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Bill Barr Is Not Dick Cheney

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Then there’s how they used OLC.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Not so here.

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

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

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

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

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

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

Bill Barr Issued Prosecution Declinations for Three Crimes in Progress

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

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

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

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

It was worse than that.

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

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

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

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

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

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

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

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

Barr: No, that would be a crime.

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

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

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

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

Barr: Yes.

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

Barr: Yes.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

Billy Barr’s OLC Declinations

The NYT reported yesterday that, in a bid to retroactively exonerate the President, Billy Barr pursued ways to overturn the campaign finance conviction of Michael Cohen.

But Mr. Barr spent weeks in the spring of 2019 questioning the prosecutors over their decision to charge Mr. Cohen with violating campaign finance laws, according to people briefed on the matter.

As part of that effort, Barr got the Office of Legal Counsel to write a memo (though not a formal opinion) about the applicability of criminal campaign finance law to efforts to squelch public information.

At one point during the discussions, Mr. Barr instructed Justice Department officials in Washington to draft a memo outlining legal arguments that could have raised questions about Mr. Cohen’s conviction and undercut similar prosecutions in the future, according to the people briefed on the matter.

[snip]

The New York Times reported previously that Mr. Barr had questioned the legal theory of the campaign finance charges against Mr. Cohen, but it was not known that the attorney general went so far as to ask for the draft memo or had raised his concerns more than once.

The memo, written by the Justice Department’s Office of Legal Counsel, addressed the Southern District’s somewhat novel use of campaign finance laws to charge Mr. Cohen. Before Mr. Cohen’s guilty plea, the only person known to face criminal charges for payments meant to keep negative information buried during a political campaign was the former senator and Democratic presidential candidate John Edwards, who was not convicted.

Mr. Barr argued, among other things, that such cases might be better suited to civil resolutions by the Federal Election Commission than to criminal prosecutions, according to people with knowledge of the discussions.

Mr. Cohen, who reported to prison in May 2019, was recently released on furlough and is currently serving his sentence at his Manhattan home, after citing health concerns related to the coronavirus.

There is no indication that the Justice Department planned to issue a formal opinion on the campaign finances charges. Such a step, if taken, might have raised questions about the validity of the case against Mr. Cohen and affected any future effort to investigate Mr. Trump or others in his circle for similar conduct.

The news that Barr got OLC involved in criminal charging matters has repercussions on several other levels.

First, it means that potentially before Mueller finished his report, OLC would have established new ground on campaign finance crimes. That’s important because two of the declinations in the Mueller Report involve Trump’s acceptance of campaign dirt from foreigners — both the people at the June 9 meeting, and Roger Stone’s apparent optimization of the WikiLeaks releases. While that’s a different application of campaign finance (and not one that’s a clear cut case), OLC’s involvement on one application before the Mueller Report release opens the possibility that Steve Engel similarly weighed in on another, with direction from Barr about what they should decide.

Add in the fact that Engel, along with PDAG Ed O’Callaghan, did the analysis behind Barr’s decision to decline to prosecute Trump for obstruction of justice. It would be inappropriate for OLC to make a prosecutorial decision in any case, all the more so given that OLC has an opinion saying that no one DOJ should be making such decisions at all. Now add in the fact that Engel must have weighed in during the weeks leading up to this decision about campaign finance issues.

It’s now widely agreed (though was always clear from the public record) that Trump lied in his responses to Mueller about his conversations with Roger Stone about WikiLeaks. And his hints that Stone would be pardoned are one of his most obstructive acts. Effectively, then, Engel would be playing both sides of the prosecutorial decision, setting the rules and then applying them, which isn’t how justice is supposed to work.

Finally, consider that the Stone prosecutors were prepared to introduce Stone’s lies to HPSCI about coordinating with Trump on his campaign efforts as 404(b) evidence (effectively to show that his lies were systematic). That Stone was coordinating (he kept asking Rick Gates for lists, which should have been purchased from the campaign, and he asked Steve Bannon to get him funding from Rebekah Mercer during the period when Bannon was running the campaign) would seem to be a campaign finance issue. This is another matter that OLC’s review of campaign finance may have implicated.

It’s not just that Barr went out of his way to make it legal for outsides to pay to suppress bad news, but it’s that he’s secretly rewriting campaign finance law in ways that may have wider implications. And by doing so, Barr may have limited other prosecutorial decisions implicating Trump.

On Rod Rosenstein’s Professed Unfamiliarity with the Mueller Report

Something happened in a Senate Judiciary Committee hearing earlier this month that is interesting background to some of the details about the Mueller Investigation that have come out of late.

The guy who oversaw the Mueller Report appears unfamiliar with the Mueller Report

In the hearing, Dick Durbin tried to get Rod Rosenstein to defend the investigation he had overseen. Early on in the exchange, Rosenstein claimed that,

I do not consider the investigation to be corrupt, Senator, but I certainly understand, I understand the President’s frustration given the outcome, which was in fact that there was no evidence of conspiracy between Trump campaign advisors and Russians.

That’s of course not what the Report said at all. Rather, it said that,

[T]he investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.

[snip]

A statement that the investigation did not establish particular facts does not mean there was no evidence of those facts.

Had Durbin been prepared for this answer, he might have invited Rosenstein to quote where the Report says that there was no evidence of conspiracy, which he would have been unable to do. Instead, Durbin asked Rosenstein whether he agreed with several other things that (he claimed) the report said:

  • The Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome
  • There were more than 120 contacts between the Trump campaign and individuals linked to Russia
  • The Trump campaign “knew about, welcomed, and expected to benefit electorally from Russia’s interference”
  • The Trump campaign planned a messaging strategy around the WikiLeaks releases

In response to the first, Rosenstein claimed he didn’t know what the government (of Russia, apparently) was thinking, but could only say what their conduct was. To the second, Rosenstein said he had no reason to dispute the finding, though did not acknowledge directly that that’s what the report said.

In response to the third, Rosenstein asked Durbin what page he was referring to. Durbin claimed, incorrectly, it appeared on pages 1 to 2. Rosenstein made a great show of paging through the report, seemingly reading the passage in question, and said, “I’m not sure whether you were quoting from the Report or not Senator, but I have it in front of me … I apologize sir, I’m not seeing those words in the report if you could direct me to where it is in the report.”

In response to the fourth assertion, Rosenstein noted that that specific point says, “according to Mr. Gates, that’s attributed to Mr. Gates, I don’t think that’s a finding of the, Mueller, it’s what one of the … witnesses said.”

To be fair to Rosenstein, the exact words Durbin read do not appear in the report, just as “there was no evidence of conspiracy” does not appear in the report. Just the phrase, “the Campaign expected it would benefit electorally from information stolen and released through Russian efforts,” appears on pages 1 and 2 — though even that, Rosenstein was too cowardly to acknowledge. But unlike Rosenstein’s claim that the report showed no evidence of conspiracy, the rest of Durbin’s statement is backed by the report. On page 5, for example, the report explains that Trump showed interest in and welcomed the releases.

The presidential campaign of Donald J. Trump (“Trump Campaign” or “Campaign”) showed interest in WikiLeaks’s releases of documents and welcomed their potential to damage candidate Clinton.

And as for only Rick Gates describing a focused campaign effort to prepare for the WikiLeaks release, other witnesses, including campaign manager Paul Manafort, described similar obsession with the emails. At least five different witnesses gave testimony consistent with Gates’, and not all the people involved in such discussions were quoted in the Mueller Report.

Given Mueller’s own need to refer to the report and strict adherence to the specific language in the report when he testified before Congress, I can’t complain that Rosenstein seemed even less familiar with the contents of the report than Mueller (and elsewhere Rosenstein confessed he was uncertain about other key details). But my big takeaway from his testimony — aside from the fact that he seems intent on saying what Bill Barr, Donald Trump, and Lindsey Graham want him to say, whether or not it accords with reality — is that he exhibited none of the familiarity with the report I expected he would have.

It seems an important lesson. Rod Rosenstein, with no apparent familiarity with the report’s actual content, instead adopted the false lines that Trump and Barr have about the investigation, incorporating the ones on Barr’s four-page memo misrepresenting the findings, including where the memo neglected to provide the lead-up to the quotation that, “the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.”

Ed O’Callaghan (and Steve Engel) wrote Barr’s declination, not Rosenstein

That’s one reason I think the memo that Steven Engel and Ed O’Callaghan wrote Billy Barr on March 24, 2019 recommending he decline to prosecute the President is probably the most interesting Mueller-related release from Friday. In actuality, DOJ released just the first and last page of the memo, and redacted all the justifications. But the first page shows that Engel — who as OLC head should have absolutely zero input into the specifics of a criminal declination, particularly regarding a report that presumed OLC had ruled out such prosecutions categorically — and O’Callaghan wrote the actual declination of Trump. The memo only went “through” Rosenstein (though Rosenstein definitely initialed it).

About half that first page is redacted, but not a footnote that says,

Given the length and detail of the Special Counsel’s Report, we do not recount the relevant facts here. Our discussion and analysis assumes familiarity with the Report as well as much of the background surrounding the Special Counsel’s investigation.

I have every reason to believe that O’Callaghan, unlike Rosenstein, is reasonably familiar with the workings of the Mueller Report (but Rosenstein must have gotten his misunderstandings of what it showed from O’Callaghan).

But whatever logic is laid out in that memo, the discussion apparently does not tie closely to the actual facts.

That means both Barr and Rosenstein could well have approved it without any familiarity with the actual facts.

In spite of Rosenstein’s ignorance, DOJ had to read about Roger Stone’s cover-up closely to redact it

Rosenstein’s professed lack of familiarity with Trump’s enthusiasm to exploit the WikiLeaks release is interesting given how important it had to have been in March 2019, when Mueller was publishing his conclusions. That’s because it was the one ongoing proceeding treated as such in the report release. So a great deal of the report got redacted — properly — in the interest of protecting Roger Stone’s right to a fair trial. Someone at DOJ — and the process may have been overseen by O’Callaghan — had to have read the Stone details closely if only to make sure none of the rest of us could.

That said, even before DOJ released the report, it was immediately clear how inconsistent the Stone findings were with Billy Barr’s public statements. Barr’s categorical comments about conspiracy pertained only to conspiring directly with Russia, which allowed him to make assertions that completely ignored Stone’s attempts — via means that have not yet been made public — to optimize the WikiLeaks releases.

On Friday, all the things that Barr was covering up became public in one narrative.

There was very little that had not been previously published in Friday’s release of the report. The details in the report showed up in Stone’s prosecution, the trial, and the warrants released in April. But the description of how many witnesses knew of Trump and Stone’s focus on the releases — including those like Paul Manafort and Steve Bannon who always tried to protect Trump in their testimony — sure does make Rosenstein’s denials look deliberate.

In debriefings with the Office, former deputy campaign chairman Rick Gates said that, before Assange’s June 12 announcement, Gates and Stone had a phone conversation in which Stone said something “big” was coming and had to do with a leak of information.195 Stone also said to Gates that he thought Assange had Clinton emails. Gates asked Stone when the information was going to be released. Stone said the release would happen very soon. According to Gates, between June 12, 2016 and July 22, 2016, Stone repeated that information was coming. Manafort and Gates both called to ask Stone when the release would happen, and Gates recalled candidate Trump being generally frustrated that the Clinton emails had not been found.196

Paul Manafort, who would later become campaign chairman, provided similar information about the timing of Stone’s statements about WikiLeaks.197 According to Manafort, sometime in June 2016, Stone told Manafort that he was dealing with someone who was in contact with WikiLeaks and believed that there would be an imminent release of emails by WikiLeaks.19

Michael Cohen, former executive vice president of the Trump Organization and special counsel to Donald J. Trump,199 told the Office that he recalled an incident in which he was in candidate Trump’s office in Trump Tower when Stone called. Cohen believed the call occurred before July 22, 2016, when WikiLeaks released its first tranche of Russian-stolen DNC emails.200 Stone was patched through to the office and placed on speakerphone. Stone then told the candidate that he had just gotten off the phone with Julian Assange and in a couple of days WikiLeaks would release information. According to Cohen, Stone claimed that he did not know what the content of the materials was and that Trump responded, “oh good, alright” but did not display any further reaction.201 Cohen further told the Office that, after WikiLeaks’s subsequent release of stolen DNC emails in July 2016, candidate Trump said to Cohen something to the effect of, “I guess Roger was right.”202

After WikiLeaks’s July 22, 2016 release of documents, Stone participated in a conference call with Manafort and Gates. According to Gates, Manafort expressed excitement about the release and congratulated Stone.203 Manafort, for his part, told the Office that, shortly after WikiLeaks’s July 22 release, Manafort also spoke with candidate Trump and mentioned that Stone had predicted the release and claimed to have access to WikiLeaks. Candidate Trump responded that Manafort should stay in touch with Stone.204 Manafort relayed the message to Stone, likely on July 25, 2016.205 Manafort also told Stone that he wanted to be kept apprised of any developments with WikiLeaks and separately told Gates to keep in touch with Stone about future WikiLeaks releases.206

According to Gates, by the late summer of 2016, the Trump Campaign was planning a press strategy, a communications campaign, and messaging based on the possible release of Clinton emails by WikiLeaks.207 Gates also stated that Stone called candidate Trump multiple times during the campaign.208 Gates recalled one lengthy telephone conversation between Stone and candidate Trump that took place while Trump and Gates were driving to LaGuardia Airport. Although Gates could not hear what Stone was saying on the telephone, shortly after the call candidate Trump told Gates that more releases of damaging information would be coming.209

Stone also had conversations about WikiLeaks with Steve Bannon, both before and after Bannon took over as the chairman of the Trump Campaign. Bannon recalled that, before joining the Campaign on August 13, 2016, Stone told him that he had a connection to Assange. Stone implied that he had inside information about WikiLeaks. After Bannon took over as campaign chairman, Stone repeated to Bannon that he had a relationship with Assange and said that WikiLeaks was going to dump additional materials that would be bad for the Clinton Campaign.210

Rosenstein asserted there was no conspiracy in spite of ongoing investigations into a conspiracy

All of which leads me to something I’ve been pondering.

In this post, I analyzed what the Stone warrants suggest about the investigation into him. The investigation appeared to start as an effort to determine whether Stone’s efforts to optimize the hack-and-leak; the Mueller Report seems to explain that nothing Stone was known to have done was criminal. In August 2018, as Stone’s efforts to tamper with witnesses became clear from his press campaign, Mueller’s team obtained the warrants that would lead to his obstruction charges. On August 20, 2018, Mueller obtained warrants for Stone’s cell site location during the election and Guccifer 2.0’s second email account; while different FBI agents obtained those warrants, they got them within minutes of each other.

Then, on September 26 and 27, an FBI agent stationed in Pittsburgh obtained a bunch of warrants, most with gags citing 18 USC 951 and conspiracy, the descriptions of which were withheld in April, apparently because those investigations are ongoing.

*September 24, 2018: Warrant for Stone’s Liquid Web server

*September 26, 2018: Mystery Twitter Account

*September 27, 2018: Mystery Facebook and Instagram Accounts

*September 27, 2018: Mystery Microsoft include Skype

*September 27, 2018: Mystery Google

*September 27, 2018: Mystery Twitter Accounts 2

*September 27, 2018: Mystery Apple ends in R

The warrant targeting several Twitter accounts is sealed in part because, “It does not appear that Stone is fully aware of the full scope of the ongoing FBI investigation.”

In September 2018, Mueller’s team seems to have pursued a new line of investigation, one that the obstruction investigation into Stone may have provided cover for, one that may be ongoing. Mueller was specifically trying to hide that investigation from Stone.

But I’m struck by the date: September 26 and 27

In the wake of a September 21 NYT story, Trump almost fired Rosenstein when people close to Andrew McCabe leaked details of Rosenstein’s musing about wearing a wire to a meeting with Trump. Given Rosenstein’s apparent ignorance of even the public Stone related content — and O’Callaghan’s apparent misrepresentation of those details — I wonder whether Stone wasn’t the only person Mueller was hiding this from.

Rosenstein asserted, as fact, that the Mueller Report showed no evidence of a conspiracy between Trump and Russia (which is inaccurate by itself). He said that in spite of warrants in a still-pending investigation into conspiracy and Agent of a Foreign power involving Stone.

Yesterday Noel Francisco Raised the Stakes on the Mystery Appellant

Back when President Trump fired Jeff Sessions, there was a CNN report describing how two competing groups of people discussed what to do in response. It described that Solicitor General Noel Francisco was in the Sessions huddle, a huddle focused, in part, on how to protect the Mueller investigation.

Eventually, there were two huddles in separate offices. Among those in Sessions’ office was Deputy Attorney General Rod Rosenstein, his deputy Ed O’Callaghan, Solicitor General Noel Francisco and Steven Engel, who heads the Office of Legal Counsel.

[snip]

The fact that Whitaker would become acting attorney general, passing over Rosenstein suddenly raised concerns about the impact on the most high-profile investigation in the Justice Department, the Russia probe led by Mueller.

The Mueller probe has been at the center of Trump’s ire directed at Sessions and the Justice Department. Whitaker has made comments criticizing Mueller’s investigation and Rosenstein’s oversight of it, and has questioned the allegations of Russian interference.

Rosenstein and O’Callaghan, the highest-ranked officials handling day-to-day oversight of Mueller’s investigation, urged Sessions to delay the effective date of his resignation.

Francisco’s presence in the Sessions/Rosenstein huddle was significant for a number of reasons: If Rosenstein had been fired while Big Dick Toilet Salesman was Acting Attorney General, he would be the next superior officer, confirmed by the Senate, in the chain of command reviewing Mueller’s activities. As Michael Dreeben testified in the days after the firing, Francisco would have (and has had) to approve any appeals taken by Mueller’s team. In addition, it was significant that someone who is pretty fucking conservative was huddling with those who were trying to protect the investigation.

That’s why I’m interested in several details from the Mueller response to the Mystery Appellant challenge to a Muller subpoena submitted to SCOTUS yesterday.

First, as I expected, the government strongly rebuts Mystery Appellant’s claim that they are a foreign government (which was the spin in their own brief). Rather they are a commercial enterprise that a foreign government owns.

As the petition acknowledges (Pet. 1 n.1), petitioner is not itself a foreign government, but is a separate commercial enterprise that a foreign government owns.

That makes a ton of difference to the analysis, because the government has a much greater leeway in regulating businesses in this country than it does foreign governments.

Indeed, in one of the key parts of the brief, the government lays out the import of that: because if foreign owned companies were immune from subpoena, then on top of whatever problems it would create for regulating the foreign-owned corporation, it would also mean American citizens could deliberately use those foreign-owned corporations to shield their own criminal behavior.

Petitioner’s interpretation would, as the court of appeals recognized, lead to a result that Congress could not have intended—i.e., that “purely commercial enterprise[s] operating within the United States,” if majority- owned by a foreign government, could “flagrantly violate criminal laws” and ignore criminal process, no matter how domestic the conduct or egregious the violation. Supp. App. 10a. Banks, airlines, software companies, and similar commercial businesses could wittingly or unwittingly provide a haven for criminal activity and would be shielded against providing evidence even of domestic criminal conduct by U.S. citizens. See id. at 10a-11a. Although petitioner declares that result to be “precisely what Congress intended,” Pet. 25, it cannot plausibly be maintained that Congress and the Executive Branch—which drafted the FSIA—would have adopted such a rule “without so much as a whisper” to that effect in the Act’s extensive legislative history, Samantar, 560 U.S. at 319.8

In an unbelievably pregnant footnote to that passage, the government then notes that Mystery Appellant’s suggestion that the President could retaliate if foreign-owned corporations engaged in crime via something like sanctions ignores what tools are available if foreign-owned corporations don’t themselves engage in crime, but instead serve as a shield for the criminal activity of US citizens.

8 Petitioner suggests (Pet. 26) that Congress would not have been troubled by barring federal criminal jurisdiction over foreign state-owned enterprises because the President could use tools such as economic sanctions to address foreign instrumentalities “that commit crimes in the United States.” That overlooks not only the legal and practical limits on sanctions, but also the threshold need to acquire evidence through grand jury subpoenas in order to determine whether a crime has been committed—including by U.S. citizens.

Consider: There is significant evidence to believe that a foreign country — Russia — bribed Trump to give them sanctions relief by floating a $300 million business deal. There is also evidence that, after a series of back channel meetings we know Zainab Ahmed was investigating, such funds may have come through a Middle Eastern proxy, like Qatar. There is not just evidence that Qatar did provide funds no one in their right mind would have provided to the President’s family, in the form of a bailout to Jared Kushner’s albatross investment in 666 Fifth Avenue. But they’re already laying the groundwork to claim they accidentally bailed him out, without realizing what they were doing.

So if Russia paid off a bribe to Trump via Qatar, and Qatar is trying to hide that fact by claiming Qatar Investment Authority is a foreign government that can only be regulated in this country by sanctions imposed by the guy who is trading sanctions to get rich … well, you can see why that’s a non-starter.

Finally — going back to why I’m so interested that Francisco was in the Sessions/Rosenstein huddle — just Francisco’s name is on the brief, even though Dreeben and Scott Meisler surely had a role in drafting it.

This was noted to me by Chimene Keitner, who is an actual expert in all this (and did her own very interesting thread on the response).

I’m sure I understand only a fraction of the significance that just Francisco signed the brief. But two things I do understand: One, Francisco is giving this argument a great deal of weight with SCOTUS, signaling the import of winning this argument.

Additionally, however, it means he stands as a shield for Mueller’s work on this appeal. If Trump wants to retaliate against DOJ for exposing the payoff to a quid pro quo, the President is going to have to fire another Senate-confirmed officer to do it, and fire one against whom he hasn’t laid a claim of partisanship. As I’ve already noted, by dint of this company being a foreign company, Mueller likely already knows what he’s getting via SIGINT. This subpoena is likely significantly an attempt to parallel construct evidence for use at trial. And the brief seems to make it clear that Mueller suspects some US citizen used this foreign-owned corporation to shield his own criminal behavior.

Which might explain why Francisco sees the need and import of shielding Mueller in this step.

Update: I’m seeing people misunderstanding the significance of my point (which, again, was suggested by someone more expert than me and most journalists on this). It’s not just that Francisco appears — that’s normal. It’s that only he appears, when we know that several other people had to have worked on the brief. That is, it’s the fact that Dreeben is not named.

As comparison, here’s the signature line for another brief that DOJ submitted (as amicus) today:

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

The House Intelligence Committee Can and Should Subpoena the 18-Minute Gap on the Trump Tower Deal

Over the last few days the following happened:

  • Buzzfeed published a story stating what the evidence already shows: Trump suborned perjury
  • Mueller’s spox Peter Carr issued an unprecedented rebuttal to a specific story
  • WaPo, in a story presenting DOJ’s side of events, revealed that someone from Rod Rosenstein’s office (probably Ed O’Callaghan, who has managed most interactions with Mueller’s office) called to ask them if they were going to issue such a statement

I am not certain whether the call from Rosenstein’s office violated Special Counsel regulations protecting the Special Counsel from day-to-day interference in the office, but it certainly is something Jerry Nadler’s committee should inquire about.

And while I think Mueller’s office can make a very good case they needed to respond to Buzzfeed’s story for prosecutorial reasons, Rosenstein’s involvement seems far more suspect, particularly since he’s the guy who set the new DOJ standard that even warning a journalist off a story, as former FBI General Counsel Jim Baker did, may get you disciplined or referred for prosecution. By all appearances, Peter Carr was playing by Rosenstein’s rules in his interactions with Buzzfeed, so Rosenstein is the last person who should weigh in if he doesn’t like the outcome.

But — in addition to House Judiciary Committee (HJC) asking DOJ about contacts between Rosenstein’s office and Mueller’s, as well as contacts between Big Dick Toilet Salesman Matt Whitaker and Rosenstein and contacts between the White House and either one — Congress has a means of pursuing this question that should not harm Mueller’s investigation: Subpoena the information that Cohen, Felix Sater, the Trump Organization, and the campaign withheld from the House Intelligence Committee so as to sustain Cohen’s false testimony through March 22, 2018.

I’ve put the section of the House Intelligence Report that deals with the Trump Tower deal below, with the claims we now know to be false underlined. In addition to a caveat that the findings in the section are based on the documents turned over to the committee, the section includes the following claims we now know to be false given Cohen’s statement of the offense and/or Buzzfeeed’s extensive report on the deal:

  • The report claims the deal died in January but communications (which may or may not be limited to text messages) between Sater and Cohen show that it continued (at least) through June and Buzzfeed suggests the communications extended into July. Rudy Giuliani today stated publicly it may have gone through November.
  • The report claims Cohen was working with Sater’s company, which may or may not be true. But Buzzfeed makes it clear there should be an October 2015 email between Sater and Cohen — sent weeks before Trump signed the Letter of Intent — showing that VTB, a sanctioned bank, would provide financing. A December 19, 2015 communication (it’s unclear whether email or text) would have showed VTB would host Cohen. On December 31, 2015, Sater sent an image showing another sanctioned bank, GenBank, would instead provide financing. There would also be a letter dated late January from Andrey Ryabinskiy, a Russian mortgage tycoon.
  • The report claims Cohen never received a response from anyone associated with the Russian government. But Cohen received a January 20, 2016 email from Dmitry Peskov’s personal assistant, and his call records would reflect a 20 minute call to the number she provided him to call her on.
  • Sater claimed to HPSCI that his claims about Putin’s involvement was “mere puffery” and that “neither President Putin nor any element of the Russian government was actually directly involved in the project.” Yet on January 21, Sater wrote Cohen, “It’s about [Putin] they called today,” which would show still more response to Cohen from the Russian government. And a May 5 text message from Sater to Cohen conveyed Dmitry Peskov’s invitation to attend the St. Petersburg Forum, at which Cohen could discuss the deal with Peskov and he might meet Putin personally.
  • The report says the deal failed because the due diligence failed and  Trump Organization’s representative (it’s unclear whether this would be Cohen, Sater, or someone else) lost confidence in the licensee. That’s almost certainly not consistent with whatever reason Cohen gave Sater on June 14, three hours after WaPo reported that Russia had hacked the DNC, to say he would not be traveling to St. Petersburg after all. There may well be discussion of the WaPo report in the four texts Sater sent Cohen. There also may be communication reflecting Cohen’s assurances that “We’ll go after Cleveland.”
  • The report says the potential licensing deal was not related to the campaign but Cohen, “asked a senior campaign official about potential business travel to Russia.” It’s unclear whether there’s a paper trail of that or not. But there are communications reflecting Cohen’s consideration of other campaign events — definitely the Convention and probably the WaPo report on the DNC hack. And there should be communications showing it go through November, only to be halted — or rather, moved under Segei Millian and George Papadopoulos — once Trump got elected.

While it’s possible the House Intelligence Committee (HPSCI) received the 2015 communications indicating that Trump contemplated working with sanctioned banks during the time he was running for President (in which case it would be scandalous that the Republicans suppressed that detail, and the one that a former GRU officer was involved), much of the rest of these communications could not have been turned over to HPSCI when they requested documents in 2017. While some of the communications are limited to texts between Sater and Cohen, at least some of this paper trail (including Cohen’s meetings with Trump and Don Jr about it) would either reside at the campaign or Trump Organization (or both).

Remember, when SDNY got a warrant — one naming “many” thus far uncharged people — to raid Michael Cohen a month after subpoenaing Trump Organization, they explained there was a concern that documents would get destroyed.

One of the filings on Cohen (I’m still trying to chase down this reference) suggests Mueller had to get his communications on this matter from someone else. It seems likely Mueller had to get the text messages from Sater’s phone (or perhaps even from forensics on Cohen’s own phone).

Nevertheless, the public record identifies an abundant paper trail that should have been turned over to HPSCI, Senate Intelligence Committee (SSCI), and Senate Judiciary Committee (SJC), but could not have been, given what HPSCI reported last March. Additionally, Don Jr’s testimony to HPSCI is necessarily inconsistent with his SJC, yet still appears to include false claims about the Trump Tower deal (though some got cleaned up between his September testimony to SJC and his December testimony to HPSCI).

While Cohen was initially formally subpoenaed (though possibly only for Steele dossier documents), Trump Organization, Felix Sater, and the campaign were not.

Adam Schiff’s committee can make an important first step to clear up questions about the degree to which Trump only tacitly permitted Cohen, Sater, and his spawn to lie to Congress, or whether — as was the case with the June 9 response — his lawyers worked directly with witnesses to craft a false message to the public and Congress. If the June 9 response is any indication, there should be communications directly between Alan Futerfas or Garten with Cohen as he crafted his false story, which would go a long way to showing that their ultimate client suborned perjury.

Rosenstein’s intervention with Mueller’s office regarding Friday’s statement suggests that he, the Big Dick Toilet Salesman, or their boss, may be trying to tamp down discussions about Trump participating in Cohen’s lies. But because the discovery to HPSCI was so obviously incomplete, that committee has an available significant first step that could answer that question themselves, with little opportunity for DOJ to prevent that (and, given that the documents have already been identified in Buzzfeed’s story already, probably little risk of damaging the Mueller investigation in the way that further Cohen testimony might).

It may not be the kind of showboat witness testimony Schiff seems most interested in right now. But he has the ability to demand all the documents that show what details Cohen, Sater, and the President’s company and campaign knew to withhold to sustain Cohen’s lies. That — and a request for any communications about this matter, both in 2017 and in the wake of last year’s raid on Cohen — would go a long way towards answering a question that only Congress can deal with anyway: the degree to which Donald Trump orchestrated his lawyers’ lies about his ongoing business negotiations with Russia while Russia was helping him get elected.

House Intelligence Report

In approximately September 2015, he received a separate proposal for Trump Tower Moscow from a businessman named [Sater] According to Cohen, the concept of the project was that “[t]he Trump Organization would lend its name and management skills, but It was not going to borrow any money and it would not have any resulting debt for the purchase of the land and the building of the facility.”;~ Cohen worked on this idea with [Sater] and his company, the Bayrock Group, a real estate consultancy that had previously worked with the Trump Organization.

[gratuitous paragraph on what a colorful fellow Sater is]

(U) After signing a letter of intent with a local developer in October 2015,36 Cohen and [Sater] exchanged a number of emails and text messages in late 2015 detailing their attempts to move the project forward. For instance, in December 2015, [Sater] tried to get Cohen and candidate Trump to travel to Russia to work on the project.

(U) Several of [Sater’s] communications with Cohen involved an attempt to broker a meeting or other ties between candidate Trump and President Putin, and purported to convey Russian government interest in the project. Perhaps most notably, [Sater] told Cohen in a November 3, 2015, email, “[b]uddy our boy can become President of the USA and we can engineer it.” 39 [Sater] continued that if “Putin gets on stage with Donald for a ribbon cutting for Trump Moscow, . .. Donald owns the republican nomination.” 10 This assertion apparently arose from [Sater’s] rather grandiose theory that cementing a deal with a hostile U.S. adversary would increase candidate Trump’s foreign policy bona fides.41

(U) Sater testified that his communications with Cohen regarding President Putin were ”mere puffery,” designed to elicit a response from the · Trump Organization to move the project along.42 [Sater] explained that “[u]ntil the bank writes the check, it’s all salesmanship and promotion to try to get many, many, many parties towards the center to try to get the deal done.” 43 Cohen similarly characterized [Sater] as “a salesman” who “uses very colorful language.”44

(U) When the project started proceeding too slowly for the Trump Organization,45 Cohen and [Sater] began to exchange acrimonious text messages. 46 As part of those text messages [Sater] told Cohen that President Putin’s people were backing the deal, including “this is thru Putins [sic] administration, and nothing gets done there without approval from the top,” as well as meetings in Russia with “Ministers” and “Putins [sic] top administration people.”] [Sater] also mentioned Dmitry Peskov (President Putin’s spokesman) would “most likely” be included. 48

(U) Cohen thus attempted to reach out to members of the Russian government in an attempt to make the project proceed, but apparently did not have any direct points of contact. for example, Cohen sent an email to a general press mailbox at the Kremlin in an effort to reach Peskov.49 Cohen’s message notes that he has been working with a local partner to build a Trump Tower in Moscow and that communications have stalled with the local partner.50 The email further seeks contact with Peskov so they may ” discuss the specifics as well as arrang[e] meetings with the appropriate individuals.”51 Based on the documents produced to the Committee, it does not appear Cohen ever received a response from anyone affiliated with the Russian government.

(U) [Sater’s] testimony likewise made clear that neither President Putin nor any element of the Russian government was actually directly involved in the project. For instance, in one exchange, [Sater] testified he was offering the Trump Organization access to one of his acquaintances. This acquaintance was an acquaintance of someone else who is “partners on a real estate development with a friend of Putin’s.” 52

[Sater] testified that he was unaware of “any direct meetings with any [Russian] government officials” in connection with the Trump Tower Moscow project.53 In addition, neither candidate Trump nor Cohen traveled to Russia in support of the deal.54

[U] It appears the Trump Tower Moscow project failed in January 2016.57 Trump Jr. testified that, as of early June 2016, he believed the Trump Tower Moscow project was dormant.53 The project failed because “[t]he due diligence did not come through” and the Trump Organization’s representative “lost confidence in the licensee, and [he] abandoned the project.”59 In fact, the Trump Organization did not have a confirmed site, so the deal never reached the point where the company was discussing financing arrangements for the project.60 The Committee determined that the Trump Tower Moscow project did not progress beyond an early developmental phase, and that this potential licensing deal was not related to the Trump campaign.61

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

What OLC Says Happened with Matt Whitaker’s Appointment

DOJ has released the memo they say justifies the appointment of Matt Whitaker to be their boss. I’ll have some things to say about the legal arguments later (and smarter people who have JDs will surely weigh in as well).

I’d like to look at four things the OLC memo says about what happened with the Whitaker appointment, because they’re at least as important as the legal argument.

Never in the history of DOJ has someone attempted this stunt

Much of the memo reviews the history of appointments, purporting to find analogous appointments to this one. But it only cites one example where someone who wasn’t Senate confirmed served as Acting Attorney General.

While designations to the office of Attorney General were less frequent, we have identified at least one period in 1866 when a non-Senate-confirmed Assistant Attorney General served as Acting Attorney General.

The Department of Justice didn’t exist in 1866. It was only authorized — significantly, for the purpose of giving the Attorney General supervision over the US Attorneys — in 1870.

In 1861, Congress finally agreed that the Attorney General should have supervisory powers over the work of the United States Attorneys, although at first this role was shared with the Solicitor of the Treasury.

While there had been earlier calls for the creation of a separate legal department that would supervise the work of federal lawyers, it was not until after the end of the Civil War that Congress began to give serious consideration to the matter. In late 1867, the Senate Committee on the Judiciary asked Attorney General Henry Stanbery to respond to several questions concerning the efficiency of the government’s legal departments. Stanbery replied that a solicitor general was needed to argue the government’s cases before the Supreme Court, and that the centralization of the government’s legal business under one department would improve the quality of the work. In 1868, after the House Judiciary Committee asked Stanbery to respond to a similar inquiry, Representative Thomas Jenckes of Rhode Island introduced a bill to establish a department of justice. This bill was referred to the Joint Select Committee on Retrenchment, a committee impaneled to consider legislation to reduce the size and cost of government. In addition, the Chairman of the House Judiciary Committee, Representative William Lawrence of Ohio, introduced a similar bill which was referred to that committee.

As I’ll return to when I get to the legal issues, the distinction between this appointment, which gives Whitaker supervisory authority over SDNY and Mueller, and that one, may be very important.

But for now, suffice it to say that even OLC admits that this has almost never happened before.

The White House asked for this opinion

I’ve been harping on this line of the CNN report describing Jeff Sessions and those who would like to protect the Mueller investigation a lot.

At least one Justice official in the room mentioned that there would be legal questions about whether Whitaker’s appointment as acting attorney general is constitutional.

Steven Engel, the guy who signed this memo, was in that room, along with Sessions, Deputy Attorney General Rod Rosenstein, Solicitor General Noel Francisco, and Rosenstein’s deputy Ed O’Callaghan. The story suggests that Engel hadn’t considered the question yet, and I’ve been wondering since that report whether one of those men asked for the memo.

They didn’t — at least not according to this memo.

This Office had previously advised that the President could designate a senior Department of Justice official, such as Mr. Whitaker, as Acting Attorney General, and this memorandum explains the basis for that conclusion.

It is addressed to the “Counsel to the President,” which strongly implies that person asked for the memo. It doesn’t say, however, when the Counsel to the President asked for this memorandum.

Emmet Flood is the Counsel to the President who asked for this opinion

More specifically, the memo is addressed to Emmet T. Flood Counsel to the President.

Emmet Flood has two roles in the White House now. Until Pat Cipollone is installed as White House Counsel, Flood is Acting White House Counsel (or, as addressed here, Counsel to the President, which is how OLC addresses the White House Counsel).

But he’s also the lawyer in the White House Counsel’s office in charge of defending the President in investigations by (among others) Robert Mueller.

Legally, that’s interesting but (because the President can appoint whoever the fuck he wants as White House Counsel) not all that important. But it does answer the question I keep asking — given what a clusterfuck this appointment is, was Emmet Flood, who is eminently competent, involved? Yes — at least by the time the White House realized they needed some legal cover for it.

So maybe Flood really was hoping to create a legal morass.

Jeff Sessions resigned, probably

Finally, the memo answers a question that the House Judiciary Committee has already raised some doubt about: whether Sessions resigned, or was fired. The memo explains,

Attorney General Sessions submitted his resignation “[a]t [the President’s] request,” Letter for President Donald J. Trump, from Jefferson B. Sessions III, Attorney General, but that does not alter the fact that the Attorney General “resign[ed]” within the meaning of section 3345(a).

But it doesn’t seem so sure (or at least recognizes that someone, and probably not just HJC, will challenge this legally). It continues:

Even if the Attorney General had declined to resign and was removed by the President, he still would have been rendered “otherwise unable to perform the functions and duties of the office” for purposes of section 3345(a).

As I’ll return to in the legal analysis, the remainder of the footnote, which claims the Vacancies Reform Act still would have permitted the appointment of Whitaker, is one of the most problematic parts of the memo.

Which is why it is notable that the memo dodges most analysis of whether a forced resignation really is legally a resignation.