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

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

Don Jr

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

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

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

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

Sam Clovis

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

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

Clovis could not be reached.

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

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

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

Erik Prince and Steve Bannon

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

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

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

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

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

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

That’s interesting because SSCI referred Bannon as well.

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

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

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

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

SSCI believes that Bannon may have lied to the committee.

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

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

Bill Barr Deems 11 Months to Charge False Statements, “the Proper Pace”

Last night, in response to Sean Hannity pressuring Billy Barr to be (as Trump stated earlier), “the greatest of all time” with respect to the John Durham investigation, Barr violated DOJ guidelines to reveal there would be a development today (and further developments before the election) in the John Durham investigation.

Perhaps in an attempt to shut down Hannity’s time pressure, Barr said whatever that development was, “the proper pace, as dictated by the facts in this investigation.”

HANNITY: The president said today that he hopes that the Durham report and that you, as attorney general, won’t be politically correct.

I hope that too. Mr. Attorney General, I have spent three years unpeeling the layers of an onion, in terms of premeditated fraud on a FISA court. You have deleted subpoenaed e-mails. You have knowledge we know that they were warned in August of 2016 not to trust that dossier, which was the bulk of information for the FISA warrants.

The sub source in January 2017 confirms, none of that was true, and it was bar talk.

I guess, just as the wheels of justice turn slowly, I feel impatience over it. Can you give us any update?

BARR: Yes, Sean.

Well, first, as to the political correctness, if I was worried about being politically correct, I wouldn’t have joined this administration. As I made clear…

HANNITY: That’s actually a good line, too. OK.

BARR: Yes.

Well, as I made clear, I’m going to call them as I see them. And that’s why I came in. I thought I’m in a — I think I’m in a position to do that.

There are two different things going on, Sean. One, I have said that the American people need to know what actually happened. We need to get the story of what happened in 2016 and ’17 now out. That will be done.

The second aspect of this is, if people cross the line, if people involved in that activity violated the criminal law, they will be charged.

And John Durham is an independent man, highly experienced. And his investigation is pursuing apace. There was some delay because of COVID. But I’m satisfied with the progress.

And I have said there are going to be developments, significant developments, before the election. But we’re not doing this on the election schedule. We’re aware of the election. We’re not going to do anything inappropriate before the election.

But we’re not being dictated to by this schedule. What’s dictating the timing of this are developments in the case. And there will be developments. Tomorrow, there will be a development in the case.

You know, it’s not an earth-shattering development, but it is an indication that things are moving along at the proper pace, as dictated by the facts in this investigation.

That development happened to be the charge of a single False Statements charge against Kevin Clinesmith, the lawyer who altered an email — he said, “to clarify facts for a colleague” — in the Carter Page investigation.

There’s an aspect of the Criminal Information I’ll return to.

But for the moment, consider that Billy Barr has said this Criminal Information, for one count of False Statements, was “moving along at the proper pace.” Per the DOJ IG Report, Clinesmith’s actions were referred to DOJ and FBI in June 2018. That means it has taken DOJ at least 13 months to charge a fairly clearcut false statements case.

[Note: I’ve reread this. DOJ IG referred Clinesmith to FBI for his politicized texts in June 2018. It’s unclear when they referred his alteration of an email. He resigned from FBI on September 21, 2019, so it would have happened before then. I’ve changed the headline accordingly.]

George Papadopoulos was charged, in an investigation that Barr’s boss Donald Trump said was far too long, just over eight months after he lied to the FBI.

Mike Flynn was charged, in an investigation that Trump claims was far too long, just over ten months after he lied to the FBI.

Even in the Roger Stone case, the longest lasting of the investigations into Trump’s flunkies, Mueller charged obstruction just over eight months after Mueller’s team discovered how Stone was threatening Randy Credico and other witnesses.

In short, Billy Barr has now said that the pace Mueller worked at was better than what he thinks is proper.

Billy Barr probably didn’t realize it, but the only thing his politicized Durham investigation has to show thus far is that Trump is wrong when he assails Mueller for the length of his investigation.

Jeff Wall: It Would Cause Attorney General Barr Irreparable Harm If He Had to Reveal His Secret Reason He Moved to Dismiss Flynn’s Prosecution

Before I explain the most important takeaway from the Mike Flynn hearing, let me note two points.

First, the Department of Justice is quite clear that none of the materials turned over recently to Mike Flynn were Brady material showing exculpatory evidence. DOJ has disclaimed any prosecutorial misconduct in Judge Sullivan’s courtroom. Bill Barr even said as much, under oath, before the House Judiciary Committee. DOJ has falsely claimed they were “new,” but some of the actual details weren’t even new to Flynn, much less new to DOJ, even if some of the documents were. That’s important because a number of the judges today seem to believe that DOJ wants to dismiss this case because they believe there was misconduct.

Nope.

The government disclosed approximately 25 pages of documents in April and May 2020 as the result of an independent review of this case by the United States Attorney for the Eastern District of Missouri. While those documents, along with other recently available information, see, e.g., Doc. 198-6, are relevant to the government’s discretionary decision to dismiss this case, the government’s motion is not based on defendant Flynn’s broad allegations of prosecutorial misconduct. Flynn’s allegations are unfounded and provide no basis for impugning the prosecutors from the D.C. United States Attorney’s Office.

They want to dismiss the case because they don’t believe calling up the country that just attacked us and secretly undermining the punishment on them, then lying about it, is any big thing.

Second, in the second-to-last release to Flynn of materials that aren’t new but that Billy Barr used to invent a reason to dismiss the prosecution, DOJ either betrayed breathtaking ignorance of the investigation into Flynn, or they lied. In turning over notes from Peter Strzok that clearly memorialize a January 5, 2017 meeting that has been the subject of public disclosure going back years (well before Flynn reallocuted his plea deal), DOJ claimed not to know their date.

The enclosed document was obtained and analyzed by USA EDMO during the course of its review. This page of notes was taken by former Deputy Assistant Director Peter Strzok. While the page itself is undated; we believe that the notes were taken in early January 2017, possibly between January 3 and January 5.

That professed uncertainty led the frothy right to claim that Joe Biden suggested Flynn be prosecuted for the Logan Act, which led to FBI reopening the investigation, which led to his prosecution. It was obvious the notes were from January 5, and I’ve since confirmed that. That DOJ claimed not to know the date of these notes is either evidence that they’re using this process to invent campaign dirt, or evidence that all the people reviewing this material have no grasp on the facts.

Which is to say, the judges have the very mistaken impression that DOJ withheld material they should have turned over, and that DOJ itself has suggested (in the less damning reading of their actions) to have no grasp of basic facts about the investigation into Flynn or even basic physics about time. No. Both claims are, at best, reason to further scrutinize this case.

Even ignoring the fact that DOJ has presented two different explanations for why they want to dismiss a case that they, months earlier, argued merited prison time, taking just the original motion to dismiss on its face value (ignoring the obvious lies in it), three months later, no one understands why DOJ moved to dismiss the case.

That’s important, because Acting Solicitor General Jeff Wall claims it would cause irreparable harm to the Executive Branch if DOJ had to answer any questions about why they dismissed the case.

That matters for two reasons. First, as the attorney representing Judge Emmet Sullivan, Beth Wilkinson, pointed out, what distinguishes this case from a Dick Cheney case that SCOTUS has said threatened the prerogatives of the Executive branch, DOJ has already proven willing to offer up reasons for their motion to dismiss, even if they are, partly, transparently false. DOJ is not claiming that they can’t respond to these questions, they’re offering up explanations unasked, and then objecting aggressively when asked question about those claims.

Indeed, Wall offered up a crazy new detail in this hearing: He implied that, in addition to believing that material lies are not the same for Flynn as other people and that secretly calling up the country that just attacked us to say, “no big deal,” is not alarming, there is also non-public information from other investigations that led Billy Barr to tank the Flynn prosecution.

The Attorney General sees this in a context of non-public information from other investigations.

[snip]

I just want to make clear that it may be possible that the Attorney General had before him that he was not able to share with the court and so what we put in front of the court were the reasons that we could, but it may not be the whole picture available to the Executive Branch.

[snip]

It’s just we gave three reasons; one of them was that the interests of justice were not longer served, in the Attorney General’s judgment, by the prosecution. The Attorney General made that decision, or that judgment, on the basis of lots of information, some of it is public and fleshed out in the motion, some of it is not.

[snip]

If all we had to do was show up and stand on our motion, no, we’ve already said that to the District Court.

Billy Barr has a secret. And that, Acting Solicitor General Jeff Wall suggested, is why a mere hearing on this motion to dismiss would irreparably harm DOJ (even while Wall alluded to the information without being asked).

Wow.

The revised explanation why DOJ can’t prosecute Flynn that Flynn prosecutor Jocelyn Ballantine has offered (one in which the Solicitor General’s Office has also participated) is that DOJ can’t “prosecute” Mike Flynn because DOJ has collected so much impeaching evidence against those who investigated Flynn that they can’t prove the case he has twice pled guilty to even though witnesses like KT McFarland and Mike Pence support their case.

Furthermore, since the time of the plea, extensive impeaching materials had emerged about key witnesses the government would need to prove its case. Strzok was fired from the FBI, in part because his text messages with Page revealed political bias against the current administration and “implie[d] a willingness to take official action to impact the presidential candidate’s electoral prospects.” U.S. Dep’t of Justice, Office of the Inspector General, A Review of Various Actions by the Federal Bureau of Investigation and Department of Justice in Advance of the 2016 Election xii (December 2018). The second interviewing agent has been accused of acting improperly in connection with the broader investigation. McCabe, who authorized Flynn’s interview without notifying either the Department of Justice or the White House Counsel, was fired for conduct that included lying to the FBI and lying under oath. U.S. Dep’t of Justice, Office of the Inspector General, A Report of Investigation of Certain Allegations Relating to Former FBI Deputy Director Andrew McCabe 2 (February 2018). In addition, significant witnesses have pending investigations or lawsuits against the Department of Justice, which could create further questions about their testimony at trial. See Strzok v. Barr, Civ. No. 19-2367 (D.D.C. Aug. 6, 2019); McCabe v. Barr, Civ. No. 19-2399 (D.D.C. Aug. 8, 2019); Page v. Dep’t of Justice, Civ. No. 19-3675 (D.D.C. Dec. 10, 2019). Those developments further support the government’s assessment about the difficulty it would have in proving its case to a jury beyond a reasonable doubt.

That is, Ballantine says DOJ can’t sentence Flynn for his admitted crimes because they’ve also laid out how DOJ has trumped up investigations against all the people who investigated Flynn, and at least three of those people have credible legal claims against DOJ for those trumped up investigations.

That suggests one of several things.

It’s possible the secret Billy Barr doesn’t want to reveal deals with how 30-year intelligence veteran Mike Flynn sold his services to the government of Turkey while working for Trump, while trying to hide that fact, all without knowing why that’d be a problem. DOJ has not yet backed off the facts Flynn gave the grand jury (another basis for perjury charges against him, in addition to his plea allocutions, which the Circuit judges appeared to miss), and indeed has doubled down on the Bijan Kian investigation. So maybe DOJ is claiming that poor Mike Flynn was compromised by his non-professional partner out of naiveté?

Another possibility is that there are other secret investigations ongoing, whereby poor 30-year defense intelligence veteran General Flynn was targeted by Russian intelligence but was helpless to rebuff their entreaties and so must be forgiven for lying about all that.

A third possibility is that DOJ has been ordered by the President to make sure none of the people who protected him do prison time. Secret reason. Can’t be shared with judges. Checks out!

The most likely secret information Billy Barr is hiding — particularly given Wall’s reference to other investigations — is the Durham investigation, the possibility that John Durham will find something in his investigation into  Trump’s people where DOJ IG found nothing. That means either that Billy Barr took actions in May that John Durham has not charged in the interim three months. Or, that Billy Barr is trying to pre-empt Flynn’s prosecution believing — or expecting — that an investigation that has not yet completed will end up in criminal charges.

If that’s what’s happening, it would suggest that Barr has already decided what the outcome of the Durham investigation will be, prejudging its outcome and effectively neutering Durham, making his prosecutorial decision an afterthought.

Which is why I focused on DOJ’s false claim — possibly attributed to Jeffrey Jensen, the US Attorney Billy Barr directed to find reasons to blow up the Flynn prosecution while Durham continued to work — that Joe Biden raised the Logan Act before the FBI (and ODNI) raised it themselves. In that case, at least, Barr’s selected flunkies have proven themselves to either be willing to misrepresent evidence or to be painfully stupid about it. In that case, a US Attorney deputized into Billy Barr’s projects has admitted to either knowing fuckall or inventing facts for political purpose. That, by itself, raises questions about the presumption of regularity that Barr might otherwise be afforded.

DOJ claims they’ve given abundant reason why they wanted to dismiss the prosecution against Flynn, even though their reasons conflict with all precedent and the record that Bill Barr’s DOJ has established in this case.

But today we learned there’s another, secret, reason why Billy Barr wanted to dismiss the case against Flynn. Even while DOJ has made it clear they are either misrepresenting the record or unfamiliar with it.

Which is all the more reason why Judge Sullivan should have a hearing, and which likely explains why DOJ has claimed, multiple times now, that that would do irreparable harm to DOJ.

Ben Wittes Gets Stung by the Trump Effect

WaPo has a report that DHS disseminated intelligence reports discussing tweets about leaked unclassified materials describing that DHS knows fuckall about the protests in Portland.

Over the past week, the department’s Office of Intelligence and Analysis has disseminated three Open Source Intelligence Reports to federal law enforcement agencies and others, summarizing tweets written by two journalists — a reporter for theNew York Times and the editor in chief of the blog Lawfare — and noting they had published leaked, unclassified documents about DHS operations in Portland. The intelligence reports, obtained by The Washington Post, include written descriptions and images of the tweets and the number of times they had been liked or retweeted by others.

After The Post published a story online Thursday evening detailing the department’s practices, the acting homeland security secretary, Chad Wolf, ordered the intelligence office to stop collecting information on journalists and announced an investigation into the matter.

The WaPo specifically notes that normally this kind of thing only happens with terrorism and other violent actors.

Some of the leaked DHS documents the journalists posted and wrote about revealed shortcomings in the department’s understanding of the nature of the protests in Portland, as well as techniques that intelligence analysts have used. A memo by the department’s top intelligence official, which was tweeted by the editor of Lawfare, says personnel relied on “FINTEL,” an acronym for financial intelligence, as well as finished intelligence “Baseball cards” of arrested protesters to try to understand their motivations and plans. Historically, military and intelligence officials have used such cards for biographical dossiers of suspected terrorists, including those targeted in lethal drone strikes.

The DHS intelligence reports, which are unclassified, are traditionally used for sharing the department’s analysis with federal law enforcement agencies, state and local officials, and some foreign governments. They are not intended to disseminate information about American citizens who have no connection to terrorists or other violent actors and who are engaged in activity protected by the First Amendment, current and former officials said.

The tweets were sent by Ben Wittes and NYT’s Mike Baker.

Wittes wrote a long thread in response, suggesting he may take further action, and complaining, in particular, that discussion of his tweets was disseminated as intelligence reporting.

Welcome to the Trump Effect, Ben.

I have long argued that the President created something I call the Trump Effect, which makes things that the US has long done — like abusive treatment of undocumented immigrants, counterproductive use of violence overseas, and excessive intelligence collection — visible to people like mainstream voters and some kinds of national security commentators.

Here, Wittes is specifically complaining about policies he and Lawfare have, in the past, applauded, a special category of intelligence collection — even collection of speech otherwise protected under the First Amendment — targeted at those believed to pose a unique threat to national security. I’ve tangled with Lawfare in the past over whether such policies disproportionately constrain Muslim speech. And I noted — in response to a Pollyannish prediction from Wittes that Trump wouldn’t be that bad in part because this kind of intelligence is focused primarily overseas that, no, it had already been deployed against Black Lives Matter, precisely the movement it is currently being deployed against.

Consider: One of the most inflated cases of terrorism in recent decades was Mohamed Osman Mohamud, a guy whose father asked the FBI for help because the father worried that the son was being radicalized. Rather than helping, the FBI targeted Mohamud — who was in contact with AQAP propagandist Samir Khan — in a sting. After over a year (probably more than a year), they got the teenager to press a button he thought would detonate a bomb that targeted Pioneer Square in Portland, the site of the historic courthouse. During his prosecution, the FBI wiretapped several lawyers representing Mohamud. The FBI almost  certainly cultivated him after doing back door searches targeting Samir Khan and others. Mohamud, now 28, still has 16 years left on his 30 year sentence, assuming time off for good behavior.

I’m not saying Mohamud, after being radicalized (partly by FBI informants and undercover officers) posed no danger. But the danger and the special authorities used against him were all premised on his intent to do damage to the historic courthouse a few blocks aware from the Federal Courthouse, the very same rationale Billy Barr has repeatedly cited for sending Federal officers to incite more violence in Portland. Whatever you want to call the damage done by a handful of protestors in Portland, it is real damage, unlike what Mohamud got incited by Federal officers to commit.

And using the framework that Lawfare has largely applauded, Trump’s national security establishment has now targeted the First Amendment activities of those deemed to exist in a network, however diffuse, that also includes those “supporting” violence in Portland.

Once a majority of the country came to support Black Lives Matter, a majority of the country came to exist within a diffuse network that has long been treated using a similar framework used against terrorism.

Including Ben Wittes.

None of this makes what DHS has done right. And, because Wittes and the NYT are public figures with access to powerful lawyers (unlike the great majority of journalists covering Portland’s stand-off), Acting DHS Secretary Chad Wolf reversed course.

But the response should not just be a complaint about how Trump and Barr have treated protestors and journalists and lawyers using the same approach that Wittes long applauded to be used with terrorists, one that long ago dispensed with the need to have a real nexus overseas. It should also be an urgent call to reexamine how we have investigated Muslims in the name of terrorism, particularly as the FBI continues to have such success investigating white supremacist terrorism without using this framework.

Federal intelligence targeting networks — especially when wielded by those who don’t understand the networks they’re looking at — will always impinge on First Amendment activities. It just so happens that now it is impinging on the First Amendment activities of those who used to applaud such approaches.

Update: I’ve been getting the two courthouses in Portland confused all morning. Hopefully I’ve fixed it now.

Bill Barr Repeatedly Lied, Under Oath, about Judge Amy Berman Jackson

The judge agreed with me, Congressman.

The judge agreed with me.

The judge agreed with me.

Bill Barr spent a lot of time in yesterday’s hearing claiming the federal officers in Portland have to violently suppress the protests in Portland because the protests are an assault on the Federal courthouse.

He also lied, repeatedly, to cover up the assault on the judiciary he ignored.

In just one exchange with Ted Deutch, Barr claimed at least six times that Judge Amy Berman Jackson agreed with his analysis on the Roger Stone sentence.

Barr tried — and ultimately succeeded — in dodging Deutch’s question, which is whether there was ever a time in the history of the Justice Department where DOJ considered threats against a witness and a judge just a technicality.

Deutch: You said enhancements were technically applicable. Mr. Attorney General, can you think of any other cases where the defendant threatened to kill a witness, threatened a judge, lied to a judge, where the Department of Justice claimed that those were mere technicalities? Can you think of even one?

Barr: The judge agreed with our analysis.

Deutch: Can you think of even one? I’m not asking about the judge. I’m asking about what you did to reduce the sentence of Roger Stone?

Barr: [attempts to make an excuse]

Deutch: Mr. Attorney General, he threatened the life of a witness —

Barr: And the witness said he didn’t feel threatened.

Deutch: And you view that as a technicality, Mr. Attorney General. Is there another time

Barr: The witness — can I answer the question? Just a few seconds to answer the question?

Deutch: Sure. I’m asking if there’s another time in all the time in the Justice Department.

Barr: In this case, the judge agreed with our — the judge agreed with our —

Deutch: It’s unfortunate that the appearance is that, as you said earlier, this is exactly what you want. The essence of rule of law is that we have one rule for everybody and we don’t in this case because he’s a friend of the President’s. I yield.

The exchange is interesting for a lot of reasons — Barr’s story on the timeline on replacing Jesse Liu and Timothy Shea’s subsequent interventions in the Stone and Mike Flynn cases does not hold up in the least, though now he’s on the record, under oath, with that story.

As to the part where there is a public record, Barr was wrong on the facts. For example, while Barr claims that Randy Credico said he didn’t feel threatened by Stone after Stone made threats against him, Credico has said he feared what Stone’s thuggish friends might do. And, as Amy Berman Jackson noted in the sentencing hearing, Credico described to the grand jury how he wore a disguise and lived in hiding out of fear.

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.

The revised sentencing memo that Barr falsely claimed ABJ agreed with suggested “the Court [] not [] apply the eight-level enhancement for threatening a witness with physical injury.” But ABJ explicitly said the guideline applied, but she said would account for the nature of the threats and Credico’s leniency letter in deciding whether the sentence should apply the full guideline enhancement.

The guideline plainly applies. Even if one considers the threat to the dog to be property damage, that’s covered too. Application Note 5 explains that the guideline includes threats of property loss or damage, quote, Threatened as a means of witness intimidation.

But as the second government’s memorandum appears to be suggesting, as the defense has argued, the vague nature of the threat concerning any physical harm and its actual impact on Mr. Credico can be considered when I determine whether this sentence should fall within the guideline range or not, and they will.

In other words, ABJ said Stone should be punished for the kinds of threats he made about Credico, but that the enhancement itself was too severe.

ABJ similarly argued the opposite of what Barr did with regards to the enhancement for Stone’s obstruction of his prosecution, which the revised sentencing memo claimed, “overlaps to a degree with the offense conduct in this case,” and argued may not have, “actually prejudiced the government at trial.”

ABJ scoffed at DOJ’s erroneous claim that an enhancement designed to address entirely post-indictment actions could overlap — as DOJ claimed — with the pre-indictment actions charged in the indictment.

The supplemental memorandum says: Well, this enhancement overlaps, to a degree, with the offense conduct in this case.

I’m not sure I understand that assertion. As proposed, the guideline is not meant to cover any pre-indictment conduct at all. And, yes, the guideline says it doesn’t apply if obstruction of justice is the charge of conviction; but, that’s not true, say the guidelines, if there is further obstruction during the prosecution.

The government also said in its supplemental memo: It’s unclear to what extent the defendant’s obstructive conduct actually prejudiced the government at trial. But that isn’t the test. Obstruction is an attempt; it doesn’t have to be successful. And the administration of justice is a little bit more than whether they got in the prosecution’s way.

And she laid out, at length, the import of Stone’s threats and lies.

Even after he first denied and then acknowledged personally selecting the crosshairs photo, he sat there telling me: Yes, I’m going to follow any restrictions on talking about the investigation; but, forgetting to mention that he had a book on the subject wending its way to publishers as we spoke. I certainly haven’t seen anything that would attribute that to mere anxiety.

The defense also says his conduct, quote: Didn’t cause significant further obstruction of the prosecution of the case, close quote.

[snip]

But, certainly, A., threatening or intimidating a juror or a fact-finder in the case; F., providing false information to a judge; and J., not complying with the restraining order. While the orders here are not the ones specifically mentioned in the list, it’s not necessary that there’s an exact fit. The list is supposed to be illustrative.

And given the similarity of the conduct in this case to what’s listed in A., F., and J., I find that the guideline applies. The defendant engaged in threatening and intimidating conduct towards the Court, and later, participants in the National Security and Office of Special Counsel investigations that could and did impede the administration of justice.

I suppose I could say: Oh, I don’t know that I believe that Roger Stone was actually going to hurt me, or that he intended to hurt me. It’s just classic bad judgment.

But, the D.C. Circuit has made it clear that such conduct satisfied the test. They said: To the extent our precedent holds that a §3C1.1 enhancement is only appropriate where the defendant acts with the intent to obstruct justice, a requirement that flows logically from the definition of the word “willful” requires that the defendant consciously act with the purpose of obstructing justice.

However, where the defendant willfully engages in behavior that is inherently obstructive, that is, behavior that a rational person would expect to obstruct justice, this Court has not required a separate finding of the specific intent to obstruct justice.

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.

The behavior was designed to disrupt and divert the proceedings, and the impact was compounded by the defendant’s disingenuousness. As the opinion in Henry pointed out in U.S. versus Maccado, 225 F.3d 766, at 772, the D.C. Circuit even upheld a §3C1.1 enhancement for failure to provide a handwriting example because such failure, quote, Clearly has the potential to weaken the government’s case, prolong the pendency of the charges, and encumber the Court’s docket.

And the record didn’t show a lack of such intent. The defendant’s conduct here certainly imposed an undue burden on the Court’s docket and court personnel, as we had to waste considerable time convening hearing after hearing to get the defendant to finally be straight about the facts, to get the defendant to comply with court orders that were clear as day, and to ensure that the public and that people who come and go from this building every day were safe. Therefore, I’m going to add the two levels, and we are now at a Level 27.

Contrary to the government’s claim that Stone’s lies and threats had no effect on the case, ABJ laid out the risks of the threat and the added time she and court personnel had to expend responding to them.

It is true that ABJ ended up around where Barr wanted Stone’s sentence to end up, but as she explicitly said, she got there the same way she would have for any defendant, but deciding that the sentencing guidelines are too severe. If Barr agreed with that then other people would benefit from Barr’s brief concern about prison sentences.

That didn’t happen.

But Barr is not afraid to lie and claim it did, under oath.

Bill Barr Testifies He’s Unfamiliar with the Obstruction Portion of the Mueller Report

I’m just finishing up the Bill Barr testimony before the House Judiciary Committee. While it wasn’t useful at eliciting new information, Barr did not succeed at filibustering over questions he wanted to ignore. Jim Jordan, whose favorite tactic is to scream and refuse to let witnesses answer questions, four times complained that Democrats had insisted on reclaiming their time when Barr tried to filibuster.

Democrats didn’t nail Barr on some of his key lies. For example, as he did in his written testimony, he complained that protestors were endangering federal judges; yet Democrats let him get away with the lie — which he yelled over and over — that Amy Berman Jackson agreed with his view on the Stone sentencing. The reality is ABJ very pointedly disagreed with Barr’s decision that Stone should not be punished for threatening her.

The headline of the hearing, though, should be that, now that he’s finally testifying under oath, Barr backed off his claim — made when releasing the Mueller Report — that the White House fully cooperated with the Mueller investigation. [This is about 45 minutes before the end.]

Joe Neguse: I want to go through a couple of your prior statements. On April 19–or, excuse me, April 18 of 2019, you stated that the White House fully cooperated with the Special Counsel’s investigation. You’re aware of that?

Barr: Umm hmm.

Neguse: Today, yes or no Mr. Barr with the penalty of perjury, do you testify that that statement was true at the time you made it?

Barr: I thought it to be true at the time I made it. Why isn’t it true–

Neguse: I’ll get to that Mr. Barr.

Barr: Does it have to do with quibbling over–

Neguse: Mr. Barr, I’ll get to that, reclaiming my time, you answered the question. I have another question for you. On June 19, of 2020,

Barr: Actually, I have to answer that question.

Neguse: Mr. Barr, you did answer that question.

Barr: No, you said under penalty of perjury. I’m going to answer the damn question.

Neguse: You said the answer was yes. Are you saying no?

Barr: I think what I was referring to — and I’d have to see the context of it — was the supplying of documents.

Neguse: No, Mr. Attorney General, the statement was not limited to the supply of documents. You stated it at a press — Mr. Attorney General —

Barr: I think that’s that I was talking about —

Neguse: Reclaiming my time —

Barr: I think that’s what I was talking about —

Neguse: Reclaiming my time. You stated at a press conference on April 19, 2019 that the White House fully cooperated with the Special Counsel’s investigation. You knew, when you made that statement, that the President had not agreed to be interviewed by the Special Counsel.

Barr: I think that was subsequently —

Neguse: Now on June 18th of this year —

Barr: I was referring to —

Neguse: Mr. Attorney General, I was referring to

Barr: The production of documents —

Neguse: Mr. Attorney General, on June 18th of this year, the Department of Justice issued a statement saying that Mr. Berman, the former US Attorney for the Southern District of New York, had quote, “stepped down.” You’re aware of that statement being released by the department, correct?

Barr: Yes.

Neguse: And do you testify today that that statement was true, at the time the Department issued it?

Barr: Um, he may not have known it, but he was stepping down.

Neguse: He may not have known that he was stepping down? That’s your testimony today?

Barr: He was being removed.

Neguse: Mr. Attorney General. The statement did not say he was being removed. It did not say he was being fired. It said that he was stepping down.

But I think the far more damning testimony from the Attorney General is that he is not familiar with the obstruction part of the Mueller Report.

Eric Swalwell had this exchange with Barr:

Swalwell: Mr. Barr, have you ever intervened other than to help the President’s friend get a reduced prison sentence for any other case where a prosecutor had filed a sentencing recommendation with a court?

Barr: A sentencing recommendation?

Swalwell: Yeah. Have you ever intervened, other than that case with the President’s friend?

Barr: Not that I recall–

Swalwell: Does that seem like something you’d recall? Where you would–

Barr: Well, I’m saying I can’t really remember my first — if you let me finish the question, I can’t remember thirty years ago I was Attorney General.

Swalwell: As Attorney General now?

Barr: Uh, no, I didn’t. But that’s because issues come up to the Attorney General in a dispute and I’ve never [starts yelling] I’VE NEVER HEARD OF A DISPUTE … I’VE NEVER HARD OF A DISPUTE WHERE LINE PROSECUTORS–

Swalwell: Mr. Attorney– Mr. Attorney–

Barr: [still yelling] THREATEN TO QUIT —

Swalwell: Well it’s a pretty big deal–

Barr: Because of a discussion over sentencing–

Swalwell: Mr. Barr, Americans from both parties are concerned that in Donald Trump’s America there are two systems of justice. One for Mr. Trump and his cronies. And another for the rest of us. But that can only happen if you enable it. At your confirmation hearing, you were asked, “Do you believe a President could lawfully issue a pardon in exchange for the recipient’s promise to not incriminate him?

Barr: Not to what?

Swalwell: You said, “That would be a crime.” You were asked, could a President issue a pardon in exchange for the recipient’s promise to not incriminate him, and you responded, “no, that would be a crime.” Is that right?

Barr: Yes, I said that.

Swalwell: You said “a crime.” You didn’t say, “it’d be wrong,” you didn’t say, “it’d be unlawful.” You said, “it’d be a crime.” And when you said that, that a President swapping a pardon to silence a witness would be a crime, you were promising the American people that if you saw that, you would do something about that, is that right?

Barr: That’s right.

Swalwell: Now, Mr. Barr, are you investigating Donald Trump for commuting the prison sentence of his long-time friend and political advisor Roger Stone?

Barr: No.

Swalwell: Why not?

Barr: Why should I?

Swalwell: Well, let’s talk about that. Mr. Stone was convicted by a jury on 7 counts of lying on the Russian investigation. He bragged that he lied to save Trump’s butt. But why would he lie? Your prosecutors, Mr. Barr, told a jury that Stone lied because the truth looked bad for Donald Trump. And what truth is that? Well, Donald Trump denied in written answers to the Russia investigators that he talked to Roger Stone during the time that Roger Stone with in contact with Agents of a Russian influence operation. There’s evidence that Trump and Stone indeed did talk during that time. You would agree that it’s a federal crime to lie under oath, is that right?

Barr: Yes.

Swalwell: It’s a crime for you, it’s a crime for me, and it’s certainly a crime for the President of the United States. Is that right?

Barr: Yes.

Swalwell: So if Donald Trump lied to the Mueller investigators, which you agree would be a crime, then Roger Stone was in a position to expose Donald Trump’s lies. Are you familiar with the December 3rd, 2018 tweet, where Donald Trump said Stone had showed “guts” by not testifying against him?

Barr: No, I’m not familiar with that.

Swalwell: You don’t read the President’s tweets?

Barr: No!

Swalwell: Well, there’s a lot of evidence in the President’s tweets, Mr. Attorney General, I think you should start reading them, because he said Mr. Stone, “showed guts,” but on July 10 of this year, Roger Stone declared to a reporter, “I had 29 or 30 conversations with Trump during the campaign period. Trump knows I was under enormous pressure to turn on him. It would have eased my situation considerably. But I didn’t. The prosecutors wanted me to play Judas, I refused.” Are you familiar with that Stone statement?

Barr: Actually I’m not.

Swalwell: So how can you sit here and tell us, why should I investigate the President of the United States,” if you’re not even aware of the facts concerning the President using the pardon or commutation power to swap the silence of a witness?

Barr: Because we require, you know, a reliable predicate before we open a criminal investigation.

Swalwell: And I just gave you, sir–

Barr: I don’t consider it, I consider it a very Rube, uh, Goldberg theory that you have —

Swalwell: Well it sounds like you’re hearing this theory for the first time.

Barr: And by the way if apply this standard it’d be a lot, it’d be a lot more people under investigation.

Swalwell: Mr. Attorney General, the very same day that Roger Stone said that Donald Trump — no surprise — commuted his

Barr: The two tiered standards of justice were really during the tail end of the Obama Administration.

Barr may well be unfamiliar with Trump’s December 3, 2018 tweet.

Let’s take his testimony as truth.

If that’s true, than Barr is also unfamiliar with the Obstruction portion of the Mueller Report. In passages just recently declassified by Billy Barr’s DOJ, the Mueller Report laid out how the back-and-forth between Stone and Trump might be evidence of obstruction.

As described above, in an interview on November 28, 2018, one week after submitting his written answers, the President criticized “flipping” and said that Stone (along with Manafort and Corsi) was “very brave” in indicating he would not cooperate with prosecutors.897 On December 2, 2018, Stone told the press that there was “no circumstance” under which he would “testify against the president.”898 He also said he had had no discussions about a pardon.899 On December 3, 2018, the President tweeted, “‘I will never testify against Trump.’ This statement was recently made by Roger Stone, essentially stating that he will not be forced by a rogue and out of control prosecutor to make up lies and stories about ‘President Trump.’ Nice to know that some people still have ‘guts!’”900

On January 24, 2019, a grand jury indicted Stone on charges of obstruction, witness tampering, and making false statements.901 One of the counts charged Stone with violating 18 U.S.C. § 1001 for testifying falsely in Congress that he had never told anyone involved in the Trump Campaign about discussions he was having during the campaign with an individual who acted as an intermediary between him and Assange.902 After making an initial court appearance on January 25, 2019, Stone told reporters, “There is no circumstance whatsoever under which I will bear false witness against the president, nor will I make up lies to ease the pressure on myself. . . . I will not testify against the President, because I would have to bear false witness.”903

That evening, Stone appeared on Fox News and indicated he had knowledge of the President’s answers to this Office’s written questions. When asked if he had spoken to the President about the allegation that he had lied to Congress, Stone said, “I have not” and added, “When the President answered the written interrogatories, he correctly and honestly said Roger Stone and I never discussed this and we never did.”904

[snip]

Finally, there is evidence that the President’s actions towards Stone had the potential to affect a decision about cooperating with the government. After Stone publicly announced that he would never provide evidence against the President’s interests, the President called Stone “very brave” and said he had “guts!” for not “testify[ing] against Trump.”

[snip]

With regard to the President’s conduct towards Stone, there is evidence that the President intended to reinforce Stone’s public statements that he would not cooperate with the government when the President likely understood that Stone could potentially provide evidence that would be adverse to the President. By late November 2018, the President had provided written answers to the Special Counsel’s Office in which the President said he did not recall “the specifics of any call [he] had” with Stone during the campaign period and did not recall discussing WikiLeaks with Stone. Witnesses have stated, however, that candidate Trump discussed WikiLeaks with Stone, that Trump knew that Manafort and Gates had asked Stone to find out what other damaging information about Clinton WikiLeaks possessed, and that Stone’s claimed connection to WikiLeaks was common knowledge within the Campaign. It is possible that, by the time the President submitted his written answers two years after the relevant events had occurred, he no longer had clear recollections of his discussions with Stone or his knowledge of Stone’s asserted communications with WikiLeaks. But the President’s conduct could also be viewed as reflecting his awareness that Stone could provide evidence that would run counter to the President’s denials and would link the President to Stone’s efforts to reach out to WikiLeaks. On November 28, 2018, eight days after the President submitted his written answers to the Special Counsel, the President criticized “flipping” and said that Stone was “very brave” for not cooperating with prosecutors. Five days later, on December 3, 2018, the President applauded Stone for having the “guts” not to testify against him. These statements, as well as those complimenting Stone and Manafort while disparaging Michael Cohen once Cohen chose to cooperate, support the inference that the President intended to communicate a message that witnesses could be rewarded for refusing to provide testimony adverse to the President and disparaged if they chose to cooperate.

The December 3, 2018 tweet was a key part of Mueller’s case that Trump’s discussion of pardons for Roger Stone were an effort to get him to be silent about the fact that Trump had lied (not just about talking about WikiLeaks, but also about a pardon for Julian Assange).

This was a key part of the Mueller Report’s analysis of the obstruction case against Trump.

And Billy Barr testified today, under oath, he’s not familiar with it.

It’s not just that Barr disclaims familiarity about Trump’s tweets (though his testimony was inconsistent about whether he saw the one claiming Stone’s sentence was unfair). It seems to be the case that Barr testified that he’s not familiar with the obstruction portion of the Mueller investigation.

And yet, the Attorney General claims to have reviewed that and concluded — for reasons that have nothing to do with DOJ’s policy that a President can’t be indicted — Trump did not commit obstruction.

In other words, the Attorney General’s sworn testimony as of today is that he’s not familiar with the obstruction case against Trump and — arguably — never read it, or at least is unfamiliar with the case it lays out about why, if Trump gave Stone clemency, it would be a crime.

Billy Barr Admits, for the Third and Fourth Time, that He Intervenes without Knowing the Facts

Billy Barr’s statement for his testimony today is here. It is as cynical and dishonest as you might imagine.

In his first paragraph, he pays tribute to John Lewis, without mentioning the ways he personally is trying to roll back the ability for every citizen to vote (most notably, of late, by falsely suggesting that the only safe way to vote during a pandemic is susceptible to fraud).

In his second paragraph, he suggests only politicians are political, and then suggests “mobs” are among those pressuring DOJ to take political decisions.

We are in a time when the political discourse in Washington often reflects the politically divided nation in which we live, and too often drives that divide even deeper. Political rhetoric is inherent in our democratic system, and politics is to be expected by politicians, especially in an election year. While that may be appropriate here on Capitol Hill or on cable news, it is not acceptable at the Department of Justice. At the Department, decisions must be made with no regard to political pressure—pressure from either end of Pennsylvania Avenue, or from the media or mobs.

Then he spends five paragraphs addressing what he calls “Russiagate,” a term used exclusively by those who like to diminish the seriousness of an attack on our country.

Ever since I made it clear that I was going to do everything I could to get to the bottom of the grave abuses involved in the bogus “Russiagate” scandal, many of the Democrats on this Committee have attempted to discredit me by conjuring up a narrative that I am simply the President’s factotum who disposes of criminal cases according to his instructions. Judging from the letter inviting me to this hearing, that appears to be your agenda today.

Four paragraphs later, Billy Barr admits that the sole reason he returned to government was to avenge what he believed — as an admitted outsider!! — to be two systems of justice.

But as an outsider I became deeply troubled by what I perceived as the increasing use of the criminal justice process as a political weapon and the emergence of two separate standards of justice. The Department had been drawn into the political maelstrom and was being buffeted on all sides. When asked to consider returning, I did so because I revere the Department and believed my independence would allow me to help steer her back to her core mission of applying one standard of justice for everyone and enforcing the law even-handedly, without partisan considerations. Since returning to the Department, I have done precisely that. My decisions on criminal matters before the Department have been my own, and they have been made because I believed they were right under the law and principles of justice.

Remember: Billy Barr has repeatedly stated that the investigation into Trump’s associates (not Trump himself) was unprecedented, proving he’s either unaware of or uninterested in the two investigations into Hillary, both of which involved abuses (the ostensible reason for the firing of both Jim Comey and Andrew McCabe) and leaks. The only evidence that a biased FBI Agent was running an informant on a candidate during the election involved the Clinton Foundation investigation which — unlike the Russian investigation — is understood to be entirely predicated on dodgy opposition research. Clinton did sit for an interview in the investigation into her actions; Trump refused.

In other words, every complaint floated about the Russian investigation actually applies more readily to the two Clinton ones, the treatment of investigations which had some effect, however unmeasured, on the election.

Yet the Attorney General of the United States has now admitted that he came into office planning to avenge what he sees as the opposite. Importantly, he admits he formed this conclusion an outsider! That means he formed the conclusion in spite of — by his own repeated admission — not knowing the facts of the investigation. “I realize I am in the dark about many facts,” he admitted in his memo on what he believed Mueller was doing on obstruction. As part of his confirmation process, he told both Dianne Feinstein and the Senate Judiciary that, “As I explained in a recent letter to Ranking Member Feinstein, my memo was narrow in scope, explaining my thinking on a specific obstruction-of-justice theory under a single statute that I thought, based on media reports, the Special Counsel might be considering.”

Billy Barr decided to become Attorney General based off what he admitted then and has proven since to be badly mistaken understanding of what the Russian investigation entailed. That’s it. That’s why he agreed to become Attorney General.

Barr may think he’s working from an independent standpoint (a laughable claim in any case given his outspoken hatred for anything progressive), but he keeps admitting that he’s doing something worse, working from an understanding based off media portrayals rather than an understanding based off the public, much less the investigative, record.

No wonder Reggie Walton ruled that Attorney General Barr had spun the real outcome of the investigation. Barr, by his own admission, formed conclusions when he was “in the dark about many facts.” There’s no evidence he has revisited those conclusions since.

Billy Barr performs his own toxic bias in numerous other ways in his opening statement, for example by focusing on Antifa’s potential threat to law enforcement rather than Boogaloo’s much greater threat.

Most cynical, though, is the way he explains the storm troopers in Portland as an effort to defend not just Federal property (which it is, if counterproductively heavy-handed), but Article III judges.

Inside the courthouse are a relatively small number of federal law enforcement personnel charged with a defensive mission: to protect the courthouse, home to Article III federal judges, from being overrun and destroyed.

Barr has demonstrated his disdain for Article III judges over and over: by overriding the decisions of Emmet Sullivan on the Mike Flynn case, by lying to courts on census cases, by ignoring Supreme Court orders on DACA.

Most importantly, however, on issues pertaining to Trump’s flunkies — even the Roger Stone case that he has twice said was righteous — Barr completely dismissed the seriousness of an actual threat to a Federal judge. As I have noted, contrary to Barr’s repeated claims that Amy Berman Jackson agreed with the sentencing recommendation DOJ made after he made an unprecedented intervention to override a guidelines sentencing recommendation, she did not agree that his revised sentencing included the appropriate enhancements. Not only did Barr dismiss the seriousness of making a violent threat against a witness, but Barr’s revised sentencing memo eliminated the sentencing enhancement for threatening a judge, opining (as Barr has a habit of doing) that DOJ wasn’t sure whether Stone’s actions had obstructed his prosecution and trial under ABJ.

Moreover, it is unclear to what extent the defendant’s obstructive conduct actually prejudiced the government at trial.

This is why we have judges: to decide matters like this! Indeed, that’s the justification for recommending guidelines sentences in the first place — so the actual judge who presided over the case, rather than an Attorney General who has admitted to repeatedly forming opinions without consulting the actual record, makes the decisions based off the broadest understanding of the record. Even in this, his most egregious action, Billy Barr’s DOJ weighed in while admitting it didn’t have the knowledge to do so. And did so in such a way that minimized the danger of threats against Article III judges.

Billy Barr thinks the moms defending protestors in Portland are a threat to judges. But his repeated, acknowledged intervention on matters he knows fuckall about is a bigger threat to the rule of law, up to and including when that record includes threats against judges.

HJC Should Ask Bill Barr Why It Would Do Irreparable Harm if He Had to Explain His Actions in the Flynn Case

Unless he comes up with some new excuse, tomorrow Billy Barr will finally show up for an oversight hearing in the House Judiciary Committee.

There are a number of sets of questions that commentators have suggested for the hearing (a strategic set of four topics that will show how Barr is hurting the US, an updated set from JustSecurity, some questions about Geoffrey Berman’s firing).

I could come up with similar lists. They’d be long and — by the time anyone executed them competently on the Democratic side — the big media outlets would have already filed their story on the hearing.

One thing that should be included, however, is the letter that Sidney Powell sent Barr and Jeffrey Rosen in June 2019 and Bill Barr’s actions to deliver on her demands in the subsequent year, actions that DOJ itself admits would do irreparable harm if DOJ had to explain.

The letter was effectively a road map of demands, many of them based off hoaxes, almost all of them unrelated to Flynn’s prosecution or false. It later became the Brady demand that Judge Emmet Sullivan rejected in a meticulous opinion last December. In it, Powell demanded that DOJ conduct a review of the prosecution and then dismiss the prosecution.

At the end of this internal review, we believe there will be ample justification for the Department to follow the precedent of the Ted Stevens case and move to dismiss the prosecution in the interest of justice — whether it be we ink a simple joint motion or sua sponte by the Department.

NYT wrote about this letter in June, calling it “little noticed” but predictably not crediting me, who did noticed it and wrote about it repeatedly.

HJC should raise this letter with Billy Barr for several reasons. First, little in the letter turned out to be true. Indeed, DOJ has asserted in court filings that even where documents Powell asked for existed, none of it was Brady material (and in fact, in spite of Timothy Shea’s claim that these materials were new, that was false, meaning DOJ has no justification for flip-flopping on its call for prison time for Flynn from earlier this year). Powell should have gotten none of it, and yet Barr invented an unprecedented process to give it to her and then use it to self-sabotage the case.

More importantly, the way in which Barr has rolled out the release of these documents has served, in part, to hide the shoddiness of Timothy Shea’s motion to dismiss. Based off a misrepresentation of Bill Priestap’s notes, Shea pretended that the interview with Flynn focused exclusively on the Logan Act. That wasn’t even an accurate reading of Priestap’s own notes. Since then, DOJ has released several more documents that make it clear FBI’s focus was on whether Flynn was a foreign agent (and also provide more evidence that the Flynn 302s track the Agents’ description of the interview), documents that undermine their own motion to dismiss. They’ve either withheld a Bill Priestap 302 explaining what happened or Powell has decided it doesn’t help her. And there are more records that they are sitting on that undermine the claims in their motion to dismiss.

Importantly, while DOJ was making claims that Flynn’s lies were not material, John Ratcliffe was releasing documents that explained why they were.  Of particular note, on February 14, 2017 — weeks after all the meetings DOJ has been focused on, Peter Strzok, in an annotation that made it clear he did not have it in for Trump or his flunkies, also made it clear that FBI didn’t have any phone records yet.

We have very few call logs. NSLs have been issued for Manafort, Page, and Flynn, many of which have not yet been returned.

On February 25, notes from Tashina Gauhar make clear, Strzok and Joe Pientka believed Flynn didn’t believe he had been lying. They also judged — not having phone records or much else yet — that they did not think he was an agent, but they needed to verify that.

That got translated into a later draft summary into a conclusion that Flynn wasn’t a foreign agent.

But as FBI would get first call logs (which would reveal Flynn had also lied about being in contact with Mar-a-Lag0) and then his texts (which would make it clear Flynn knew well about the sanctions Obama had imposed), that would dramatically change the import of his lies. By the time he started cooperating, Flynn made it clear that he and KT McFarland had immediately set about trying to cover up the response Sergey Kislyak gave to Flynn’s request.

After the briefing, Flynn and McFarland spoke over the phone. 1258 Flynn reported on the substance of his call with Kislyak, including their discussion of the sanctions. 1259 According to McFarland, Flynn mentioned that the Russian response to the sanctions was not going to be escalatory because they wanted a good relationship with the incoming Administration.1260 McFarland also gave Flynn a summary of her recent briefing with President-Elect Trump. 1261

The next day, December 30, 2016, Russian Foreign Minister Sergey Lavrov remarked that Russia would respond in kind to the sanctions. 1262 Putin superseded that comment two hours later, releasing a statement that Russia would not take retaliatory measures in response to the sanctions at that time. 1263 Hours later President-Elect Trump tweeted, “Great move on delay (by V. Putin).” 1264 Shortly thereafter, Flynn sent a text message to McFarland summarizing his call with Kislyak from the day before, which she emailed to Kushner, Bannon, Priebus, and other Transition Team members. 1265 The text message and email did not include sanctions as one of the topics discussed with Kislyak. 1266 Flynn told the Office that he did not document his discussion of sanctions because it could be perceived as getting in the way of the Obama Administration’s foreign policy.1267 [my emphasis]

KT McFarland’s 302s would show she told the same untruths that Flynn had told, even after he got fired for telling them. More recently, it became clear that the White House scripted Bannon to deny discussing sanctions as well.

Meanwhile, the government is still withholding the first (known) post-election transcript between Flynn and Kislyak, where he first started this game of deal-making with the country that just attacked us.

All these details may not amount to Flynn acting as an Agent of Russia.

Rather, they amount to a concerted cover-up of the White House role in this sanction discussion. That’s a topic that a sentencing memorandum approved by top people in Bill Barr’s DOJ argued was significant and material, because a concerted effort to undermine sanctions on Russia, “could have been evidence of links or coordination between the Trump Campaign and Russia.”

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.

The concerted effort to hide the extensive coordination on sanctions — involving at least Flynn, McFarland, and Bannon — was designed hide whether the Trump response to Obama’s sanctions amounted to the kind of quid pro quo Mueller was appointed to investigate. A question on sanctions relief is the single one that Trump totally blew off in his responses to Mueller.

DOJ wants to claim that Flynn’s conversations with Sergey Kislyak were totally normal. But not only are they still hiding at least one of them, but they were utterly material to the Mueller investigation.

But then there’s the final reason why HJC should question Barr about the letter from Sidney Powell that he apparently delivered on a year after she demanded: DOJ itself admitted that explaining DOJ’s actions here would do irreparable harm.

The more interesting argument came from Wall. He argued, repeatedly, that DOJ will be irreparably harmed if Sullivan is permitted to hold a hearing on DOJ’s motion to dismiss. In particular, he seemed horrified that Sullivan might require sworn declarations of affidavits.

As Beth Wilkinson, arguing for Sullivan, mentioned, neither Sullivan nor Amicus John Gleeson has called for such a thing. Both are simply moving towards a hearing scheduled for July 16. Wilkinson also noted that District courts hold such hearings all the time. (And they predictably will have to in another case where DOJ has moved to end a prosecution recently, in which — unlike this case — there appears to have been prosecutorial misconduct, Ali Sadr Hashemi Nejad, which I’ll return to).

Wall is literally arguing that DOJ will be permanently damaged if it has to show up and answer for its actions in this case (in particular, to explain why the prosecutors in this case didn’t sign the motion to dismiss).

That Wall argued so forcibly as to the injury that DOJ would suffer if it had to show up and defend its motion to dismiss is all the crazier given that they didn’t file the petition. The only harm that matters here procedurally is any harm to Flynn, not DOJ, and Powell really made no such case.

Indeed, that’s the reason why the DC Circuit granted mandamus in the Flynn case — not because of any injury that Flynn might face from having Sullivan scrutinize the case, but because having to answer for what Barr did here would — simply having to show up to the kind of hearing that DOJ shows up to every day and answer questions under oath — would do grave damage to DOJ.

HJC should take DOJ at its word. DOJ has confessed their actions can’t withstand the least amount of scrutiny. HJC should demand to know why.

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

Billy Barr lies, a lot.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

Bullshit.

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

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

“Hinky:” NPR Permitted Billy Barr to Lie More than Once

The other day, NPR’s public editor did a piece exploring how the NPR allowed itself to spread Billy Barr’s lies about vote by mail uncontested. It reviews the exchange, noting where Steve Inskeep did not ask obvious follow-ups.

Inskeep had 20 minutes to do the Barr interview, which was conducted at the Justice Department. In the portion of the interview on election security, Inskeep sounds, to my ear, off his game. His follow-up questions don’t reflect the facts that NPR had already reported, and are therefore ineffective at holding Barr accountable for his statements.

The transcript is available here. When Barr conflates the broad issue of foreign interference with the specific claim of ballot tampering, Inskeep does not call him out.

[snip]

When Barr compares the ballots to paper money, to suggest they can be easily duplicated, Inskeep asks: “Do they not also go through procedures like that with mail-in ballots?” Barr answers: “You’ve seen them. They’re pretty primitive.”

A journalist specializing in election security would have pressed Barr more firmly, by asking again whether intelligence of ballot tampering exists, and getting him to explain exactly how he imagines outsiders would attempt to circumvent the numerous safeguards in place, including barcodes, enumerated ballots, duplicating the specific paper stock and printing methods and signature verifications. Suggested question: How would a ballot counterfeiting scheme work at scale, to get around the well-established and tested controls, including the individual codes on each ballot and the signature comparisons?

It talks about the decision to include Barr’s lies (about vote-by-mail) rather than take more time and edit them out.

Inskeep worked with a show editor and producer to prepare the package. Together, they chose to air the bulk of Barr’s claims rather than truncate the statements to air only those not widely disputed as false. He could have decided to delay the air date of that particular segment in order to do more reporting and bring additional voices into the conversation, an internal or external expert to say that Barr is making a false statement.

Running an extensive portion of the exchange could only be a good option if Inskeep was willing to add more context, as you are about to see below.

And it described how NPR could have made it far clearer that Billy Barr lied to NPR.

There are many techniques to prepare listeners to hear false information. You can straight-up tell the audience the upcoming statements are inaccurate — while also explaining that part of our job is to sometimes allow public officials to make such statements so that the listener can hear it for herself. Stewart said he was grateful Inskeep got Barr on tape falsely claiming mail-in ballots will jeopardize the election. “This looks like pure, unadulterated Barr,” he said. “And I’m really glad the country got to hear that.”

I wish Inskeep would have spent a little air time making clear in the set-up that state election officials use several well-tested methods to ensure the integrity and security of mail-in ballots, and that transparency of those checks and balances is baked into the system.

Given that Barr primarily does interview with old friends from the Poppy Administration or propaganda outlet, I’m grateful that NPR reviewed this interview and laid out how Barr has successfully, relentlessly lied to the American people.

But they should have gone one step further, and noted all the other times Barr lied to Inskeep. And even before he lied about vote-by-mail, he falsely claimed that his interventions in both the Mike Flynn and Roger Stone case was proper. In the Stone case, for example, he explained his intervention in the sentencing recommendation because there was a dispute.

I was the decision maker in that case because there was a dispute. And usually what happens is, disputes, especially in high profile cases, come up to the attorney general.

To the extent there was a dispute, it was only because he had removed the Senate confirmed US Attorney and put in someone he told to dispute the sentencing guidelines. NPR also let Barr claim that his recommendation is what Amy Berman Jackson adopted, which is not at all true (she adopted most of the prosecutors’ guidelines sentence but gave Stone a lenient sentence on her own).

Worse still, NPR let Barr claim as fact that there was a lot hinky with Flynn’s case.

There was a lot of hinky stuff in the Flynn case. Everyone knew that. Everyone was wondering why was this case ever brought?

That’s not only false, but both DOJ Inspector General and Judge Emmet Sullivan had reviewed it and found nothing “hinky.” Effectively, Barr put in a flunkie to override the judgement of those people who are supposed to assess whether something is hinky.

Importantly, only people who haven’t consulted the public record believe that — which is why it is so dangerous for NPR to let the claim go unchallenged. So here, as with the vote-by-mail, Inskeep simply gave Barr the opportunity to provide false excuses for unprecedented abuse of power.

And the public editor should note that.