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Into Shutdown Day 28: Is the GOP Senate Obstructing Justice?

[NB: Always check the byline, folks. /~Rayne]

As we roll through the afternoon into the 28th day of the longest-ever government shutdown, let’s revisit Senator Amy Klobuchar’s questions to Attorney General nominee Bill Barr before the Senate Judiciary Committee this week.

She asked him about his opinion on obstruction of justice. Barr discussed in his June 2018 memo addressed to Deputy Attorney General Rod Rosenstein and Assistant Attorney General Steve Engel, focusing on Special Counsel Robert Mueller’s “‘Obstruction’ Theory.”

Four key points give pause:

  • Deliberately impaired integrity or availability of evidence;
  • Knowing destruction or alteration of evidence;
  • Ordering witness/es not to cooperate with investigation;
  • Misleading statements to conceal purposes.

Klobuchar asked Barr about each of these during the hearing:

(3:17) KLOBUCHAR: You wrote on page one that a president persuading a person to commit perjury would be obstruction. Is that right?

BARR: Yes.

KLOBUCHAR: Okay.

BARR: Or any, any, well, you know, or any person who persuades another, yeah.

(3:31) 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: Okay.

(3:42) KLOBUCHAR: And on page 2 you said that a president deliberately impairing the integrity or availability of evidence would be an instruction*. Is that correct?

BARR: Yes.

KLOBUCHAR: Okay, and um, so what if the president told the witness not to cooperate with an investigation, or hinted at a pardon?

BARR: You know, I, I’d have to know the specific, I’d have to know the specific facts.

(4:03) KLOBUCHAR: And you wrote on page one that if a president knowingly destroys or alters evidence, that would be obstruction.

BARR: Yes.

(4:13) KLOBUCHAR: Okay. Um, so what if a president drafted a misleading statement to conceal the purpose of a meeting. Would that be obstruction?

BARR: Again, you know the, I’d have to know the, I’d have to know the specifics.

KLOBUCHAR: All right.

(* Not clear if she said “instruction” or “obstruction”; she was referring to the discussion obstruction in Barr’s memo.)

So what does this have to do with the shutdown? Regardless of the genesis and distribution of Barr’s memo or his opinion, these forms of obstruction are exactly what the government shutdown accomplishes.

Evidence to be gathered by and from some government resources may be limited by the furlough. IRS staff, for example, may have been called back to handle refunds but are there IRS staff on duty who may respond to subpoenas for tax returns? What of so-called “non-essential” personnel who might handle document requests in other departments? Have furloughed federal employees who are not yet called back indirectly ordered not to cooperate with investigations by virtue of their locked out status?

We already know that Trump avoided creating and processing records of his discussions with Putin, a likely violation of the Presidential Records Act. Has he further destroyed or altered evidence subject to the PRA but prevented staff responsible for handling and recovering destroyed/altered evidence from doing so with the shutdown? (Recall the archivist-records managers who had been taping together Trump’s documents but were fired by second quarter 2018.)

Has the demand for the wall itself, in any statements or writings demanding this wall, been an attempt to conceal the true intent of the shutdown as an act of obstruction? Recall how upset Trump was with Mick Mulvaney when Mulvaney tried to offer a number lower than Trump’s demanded $5.7B and higher than House Democrat’s offered $1.3B; Trump yelled at him in front of members of Congress and told him, “You just fucked it up!

Was it not the wall’s funding but obstruction by shutdown Mulvaney interfered with by trying to offer a means to reopen the government?

If there is any doubt at all about these points, Senate Majority Leader Mitch McConnell is obligated to permit bills through which would end the shutdown or at least extend temporary funding, so that obstruction by shutdown is at an end.

The GOP Senate caucus is likewise obligated to take measures to end the shutdown, including replacement of their Senate Majority Leader if he continues to obstruct government’s operation.

Neither McConnell nor the GOP Senate caucus appear to be acting in good faith about this shutdown. At least Mulvaney made a reasonable, good faith effort before being sworn at and shot down by Trump.

If we thought the GOP Senate was compromised before by Russian-furnished NRA money, they deepen their compromise by refusing to address the obstructive shutdown. Is their “lack of alarm” about the lengthening shutdown due not to their ideology but their resignation to this obstruction?

Why is Mitch McConnell still Senate Majority Leader at this point? Former Senate Majority Leader Trent Lott was asked to step down for supporting a noted racist, and McConnell know this because he was instrumental to Lott’s removal.

Why is the GOP Senate aiding and abetting this obstruction of justice at scale?

#WhyMitch

Congressional switchboard: (202) 224-3121

Photo: Pavan Trikutam via Unsplash

Three Things: The Reanimation of Nixon Among Them

Busy, busy week. Load up on the caffeine or stimulant of choice and let’s get cracking.

~ 3 ~

At 9:00 pm EST Saturday evening I posted:

Any time now I expect someone in the administration will not only say openly that Trump authorized the transition team to discuss dropping the sanctions, but that it isn’t illegal when the president does it.

This morning about 6:00 am EST in Axios:

John Dowd, President Trump’s outside lawyer, outlined to me a new and highly controversial defense/theory in the Russia probe: A president cannot be guilty of obstruction of justice.

The “President cannot obstruct justice because he is the chief law enforcement officer under [the Constitution’s Article II] and has every right to express his view of any case,” Dowd claims. (emphasis mine)

It’s like they dug up Nixon and reanimated him with a chatbot. No wonder the White House is infested with mice and insects.

~ 2 ~

The Tax Scam Bill isn’t yet legislation; we still have at least a couple chances to kill it. It will be up for a vote in the House today, under a Motion to Go to Conference. Call your representatives well before 6:00 p.m. and ask them to vote NO on going to conference. This bill should simply not proceed any further.

Did you know those GOP jackasses in the Senate actually added a tax on retail gift cards? If your employer gives your a grocery store gift card to buy a holiday ham, you could be taxed on it. If you tip your child’s caregiver with a retail gift card they could be taxed on it. What is wrong with these Dickensian jerks?

I’m not the only one who thought of Scrooge when Old Man Orrin Hatch complained about poor children who relied on CHIP health care, saying ““I have a rough time wanting to spend billions and billions and trillions of dollars to help people who won’t help themselves – won’t lift a finger – and expect the federal government to do everything.”

By the way, it was Hatch who added the retail gift card tax. Leave no meal to a poor child untaxed.

Need a little help with that phone call to your rep? See @Celeste_pewter — she’s got you covered.

~ 1 ~

Folks in Nevada need to take a cluestick to Senator Dean Heller after his execrable public townhall this weekend. His security goon squad first threatened a Stage 4 cancer patient, then threw her out along with an elderly woman with a broken arm. At least 10 attendees were ejected.

There’s video.

There are tweets.

There’s no escaping how bad the optics were; Heller wants this Tax Scam Bill for his oligarchic sponsors so badly he’ll step on the sick, injured, and elderly to get it. And then Heller doubled down on his monstrousness when asked if he’d read the Tax Scam Bill, tweeting, “Read it? I helped write it!”

It’s on you, Heller. This is your legacy. You said it, you wrote it.

~ 0 ~

Our celebration of emptywheel’s 10th anniversary continues. Watch for a post by Jim White midday today; Marcy is working on a super-sized post on all things surveillance. Stay tuned!

And if you can pitch in some rodent chow to keep the site’s squirrels on their treadmill, we’d appreciate it greatly.

This is an open thread — your off-topic comments are welcomed in this thread. Let’s kick some ass and take names this Monday morning.

The Day of Sentencing Judgment for Scott Bloch

When we last left Scott Bloch, the former Bush attorney who was the appointed head of the Office of Special counsel (OSC), it was the original date for his sentencing. The court delayed entry of sentence to further investigate the full extent of his criminal conduct. It appeared that, after strong letters like from this blog and attorney Debra Katz, who represents several former OSC employees and good government groups, the court had real concerns about the entirety of Bloch’s vast criminal conduct compared to the sweetheart whitewashing collusive plea the DOJ was giving him.

Today, the court showed it really was not nearly as concerned as had been hoped. Scott Bloch has just been sentenced to one day in jail and two years probation. The single measly day in jail was stated by the court to be due to the “seriousness” of the offense. What a joke. I guess we should just be thrilled that, unlike James Clapper, Bloch was prosecuted at all. Still, it is a grossly soft sentence considering the entirety of Bloch’s admitted criminal conduct.

Just so the record is complete after all these years, here are the significant documents documents lodged with the court between the first sentencing date and today:

1) Bloch’s supplemental sentencing memorandum

2) DOJ’s supplemental sentencing memorandum

3) Bundle of additional sentencing letters from Bloch supporters

4) Supplemental sentencing letter from this blog

One last thing should be noted, and that is the sheer and craven hutzpah of the Department of Justice in whitewashing this matter. I refer to their supplemental memorandum (item 2 above), but specifically to footnote 1 therein that baldly claims other members of the public and victims aggrieved by Bloch just don’t have all the secret facts that the government was able to collect. It was truly an amazing thing to see the government saying they had the hidden facts mitigating Bloch’s conduct. Simply astounding and, as stated in the responsive letter to the court (item 4 above), it was unconscionable:

The bald faced hubris of the DOJ in footnote 1 of their “Supplemental Memorandum In Aid Of Sentencing” lodged in docket Number 21 to claim, and rely on, uncharged and unstated evidence and facts to mitigate the sentence of the defendant is far the other side of unconscionable and shocking. Hidden considerations cited by the government, in the face of the shocking record of conduct by defendant Bloch, are an insult to the court, and the citizens and rule of law it is designed to protect. In fact, the recitations of fact by the government itself demonstrates how absurd their protestations for mitigation, much those of Bloch himself in his supplemental sentencing memorandum (Docket Number 22), really are.

The perfidy, and obstruction to the American form of government, by Executive Branch officials upon the function of the Congress is a scourge that cannot be tolerated by the American people or the courts of the United States. After the questions germinated by ODNI Clapper’s testimony, there has been a sudden and welcome bi-partisan return of healthy concern over the conduct of Executive Branch officials in front of Congress.

This court stands at the crossroads on a seminal issue to the Constitutional health of these United States and the health of the separation of powers in our form of government. The problem of disdain for, and duplicity in front of, Congress must be addressed and a precedent set for the future. Mr. Bloch violated the trust and damaged the people and their lawfully elected representatives. Frankly the plea in this case is outrageous and should never be accepted, it is not in the interest of justice. But, if it is to be followed, and sentenced thereon, a precedent should be set and an appropriate sentence handed down for the egregious conduct of Scott Bloch.

If not in the instant case, then where? If not now, then when?

The answer is Article II Executive Branch officials and attorneys simply cannot, and will not, be prosecuted for perjury and obstruction of Congress, and neither the Article I Congress, nor the Article III Courts, seems to particularly care that such violation of constitutionally protected powers and prerogative is occurring habitually. It is a sad comment.

Scott Bloch Sentencing Blocked By The Court

I have been a bit busy lately, so this is a tad late; but I should probably give the update on the Scott Bloch criminal sentencing that was scheduled for 9:30 am Monday morning May 13 in DC District Court in front of Judge Robert L. Wilkins. As you will recall, this blog has covered the Bloch case closely over the years due to its symbolism for government accountability and/or lack thereof.

The most recent coverage was immediately prior to the sentencing, and was in the form of a comprehensive post entitled “Former Bush Special Counsel Scott Bloch Bullies Journalists and Threatens 1st Amend Speech Before Criminal Sentencing”. As promised, a copy of said post was mailed to the court and it was entered on the docket. Several others sent letters as well, such as here for example.

The upshot is that Judge Robert L. Wilkins heard the voices. In what I can only describe as truly commendable, yet still refreshingly surprising, this is what happened at sentencing as described by Ann Marimow of the Washington Post:

The legal odyssey of Scott J. Bloch, the former head of the federal agency that protects government whistleblowers, continued Monday when a federal judge balked at proceeding with sentencing because of what he called an “improperly sanitized version of events.”
….
But U.S. District Judge Robert L. Wilkins chastised attorneys on both sides for presenting a narrow account of Bloch’s actions that the judge said doesn’t fully describe the conduct at issue. Wilkins said he was uncomfortable issuing a sentence until a fuller description of Bloch’s actions was in the record.

Sentencing documents, Wilkins noted, make little mention of Bloch’s previous deal with the U.S. Attorney’s Office in which he pleaded guilty to a misdemeanor charge of contempt of Congress.
….
In the current case, federal guidelines call for a sentence from zero to six months in prison. But prosecutors have agreed not to oppose a period of probation and want Bloch to pay a $5,000 fine and complete 200 hours of community service.

Wilkins suggested Monday, however, that he intends to consider Bloch’s conduct related to the previous case, which could expose him to jail time. The judge pointed specifically to Bloch’s position as a presidential appointee, a “position of public trust, operating with little oversight.”

Bloch’s sentencing hearing has been rescheduled for June 24.

We will try to do another update on status again before the next sentencing date on June 24. But, for now, hat’s off to Judge Robert L. Wilkins for hearing the voices of the public who object to the whitewash that was being applied to the misconduct in high office by Scott Bloch. Maybe there is hope for this Rule of Law thing after all.

Former Bush Special Counsel Scott Bloch Bullies Journalists and Threatens 1st Amend Speech Before Criminal Sentencing

CryingJusticeWhen this blog last substantively left the continuing saga of Bush/Cheney Special Counsel Scott Bloch, it was with these words:

So, between August 2, 2011 and December 21, 2012, a period of nearly a year and a half’s time, the DOJ has done nothing whatsoever in furtherance of prosecuting Scott Bloch. Until today. And the vaunted Department of Justice has, on the Friday before the Christmas holiday…..filed a Motion to Dismiss. However, that is not the end of the story, as clause 5 of the Motion to Dismiss contains this language:

Concurrent with this Motion to Dismiss, the government is filing a new information.

Well, not quite concurrent, as the Motion to Dismiss was filed mid to late morning, and the new information was just now made public. The new charge, a misdemeanor, is pursuant to 18 USC 1361 Depredation of Government Property or Contracts. The factual basis is made out from the “seven level wiping” Bloch caused to be done. Here is the new information just filed.

Yes, that is the “Reader’s Digest” version of how Scott Bloch came to be where he is now….awaiting sentencing in the United States District Court for the District of Columbia. For a crime that barely even references, much less is indicative of, the actual acts he committed against the United States Government, and the citizens it represents.

But, Bloch is indeed now facing sentencing on the latest cushy plea he has been afforded by the Department of Justice; sentencing scheduled for Monday May 13, 2013, less than one week from today. Here is Defendant Bloch’s sentencing memorandum, and here is the curiously collusive memorandum from the DOJ, who simply cannot stand for any Article II Executive Branch attorney being sent to jail/prison for lying to Congress because, seriously, many more might be in jeopardy if that was the case and precedent.

So, what is Mr. Scott Bloch doing? Taking his medicine quietly for having been given the gift plea by the DOJ to a misdemeanor after he actually committed such acts that appear by all legal rights to warrant felony allegations? Allegations as were described the last time Bloch was tried to be handed such a gift horse plea by the DOJ as:

…felony crimes Bloch could have been, and should have been, charged with are staggering; including obstruction of justice, false statements, perjury, willful destruction of government property and Federal Records Act violations. But Defendant Bloch made a deal to plead to one little misdemeanor with the guarantee he would be considered under the most favorable sentencing guideline conditions imaginable.

Nothing has changed; not a single underlying fact has changed in the least, and Bloch still stands Read more