularity. They looked like legal advice, even if the legal advice was transparently shitty. And as a result, they made it very hard to hold people accountable for crimes they committed in reliance on the memo.

What separates this memo from the shitty memos used to justify torture is that it doesn’t have the appearance of regularity. It doesn’t even pretend that it’s not excusing (at least insofar as the pardon dangles) crimes in progress.

I agree with McClanahan that DOJ far too often is granted the presumption of regularity. The ultimate fate of this memo may break that habit.

But it also is different, and should be treated differently (and I hope CREW addresses this on appeal) because the process problems with this FOIA — the unexplained claims made by both Brinkmann and Straus Harris — were there to hide the fact that the process that created this memo was irregular, and therefore the claims themselves should not be accorded the presumption of regularity of a deliberative OLC memo.

And once you start to pull the threads on the attempts Barr made to protect Trump, they all tend to suffer from the same inept implementation. That inept — and, I suspect, at times illegal — implementation is what the Garland DOJ on its own or after being forced by the DC Circuit should use to distinguish Barr’s abuse of Attorney General prerogative from that entitled to defense out of an institutional basis. Barr not only abused his power (which Cheney also did) but he did so either without caring enough to pretend he was doing it right, or because he didn’t have the competence to do so (it also probably made things more difficult for him that he had to coerce so many career employees to effect his policies).

Both the torture memos and the Barr memo on the Mueller report were designed (at least in part) to immunize crimes in process. But Cheney’s willing OLC enabler at least insisted on pretending to be an objective lawyer.

The Manafort Unsealing and Konstantin Kilimnik

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Earlier this week, the court unsealed the filings in Paul Manafort’s case pertaining to his breach determination. I’ve put most of the filings below.

Much of what has been unsealed is not new. Because Manafort’s attorneys failed to actually redact their first response, the five topics about which the government claimed he lied were clear from early on, which made sussing out the rest possible. As one example, here’s a post from close to the end of the process that laid out a lot of what we knew and did not know.

That said, in part because of some big gaps in the Manafort docket, and in part because of the government’s increasing outspokenness about Konstantin Kilimnik, I want to lay out what has been released in significant fashion and what hasn’t.

When the WaPo first asked for this material, the government said no because of “ongoing investigations” and the privacy of uncharged people. When the parties came up with proposed redactions in July 2020, per a subsequently filed ABJ order, the redactions served to hide grand jury information and uncharged individuals; that is, the ongoing investigations were done. Then the WaPo pointed out several things that might be grand jury information, but should be released anyway, including people who have since been charged, including Greg Craig and Roger Stone by name, and grand jury information made public by Mueller.

Petitioner recognizes that grand jury proceedings are confidential under Rule 6(e) but asserts that “at least some” of the grand jury material in this matter should be unsealed because it has become public. Supp. Mem. at 12–13 (noting particularly the inadvertent disclosure of allegations that the defendant transferred presidential campaign polling data to Konstantin Kilimnik in the summer of 2016); see also Reply at 11 (noting certain information was made public in the March 2019 report of Special Counsel Robert Mueller). Petitioner also asserts that some of the individuals whose names and information were sealed in the court documents because they were not charged with any crimes had since been indicted. See Reply at 1 & n.2 (noting the indictments of Roger Stone and Gregory Craig).

Upon consideration of the parties’ arguments, the joint submission of the government and defendant Manafort, the applicable law, and the privacy interests of individuals who have not been charged, the Court finds that some of the information sought by petitioner may be unsealed but that some must remain sealed to protect grand jury materials and the identities or identifying information of uncharged individuals.

That’s what should be unsealed: people who have not been charged or stuff that’s not grand jury information.

As you can see below, virtually the only area where significantly new information was provided pertained to Manafort’s relationship with Kilimnik, starting with the August 2, 2016 meeting and extending for two years. That makes the delay in release (which admittedly could be COVID related) of particular interest: in that time, FBI released a wanted poster for Kilimnik with a $250,000 reward, and then Treasury stated as fact, just weeks before this release, that Kilimnik had, indeed, shared polling data and campaign strategy with Russian intelligence officers. In addition, as shown below, there are big unexplained gaps in the numbering of the docket, suggesting sealed filings (I had thought it related to the forfeiture, and it still might, but most of that was moved to a different docket).

FBI Agent Jeffrey Weiland’s declaration (here’s the original), laying out the five matters about which Manafort lied, is the best way to track what kinds of things have been unsealed or not. Here are the five topics about which Manafort lied, with a summary of what got newly unsealed in each:

Payment to Wilmer Hale: Manafort engaged in some kind of dodgy accounting to get money to pay his lawyers, who represented Manafort until August 2017. The investigation into this allegation was unsealed (along with other investigations that had been dropped) by September 2020. About the only thing that is newly released in all this is that Wilmer Hale was the firm in question, which would seem to be either an uncharged corporate entity or grand jury information that got publicly released.

Manafort’s efforts to protect Konstantin Kilimnik in the witness tampering conspiracy: In 2018, Kilimnik and Manafort were charged for conspiring to hide aspects of their Hapsburg project by trying to coach witnesses. The names of those former Hapsburg project associates, Alan Friedman and Eckart Sager, were redacted in the original and remain redacted.

Interactions with Kilimnik: In addition to trying to downplay Kilimnik’s role in the witness tampering conspiracy, Manafort was not forthcoming about the August 2, 2016 meeting with Kilimnik (though by the end of the breach agreement, Manafort had proven that prosecutors had misunderstood what happened with a printout of polling data that day), and he blatantly lied about their ongoing meetings about a Ukraine “peace” deal. This is where the most new material was released.

Some of this was already released in the Mueller Report. But there are passages that include information beyond the Mueller Report, both in Rick Gates filings (which also were released to BuzzFeed), or — for example — in this passage from a Manafort filing.

The OSC contends that Mr. Manafort lied about his meeting with Mr. Kilimnik and [redacted: probably Georgiy Oganov] January 2017. (Doc. 464 at 14-15, ¶33-35). In particular, the OSC alleges that in one interview Mr. Manafort stated [redacted] did not present a plan for peace at the meeting or ask Mr. Manafort for anything and, subsequently, Mr. Manafort said that he discussed a peace plan during the meeting. Contrary to the OSC’s allegations, these statements are not inconsistent. First, during the interview, Mr. Manafort noted that while [redacted] did not present a peace plan or ask for anything, they did discuss Ukraine, in general, and Eastern Ukraine and Crimea, in particular.

Kilimnik has been charged. But not — as far as is public — for this stuff.

Another DOJ investigation: Little new is unredacted in a passage that describes the investigation in another district that Manafort first told a damning story to, and then reneged on that story: but what is unredacted is actually key. First, a footnote that must modify the overview section links to Michael Cohen’s Criminal Information. Given the timing, the issue in question is probably the effort to buy off Karen McDougal. Another filing describes that the information implicated Senior Administration Officials, which would seem to rule out Don Jr or Cohen himself, so must implicate Trump himself and, likely, Kushner. (I’ll return to this, because other discussions of this implicate a Roger Stone email to Manafort.)

Manafort’s Contact with the Administration: This section also remains largely the same with one big exception: it describes that some lobbying he was helping people do targeted Department of Labor and pertained to ERISA. That contact has nothing to do with Igor Fruman (with whom Manafort does have ties) and Lev Parnas, who were beginning to sidle up to Trump in this period. ABJ ruled that the government hadn’t proven their case on this point, and the ERISA focus sure helps make that case.

Documents

Exhibit 1. Government’s Submission in Support of its Breach Determination: 461 (675)

Exhibit 2. Defendant Paul J. Manafort Jr.’s Response to the Special Counsel’s Submission in Support of its Breach Determination: 470 (676)

Exhibit 3. Weiland Declaration in Support of the Government’s Breach Determination and Sentencing: 477 (677)

Exhibit 4. Defendant Paul J. Manafort, Jr.’s Reply to the Special Counsel’s Declaration and Exhibits in Support of its Breach Determination: 481 (678)

Exhibit 5. Transcript of Sealed Hearing Hld before Judge Amy Berman Jackson on 2/4/2019

Exhibit 6. Defendant Paul J. Manafort, Jr.’s Post Hearing Memorandum: 502 (679)

Exhibit 7. Government’s Supplement to the Record in Response to Defendant Manafort’s Post Hearing Memorandum: 507 (680)

Exhibit 8. Transcript of Sealed Hearing Held Before Judge Amy Berman Jackson on 2/13/2019

Exhibit 9. Government’s Sentencing Memorandum: 528 (681)

Exhibit 10. Government’s Supplemental Memorandum with Respect to the Court’s February 13, 2019 Ruling: 533/537 (682)

Exhibit 11. Defendant Paul J. Manafort’s Reply and Motion to Reconsider Based on the Special Counsel’s Supplemental Memorandum With Respect to the Court’s February 13, 2019 Ruling: 538 (683)

Exhibit 12. Minute Order on March 1, 2019

The Manafort docket is here and the docket for the WaPo effort that liberated the files is here.

Timeline

March 7, 2019: WaPo moves to release the documents

March 13, 2019: Manafort sentencing

March 19, 2019: Michael Dreeben, still on the Mueller team, moves for a short extension until the release of the Mueller Report

March 25, 2019: Post-sentencing DC USAO replaces Mueller team with Deborah Curtis, Zia Faruqui, Jonathan Kravis

March 27, 2019: DC USAO, having inherited the case, moves for another short extension

April 15, 2019: Jonathan Kravis opposes an immediate unsealed, in part on account of “ongoing investigations,” and asks for an abeyance until October 15, 2019

December 6, 2020: ABJ orders Manafort and the government to see whether documents can be unsealed

January 5, 2020: Kravis asks for a 60-day deadline to review the documents

February 11, 2020: In response to Barr’s interference in Stone case, Kravis and all other Stone prosecutors quit

March 3, 2020: Molly Gaston takes over and submits a joint motion for a further 60 day delay

April 28, 2020: Citing COVID, parties submit joint motion for further 30 day delay

June 2, 202: Parties submit joint motion for further 30 day delay

June 23, 2020: FBI releases Wanted poster for Konstantin Kilimnik offering $250,000 for his arrest

July 20, 2020: Parties submit sealed redactions, asking to keep “information from grand jury proceedings protected by Federal Rule of Criminal Procedure 6(e) or [that is] is necessary to protect the privacy interests of certain individuals” sealed

August 19, 2020: FBI releases second package of Kilimnik wanted materials

October 13, 2020: DC USAO replaces Zia Faruqui after he becomes a magistrate judge, with Arvind Lal

April 15, 2021: Treasury states as fact that Kilimnik shared polling data and campaign strategy with Russian intelligence

May 21, 2021: ABJ orders release, protecting only grand jury information and identities that have not been charged

Bill Barr Issued Prosecution Declinations for Three Crimes in Progress

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On March 24, 2019, by judging that there was not evidence in Volume II of the Mueller Report that Trump had obstructed justice, Billy Barr pre-authorized the obstruction of justice that would be completed with future pardons of Mike Flynn, Paul Manafort, and Roger Stone. He did so before the sentencing of Flynn and before even the trial of Stone.

This is why Amy Berman Jackson should not stay her decision to release the Barr Memo. It’s why the question before her goes well beyond the question of whether the Barr memo presents privileged advice. What Barr did on March 24, 2019 was pre-authorize the commission of crimes that ended up being committed. No Attorney General has the authority to do that.

As the partially unsealed memo makes clear, Steve Engel (who, even per DOJ’s own filing asking for a stay, was not permitted to make prosecutorial decisions) and Ed O’Callaghan (who under the OLC memo prohibiting the indictment of the President, could not make prosecutorial decisions about the President) advised Bill Barr that he should, “examine the Report to determine whether prosecution would be appropriate given the evidence recounted in the Special Counsel’s Report, the underlying law, and traditional principles of federal prosecution.”

In her now-unsealed memo ordering the government to release the memo, ABJ argues, “the analysis set forth in the memo was expressly understood to be entirely hypothetical.”

It was worse than that.

It was, necessarily, an instance of “Heads Trump wins, Tails rule of law loses.” As the memo itself notes, the entire exercise was designed to avoid, “the unfairness of levying an accusation against the President without bringing criminal charges.” It did not envision the possibility that their analysis would determine that Trump might have committed obstruction of justice. So predictably, the result of the analysis was that Trump didn’t commit a crime. “[W]ere there no constitutional barrier, we would recommend, under Principles of Federal Prosecution, that you decline to commence such a prosecution.”

The government is now appealing ABJ’s decision to release the memo to hide the logic of how Engel and O’Callaghan got to that decision. And it’s possible they want to hide their analysis simply because they believe that, liberated from the entire “Heads Trump wins, Tails rule of law loses” premise of the memo, it becomes true deliberative advice (never mind that both Engel and O’Callaghan were playing roles that OLC prohibits them to play).

But somehow, in eight pages of secret analysis, Engel and O’Callaghan decide — invoking the entire Special Counsel’s Report by reference — that there’s not evidence beyond a reasonable doubt that Trump obstructed justice.

We can assume what some of these eight pages say. In the newly unsealed parts, Engel and O’Callaghan opine, “that certain of the conduct examined by the Special Counsel could not, as a matter of law, support an obstruction charge under the circumstances.”

As Quinta Jurecic’s epic chart lays out, the potential instances of obstruction of justice before Engel and O’Callaghan included a number of things involving Presidential hiring and firing decisions — the stuff which the memo Bill Barr wrote as an audition for the job of Attorney General said could not be obstruction.

To address those instances of suspected obstruction, then, Engel and O’Callaghan might just say, “What you said, Boss, in the memo you used to audition to get this job.” That would be scandalous for a whole bunch of reasons — partly because Barr admitted he didn’t know anything about the investigation when he wrote the memo (even after the release of the report, Barr’s public statements made it clear he was grossly unfamiliar with the content of it) and partly because it would raise questions about whether by hiring Barr Trump obstructed justice.

But that’s not actually the most scandalous bit about what must lie behind the remaining redactions. As Jurecic’s chart notes, beyond the hiring and firing obstruction, the Mueller Report laid out several instances of possible pardon dangles: to Mike Flynn, to Paul Manafort, to Roger Stone, and to Michael Cohen. These are all actions that, in his confirmation hearing, Barr admitted might be crimes.

Leahy: Do you believe a president could lawfully issue a pardon in exchange for the recipient’s promise to not incriminate him?

Barr: No, that would be a crime.

Even Barr admits the question of pardon dangles requires specific analysis.

Klobuchar: You wrote on page one that a President persuading a person to commit perjury would be obstruction. Is that right?

Barr: [Pause] Yes. Any person who persuades another —

Klobuchar: Okay. You also said that a President or any person convincing a witness to change testimony would be obstruction. Is that right?

Barr: Yes.

Klobuchar: And on page two, you said that a President deliberately impairing the integrity or availability of evidence would be an obstruction. Is that correct?

Barr: Yes.

Klobuchar: OK. And so what if a President told a witness not to cooperate with an investigation or hinted at a pardon?

Barr: I’d have to now the specifics facts, I’d have to know the specific facts.

Yet somehow, in eight pages of analysis, Engel and O’Callaghan laid out “the specific facts” that undermined any case against Trump for those pardon dangles. I’d be surprised if they managed to do that convincingly in fewer than eight pages, particularly since they make clear that they simply assume you’ve read the Mueller Report (meaning, that analysis almost certainly doesn’t engage in the specific factual analysis that Bill Barr says you’d need to engage in).

The far, far more problematic aspect of this analysis, though, is that, of the four potential instances of pardon dangles included in the Mueller Report, three remained crimes-in-progress on March 24, 2019 when Barr issued a statement declining prosecution for them.

By then, Michael Cohen had already pled guilty and testified against Trump. But Paul Manafort had only just been sentenced after having reneged on a cooperation agreement by telling lies to hide what the government has now confirmed involved providing assistance (either knowing or unknowing) to the Russia election operation. Mike Flynn had not yet been sentenced — and in fact would go on to renege on his plea agreement and tell new lies about his conduct, including that when he testified to the FBI that he knew he discussed sanctions, he didn’t deliberately lie. And Roger Stone hadn’t even been tried yet when Barr said Stone’s lies to protect Trump weren’t a response to Trump’s pardon dangles. In fact, if you believe Roger Stone (and I don’t, in part because his dates don’t line up), after the date when Barr issued a declination statement covering Trump’s efforts to buy Stone’s silence, prosecutors told him,

that if I would really remember certain phone conversations I had with candidate trump, if I would come clean, if I would confess, that they might be willing to, you know, recommend leniency to the judge perhaps I wouldn’t even serve any jail time

If that’s remotely true, Barr’s decision to decline prosecution for the pardon dangles that led Stone to sustain an obviously false cover story through his trial itself contributed to the obstruction.

Barr’s decision to decline prosecution for obstruction crimes that were still in progress may explain his even more outrageous behavior after that. For each of these remaining crimes in progress, Barr took steps to make it less likely that Trump would issue a pardon. He used COVID as an excuse to spring Paul Manafort from prison to home confinement, even though there were no cases of COVID in Manafort’s prison at the time. He engaged in unprecedented interference in the sentencing process for Roger Stone, even going so far as claiming that threats of violence against (as it happens) Amy Berman Jackson were just a technicality not worthy of a sentencing enhancement. And Bill Barr’s DOJ literally altered documents in their effort to invent some reason to blow up the prosecution of Mike Flynn.

And Barr may have realized all this would be a problem.

On June 4, a status report explained that DOJ was in the process of releasing the initially heavily redacted version of this memo to CREW and expected that it would be able to do so by June 17, 2020, but that “unanticipated events outside of OIP’s control” might delay that.

However, OIP notes that processing of the referred record requires consultation with several offices within DOJ, and that unanticipated events outside of OIP’s control may occur in these offices that could delay OIP’s response. Accordingly, OIP respectfully submits that it cannot definitively guarantee that production will be completed by June 17, 2020. However, OIP will make its best efforts to provide CREW with a response regarding the referred record on or before June 17, 2020

This consultation would have occurred after Judge Emmet Sullivan balked at DOJ’s demand that he dismiss the Flynn prosecution, while the DC Circuit was reviewing the issue. And it occurred in the period when Stone was using increasingly explicit threats against Donald Trump to successfully win a commutation of his sentence from Trump (the commutation occurred weeks after DOJ gave CREW a version of the memo that hid the scheme Barr had engaged in). That is, DOJ was making decisions about this FOIA lawsuit even as Barr was taking more and more outrageous steps to try to minimize prison time — and therefore the likelihood of a Trump pardon — for these three. And Trump was completing the act of obstruction of justice that Barr long ago gave him immunity for by commuting Stone’s sentence.

Indeed, Trump would go on to complete the quid pro quo, a pardon in exchange for lies about Russia, for all three men. Trump would go on to commit a crime that Barr already declined prosecution for years earlier.

While Barr might believe that Trump’s pardon for Mike Flynn was righteous (even while it undermined any possibility of holding Flynn accountable for being a secret agent of Turkey), there is no rational argument you can make that Trump’s pardon of Manafort after he reneged on his plea deal and Trump’s pardon of Stone after explicit threats to cooperate with prosecutors weren’t obstruction of justice.

This may influence DOJ’s decision not to release this memo, and in ways that we can’t fathom. There are multiple possibilities. First, this may be an attempt to prevent DOJ’s Inspector General from seeing this memo. At least the Manafort prison assignment and the Stone prosecution were investigated and may still be under investigation by DOJ. If Michael Horowitz discovered that Barr took these actions after approving of a broad pre-declination for pardon-related obstruction, it could change the outcome of any ongoing investigation.

It may be an effort to stave off pressure to open a criminal investigation by DOJ into Barr’s own actions, a precedent no Attorney General wants to set.

Or, it may just be an effort to hide how many of DOJ’s own rules DOJ broke in this process.

But one thing is clear, and should be clearer to ABJ than it would be to any other judge: Bill Barr issued a prosecution declination for three crimes that were still in process. And that’s what DOJ is hiding.

Amy Berman Jackson Accuses Bill Barr of a Preemptive Strike on the Mueller Report

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I was down so many rabbit holes today I forgot to link to Amy Berman Jackson’s unsealed opinion, which she released today (here’s the redacted version).

Much of what had previously been redacted pertained to the first section, which got released last night. Otherwise, there’s ABJ’s accusation that DOJ was hiding that Bill Barr launched a pre-emptive strike on the Mueller Report.

But given ABJ’s notice that she’s still considering whether to grant the government a stay, I think this footnote (the bold was formerly redacted) is of interest.

18 There is no need for the Court to determine what its ruling would have been had the agency candidly informed it that the purpose of the document was to provide legal analysis to help shape the assessment of the Special Counsel’s report that the Attorney General was planning to announce for the reasons set forth in Section I of the memorandum. It is the government’s burden to support its withholdings.

This is the question before her now, whether the advice in the redacted section is so tainted by its purpose that she’ll release the full memo.

My guess is she won’t — unless there’s something about the analysis itself, such as that it obviously replicates Barr’s opinion about the investigation that he used to get hired, or if it misrepresents the results of the investigation (remember, ABJ presided over Paul Manafort’s DC proceedings and Roger Stone’s trial, so she knows what Mueller found as well as anyone). And the pardons Trump has since offered the people whose lies he guaranteed by dangling those pardons may alter this calculus, particularly if the analysis contradicts Barr’s agreement, offered three times in his confirmation hearing, that dangling pardons for false testimony would be obstruction.

Until then, DOJ has already launched its appeal.

Frankenstein’s OLC: DOJ Says DOJ Can’t Do What DOJ Did in the Barr Memo

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DOJ’s memo asking Amy Berman Jackson to stay her opinion releasing the OLC memo admits that DOJ is not permitted to do what DOJ did with the Barr memo it is trying to withhold from FOIA. And part of the memo itself, which DOJ unsealed last night, also shows DOJ is not permitted to do what DOJ did.

The memo itself admits, for example, that the OLC is not permitted to do what only other parts of DOJ — here, FBI — have the authority to do.

One relevant factor in determining whether a document is predecisional is whether the author possesses the legal authority to decide the matter at issue. See, e.g., Electronic Frontier Found. v. DOJ, 739 F.3d 1, 9 (D.C. Cir. 2014) (“OLC is not authorized to make decisions about the FBI’s investigative policy, so the OLC Opinion cannot be an authoritative statement of the agency’s policy.”).

That undoubtedly extends to prosecutorial decisions. And yet OLC did make a prosecutorial decision.

Rather, the declarations and briefs on the whole made clear that the decision in question was whether the facts articulated by Volume II of the Special Counsel’s Report were sufficient to establish that the President had committed obstruction of justice, i.e., whether the facts constituted prosecutable conduct under the Principles of Federal Prosecution.

DOJ found a way around that, of course, in Julie Straus Harris’ flourish: the inclusion of Ed O’Callaghan in the deliberation. Except that’s a problem, because every declaration in this litigation treats this as an OLC memo, not a prosecutorial memo.

Moreover, it means O’Callaghan made a decision he was not permitted to do by the OLC: make a decision about whether or not the President committed a crime.

In fact, the memo itself states that DOJ is limited in what it can do: either bring charges or not.

Although the Special Counsel has declined to reach a conclusion, we think that the Department should reach a judgement on this matter. Under traditional principles of prosecution, the Department either brings charges or it does not.

Except in this instance, Barr did something else (indeed, ABJ’s memo makes it clear that was the entire point): he announced a decision on prosecution that was more than a declination. He chose to make a decision that OLC says he can’t make.

OLC does not, as it would be required to, state that DOJ can make a prosecutorial decision that involves something other than bringing charges or not.

This is, ultimately, a Frankenstein monster, both a prosecutorial decision that, absent more analysis than appears here, OLC says neither O’Callaghan nor Barr were permitted to make, and an OLC memo engaged in a prosecutorial role that OLC says OLC can’t do. Effectively, then, this memo engages in activities that defies the claim that OLC guidance governs the entirety of the Executive Branch, including OLC.

On the Barr Memo: Julie Straus Harris Says Julie Straus Harris’ Unexplained “Flourish” Wasn’t a Lie

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Yesterday, DOJ told Amy Berman Jackson that they will appeal her decision to release the entirety of a memo written to justify Billy Barr taking a “Heads Trump wins Tails democracy loses” approach to the decision on how to deal with the Mueller Report. There are several problems with their motion for a stay while they do that.

To understand the first problem, note the signature line of their motion for a stay.

It is signed by — among others — Julie Straus Harris.

That’s a problem, possibly even an ethical one, because in addition to problems with the declarations submitted by Vanessa Brinkmann and Paul Colburn, ABJ had a specific problem with a brief submitted by Straus Harris (and approved by Elizabeth Shapiro, her boss).

As ABJ noted in her opinion, Straus Harris added a “flourish” that was not supported by any of the underlying declarations.

And the in camera review of the document, which DOJ strongly resisted, see Def.’s Opp. to Pl.’s Cross Mot. [Dkt. # 19] (“Def.’s Opp.”) at 20–22 (“In Camera Review is Unwarranted and Unnecessary”), raises serious questions about how the Department of Justice could make this series of representations to a court in support of its 2020 motion for summary judgment:

[T]he March 2019 Memorandum (Document no. 15), which was released in part to Plaintiff is a pre-decisional, deliberative memorandum to the Attorney General from OLC AAG Engel and PADAG Edward O’Callaghan . . . . The document contains their candid analysis and advice provided to the Attorney General prior to his final decision on the issue addressed in the memorandum – whether the facts recited in Volume II of the Special Counsel’s Report would support initiating or declining the prosecution of the President . . . . It was provided to aid in the Attorney General’s decision-making processes as it relates to the findings of the Special Counsel’s investigation . . . . Moreover, because any determination as to whether the President committed an obstruction-of-justice offense was left to the purview of the Attorney General, the memorandum is clearly pre-decisional.

Def.’s Mem. in Supp. of Mot. [Dkt. # 15-2] (“Def.’s Mem.”) at 14–15 (internal quotations, brackets, and citations omitted).13

13 The flourish added in the government’s pleading that did not come from either declaration – “PADAG O’Callaghan had been directly involved in supervising the Special Counsel’s investigation and related prosecutorial decisions; as a result, in that capacity, his candid prosecutorial recommendations to the Attorney General were especially valuable.” Id. at 14 – seems especially unhelpful since there was no prosecutorial decision on the table.

In the motion for a stay, Julie Straus Harris says, sorry, “the briefs” — her briefs — “could have been clearer … but the government’s counsel” — meaning, Straus Harris — “did not intend to mislead the Court.”

On the merits, the Court’s decision was substantially premised on the view that the government’s briefs and declarations incorrectly described the nature of the decisional process in which the Attorney General was engaged. In retrospect, the government acknowledges that its briefs could have been clearer, and it deeply regrets the confusion that caused. But the government’s counsel and declarants did not intend to mislead the Court, and the government respectfully submits that imprecision in its characterization of the decisional process did not warrant the conclusion that Document no. 15 was unprotected by the deliberative process privilege.

The motion spends several pages explaining why the Brinkmann and Colburn declarations were not misleading. That section vaguely waves at “briefing” to address claimed inaccuracies in the briefs written by Straus Harris. The section mentions the offending brief once, but without even remotely addressing the brief itself.

The first Colborn Declaration likewise explained that Document no. 15 “was submitted to the Attorney General to assist him in determining whether the facts set forth in Volume II of Special Counsel Mueller’s report ‘would support initiating or declining the prosecution of the President for obstruction of justice under the Principles of Federal Prosecution.’” Colborn Decl. ¶ 17. That description quotes from the unredacted portion of the opening sentence of the memorandum and is accurate; it neither states nor necessarily implies that the authors were advising the Attorney General on whether the President should actually be prosecuted. See also Def.’s Mem. in Supp. of Mot. for Summ. J. (Def.’s Mem.) (ECF No. 15-2) 14 (quoting Colborn Decl.). [my emphasis]

But the section explaining that ABJ’s complaints, while understandable, are unfounded never addresses ABJ’s complaint about the Straus Harris “flourish,” which is a complaint of a different kind. Edward O’Callaghan is only mentioned as an author of this memo.

To be sure: Straus Harris didn’t simply invent O’Callaghan’s role or his import out of thin air. She’s not making stuff up. She’s right that her claim about O’Callaghan was not a lie, even if she never makes it explicitly. But in a legal and ethical sense, she made an assertion about which no one has asserted to the veracity or even explained. This memo assumes as given that OLC and a prosecutor’s supervisor can get together and write an OLC memo, something which was obviously problematic even before these memos started coming out. And that’s a problem because the reasons why DOJ didn’t want to explain O’Callaghan’s role in a declaration (indeed, could not) go to the core of the problems with the Barr Memo.

I’m sympathetic that Straus Harris got put on the front line to answer for Billy Barr’s wildly inappropriate efforts to give the President a clean bill of health. But she is now in a position where she’s submitting a brief about her own conduct, and that brief entirely ignores ABJ’s complaint about her conduct.

Had Paul Colburn included in his declarations an admission that DOJ had let O’Callaghan serve a hybrid role, ABJ wouldn’t have had the confusion that DOJ is now trying to explain away. But admitting that would have — and does — admit to far graver problems with the Barr Memo.