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Vicky and Rudy: The Subjects of Delay

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When I asked around last year what the net effect of Billy Barr and Jeffrey Rosen’s efforts to protect Rudy Giuliani would be, I learned that the net effect of refusing to approve searches on Rudy would only delay, but it would not change the outcome of, the investigation into the President’s lawyer.

That’s worth keeping in mind as you read SDNY’s response to Victoria Toensing and Rudy’s demand that they get to treat both the April warrants against them, as well as the 2019 warrants, like subpoenas. Effectively, SDNY seems to be saying, “let’s just get to the indictment and discovery phase, and then you can start challenging these searches.”

The filing several times speaks of charges hypothetically.

If Giuliani is charged with a crime, he will, like any other criminal defendant, be entitled to production of the search warrant affidavits in discovery, at which time he will be free to litigate any motions related to the warrants as governed by Federal Rule of Criminal Procedure 12. Conversely, if the Government’s grand jury investigation concludes without criminal charges, then the sealing calculus may be different, and Giuliani may renew his motion.

[snip]

If there is a criminal proceeding, the Government will produce the affidavits, warrants, and materials seized pursuant to those warrants, and at that time, the warrants’ legality can be litigated.

[snip]

Finally, Toensing will have both a forum and an opportunity to litigate any privilege issues if there is a criminal proceeding. As the Second Circuit has noted, in affirming the denial of a return-of-property motion, “If [the grand jury’s] inquiry results in indictment, the lawfulness of the seizure will be fully considered upon a motion to suppress, and any ruling adverse to the defendant will be reviewable upon appeal from a final judgment; if the grand jury declines to indict the movant, or adjourns without indicting it, its property will most likely be returned, and if not, it can initiate an independent proceeding for its return.” [my emphasis]

But the filing repeatedly makes clear that not just Rudy, but also Toensing (whose lawyer made much of being informed that Toensing was not a target of the investigation), are subjects of this investigation.

But the Government specifically chose not to proceed by subpoena in this case, for good reason, and there is no precedent for permitting the subjects of an investigation to override the Government’s choice in this regard.

None of the cases cited by Giuliani or Toensing supports their proposed approach. Toensing principally relies on United States v. Stewart, No. 02 Cr. 395 (JGK), 2002 WL 1300059, at *4-8 (S.D.N.Y. June 11, 2002), 4 but that case is readily distinguishable because it involved the seizure of documents from several criminal defense attorneys who were not subjects of the Government’s investigation and had many cases before the same prosecuting office

[snip]

Such concerns merely serve to highlight the many countervailing problems with Giuliani and Toensing’s proposal: under their approach, the subjects of a criminal investigation would have the authority to make unilateral determinations not only of what is privileged, but also of what is responsive to a warrant.

[snip]

Nevertheless, Giuliani argues that, quite unlike other subjects of criminal investigations, he is entitled to review the affidavits supporting the warrants, which would effectively give him the extraordinary benefit of knowing the Government’s evidence before even being charged with a crime.

[snip]

Her request is contrary to law and would effectively deprive the Government of its right to evidence in the midst of a grand jury investigation so that she, the subject of that investigation, may decide what is privileged and what is responsive in those materials.

[snip]

In other words, accepting Giuliani and Toensing’s argument about the impropriety of using a filter team to review covert search warrant returns would entitle subjects of a criminal investigation to notice of that investigation any time a warrant were executed that related to them, no matter if the investigation were otherwise covert and no matter if the approving Court had signed a non-disclosure order consistent with the law. [my emphasis]

SDNY correctly treats Rudy and Toensing’s demands to review this material before SDNY can obtain it as a delay tactic.

Giuliani and Toensing’s proposal to allow their own counsel to conduct the initial review of materials seized pursuant to lawfully executed search warrants, including making determinations of what materials are responsive to the warrants, on their own timeline is without any precedent or legal basis. The Government is aware of no precedent for such a practice, which has the effect of converting judicially authorized search warrants into subpoenas.

Indeed, their discussion of the Lynn Stewart precedent emphasizes their goal of obtaining this material expeditiously.

None of the cases cited by Giuliani or Toensing supports their proposed approach. Toensing principally relies on United States v. Stewart, No. 02 Cr. 395 (JGK), 2002 WL 1300059, at *4-8 (S.D.N.Y. June 11, 2002), 4 but that case is readily distinguishable because it involved the seizure of documents from several criminal defense attorneys who were not subjects of the Government’s investigation and had many cases before the same prosecuting office. (See infra at pp. 33-34). In any event, the Court appointed a special master in Stewart, as the Government seeks here. And the procedures adopted in Stewart illustrate why the Government’s proposed approach is preferable. In Stewart, the presiding judge initially believed that the special master’s review could be conducted expeditiously because the defendant’s counsel could quickly produce a privilege log (as Toensing seeks to do here). Id. at *8. But 15 months later, the judge lamented that the special master still had not produced a report on the seized materials. United States v. Sattar, No. 02 Cr. 395 (JGK), 2003 WL 22137012, at *22 (S.D.N.Y. Sept. 15, 2003), aff’d sub nom. United States v. Stewart, 590 F.3d 93 (2d Cir. 2009). That cumbersome process stands in stark contrast to that adopted by Judge Wood in Cohen, wherein the special master completed her review on an expedited basis in parallel to Cohen’s counsel, and set deadlines for Cohen’s counsel to object to any of her designations. (Cohen, Dkt. 39 at 1-2). In Cohen, the special master was appointed in April 2018, and her review was complete by August 2018. The Cohen search involved approximately the same number of electronic devices seized here, but also included significant quantities of hard copy documents, which are not at issue here. In sum, the Court should follow the model set forth in Cohen, which resulted in an efficient and effective privilege review. [my emphasis]

Likewise, the government also offered to pay the costs of the Special Master, so long as the Special Master follows the expeditious procedure conducted with Michael Cohen’s content.

This Court should not permit Giuliani and Toensing to stall the investigation of their conduct in this manner, particularly where the Government’s proposal will allow them to conduct the same review in parallel with a special master. The Government’s proposal to appoint a special master to review the seized materials is the only proposal that is fair to all parties, respects the unique privilege issues that the 2021 Warrants may implicate, and will ensure that Government’s investigation proceeds without undue delay.6

6 In the Cohen matter before Judge Wood, the Government and Cohen split the costs associated with the special master’s privilege review. Here, because the Government made the initial request of the Court and considers the appointment of a special master appropriate in this matter, the Government is willing to bear the costs of the review insofar as the special master follows the procedures adopted by Judge Wood in the Cohen matter, namely to review the seized materials for potential privilege in parallel with counsel for Giuliani and Toensing. To the extent the Court adopts the proposals advanced by Giuliani and Toensing, including that the special master also conduct a responsiveness review of those same materials—which the Government strongly opposes for the reasons set forth above—Giuliani and Toensing should solely bear any costs associated with a responsiveness review, any review beyond the initial privilege review, or any cost-enhancing measures traceable to Giuliani and Toensing. [my emphasis]

I’m mindful, as I review the schedule laid out above, that Cohen was charged almost immediately after the Special Master review was completed, in August 2018. In addressing the partial overlap between the 2019 searches and the April ones, the government notes that, “the Government expects that some, but not all, of the materials present on the electronic devices seized pursuant to the Warrants could be duplicative of the materials seized and reviewed pursuant to the prior warrants.”

The government already knows what they’re getting with these warrants (and if they don’t get it, they’re likely to be able to charge obstruction because it has been deleted). They’re calling for a Special Master not because it provides any more fairness than their prior filter review (indeed, they speak repeatedly of the “perception of fairness”), especially since investigators are about to obtain the materials from the 2019 search, but because it ensures they can get this material in timely fashion, especially since, as it stands now, they’re going to have to crack the passwords on seven of the devices seized from Rudy.

The remaining seven devices belonging to Giuliani and his business cannot be fully accessed without a passcode, and as such the Government has advised Giuliani’s counsel that the devices can be returned expeditiously if Giuliani were to provide the passcode; otherwise, the Government does not have a timeline for when those devices may be returned because the FBI will be attempting to access those devices without a passcode, which may take time.

Yes, Rudy and Toensing are trying to get an advance look at how bad the case against them is. But they’re also hoping to delay, possibly long enough to allow a Republican to take over again and pardon away their criminal exposure.

Which suggests that all the hypotheticals about Rudy and Toensing being able to challenge these searches if they are indicted are not all that hypothetical. SDNY is just trying to get to the place where they can indict.

DOJ’s Failures to Follow Media Guidelines on the WaPo Seizure

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I wanted to add a few data points regarding the report that DOJ subpoenaed records from three WaPo journalists.

This post is premised on three pieces of well-justified speculation: that John Durham, after having been appointed Special Counsel, obtained these records, that Microsoft challenged a gag, and that Microsoft’s challenge was upheld in some way. I’m doing this post to lay out some questions that others should be asking about what happened.

An enterprise host (probably Microsoft) likely challenged a gag order

The report notes that DOJ did obtain the reporters’ phone records, and tried, but did not succeed, in obtaining their email records.

The Trump Justice Department secretly obtained Washington Post journalists’ phone records and tried to obtain their email records over reporting they did in the early months of the Trump administration on Russia’s role in the 2016 election, according to government letters and officials.

In three separate letters dated May 3 and addressed to Post reporters Ellen Nakashima and Greg Miller, and former Post reporter Adam Entous, the Justice Department wrote they were “hereby notified that pursuant to legal process the United States Department of Justice received toll records associated with the following telephone numbers for the period from April 15, 2017 to July 31, 2017.” The letters listed work, home or cellphone numbers covering that three-and-a-half-month period.

[snip]

The letters to the three reporters also noted that prosecutors got a court order to obtain “non content communication records” for the reporters’ work email accounts, but did not obtain such records. The email records sought would have indicated who emailed whom and when, but would not have included the contents of the emails. [my emphasis]

What likely happened is that DOJ tried to obtain a subpoena on Microsoft or Google (almost certainly the former, because the latter doesn’t care about privacy) as the enterprise host for the newspaper’s email service, and someone challenged or refused a request for a gag, which led DOJ to withdraw the request.

There’s important background to this.

Up until October 2017, when the government served a subpoena on a cloud company that hosts records for another, the cloud company was often gagged indefinitely from telling the companies whose email (or files) it hosted. By going to a cloud company, the government was effectively taking away businesses’ ability to challenge subpoenas themselves, which posed a problem for Microsoft’s ability to convince businesses to move everything to their cloud.

That’s actually how Robert Mueller obtained Michael Cohen’s Trump Organization emails — by first preserving, then obtaining them from Microsoft rather than asking Trump Organization (which was, at the same time, withholding the most damning materials when asked for the same materials by Congress). Given what we know about Trump Organization’s incomplete response to Congress, we can be certain that had Mueller gone to Trump Organization, he might never have learned about the Trump Tower Moscow deal.

In October 2017, in conjunction with a lawsuit settlement, Microsoft forced DOJ to adopt a new policy that gave it the right to inform customers when DOJ came to them for emails unless DOJ had a really good reason to prevent Microsoft from telling their enterprise customer.

Today marks another important step in ensuring that people’s privacy rights are protected when they store their personal information in the cloud. In response to concerns that Microsoft raised in a lawsuit we brought against the U.S. government in April 2016, and after months advocating for the United States Department of Justice to change its practices, the Department of Justice (DOJ) today established a new policy to address these issues. This new policy limits the overused practice of requiring providers to stay silent when the government accesses personal data stored in the cloud. It helps ensure that secrecy orders are used only when necessary and for defined periods of time. This is an important step for both privacy and free expression. It is an unequivocal win for our customers, and we’re pleased the DOJ has taken these steps to protect the constitutional rights of all Americans.

Until now, the government routinely sought and obtained orders requiring email providers to not tell our customers when the government takes their personal email or records. Sometimes these orders don’t include a fixed end date, effectively prohibiting us forever from telling our customers that the government has obtained their data.

[snip]

Until today, vague legal standards have allowed the government to get indefinite secrecy orders routinely, regardless of whether they were even based on the specifics of the investigation at hand. That will no longer be true. The binding policy issued today by the Deputy U.S. Attorney General should diminish the number of orders that have a secrecy order attached, end the practice of indefinite secrecy orders, and make sure that every application for a secrecy order is carefully and specifically tailored to the facts in the case.

Rod Rosenstein, then overseeing the Mueller investigation, approved the new policy on October 19, 2017.

The effect was clear. When various entities at DOJ wanted records from Trump Organization after that, DOJ did not approve the equivalent request approved just months earlier.

If DOJ withdrew a subpoena rather than have it disclosed, it was probably inconsistent with media guidelines

If I’m right that DOJ asked Microsoft for the reporters’ email records, but then withdrew the request rather than have Microsoft disclose the subpoena to WaPo, then the request itself likely violated DOJ’s media guidelines — at least as they were rewritten in 2015 after a series of similar incidents, including DOJ’s request for the phone records of 20 AP journalists in 2013.

DOJ’s media guidelines require the following:

  • Attorney General approval of any subpoena for call or email records
  • That the information be essential to the investigation
  • DOJ has taken reasonable attempts to obtain the information from alternate sources

Most importantly, DOJ’s media guidelines require notice and negotiation with the affected journalist, unless the Attorney General determines that doing so would “pose a clear and substantial threat to the integrity of the investigation.”

after negotiations with the affected member of the news media have been pursued and appropriate notice to the affected member of the news media has been provided, unless the Attorney General determines that, for compelling reasons, such negotiations or notice would pose a clear and substantial threat to the integrity of the investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm.

But a judge can review the justifications for gags before issuing them (for all subpoenas, not just media ones).

Just as an example, the government obtained a gag on Twitter, Facebook, Instagram and Google when obtaining Reality Winner’s cloud-based communications a week after they had arrested her (at a time when she was in no position to delete her own content). After a few weeks, Twitter challenged the gag. A judge gave DOJ 180 days to sustain the gag, but in August 2017, DOJ lifted it.

That was a case where DOJ obtained the communications of an accused leaker, with possible unknown co-conspirators, so the gag at least made some sense.

Here, by contrast, the government would have been asking for records from journalists who were not alleged to have committed any crime. The ultimate subject of the investigation would have no ability to destroy WaPo’s records. The records — and the investigation — were over three years old. Whatever justification DOJ gave was likely obviously bullshit.

Hypothetical scenario: DOJ obtains cell phone records only to have a judge rule a gag inappropriate

Let me lay out how this might have worked to show why this might mean DOJ violated the media guidelines. Here’s one possible scenario for what could have happened:

  • In the wake of the election, John Durham subpoenaed the WaPo cell providers and Microsoft, asking for a gag
  • The cell provider turned over the records with no questions — neither AT&T nor Verizon care about their clients’ privacy
  • Microsoft challenged the gag and in response, a judge ruled against DOJ’s gag, meaning Microsoft would have been able to inform WaPo

That would mean that after DOJ, internally — Billy Barr and John Durham, in this speculative scenario — decided that warning journalists would create the same media stink we’re seeing today and make the records request untenable, a judge ruled that that a media stink over an investigation into a 3-year old leak wasn’t a good enough reason for a gag. If this happened, it would mean some judge ruled that Barr and Durham (if Durham is the one who made the request) invented a grave risk to the integrity of their investigation that a judge subsequently found implausible.

It would mean the request itself was dubious, to say nothing of the gag.

Once again, DOJ failed to meet its own notice requirements

And with respect to the gag, this request broke another one of the rules on obtaining records from reporters: that they get notice no later than 90 days after the subpoena. The Justice Manual says this about journalists whose records are seized:

  • Except as provided in 28 C.F.R. 50.10(e)(1), when the Attorney General has authorized the use of a subpoena, court order, or warrant to obtain from a third party communications records or business records of a member of the news media, the affected member of the news media shall be given reasonable and timely notice of the Attorney General’s determination before the use of the subpoena, court order, or warrant, unless the Attorney General determines that, for compelling reasons, such notice would pose a clear and substantial threat to the integrity of the investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm. 28 C.F.R. 50.10(e)(2). The mere possibility that notice to the affected member of the news media, and potential judicial review, might delay the investigation is not, on its own, a compelling reason to delay notice. Id.
  • When the Attorney General has authorized the use of a subpoena, court order, or warrant to obtain communications records or business records of a member of the news media, and the affected member of the news media has not been given notice, pursuant to 28 C.F.R. 50.10(e)(2), of the Attorney General’s determination before the use of the subpoena, court order, or warrant, the United States Attorney or Assistant Attorney General responsible for the matter shall provide to the affected member of the news media notice of the subpoena, court order, or warrant as soon as it is determined that such notice will no longer pose a clear and substantial threat to the integrity of the investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm. 28 C.F.R. 50.10(e)(3). In any event, such notice shall occur within 45 days of the government’s receipt of any return made pursuant to the subpoena, court order, or warrant, except that the Attorney General may authorize delay of notice for an additional 45 days if he or she determines that for compelling reasons, such notice would pose a clear and substantial threat to the integrity of the investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm. Id. No further delays may be sought beyond the 90‐day period. Id. [emphasis original]

Journalists are supposed to get notice if their records are seized. They’re supposed to get notice no later than 90 days after the records were obtained. AT&T and Verizon would have provided records almost immediately and this happened in 2020, meaning the notice should have come by the end of March. But WaPo didn’t get notice until after Lisa Monaco was confirmed as Deputy Attorney General and, even then, it took several weeks.

DOJ’s silence about an Office of Public Affairs review

While it’s not required by guidelines, in general DOJ has involved the Office of Public Affairs in such matters, so someone who has to deal with the press can tell the Attorney General and the prosecutor that their balance of journalist equities is out of whack. At the time, this would have been Kerri Kupec, who was always instrumental in Billy Barr’s obstruction and politicization.

But it’s not clear whether that happened. I asked Acting Director of OPA Marc Raimondi (the guy who has defended what happened in the press; he was in National Security Division at the time of the request), twice, whether someone from OPA was involved. Both times he ignored my question.

The history of Special Counsels accessing sensitive records and testimony

There’s a history of DOJ obtaining things under Special Counsels they might not have obtained without the Special Counsel:

  • Pat Fitzgerald coerced multiple reporters’ testimony, going so far as to jail Judy Miller, in 2004
  • Robert Mueller obtained Michael Cohen’s records from Microsoft rather than Trump Organization
  • This case probably represents John Durham, having been made Special Counsel, obtaining records that DOJ did not obtain in 2017

There’s an irony here: Durham has long sought ways to incriminate Jim Comey, who is represented by Pat Fitzgerald and others. In 2004, as Acting Attorney General, Comey approved the subpoenas for Miller and others. That said, given the time frame on the records request, it is highly unlikely that he’s the target of this request.

Whoever sought these records, it is virtually certain that the prosecutor only obtained them after making decisions that DOJ chose not to make when these leaks were first investigated in 2017, after Jeff Sessions announced a war on media leaks in the wake of having his hidden meeting with Sergey Kislyak exposed.

That suggests that DOJ decided these records, and the investigation itself, were more important in 2020 than Jeff Sessions had considered them in 2017, when his behavior was probably one of the things disclosed in the leak.

The dubious claim that these records could have been necessary or uniquely valuable

Finally, consider one more detail of DOJ’s decision to obtain these records: their claims, necessary under the media policy, that 3-year old phone and email records were necessary to a leak investigation.

When these leaks were first investigated in 2017, DOJ undoubtedly identified everyone who had access to the Kislyak intercepts and used available means — including reviewing the government call records of the potential sources — to try to find the leakers. If they had a solid lead on someone who might be the leaker, the government would have obtained the person’s private communication records as well, as DOJ did do during the contemporaneous investigation into the leak of the Carter Page FISA warrant that ultimately led to SSCI security official James Wolfe’s prosecution.

Jeff Sessions had literally declared war within days of one of the likely leaks under investigation here, and would approve a long-term records request from Ali Watkins in the Wolfe investigation and a WhatsApp Pen Register implicating Jason Leopold in the Natalie Edwards case. After Bill Barr came in, he approved the use of a Title III wiretap to record calls involving journalists in the Henry Frese case.

For the two and a half years between the time Sessions first declared war on leaks and the time DOJ decided these records were critical to an investigation, DOJ had not previously considered them necessary, even at a time when Sessions was approving pretty aggressive tactics against leaks.

Worse still, DOJ would have had to claim they might be useful. These records, unlike the coerced testimony of Judy Miller, would not have revealed an actual source for the stories. These records, unlike the Michael Cohen records obtained via Microsoft would not be direct evidence of a crime.

All they would be would be leads — a list of all the phone numbers and email addresses these journalists communicated with via WaPo email or telephony calls or texts — for the period in question. It might return records of people (such as Andy McCabe) who could be sources but also had legal authority to communicate with journalists. It would probably return a bunch of records of inquiries the journalists made that were never returned. It would undoubtedly return records of people who were sources for other stories.

But it would return nothing for other means of communication, such as Signal texts or calls.

In other words, the most likely outcome from this request is that it would have a grave impact on the reporting equities of the journalists involved, with no certainty it would help in the investigation (and an equally high likelihood of returning a false positive, someone who was contacted but didn’t return the call).

And if it was Durham who made the request, he would have done so after having chased a series of claims — many of them outright conspiracy theories — around the globe, only to have all of those theories to come up empty. Given that after years of investigation Durham has literally found nothing new, there’s no reason to believe he had any new basis to think he could solve this leak investigation after DOJ had tried but failed in 2017. Likely, what made the difference is that his previous efforts to substantiate something had failed, and Barr needed to empower him to keep looking to placate Trump, and so Durham got to seize WaPo’s records.

Billy Barr has been hiding other legal process against journalists

Given the disclosure that Barr approved a request targeting the WaPo about five months ago and that under Barr DOJ used a Title III wiretap in a leak investigation (albeit targeting the known leaker), it’s worth noting one other piece of oversight that has lapsed under Barr.

In the wake of Jeff Sessions declaring war on leaks in 2017 (and, probably, the leak in question here), Ron Wyden asked Jeff Sessions whether the war on leaks reflected a change in the new media guidelines adopted in 2015.

Wyden asked Sessions to answer the following questions by November 10:

  1. For each of the past five years, how many times has DOJ used subpoenas, search warrants, national security letters, or any other form of legal process authorized by a court to target members of the news media in the United States and American journalists abroad to seek their (a) communications records, (b) geo-location information, or (c) the content of their communications? Please provide statistics for each form of legal process.
  2. Has DOJ revised the 2015 regulations, or made any other changes to internal procedures governing investigations of journalists since January 20, 2017? If yes, please provide me with a copy.

In response, DOJ started doing a summary of the use of legal process against journalists for each calendar year. For example, the 2016 report described the legal process used against Malheur propagandist Pete Santilli. The 2017 report shows that, in the year of my substantive interview with FBI, DOJ obtained approval for a voluntary interview with a journalist before the interview because they, “suspected the journalist may have committed an offense in the course of newsgathering activities” (while I have no idea if this is my interview, during the interview, the lead FBI agent also claimed to know the subject of a surveillance-related story I was working on that was unrelated to the subject of the interview, though neither he nor I disclosed what the story was about). The 2017 report also describes obtaining Ali Watkins’ phone records and DOJ’s belated notice to her. The 2018 report describes getting retroactive approval for the arrest of someone for harassing Ryan Zinke but who claimed to be media (I assume that precedent will be important for the many January 6 defendants who claimed to be media).

While I am virtually certain the reports — at least the 2018 one — are not comprehensive, the reports nevertheless are useful guidelines for the kinds of decision DOJ deems reasonable in a given year.

But as far as anyone knows, DOJ stopped issuing them under Barr. Indeed, when I asked Raimondi about them, he didn’t know they existed (he is checking if they were issued for 2019 and 2020).

So we don’t know what other investigative tactics Barr approved as Attorney General, even though we should.

Four Ways Billy Barr Obstructed the Investigation into Rudy Giuliani

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Eventually, I want to do a post quantifying all the damage to national security Billy Barr did by thwarting an influence-peddling investigation into Rudy Giuliani in 2019. But first, I want to quantify four ways that Barr is known to have obstructed the investigation into Rudy, effectively stalling the investigation for over 500 days.

The effort is helped by Rudy lawyer Robert Costello’s public claim that DOJ obtained a search warrant on Rudy’s iCloud account sometime in late 2019. That indicates that the investigation into Rudy’s ties to Lev Parnas and Igor Fruman (whether Rudy was the primary target or their business, Fraud Guarantee) already showed probable cause that a crime had been committed before Barr took repeated steps to undermine the investigation.

Fail to recuse from an investigation implicating Barr personally

The MEMCON of Donald Trump’s call with Volodymyr Zelenskyy invoked Barr personally, twice, including in the very same response where the President said that Marie Yovanovich would “go through some things.”

Well, she’s going to go through some things. I will have Mr. Giuliani give you a call and I am also going to have.Attorney General Barr call and we will get to the bottom of it.

According to a September 2019 NYT article, National Security Division head John Demers (who remains at DOJ and who oversees the FARA unit that would have a role in this prosecution), Deputy Attorney General Jeffrey Rosen, and Brian Benczkowski learned about the concerns about the call, including that it named Barr, even before the formal whistleblower complaint came in. Barr learned about it via some unexplained means.

It’s not clear what happened in that first round of review, but ultimately prosecutors reviewed it once the formal whistleblower complaint was referred by Joseph Maguire later in August and “declined to open an investigation.”

Mr. Eisenberg and Ms. Elwood both spoke on Aug. 14 to John Demers, the head of the Justice Department’s national security division, according to three people familiar with the discussion. Ms. Elwood did not pass on the name of the C.I.A. officer, which she did not know because his concerns were submitted anonymously.

The next day, Mr. Demers went to the White House to read the transcript of the call and assess whether to alert other senior law enforcement officials. The deputy attorney general, Jeffrey A. Rosen, and Brian A. Benczkowski, the head of the department’s criminal division, were soon looped in, according to two administration officials.

Department officials began to discuss the accusations and whether and how to follow up, and Attorney General William P. Barr learned of the allegations around that time, according to a person familiar with the matter. Although Mr. Barr was briefed, he did not oversee the discussions about how to proceed, the person said.

[snip]

At the end of August, the office of the director of national intelligence referred the allegations to the Justice Department as a possible criminal matter. Law enforcement officials ultimately declined to open an investigation.

While it’s true that Barr outsourced some actions — such as determining what to do with the first report and the White House request that DOJ publicly exonerate him — there’s no indication Barr recused from the investigation and indeed he remained in the loop with the White House about it. His failure to recuse is particularly important because, as the table above notes, he got briefed on the investigation into Parnas and Fruman not long after he was confirmed in February 2019. For most of August and September 2019, Barr and Jeffrey Rosen would have been two of the only people at DOJ who would recognize the danger the whistleblower complaint posed to Rudy and, through him, to Trump himself.

Ensure Public Integrity reviews only the Trump transcript, not the entire whistleblower complaint

Mind you, Barr didn’t conduct the investigation of the whistleblower complaint. Public Integrity prosecutors in the Criminal Division did, overseen by Brian Benczkowski.

According to an October 2019 report, Benczkowski still did not know of the investigation into Parnas and Fruman when he took a meeting with Rudy in the fall to discuss a bribery case implicating the Venezuelan who was paying for some of the Ukraine dirt-digging.

Several weeks ago, Brian A. Benczkowski, the head of the Justice Department’s Criminal Division, and lawyers from the division’s Fraud Section met with Mr. Giuliani to discuss a bribery case in which he and other attorneys were representing the defendants.

That meeting took place before the United States attorney’s office in Manhattan publicly charged the two Giuliani associates, Lev Parnas and Igor Fruman, with breaking campaign finance laws and trying to unlawfully influence politicians, including former Representative Pete Sessions, Republican of Texas. Mr. Parnas and Mr. Fruman were part of Mr. Giuliani’s effort to push Ukraine for an inquiry into Democrats.

“When Mr. Benczkowski and fraud section lawyers met with Mr. Giuliani, they were not aware of any investigation of Mr. Giuliani’s associates in the Southern District of New York and would not have met with him had they known,” said Peter Carr, a department spokesman.

[snip]

Prosecutors in Manhattan informed Attorney General William P. Barr about the investigation of Mr. Parnas and Mr. Fruman soon after he was confirmed in February, according to a Justice Department official. They were required to do so under the department’s rule that requires prosecutors to notify the attorney general of any cases that could generate national news media or congressional attention.

When Mr. Giuliani and other lawyers requested the meeting with the Justice Department to discuss a foreign bribery case, Mr. Benczkowski and the lawyers in the Fraud Section had not been informed of the Manhattan case and agreed to meet.

That exonerates him for being stupid enough to take the meeting, but it reveals something about the review of the complaint: it could not have adhered to the most basic rules of “connect-the-dots” investigations put in place after 9/11 to protect national security.

That’s because the first thing you’re supposed to do when you get a tip that implicates national security is to search DOJ’s holdings to see if the tip connects with any known suspects or investigations. Had this tip been treated like DOJ had been drilling for almost 17 years by the time the tip was received, then investigators would have searched on the OCCRP profile of Parnas and Fruman cited repeatedly in the full complaint.

Had that happened, then the implications of it would have been clear, it would have been referred to SDNY, Benczkowski would have learned about it, and DOJ wouldn’t have been making public exonerations of Trump.

Get OLC to overclassify the Barr connection and delay informing Congress

One likely way DOJ managed to avoid connecting Trump’s quid pro quo with the existing investigation of Parnas and Fruman is by treating the call with Zelenskyy, falsely, as the entirety of the whistleblower complaint. There’s no reference to Parnas and Fruman in the call, and so searching on it would not ID the tie to the SDNY investigation.

That’s one of several things that Steve Engel’s OLC did to attempt to avoid — and succeed in delaying — informing Congress about the complaint.

Engel’s OLC memo (a reprise of the memo that Amy Berman Jackson ruled was just a PR stunt to justify lying to Congress) claimed that the whistleblower complaint pertained exclusively to the conduct of the President and as such did not pertain to the Intelligence Community and so didn’t need to be shared with Congress. The only way to reach this decision would be to ignore the parts of the whistleblower complaint that deal with abuse of classification and the withholding of funds.

The other thing OLC did was to — at first– treat mentions of Barr and Rudy, as well as Ukraine and Zelenskyy, as Top Secret, even though the White House had only deemed those references to be Secret.

This effort, both to avoid informing the Intelligence Committees and, once he did, to hide key details from them, ultimately failed. But it did delay the discovery of the call from August to September 2019.

Warn Rupert Murdoch

Bill Barr had a meeting at SDNY the day before Parnas and Fruman were arrested on October 9. He went from there to a meeting with Rupert Murdoch, at Murdoch’s home.

It’s unclear what happened at that meeting, but Sean Hannity didn’t get on his flight to Vienna to meet with Dmitro Firtash, thereby avoiding even closer legal involvement in yet another Trump scandal.

There’s no evidence I know of that Barr similarly warned Rudy — Rudy canceled his trip, too, but it probably only took the arrest of Parnas and Fruman to persuade him of the wisdom of doing that. So I don’t consider this an act of obstruction protecting Rudy — just an act of obstruction protecting Sean Hannity.

Parnas has alleged that he was only arrested as a way to keep him silent about all this. While there’s a lot of reason to believe that’s possible, I’m not aware of proof that it did. It is, notably, one thing he was dangling his cooperation on with SDNY before he got remarkably quiet as the investigation into Rudy kicked into active mode.

Attempt to replace Geoffrey Berman with a Barr flunky

As noted, if we can believe Costello, then at some point SDNY did manage to conduct a search on Rudy’s iCloud. One possibility is that DOJ justified a search on Rudy after learning that Parnas had deleted his own iCloud account.

We may get more details of how that occurred with the Special Master argument.

For a time, the impeachment investigation presumably stalled any investigation into Rudy.

But last summer, at a time between the time when Rudy would have been implicated in the President’s Ukraine-related impeachment but before the time Rudy was attempting to undermine the election in explicit service of the President, Barr fired Geoffrey Berman. As Berman described, Barr attempted to bypass succession rules to temporarily put his own flunky in charge of the office, much as he had put Timothy Shea in at DC USA to kill investigations into Roger Stone, Mike Flynn, and (probably) Erik Prince.

By refusing to go along with Barr’s false claims that he had quit, however, Berman succeeded in ensuring that Audry Strauss, his then-Deputy, would replace him, where she remains today.

In all of Berman’s communications about why he dug in, he emphasized that there were investigations he wanted to see to completion, presumably including but not limited to this Rudy investigation.

Again, this effort failed. But, given what happened in DC, it is almost certain that this was an attempt to protect Rudy (and Steve Bannon).

DOJ used the election to refuse to approve a warrant on Rudy. And (while I’m having difficulty finding it) they imposed a policy requiring higher approvals for obtaining warrants on attorney content.

Effectively, that provided a way to stall the search into Rudy until April 20, 2021, when Lisa Monaco was approved.

Bill Barr tried, repeatedly, to entirely kill the investigation into Rudy, like he killed prosecutions of Stone and Flynn. But ultimately, one after another DOJ professional thwarted his attempts, and his abundant efforts to protect Rudy only managed to delay the investigation from October 2019 to April 2021.

Update: William Ockham notes that the change in policy was imposed on December 30, 2020, after Barr had resigned and at a time when Acting Attorney General Jeffrey Rosen knew that Joe Biden would take over DOJ. The new policy required consultation with a designated attorney in Office of Deputy Attorney General.

Within OEO, the Policy and Statutory Enforcement Unit (PSEU) is the section that provides this consultation. See Office ofthe Deputy Attorney General Guidance on AttorneyClient Privilege andAttorney Work Product Filter Protocols/or Search Warrants (July 2020). In many cases – particularly those involving significant investigations and high-profile matters – proposed searches are separately reported in urgent reports to the Attorney General and the Deputy Attorney General. To ensure mo!”e uniform notification procedures going forward, PSEU should notify the Office of the Deputy Attorney General (ODAG) of proposed searches involving subject attorneys. ODAG will assign an attorney to handle this responsibility who has the requisite knowledge and experience to provide meaningful input to PSEU. That attorney will provide updates to the Deputy Attorney General as necessary. Absent exigent circumstances, the OEO/PSEU consultation in Section 9-13.420 shall not be concluded until after ODAG has been notified and provided with an opportunity to provide input.

While probably not the sole intent, this may be why the search on Rudy was not approved until Lisa Monaco was confirmed on April 20.

Will Amy Berman Jackson Finally Break the Spell of OLC Feeding Bullshit FOIA Claims to DC District Judges?

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Yesterday, Judge Amy Berman Jackson ruled that the government must turn over a memo written — ostensibly by Office of Legal Counsel head Steve Engel — to justify Billy Barr’s decision not to file charges against Donald Trump for obstructing the Mueller Investigation. The Center for Responsibility and Ethics in Washington FOIAed the memo and sued for its release. The memo itself is worth reading. But I want to consider whether, by making a nested set of false claims to hide what OLC was really up to, this opinion may pierce past efforts to use OLC to rubber stamp problematic Executive Branch decisions.

A key part of ABJ’s decision pivoted on the claims made by Paul Colburn, who’s the lawyer from OLC whose job it is (in part) to tell courts that DOJ can’t release pre-decisional OLC memos because that would breach both deliberative and attorney-client process, Vanessa Brinkmann, whose job it is (in part) to tell courts that DOJ has appropriately applied one or another of the exemptions permitted under FOIA, and Senior Trial Attorney Julie Straus Harris, who was stuck arguing against release of this document relying on those declarations. ABJ ruled that all three had made misrepresentations (and in the case of Straus Harris, outright invention) to falsely claim the memo was predecisional and therefore appropriate to withhold under FOIA’s b5 exemption.

Colburn submitted two declarations. ABJ cited this one to show that Colburn had claimed the OLC memo was designed to help Billy Barr make a decision.

Document no. 15 is a predecisional deliberative memorandum to the Attorney General, through the Deputy Attorney General, authored by OLC AAG Engel and Principal Associate Deputy Attorney General (“PADAG”) Edward O’Callaghan . . . . As indicated in the portions of the memorandum that were released, it was submitted to the Attorney General to assist him in determining whether the facts set forth in Volume II of Special Counsel Mueller’s report “would support initiating or declining the prosecution of the President for obstruction of justice under the Principles of Federal Prosecution.” The released portions also indicate that the memorandum contains the authors’ recommendation in favor of a conclusion that “the evidence developed by the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense.” The withheld portions of the memorandum contain legal advice and prosecutorial deliberations in support of that recommendation. Following receipt of the memorandum, the Attorney General announced his decision publicly in a letter to the House and Senate Judiciary Committees . . . .

* * *

[T]he withheld portions of document no. 15 – the only final document at issue – are . . . covered by the deliberative process privilege. The document is a predecisional memorandum, submitted by senior officials of the Department to the Attorney General, and containing advice and analysis supporting a recommendation regarding the decision he was considering . . . . [T]he withheld material is protected by the privilege because it consists of candid advice and analysis by the authors, OLC AAG Engel and the senior deputy to the Deputy Attorney General. That advice and analysis is predecisional because it was provided prior to the Attorney General’s decision in the matter, and it is deliberative because it consists of advice and analysis to assist the Attorney General in making that decision . . . . The limited factual material contained in the withheld portion of the document is closely intertwined with that advice and analysis. [emphasis original]

Brinkmann submitted this declaration. ABJ cited it to show how Brinkmann had regurgitated the claims Colburn made.

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

Key to this is timing: Colburn twice claimed the memo was provided to Barr before he made any decision, and based on that, Brinkmann not only reiterated that, but claimed that Mueller’s Report “did not resolve” whether Trump could be charged, which left the decision to Barr. Both were pretending a decision had not been made before this memo was written (much less completed).

In an almost entirely redacted section, ABJ explained how the first part of the memo is actually a strategy discussion (which, a redacted section seems to suggest, might have been withheld under some other FOIA exemption that DOJ chose not to claim because that would have required admitting this wasn’t legal advice), written in tandem by everyone involved, about how to best spin the already-made decision not to charge Trump.

The existence of that section contradicts the claims made by Colburn and Brinkmann, ABJ ruled.

All of this contradicts the declarant’s ipse dixit that since the Special Counsel did not resolve the question of whether the evidence would support a prosecution, “[a]s such, any determination as to whether the President committed an obstruction-of-justice offense was left to the purview of the Attorney General.” Brinkmann Decl. ¶ 11.

Then, after ABJ decided she needed to review the document over DOJ’s vigorous protests, she discovered something else (again, she redacted the discussion for now) that made her believe claims made in a filing written by Straus Harris not just to be false, but pure invention with respect to the role of Principal Associate Deputy Attorney General Edward O’Callaghan, who was privy to what Mueller was doing and the import Mueller accorded to the other OLC memo dictating that Presidents can’t be prosecuted.

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

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

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

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

I noted the problem with O’Callaghan’s role here, and argued there are probably similar problems with an OLC opinion protect Trump in the wake of Michael Cohen’s guilty plea.

In her analysis judging that an attorney-client privilege also doesn’t apply, ABJ returns to this point and expands on it, showing that in addition to Steve Engel (the head of OLC), O’Callaghan, who was not part of OLC and whom the memo never claims was involved in giving advice to Billy Barr, was also involved in generating the memo; the record also shows that the people supposedly receiving the advice, such as Rod Rosenstein, actually were involved in providing the advice, too.

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

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

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

ABJ notes (and includes a nifty table in an appendix showing her work) that in fact the letter to Congress that was supposed to be based off the decision the OLC memo was purportedly providing advice about was finished first, meaning it couldn’t have informed the decision conveyed in the letter to Congress.

A close review of the communications reveals that the March 24 letter to Congress describing the Special Counsel’s report, which assesses the strength of an obstruction-of-justice case, and the “predecisional” March 24 memorandum advising the Attorney General that [redacted] the evidence does not support a prosecution, are being written by the very same people at the very same time. The emails show not only that the authors and the recipients of the memorandum are working hand in hand to craft the advice that is supposedly being delivered by OLC, but that the letter to Congress is the priority, and it is getting completed first. At 2:16 pm on Sunday, March 24, the Attorney General’s Chief of Staff advises the others: “We need to go final at 2:25 pm,” and Rod Rosenstein, the Deputy Attorney General, summons everyone to a meeting at 2:17 pm. Attachment 1 at 4. At 2:18 pm, Steven Engel in the OLC replies to this email chain related to the draft letter, and he attaches the latest version of the memo to the Attorney General, saying: “here’s the latest memo, btw, although we presumably don’t need to finalize that as soon.”

As a result, ABJ rules that this was neither pre-decisional nor candid advice from someone acting in the role of attorney given to another, and so the document must be released.

Ultimately, this is a finding that the claims made by DOJ — by Colburn, Brinkmann, and Straus Harris — have no credibility on this topic. She cites Reggie Walton’s concerns (in the BuzzFeed FOIA for the Mueller Report itself) about Billy Barr’s lies about the Mueller Report and notes that DOJ has been “disingenuous” to hide Barr’s own “disingenuous[ness].”

And of even greater importance to this decision, the affidavits are so inconsistent with evidence in the record, they are not worthy of credence. The review of the unredacted document in camera reveals that the suspicions voiced by the judge in EPIC and the plaintiff here were well-founded, and that not only was the Attorney General being disingenuous then, but DOJ has been disingenuous to this Court with respect to the existence of a decision-making process that should be shielded by the deliberative process privilege. The agency’s redactions and incomplete explanations obfuscate the true purpose of the memorandum, and the excised portions belie the notion that it fell to the Attorney General to make a prosecution decision or that any such decision was on the table at any time. [redacted]

ABJ is careful to note (in part to disincent Merrick Garland’s team from appealing this, which she has given DOJ two weeks to consider doing) that this decision is limited solely to application of the claims made before her. The often-abused b5 exemption is not dead.

The Court emphasizes that its decision turns upon the application of well-settled legal principles to a unique set of circumstances that include the misleading and incomplete explanations offered by the agency, the contemporaneous materials in the record, and the variance between the Special Counsel’s report and the Attorney General’s summary. This opinion does not purport to question or weaken the protections provided by Exemption 5 or the deliberative process and attorney-client privileges; both remain available to be asserted by government agencies – based on forthright and accurate factual showings – in the future.

But this leaves the question about what to do about all this lying — Colburn and Brinkmann and Straus Harris’ misrepresentations to protect the lies of Billy Barr and his team. Billy Barr is gone, along with Rosenstein and Engel and O’Callaghan and Brian Rabbitt (Barr’s Chief of Staff), who “colluded” (heh) to make it appear that this process wasn’t all gamed for PR value from the start.

There’s little (immediate) recourse for their lies.

But as far as I know, Colburn and Brinkmann and Straus Harris remain at DOJ, now having been caught offering misrepresentations to protect former superiors’ lies after their past equivalent representations have — for decades — been accepted unquestioningly by DC District Judges. I’ve raised concerns in the past, for example, about claims that Colburn made in 2011 (to hide drone killing opinions) and in 2016 (to hide a long-hidden John Yoo opinion on which surveillance has been based).

The reason ABJ and Reggie Walton caught DOJ in lies about the Mueller Report is not that DOJ hasn’t long been making obviously questionable claims to hide rubber stamp opinions from OLC behind the b5 exemption and obviously questionable claims to withhold documents in FOIA lawsuits. Rather, they caught DOJ in lies in this case because Billy Barr was a less accomplished (or at least more hubristic) liar than Dick Cheney (and because DOJ cannot, in this case, also make expansive claims about secrecy in the service of National Security). It is also the case that when John Yoo and David Barron rubber stamped Executive Branch excesses, they were more disciplined about creating the illusion of information being tossed over a wall to a lawyer and a decision being tossed back over the wall to the decision-maker. That was merely an illusion at least in Yoo’s case — he was both in the room where decisions were made and massaging the analysis after the fact to authorize decisions that were already made.

It would be nice to use this decision to go back and review all the dubious claims Colburn and Brinkmann have made over the years. Rudy Giuliani’s potential prosecution may offer good reason to do so in the case of Steve Engel’s equally dubious opinion withholding the Ukraine whistleblower complaint from Congress.

But at the very least, what this opinion does is show that career DOJ employees have, at least in the Bill Barr era, made less than credible claims to cover up DOJ lies, and in this case, lies about how OLC functions as a rubber stamp for Executive Branch abuse.

We may have no (immediate) recourse about the people whose abuse necessitated such misrepresentations for their protection — Barr and Rosenstein and O’Callaghan and Engel and Rabbitt — though their future legal opponents may want to keep this instance in mind.

But it is becoming a habit that when DC judges check DOJ claims in FOIA suits, those claims don’t hold up. At the very least, more scrutiny about the claims made in these nested set of declarations may finally pierce the bullshit claims made to protect OLC’s role in rubber stamping Executive Branch abuse.

Proud Boys “Cell Leader” William Chrestman Says He’s Not Organized Crime, Was Just Acting on Orders

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I’m working towards posts on how DOJ is treating the different members of the Proud Boys charged with crimes relating to January 6 and how DOJ’s past history with the group makes their failure to warn about January 6 all the more damning.

But first, I want to look at what William Chrestman’s lawyers said in a memo arguing he should not be detained pre-trial.

As a reminder, Chrestman was charged with conspiring with four other people, all wearing orange tape, both to obstruct the counting of the electoral vote, and to impede law enforcement officers during a civil disorder. Of particular note, Chrestman and those with him physically prevented cops from shutting access to tunnels through which members of Congress had been evacuated.

The government’s detention memo calls Chrestman an “apparent leader of this particular cell” and describes that he recruited two people from Arizona (Felicia Konold, whom charging documents say the FBI interviewed, but from which interview they didn’t quote, and her brother Cory) to take part in the riot.

Defendant Chrestman readily recruited two individuals from Arizona to join the group of Kansas City Proud Boys, who then participated in the crime spree on U.S. Capitol grounds.

As such, the action of a group led by Chrestman directly ensured the ongoing threat to members of Congress, to say nothing of the difficulties they caused police trying to limit the incursion of the rioters.

In the memo, Federal Public Defenders Kirk Redmond and Chekasha Ramsey offered a more extended version of an argument other defendants have made, arguing that Chrestman had good reason to believe not just his actions — but the Proud Boys’ generally — must have been sanctioned by the President. [footnotes below replaced with links]

To prefigure how those offenses relate to the likelihood of Mr. Chrestman succeeding on pretrial release, we must start long before January 6.

It is an astounding thing to imagine storming the United States Capitol with sticks and flags and bear spray, arrayed against armed and highly trained law enforcement. Only someone who thought they had an official endorsement would even attempt such a thing. And a Proud Boy who had been paying attention would very much believe he did. They watched as their “pro-America, pro-capitalism and pro-Trump” rhetorical strategy “allowed the Proud Boys to gain entry into the Republican mainstream.”11 They watched as law enforcement attacked Black Lives Matter and anti-fascism protestors, but escorted Proud Boys and their allies to safety.12 They watched as their leader, Enrique Tarrio, was named Florida state director of Latinos for Trump.13 They watched the Trump campaign, “well aware of the organized participation of Proud Boys rallies merging into Trump events. They don’t care.”14 They watched when then-President Trump, given an opportunity to disavow the Proud Boys, instead told them to “stand back and stand by.”15 They understood that phrase as “a call to arms and preparedness. It suggests that these groups, who are eager to do violence in any case, have the implicit approval of the state.”16 Having seen enough, the Proud Boys (and many others who heard the same message)17 acted on January 6.

Their calculations were wrong. The five weeks since January 6 have broken the fever dream. The Proud Boys are “radioactive now.”18 Any “air of respectability is gone.”19 The Proud Boys are in “disarray, as state chapters disavow the group’s chairman and leaders bicker in public and in private about what direction to take the Proud Boys in.”20 Their leader was arrested, then “outed as a longtime FBI informant, a role he has now admitted to.”21 And not insubstantially, a number of their members have been arrested for their roles in the January 6 attack. [my emphasis]

The filing goes on to quote extensively from impeachment evidence and Mitch McConnell’s post-acquittal statement, reiterating Trump’s central role in all this.

Even before it gets there, though, the memo makes an argument I expect we’ll see more of, one which very much resembles the argument Bill Barr’s DOJ made to diminish prior threats from the Proud Boys.

Third, the government’s evidence is a far cry from what courts have found constitutes sufficient evidence of a serious risk of obstruction justifying detention. Threatening to kill a witness,4 injure a witness,5 or manufacture false evidence6 is the kind of stuff that gets one detained under 18 U.S.C. § 3142(f)(2)(B). More similar to our facts is United States v. Demmler, 523 F.Supp.2d 677 (S.D. Ohio 2007). There, the “Government allege[d] that Demmler talked about enlisting other defendants in the underlying Poulsen case in his and Poulsen’s scheme[.]”7 But whether the defendant “would have followed-up on these musings had he not been arrested, and whether he would do so now, are entirely speculative. It is just as likely, on this record, that Demmler’s arrest on federal charges has chastened, rather than emboldened, him.”8 So too here.

4 United States v. Fontanes-Olivo, 937 F.Supp.2d 198, 201 (D. P.R. 2012) (Authorizing detention based on potential obstruction where defendant told witness that “one of ‘his people,’ could ‘get rid of you’ based on a rumor that the UM was cooperating with authorities.”).

5 United States v. Ploof, 851 F.2d 7, 11 (1st Cir. 1988) (When “defendant, if released, will attempt to injure or intimidate other prospective witnesses (and if the evidence supports said conclusion) then, too, detention is authorized”).

6 United States v. Robertson, 608 F.Supp.2d 89, 92 (D. D.C. 2009) (“Given the extraordinary lengths that these defendants went to in their efforts to tamper with witnesses and manufacture utterly false, misleading evidence at trial—and in light of their proven success in achieving a hung jury in one trial already—this Court ultimately has no choice but to detain these defendants prior to trial.”).

7 Demmler, 523 F.Supp.2d at 683.

8 Id.; See also United States v. Simon, 760 F.Supp. 495 (D. V.I. 1990) (Detention inappropriate even when defendant attempted to speak with a juror in his brother’s murder trial; although “conduct is inexcusable, it is a far cry from the venality, corruption and violence of the sort common in organized-crime cases, designed to destroy the integrity of the criminal justice system.”)

A year ago, Bill Barr’s DOJ said threats from the Proud Boys might “technically” be obstruction, but such a sentencing enhancement, “typically applies in cases involving violent offenses, such as armed robbery.” Almost exactly a year later, Chrestman’s attorneys argue that threats from the Proud Boys and the threat of ongoing Proud Boys action, “is a far cry from the venality, corruption and violence of the sort common in organized-crime cases.”

This passage is far less persuasive than those invoking Trump. After all, Chrestman threatened police he would, “take your fucking ass out,” if they shot protestors, and further incited others to fight back.

Defendant Chrestman stood directly in front of Capitol Police officers who were attempting to guard the Capitol. Defendant Chrestman yelled at the Capitol Police officers, “You shoot and I’ll take your fucking ass out!” At a different point, Capitol Police officers attempted to arrest one person from the crowd, and Defendant Chrestman encouraged other members of the crowd to stop the Capitol Police from arresting him. Among other things, Defendant Chrestman said to other members of the crowd, “Don’t let them take him!”

Particularly backed — as Chrestman was — by mobs of thousands, that threat was every bit as serious as the one Chrestman’s lawyers cite in Fontanes-Olivo. And the Proud Boys have long been considered an organized hate group, so the allusion to organized crime is actually on point.

More importantly, Chrestman’s completed act — the success that he and others had at delaying the count of the electoral count vote — did grave damage to the integrity of our democracy, a point prosecutors made in their detention memo.

The nature and circumstances of the charged offenses weigh heavily in favor of detention. Defendant Chrestman, a member of a right-wing militia, knowingly and willfully participated in a riot that was designed to prevent the United States Congress from certifying the results of the 2020 Presidential election. Not only did Defendant Chrestman participate in the riot, he assumed a leadership role by shouting “Whose house is this?” and encouraging the crowd to “Take it!”

Words alone may never communicate the true nature of the crimes that were carried out on January 6. It is an event that cannot be measured in the number dead, injured, or wounded, but rather in the destabilizing effect that it has had on this country. This destabilizing effect is precisely what Defendant Chrestman envisioned when he decided to travel to the Capitol, helped lead others into the U.S. Capitol, and participated in the Proud Boys’ participation in the riot at the Capitol building.

The problem is that not just Donald Trump but even his Department of Justice (to say nothing of the line law enforcement officers cited by Chrestman’s lawyers) have long minimized the risk fo such a threat.

That said, the fact that Donald Trump got precisely the destabilizing blow to democracy and the terror he wanted is no reason to let Chrestman go free. Instead, Chrestman makes a great argument that Trump should be treated as a co-conspirator.

Bill Barr Claimed a Threat Meriting a Four Subpoena Investigation Didn’t Merit a Sentencing Enhancement

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In the aftermath of the Proud Boys-led insurrection, I’ve been reporting over and over on how Bill Barr’s DOJ treated threats by the Proud Boys against Amy Berman Jackson — which the probation office treated as the same kind of threat as the obstruction charge being used against many of the January 6 defendants — as a technicality unworthy of a sentencing enhancement.

Katelyn Polantz advanced that story last night, reporting that DOJ subpoenaed the four Proud Boys implicated by Roger Stone in his threat against ABJ for grand jury testimony.

Stone — testifying at a court hearing in 2019 to explain the post — said at the time that a person working with him on his social media accounts had chosen it.

Then, at another hearing the same year, Stone named names. Tarrio, the leader of the Proud Boys, had been helping him ​with his social media, Stone said under oath, as had the Proud Boys’ Florida chapter founder Tyler Ziolkowski, who went by Tyler Whyte at the time; Jacob Engels, a Proud Boys associate who is close to Stone and identifies himself as a journalist in Florida; and another Florida man named Rey Perez, whose name is spelled Raymond Peres in the court transcript​.

A few days later, federal authorities tracked down the men and gave them subpoenas to testify to a grand jury, according to Ziolkowski, who was one of the witnesses.

Ziolkowski and the others flew to DC in the weeks afterwards to testify.

“They asked me about if I had anything to do about posting that. They were asking me if Stone has ever paid me, what he’s ever paid me for,” Ziolkowski told CNN this week. When he first received the subpoena, the authorities wouldn’t tell Ziolkowski what was being investigated, but a prosecutor later told him “they were investigating the picture and if he had paid anybody,” Ziolkowski said. He says he told the grand jury Stone never paid him, and that he hadn’t posted the photo.

Tarrio and Engels did not respond to inquiries from CNN, and Stone declined to respond to CNN’s questions. ​The FBI’s Washington, DC, office did not respond to requests for comment from CNN.

A person familiar with the case said it had closed without resulting in any charges.

For what it’s worth, given the interest Mueller showed in Stone’s social media work, given the close ties between Stone’s social media work and that of the Proud Boys, and given that parts of the investigation against Stone continued well after his trial, it’s possible prosecutors used Stone’s comments as a way to ask other questions: about whether Stone had paid four of his closest buddies in the Proud Boys (remember they were also looking for a notebook Stone used for his 2016 book that recorded all of his communications with Trump).

That said, DC’s US Attorney’s office paid for four witnesses to come to DC to testify about whether they had had a role in Stone’s threats against the judge presiding over his case.

That raises the stakes on the things Barr said publicly about this threat. As noted, in a sentencing memo written as Barr’s urging, DOJ claimed that the threat against ABJ “overlap[ped] … with the offense conduct in this case.”

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.

And DOJ dismissed the import of a threat against a judge by suggesting that if it didn’t prejudice prosecutors at trial, it doesn’t much matter.

More problematic still was Barr’s testimony before House Judiciary Committee last July, just over two months before the President said the Proud Boys should “stand back and stand by.”

When Congressman Ted Deutch asked Barr if he could think of any other case where threatening to kill a witness and then threatening a judge were treated as mere technicalities, Barr kept repeating, at least five times, that “the Judge agreed with me.”

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.

That claim — that ABJ agreed with the analysis of Barr and his flunkies — was a lie, a lie made under oath. ABJ, a liberal judge without Barr’s lifetime authoritarian claims about crime, believed the sentencing guidelines are too harsh. She did not believe these enhancements were mere technicalities.

Indeed, in ruling that the enhancement for the threat against her applied — a threat against official proceedings, the same charge being used against many of the insurrectionists — she talked about how posting a threat on social media, “increased the risk that someone else, with even poorer judgment than he has, would act on his behalf.”

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.

This warning about what happens when people post inciteful language on Instagram might well have served as a warning in advance of January 6. But Barr, in testimony under oath to House Judiciary Committee, pretended that his DOJ had not ignored such a threat.

While it didn’t make the sentencing guidelines, the Proud Boy-linked threats to Credico were sufficiently serious that under FBI’s Duty to Warn, they alerted Credico to the threats. Now we learned that line prosecutors treated the threat against ABJ as sufficiently serious that they obtained grand jury subpoenas to learn more about it.

And in testimony under oath, Bill Barr pretended that ABJ agreed — and it was reasonable for his office to treat — such threats as mere technicalities.

While Lindsey Graham Was Stalling Merrick Garland’s Confirmation He Was Hoping for Imminent Hunter Biden and John Durham News

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One of the very last things Lindsey Graham did as Senate Judiciary Chair was to send a letter to Acting Attorney General Monty Wilkinson urging him not to do anything about two investigations that — according to his addled little brain — “Democrats would rather go away.” In addition to the Delaware investigation of Hunter Biden, Lindsey included the John Durham investigation in that.

I was even the primary sponsor of bipartisan legislation, favorably reported out of the Senate Judiciary Committee, to protect Special Counsel Mueller’s probe from being terminated. Special Counsel Mueller of course found no evidence of collusion between the Trump campaign and Russia, but it was important for public trust that the probe be completed without interference.

We now find the shoe on the other foot. We have two properly predicated, ongoing investigations Democrats would rather go away: Special Counsel John Durham’s investigation of the Crossfire Hurricane investigation and the investigation by the Delaware U.S. Attorney’s Office into Hunter Biden. Special Counsel Durham’s probe has already yielded a felony conviction.

I am writing to respectfully request that you refrain from interfering in any way with either investigation while the Senate processes the nomination of Judge Merrick Garland to the position of Attorney General. The American public deserve the truth and must know that these investigations will continue without political interference.

There’s a lot that’s ridiculous about this letter. It is laughably false to claim that Mueller “found no evidence of ‘collusion,'” — that would be a false claim even if Lindsey had used the legally relevant term of “conspiracy.”

The shoe is not on the other foot. In contradistinction to Trump’s incessant focus on the Russian investigation, there has been no peep about these investigations from the Biden White House. Instead, Hunter Biden rolled out a book deal the other day, which led his father to focus on the import of recovery from addiction, not legal risk.

Lindsey waves Durham’s single felony conviction around — as compared to Mueller’s much more productive investigation and based on evidence entirely derived from Michael Horowitz’ investigation — even after presiding FISA Judge James Boasberg concluded that Kevin Clinesmith did not commit that crime out of any ill-will and sentenced him to a year of probation.

It’s just such a pathetic effort to sustain conspiracy theories Trump chased, and in spite of the Fox News piece on this letter quoting someone that sounds remarkably like Lindsey Graham talking about an ongoing investigation he shouldn’t know about off the record, it’s not actually clear that either of these will result in a showy prosecution. Hell, for all we know, Durham has shifted his focus to what the FBI Agents who were sending pro-Trump tweets on their phones did during the investigation or why Bill Barr’s DOJ submitted altered documents to a criminal docket, precisely the crime Clinesmith pled guilty to.

To repeat, Graham wrote this to urge Wilkinson, who remains in charge of DOJ and oversees the Durham investigation (Acting Deputy Attorney General John Carlin probably oversees the Hunter Biden one) because Merrick Garland remains the most senior Cabinet official who hasn’t been confirmed yet. This was one of his last acts as Chair of SJC.

But the other major final stunt before handing his gavel over to Dick Durbin was precisely that delay. In spite of Garland’s bipartisan support and in spite of Durbin’s exhortations to stop delaying, Lindsey simply didn’t take up Garland’s nomination when he counterparts were doing so. And so DOJ may not get a confirmed Attorney General until late February or early March.

Probably, Lindsey primarily stalled this confirmation just to impose a price on Democrats for impeaching the former President.

But I had been wondering whether Lindsey didn’t have more in mind, perhaps the delay of charges that DOJ would not unseal without Garland’s sanction. And that may be the case.

But along with that delay, Lindsey has also delayed his opportunity to obtain assurances from Garland that he’ll leave these two investigations Lindsey is obsessed about untouched.

Bill Barr’s Entire DOJ Chased Trump Conspiracy Theories and Plotted Inappropriately

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When Bill Barr resigned rather than do the President’s bidding to challenge elections that were perfectly fair, he could have revealed that fact publicly, okayed the indictment of one of the chief purveyors of election conspiracies, Rudy Giuliani, and admitted that the entire basis for undermining the prosecution of Mike Flynn — who had already called for martial law and an election do-over — was based on conspiracy theories spun by the same woman spinning the worst election hoaxes, Sidney Powell.

He didn’t do that.

Instead, he announced his resignation with a page of abject sycophancy that repeated the conspiracy theory that got Barr hired: that the Russian investigation was, “an effort to cripple, if not oust, your Administration with frenzied and baseless accusations of collusion with Russia.”

Even before that, though, Barr launched his letter with an ambiguous statement about the election, one that might be read either as endorsing Trump’s conspiracy theories or debunking them:

I appreciate the opportunity to update you this afternoon on the Department’s review of voter fraud allegations in the 2020 election and how these allegations will continue to be pursued. At a time when the country is so deeply divided, it is incumbent on all levels of government, and all agencies acting within their purview, to do all we can to assure the integrity of elections and promote public confidence in their outcome.

At a moment where he had maximal power to halt Trump’s efforts to overturn an election, then, Barr instead just cowered, resting on the one public statement that there was not sufficient fraud to overturn the election that had gotten him ousted.

Which is to say that to the end, Barr never foreswore the conspiracy theories he adopted in service to Donald Trump.

Now, however, others who also facilitated Donald Trump’s conspiracy theories for years until they, in the final days, didn’t, are seeding stories to suggest that Jeffrey Bossert Clark was in any way unique for doing so.

The story starts with a tale that suggests the top leaders in a DOJ that had broken all norms in service of Donald Trump weren’t, themselves, in the “Trumpist faction” of the Republican Party.

It was New Year’s Eve, but the Justice Department’s top leaders had little to celebrate as they admonished Jeffrey Clark, the acting head of the civil division, for repeatedly pushing them to help President Donald J. Trump undo his electoral loss.

Huddled in the department’s headquarters, they rebuked him for secretly meeting with Mr. Trump, even as the department had rebuffed the president’s outlandish requests for court filings and special counsels, according to six people with knowledge of the meeting. No official would host a news conference to say that federal fraud investigations cast the results in doubt, they told him. No one would send a letter making such claims to Georgia lawmakers.

When the meeting ended not long before midnight, Acting Attorney General Jeffrey A. Rosen thought the matter had been settled, never suspecting that his subordinate would secretly discuss the plan for the letter with Mr. Trump, and very nearly take Mr. Rosen’s job, as part of a plot with the president to wield the department’s power to try to alter the Georgia election outcome.

It was clear that night, though, that Mr. Clark — with his willingness to entertain conspiracy theories about voting booth hacks and election fraud — was not the establishment lawyer they thought him to be. Some senior department leaders had considered him quiet, hard-working and detail-oriented. Others said they knew nothing about him, so low was his profile. He struck neither his fans in the department nor his detractors as being part of the Trumpist faction of the party, according to interviews.

The department’s senior leaders were shocked when Mr. Clark’s machinations came to light. They have spent recent weeks debating how he came to betray Mr. Rosen, his biggest champion at the department, and what blend of ambition and conviction led him to reject the results of the election and embrace Mr. Trump’s claims, despite all evidence to the contrary, including inside the department itself. [my emphasis]

You’ll note that the NYT didn’t explain why it granted six surely very powerful people, mostly lawyers, anonymity to spin this tale?

Buried much deeper in the story, however, after retelling all the ways Clark broke normal procedure while running the Environmental Division, the NYT then explains how he came to be Acting head of the Civil Department and in that role took a number of inexcusable steps that neither Bill Barr nor Jeffrey Rosen objected to (indeed, those may have been the steps that drove Jody Hunt away and won Clark the job).

While Mr. Clark oversaw environmental cases, sometimes working late into the night and personally reviewing briefs, the department’s civil division was in turmoil. Its leader, Jody Hunt, sometimes clashed with the White House Counsel’s Office and, later on, with Attorney General William P. Barr, over how best to defend the administration.

Mr. Hunt resigned with no warning in July, leaving his deputy to run the division while Mr. Barr and Mr. Rosen searched for an acting leader among the department’s thinned-out ranks. Mr. Clark wanted the job, which was a considerable step up in stature, and Mr. Rosen supported the idea even though he was already a division head, according to three people with knowledge of the situation.

After he took the helm of the civil division in September, colleagues began seeing flashes of unusual behavior. Mr. Clark’s name appeared on eyebrow-raising briefs, including what would turn out to be an unsuccessful effort to inject the government into a defamation lawsuit against Mr. Trump by a woman who has said he raped her more than two decades ago. He also signed onto an attempt to use the Justice Department to sue a former friend of the first lady at the time, Melania Trump, for writing a tell-all memoir.

Remember: the currently operative story is that Clark didn’t know Trump until Congressman Scott Perry introduced them, presumably after the election.

It was Mr. Perry, a member of the hard-line Freedom Caucus, who first made Mr. Trump aware that a relatively obscure Justice Department official, Jeffrey Clark, the acting chief of the civil division, was sympathetic to Mr. Trump’s view that the election had been stolen, according to former administration officials who spoke with Mr. Clark and Mr. Trump.

Mr. Perry introduced the president to Mr. Clark, whose openness to conspiracy theories about election fraud presented Mr. Trump with a welcome change from the acting attorney general, Jeffrey A. Rosen, who stood by the results of the election and had repeatedly resisted the president’s efforts to undo them.

He didn’t get the Civil job because Trump picked him or because he promised to turn DOJ into Trump’s own personal law firm. Someone else must have picked him. That means Clark’s other decisions — one of which he took the day after he was installed and which were “Trumpist” by any definition of the term — had the full approval of the people now suggesting he went rogue later in the year. Indeed, those interventions may have been the entire reason he got picked to run the Civil Division.

Sure, Jeffrey Bossert Clark should be shunned in the respectable legal profession for helping Trump attempt a coup. But so should the men who willfully let DOJ champion Trump’s conspiracy theories for the two years before that.

Trump’s Second Impeachment Has Already Had a Beneficial Effect

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After Billy Barr spent eight months dedicating DOJ resources to supporting Sidney Powell’s conspiracy theories about Mike Flynn, Trump pardoned his short-lived National Security Advisor for everything associated with the Mueller investigation. Within weeks, Flynn called for martial law, a three-star General with an avid QAnon following inciting an insurrection.

After Billy Barr dismissed the seriousness of threats against Randy Credico and Amy Berman Jackson backed by Proud Boy associates of Roger Stone, Trump first ensured that Stone would do no prison time and then pardoned him for his cover-up of the Trump campaign’s efforts to optimize the release of stolen John Podesta files. While Roger Stone claims to have had no role, the key organization behind the riot, Stop the Steal, adopted the name and the methods he used in 2016. And thus far five members of the Proud Boys have been arrested in association with the coup attempt.

It seems that Trump’s belief in his own invincibility — one he got, in significant part, by successfully obstructing the Mueller investigation by buying silence with promised pardons, then hiring an Attorney General who would and did repeatedly protect him from consequences — not only led him to believe he could incite a riot, but led key bridges between him and the foot soldiers in this coup attempt to believe they had impunity too.

But according to stories in virtually all major outlets (here’s the CNN version), in the wake of both the coup attempt and impeachment for it, Trump has backed off plans to complete that act of impunity by pardoning his spawn and himself.

Initially, two major batches had been ready to roll out, one at the end of last week and one on Tuesday. Now, officials expect the last batch to be the only one — unless Trump decides at the last minute to grant pardons to controversial allies, members of his family or himself.

[snip]

The January 6 riots that led to Trump’s second impeachment have complicated his desire to pardon himself, his kids and personal lawyer Rudy Giuliani. At this point, aides do not think he will do so, but caution only Trump knows what he will do with his last bit of presidential power before he is officially out of office at noon on January 20.

After the riots, advisers encouraged Trump to forgo a self-pardon because it would appear like he was guilty of something, according to one person familiar with the conversations. Several of Trump’s closest advisers have also urged him not to grant clemency to anyone involved in the siege on the US Capitol, despite Trump’s initial stance that those involved had done nothing wrong.

I predicted this would happen here.

To be clear, I don’t think Trump’s moderated plans come from any remorse or sense of contrition. Rather, after the riot Pat Cipollone apparently refused to be a part of such plans anymore (though I also think the Stone and Paul Manafort pardons were far more modest than they might have been). Lindsey Graham’s efforts to minimize the impeachment trial in the Senate also helped, as Lindsey knows any attempt to prevent conviction in the Senate is premised on Trump avoiding any further abuse.

None of this changes the fact that Trump has abused the pardon power far more than any president before him. Nor will it prevent a great many other abusive pardons today.

But to restore legitimacy and belief in the rule of law, the story of Trump’s crimes needs to be told, and told in a way that makes the damage he caused and the betrayal of his supporters clear. If, indeed, Trump decides not to pardon his lawyer, his spawn, and himself, it will be one important step in that process.

Update: This CNN story reports on precisely this phenomenon.

The decision to not pardon any Republican lawmakers or his family members was a last minute one. After initially defending the idea that he may pardon himself or his family members out of concern they would be targeted once he’s out of office, Trump decided Saturday night that he would not pardon anyone in his family or himself.

Trump agreed with the attorneys and other advisers that doing so would increase the appearance of guilt and could make them more vulnerable, but was disappointed at the outcome, according to people familiar with the matter.

Trump, according to people he’d spoken to, appeared more taken with the message of unchecked power it might send to his naysayers than actual protection from liability. His pardon power was among his favorite perks of the job.

The newfound concerns about actually exercising this favorite perk of the job extends to members of Congress worried about their own legal exposure and Ed Snowden and Julian Assange.

Several Republican lawmakers who are alleged to have been involved in the rally that preceded the deadly riot on the US Capitol have sought clemency from Trump before he leaves office, but after meeting with his legal advisers for several hours on Saturday, the President decided he would not grant them, according to two people familiar with his plans.

[snip]

Trump is also not expected to pardon Edward Snowden or Julian Assange, whose roles in revealing US secrets infuriated official Washington.

While he had once entertained the idea, Trump decided against it because he did not want to anger Senate Republicans who will soon determine whether he’s convicted during his Senate trial. Multiple GOP lawmakers had sent messages through aides that they felt strongly about not granting clemency to Assange or Snowden.

The Press Continues to Help Billy Barr Whitewash His Complicity in January 6

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Among the things Bill Barr did in his second tour as Attorney General were to:

In short, over an extended period, Bill Barr laid the groundwork for the two-month effort to undermine the election that culminated in a coup attempt. The outcome of Barr’s actions — the disparate treatment by the department of Trump supporters, the empowerment of right wing terrorists, the continued influence of Powell and Rudy —  was foreseeable. Nevertheless, Barr persisted with those policies that laid the groundwork for the January 6 insurrection.

In spite of that record, Barr continues to find journalists willing to spin a fairytale completely inconsistent with this record, one of Barr standing up to Trump as he pursued this path.

Consider this account of Bill Barr’s decision to quit from Jonathan Swan.

It provides a dramatic account of how Barr denounced Trump’s conspiracy theories — all rooted in claims about the delayed counting of mail-in ballots that Barr had stoked for months.

The president’s theories about a stolen election, Barr told Trump, were “bullshit.”

White House counsel Pat Cipollone and a few other aides in the room were shocked Barr had come out and said it — although they knew it was true.

It describes Barr’s frustration with Trump’s demands about the Durham investigation without mentioning that Barr repeatedly fed those expectations.

He was sick of Trump making public statements and having others do so to whip up pressure against U.S. Attorney John Durham to bring more prosecutions or to put out a report on the Russia investigation before the election.

It also allows Barr to call Rudy and Sidney “clownish,” without mentioning that those very same clowns had gotten Barr to squander the credibility of DOJ on similarly outlandish conspiracy theories, including but not limited to the Mike Flynn prosecution.

For good measure, the attorney general threw in a warning that the new legal team Trump was betting his future on was “clownish.”

[snip]

The president had become too manic for even his most loyal allies, listening increasingly to the conspiracy theorists who echoed his own views and offered an illusion, an alternate reality.

[snip]

But Barr’s respite ended after Election Day, as Trump teamed up with an array of conspiracy theorists to amplify preposterous theories of election interference, arguing that Biden and the Chinese Communist Party, among others, had stolen the election from him.

It presents the conflict over using the military to quell summer protests, without mentioning Barr’s own role in militarizing the response (to say nothing of treating BLM more harshly than right wing terrorists).

By the late summer of 2020, Trump and Barr were regularly skirmishing over how to handle the rising Black Lives Matter protests sparked by the death of George Floyd while in police custody. As the national movement unfurled, some protests had given way to violence and looting. Trump wanted the U.S. government to crack down hard on the unrest.

The president wanted to invoke the Insurrection Act and send the military into U.S. cities. He wanted troops in the street.

[snip]

Besides, Barr asked, what was the endgame for adding the military to the mix? Federal forces could end up stranded in a city like Portland indefinitely.

Trump grew more and more frustrated, but Barr pushed back harder, standing his ground in front of everyone in the room. He was ready, willing and able to be strong, he said. But, he added, we also have to be thoughtful.

In short, this dramatic profile presents a fictional character, wise old Attorney General Bill Barr, who stood up against the President’s worst instincts, wisely resisting the urge to politicize investigations, trump up claims of voter fraud, chase the theories of Sidney Powell and Rudy Giuliani, and back a violent crackdown against Trump’s opponents.

Except that profile is entirely fictional. That Bill Barr is a myth carefully crafted with the help of obliging reporters.

The reality is that over two years of not just tolerating these efforts, but usually taking affirmative steps to foster them, Billy Barr helped to create this monster, even though he was one of the people with the obligation to stop it.

With his corruption as Attorney General Bill Barr fostered this monster. He should get no credit for skipping out before the predictable outcomes of his own actions blew up on January 6.