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“Stand Back and Stand By:” John Pierce’s Plan for a Public Authority or — More Likely — a MyPillow Defense

In a Friday hearing in the omnibus Oath Keeper conspiracy case, John Pierce — who only just filed an appearance for Kenneth Harrelson in that case — warned that he’s going to mount a very vigorous public authority defense. He claimed that such a defense would require reviewing all video.

Pierce is a Harvard-trained civil litigator involved in the more conspiratorial side of Trumpist politics. Last year he filed a lawsuit for Carter Page that didn’t understand who (Rod Rosenstein, among others) needed to be included to make the suit hold up, much less very basic things about FISA. As someone who’d like to see the unprecedented example of Page amount to something, I find that lawsuit a horrible missed opportunity.

John Pierce got fired by Kyle Rittenhouse

Of late, he has made news for a number of controversial steps purportedly in defense of accused Kenosha killer Kyle Rittenhouse. A recent New Yorker article on Rittenhouse’s case, for example, described that Pierce got the Rittenhouses to agree to a wildly inflated hourly rate and sat on donations in support of Rittenhouse’s bail for a month after those funds had been raised. Then, when Kyle’s mother Wendy tried to get Pierce to turn over money raised for their living expenses, he instead claimed they owed him.

Pierce met with the Rittenhouses on the night of August 27th. Pierce Bainbridge drew up an agreement calling for a retainer of a hundred thousand dollars and an hourly billing rate of twelve hundred and seventy-five dollars—more than twice the average partner billing rate at top U.S. firms. Pierce would be paid through #FightBack, which, soliciting donations through its Web site, called the charges against Rittenhouse “a reactionary rush to appease the divisive, destructive forces currently roiling this country.”

Wisconsin’s ethics laws restrict pretrial publicity, but Pierce began making media appearances on Rittenhouse’s behalf. He called Kenosha a “war zone” and claimed that a “mob” had been “relentlessly hunting him as prey.” He explicitly associated Rittenhouse with the militia movement, tweeting, “The unorganized ‘militia of the United States consists of all able-bodied males at least seventeen years of age,’ ” and “Kyle was a Minuteman protecting his community when the government would not.”

[snip]

In mid-November, Wood reported that Mike Lindell, the C.E.O. of MyPillow, had “committed $50K to Kyle Rittenhouse Defense Fund.” Lindell says that he thought his donation was going toward fighting “election fraud.” The actor Ricky Schroder contributed a hundred and fifty thousand dollars. Pierce finally paid Rittenhouse’s bail, with a check from Pierce Bainbridge, on November 20th—well over a month after #FightBack’s Web site indicated that the foundation had the necessary funds.

[snip]

Wendy said of the Rittenhouses’ decision to break with Pierce, “Kyle was John’s ticket out of debt.” She was pressing Pierce to return forty thousand dollars in donated living expenses that she believed belonged to the family, and told me that Pierce had refused: “He said we owed him millions—he ‘freed Kyle.’ ”

Possibly in response to the New Yorker piece, Pierce has been tweeting what might be veiled threats to breach attorney-client privilege.

Pierce assembles a collection of characters for his screen play

Even as that has been going on, however, Pierce has been convincing one after another January 6 defendant to let him represent them. The following list is organized by the date — in bold — when Pierce first filed an appearance for that defendant (I’ll probably update this list as Pierce adds more defendants):

1. Christopher Worrell: Christopher Worrell is a Proud Boy from Florida arrested on March 12. Worrell traveled to DC for the December MAGA protest, where he engaged in confrontational behavior targeting a journalist. He and his girlfriend traveled to DC for January 6 in vans full of Proud Boys paid for by someone else. He was filmed spraying pepper spray at cops during a key confrontation before the police line broke down and the initial assault surged past. Worrell was originally charged for obstruction and trespassing, but later indicted for assault and civil disorder and trespassing (dropping the obstruction charge). He was deemed a danger, in part, because of a 2009 arrest for impersonating a cop involving “intimidating conduct towards a total stranger in service of taking the law into his own hands.” Pierce first attempted to file a notice of appearance on March 18. Robert Jenkins (along with John Kelly, from Pierce’s firm) is co-counsel on the case. Since Pierce joined the team, he has indulged Worrell’s claims that he should not be punished for assaulting a cop, but neither that indulgence nor a focus on Worrell’s non-Hodgkins lymphoma nor an appeal succeeded at winning his client release from pre-trial detention.

2. William Pepe: William Pepe is a Proud Boy charged in a conspiracy with Dominic Pezzola and Matthew Greene for breaching the initial lines of defense and, ultimately, the first broken window of the Capitol. Pepe was originally arrested on January 11, though is out on bail. Pierce joined Robert Jenkins on William Pepe’s defense team on March 25. By April, Pierce was planning on filing some non-frivolous motions (to sever his case from Pezzola, to move it out of DC, and to dismiss the obstruction count).

3. Paul Rae: Rae is another of Pierce’s Proud Boy defendants and his initial complaint suggested Rae could have been (and could still be) added to the conspiracy indictments against the Proud Boys already charged. He was indicted along with Arthur Jackman for obstruction and trespassing; both tailed Joe Biggs on January 6, entering the building from the East side after the initial breach. Pierce filed to join Robert Jenkins in defending Rae on March 30.

4. Stephanie Baez: On June 9, Pierce filed his appearance for Stephanie Baez. Pierce’s interest in Baez’ case makes a lot of sense. Baez, who was arrested on trespassing charges on June 4, seems to have treated the January 6 insurrection as an opportunity to shop for her own Proud Boy boyfriend. Plus, she’s attractive, unrepentant, and willing to claim there was no violence on January 6. Baez has not yet been formally charged (though that should happen any day).

5. Victoria White: If I were prosecutors, I’d be taking a closer look at White to try to figure out why John Pierce decided to represent her (if it’s not already clear to them; given the timing, it may simply be because he believed he needed a few women defendants to tell the story he wants to tell). White was detained briefly on January 6 then released, and then arrested on April 8 on civil disorder and trespassing charges. At one point on January 6, she was filmed trying to dissuade other rioters from breaking windows, but then she was filmed close to and then in the Tunnel cheering on some of the worst assault. Pierce filed his notice of appearance in White’s case on June 10.

Ryan Samsel: After consulting with Joe Biggs, Ryan Samsel kicked off the riot by approaching the first barriers and — with several other defendants — knocking over a female cop, giving her a concussion. He was arrested on January 30 and is still being held on his original complaint charging him with assault and civil disorder. He’s obviously a key piece to the investigation and for some time it appeared the government might have been trying to persuade him that the way to minimize his significant exposure (he has an extensive criminal record) would be to cooperate against people like Biggs. But then he was brutally assaulted in jail. Detainees have claimed a guard did it, and given that Samsel injured a cop, that wouldn’t be unheard of. But Samsel seemed to say in a recent hearing that the FBI had concluded it was another detainee. In any case, the assault set off a feeding frenzy among trial attorneys seeking to get a piece of what they imagine will be a huge lawsuit against BOP (as it should be if a guard really did assault him). Samsel is now focused on getting medical care for eye and arm injuries arising from the assault. And if a guard did do this, then it would be a key part of any story Pierce wanted to tell. After that feeding frenzy passed, Pierce filed an appearance on June 14, with Magistrate Judge Zia Faruqui releasing his prior counsel on June 25. Samsel is a perfect defendant for Pierce, though (like Rittenhouse), the man badly needs a serious defense attorney. Update: On July 27, Samsel informed Magistrate Judge Zia Faruqui that he would be retaining new counsel.

6. James McGrew: McGrew was arrested on May 28 for assault, civil disorder, obstruction, and trespassing, largely for some fighting with cops inside the Rotunda. His arrest documents show no ties to militias, though his arrest affidavit did reference a 2012 booking photo. Pierce filed his appearance to represent McGrew on June 16.

Alan Hostetter: John Pierce filed as Hostetter’s attorney on June 24, not long after Hostetter was indicted with five other Three Percenters in a conspiracy indictment paralleling those charging the Oath Keepers and Proud Boys. Hostetter was also active in Southern California’s anti-mask activist community, a key network of January 6 participants. Hostetter and his defendants spoke more explicitly about bringing arms to the riot, and his co-defendant Russell Taylor spoke at the January 5 rally. On August 3, Hostetter replaced Pierce.

7, 8, 9. On June 30, Pierce filed to represent David Lesperance, and James and Casey Cusick. As I laid out here, the FBI arrested the Cusicks, a father and son that run a church, largely via information obtained from Lesperance, their parishioner. They are separately charged (Lesperance, James Cusick, Casey Cusick), all with just trespassing. The night before the riot, father and son posed in front of the Trump Hotel with a fourth person besides Lesperance (though Lesperance likely took the photo).

10. Kenneth Harrelson: On July 1, Pierce filed a notice of appearance for Harrelson, who was first arrested on March 10. Leading up to January 6, Harrelson played a key role in Oath Keepers’ organizing in Florida, particularly meetings organized on GoToMeeting. On the day of the riot, Kelly Meggs had put him in charge of coordinating with state teams. Harrelson was on the East steps of the Capitol with Jason Dolan during the riot, as if waiting for the door to open and The Stack to arrive; with whom he entered the Capitol. With Meggs, Harrelson moved first towards the Senate, then towards Nancy Pelosi’s office. When the FBI searched his house upon his arrest, they found an AR-15 and a handgun, as well as a go-bag with a semi-automatic handgun and survivalist books, including Ted Kaczynski’s writings. Harrelson attempted to delete a slew of his Signal texts, including a video he sent Meggs showing the breach of the East door. Harrelson had previously been represented by Nina Ginsberg and Jeffrey Zimmerman, who are making quite sure to get removed from Harrelson’s team before Pierce gets too involved.

11. Leo Brent Bozell IV: It was, perhaps, predictable that Pierce would add Bozell to his stable of defendants. “Zeeker” Bozell is the scion of a right wing movement family including his father who has made a killing by attacking the so-called liberal media, and his grandfather, who was a speech writer for Joseph McCarthy. Because Bozell was released on personal recognizance there are details of his actions on January 6 that remain unexplained. But he made it to the Senate chamber, and while there, made efforts to prevent CSPAN cameras from continuing to record the proceedings. He was originally arrested on obstruction and trespassing charges on February 12; his indictment added an abetting the destruction of government property charge, the likes of which have been used to threaten a terrorism enhancement against militia members. Pierce joined Bozell’s defense team (thus far it seems David B. Deitch will remain on the team) on July 6.

12. Nate DeGrave: The night before DeGrave’s quasi co-conspirator Josiah Colt pled guilty, July 13, Pierce filed a notice of appearance for Nate DeGrave. DeGrave helped ensure both the East Door and the Senate door remained open.

14. Nathaniel Tuck: On July 19, Pierce filed a notice of appearance for Nathaniel Tuck, the Florida former cop Proud Boy.

14. Kevin Tuck: On July 20, Pierce filed a notice of appearance for Kevin Tuck, Nathaniel’s father and still an active duty cop when he was charged.

15. Peter Schwartz: On July 26, Pierce filed a notice of appearance for Peter Schwartz, the felon out on COVID-release who maced some cops.

16. Jeramiah Caplinger: On July 26, Pierce filed a notice of appearance for Jeramiah Caplinger, who drove from Michigan and carried a flag on a tree branch through the Capitol.

Deborah Lee: On August 23, Pierce filed a notice of appearance for Deborah Lee, who was arrested on trespass charges months after her friend Michael Rusyn. On September 2, Lee chose to be represented by public defender Cara Halverson.

17. Shane Jenkins: On August 25, Pierce colleague Ryan Marshall showed up at a status hearing for Jenkins and claimed a notice of appearance for Pierce had been filed the night before. In that same hearing, he revealed that Pierce was in a hospital with COVID, even claiming he was on a ventilator and not responsive. The notice of appearance was filed, using Pierce’s electronic signature, on August 30, just as DOJ started sending out notices that all Pierce cases were on hold awaiting signs of life. Jenkins is a felon accused of bringing a tomahawk to the Capitol and participating in the Lower West Tunnel assaults on cops.

As you can see, Pierce has assembled as cast of defendants as if writing a screenplay, with Proud Boys from key breach points, leading members of the other conspiracies, and other movement conservatives. There are just a few more scenes he would need to fill out to not only be able to write his screenplay, but also to be able to get broad discovery from the government.

This feat is all the more interesting given a detail from the New Yorker article: at one point, Pierce seemed to be claiming to represent Enrique Tarrio and part of his “defense” of Rittenhouse was linking the boy to the Proud Boys.

Six days after the Capitol assault, Rittenhouse and his mother flew with Pierce to Miami for three days. The person who picked them up at the airport was Enrique Tarrio—the Proud Boys leader. Tarrio was Pierce’s purported client, and not long after the shootings in Kenosha he had donated a hundred dollars or so to Rittenhouse’s legal-defense fund. They all went to a Cuban restaurant, for lunch.

Enrique Tarrio would be part of any coordinated Florida-based plan in advance of January 6 and if he wanted to, could well bring down whatever conspiracy there was. More likely, though, he’s attempting to protect any larger conspiracy.

A public authority defense claims the defendant thought they had authority to commit a crime

And with his ties to Tarrio, Pierce claims (to think) he’s going to mount a public authority defense. A public authority defense involves claiming that the defendant had reason to believe he had authority to commit the crimes he did. According to the Justice Manual, there are three possible arguments a defendant might make. The first is that the defendant honestly believed they were authorized to do what they did.

First, the defendant may offer evidence that he/she honestly, albeit mistakenly, believed he/she was performing the crimes charged in the indictment in cooperation with the government. More than an affirmative defense, this is a defense strategy relying on a “mistake of fact” to undermine the government’s proof of criminal intent, the mens rea element of the crime. United States v. Baptista-Rodriguez, 17 F.3d 1354, 1363-68 (11th Cir. 1994); United States v. Anderson, 872 F.2d 1508, 1517-18 & n.4 (11th Cir.), cert. denied, 493 U.S. 1004 (1989); United States v. Juan, 776 F.2d 256, 258 (11th Cir. 1985). The defendant must be allowed to offer evidence that negates his/her criminal intent, id., and, if that evidence is admitted, to a jury instruction on the issue of his/her intent, id., and if that evidence is admitted, he is entitled to a jury instruction on the issue of intent. United States v. Abcasis, 45 F.3d 39, 44 (2d Cir. 1995); United States v. Anderson, 872 F.2d at 1517-1518 & n. In Anderson, the Eleventh Circuit approved the district court’s instruction to the jury that the defendants should be found not guilty if the jury had a reasonable doubt whether the defendants acted in good faith under the sincere belief that their activities were exempt from the law.

There are some defendants among Pierce’s stable for whom this might work. But taken as a whole and individually, most allegedly did things (including obstruction or lying to the FBI) that would seem to evince consciousness of guilt.

The second defense works best (and is invoked most often) for people — such as informants or CIA officers — who are sometimes allowed to commit crimes by the Federal government.

The second type of government authority defense is the affirmative defense of public authority, i.e., that the defendant knowingly committed a criminal act but did so in reasonable reliance upon a grant of authority from a government official to engage in illegal activity. This defense may lie, however, only when the government official in question had actual authority, as opposed to merely apparent authority, to empower the defendant to commit the criminal acts with which he is charged. United States v. Anderson, 872 F.2d at 1513-15; United States v. Rosenthal, 793 F.2d 1214, 1236, modified on other grounds, 801 F.2d 378 (11th Cir. 1986), cert. denied, 480 U.S. 919 (1987). The genesis of the “apparent authority” defense was the decision in United States v. Barker, 546 F. 2d 940 (D.C. Cir. 1976). Barker involved defendants who had been recruited to participate in a national security operation led by Howard Hunt, whom the defendants had known before as a CIA agent but who was then working in the White House. In reversing the defendants’ convictions, the appellate court tried to carve out an exception to the mistake of law rule that would allow exoneration of a defendant who relied on authority that was merely apparent, not real. Due perhaps to the unique intent requirement involved in the charges at issue in the Barker case, the courts have generally not followed its “apparent authority” defense. E.g., United States v. Duggan, 743 F.2d 59, 83-84 (2d Cir. 1984); United States v. Rosenthal, 793 F.2d at 1235-36. If the government official lacked actual or real authority, however, the defendant will be deemed to have made a mistake of law, which generally does not excuse criminal conduct. United States v. Anderson, 872 F.2d at 1515; United States v. Rosenthal, 793 F.2d at 1236; United States v. Duggan, 743 F.2d at 83-84. But see discussion on “entrapment by estoppel,” infra.

Often, spooked up defendants try this as a way to launch a graymail defense, to make such broad requests for classified information to push the government to drop its case. Usually, this effort fails.

I could see someone claiming that Trump really did order the defendants to march on the Capitol and assassinate Mike Pence. Some of the defendants’ co-conspirators (especially Harrelson’s) even suggested they expected Trump to invoke the Insurrection Act. But to make that case would require not extensive review of Capitol video, as Pierce says he wants, but review of Trump’s actions, which would seem to be the opposite of what this crowd might want. Indeed, attempting such a defense might allow prosecutors a way to introduce damning information on Trump that wouldn’t help the defense cause.

The final defense is when a defendant claims that a Federal officer misled them into thinking their crime was sanctioned.

The last of the possible government authority defenses is “entrapment by estoppel,” which is somewhat similar to public authority. In the defense of public authority, it is the defendant whose mistake leads to the commission of the crime; with “entrapment by estoppel,” a government official commits an error and, in reliance thereon, the defendant thereby violates the law. United States v. Burrows, 36 F.3d 875, 882 (9th Cir. 1994); United States v. Hedges, 912 F.2d 1397, 1405 (11th Cir. 1990); United States v. Clegg, 846 F.2d 1221, 1222 (9th Cir. 1988); United States v. Tallmadge, 829 F.2d 767, 773-75 (9th Cir. 1987). Such a defense has been recognized as an exception to the mistake of law rule. In Tallmadge, for example, a Federally licensed gun dealer sold a gun to the defendant after informing him that his circumstances fit into an exception to the prohibition against felons owning firearms. After finding that licensed firearms dealers were Federal agents for gathering and dispensing information on the purchase of firearms, the Court held that a buyer has the right to rely on the representations made by them. Id. at 774. See United States v. Duggan, 743 F.2d at 83 (citations omitted); but, to assert such a defense, the defendant bears the burden of proving that he\she was reasonable in believing that his/her conduct was sanctioned by the government. United States v. Lansing, 424 F.2d 225, 226-27 (9th Cir. 1970). See United States v . Burrows, 36 F.3d at 882 (citing United States v. Lansing, 424 F.2d at 225-27).

This is an extreme form of what defendants have already argued. And in fact, Chief Judge Beryl Howell already addressed this defense in denying Billy Chrestman (a Proud Boy from whose cell Pierce doesn’t yet have a representative) bail. After reviewing the precedents where such a defense had been successful, Howell then explained why it wouldn’t work here. First, because where it has worked, it involved a narrow misstatement of the law that led defendants to unknowingly break the law, whereas here, defendants would have known they were breaking the law because of the efforts from police to prevent their actions. Howell then suggested that a belief that Trump had authorized this behavior would not have been rational. And she concludes by noting that this defense requires that the person leading the defendant to misunderstand the law must have the authority over such law. But Trump doesn’t have the authority, Howell continued, to authorize an assault on the Constitution itself.

Together, this trilogy of cases gives rise to an entrapment by estoppel defense under the Due Process Clause. That defense, however, is far more restricted than the capacious interpretation suggested by defendant, that “[i]f a federal official directs or permits a citizen to perform an act, the federal government cannot punish that act under the Due Process Clause.” Def.’s Mem. at 7. The few courts of appeals decisions to have addressed the reach of this trilogy of cases beyond their facts have distilled the limitations inherent in the facts of Raley, Cox, and PICCO into a fairly restrictive definition of the entrapment by estoppel defense that sets a high bar for defendants seeking to invoke it. Thus, “[t]o win an entrapment-by-estoppel claim, a defendant criminally prosecuted for an offense must prove (1) that a government agent actively misled him about the state of the law defining the offense; (2) that the government agent was responsible for interpreting, administering, or enforcing the law defining the offense; (3) that the defendant actually relied on the agent’s misleading pronouncement in committing the offense; and (4) that the defendant’s reliance was reasonable in light of the identity of the agent, the point of law misrepresented, and the substance of the misrepresentation.” Cox, 906 F.3d at 1191 (internal quotation marks and citations omitted).

The Court need not dally over the particulars of the defense to observe that, as applied generally to charged offenses arising out of the January 6, 2021 assault on the Capitol, an entrapment by estoppel defense is likely to fail. Central to Raley, Cox, and PICCO is the fact that the government actors in question provided relatively narrow misstatements of the law that bore directly on a defendant’s specific conduct. Each case involved either a misunderstanding of the controlling law or an effort by a government actor to answer to complex or ambiguous legal questions defining the scope of prohibited conduct under a given statute. Though the impact of the misrepresentations in these cases was ultimately to “forgive a breach of the criminal laws,” Cox, 379 U.S. at 588 (Clark, J., concurring in part and dissenting in part), none of the statements made by these actors implicated the potential “waiver of law,” or indeed, any intention to encourage the defendants to circumvent the law, that the Cox majority suggested would fall beyond the reach of the entrapment by estoppel defense, id. at 569. Moreover, in all three cases, the government actors’ statements were made in the specific exercise of the powers lawfully entrusted to them, of examining witnesses at Commission hearings, monitoring the location of demonstrations, and issuing technical regulations under a particular statute, respectively.

In contrast, January 6 defendants asserting the entrapment by estoppel defense could not argue that they were at all uncertain as to whether their conduct ran afoul of the criminal law, given the obvious police barricades, police lines, and police orders restricting entry at the Capitol. Rather, they would contend, as defendant does here, that “[t]he former President gave th[e] permission and privilege to the assembled mob on January 6” to violate the law. Def.’s Mem. at 11. The defense would not be premised, as it was in Raley, Cox, and PICCO, on a defendant’s confusion about the state of the law and a government official’s clarifying, if inaccurate, representations. It would instead rely on the premise that a defendant, though aware that his intended conduct was illegal, acted under the belief President Trump had waived the entire corpus of criminal law as it applied to the mob.

Setting aside the question of whether such a belief was reasonable or rational, as the entrapment by estoppel defense requires, Cox unambiguously forecloses the availability of the defense in cases where a government actor’s statements constitute “a waiver of law” beyond his or her lawful authority. 379 U.S. at 569. Defendant argues that former President Trump’s position on January 6 as “[t]he American head of state” clothed his statements to the mob with authority. Def.’s Mem. at 11. No American President holds the power to sanction unlawful actions because this would make a farce of the rule of law. Just as the Supreme Court made clear in Cox that no Chief of Police could sanction “murder[] or robbery,” 379 U.S. at 569, notwithstanding this position of authority, no President may unilaterally abrogate criminal laws duly enacted by Congress as they apply to a subgroup of his most vehement supporters. Accepting that premise, even for the limited purpose of immunizing defendant and others similarly situated from criminal liability, would require this Court to accept that the President may prospectively shield whomever he pleases from prosecution simply by advising them that their conduct is lawful, in dereliction of his constitutional obligation to “take Care that the Laws be faithfully executed.” U.S. Const. art. II, § 3. That proposition is beyond the constitutional pale, and thus beyond the lawful powers of the President.

Even more troubling than the implication that the President can waive statutory law is the suggestion that the President can sanction conduct that strikes at the very heart of the Constitution and thus immunize from criminal liability those who seek to destabilize or even topple the constitutional order. [my emphasis]

In spite of Howell’s warning, we’re bound to see some defense attorneys trying to make this defense anyway. But for various reasons, most of the specific clients that Pierce has collected will have a problem making such claims because of public admissions they’ve already made, specific interactions they had with cops the day of the insurrection, or comments about Trump himself they or their co-conspirators made.

And those problems will grow more acute as the defendants’ co-conspirators continue to enter into cooperation agreements against them.

Or maybe this is a MyPillow defense?

But I’m not sure that Pierce — who, remember, is a civil litigator, not a defense attorney — really intends to mount a public authority defense. His Twitter feed of late suggests he plans, instead, to mount a conspiracy theory defense that the entire thing was a big set-up: the kind of conspiracy theory floated by Tucker Carlson but with the panache of people that Pierce has worked with, like Lin Wood (though even Lin Wood has soured on Pierce).

For example, the other day Pierce asserted that defense attorneys need to see every minute of Capitol Police footage for a week before and after.

And one of his absurd number of Twitter polls suggests he doesn’t believe that January 6 was a Trump inspired [armed] insurrection.

I asked on twitter which he was going to wage, a public authority defense or one based on a claim that this was all informants.

He responded by saying he doesn’t know what the question means.

I asked if he really meant he didn’t know what a public authority defense is, given that he told Judge Mehta he’d be waging one for his clients (or at least Oath Keeper Kenneth Harrelson).

He instead tried to change the subject with an attack on me.

In other words, rather than trying to claim that Trump ordered these people to assault the Capitol, Pierce seems to be suggesting it was all a big attempt to frame Trump and Pierce’s clients.

Don’t get me wrong, a well-planned defense claiming that Trump had authorized all this, one integrating details of what Enrique Tarrio might know about pre-meditation and coordination with Trump and his handlers, might be effective. Certainly, having the kind of broad view into discovery that Pierce is now getting would help. One thing he has done well — with the exception of Lesperance and the Cusicks, if it ever turns into felony charges, as well as Pepe and Samsel, depending on Samsel’s ultimate charges — is pick his clients so as to avoid obvious conflict problems And never forget that there’s a history of right wing terrorists going free based on the kind of screenplays, complete with engaging female characters, that Pierce seems to be planning.

But some of the stuff that Pierce has already done is undermining both of these goals, and the difficulty of juggling actual criminal procedure (as a civil litigator) while trying to write a screenplay could backfire

How Don McGahn Distracted the NYTimes from the Subpoenas Known To Be Problematic

The NYT just published a story that buried incredibly important details about the HPSCI subpoena in paragraphs 18 and 19.

In that case, the leak investigation appeared to have been primarily focused on Michael Bahar, then a staffer on the House Intelligence Committee. People close to Jeff Sessions and Rod J. Rosenstein, the top two Justice Department officials at the time, have said that neither knew that prosecutors had sought data about the accounts of lawmakers for that investigation.

It remains murky whether agents were pursuing a theory that Mr. Bahar had leaked on his own or whether they suspected him of talking to reporters with the approval of the lawmakers. Either way, it appears they were unable to prove their suspicions that he was the source of any unauthorized disclosures; the case has been closed and no charges were brought.

The details back a hypothesis that I and others have raised about the 2018 subpoena that obtained Adam Schiff’s call records: that Schiff wasn’t targeted at all, but instead someone else — here, Michael Bahar — was the target.

That means that the initial subpoena may have been more stupid — not adequately targeted given the scope of the investigation — than scandalous. It also means that the focus should remain on Bill Barr’s renewed focus on those records in 2020, particularly whether or not he used Schiff records that should have been sealed to investigate a key member of Congress.

But that’s not how the NYT is spending its time. Instead, they are spending 17 paragraphs admitting that they have no idea whether a subpoena obtained by an EDVA grand jury for Don McGahn’s records on February 23, 2018 is newsworthy or not.

They report that Apple got the subpoena for McGahn, implying but not reporting clearly that all Apple provided was subscriber information.

Apple told Donald F. McGahn II, the White House counsel to former President Donald J. Trump, last month that the Justice Department had subpoenaed information about an account that belonged to him in February 2018, and that the government barred the company from telling him at the time, according to two people briefed on the matter.

Mr. McGahn’s wife received a similar notice from Apple, said one of the people, who spoke on the condition of anonymity to discuss a sensitive matter.

It is not clear what F.B.I. agents were scrutinizing, nor whether Mr. McGahn was their specific focus. In investigations, agents sometimes compile a large list of phone numbers and email addresses that were in contact with a subject, and seek to identify all those people by using subpoenas to communications companies for any account information like names, computer addresses and credit card numbers associated with them.

They assume, with no evidence, that the subpoena was obtained because McGahn was Trump’s White House counsel.

Still, the disclosure that agents secretly collected data of a sitting White House counsel is striking as it comes amid a political backlash to revelations about Trump-era seizures of data of reporters and Democrats in Congress for leak investigations. The president’s top lawyer is also a chief point of contact between the White House and the Justice Department.

They then go tick off one after another possible explanation:

  • The Manafort tax investigation, which was conducted in DC, and was completed in, and therefore would have been disclosed in, 2018
  • A tirade Trump launched about McGahn involving a potential leak that would have been investigated in DC
  • The totally unrelated HPSCI subpoena, which also was investigated in DC

They don’t consider a much more likely explanation, especially since Mueller is known to have identified at least three SuperPACs that were coordinating with the Trump campaign, including at least two that were headquartered in VA, but did not pursue charges relating to potential illegal coordination himself. That possibility is that prosecutors were appropriately investigating why the former FEC chairman was letting Trump’s 2016 campaign coordinate with so many supposedly independent PACs, particularly given his knowledge that Trump and Michael Cohen had been investigated for campaign finance laws in 2011, before then FEC Chair Don McGahn bailed them out for it. There’s no evidence Mueller’s investigators asked McGahn about this, even though Roger Stone’s coordination with Steve Bannon and Rick Gates was a subject of considerable interest to Mueller (in part because it implicated the Mercers).

That’s just one possible explanation, but unlike all the speculation included in the NYT story not focusing on Barr’s resuscitation of the HPSCI leak, might actually involve a grand jury in VA.

Until there’s some sense of what this subpoena was, there’s zero reason to assume it’s newsworthy or in any way focused on something McGahn had done as White House Counsel.

One of the only pieces of genuine “news” that came out of McGahn’s testimony the other day is he confessed to being a source for a story that was obviously sourced to someone close to him that nevertheless claimed he, personally, had not responded to requests for comment. “McGahn did not respond to requests for comment.” The man knows how to make journalists run around like puppies chasing his shiny objects.

And what the NYT just did was take their focus away from subpoenas there’s good reason to believe are newsworthy to instead speculate wildly about one that may not be.

“Target:” A Vocabulary Lesson for Adam Schiff

Most of the people in top DOJ positions under Trump have issued statements claiming they did not know of any subpoena “targeting” Adam Schiff.

Billy Barr told Politico that “while he was Attorney General,” he was not aware of any congressperson’s records, “being sought” “in a leak case.”

Barr said that while he was attorney general, he was “not aware of any congressman’s records being sought in a leak case.” He added that Trump never encouraged him to zero in on the Democratic lawmakers who reportedly became targets of the former president’s push to unmask leakers of classified information.

Trump “was not aware of who we were looking at in any of the cases,” Barr said. “I never discussed the leak cases with Trump. He didn’t really ask me any of the specifics.”

That in no way serves as a denial that he’s aware of the previously collected congressperson’s records being used in an investigation, possibly one not defined as a leak case. Given that the records in question were collected over a year before he became Attorney General, it is, frankly, not a denial in the least.

WaPo includes purported denials from all three potential Attorneys General.

In February 2018, Jeff Sessions was attorney general, though a person familiar with the matter said he has told people he did not recall approving a subpoena for lawmakers’ data in a leak case. Sessions was recused from many Russia-related matters, including special counsel Robert S. Mueller III’s investigation of the Kremlin’s interference in the 2016 election. A person close to Rod J. Rosenstein, Sessions’s deputy attorney general, said he, too, has told people he did not recall hearing about the subpoena until news of it broke publicly.

Two other people said William P. Barr — Trump’s second attorney general — also has told people he did not remember being informed of any subpoenas for lawmakers’ data during his time leading the department.

Barr says he does not remember being informed of “subpoenas for lawmakers’ data.” Jeff Sessions, who may have been recused from the investigation in question (though I’m virtually certain the recusal is not as broad as it is being treated), says “he did not recall approving a subpoena for lawmakers’ leak data.” And Rod Rosenstein, the leak hawk who served as Attorney General for Russia related investigations, says “he did not recall hearing about the subpoena” until it was just revealed.

Every single one of these denials is premised on this being a subpoena for Members of Congress. These denials are denials about targeting Members of Congress.

But Apple’s description of what happened makes it virtually certain none of these denials are relevant to the subpoena in question.

On Feb. 6, 2018, Apple received a grand jury subpoena for the names and phone records connected to 109 email addresses and phone numbers. It was one of the more than 250 data requests that the company received on average from U.S. law enforcement each week at the time. An Apple paralegal complied and provided the information.

[snip]

Without knowing it, Apple said, it had handed over the data of congressional staff members, their families and at least two members of Congress, including Representative Adam B. Schiff of California, then the House Intelligence Committee’s top Democrat and now its chairman. It turned out the subpoena was part of a wide-ranging investigation by the Trump administration into leaks of classified information.

Apple was asked for the names and toll records connected with 109 accounts. That means that investigators didn’t know — or could claim not to know — whose records they were collecting, and didn’t discover until they got the subpoena returns that Adam Schiff, Eric Swalwell, and a child with no conceivable access to classified information had been included. Chances are good that none of these people were the target. Chances are good that a staffer was the target — perhaps the one for whose records Microsoft was subpoenaed in 2017. This sounds like a Community of Interest subpoena — something that gets the calling circle of a target. It was a key part of Stellar Wind and the phone dragnet that Adam Schiff championed over and over again, a request that shows (in this case) two hops removed from a target to figure out whom he called and whom those people called.

The danger of using such requests in leak investigations has been known since a 2010 IG Report revealed that a journalist’s records had been collected as part of a community of interest grand jury subpoena. One plausible explanation for what happened in that instance is that the government targeted a known source for Stellar Wind — perhaps Thomas Tamm — knowing full well that one of the journalists on the story had been in contact with him. By getting two hops of records, though, the known contact with the journalist would (and did) return all the journalists’ contacts as well. The journalist in that case wasn’t the “target” but he may as well have been.

Still, as the phone dragnet championed by Adam Schiff reveals, the government never gave up their interest in such two-hop subpoenas.

All of the descriptions of what happened are consistent with this explanation. It would explain why:

  • Apple didn’t know the identity of the account holders but returned both the identity and the call records in response to the subpoena
  • Apple is now limiting the number of records they’ll return with one subpoena
  • Sessions, Rosenstein, and Barr are all denying knowing that Members of Congress were “targeted”

What it doesn’t explain — though no one has been asked to explain — whether investigators on this case alerted their superiors that they had ended up subpoenaing Adam Schiff’s records, whether or not they [claim they] intended to. Oops, boss, I just subpoenaed the Ranking Member of HPSCI, what do I do now?

In the case of the journalist whose records were seized in a community of interest subpoena in 2006, after it was discovered the FBI sealed the records and they were purged from at least some of the FBI’s investigative databases. That’s what should have happened after a prosecutor discovered they had obtained a Member of Congress’ call records unintentionally: the records should have been sealed.

But by description, that didn’t happen here. Barr never denied having focused on Members of Congress when he resuscitated his investigation in 2020 (nor has he said for sure that it remained a “leak” investigation rather than a “why does this person hate Trump” investigation, like so many others of his investigations. Barr denied telling Trump about it. But he didn’t deny that Members of Congress were investigated in 2020.

That’s why Adam Schiff’s reassurances that Section 702 of FISA doesn’t “target” Americans have always been meaningless. Because once FBI ingests the records, they can go back to those records years later, in an entirely different investigation. And no one has denied such a thing happened here.

Update: Fixed the description of Barr’s denial to WaPo.

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.

DOJ Decides Leaked, Inaccurate DOJ IG Materials Are Awful

The NYT has a story–on which Michael Shear, who is home in quarantine with his spouse after catching COVID in the White House’s superspreader cluster, has the lead byline–on DOJ’s complicit role in separating children from their parents.

It describes how five border-state US Attorneys tried to avoid imposing the draconian policies masterminded by Stephen Miller (who, like Shear, got infected in Trump’s super-spreader event). But those US Attorneys were overruled by Jeff Sessions and Rod Rosenstein. Those findings appear in a draft DOJ IG Report, which has been sent to DOJ for comment, but not yet published.

The five U.S. attorneys along the border with Mexico, including three appointed by President Trump, recoiled in May 2018 against an order to prosecute all undocumented immigrants even if it meant separating children from their parents. They told top Justice Department officials they were “deeply concerned” about the children’s welfare.

But the attorney general at the time, Jeff Sessions, made it clear what Mr. Trump wanted on a conference call later that afternoon, according to a two-year inquiry by the Justice Department’s inspector general into Mr. Trump’s “zero tolerance” family separation policy.

“We need to take away children,” Mr. Sessions told the prosecutors, according to participants’ notes. One added in shorthand: “If care about kids, don’t bring them in. Won’t give amnesty to people with kids.”

Rod J. Rosenstein, then the deputy attorney general, went even further in a second call about a week later, telling the five prosecutors that it did not matter how young the children were. He said that government lawyers should not have refused to prosecute two cases simply because the children were barely more than infants.

Passages of the report citing John Bash, who recently resigned his position as US Attorney for WD TX only to be replaced by a Billy Barr flunky, are quoted twice.

“Those two cases should not have been declined,” John Bash, the departing U.S. attorney in western Texas, wrote to his staff immediately after the call. Mr. Bash had declined the cases, but Mr. Rosenstein “instructed that, per the A.G.’s policy, we should NOT be categorically declining immigration prosecutions of adults in family units because of the age of a child.”

[snip]

In a briefing two days after Christmas in 2017, top Justice Department officials asked Mr. Bash for statistics from the pilot program, conducted by his predecessor, that could be used to develop “nationwide prosecution guidelines.” Mr. Bash, a former White House adviser, did not receive a follow-up request for the information. Thinking that the idea had been abandoned, he did not provide it.

And there’s at least one other prosecutor quoted — revealing that the no-tolerance policy targeting children let some far more serious criminals go free — who could be him.

Border Patrol officers missed serious felony cases because they were stretched too thin by the zero-tolerance policy requiring them to detain and prosecute all of the misdemeanor illegal entry cases. One Texas prosecutor warned top Justice Department officials in 2018 that “sex offenders were released” as a result.

The article itself is based off a draft copy of the report and interviews with three anonymous officials.

This article is based on a review of the 86-page draft report and interviews with three government officials who read it in recent months and described its conclusions and many of the details in it.

Bash should not have had access to this entire report to review his own role in it. Past practice would have suggested he get just those passages that pertain to him directly (though this report appears to cover his time both at Main DOJ and as a US Attorney). But he would have access to the passages that quote him directly.

The article is most amusing, however, for the response from DOJ, which complains about an inaccurate DOJ IG Report and improper leaks.

Alexa Vance, a spokeswoman for the Justice Department, disputed the draft report and said the Homeland Security Department referred cases for prosecution.

“The draft report relied on for this article contains numerous factual errors and inaccuracies,” she said. “While D.O.J. is responsible for the prosecutions of defendants, it had no role in tracking or providing custodial care to the children of defendants. Finally, both the timing and misleading content of this leak raise troubling questions about the motivations of those responsible for it.”

As I have laid out, the DOJ IG Report on Carter Page has numerous factual errors, just some of which they’ve corrected. The central complaint in the parallel Lisa Page and Peter Strzok Privacy Act lawsuits about the release of their texts is that those were released improperly, both as to timing and legality, and led to misleading interpretations of what the texts mean. Both of those lawsuits implicate a sworn declaration made by Rod Rosenstein (who is badly implicated by this report and who issued a statement to the NYT, suggesting he could be one of the anonymous sources as well). The Rosenstein statement in the Page and Strzok lawsuits will test how credible his claims are about his own actions in response to illegal requests from the President.

In other words, the entire article is thick with irony and revenge. And it will surely focus more scrutiny on the denials that DOJ issues once it is released after the election.

But none of that helps the infants who got separated from their parents.

“The Buck Stops at the Top:” In January, Bill Barr’s DOJ Decided the Correct Decision Was to Send Mike Flynn to Prison

I’d like to make one more point about Billy Barr’s rant last night. Over and over again, Barr suggested that line prosecutors have been making hyper-aggressive decisions that the Department of Justice cannot answer for and that his involvement simply amounts to ensuring that the decisions DOJ makes are ones he’s willing to take responsibility for.

Indeed, aside from the importance of not fully decoupling law enforcement from the constraining and moderating forces of politics, devolving all authority down to the most junior officials does not even make sense as a matter of basic management.  Name one successful organization where the lowest level employees’ decisions are deemed sacrosanct.  There aren’t any.  Letting the most junior members set the agenda might be a good philosophy for a Montessori preschool, but it’s no way to run a federal agency.  Good leaders at the Justice Department—as at any organization—need to trust and support their subordinates.  But that does not mean blindly deferring to whatever those subordinates want to do.

This is what Presidents, the Congress, and the public expect.  When something goes wrong at the Department of Justice, the buck stops at the top.  28 U.S.C. § 509 could not be plainer:  “All functions of other officers of the Department of Justice and all functions of agencies and employees of the Department of Justice are vested in the Attorney General.”

And because I am ultimately accountable for every decision the Department makes, I have an obligation to ensure we make the correct ones.  The Attorney General, the Assistant Attorneys General, and the U.S. Attorneys are not figureheads selected for their good looks and profound eloquence.

They are supervisors.  Their job is to supervise.   Anything less is an abdication.

To the extent Barr is talking about the Mueller investigation, every single prosecutorial decision was reviewed by Acting Attorney General Rod Rosenstein. For those decisions, then, Barr’s not actually talking about decisions made by line prosecutors. He’s talking about decisions overseen by someone vested, like him, with all the authority of DOJ.

For precisely the reason Barr lays out — that DOJ must be able to answer for things DOJ does — it’s highly unusual for DOJ to flip-flop on prosecutorial decisions that past Attorneys General have approved.

But with one action in the Mike Flynn prosecution — possibly one he thought of when he invoked probation sentences in one of his last paragraphs — Barr’s interventions into the cases of Donald Trump’s flunkies is far worse than that.

In short, it is important for prosecutors at the Department of Justice to understand that their mission — above all others — is to do justice.  That means following the letter of the law, and the spirit of fairness.  Sometimes that will mean investing months or years in an investigation and then concluding it without criminal charges.  Other times it will mean aggressively prosecuting a person through trial and then recommending a lenient sentence, perhaps even one with no incarceration.

In moving to dismiss Flynn’s prosecution, Barr was overriding a decision he himself had approved of. In January, DOJ called for prison time for Flynn, citing the materiality of his lies and his abuse of trust.

The defendant’s offense is serious, his characteristics and history present aggravating circumstances, and a sentence reflecting those factors is necessary to deter future criminal conduct. Similarly situated defendants have received terms of imprisonment.

Public office is a public trust. The defendant made multiple, material and false statements and omissions, to several DOJ entities, while serving as the President’s National Security Advisor and a senior member of the Presidential Transition Team. As the government represented to the Court at the initial sentencing hearing, the defendant’s offense was serious. See Gov’t Sent’g Mem. at 2; 12/18/2018 Hearing Tr. at 32 (the Court explaining that “[t]his crime is very serious”).

The integrity of our criminal justice depends on witnesses telling the truth. That is precisely why providing false statements to the government is a crime. As the Supreme Court has noted:

In this constitutional process of securing a witness’ testimony, perjury simply has no place whatsoever. Perjured testimony is an obvious and flagrant affront to the basic concepts of judicial proceedings. Effective restraints against this type of egregious offense are therefore imperative. The power of subpoena, broad as it is, and the power of contempt for refusing to answer, drastic as that is — and even the solemnity of the oath — cannot insure truthful answers. Hence, Congress has made the giving of false answers a criminal act punishable by severe penalties; in no other way can criminal conduct be flushed into the open where the law can deal with it.

United States v. Mandujano, 425 U.S. 564, 576 (1975); see also Nix v. Whiteside, 457 U.S. 157, 185 (1986) (“[t]his Court long ago noted: ‘All perjured relevant testimony is at war with justice, since it may produce a judgment not resting on truth.’”) (quoting In re Michael, 326 U.S. 224, 227 (1945)). All persons carry that solemn obligation to tell the truth, especially to the FBI.

The defendant’s repeated failure to fulfill his obligation to tell the truth merits a sentence within the applicable Guidelines range. As the Court has already found, his false statements to the FBI were material, regardless of the FBI’s knowledge of the substance of any of his conversations with the Russian Ambassador. See Mem. Opinion at 51-52. The topic of sanctions went to the heart of the FBI’s counterintelligence investigation. Any effort to undermine those sanctions could have been evidence of links or coordination between the Trump Campaign and Russia. For similar reasons, the defendant’s false statements in his FARA filings were serious. His false statements and omissions deprived the public and the Trump Administration of the opportunity to learn about the Government of Turkey’s covert efforts to influence policy and opinion, including its efforts to remove a person legally residing in the United States.

The defendant’s conduct was more than just a series of lies; it was an abuse of trust. During the defendant’s pattern of criminal conduct, he was the National Security Advisor to the President of the United States, the former Director of the Defense Intelligence Agency, and a retired U.S. Army Lieutenant General. He held a security clearance with access to the government’s most sensitive information. The only reason the Russian Ambassador contacted the defendant about the sanctions is because the defendant was the incoming National Security Advisor, and thus would soon wield influence and control over the United States’ foreign policy. That is the same reason the defendant’s fledgling company was paid over $500,000 to work on issues for Turkey. The defendant monetized his power and influence over our government, and lied to mask it. When the FBI and DOJ needed information that only the defendant could provide, because of that power and influence, he denied them that information. And so an official tasked with protecting our national security, instead compromised it.

This was no decision made by rogue line prosecutors, Brandon Van Grack and Jocelyn Ballantine. In December, Jessie Liu signed a request for an extension so that the “multiple individuals and entities” that had to approve the new sentencing recommendation could do so.

There are multiple individuals and entities who must review and approve the government’s submission, including any changes from the government’s prior sentencing memorandum and its specific sentencing recommendations.

And then again in January, Jessie Liu got an extension so the “multiple individuals and entities” who had to review the sentencing memo could do so.

As the government represented in its initial motion, there are multiple individuals and entities who must review and approve the government’s submission, including any changes from the government’s prior sentencing memorandum and its specific sentencing recommendations. The government has worked assiduously over the holidays to complete this task, but we find that we require an additional 24 hours to do so.

Bill Barr says he is responsible for making the correct decision, and his DOJ reviewed the decision to imprison Mike Flynn at length. Taking him at his word, that means Bill Barr believed, in January, knowing all the details that were “new” to Timothy Shea when he wrote his motion to dismiss, but not new to Michael Horowitz and John Durham, who had already reviewed them, that the correct decision was to send Mike Flynn to prison.

It’s bad enough that Barr has repeatedly refused to stand by decisions made by others imbued with the authority of the entire DOJ under 28 U.S.C. § 509.

But Bill Barr won’t even stand by his past decisions.

Bill Barr’s Screed Is About Mike Flynn, Nora Dannehy, and Robert Mueller

Bill Barr delivered a remarkable screed last night at the radical right Hillsdale College. Numerous people have and will unpack both the glaring contradictions and the dangerous assertions in it.

But I want to point out that it is quite obviously about Barr’s attempts to overturn the prosecutions of Trump’s flunkies for covering up their efforts to help Russia interfere in the election.

A big part of it is targeted towards independent counsels (though, tellingly, Barr assails the independent counsel statute that used to be, not the one that left Robert Mueller closely supervised by Rod Rosenstein).

As Justice Scalia observed in perhaps his most admired judicial opinion, his dissent in Morrison v. Olson: “Almost all investigative and prosecutorial decisions—including the ultimate decision whether, after a technical violation of the law has been found, prosecution is warranted—involve the balancing of innumerable legal and practical considerations.”

And those considerations do need to be balanced in each and every case.  As Justice Scalia also pointed out, it is nice to say “Fiat justitia, ruat coelum. Let justice be done, though the heavens may fall.”  But it does not comport with reality.  It would do far more harm than good to abandon all perspective and proportion in an attempt to ensure that every technical violation of criminal law by every person is tracked down, investigated, and prosecuted to the Nth degree.

[snip]

This was of course the central problem with the independent-counsel statute that Justice Scalia criticized in Morrison v. Olson.  Indeed, creating an unaccountable headhunter was not some unfortunate byproduct of that statute; it was the stated purpose of that statute.  That was what Justice Scalia meant by his famous line, “this wolf comes as a wolf.”  As he went on to explain:  “How frightening it must be to have your own independent counsel and staff appointed, with nothing else to do but to investigate you until investigation is no longer worthwhile—with whether it is worthwhile not depending upon what such judgments usually hinge on, competing responsibilities.  And to have that counsel and staff decide, with no basis for comparison, whether what you have done is bad enough, willful enough, and provable enough, to warrant an indictment.  How admirable the constitutional system that provides the means to avoid such a distortion.  And how unfortunate the judicial decision that has permitted it.”

Justice Jackson understood this too.  As he explained in his speech:  “If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted.”  Any erosion in prosecutorial detachment is extraordinarily perilous.  For, “it is in this realm—in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself.”

And part of it is a restatement of the arguments Acting Solicitor General Jeff Wall made before the DC Circuit, arguing that even bribery was not reason for a judge to override DOJ’s decisions on prosecutions.

I want to focus today on the power that the Constitution allocates to the Executive, particularly in the area of criminal justice.  The Supreme Court has correctly held that, under Article II of the Constitution, the Executive has virtually unchecked discretion to decide whether to prosecute individuals for suspected federal crimes.  The only significant limitation on that discretion comes from other provisions of the Constitution.  Thus, for example, a United States Attorney could not decide to prosecute only people of a particular race or religion.  But aside from that limitation — which thankfully has remained a true hypothetical at the Department of Justice — the Executive has broad discretion to decide whether to bring criminal prosecutions in particular cases.

And the rest suggests that career prosecutors have been putting targets on the heads of politically prominent people and pursuing them relentlessly.

Once the criminal process starts rolling, it is very difficult to slow it down or knock it off course.  And that means federal prosecutors possess tremendous power — power that is necessary to enforce our laws and punish wrongdoing, but power that, like any power, carries inherent potential for abuse or misuse.

[snip]

Line prosecutors, by contrast, are generally part of the permanent bureaucracy.  They do not have the political legitimacy to be the public face of tough decisions and they lack the political buy-in necessary to publicly defend those decisions.  Nor can the public and its representatives hold civil servants accountable in the same way as appointed officials.  Indeed, the public’s only tool to hold the government accountable is an election — and the bureaucracy is neither elected nor easily replaced by those who are.

[snip]

We want our prosecutors to be aggressive and tenacious in their pursuit of justice, but we also want to ensure that justice is ultimately administered dispassionately.

We are all human.  Like any person, a prosecutor can become overly invested in a particular goal.  Prosecutors who devote months or years of their lives to investigating a particular target may become deeply invested in their case and assured of the rightness of their cause.

When a prosecution becomes “your prosecution”—particularly if the investigation is highly public, or has been acrimonious, or if you are confident early on that the target committed serious crimes—there is always a temptation to will a prosecution into existence even when the facts, the law, or the fair-handed administration of justice do not support bringing charges.

[snip]

That is yet another reason that having layers of supervision is so important.  Individual prosecutors can sometimes become headhunters, consumed with taking down their target.  Subjecting their decisions to review by detached supervisors ensures the involvement of dispassionate decision-makers in the process.

And it excuses, in one sentence, calling for probation even after a just prosecution.

Other times it will mean aggressively prosecuting a person through trial and then recommending a lenient sentence, perhaps even one with no incarceration.

Of course, none of this makes sense, and Barr’s own behavior — from removing Senate confirmed US Attorneys to put in people accountable only to him, from seeking prosecution of Democratic officials, and from launching the Durham investigation because he was just certain there was criminal wrong-doing in the Russian investigation — belies his words.

Perhaps it does so in the most basic way. If we hold our Attorney General politically accountable through elections, then we need to make sure elections are fair. We definitely need to make sure that elections are not influenced by hostile foreign powers cooperating with one candidate. The 2016 election wasn’t fair, and Bill Barr is doing his damndest to make sure the voters won’t be able to use the 2020 election to hold him politically accountable for interfering with the punishment of those who worked to cheat.

Because of Barr’s corrupt view on cheating at elections, he ensures that Vladimir Putin has more say over who gets prosecuted than experienced American prosecutors.

Treasury Threatens to Prosecute Reporters Trying to Reveal What Rod Rosenstein and Richard Burr Would Not

WikiLeaks supporters like to claim the May 2019 superseding indictment against Assange uniquely threatens journalism by treating routine journalistic activities — such as requesting sensitive information — as part of a conspiracy to leak.* That’s not entirely true.

As I’ve noted, well before Assange’s superseding indictment, in October 2018, DOJ charged Natalie Sours Edwards — one of several presumed sources for a series of BuzzFeed stories on Suspicious Activities Reports pertaining to those investigated for their ties to Russia — in such a way to treat Jason Leopold as a co-conspirator. Both the complaint justifying her arrest and the indictment include a conspiracy charge that describes how Edwards (and another unindicted co-conspirator) worked with Reporter-1, including one request pertaining to Prevezon captured on Signal.

c. As noted above, the October 2018 Article regarded, among other things, Prevezon and the Investment Company. As recently as September 2018, EDWARDS and Reporter-1 engaged in the following conversation, via the Encrypted Application, in relevant part:

EDWARDS: I am not getting any hits on [the CEO of the Investment Company] do you have any idea what the association is if I had more information i could search in different areas

Reporter-1: If not on his name it would be [the Investment Company]. That’s the only other one [The CEO] is associated with Prevezon Well not associated His company is [the Investment Company]

On January 13, Edwards pled guilty to one charge, the conspiracy one, though without any sign of cooperation.

In fact, Edwards is not the only case charged like this. While he was charged after Assange’s superseding indictment, Henry Frese, a DIA analyst who leaked reports on China to some NBC reporters, was not just charged in a similar conspiracy charge, but was wiretapped to collect evidence implicating the reporters. Because he cooperated, there’s little to prevent Trump’s DOJ from charging the journalists after the election except Trump’s well-established support for an adversarial press.

The way in which DOJ charged Edwards has become newly critical given an announcement Treasury made yesterday, in the wake of reports about how Donald Trump was never investigated for his financial vulnerability to Russia. The unit of Treasury that collects and analyzes Suspicious Activity Reports released a statement threatening “various media outlets” who were planning to publish stories on SARs.

The Financial Crimes Enforcement Network (FinCEN) is aware that various media outlets intend to publish a series of articles based on unlawfully disclosed Suspicious Activity Reports (SARs), as well as other sensitive government documents, from several years ago.  As FinCEN has stated previously, the unauthorized disclosure of SARs is a crime that can impact the national security of the United States, compromise law enforcement investigations, and threaten the safety and security of the institutions and individuals who file such reports.  FinCEN has referred this matter to the U.S. Department of Justice and the U.S. Department of the Treasury’s Office of Inspector General.

BuzzFeed has always treated their source for the Treasury story as a whistleblower, reporting not just a dispute over access to reports for intelligence reports, but also on the damning Russian information that got ignored.

As Edwards has moved closer to sentencing, she developed irreconcilable differences with her original attorneys over what she called a coerced guilty plea. And documents filed in the case provide some explanation why.

While the substance of her appeal is not entirely clear, it’s clear that she claimed legal access to certain documents — presumably SARs — as a whistleblower.

In the appellants “official capacity” as a government employee from 2015-Jan 2020 and as a whistleblower from 2015 to current, the specific documents were used during the Congressional Request Inquires & Letters from 2015-2018, the Office of Special Counsel’s investigations from 2017-2020 and the appellants legal access to the exculpatory material from 2018 to current per 31 C.F.R. § 103 “official disclosures responsive to a request from an appropriate Congressional committee or subcommittees; and prosecutorial disclosures mandated by statute or the Constitution, in connection with the statement of a government witness to be called at trial, the impeachment of a government witness, or as material exculpatory of a criminal defendant.1

As a government employee I could disclose any information in a SAR (including information in supporting documentation) to anyone, up to and including the person who is the subject of the SAR, so long as the disclosure was “necessary to fulfill the official duties of such officer or employee”2 which I did as a whistleblower and as an employee; however, once I medically resigned, 31 C.F.R. § 103 provided the legal exculpatory material as a whistleblower, administrative appellate and criminal defendant to disclose the information in court proceedings. Furthermore, the appellant was adhering to the courts upholding that disclosures must be specific and detailed, not vague allegations of wrongdoing regarding broad or imprecise matters. Linder v. Department of Justice, 122 M.S.P.R. 14, 14 (2014); Keefer v. Department of Agriculture, 82 M.S.P.R. 687, 10 (1999); Padilla v. Department of the Air Force, 55 M.S.P.R. 540, 543– 44 (1992).

After she tried to use the documents in her appeal of a whistleblower complaint, the Treasury Department Inspector General shared them with the prosecutors in her case, who in turn cited them in her presentencing report.

The agency has argued throughout the appellant no longer is an employee of the agency, the pro se appellant agrees. The agency Inspector General should not have been notified of the administrative proceedings of the court because the appellant is not an employee of the agency. There is no statue or policy that gives the agency the right to notify the agency IG of the “procedural motion” prior “to notify the other party”. Regulation 5 C.F.R. § 1201.55(a) does not state “notify Inspector General” rather it does state “to notify the other party”. The pro se appellant argues notifying the Inspector General prior to “the other party” is a violation of the pro se appellants fifth amendment.

[snip]

[T]he agency/agency IG notified the appellants criminal prosecutors of the disclosures in the IRA case. As explained above, the disclosures are permissible per 31 C.F.R. § 103. Due to the agency/agency IG notification to the government prosecutors, the prosecution requested increased sentencing in the sentencing report for the appellant/defendant thus violating the defendants fifth amendment in the criminal proceeding.

Edwards further claimed that the government withheld her original complaint to coerce her to plead guilty.

The Federal Judge found merit and significant concerns in the “letter and substantial documentation” the whistleblower defendant/appellant provided to the court concerning violation of fifth amendment, conflict of interests pertaining to the prosecution/counsel, coercion of the plea deal, criminal referral submitted against agency IG, the letter defendant sent to Attorney General Sessions and Special Counsel Mueller, etc., all elements withheld from the Federal court by both the prosecution and defense counsel.

Edwards has been assigned a new attorney (who may have convinced her not to submit this complaint as part of sentencing), and her sentencing has been pushed out to October.

There’s no way to assess the validity of her complaint or even her representation of what happened with the judge in her case, Gregory Woods. What her complaint shows, however, is that there’s a packet of information she sent to Mueller and Sessions (possibly implicating and/or also sent to Congress), summarizing some reports she believes got ignored.

If those reports show what Rod Rosenstein and Richard Burr worked so hard not to investigate, it might explain why Treasury is threatening legal consequences for reporting on them. And given how DOJ already structured this prosecution, they might well be threatening to treat reporting on the President’s vulnerabilities as a conspiracy to leak SARs protected by statute.


*WikiLeaks supporters also cite the risk of Assange being subjected to US Espionage Act prosecution. While that risk is real, in his case, the most dangerous charges (for leaking the names of US and Coalition informants) would likely be far easier to prosecute under the UK’s Official Secrets Act, which still could happen if he’s not extradited. The actions described in his indictment are arguably more explicitly criminalized in the UK than the US, even if their sentences are not as draconian.

Both Rod Rosenstein and Richard Burr Chose Not to Investigate Trump’s Biggest Counterintelligence Vulnerability

Mike Schmidt has a story describing that Rod Rosenstein led Andrew McCabe to believe that the Deputy Attorney General had tasked Robert Mueller to investigate the counterintelligence risk posed by Trump’s financial vulnerabilities, even though Rosenstein told Mueller to limit his own investigation to criminal matters.

The Justice Department secretly took steps in 2017 to narrow the investigation into Russian election interference and any links to the Trump campaign, according to former law enforcement officials, keeping investigators from completing an examination of President Trump’s decades-long personal and business ties to Russia.

[snip]

Mr. Rosenstein concluded the F.B.I. lacked sufficient reason to conduct an investigation into the president’s links to a foreign adversary. Mr. Rosenstein determined that the investigators were acting too hastily in response to the firing days earlier of James B. Comey as F.B.I. director, and he suspected that the acting bureau director who approved the opening of the inquiry, Andrew G. McCabe, had conflicts of interest.

Mr. Rosenstein never told Mr. McCabe about his decision, leaving the F.B.I. with the impression that the special counsel would take on the investigation into the president as part of his broader duties. Mr. McCabe said in an interview that had he known Mr. Mueller would not continue the inquiry, he would have had the F.B.I. perform it.

“We opened this case in May 2017 because we had information that indicated a national security threat might exist, specifically a counterintelligence threat involving the president and Russia,” Mr. McCabe said. “I expected that issue and issues related to it would be fully examined by the special counsel team. If a decision was made not to investigate those issues, I am surprised and disappointed. I was not aware of that.”

The story is infuriating — except it also raises a number of questions it doesn’t answer, especially coming from a journalist who himself set Trump’s red line of a financial investigation just weeks after these decisions apparently took place.

Schmidt — who has obviously been fed stories by Andrew McCabe in the past — describes Rosenstein telling Mueller not to do a counterintelligence investigation.

But privately, Mr. Rosenstein instructed Mr. Mueller to conduct only a criminal investigation into whether anyone broke the law in connection with Russia’s 2016 election interference, former law enforcement officials said.

Except he doesn’t explain how that — or continued ignorance on the part of the FBI that Rosenstein had bracketed off such an investigation — is consistent with this passage from the Mueller Report:

From its inception, the Office recognized that its investigation could identify foreign intelligence and counterintelligence information relevant to the FBI’s broader national security mission. FBI personnel who assisted the Office established procedures to identify and convey such information to the FBI. The FBI’s Counterintelligence Division met with the Office regularly for that purpose for most of the Office’s tenure. For more than the past year, the FBI also embedded personnel at the Office who did not work on the Special Counsel’s investigation, but whose purpose was to review the results of the investigation and to send-in writing-summaries of foreign intelligence and counterintelligence information to FBIHQ and FBI Field Offices. Those communications and other correspondence between the Office and the FBI contain information derived from the investigation, not all of which is contained in this Volume.

Sometime before March 2018, a period that may entirely post-date McCabe’s resignation on January 29, 2018, Mueller embedded FBI Agents into his team who knew what he was and wasn’t doing on counterintelligence. It seems impossible that FBI had no idea about the scope of Mueller’s counterintelligence investigation after that point. I’m not suggesting that Schmidt is wrong (he must be right, because Adam Schiff has been saying the same thing). I’m suggesting this narrative (at least as presented in the NYT version of the story), has some gaps.

One gap appears in this passage, suggesting SSCI was simply helpless in the face of legal obstacles in obtaining information on Trump’s finances.

A bipartisan report by the Republican-led Senate Intelligence Committee released this month came the closest to an examination of the president’s links to Russia. Senators depicted extensive ties between Trump associates and Russia, identified a close associate of a former Trump campaign chairman as a Russian intelligence officer and outlined how allegations about Mr. Trump’s encounters with women during trips to Moscow could be used to compromise him. But the senators acknowledged they lacked access to the full picture, particularly any insight into Mr. Trump’s finances.

The single thing in the known scope of the SSCI Report that wasn’t also included in the Mueller Report — with the possible except of an investigation into several other allegations that Trump had been sexually compromised by Russia — is Aleksandr Torshin’s efforts to reach out to Trump via the NRA (but SSCI itself limited its investigation into NRA, and in a few cases wouldn’t have obtained material had Ron Wyden not obtained it on the Finance Committee). One weakness of the SSCI Report is an almost juvenile suggestion that sexual kompromat would the only kind of compromising information Russia had on Trump.

But to some degree, SSCI chose not to include Trump’s financial ties to Russia in their report — that was the most persistent complaint from most Democrats on the committee.

[T]he Committee did not cover all areas of concern. For example, the Committee’s investigation, for a variety of reasons, did not seek, and was not able to review, records regarding Donald Trump’s finance’s and the numerous areas where those financial interests appear to have overlapped with Russia. In tum, the reader should not interpret the Report’s absence of information on this topic to indicate that nothing of interest was found. Rather, it should be acknowledged that this was a potentially meaningful area that the Committee did not probe. [my emphasis]

BuzzFeed reported in 2018 that Richard Burr didn’t think Trump’s financial ties to be relevant.

Burr has dismissed Wyden’s complaints. “Whether every member has chosen to come and actually spend the time to go through [the documents] is a whole other question. I’m tired of hearing the fact that we don’t follow [the money],” Burr said. “We are investigating every avenue that gives us clarity into what the mission is of this investigation, but that’s not to fall outside the mission of the investigation. I could care less how they financed a deal 20 years ago somewhere because I don’t think it’s relevant.”

An earlier report described that Treasury was providing SARs to SSCI’s investigators; it just hadn’t been asked for those pertaining to Trump and his family.

Rod Rosenstein’s decision not to investigate Trump’s vulnerability to Russian compromise is one thing. Richard Burr’s decision to similarly constrain his investigation is another. Indeed, Burr’s decision is in many ways less defensible; as a co-equal branch, it is Congress’ job to ensure that the President doesn’t betray the country.

The fact that both men — who stayed on good terms with Trump while seeming to oversee an aggressive investigation into him — chose not to look into the most obvious source of compromise suggests that someone knows what they would find.

Update: Fixed timing of Mueller Report completion and McCabe resignation as Deputy Director.

Update:  On Twitter, Andrew Weissmann says key parts of the NYT story — the ones I raised questions about — are wrong.

NYT story today is wrong re alleged secret DOJ order prohibiting a counterintelligence investigation by Mueller, “without telling the bureau.” Dozens of FBI agents/analysts were embedded in Special Counsel’s Office and we were never told to keep anything from them.

Also erroneous is NYT claim “Rosenstein concluded the F.B.I. lacked sufficient reason to conduct an investigation into the president’s links to a foreign adversary.” See DOJ Special Counsel Appointment Order, para. (b)(i).

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.