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Robert Mueller Insinuates Andrew Weissmann Had Incomplete Information

I’ve started reading Andrew Weissmann’s book.

I’m sure I’ll have a review of it one day, like I one day will finally do the post explaining why I think Peter Strzok’s book came 6 months or maybe a year too late.

But for the moment, I want to talk about this Robert Mueller comment obliquely pushing back on Weissmann’s book.

Former special counsel Robert S. Mueller III pushed back Tuesday against a prosecutor in his office who says in a tell-all book that investigators should have done more to hold President Trump accountable, suggesting that the account is “based on incomplete information” and asserting that he stands by his decisions in the case.

The rare public statement from Mueller came on the day Andrew Weissmann, a former prosecutor in the special counsel’s office, released a book alleging that the group did not fully investigate Trump’s financial ties and should have stated explicitly that it believed he obstructed justice.

Although Mueller’s statement did not name Weissmann or the book, “Where Law Ends,” it seemed clearly designed to address some of his complaints — particularly those directed at Aaron Zebley, Mueller’s top deputy, whom Weissmann said was not sufficiently aggressive.

“It is not surprising that members of the Special Counsel’s Office did not always agree, but it is disappointing to hear criticism of our team based on incomplete information,” Mueller said.

Weissmann’s book bills itself as the tell-all from the investigation. But it’s generally not. It’s the tell-all of one-third of the investigation, the Manafort team. The book will tell how they got Rick Gates to flip and thought they got Manafort to cooperate but in the end Manafort just used that as an opportunity to find out what prosecutors knew, so he could report back to Trump. There are interesting details in that. But the interesting details cover just a third of the investigation.

Just as a metric of what I mean, the name Stone shows up 18 times in his book, and a number of those contextualize the rat-fucker’s decades-old relationship with Manafort.

I think Mueller’s comment suggesting that Weissmann had “incomplete information” is particularly salient, given what is public with regards to the obstruction investigation, another third of the investigation.

That’s because the way the Mueller Report is built, it lays out predicate such that when Trump commutes Stone’s sentence or when Trump causes his Attorney General to move Manafort to home confinement or when Trump gets Barr to use throw multiple different flunkies to blow up the Mike Flynn prosecution — all in an effort to get Roger Stone and Paul Manafort and Mike Flynn to continue to cover up what really happened in 2016 — that only builds on the obstruction volume. Those efforts become part of a continuing conspiracy to cover all this up. So, short of the increasing likelihood that Trump pardons himself and/or refuses to cede power, the Mueller investigation is preserved, the obstruction charges are preserved. They’re even preserved given Billy Barr’s judgement that the facts, on March 22, 2019 did not yet merit obstruction charges, because after that time, Trump would have done what it was obvious he would do as laid out in Volume II, in fact what Billy Barr said was a crime three times in his confirmation hearing.

The way in which the Mueller Report is drafted, it takes the rule that you cannot charge the President for anything, and preserves the obstruction charges that everyone agrees he should be charged with. It not only does that, but it lays out evidence that if Trump uses his pardon power to reward his flunkies for covering up his actions — something even Billy Barr has said is a crime — then it will amount to completing the criminal act of obstruction. The Mueller Report lays out the evidence why the actions that Trump will eventually take (and to a significant extent, has already taken) amount to a crime.

That’s a still-imperfect solution, given that Congress didn’t do what Mueller seems to have expected (impeach) and given that Trump looks increasingly likely to refuse to leave. It doesn’t negate what Weissmann argues about the rule of law.

But it does make Mueller’s public but oblique rebuke of Weissmann far more interesting.

The Proud Boys Have Already Been Used to Intimidate Those Holding Trump Accountable — and Bill Barr Has Protected Them

As a number of people have observed, in last night’s debate, Donald Trump not only refused to condemn white supremacist terrorists, but seemed to call on them to stand by to support him.

President Donald J. Trump: (42:10)
What do you want to call them? Give me a name, give me a name, go ahead who do you want me to condemn.

Chris Wallace: (42:14)
White supremacist and right-wing militia.

President Donald J. Trump: (42:18)
Proud Boys, stand back and stand by. But I’ll tell you what somebody’s got to do something about Antifa and the left because this is not a right wing problem this is a left wing.

He named the Proud Boys explicitly.

Today, I noted that the reason why Randy Credico took Roger Stone’s threats seriously — the reason the witness tampering charge merited the full enhancement — was because of Stone’s ties to the Proud Boys. Credico confirmed that by posting a picture of Stone with his gang.

In Stone’s sentencing hearing, Judge Amy Berman Jackson described how Credico told the grand jury he was worried about Stone’s gang.

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

It’s not just Credico. When ABJ held a hearing to consider a gag on Roger Stone, she first got him to explain how his associates — whom he first declined to identify but then, when pressed by prosecutor Jonathan Kravis, named Proud Boys members Jacob Engles and Enrique Tarrio — had been working with him on that post but he couldn’t really describe who had picked the image of Judge Jackson with the crosshairs on it.

Amy Berman Jackson. How was the image conveyed to you by the person who selected it?

Stone. It was emailed to me or text-messaged to me. I’m not certain.

Q. Who sent the email?

A. I would have to go back and look. I don’t recognize. I don’t know. Somebody else uses my —

THE COURT: How big is your staff, Mr. Stone?

THE DEFENDANT: I don’t have a staff, Your Honor. I have a few volunteers. I also — others use my phone, so I’m not the only one texting, because it is my account and, therefore, it’s registered to me. So I’m uncertain how I got the image. I think it is conceivable that it was selected on my phone. I believe that is the case, but I’m uncertain.

THE COURT: So individuals, whom you cannot identify, provide you with material to be posted on your personal Instagram account and you post it, even if you don’t know who it came from?

THE DEFENDANT: Everybody who works for me is a volunteer. My phone is used by numerous people because it can only be posted to the person to whom it is registered.

[snip]

Jonathan Kravis. What are the names of the five or six volunteers that you’re referring to?

Stone. I would — Jacob Engles, Enrique Tarrio. I would have to go back and look

When she imposed a gag on Stone, she explained that his Instagram post amounted to incitement of others, people with extreme views and violent inclinations.

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

[snip]

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

Then, again at the sentencing hearing, ABJ talked about the risk that, “someone else, with even poorer judgment than he has, would act on his behalf.

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

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

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

Both Credico and ABJ, then, pointed to the white supremacist gang that Roger Stone hangs out with to explain why Roger Stone’s threats must be taken seriously.

And Bill Barr dismissed the seriousness of both those threats — the threats Roger Stone makes that might lead one of his associates to take violent action — when he undermined the sentencing recommendation on Stone.

Trump’s invocation of the Proud Boys is no idle threat. Because the Proud Boys have already been used to intimidate those holding Donald Trump accountable.

On a Key Issue in Mike Flynn’s Case — which FBI Agent to Believe — DOJ Argued against DOJ

The epic five hour hearing in the Mike Flynn case just wrapped up.

The most notable events, one which may utterly sway Judge Sullivan’s opinion, were two details that would give Sullivan reason to say this is the exceptional case where he should not grant the motion to dismiss.

The first was Sidney Powell’s admission that she has spoken to the President about this case, and also spoken with Trump’s campaign lawyer, Jenna Ellis, about it, the latter apparently more than once. Powell tried to claim Executive Privilege for her conversation(s) with the President about the case, until Sullivan pointed out the sheer absurdity of that. Powell was never asked why she was speaking to a lawyer, Ellis, whose job it is to make sure the President doesn’t break any campaign finance laws about this case. Still, those admissions, handled with all the leaden aplomb that Powell exemplifies, will provide Sullivan ample basis (on top of Trump’s tweets and everything else) to prove that this was all politicized by the President.

The other detail that might really sway Sullivan was the judge’s mention of Aitan Goelman’s letter informing Judge Sullivan that someone — and Goelman did not speculate on who might have done this — altered the notes of his client. Sullivan said he was “floored” when he read the letter.  Later on, Powell accused Strzok of being the dirtiest FBI agent of all time. Some other things make me wonder — though this would make the logistics rather interesting — whether Powell was the one who altered the notes. In any case, Sullivan ordered that someone authenticate the filings submitted to the court.

Judge Sullivan was already bugged by the letter Sidney Powell wrote to Billy Barr asking that he do all the things he subsequently did, notably appoint a lawyer to review the entirety of the prosecution. The confirmation that Powell has been personally lobbying Trump’s (!!!) campaign lawyer for intervention seems to seal the proof that this is political.

Still, perhaps a more substantive problem with the pro-Flynn argument is that DOJ’s two representatives (Ken Kohl for the DC US Attorney’s Office) and the Solicitor General’s counsel, Hashim Mooppan) contradicted each other on a key issue.

Mooppan repeatedly claimed, “what if it were true that this was a witch hunt”? He relied, significantly, on two things. First, Bill Priestap’s notes clearly recording that FBI did the interview to figure out whether Mike Flynn would tell the truth.

Rather than focusing on what Priestap and every witness confirmed in real time and since was the purpose of the interview, Mooppan instead focused on Priestap’s notation of the debate before this, about whether they just wanted to get Flynn to lie. As John Gleeson pointed out, though, that would not make Flynn abnormal at all. That happens to defendants all the time. But in fact, Gleeson further noted, that’s not what happened; Peter Strzok and Joe Pientka actually cued Flynn with his own words to make sure he had an opportunity to fix the record, and Flynn did not do so. Moreover, all other witnesses said the same thing Priestap did: the point of the interview was to see if Flynn would tell the truth.

Plus, there’s a real problem with Mooppan’s reliance on Priestap’s notes. As the NYT reported, DOJ rushed to move to dismiss the case while Priestap’s 302 was being finalized.

Priestap, the former head of F.B.I. counterintelligence, two days before making their extraordinary request to drop the case to Judge Emmet G. Sullivan. They did not tell Judge Sullivan about Mr. Priestap’s interview. A Justice Department official said that they were in the process of writing up a report on the interview and that it would soon be filed with the court.

The department’s motion referred to notes that Mr. Priestap wrote around the bureau’s 2017 questioning of Mr. Flynn, who later pleaded guilty to lying to investigators during that interview. His lawyers said Mr. Priestap’s notes — recently uncovered during a review of the case — suggested that the F.B.I. was trying to entrap Mr. Flynn, and Attorney General William P. Barr said investigators were trying to “lay a perjury trap.”

That interpretation was wrong, Mr. Priestap told the prosecutors reviewing the case. He said that F.B.I. officials were trying to do the right thing in questioning Mr. Flynn and that he knew of no effort to set him up. Media reports about his notes misconstrued them, he said, according to the people familiar with the investigation.

The department’s decision to exclude mention of Mr. Priestap’s interview in the motion could trouble Judge Sullivan, who signaled late on Tuesday that he was skeptical of the department’s arguments.

In spite of its ability to turn Bill Barnett’s 302 around in a week, DOJ has never disclosed Priestap’s 302 debunking this claim to Judge Sullivan. These notes don’t say what Mooppan falsely claimed to Sullivan they did. And that may become more clear in days ahead.

The other thing Mooppan relied upon, repeatedly, was the claim that Pientka and Strzok didn’t believe Flynn had lied after they interviewed him (he also relied on a Jim Comey comment, made without knowledge of all the evidence that FBI subsequently gathered, that corroborated the evidence that Flynn had lied). Except that’s not what they said (and some of the texts that DOJ has released make this clear). They believed Flynn either believed what he said (though they’d get proof later he did not), or that he was just a very accomplished liar.

Meanwhile, Ken Kohl, who was named Acting Principal AUSA at around the same time as this motion to dismiss, and who seemed genuinely ignorant of key details of the case but nevertheless wanted to claim that DC USAO wasn’t acting politically (Roger Stone’s case did not come up), said a number of things that conflict with what DOJ has already said (including that any of this was Brady).

Significantly, however, he seemed really impressed with Bill Barnett’s 302, perhaps because he doesn’t know the case well enough to know how many glaring contradictions there are in the 302 (which makes me wonder whether he was a source for WaPo’s supine treatment of the interview). Kohl talked about all the claims — belied by actual primary documents, basic logic, and gravity — Barnett made that don’t hold up to scrutiny.

The question of whether Bill Barnett sent pro-Trump tweets on his FBI phone — making him the mirror image of Peter Strzok — never came up in today’s hearing.

But John Gleeson did note that Barnett had none of the doubts that Mooppan claimed (falsely) that Strzok and Pinetka had.

That means, ultimately, DOJ was arguing against DOJ.

Mooppan claimed that Strzok and Pientka’s alleged doubts that Flynn lied — refuted by documents already shared with Sullivan — proved DOJ had to dismiss the case. Kohl, meanwhile, claimed that Barnett’s 302 — which showed he had absolutely no doubt that Flynn lied to the FBI — proved DOJ couldn’t prosecute the case.

There’s not actually a controversy here: At least Strzok and Barnett agree that Flynn lied, which should be all it takes. (Indeed, Barnett could testify that Flynn did lie, if DOJ needs an aggressively pro-Trump agent to put on the stand.)

But the Solicitor General’s office relies on the agents who said that Flynn was a good liar and DC USAO sides with the agent who states clearly that Flynn lied.

John Gleeson has noted that DOJ can’t keep its story straight from week to week. In today’s hearing, they couldn’t even keep their story straight from lawyer to lawyer.

Billy Barr Releases 302 that Proves View of Pro Mike Flynn Agent Held Sway in Mueller Report Conclusions

Before I do a deep dive of the 302 that Billy Barr had released in yet another attempt to blow up the Mike Flynn prosecution, let me review the conclusion of the Mueller Report was with regards to whether President Trump even knew about Mike Flynn’s calls with Sergey Kislyak, much less ordered them.

Some evidence suggests that the President knew about the existence and content of Flynn’s calls when they occurred, but the evidence is inconclusive and could not be relied upon to establish the President’s knowledge.

[snip]

Our investigation accordingly did not produce evidence that established that the President knew about Flynn’s discussions of sanctions before the Department of Justice notified the White House of those discussions in late January 2017.

The conclusion is central to the finding that there was no proof of a quid pro quo. If Trump had ordered Flynn to undermine sanctions — as a sentencing memo approved by Main DOJ explained — it would have been proof of coordination.

The defendant’s false statements to the FBI were significant. When it interviewed the defendant, the FBI did not know the totality of what had occurred between the defendant and the Russians. Any effort to undermine the recently imposed sanctions, which were enacted to punish the Russian government for interfering in the 2016 election, could have been evidence of links or coordination between the Trump Campaign and Russia. Accordingly, determining the extent of the defendant’s actions, why the defendant took such actions, and at whose direction he took those actions, were critical to the FBI’s counterintelligence investigation.

That means the conclusion adopted by the Mueller Report is precisely the one that the FBI Agent who investigated Flynn, William Barnett, held, as described repeatedly in the interview done by Jeffrey Jensen in an attempt to undermine the Mueller prosecution.

With respect to FLYNN’s [redacted] with the Russian Ambassador in December 2016, BARNETT did not believe FLYNN was being directed by TRUMP.

The Mueller Report reached that conclusion in spite of the fact that — as Barnett describes it — in his second interview, Flynn said that Trump was aware of the calls between him and the Russian Ambassador.

During one interview of FLYNN, possibly the second interview, one of the interviewers asked a series of questions including one which FLYNN’s answer seemed to indicate TRUMP was aware of [redacted] between FLYNN and the Russian Ambassador. BARNETT believed FLYNN’s answer was an effort to tell the interviewers what they wanted to hear. BARNETT had to ask the clarifying question of FLYNN who then said clearly that TRUMP was not aware of [redacted]

Barnett then goes on a paragraph long rant claiming there was no evidence that Trump was aware.

BARNETT said numerous attempts were made to obtain evidence that TRUMP directed FLYNN concerning [redacted] with no such evidence being obtained. BARNETT said it was just an assumption, just “astro projection,” and the “ground just kept being retreaded.”

The claim that there was no evidence that Trump directed Flynn to undermine sanctions is false. I say that because Flynn himself told Kislyak that Trump was aware of his conversations with Kislyak on December 31, 2016, when Kislyak called up to let Flynn know that Putin had changed his mind on retaliation based on his call.

FLYNN: and, you know, we are not going to agree on everything, you know that, but, but I think that we have a lot of things in common. A lot. And we have to figure out how, how to achieve those things, you know and, and be smart about it and, uh, uh, keep the temperature down globally, as well as not just, you know, here, here in the United States and also over in, in Russia.

KISLYAK: yeah.

FLYNN: But globally l want to keep the temperature down and we can do this ifwe are smart about it.

KISLYAK: You’re absolutely right.

FLYNN: I haven’t gotten, I haven’t gotten a, uh, confirmation on the, on the, uh, secure VTC yet, but the, but the boss is aware and so please convey that. [my emphasis]

Flynn literally told the Russian Ambassador that Trump was aware of the discussions, but Barnett claims there was no evidence.

Now is probably a good time to note that, months ago, I learned that  Barnett sent pro-Trump texts on his FBI phone, the mirror image of Peter Strzok sending anti-Trump texts.

So Billy Barr has released a 302 completed just a week ago, without yet releasing the Bill Priestap 302 debunking some of the earlier claims released by Billy Barr in an attempt to justify blowing up the Flynn prosecution, much less the 302s that show that Flynn appeared to lie in his first interview with Mueller’s investigators (as well as 302s showing that KT McFarland coordinated the same story).

And the 302 is an ever-loving shit show. Besides the key evidence — that his claim that investigators didn’t listen to him even though the conclusion of the Mueller Report is the one that he says only he had — Barnett disproves his claims over and over in this interview.

Barnett’s testimony substantially shows five things:

  • He thought there was no merit to any suspicions that Flynn might have ties to Russia
  • He nevertheless provided abundant testimony that some of the claims about the investigation (specifically that Peter Strzok and probably Brandon Van Grack had it in for Flynn) are false
  • Barnett buries key evidence: he mentions neither that Flynn was publicly lying about his conversations with Sergey Kislyak (which every other witness said was driving the investigation), and he did not mention that once FBI obtained call records, they showed that Flynn had lied to hide that he had consulted with Mar-a-Lago before he called Sergey Kislyak
  • Jensen didn’t ask some of the most basic questions, such as whether Barnett thought he had to investigate further after finding the Kislyak call or who the multiple people Barnett claimed joked about wiping their phone were
  • Barnett believes that Mueller’s lawyers (particularly Jeannie Rhee and Andrew Weissmann) were biased and pushing for a conclusion that the Mueller Report shows they didn’t conclude, but he didn’t work primarily with either one of them and his proffered evidence against Rhee actually shows the opposite

According to the org charts included in the Carter Page IG Report (PDF 116), it appears that Barnett would have been on a combined Crossfire Hurricane team from July 31 to December 2016; the report says he was working on the Manafort case.

Then, he took over the Flynn case. He would have reported up through someone else who also oversaw the George Papadopoulos investigation, but he would not be part of that investigation.

Even after a subsequent reorganization, that would have remained true until the Mueller investigation, when — by his own description — Barnett remained on the Flynn team.

Early in his 302, Barnett described that he thought the investigation was “supposition on supposition,” which he initially attributed to not knowing details of the case. Much later in the interview, he said he, “believed there were grounds to investigate the other three subjects in Crossfire Hurricane; however, he thought FLYNN was the ‘outlier.'” which conflicts with his earlier claim.

By his own repeated description, Barnett did not open the Flynn case and did not understand why it had been opened (he doesn’t explain that this was an UNSUB investigation, which undermines much of what he says). Moreover, his complaints about the flimsy basis for the Flynn investigation conflict with what Barnett said in the draft closing memo for the investigation, which explained that the investigation was opened,

on an articulable factual basis that CROSSFIRE RAZOR (CR) may wittingly or unwittingly be involved in activity on behalf of the Russian Federation which may constitute a federal crime or threat to the national security.

[snip]

The goal of the investigation was to determine whether the captioned subject, associated with the Trump campaign, was directed and controlled by and/or coordinated activities with the Russian Federation in a manner which is a threat to the national security and/or possibly a violation of the Foreign Agents Registration Act, 18 U.S.C. section 951 et seq, or other related statutes.

A key detail here is that Barnett himself said part of this was an attempt to figure out whether Flynn may have unwittingly been targeted by Russia, which makes his focus on crime in the Jensen interview totally contradictory.

Barnett did explain that NSLs were written up in December but pulled back (these were also released last night, though not with the detail that they were withdrawn). He claimed not to know why the NSLs were withdrawn.

A National Security Letter (NSL) had been prepared to obtain “toll records” for a phone belonging to FLYNN. The request was “pulled back” prior to the records being obtained. Peter Strzok (STRZOK) was the individual who ordered the NSL be pulled back. BARNETT was not told why the NSL was pulled back.

In the draft closing that Barnett himself wrote, he explained that because Flynn was not at that point named as a possible agent of a foreign power, that limited the investigative techniques they might use.

The writer notes that since CROSSFIRE RAZOR was not specifically named as an agent of a foreign power by the original CROSSFIRE HURRICANE predicated reporting, the absence of any derogatory information or lead information from these logical source reduced the number of investigative avenues and techniques to pursue.

That’s also another reason (not noted by Barnett in this interview) why he didn’t get a 215 order.

BARNETT chose not to obtain records through FISA Business Records because he advised this process is comparatively onerous.

Note that Strzok’s order to withdraw the NSL is yet more proof that Strzok was not out to get Flynn.

Barnett also confirmed something else that Strzok has long said — that they chose not to use any overt methods during the election (unlike the Hillary investigation).

BARNETT was told to keep low-key, looking at publicly available information.

Again, this adds to the evidence that no one was out to get Trump.

Barnett also explains how Stefan Halper shared information about Flynn, and he — a pro-Trump agent skeptical of the investigation — decided to chase down the Svetlana Lokhova allegation.

The source reported that during an event [redacted] 2014 FLYNN unexpectedly left the event [redacted] The source alleged FLYNN was not accompanied by anyone other [redacted] BARNETT believed the information concerning [redacted] potentially significant and something that could be investigated. However, Intelligence Analysts did not locate information to corroborate this reporting concerning redacted] FLYNN, including inquiries with other foreign intelligence agencies. BARNETT found the idea FLYNN could leave an event, either by himself or [redacted] without the matter being noted was not plausible. With nothing to corroborate the story, BARNETT thought he information was not accurate.

Later on, Barnett seems to make an effort to spin his inclusion of the Lokhova information in the closing memo as an attempt to help Flynn, describing,

BARNETT wanted to include information obtained during the investigation, including non-derogatory information. BARNETT wanted to include [redacted] specifically [redacted] FLYNN. The [redacted] and FLYNN were only in the same country, [redacted], the same time on one occasion and at that time they were visiting different cities.

That is, something in the closing memo that has been spun as an attack on Flynn he here spins as an attempt to include non-derogatory information, to help Flynn.

I find it curious that the main reason Barnett dismissed this allegation is because he found it implausible that a 30-year intelligence officer would know how to leave a meeting unnoticed. But let it be noted that for over a year, Sidney Powell has suggested that chasing down this tip was malicious targeting of Flynn, and it turns out a pro-Trump agent is the one who chased it down.

In many places, Barnett’s narrative is a muddle. For example, early in his interview, he said that he worked closely with Analyst 1 and Analyst 2. Analyst 2 worked on the Manafort investigation. Barnett had to get the Flynn files from Analyst 1, suggesting Analyst 1 had a key role in that investigation. But then later in the interview, after explaining that Analyst 1, “believed the investigation was an exercise in futility,” Barnett then said that Analyst 3 “was the lead analyst on RAZOR.” Barnett described that Analyst 3 was “‘a believer’ due to his conviction FLYNN was involved in illegal activity,” but also described that Analyst 3 was the one who didn’t want to interview Flynn. But then Barnett explains several other people who did not want to interview Flynn, in part because the pretense Barnett wanted to use (that it was part of a security clearance) was transparently false.

Barnett then explains that he did not change his opinion about whether Flynn was compromised based on reading the transcript (it’s unclear whether he read just one or all of them) of Flynn’s call with Kislyak. He explained that he “did not see a potential LOGAN ACT violation as a major issue concerning the RAZOR investigation.”

There are several points about this request. First, Jeffrey Jensen is taking a line agent’s opinion about a crime as pertinent here, after Billy Barr went on a rant the other day about how line agents and prosecutors don’t decide these things (showing the hypocrisy of this entire exercise). Barnett’s account undermines the disinformation spread before that the Logan Act claim came from Joe Biden, disinformation which Jensen himself wrongly fed.  Significantly, Barnett does not appear to have been asked whether he thought the transcripts meant he had to investigate further. 

Barnett says “in hindsight” he believes he was cut out of the interview of Flynn, based solely on the norm that normally “a line agent/case agent would do the interview with a senior FBI official present in cases concerning high ranking political officials.” He doesn’t consider the possibility that Joe Pientka did it because he had been in the counterintelligence briefing with Flynn the previous summer, which is what the DOJ IG Report said.

He then says “There was another reorganization of the Crossfire Hurricane investigation after the 1/24/17 interview of Flynn. This conflicts, somewhat, with both the org charts Michael Horowitz did, but also texts already released showing the reorg started in the first days of January (though the texts are consistent with the initial plan for Barnett and Andy McCabe to interview Flynn and I don’t necessarily trust the DOJ IG Report over Barnett), but that was before a lot else happened.

Only after describing a post-interview reorganization does Barnett raise something that all the public record says happened earlier, that, “The FBI was reacting to articles being reported in the news, most notably an article written by Ignatius concerning [redacted] involving FLYNN to a Russian Ambassador.” But even here, Barnett does not talk (nor does he appear to have been asked) about Flynn lying to the press about the intercepts. In other words, Jensen’s investigators simply didn’t address what every single witness says was the most important factor at play in the decision to interview Flynn, his public lies about the calls with Kislyak.

In one place, Barnett claims that “base-line NSLs” were filed “after the article by Ignatius,” which would put it in mid-January, before the interview. Later, he says that “In February 2017, NSLs were being drafted with [SA3] instructing BARNETT what needed to be done,” putting it after Flynn obviously lied in his interview. At best, that suggests Barnett is eliding the timeline in ways that (again) don’t deal with the risk of Flynn’s public lies about the Kislyak call.

Barnett then claims that McCabe was running this (in spite of the involvement of SA3 and his earlier report — and Horowitz’s org chart, not to mention other evidence documents already released — showing the continued involvement of Strzok). Barnett also backed getting NSLs in early 2017, and even insisted, again, that they should have been obtained earlier. Jensen appears to be making a big deal out of the fact that Kevin Clinesmith approved the NSLs against Flynn in 2017.

BARNETT said he sent an e-mail to CLINESMITH on 02/01/2017 asking CLINESMITH about whether the predication information was acceptable, as it was the same information provided on the original NSL request in 2016. CLINESMITH told BARNETT the information was acceptable and could be used for additional NSLs.

There’s a lot that’s suspect about this line of questioning, not least that the predicate for the investigation as a whole was different than the one for Flynn. But I’m sure we’ll hear more about it.

A Strzok annotation of a NYT article that Lindsey Graham released makes it clear that by February 14, 2017, the FBI still hadn’t obtained the returns from most of the NSLs.

Barnett seems to suggest that as new information came in “in BARNETT’s opinion, no evidence of criminal activity and no information that would start a new investigative direction.” If he’s referring to call records (which is what the NSLs would have obtained) that is, frankly, shocking, as the call records would have shown that Flynn also lied about being in touch with Mar-a-Lago before calling Kislyak. It’s what Flynn was trying to hide with his lies! And yet Barnett says that was not suspect.

Then Barnett moved onto the Mueller team. He starts his discussion with another self-contradictory paragraph.

BARNETT was told to give a brief on FLYNN to a group including SCO attorney Jean Rhee (RHEE), [four other people], and possibly [a fifth] BARNETT said he briefly went over the RAZOR investigation, including the assessment that there was no evidence of a crime, and then started to discuss [redacted — probably Manafort] which BARNETT thought was the more significant investigation. RHEE stopped BARNETT’s briefing [redacted] and asked questions concerning the RAZOR investigation. RHEE wanted to “drill down” on the fees FLYNN was paid for a speech FLYNN gave in Russia. BARNETT explained logical reasons for the amount of the fee, but RHEE seemed to dismiss BARNETT’s assessment. BARNETT thought RHEE was obsessed with FLYNN and Russia and she had an agenda. RHEE told BARNETT she was looking forward to working together. BARNETT told RHEE they would not be working together.

First, by his own description, Barnett was asked to brief on Flynn, not on Manafort (or anyone else); he was still working Flynn and not (if Horowitz’s org chart is to be trusted) involved anymore with Manafort at all. So if he deviated from that, he wasn’t doing what he was supposed to do in the briefing, which might explain why people in the briefing asked him to return to the matter at hand, Flynn. Furthermore, in much of what comes later, Barnett claims the prosecutors overrode the agents (in spite of the fact that, as shown, the final conclusion of the report sided with Barnett). But Barnett here shows that from his very first meeting with Mueller prosecutors, he was the one being bossy, not the prosecutors.

Barnett’s continued complaints about Rhee (and Weissmann) are nutty given that, as a Flynn agent, he wouldn’t have been working with them.

Barnett claims that,

In March or April 2017, Crossfire Hurricane went through another reorganization. All of the investigations were put together.

The timing coincides with, but the structure does not match, what appears in the Carter Page IG Report (though, again, I don’t necessarily assume DOJ IG got it right).

Then Barnett makes a claim that conflicts with a great deal of public facts:

On 05/09/2017, COMEY was fired which seemed to trigger a significant amount of activity regarding Crossfire Hurricane. Carter Page was interviewed three times and PAPADOPOULOS was also interviewed. Both investigations seemed to be nearing an end with nothing left to pursue. the MANAFORT case was moved from an investigative squad to a counter intelligence squad [redacted] The Crossfire Hurricane investigations seemed to be winding down.

The appointment of the SCO changed “everything.”

At least according to the Horowitz org chart, these weren’t his investigations. A list of interviews shows that FBI had not interviewed the witnesses to Carter Page’s trip before June 2017 (though it is true that the investigation into him was winding down). The details of the Papadopoulos investigation would have shown that it was after at least the first (and given the Strzok note about NSLs) after probably several more interviews before the FBI discovered that Papadopoulos tried to hide extensive contacts with Russians by deactivating his Facebook account. Mueller didn’t even obtain Papadopoulos’ Linked In account until July 7, 2017, and that was just the second warrant obtained by Mueller’s prosecutors, almost three months after he was appointed; that warrant would have disclosed Papadopoulos’ ties to Sergei Millian and further contacts with the Russians. Some of the earliest activity in the investigation pertain to Michael Cohen (in an investigation predicated off of SARs), with the Roger Stone investigation barely beginning in August, neither of which are included in Barnett’s comments. And Barnett makes no mention of the June 9 meeting, discovered only as a result of Congress’ investigations, which drove some of the early investigative steps.

Which is to say, the evidence seems to have changed everything. And yet he says it was Mueller.

And yes, Jim Comey’s firing is part of that. But as to that, Barnett has this ridiculous thing to say:

As another example [of a “get Trump” attitude] BARNETT said the firing of FBI Director COMEY was interpreted as obstruction when it could just as easily have been done because TRUMP did not like COMEY and wanted him replaced.

Well, sure, in the absence of the evidence that might be true. But not when you had Comey’s memos that described how, first of all, Trump had committed to keeping Comey on (meaning he didn’t not like Comey!) but afterwards had tried to intervene in an ongoing investigation. It’s possible Barnett did not know that in real time — it wasn’t his investigation — but it’s not a credible opinion given what is in the memos.

Barnett also claims, as part of his “proof” that people wanted to get Trump that,

Concerning FLYNN, some individuals in the SCO assumed FLYNN was lying to cover up collusion between the TRUMP campaign and Russia. BARNETT believed Flynn lied in the interview to save his job, as that was the most plausible explanation and there was no evidence to contradict it.

Yes. There is evidence. The evidence is that Flynn’s lies hid his consultations with Mar-a-Lago, about which he also lied.

In a passage similarly suggesting that KT McFarland told the same lies that Flynn did because she wanted to get the Singapore job, Barnett seems to refer to (and DOJ seems to have redacted) a reference to Brandon Van Grack (who is the only Mueller prosecutor whose name would span two lines).

If that is, indeed, a reference to Van Grack, then it means DOJ is hiding evidence that Van Grack (along with Strzok) was not biased against Flynn.

Note, too, that Barnett doesn’t reveal that McFarland only unforgot her conversations with Flynn after Flynn pled guilty, which has a significant bearing on how credible that un-forgetting was. Nor does he note that Mueller didn’t charge McFarland with lying. The Mueller Report almost certainly has a declination description for why they didn’t charge McFarland, which (if true), would make a second thing where Barnett’s minority opinion had been determinative for the actual report, in spite of his claim that the prosecutors were running everything.

Finally, the 302 notes that Barnett was asked about whether he “wiped” his own phone.

BARNETT had a cellular telephone issued by the SCO which he did not “wipe.” BARNETT did hear other agents “comically” talk about wiping cellular telephones, but was not aware of anyone “wiping” their issued cellular telephones. BARNETT said one agent had a telephone previously issued to STRZOK.

If this were even a half serious investigation, Barnett would have been asked to back that claim with names. He was not.

What Billy Barr and Jeffrey Jensen have done is show that the only witness they’ve found to corroborate their claims can’t keep his story straight from one paragraph to another, and claims to be ignorant of several central pieces of evidence against Flynn.

That’s all they have.


Given that this post takes such a harsh view on Barnett, reminder I went to the FBI in 2017 regarding someone with no ties to Trump but who sent me a text about (and denigrating) Flynn.

Why a Clinton Foundation/Crossfire Hurricane Comparison Might Backfire

Billy Barr has suggested a couple of times that if Trump wins, he’ll shut down the Durham inquiry.

A story from NYT may provide some insight as to why (and also might explain why Nora Dannehy resigned). John Durham is comparing the decisions made on the Clinton Foundation investigation with those made on the Crossfire Hurricane investigation.

Mr. Durham, the U.S. attorney in Connecticut assigned by Mr. Barr to review the Russia inquiry, has sought documents and interviews about how federal law enforcement officials handled an investigation around the same time into allegations of political corruption at the Clinton Foundation, according to people familiar with the matter.

As NYT explains it, the basis of comparison is that when FBI agents tried to use the Clinton Cash book to get a subpoena, they were shot down, whereas the FBI did use oppo research — the Steele dossier — to get the Carter Page FISA.

The allegations against Mrs. Clinton were advanced in the book “Clinton Cash,” by Peter Schweizer, a senior editor at large at Breitbart News, the right-wing outlet once controlled by Mr. Trump’s former top aide Stephen K. Bannon. The book contained multiple errors, and the foundation has dismissed its allegations.

But the book caught the attention of F.B.I. agents, who viewed some of its contents as additional justification to obtain a subpoena for foundation records.

Top Justice Department officials denied a request in 2016 from senior F.B.I. managers in Washington to secure a subpoena, determining that the bureau lacked a sufficient basis for it and that the book had a political agenda, former officials said. Some prosecutors at the time felt the book had been discredited.

The decision frustrated some agents who believed they had enough evidence beyond the book, including a discussion that touched on the foundation and was captured on a wiretap in an unrelated investigation. Other F.B.I. officials at the time believed the conversation’s relevance to the foundation case was tenuous at best.

The disagreement erupted anew later in the summer of 2016, when a top Justice Department official suspected that F.B.I. agents in New York were trying to persuade federal prosecutors in Brooklyn to authorize a subpoena after the department’s officials in Washington had declined such a request. By the time the F.B.I. officials revisited the issue, the Justice Department officials were also concerned that serving subpoenas would violate the practice of avoiding such investigative activity so close to an election.

One obvious conclusion from this might be that, had the FBI vetted the Steele dossier the way they did the Clinton Cash book, they would have discovered problems and not obtained the application. (Never mind that the FBI was targeting a guy who might have been and later on did victimize Trump by claiming he represented him on Ukrainian matters, rather than Trump himself.)

It’s a fair point, if you ignore that Christopher Steele was an established informant.

But the comparison could also backfire in spectacular fashion.

After all, after multiple Inspector General reviews, Michael Horowitz never found proof that any political bias from Peter Strzok or others influenced an investigative decision. He did, however, show that the FBI agent running an informant on the Clinton Foundation was biased.

We reviewed the text and instant messages sent and received by the Handling Agent, the co-case Handling Agent, and the SSA for this CHS, which reflect their support for Trump in the 2016 elections. On November 9, the day after the election, the SSA contacted another FBI employee via an instant messaging program to discuss some recent CHS reporting regarding the Clinton Foundation and offered that “if you hear talk of a special prosecutor .. .I will volunteer to work [on] the Clinton Foundation.” The SSA’s November 9, 2016 instant messages also stated that he “was so elated with the election” and compared the election coverage to “watching a Superbowl comeback.” The SSA explained this comment to the OIG by saying that he “fully expected Hillary Clinton to walk away with the election. But as the returns [came] in … it was just energizing to me to see …. [because] I didn’t want a criminal to be in the White House.”

On November 9, 2016, the Handling Agent and co-case Handling Agent for this CHS also discussed the results of the election in an instant message exchange that reads:

Handling Agent: “Trump!”

Co-Case Handling Agent: “Hahaha. Shit just got real.”

Handling Agent: “Yes it did.”

Co-Case Handling Agent: “I saw a lot of scared MFers on … [my way to work] this morning. Start looking for new jobs fellas. Haha.”

Handling Agent: “LOL”

Co-Case Handling Agent: “Come January I’m going to just get a big bowl of popcorn and sit back and watch.”

Handling Agent: “That’s hilarious!” [my emphasis]

And, as Peter Strzok has said repeatedly, had he really wanted to sabotage Trump’s election, he would have leaked details of the investigation, particularly after, in August 2016, he was shot down in his effort to investigate more aggressively by doing things like issue a subpoena.

In precisely the same situation, the Clinton Foundation Agents did leak details of the investigation, and in fact did have an effect on the election.

Hell, if Durham were allowed to continue down this path of comparison, we might finally figure out which New York Field Office were leaking rampantly during the election, leading to promises of indictments on Fox News.

After Bill Barr Minimized Roger Stone’s Threat against Amy Berman Jackson, Emmet Sullivan Got Threatened by a Mike Flynn Supporter

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

Not just any judge.

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

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

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

[snip]

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

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

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

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

“The Buck Stops at the Top:” In January, Bill Barr’s DOJ Decided the Correct Decision Was to Send Mike Flynn to Prison

I’d like to make one more point about Billy Barr’s rant last night. Over and over again, Barr suggested that line prosecutors have been making hyper-aggressive decisions that the Department of Justice cannot answer for and that his involvement simply amounts to ensuring that the decisions DOJ makes are ones he’s willing to take responsibility for.

Indeed, aside from the importance of not fully decoupling law enforcement from the constraining and moderating forces of politics, devolving all authority down to the most junior officials does not even make sense as a matter of basic management.  Name one successful organization where the lowest level employees’ decisions are deemed sacrosanct.  There aren’t any.  Letting the most junior members set the agenda might be a good philosophy for a Montessori preschool, but it’s no way to run a federal agency.  Good leaders at the Justice Department—as at any organization—need to trust and support their subordinates.  But that does not mean blindly deferring to whatever those subordinates want to do.

This is what Presidents, the Congress, and the public expect.  When something goes wrong at the Department of Justice, the buck stops at the top.  28 U.S.C. § 509 could not be plainer:  “All functions of other officers of the Department of Justice and all functions of agencies and employees of the Department of Justice are vested in the Attorney General.”

And because I am ultimately accountable for every decision the Department makes, I have an obligation to ensure we make the correct ones.  The Attorney General, the Assistant Attorneys General, and the U.S. Attorneys are not figureheads selected for their good looks and profound eloquence.

They are supervisors.  Their job is to supervise.   Anything less is an abdication.

To the extent Barr is talking about the Mueller investigation, every single prosecutorial decision was reviewed by Acting Attorney General Rod Rosenstein. For those decisions, then, Barr’s not actually talking about decisions made by line prosecutors. He’s talking about decisions overseen by someone vested, like him, with all the authority of DOJ.

For precisely the reason Barr lays out — that DOJ must be able to answer for things DOJ does — it’s highly unusual for DOJ to flip-flop on prosecutorial decisions that past Attorneys General have approved.

But with one action in the Mike Flynn prosecution — possibly one he thought of when he invoked probation sentences in one of his last paragraphs — Barr’s interventions into the cases of Donald Trump’s flunkies is far worse than that.

In short, it is important for prosecutors at the Department of Justice to understand that their mission — above all others — is to do justice.  That means following the letter of the law, and the spirit of fairness.  Sometimes that will mean investing months or years in an investigation and then concluding it without criminal charges.  Other times it will mean aggressively prosecuting a person through trial and then recommending a lenient sentence, perhaps even one with no incarceration.

In moving to dismiss Flynn’s prosecution, Barr was overriding a decision he himself had approved of. In January, DOJ called for prison time for Flynn, citing the materiality of his lies and his abuse of trust.

The defendant’s offense is serious, his characteristics and history present aggravating circumstances, and a sentence reflecting those factors is necessary to deter future criminal conduct. Similarly situated defendants have received terms of imprisonment.

Public office is a public trust. The defendant made multiple, material and false statements and omissions, to several DOJ entities, while serving as the President’s National Security Advisor and a senior member of the Presidential Transition Team. As the government represented to the Court at the initial sentencing hearing, the defendant’s offense was serious. See Gov’t Sent’g Mem. at 2; 12/18/2018 Hearing Tr. at 32 (the Court explaining that “[t]his crime is very serious”).

The integrity of our criminal justice depends on witnesses telling the truth. That is precisely why providing false statements to the government is a crime. As the Supreme Court has noted:

In this constitutional process of securing a witness’ testimony, perjury simply has no place whatsoever. Perjured testimony is an obvious and flagrant affront to the basic concepts of judicial proceedings. Effective restraints against this type of egregious offense are therefore imperative. The power of subpoena, broad as it is, and the power of contempt for refusing to answer, drastic as that is — and even the solemnity of the oath — cannot insure truthful answers. Hence, Congress has made the giving of false answers a criminal act punishable by severe penalties; in no other way can criminal conduct be flushed into the open where the law can deal with it.

United States v. Mandujano, 425 U.S. 564, 576 (1975); see also Nix v. Whiteside, 457 U.S. 157, 185 (1986) (“[t]his Court long ago noted: ‘All perjured relevant testimony is at war with justice, since it may produce a judgment not resting on truth.’”) (quoting In re Michael, 326 U.S. 224, 227 (1945)). All persons carry that solemn obligation to tell the truth, especially to the FBI.

The defendant’s repeated failure to fulfill his obligation to tell the truth merits a sentence within the applicable Guidelines range. As the Court has already found, his false statements to the FBI were material, regardless of the FBI’s knowledge of the substance of any of his conversations with the Russian Ambassador. See Mem. Opinion at 51-52. The topic of sanctions went to the heart of the FBI’s counterintelligence investigation. Any effort to undermine those sanctions could have been evidence of links or coordination between the Trump Campaign and Russia. For similar reasons, the defendant’s false statements in his FARA filings were serious. His false statements and omissions deprived the public and the Trump Administration of the opportunity to learn about the Government of Turkey’s covert efforts to influence policy and opinion, including its efforts to remove a person legally residing in the United States.

The defendant’s conduct was more than just a series of lies; it was an abuse of trust. During the defendant’s pattern of criminal conduct, he was the National Security Advisor to the President of the United States, the former Director of the Defense Intelligence Agency, and a retired U.S. Army Lieutenant General. He held a security clearance with access to the government’s most sensitive information. The only reason the Russian Ambassador contacted the defendant about the sanctions is because the defendant was the incoming National Security Advisor, and thus would soon wield influence and control over the United States’ foreign policy. That is the same reason the defendant’s fledgling company was paid over $500,000 to work on issues for Turkey. The defendant monetized his power and influence over our government, and lied to mask it. When the FBI and DOJ needed information that only the defendant could provide, because of that power and influence, he denied them that information. And so an official tasked with protecting our national security, instead compromised it.

This was no decision made by rogue line prosecutors, Brandon Van Grack and Jocelyn Ballantine. In December, Jessie Liu signed a request for an extension so that the “multiple individuals and entities” that had to approve the new sentencing recommendation could do so.

There are multiple individuals and entities who must review and approve the government’s submission, including any changes from the government’s prior sentencing memorandum and its specific sentencing recommendations.

And then again in January, Jessie Liu got an extension so the “multiple individuals and entities” who had to review the sentencing memo could do so.

As the government represented in its initial motion, there are multiple individuals and entities who must review and approve the government’s submission, including any changes from the government’s prior sentencing memorandum and its specific sentencing recommendations. The government has worked assiduously over the holidays to complete this task, but we find that we require an additional 24 hours to do so.

Bill Barr says he is responsible for making the correct decision, and his DOJ reviewed the decision to imprison Mike Flynn at length. Taking him at his word, that means Bill Barr believed, in January, knowing all the details that were “new” to Timothy Shea when he wrote his motion to dismiss, but not new to Michael Horowitz and John Durham, who had already reviewed them, that the correct decision was to send Mike Flynn to prison.

It’s bad enough that Barr has repeatedly refused to stand by decisions made by others imbued with the authority of the entire DOJ under 28 U.S.C. § 509.

But Bill Barr won’t even stand by his past decisions.

Bill Barr Defended Yevgeniy Prigozhin Last Night

While he didn’t do so explicitly and may not have the clarity of thought to even realize it, but in his screed at radical right wing Hillsdale College, Bill Barr effectively defended Yevgeniy Prigozhin’s attempts to interfere in American elections.

That’s because — in a speech attacking Robert Mueller’s work — he took an extended swipe at exotic interpretations of law.

In recent years, the Justice Department has sometimes acted more like a trade association for federal prosecutors than the administrator of a fair system of justice based on clear and sensible legal rules.  In case after case, we have advanced and defended hyper-aggressive extensions of the criminal law.  This is wrong and we must stop doing it.

The rule of law requires that the law be clear, that it be communicated to the public, and that we respect its limits.  We are the Department of Justice, not the Department of Prosecution.

We should want a fair system with clear rules that the people can understand.  It does not serve the ends of justice to advocate for fuzzy and manipulable criminal prohibitions that maximize our options as prosecutors.  Preventing that sort of pro-prosecutor uncertainty is what the ancient rule of lenity is all about.  That rule should likewise inform how we at the Justice Department think about the criminal law.

Advocating for clear and defined prohibitions will sometimes mean we cannot bring charges against someone whom we believe engaged in questionable conduct.  But that is what it means to have a government of laws and not of men.  We cannot let our desire to prosecute “bad” people turn us into the functional equivalent of the mad Emperor Caligula, who inscribed criminal laws in tiny script atop a tall pillar where nobody could see them.

To be clear, what I am describing is not the Al Capone situation — where you have someone who committed countless crimes and you decide to prosecute him for only the clearest violation that carries a sufficient penalty.  I am talking about taking vague statutory language and then applying it to a criminal target in a novel way that is, at a minimum, hardly the clear consequence of the statutory text.

[snip]

The Justice Department abets this culture of criminalization when we are not disciplined about what charges we will bring and what legal theories we will bless.  Rather than root out true crimes — while leaving ethically dubious conduct to the voters — our prosecutors have all too often inserted themselves into the political process based on the flimsiest of legal theories.  We have seen this time and again, with prosecutors bringing ill-conceived charges against prominent political figures, or launching debilitating investigations that thrust the Justice Department into the middle of the political process and preempt the ability of the people to decide.

This criminalization of politics will only worsen until we change the culture of concocting new legal theories to criminalize all manner of questionable conduct.  Smart, ambitious lawyers have sought to amass glory by prosecuting prominent public figures since the Roman Republic.  It is utterly unsurprising that prosecutors continue to do so today to the extent the Justice Department’s leaders will permit it.

As long as I am Attorney General, we will not.

Our job is to prosecute people who commit clear crimes.  It is not to use vague criminal statutes to police the mores of politics or general conduct of the citizenry.  Indulging fanciful legal theories may seem right in a particular case under particular circumstances with a particularly unsavory defendant—but the systemic cost to our justice system is too much to bear.

He even ad-libbed a comment to more specifically attack Michael Dreeben, the top member of the Solicitor General’s office, who was a member of the Mueller team.

The Obama administration had some of the people who were in Mueller’s office writing their briefs in the Supreme Court, so maybe that explains something.

Mueller considered a range of exotic applications of law.

He considered charging Don Jr for accessing a private website using the password provided by people associated with WikiLeaks. But he didn’t charge the failson, arguing the intent wasn’t there.

He considered charging Don Jr. for accepting an offer of campaign dirt from a foreigner, Aras Agalarov. He didn’t charge it, in part, because Don Jr is too stupid to know that accepting campaign help from foreigners is illegal.

Mueller considered charging Roger Stone for accepting campaign assistance from foreigners Julian Assange and the GRU in the form of stolen emails. He didn’t charge it, in part for First Amendment reasons.

Every other charge, save one, was a routine application of law:

  • George Papadopoulos, for lying to the FBI about when he got offered campaign dirt
  • Mike Flynn, for lying to the FBI about undermining sanctions imposed on Russia for interfering in the election and lying to DOJ about having secretly worked for the Turkish government
  • Paul Manafort and Rick Gates, for money laundering, cheating his taxes, lying to DOJ on a FARA form, and (in Manafort’s case) trying to get witnesses to lie
  • Michael Cohen, for lying to Congress about the lucrative business deal Trump was chasing during the election
  • Roger Stone, for lying to Congress about a lot of things, including that he kept the campaign informed of his efforts to optimize the data stolen by Russian intelligence officers, as well as for threatening Randy Credico
  • Alex Van der Zwaan, for lying to the FBI about Gates’ ongoing ties to Russian intelligence officer Konstantin Kilimnik
  • Richard Pinedo, for stealing the identities of other Americans and selling them, including to Russian trolls
  • A bunch of GRU officers, for hacking the DNC and other targets
  • A bunch of paid trolls, for stealing the identities of American people and hiding their own true identity while paying for trolling infrastructure

The single indictment that Mueller brought that was a hyperextension of criminal law was against Yevgeniy Prigozhin, his trolls, his troll farm, and his shell companies for engaging in political activities in the US without registering; the theory of the case evolved over time to include getting unsuspecting Americans to engage in politics on behalf of foreign actors. Those are the charges that DOJ dropped (and I defended the decision, even though Barr’s rant makes me think questions about politicization may have merit). My suspicion is that Mueller charged it, in part, to be able to incorporate Prigozhin (and by extension, Vladimir Putin) into the indictment. But it was a stretch. Just what Barr says: a legal theory crafted — probably in part to establish a precedent for future tampering using social media — to go after a bad person, Prigozhin. The two subsequent complaints against Prigozhin’s trolls have not included the FARA charge.

But if Barr is speaking about Prigozhin, here, it raises real questions about why Interpol dropped the Red Notice against Prigozhin. Did Barr drop that request?

There’s one more investigation into foreigners helping Trump that Barr seems to be defending. Barr’s complaint that people in Mueller’s office wrote briefs for the Supreme Court also seems to suggest Barr disapproves of the Mystery Appellant case, which is understood to involve a bribe. That was the only case argued to the Supreme Court.

Mueller won that legal fight, even if the mystery foreign company who challenged a subpoena effectively avoided complying by lying anyway.

But by invoking Dreeben — one of the most respected Appellate lawyers in the country — Barr seems to be complaining that Trump might be investigated for accepting a bribe.

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

[snip]

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

[snip]

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

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

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

[snip]

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

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

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

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

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

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

Paul Manafort’s Claims about WikiLeaks in His September 13, 2018 Interview

Paul Manafort’s September 13, 2018 interview is the only one where he is believed to tell the truth about a number of topics. It was the last one before Mueller gave him a plea deal that staved off an election season trial, leading to a period of cooperation during which Manafort substantively backed off much of what he admitted on September 13. Manafort’s lawyer, Kevin Downing, then told Rudy Giuliani what Manafort got asked.

The publicly released version includes substantive redactions regarding Roger Stone, WikiLeaks, and Jared Kushner (as well as Konstantin Kilimnik and the kickback system via which Manafort got paid). But the Senate Intelligence Committee appears to have obtained an unredacted version. So I wanted to summarize what the SSCI Report shows about WikiLeaks and Kushner. Where I can identify it, I will italicize the information that was not redacted in the BuzzFeed release. Everything else was hidden as part of an ongoing investigation in January 2, 2020 but was no longer considered sensitive when SSCI released its report (this may reflect ongoing investigative work that Bill Barr killed).


fn 539: Manafort told the FBI that, after his resignation, but before the election, he and Trump had spoken “a few times. ”

fn 540: While Manafort claimed to have not recalled the substance of these interactions, he did recall giving Trump advice on Trump’s performance in the second debate and giving Trump ideas for the third debate.

fn 542: Manafort also told the SCO that from the time he left the Campaign until the election, he met with Kushner “once or twice” and spoke to Kushner on the phone “five or six times.”

fn 543: Manafort said that both sides reached out to one another.

fn 544: According to Manafort, Donald Trump and others in his family were aware that Manafort and Kushner were in contact, and Kushner “thought it would be good” for Manafort to call Trump.

fn 547: On November 5, 2016, Manafort sent a document entitled “Securing the Victory” to at least Trump, Kushner, and Reince Priebus.[snip] While Manafort recalled in his interview with the SCO that he sent the memorandum to Trump’s executive assistant, the Trump Organization did not produce any such document as part of the Committee’s request. Because of other known deficiencies in the Trump Organization’s document responses, the Committee does not draw the conclusion that no document was sent. Not all senior individuals in the Trump Campaign engaged in substantive interactions with Manafort after his departure. For instance, while Steve Bannon was the recipient of short messages of encouragement from Manafort and responded in kind, Bannon made clear internally that he thought further interactions with Manafort would negatively impact the Campaign. In response to Priebus forwarding Manafort’s November 5, 2016 memorandum to him, Bannon responded, “We need to avoid manafort like he has a disease. Dems will say that the Russians are helping us win.” Email, Bannon to Priebus, November 5, 2016 (SKB_SSCl0000964)

fn 549: Manafort told the SCO that that he had “no information” that Russia hacked voting machines.

fn 550 Manafort also sent the memorandum to Sean Hannity, although he said he did not expect Hannity to talk to Trump about it.

fn 1444: Manafort also recalled hearing from Stone sometime in June 2016 that “a source close to WikiLeaks confirmed that WikiLeaks had the emails from Clinton’s server.”

fn 1445: Like Gates, Manafort recalled Stone telling him that the emails would be released “soon,” but Stone “did not know when.”

fn 1446: Manafort, who was not convinced that the documents were coming out, directed Gates to check in with Stone “from time to time” to see if his WikiLeaks · information remained “real and viable.”

fn 1475: Because Manafort was initially dubious that Stone had accurate information about WikiLeaks, he instructed Stone “not to tell Trump until they could. confirm it.” Manafort said that he wanted to keep Trump focused on speeches and meeting members of Congress, not distracted “by the titillation of a WikiLeaks release.”

fn 1476: In addition, Manafort believed Stone would have told Trump anyway because he ”wanted the credit for knowing in advance.”

fn 1494: Witness testimony indicates that Stone may have raised WikiLeaks again to Trump in late July, shortly before the DNC release occurred. Although Manafort did not know whether Stone and Trump spoke about WikiLeaks that week, he assumed they did.

fn 1507: On the afternoon of July 22, Manafort and Trump discussed how they could use the DNC emails relating to Debbie Wasserman Schultz

fn 1508: Although Manafort was confused by Stone’s prediction, which was that WikiLeaks had emails from “Clinton’s server,” whereas the document released that day came from the DNC, he. still used the “fact of the hack and the substance of the emails” to attack Clinton and deflect attention from Trump’s comments towards Senator Ted Cruz and Cruz’s wife. [snip] For example, Manafort sought to “draw [a] comparison to [the] fact that the Dems attack Russia for hacking them but want us to believe that the server in HC[‘s] home was safe from hacking” and that Clinton had “put national security at risk.” Email, Manafort to Spicer, Miller, Parscale, Reed, Gates, Fabrizio, and Kushner, July 24, 2016

fn 1513: Similarly, despite Manafort’s initial skepticism, after the email release on July 22, Manafort “thought that Stone had been right.”

fn 1518: Senior Campaign officials believed that the [Russia are you listening] statement was unscripted. 

fn 1523: In response [to Manafort’s reminder that Stone claimed to have access to WikiLeaks, sourced to GJ in Mueller Report], Trump directed Manafort to stay in touch with Stone to see if there were more emails coming out.

fn 1524: Manafort then spoke with Stone during the week of the Democratic National Convention. Stone was in Cleveland for the Republican National Convention, which occurred directly prior to the Democratic National Convention.

fn 1525: At the time, Stone said he did not know what else would come out or when, but he agreed to follow up, although he did not say when he would do so.

fn 1617: At the end of September, Stone privately conveyed information about a future WikiLeaks release to Trump and Manafort. Manafort, who had left the Campaign in August, recalled speaking with Stone around the first presidential debate between Trump and Clinton, which took place on September 26, 2016. 

fn 1618: Stone told Manafort that “John Podesta was going to be in the barrel” and that “there were going to be leaks of John Podesta’s emails.”

fn 1678: Manafort recalled Trump acknowledging to him that “Stone had information on the release in advance” of it becoming public.

fn 1679: Manafort spoke with Stone by phone and told Stone that Stone had been right. Stone’s cell phone records show a 17-minute call with Manafort on October 12, although they may have been in touch through other means following the Podesta release.