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Amid Discussions of FISA Reform, James Boasberg Pushes for Greater Reform

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It’s not entirely clear what will happen in a few weeks when several existing FISA provisions expire; there are ongoing discussions about how much to reform FISA in the wake of the Carter Page IG Report. But before anyone passes legislation, they would do well to read the order presiding FISA Judge James Boasberg issued yesterday.

On its face, Boasberg’s order is a response to DOJ’s initial response to FISC’s order to fix the process, Amicus David Kris’ response to that, and DOJ’s reply to Kris. The order ends by citing In re Sealed Case, the 2002 FISCR opinion that limited how much change the FISA Court can demand of DOJ, and “acknowledging that significant change can take time, and recognizing the limits of its authority.” By pointing to In re Sealed Case, Boasberg highlights the limits of what FISC can do without legislation from Congress — and, importantly, it highlights the limits of what FISC could do to improve the process if Bill Barr were to convince Congress that DOJ can fix any problems itself, without being forced to do so by Congress.

After invoking In Re Sealed Case, Boasberg orders reports (due March 27, May 4, May 22, June 30, and July 3) on the progress of a number of improvements. He orders that any DOJ or FBI personnel under disciplinary or criminal review relating to work on FISA applications may not participate in preparing applications for FISC, and he requires additional signoffs on applications, including Section 215 orders, which currently don’t require such affirmations.

Boasberg recognizes that DOJ, not just FBI, needs to change

Remarkably, Boasberg notes what I have — the IG Report provides evidence, its focus on FBI notwithstanding, that some of the blame for the Carter Page application belongs with DOJ, not FBI.

According to the OIG Report, the DOJ attorney responsible for preparing the Page applications was aware that Page claimed to have had some type of reporting relationship with another government agency. See OIG Rpt. at 157. The DOJ attorney did not, however, follow up to confirm the nature of that relationship after the FBI case agent declared it “outside scope.” Id. at 157, 159. The DOJ attorney also received documents that contained materially adverse information, which DOJ advises should have been included in the application. Id. at 169-170. Greater diligence by the DOJ attorney in reviewing and probing the information provided by the FBI would likely have avoided those material omissions.

As a result, Boasberg requires the DOJ attorney signing off on a FISA application to attest to the accuracy of it as well. He also suggests DOJ attorneys “participate in field-office visits to assist in the preparation of FISA applications.”

Boasberg recognizes that DOJ’s existing plan doesn’t address any root cause

Similarly, Boasberg recognizes that if the real problem with the Carter Page FISA applications involved information withheld from the application, improving the Woods procedure won’t fix the problem. In an extended section on oversight, Boasberg strongly suggested that DOJ needs to review whether information was withheld from the application.

Amicus agrees that reviews designed to elicit any pertinent facts omitted from the application, rather than merely verifying the facts that were included, would be extremely valuable, but also recognizes that such in-depth reviews would be extremely resource intensive. See Amicus Letter Br. at 12. He thus recommends that such reviews be conducted periodically at least in some cases and, echoing Samuel Johnson, advises that selection of cases for such reviews should be unpredictable because the possibility that any case might be reviewed “should help concentrate the minds of FBI personnel in all cases.” Id. In its response, the government advised that “it will expand its oversight to include additional reviews to determine whether, at the time an application is submitted to the FISC, there was additional information of which the Government was aware that should have been included and brought to the attention of the Court.” Resp. to Amicus at 13. DOJ advised, however, that given limited personnel to conduct such reviews, it is still developing a process for such reviews and a sampling methodology to select cases for review. ld. The Court sees value in more comprehensive completeness reviews, and random selection of cases to be reviewed should increase that value. As DOJ is still developing the necessary process and methodology, the Court is directing further reporting on this effort.

Amicus also encouraged the Court to require a greater number of accuracy reviews using the standard processes already in place. See Amicus Letter Br. at 12. He believes that the FBI and DOJ have the resources to ensure that auditing occurs in a reasonable percentage of cases and suggested that it might be appropriate to audit a higher percentage of certain types of cases, such as those involving U.S. persons, certain foreign-agent definitions, or sensitive investigative matters. Id. The government did not address Amicus’s recommendation that it increase the number of standard reviews.

Even though accuracy reviews are conducted after the Court has ruled on the application in question, the Court believes that they have some positive effect on future accuracy. In addition to guarding against the repetition of errors in any subsequent application for the same target, they should provide a practical refresher on the level of rigor that should be employed when preparing any FISA application. It is, however, difficult to assess to what extent accuracy reviews contribute to the process as a whole, partly because it is not clear from the information provided how many cases undergo such reviews. The Court is therefore directing further reporting on DOJ’s current practices regarding accuracy reviews, as well as on the results of such reviews.

Finally, the FBI has directed its Office of Integrity and Compliance to work with its Resource Planning Office to identify and propose audit, review, and compliance mechanisms to assess the effectiveness of the changes to the FISA process discussed above. See OIG Rpt. app. 2 at 429. Although the Court is interested in any conclusions reached by those entities, it will independently monitor the government’s progress in correcting the failures identified in the OIG Report.

Again, as I already noted, Boasberg himself found DOJ’s oversight regime inadequate in a 702 opinion written last year. He knows this is insufficient.

But as noted above, all Boasberg can do is order up reports and attestations.

At a minimum, Congress should put legal language behind the oversight he has now demanded twice.

A far better solution, however, would be to provide the oversight on FISA applications that other criminal warrant applications receive: review by defense attorneys in any cases that move to prosecution, which by itself would build in “unpredictabl[y] because the possibility that any case might be reviewed.”

James Boasberg, the presiding judge of the FISA court, issued an order in the middle of a debate about reform that points to several ways FISA should be improved, ways that the he can’t do on his own.

Congress would do well to take note.

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

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

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

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

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

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

Probation Recommendation: 70-87 months

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

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

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

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

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

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

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

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

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

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

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

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

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

Prosecution Recommendation: 87-108 months

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

ABJ noted this policy yesterday in the sentencing hearing.

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

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

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

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

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

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

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

Pursuant to U.S.S.G. § 2B1.2(b)(3)(C), two levels are added because the offense was otherwise extensive in scope, planning, or preparation. Stone engaged in a multi-year scheme involving (1) false statements in sworn testimony; (2) the concealment of important documentary evidence; (3) further lies in a written submission to Congress; and (4) a relentless and elaborate campaign to silence Credico that involved cajoling, flattering, crafting forged documents, badgering, and threatening Credico’s reputation, friend, life, and dog. Stone’s efforts were as extensive, if not more extensive, than those of other defendants who received this two-level enhancement at sentencing. See, e.g., United States v. Petruk, 836 F.3d 974 (8th Cir. 2016) (enlisting a friend to create a false alibi and scripting a false confession); United States v. Jensen, 248 Fed. Appx. 849 (10th Cir. 2007) (giving advance notice of testing and falsifying results of tests).

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

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

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

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

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

Barr Recommendation: 30-46 months

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

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

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

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

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

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

Second, the two-level enhancement for obstruction of justice (§ 3C1.1) overlaps to a degree with the offense conduct in this case. Moreover, it is unclear to what extent the Second, the two-level enhancement for obstruction of justice (§ 3C1.1) overlaps to a degree with the offense conduct in this case. Moreover, it is unclear to what extent the

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

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

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

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

ABJ Guidelines Calculation: 70-87 months

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

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

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

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

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

ABJ Sentence: 40 months

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Bill Barr’s Past Statements Say Pardoning Roger Stone Would Be Obstruction

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In a piece on Roger Stone’s sentence today, Politico questions how Bill Barr would regard a Trump pardon for Roger Stone.

How Barr would come down on a Stone pardon remains unclear. He’s a staunch defender of executive power and during his first stint as attorney general under President George H.W. Bush advocated for clemency on behalf of several Reagan-era officials caught up in the Iran-Contra scandal. He ultimately pushed for more pardons than the one Bush handed out to former Defense Secretary Casper Weinberger.

“There were some people arguing just for Weinberger, and I said, ‘No, in for a penny, in for a pound,” Barr said in an oral history to the University of Virginia.

The piece doesn’t examine Barr’s past claimed beliefs, though. And if Barr had a shred of intellectual consistency, he would view a pardon as a crime.

Start with the three times, in his confirmation hearing, where Barr said offering a pardon for false testimony would be obstruction.

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.

[snip]

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.

[snip]

Lindsey: So if there was some reason to believe that the President tried to coach somebody not to testify or testify falsely, that could be obstruction of justice?

Barr: Yes, under that, under an obstruction statute, yes.

Obviously, Barr already reneged on this view when, after reviewing the facts presented in the Mueller Report — which showed Trump’s team coaching witnesses to hew the party line in the context of pardons. It even showed Trump’s own lawyer, Jay Sekulow, helping to write Michael Cohen’s congressional testimony.

Perhaps Barr imagined that because Mike Flynn ended up cooperating with prosecutors, because Mueller didn’t use the word “directed” with Cohen, because a judge only found Paul Manafort lied while he was pretending to cooperate by a preponderance of the evidence standard, those wouldn’t count if and when Trump pardons them. Maybe he believes that because the investigation started in July 2016 was unfair, it’s no biggie if Trump pardons the people first investigated during the election, Flynn and Manafort.

Two things distinguish Stone, though. First, at a moment when he needed to pretend to care about the legitimacy of his intervention, he fully owned this prosecution.

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

Barr thought this prosecution, for obstruction and false statements, was righteous. It happened under him, not under Mueller. To say this, he buys off on the premise that Stone indeed did obstruct with his lies.

And, of course, Stone lied specifically to protect the president, to avoid explaining all those calls with Trump about WikiLeaks, to avoid describing what role Trump had in any success Stone had in optimizing the release of the John Podesta emails. He even told Randy Credico that he had to plead the Fifth because Stone couldn’t, because of his ties to Trump.

And perhaps still more significant, Roger Stone altered his testimony, in the form of his opening argument at trial, even after the Mueller Report came out to make it consistent with information Jerome Corsi made available while still protecting the secrets that would most implicate him and Trump. To HPSCI, Stone claimed he had one intermediary, who was Credico, at trial, his lawyers claimed he had two, but they both fooled the old rat-fucker about their ties to WikiLeaks.

Neither of those stories are true, they’re both crafted to protect Trump, Stone made the second lies after an extended discussion of how pardons equate to obstruction, and Barr has said Stone’s conviction for telling the lies is righteous.

Mind you, none of that is going to change the fact that Trump will extend clemency to Stone. It probably just means that Barr will invite some journalist he has known for decades and talk about tweets to distract from the fact that Barr is already on the record saying that what comes next is a crime.

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

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

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

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

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

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

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

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

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

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

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

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

Two were: Aaron Zelinsky and Adam Jed.

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

(U) “Be independent of political considerations.”

[snip]

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

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

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

The ICA states that:

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

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

The ICA also states that:

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

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

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

Significantly, over time that conclusion has held up.

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

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

[snip]

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

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

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

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

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

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

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

This latest assault on judicial independence started two weeks ago.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

January 6: Trump nominates Liu to Treasury

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

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

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

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

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

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

February 5: Senate acquits Trump

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

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

February 11:

3:07: Aaron Zelinsky withdrawal

3:56: Jonathan Kravis withdrawal

4:34: John Crabb Jr. files appearance

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

5:27: Adam Jed withdrawal

5:39: Michael Marando withdrawal

6:10: Supplemental sentencing memo finalized

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

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

June 2: Timothy Shea’s interim appointment expires

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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