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Trump Keeps Using the Word “Cooperate.” I Do Not Think That Word Means What Trump Wants the Press To Think It Means

It’s that time that comes in many high profile investigations where it becomes prudent to remind readers — and journalists! — that the word “cooperate,” even the word “inform,” may not mean what sources want you think it does.

Correction: It’s long past the time to remind journalists that investigative subjects will boast to the press about “cooperating,” when their lawyers really mean, “complying” with the most basic requirements of legal process. When Ali Alexander ran to the press revealing he had received a subpoena (revealing a subpoena is something investigators generally consider uncooperative), most outlets repeated his claim to have “agreed to cooperate” with DOJ. What Alexander described instead was “compliance,” not cooperation.

Nevertheless, some really experienced legal beat reporters used the words often reserved for someone who has entered into a cooperation agreement to describe Alexander’s compliance and they did so in articles probably pitched as a way to share details revealed in a subpoena with other suspects in an investigation.

The latest messaging strategy from Trump demonstrates why the subject of an investigation might do this. This detailed WSJ report is based on Trump sources reading the content of letters sent between Trump lawyer Evan Corcoran and counterintelligence head Jay Bratt in June.

Aides to Mr. Trump have said they had been cooperating with the department to get the matter settled. The former president even popped into the June 3 meeting at Mar-a-Lago, shaking hands. “I appreciate the job you’re doing,” he said, according to a person familiar with the exchange. “Anything you need, let us know.”

Five days later, Trump attorney Evan Corcoran received an email from Mr. Bratt, the chief of the Justice Department’s counterintelligence and export control section, who oversees investigations involving classified information.

“We ask that the room at Mar-a-Lago where the documents had been stored be secured and that all the boxes that were moved from the White House to Mar-a-Lago (along with any other items in that room) be preserved in that room in their current condition until further notice,” according to what was read to the Journal over the phone.

Mr. Corcoran wrote back, “Jay, thank you. I write to acknowledge receipt of this letter. With best regards, Evan.” By the next day, according to a person familiar with the events, a larger lock was placed on the door. It was the last communication between the men until Monday’s search of Mar-a-Lago, according to the person.

On June 22, the Trump Organization, the name for Mr. Trump’s family business, received a subpoena for surveillance footage from cameras at Mar-a-Lago. That footage was turned over, according to an official. [my emphasis]

Side note: The nice thing about Trump sharing a lawyer, Corcoran, with Steve Bannon is that we can evaluate Corcoran’s credibility based off stunts he pulled in Bannon’s case — which is a good reason to expect his representation of these events is not entirely forthcoming, especially when made without the ethical obligations stemming from making them as an officer of the court.

So this exchange, which doesn’t rule out further contact with Mar-A-Lago and which likely misrepresents Trump’s conviviality at having the head of DOJ’s espionage prosecutors waltzing into his golf resort, is designed to present the illusion of full “cooperation.”

And Trump’s spox uses that portrayal, later in the story, to claim that a search — the spox calls it a “raid” — was unnecessary. Trump had been so cooperative, the WSJ relays Trump camp claims, that his unreliable lawyer was even engaged in “breezy chats” with the head of the department that prosecutes spies.

“Monday’s brazen raid was not just unprecedented, it was completely unnecessary,” Trump spokesman Taylor Budowich said. “President Trump and his representatives have gone to painstaking lengths in communicating and cooperating with all the appropriate agencies.”

WSJ doesn’t hide that this story is the one they’re being pitched.

A timeline of events, they say, demonstrates this cooperation, down to quickly fulfilling the June request to place a new lock on the storage door.

But it also doesn’t consider why putting a lock on a room full of suspected stolen documents amounts to cooperation.

More importantly, WSJ admits it doesn’t have the one detail that would test whether this fairy tale of cooperation were true or not: the warrant showing which crimes were being investigated, as well as the warrant return showing whether the government had obtained evidence that confirmed the suspicions they used to obtain probable cause.

The warrant, signed by a judge in Palm Beach County, refers to the Presidential Records Act and possible violation of law over handling of classified information, according to Christina Bobb, a lawyer for the former president. The warrant hasn’t been made public by Mr. Trump nor has the inventory of documents retrieved by the government.

The warrant Trump’s lawyers received doesn’t refer to “possible violation of law over handling classified information,” it refers to a law, possibly even the Espionage Act. Simply sharing that warrant and return would tell us far more about whether Trump was as cooperative as his unreliable lawyer — who made virtually identical claims about his contemptuous client Steve Bannon’s “cooperation” — now wants to claim about Trump.

There is a significant legal reason why Trump’s lawyers would like to claim he was cooperative, aside from ginning up threats against judges from Trump’s mob. As I laid out here, “fail[ing] to deliver [National Defense Information] to an officer or employee of the United States entitled to receive it,” is a key element of 18 USC 793e. So in addition to stoking violence, it’s possible that Trump is already attempting to set up a defense for trial, that he simply had not yet complied with DOJ and NARA requests to give back the stolen documents, but surely would have if they just asked nicely one more time. This is, in fact, precisely the argument Corcoran made for Bannon at trial: he would have cooperated if only Bennie Thompson would have accepted a last minute offer to cooperate.

Anyway, given abundant precedent, it’s probably too late. If you’re storing stolen classified information in your basement, with or without a substantial padlock, you’ve committed the crime of unauthorized retention of NDI.

The issue of cooperation extends beyond Evan Corcoran’s dubious (and provably false, in Bannon’s case) claims of cooperation, though.

WSJ seems to match far more inflammatory reporting from William Arkin in Newsweek, that someone told DOJ that Trump still had classified documents at Mar-a-Lago.

In the following weeks, however, someone familiar with the stored papers told investigators there may be still more classified documents at the private club after the National Archives retrieved 15 boxes earlier in the year, people familiar with the matter said. And Justice Department officials had doubts that the Trump team was being truthful regarding what material remained at the property, one person said. Newsweek earlier reported on the source of the FBI’s information.

Arkin is a well-sourced reporter (though not a DOJ reporter), but Newsweek is no longer a credible outlet. And in Arkin’s story — which seems like it was meant to be a comment primarily on the political blowback from the search — a headline Arkin probably didn’t write calls this person “an informer” (notably, language Arkin likely did have some say over also called it a raid, which credible DOJ sources would never do).

Exclusive: An Informer Told the FBI What Docs Trump Was Hiding, and Where

The raid on Mar-a-Lago was based largely on information from an FBI confidential human source, one who was able to identify what classified documents former President Trump was still hiding and even the location of those documents, two senior government officials told Newsweek.

There are other parts of this story that raised real credibility questions for me and for multiple counterintelligence experts I spoke with about. For example, it describes a 30-year veteran of the FBI, now a senior DOJ official, sharing grand jury information. Because Special Agents retire after 25 years, there are a very small number of 30-year FBI veterans running around, and describing the person as a senior DOJ official to boot would pinpoint the source even further. If this person really had knowledge of grand jury proceedings, it would be child’s play to charge them based on this story for violating laws prohibiting such things. Plus, the person doesn’t even describe what happens in a grand jury accurately, suggesting that the grand jury had “concluded” the law was broken (in which case there would be an indictment).

Moreover, the story relies on public reporting, based off Trump’s lawyer’s own claim, for its evidence that DOJ knew precisely where to look.

According to news reports, some 10-15 boxes of documents were removed from the premises. Donald Trump said in a statement that the FBI opened his personal safe as part of their search. Trump attorney Lindsey Halligan, who was present during the multi-hour search, says that the FBI targeted three rooms—a bedroom, an office and a storage room. That suggests that the FBI knew specifically where to look.

That claim is fundamentally incompatible with the earlier report that an “informer” had told FBI precisely where to look.

More importantly, it wouldn’t take an informant — a confidential human source infiltrated into the Trump camp — to obtain this kind of information.

Cassidy Hutchinson, who helped Trump move to Mar-a-Lago, reportedly “cooperated” (that word again!) with DOJ after her blockbuster testimony before the January 6 Committee. She worked at Mar-a-Lago and unlike others who moved with Trump to Florida, had the clearance to handle these documents. Her attorney, former Assistant Attorney General Jody Hunt, knows firsthand about Trump’s attempts to suppress sensitive classified information from his attempts to kill the Russian investigation. So if Hutchinson had information that would be useful to this investigation (including details about where Trump stored what at Mar-a-Lago), DOJ likely has it.

Similarly, of the seven people whom Trump named to represent his interests with the Archives, three — Pat Cipollone, Pat Philbin, and Steve Engel — have been willing to testify with varying degrees of resistance before the January 6 Committee. Engel would have likewise been asked to cooperate on any DOJ investigation of Jeffrey Clark, but he didn’t share details of that with the press. The two Pats both recently received subpoenas in DOJ’s January 6 probe (which they did share with the press). And Pat Philbin is likely the lawyer described in earlier reports who attempted, but failed, to negotiate transfer of Trump’s stolen documents to the Archives.

Longtime Archives lawyer Gary Stern first reached out to a person from the White House counsel’s office who had been designated as the President Records Act point of contact about the record-keeping issue, hoping to locate the missing items and initiate their swift transfer back to NARA, said multiple sources familiar with the matter. The person had served as one of Trump’s impeachment defense attorneys months earlier and, as deputy counsel, was among the White House officials typically involved in ensuring records were properly preserved during the transfer of power and Trump’s departure from office.

But after an extended back and forth over several months and after multiple steps taken by Trump’s team to resolve the issue, Stern sought the intervention of another Trump attorney last fall as his frustration mounted over the pace of the document turnover.

If Philbin was the person who tried but failed to resolve the Archives’ concerns, he is a direct, material witness to the issue of whether Trump had willfully withheld classified documents the Archives was asking for, something the Archives would have made clear in its referral to DOJ. And because of the way the Espionage statute is written (note the Newsweek article, if accurate, mentions National Defense Information, language specific to the Espionage Act), Philbin would have personal legal exposure if he did not fully disclose information about Trump continuing to hoard stolen classified documents. Plus, Philbin has been involved in national security law since the 00s, and probably would like to retain his clearance to represent clients in national security cases.

All of which is to say that DOJ has easily identifiable people who are known to be somewhat willing to testify against Donald Trump and who are known to have specific knowledge about the documents he stole. If either Hutchinson or Philbin (or both!) answered FBI questions about Trump’s document theft, they would not be “informants.” They would be witnesses. Just like they’re both witnesses to some of Trump’s other suspected crimes.

Nor does that make them “cooperators” in the stricter sense — people who’ve entered into plea agreements to work off their own criminal liability.

As remarkable as six years of Trumpism has made it seem, sometimes law-abiding citizens answer FBI questions without the tantrums that Corcoran seems to tolerate from his clients.

Indeed, if the crime that FBI is investigating really is as serious as the Espionage Act, far more witnesses may see the wisdom of sharing their information with the FBI.

Update: Propagandist John Solomon offers a version of the same story as WSJ, though in his telling, DOJ also subpoenaed Trump in June, specifically asking for documents with classified markings, including those involving correspondence with foreign officials.

The subpoena requested any remaining documents Trump possessed with any classification markings, even if they involved photos of foreign leaders, correspondence or mementos from his presidency.

This is the kind of detail that the lawyers who negotiated initial efforts to retrieve stolen documents would know about. If Philbin, for example, knows that Trump had tried to hold onto his love letters with Mohammed bin Salman and Vladimir Putin, but Trump still didn’t provide them in response to a subpoena, then there’d be a clearcut case of withholding classified documents.

Update: CNN has matched Solomon’s report.

Trump and his lawyers have sought to present their interactions with Justice Department prosecutors as cooperative, and that the search came as a shock. The subpoena was first reported by Just the News.

In response to questions about the grand jury subpoena, Trump spokesman Taylor Budowich said in a statement to CNN: “Monday’s unprecedented and absolutely unnecessary raid of President Trump’s home was only the latest and most egregious action of hostility by the Biden Administration, whose Justice Department has been weaponized to harass President Trump, his supporters and his staff.”

But CNN’s version suggests that Trump’s lawyers showed the head of the espionage division of DOJ classified documents, but only agreed to hand over those that were Top Secret or higher.

During the meeting, Trump’s attorneys showed the investigators documents — some of them had markings indicating they were classified. The agents were given custody of the documents that were marked top secret or higher, according to a person familiar with the matter.

That suggests even after turning over 15 boxes of documents, Trump still had highly classified documents lying around the basement of a building riddled with counterintelligence concerns. And when the head of the espionage department came to collect classified documents, Trump withheld less classified ones.

Of course they had probable cause there were classified documents still at Mar-a-Lago. Trump’s lawyers told DOJ there were.

On Unrealistic Expectations for Mueller Report Obstruction Charges

Among those whinging that Merrick Garland hasn’t imprisoned Donald Trump yet, there is an apparent belief that the Mueller Report left obstruction charges all wrapped up in a bow, as if the next Administration could come in, break open the Report, and roll out fully-formed charges.

Even among those with a more realistic understanding of the Mueller Report, people continue to call for some public resolution of the obstruction charges, as Randall Eliason did here and Quinta Jurecic did here. Jurecic even updated her awesome heat map of the obstruction charges, with the date the statute of limitations (if an individual act of obstruction were charged outside a continuing conspiracy) would expire for each.

None of that is realistic, for a whole range of reasons.

The obstruction-in-a-box belief is based on a misunderstanding of the Mueller Report

First, the belief that Merrick Garland could have come into office 11 months ago and rolled out obstruction charges misunderstands the Mueller Report. Many if not most people believe the report includes the entirety of what Mueller found, describes declination decisions on every crime considered, and also includes a volume entirely dedicated to Trump’s criminal obstruction, a charging decision for which Mueller could not reach on account of the OLC memo prohibiting it. None of that is true.

As I laid out in my Rat-Fucker Rashomon series, the Mueller Report is only a description of charging decisions that the team made. My comparison of the stories told in the Report with those told in the Stone warrant affidavits, Stone’s trial, and the SSCI Report show that Mueller left out a great deal of damning details about Stone, including that he seemed to have advance notice of what the Guccifer 2.0 persona was doing and that Stone was scripting pro-Russian tweets for Trump in the same period when Trump asked Russia, “if you’re listening — I hope you are able to find the 30,000 emails that are missing.”

And, as DOJ disclosed hours before the 2020 election, Mueller didn’t make a final decision about whether Stone could be charged in a hack-and-leak conspiracy. Instead, he referred that question to DC USAO for further investigation. In fact the declinations in the Mueller Report avoid addressing any declination decision for Stone on conspiring with Russia. The declination in the report addresses contacts with WikiLeaks (but not Guccifer 2.0) and addresses campaign finance crimes. The section declining to charge any Trumpsters with conspiracy declines to charge the events described in Volume I Section II (the Troll operation) and Volume I Section IV (contacts with Russians), in which there is no Stone discussion. Everything Stone related — even his contacts with Henry Greenberg, which is effectively another outreach from a Russian — appears in Section III, not Section IV. The conspiracy declinations section doesn’t mention Volume I Section III (the hack-and-leak operation) at all and (as noted) in the section that specifically addresses hack-and-leak decisions, a footnote states that, “Some of the factual uncertainties [about Stone] are the subject of ongoing investigations that have been referred by this Office to the D.C. U.S. Attorney’s Office.” This ongoing investigation would have been especially sensitive in March 2019, because prosecutors knew that Stone kept a notebook recording all his conversations with Trump during the campaign, many of which (they did have proof) pertained to advance notice of upcoming releases. That is, the ongoing investigation into Stone was also an ongoing investigation into Trump, which is consistent with what Mueller told Trump’s lawyers in summer 2018.

That’s not the only investigation into Trump that remained ongoing at the time Mueller closed up shop. The investigation into a suspected infusion of millions from an Egyptian bank during September 2016 continued (per CNN’s reporting) until July 2020, which is why reference to it is redacted in the June 2020 Mueller Report but not the September 2020 one. I noted both these ongoing investigations in real time.

The Mueller Report also doesn’t address the pardon discussions with Julian Assange, even though that was included among Mueller’s questions to Trump.

So contrary to popular belief, Volume II does not address the totality of Trump’s criminal exposure.

That ought to change how people understand the obstruction discussion in Volume II. For all the show of whether or not Mueller could make a charging decision about Trump, the discussion provably did not include the totality of crimes Mueller considered with Trump.

All the more so given the kinds of obstructive acts described in Volume II. The biggest tip-off that this volume was about something other than criminal obstruction charges, in my opinion, is the discussion of Trump’s lies about the June 9 meeting in Trump Tower. As Jurecic’s heat map, her extended analysis, and my own analysis at the time show, the case that this was obstruction was weak. “Mueller spent over eight pages laying out whether Trump’s role in crafting a deceitful statement about the June 9 meeting was obstruction of justice when, according to the report’s analysis of obstruction of justice, it was not even a close call.” At the time, I suggested Mueller included it because it explained what Trump was trying to cover up with his other obstructive actions during the same months. But I think the centrality of Vladimir Putin involvement in Trump’s deceitful statement — which gets no mention in the Report, even though the Report elsewhere cites the NYT interview where that was first revealed — suggests something else about this incident. Because of how our Constitution gives primacy in foreign affairs to the President, DOJ would have a very hard time charging the President for conversations he had with a foreign leader (Trump’s Ukraine extortion was slightly different because Trump refused to inform Congress of his decision to blow off their appropriation instructions). But Congress would (in a normal time, should) have no difficulty holding the President accountable for colluding with a foreign leader to invent a lie to wield during a criminal investigation. Trump’s June 9 meeting lie is impeachable; it is not prosecutable.

Similarly, several of the other obstructive acts — asking Comey to confirm there was no investigation into him, firing Comey, and threatening to fire Mueller — would likewise be far easier for Congress to punish than for DOJ to, because of how expansively we define the President’s authority.

That is, these ten obstructive acts are best understood, in my opinion, as charges for Congress to impeach, not for DOJ to prosecute. The obstruction section — packaged up separately from discussion of the other criminal investigations into Trump — was an impeachment referral, not a criminal referral. I think Mueller may have had a naive belief that Congress would be permitted to consider those charges for impeachment, such an effort would succeed, and that would leave DOJ free to continue the other more serious criminal investigation into Trump.

It didn’t happen.

But that doesn’t change that a number of these obstructive acts are more appropriate for Congress to punish than for DOJ to.

Bill Barr did irreparable damage to half of these obstruction charges

Bill Barr, of course, had other things in mind.

Those wailing that Garland is doing nothing in the face of imminently expiring obstruction statutes of limitation appear to have completely forgotten all the things Billy Barr did to make sure those obstruction charges could not be prosecuted as they existed when Mueller released his report.

That effort started with Barr’s declination of the obstruction charges.

Last year, Amy Berman Jackson forced DOJ to release part of the memo Barr’s flunkies wrote up the weekend they received the Mueller Report. The unsealed portions show that Rod Rosenstein, Ed O’Callaghan, and Steven Engel signed off on the conclusion that,

For the reasons stated below, we conclude that the evidence described in Volume II of the Report is not, in our judgment, sufficient to support a conclusion beyond a reasonable doubt that the President violated the obstruction-of-justice statutes. In addition, we believe that certain of the conduct examined by the Special Counsel could not, as a matter of law, support an obstruction charge under the circumstances. Accordingly, were there no constitutional barrier, we would recommend, under the Principles of Federal Prosecution, that you decline to commence such a prosecution.

This was unbelievably corrupt. There are a slew of reasons — from Barr’s audition memo to the way these officials include no review of the specific allegations to the fact that some of these crimes were crimes in progress — why this decision is inadequate. But none of those reasons can make the memo go away. So unless DOJ were to formally disavow this decision after laying out the reasons why the process was corrupt (preferably via analysis done by a quasi-independent reviewer like the Inspector General), any prosecution of the obstruction crimes laid out in the Mueller Report would be virtually impossible, because the very first thing Trump would do would be to cite the memo and call these three men as witnesses that the case should be dismissed.

But Barr’s sabotage of these charges didn’t end there. At his presser releasing the heavily-redacted report, Barr excused Trump’s obstruction because (Barr claimed) Trump was very frustrated he didn’t get away with cheating with Russia unimpeded, thereby deeming his motives to be pure.

In assessing the President’s actions discussed in the report, it is important to bear in mind the context.  President Trump faced an unprecedented situation.  As he entered into office, and sought to perform his responsibilities as President, federal agents and prosecutors were scrutinizing his conduct before and after taking office, and the conduct of some of his associates.  At the same time, there was relentless speculation in the news media about the President’s personal culpability.  Yet, as he said from the beginning, there was in fact no collusion.  And as the Special Counsel’s report acknowledges, there is substantial evidence to show that the President was frustrated and angered by a sincere belief that the investigation was undermining his presidency, propelled by his political opponents, and fueled by illegal leaks.  Nonetheless, the White House fully cooperated with the Special Counsel’s investigation, providing unfettered access to campaign and White House documents, directing senior aides to testify freely, and asserting no privilege claims.  And at the same time, the President took no act that in fact deprived the Special Counsel of the documents and witnesses necessary to complete his investigation. Apart from whether the acts were obstructive, this evidence of non-corrupt motives weighs heavily against any allegation that the President had a corrupt intent to obstruct the investigation.

These claims were, all of them, factually false, as I laid out at the time. But because he was the Attorney General when he made them, they carry a great deal of weight, legally, in establishing that Trump had no corrupt motive for obstructing the investigation into his ties to Russia.

And after that point, Barr made considerable effort to manufacture facts to support his bullshit claims. Most obviously, he sicced one after another after another investigator on the Russian investigation to try to substantiate his own bullshit claims. In the case of Barr’s efforts to undermine the Mike Flynn prosecution — which investigation lies behind four of the obstruction charges laid out in the Mueller Report — the Jeffrey Jensen team literally altered documents to misrepresent the case against Flynn. Similarly, a Barr-picked prosecutor installed to replace everyone who was fired or quit in the DC US Attorney’s Office, Ken Kohl, stood before Judge Sullivan and claimed (falsely) that everyone involved with the Flynn prosecution had no credibility.

If we move forward in this case, we would be put in a position of presenting the testimony of Andy McCabe, a person who our office charged and did not prosecute for the same offense that he’s being — that we would be proceeding to trial against with respect to Mr. Flynn.

So all of our evidence, all of our witnesses in this case as to what Mr. Flynn did or didn’t do have been — have had specific findings by the Office of Inspector General. Lying under oath, misleading the Court, acting with political motivation. Never in my career, Your Honor, have I had a case with witnesses, all of whom have had specific credibility findings and then been pressed to go forward with the prosecution. We’re never expected to do so.

Again, so long as this testimony remains credible, you can’t pursue obstruction charges remotely pertaining to Flynn, meaning four of the obstruction charges are off the table.

Barr also chipped away at the other charges underlying the obstruction charges, intervening to make it less likely that Roger Stone or Paul Manafort would flip on Trump and help DOJ substantiate that, yes, Trump really did cheat with Russia to get elected. Barr also got OLC to undercut the analysis behind charging Michael Cohen for the hush payments (which may have made it impossible for SDNY to charge Trump with the same charges).

Meanwhile, John Durham toils away, trying to build conspiracy charges to substantiate the rest of Barr’s conspiracy theories. Along the way, Durham seems to be tainting other evidence that would be central to any obstruction charges against Trump. For example, in the most recent BuzzFeed FOIA release, all parts of Jim Comey’s memos substantiating Trump’s obstruction that mentioned the Steele dossier were protected under a b7(A) exemption, which is almost certainly due to Durham’s pursuit of a theory that Trump’s actions with Comey were merely a response to the Steele dossier, not an attempt to hide his Flynn’s very damning conversations with the Russian Ambassador during the transition. That is, Durham is as we speak making evidence unavailable in his efforts to invent facts to back Barr’s claims about Trump’s pure intent in obstructing the Mueller investigation.

As noted, all of these efforts are fairly self-obviously corrupt, and most don’t withstand close scrutiny (as the altered documents did not when I pointed them out). But before DOJ could pursue the obstruction charges as they existed in the Mueller Report, they would first have to disavow all of this.

Inspector General Michael Horowitz was reportedly investigating at least some of this starting in 2020. And I trust his investigators would be able to see through much of what Barr did. But even assuming Horowitz was investigating the full scope of all of them, because of the pace of DOJ IG investigations, the basis to disavow Barr’s efforts would not and will not come in time to charge those obstruction counts before the statutes of limitation expires.

The continuing obstruction statutes have barely started

In addition to obstructing the punishment of Paul Manafort and Roger Stone and undermining the theory behind the Michael Cohen hush payment charges, Bill Barr also worked relentlessly to undermine the prosecution of Rudy Giuliani.

There were undoubtedly a lot of reasons Barr needed to do that. If he didn’t, he might have to treat Trump’s extortion of Ukraine (which was the follow-up to Manafort’s Ukraine ties in 2016). Rudy was central to Trump’s own obstruction of the Mueller investigation. And if Rudy were shown to be an Agent of Russian-backed Ukrainians, it would raise significant questions about Trump’s larger defense (questions for which there is substantiation in Mueller’s 302s).

I understand there was a sense, in the middle of Barr’s efforts, that prosecutors believed they could just wait those efforts out.

And then, literally on Lisa Monaco’s first day on the job, DOJ obtained warrants to seize 16 devices from Rudy. During all the months that people have been wailing for Garland to act, Barbara Jones has been wading through Rudy’s phones to separate out anything privileged (and, importantly, to push back on efforts to protect crime-fraud excepted communications). Almost the first thing Lisa Monaco did was approve an effort to go after the key witness to the worst of Trump’s corruption.

There are many reasons I keep coming back to that seizure to demonstrate that Garland’s DOJ (in reality, Monaco would be the one making authorizations day-to-day) will not back off aggressive investigations of Trump. Even if DOJ only had warrants for the Ukraine investigation, it would still get to larger issues of obstruction, because of how it relates to impeachment. But even if it were true those were the only warrants when DOJ raided Rudy, there’s abundant reason to believe that’s no longer true. If DOJ got warrants covering the earlier obstruction or Rudy’s role in the attempted coup, no one outside that process would know about it.

Then, in recent days, DOJ made another audacious seizure of a lawyer’s communications, a seizure that only makes sense in the context of a larger obstruction investigation, this time of the January 6 investigation, yet more evidence that DOJ it not shying away from investigating Trump’s crimes.

Indeed, DOJ currently has investigations into all the nodes of the pardon dangles, too: Sidney Powell’s work for Trump on a thing of value (the Big Lie) while waiting for a Mike Flynn pardon; Roger Stone’s coordination with militias before and after he got his own pardon; promises to the Build the Wall crowd — promises kept only for Bannon — tied to efforts to help steal the election; and Rudy’s role at the center of all this.

There would be no reason to charge the pardon dangles from 2019 (the balance of the obstruction charges that Barr didn’t hopelessly sabotage) when DOJ has more evidence about pardon bribes from 2020, including the devices of the guy at the center of those efforts, and the direct tie to the January 6 coup attempt to tie it to. Indeed, attempting to charge the earlier dangles without implicating everything Trump got out of the pardons in his attempted coup would likely negatively impact an investigation into the more recent actions.

Even assuming Mueller packaged obstruction charges for DOJ to indict, rather than Congress to impeach, the deliberate sabotage Barr did in the interim makes most of those charges impossible. The exceptions — the pardon dangles — all have additional overt acts to include that sets aside Barr’s past declination.

DOJ cannot charge the Mueller obstruction charges. But they also cannot explain why not, partly because of the institutional necessity to move beyond Barr’s damage, but partly because doing so would damage the possibility of charging the continuation of that very same obstruction.

One obstruction crime is actually a conspiracy crime

I forgot one more detail that’s really important: One of the listed acts of obstruction, Trump’s efforts to have Jeff Sessions shut down the investigation, appears to be a Stone-related conspiracy crime. As I noted, that effort started nine days after Roger Stone told Julian Assange, “I am doing everything possible to address the issues at the highest level of Government.”

Especially given that it is among the weaker obstruction crimes, this is one that would be better pursued as a conspiracy crime (though it would be tangled up in the Assange extradition).

Update: As Jackson noted on Twitter, DC Circuit should soon weigh in on ABJ’s efforts to liberate more of Barr’s declination memo.

Bill Barr Issued Prosecution Declinations for Three Crimes in Progress

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

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

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

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

It was worse than that.

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

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

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

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

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

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

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

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

Barr: No, that would be a crime.

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

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

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

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

Barr: Yes.

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

Barr: Yes.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Amy Berman Jackson Accuses Bill Barr of a Preemptive Strike on the Mueller Report

I was down so many rabbit holes today I forgot to link to Amy Berman Jackson’s unsealed opinion, which she released today (here’s the redacted version).

Much of what had previously been redacted pertained to the first section, which got released last night. Otherwise, there’s ABJ’s accusation that DOJ was hiding that Bill Barr launched a pre-emptive strike on the Mueller Report.

But given ABJ’s notice that she’s still considering whether to grant the government a stay, I think this footnote (the bold was formerly redacted) is of interest.

18 There is no need for the Court to determine what its ruling would have been had the agency candidly informed it that the purpose of the document was to provide legal analysis to help shape the assessment of the Special Counsel’s report that the Attorney General was planning to announce for the reasons set forth in Section I of the memorandum. It is the government’s burden to support its withholdings.

This is the question before her now, whether the advice in the redacted section is so tainted by its purpose that she’ll release the full memo.

My guess is she won’t — unless there’s something about the analysis itself, such as that it obviously replicates Barr’s opinion about the investigation that he used to get hired, or if it misrepresents the results of the investigation (remember, ABJ presided over Paul Manafort’s DC proceedings and Roger Stone’s trial, so she knows what Mueller found as well as anyone). And the pardons Trump has since offered the people whose lies he guaranteed by dangling those pardons may alter this calculus, particularly if the analysis contradicts Barr’s agreement, offered three times in his confirmation hearing, that dangling pardons for false testimony would be obstruction.

Until then, DOJ has already launched its appeal.

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

Now We Know Why Jeffrey Rosen Has Been Silent, How About Chris Wray?

Since the attempted coup, both Jeffrey Rosen and Chris Wray (and Wray’s then-Deputy David Bowdich) were almost silent about the attack. A week after the attack, Rosen  a video in the middle of the night, explaining what he had done during the coup.

The day after, Wray released a short statement. More than a week later, he spoke at a closed-press meeting on inauguration security. Neither provided the kind of daily updates one would expect after such an attack.

Last night (as Rayne laid out here), NYT reported on why Rosen was so silent: because he’s a witness in what should be a criminal investigation into how the attack relates to the effort to overturn the election.

As the NYT lays out, in the days leading up to the coup attempt, Trump already tried to replace Rosen with someone, Jeffrey Bossert Clark, who would be willing to take steps to overturn the vote.

The effort to force Rosen to use DOJ resources to undermine a democratic election started on December 15, the day after Bill Barr resigned.

When Mr. Trump said on Dec. 14 that Attorney General William P. Barr was leaving the department, some officials thought that he might allow Mr. Rosen a short reprieve before pressing him about voter fraud. After all, Mr. Barr would be around for another week.

Instead, Mr. Trump summoned Mr. Rosen to the Oval Office the next day. He wanted the Justice Department to file legal briefs supporting his allies’ lawsuits seeking to overturn his election loss. And he urged Mr. Rosen to appoint special counsels to investigate not only unfounded accusations of widespread voter fraud, but also Dominion, the voting machines firm.

Then, over the weekend in advance of the certification, Assistant Attorney General Jeffrey Bossert Clark told Rosen Trump was going to make him Attorney General so he could chase Rudy Giuliani’s conspiracy theories.

On New Year’s Eve, the trio met to discuss Mr. Clark’s refusal to hew to the department’s conclusion that the election results were valid. Mr. Donoghue flatly told Mr. Clark that what he was doing was wrong. The next day, Mr. Clark told Mr. Rosen — who had mentored him while they worked together at the law firm Kirkland & Ellis — that he was going to discuss his strategy to the president early the next week, just before Congress was set to certify Mr. Biden’s electoral victory.

Unbeknown to the acting attorney general, Mr. Clark’s timeline moved up. He met with Mr. Trump over the weekend, then informed Mr. Rosen midday on Sunday that the president intended to replace him with Mr. Clark, who could then try to stop Congress from certifying the Electoral College results. He said that Mr. Rosen could stay on as his deputy attorney general, leaving Mr. Rosen speechless.

In a replay of the 2004 Hospital Hero moment, the others involved (including White House Counsel Pat Cipollone) agreed they’d resign en masse if Trump replaced Rosen, which led him to back off the plan.

NYT had four sources for this story, all of whom fear — even after Trump has been relegated to Florida — retaliation.

This account of the department’s final days under Mr. Trump’s leadership is based on interviews with four former Trump administration officials who asked not to be named because of fear of retaliation.

Clark claimed there were errors in this story, but ultimately he claimed Executive Privilege (his statement to WaPo on the topic, which I’ve used here, is more expansive).

In a statement that seemed to draw on language in the New York Times account, Clark said, “I categorically deny that I ‘devised a plan . . . to oust’ Jeff Rosen. . . . Nor did I formulate recommendations for action based on factual inaccuracies gleaned from the Internet.”

“My practice is to rely on sworn testimony to assess disputed factual claims,” Clark said. “There were no ‘maneuver[s].’ There was a candid discussion of options and pros and cons with the President. It is unfortunate that those who were part of a privileged legal conversation would comment in public about such internal deliberations, while also distorting any discussions. . . . Observing legal privileges, which I will adhere to even if others will not, prevent me from divulging specifics regarding the conversation.”

The WaPo version of this story names all who were involved in the confrontation with Trump (though the sources for the story are likely, in part, their aides).

At the meeting were Trump, Clark and Rosen, along with Richard Donoghue, the acting deputy attorney general; Steven A. Engel, the head of the department’s Office of Legal Counsel; and Pat Cipollone, the White House counsel, the people familiar with the matter said. The people said Rosen, Donoghue, Engel and Cipollone pushed against the idea of replacing Rosen, and warned of a mass resignation.

Clark says he will only respond to a sworn statement. By all means, the impeachment managers should demand sworn testimony, from all involved.

Of course, that would mean Pat Cipollone, who led the former President’s defense in his first impeachment trial, would be asked about the second time Trump tried to use government resources to cheat. Steve Engel, who authorized the withholding of a whistleblower complaint describing Trump’s earlier attempt, would also testify. Rosen, who participated in having DOJ chase Sidney Powell’s conspiracy theories about Mike Flynn, would be asked to testify about why the conspiracy theories about Dominion machines were any less credible than the Flynn ones. And Donoghue, who served as a filter for some of the conspiracy theories Rudy Giuliani had been fed by men who have since been named Russian agents, would be asked to testify about why Rudy wasn’t a credible source.

Rosen was silent in his final two weeks, presumably, for fear he might get fired and replaced by someone who would be more pliant to a coup attempt. But he — and the three others — are also witnesses to a larger plot that ended up in violence and death.

I wonder if Chris Wray has similar evidence he’ll be asked to share.

Billy Barr’s OLC Declinations

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

After Engaging in Multiple Overt Acts Benefitting a Conspiracy, Bill Barr Had Kerri Kupec Commit the Most Overt Act

Before I get into how gullible DOJ reporters continue to be in this WaPo story relaying how Bill Barr refused to publicly announce that the President broke no law in his July 25 phone call with Volodymyr Zelensky, let me review a series of overt acts that might fairly be deemed part of what DOJ has already charged as a conspiracy.

DOJ fails to do the most basic “connect-the-dots” assessment implemented after 9/11

First, after John Demers went to the White House and discovered that his boss was implicated in a phone call that a whistleblower had complained about, when the Intelligence Community Inspector General sent a more formalized complaint to DOJ, DOJ limited the scope of their review of the complaint to one small part of it, just the TELCON, not the full complaint. This had the effect of preventing anyone from doing what the entire surveillance apparatus of FBI has been designed to do since 9/11, which is to search in their databases for all the people mentioned in a lead to find out if that lead connects to other known criminals. Here’s some of what DOJ knew when on the Ukraine investigation.

Had anyone followed the standard connect-the-dot rules in reviewing the whistleblower complaint, they would have searched on all the names in the references in the complaint, including those in this OCCRP piece, which was mentioned multiple times in the complaint.

That piece is a profile of Igor Fruman and Lev Parnas.

So if any person reviewing the whistleblower complaint had followed the approach put into place to protect the nation after 9/11, that person would have discovered:

  • Fruman and Parnas were making big donations to Republicans tied to certain policy outcomes and paying for those donations through a shell company
  • Parnas was also involved in propaganda sent, on White House stationery, to State in support of the same policy outcomes
  • The money for the shell company came from a lawyer who specializes in laundering money through real estate for foreigners
  • One policy issue Fruman and Parnas were pushing with their donations was one of the policy outcomes described in the Trump-Zelensky call, the withdrawal of Marie Yovanovitch

In short, there is no way a competent investigator would have done a connect-the-dots assessment on the whistleblower complaint and not realized it was closely related to a Full Investigation bearing down on an indictment in SDNY.

Instead of doing that marginally competent assessment, DOJ instead gave the whistleblower complaint the all-clear, in part by severing the transcript (which was damning enough) from the backup (which described OMB withholding funds, which is a separate crime, but also included the reference to the profile on suspects against whom SDNY had a fully predicated investigation into related actions). The decision to consider only the transcript affirmatively prevented DOJ from doing the kind of dot-connecting everything since 9/11 has claimed to support.

Whoever made that decision — whether willfully or unknowingly — prevented DOJ from formally realizing that the President’s call was closely tied to behavior that DOJ would indict less than two months later.

DOJ fails to share the whistleblower complaint with the FEC

At that point in late August, having decided that no crimes were committed, DOJ should have shared the whistleblower complaint — which even DOJ acknowledged raised possible election related crimes — with the Federal Election Commission under the terms of a Memorandum of Understanding they have. As of October 18, according to a letter from Ellen Weintraub responding to questions from Amy Klobuchar, DOJ had not done so.

This is the second time that you, as Ranking Member of the Senate Rules Committee with jurisdiction over federal elections, have written to commissioners of the Federal Election Commission to get a simple Yes or No answer to the question: Did the Department of Justice (DOJ) notify the FEC about or refer to the FEC a campaign finance complaint regarding potential violations of the foreign national political-spending ban by the President? Your October 2 letter specifically referenced a New York Times op-ed referring to a complaint reportedly originating with the Office of the Inspector General of the Intelligence Community.1 As noted in the Commission’s October 8 response, the FEC does not generally confirm or deny the agency’s receipt of notice or a referral from DOJ.2 However, you have asked me an important question in the exercise of your oversight authority, and commissioners should be responsive if it is legal for us to do so. It is.

For these reasons, I am answering your question: No. The FEC has not received a notification or referral from DOJ regarding the complaint you reference.

While DOJ is empowered to make any decisions about whether the call involved a crime, FEC is empowered to make decisions about whether it merits a civil penalty. And FEC might have connected the dots DOJ failed to. They would have seen that the phone call related to a campaign finance complaint plus follow-up it had already received on Parnas and Fruman, so it would have known almost as much as DOJ, had DOJ tried to connect the dots.

It turns out, it is a crime to prevent the FEC from learning information it needs to do its job. It’s not only the crime DOJ is about to charge the Russian Internet Research Agency trolls with a superseding indictment for, but it’s the crime that SDNY charged Parnas and Fruman with even before Weintraub sent her letter.

DOJ might have decided that they didn’t need to forward the complaint because Republican Matthew Petersen resigned from the FEC on the suspiciously timed August 26 and so ensured FEC couldn’t conduct any official business. But as the timing of the Parnas and Fruman indictment — which Bill Barr knew about — makes clear, DOJ still believes it can charge people for withholding information from FEC.

DOJ delays notifying Congress and hides Bill Barr’s involvement by overclassifying their OLC memo

Then, having prevented FEC from receiving information that would alert them that the President had a dodgy call that related to an existing campaign finance complaint, OLC tried to prevent Congress from learning of this — as required by whistleblower laws — by writing an OLC memo saying that this complaint did not amount to an official action.

OLC head Steve Engel wrote that memo on September 3, by which day DOJ should have alerted the Intelligence Committees of the complaint. That memo was used as an excuse to delay informing Congress. That delay included over a week during which the Administration continued to illegally withhold duly authorized security funding from Ukraine without explaining to Congress why it was doing so, a delay that Bill Taylor said (in his testimony to Congress) did real harm to Ukraine. All told, the OLC memo succeeded in delaying sharing the complaint with Congress for 23 days, something that DOJ’s own Inspector General noted (in a letter written on behalf of 70 Inspectors General) was a clear violation of the Intelligence Community Whistleblower Protection Act.

As Congress has done in every other whistleblower law passed since 1978, it entrusted IGs to play a central role in the evaluation of the information provided. Specifically, the ICWPA requires an IG to make within 14 days a factual determination as to whether an alleged urgent concern provided to the IG “appears credible.” If the IG determines that the allegation appears credible, which necessarily includes a determination by the IG that it involves an “urgent concern,” the IG is required to forward the allegation to the head of the agency and the agency head “shall” forward it to Congress within 7 days “with any comments.” The ICWPA’s use of the word “shall” makes it clear that the statute does not authorize the agency head, or any other party for that matter, to review or second-guess an IG’s good faith determination that a complaint meets the ICWPA’s statutory language.

Worse still, DOJ tried to delay informing Congress that Bill Barr was personally implicated by this call by overclassifying the OLC memo — in part by treating Barr’s implication in it, which the White House had deemed Secret, as Top Secret — and having done so, sharing a water-downed version of its own OLC memo with Congress on September 24 that hid Barr’s role and other key details.

Bill Barr continues to engage in overt acts in a conspiracy to provide John Durham propaganda to support an investigation into those who investigated Trump

And all this while — in the period while DOJ was scoping its own investigation to avoid connecting the dots and while DOJ was preventing FEC from learning of the whistleblower complaint and while DOJ was preventing Congress from receiving the complaint (the latter two acts in contravention of the law) — Bill Barr continued to engage in overt acts in the broader conspiracy to collect and provide to John Durham corroboration (no matter how sketchy or obviously coerced) that the investigation into Trump’s ties to Russia was ginned up by the Deep State.

Mind you, Barr may have already committed an overt act in the Ukrainian side of this conspiracy. By September 25, according to a DOJ statement, individual Ukrainians had already “volunteered” information to Durham.

A Department of Justice team led by U.S. Attorney John Durham is separately exploring the extent to which a number of countries, including Ukraine, played a role in the counterintelligence investigation directed at the Trump campaign during the 2016 election,” DOJ spokeswoman Kerri Kupec said Wednesday. “While the Attorney General has yet to contact Ukraine in connection with this investigation, certain Ukrainians who are not members of the government have volunteered information to Mr. Durham, which he is evaluating.”

Barr is micromanaging Durham’s investigation, so there’s little chance that these “volunteers” got from Rudy Giuliani to Durham without Barr’s own involvement.

In addition, Barr took a meeting with Victoria Toensing and Joe DiGenova to talk about their client, the mobbed up Dmitry Firtash, which was something valuable the lawyers could offer to the Firtash in exchange for him funding the Parnas and Fruman influence operation. To be sure, the Supreme Court has determined that taking a meeting does not amount to a thing of value amounting to bribery. But their ability to get such a meeting was nevertheless one of the reasons Firtash replaced Lanny Davis with Toensing and DiGenova and, in exchange, helped them feed propaganda to the Durham investigation.

The head of the Criminal Division, Brian Benczkowski, also took a meeting with Rudy in this time period (it’s unclear which client Rudy was pitching), but he claims to be unaware of the investigation into Rudy that was ongoing at SDNY, which may well be true but if so is tantamount to a confession that Benczkowski did not attempt to connect any dots on the whistleblower complaint.

But as to Barr, even as this story was breaking, Barr was in Italy pretending to be a Line FBI Agent, watching movies created by the Russian linked lawyer for Joseph Mifsud, in hopes of getting Italy to tell him and Durham that Mifsud was actually a Western intelligence asset and not the Russian one that Mueller (and abundant public evidence) suggested him to be.

In other words, by September 25, someone had already shared “evidence” with the Barr-micromanaged Durham investigation from the Ukrainian side of this information operation, and Barr was in Italy looking for more propaganda, to say nothing of how his meeting with Dmitry Firtash’s lawyers helped fund the information operation.

Barr did not publicly exonerate Trump personally — he had Kerri Kupec do it for him

I apologize for being long-winded. But all that is the necessary context that DOJ beat reporters should bring to a story on what Barr did in response to a request from Trump to make a public statement exonerating the President. Here’s the news in the WaPo piece, amid a bunch of Barr’s past PR and absent most of the details I’ve laid out above.

President Trump wanted Attorney General William P. Barr to hold a news conference declaring that the commander in chief had broken no laws during a phone call in which he pressed his Ukrainian counterpart to investigate a political rival, though Barr ultimately declined to do so, people familiar with the matter said.

The request from Trump traveled from the president to other White House officials and eventually to the Justice Department. The president has mentioned Barr’s declination to associates in recent weeks, saying he wished Barr would have held the news conference, Trump advisers say.

[snip]

The request for the news conference came sometime around Sept. 25, when the administration released a rough transcript of the president’s July phone call with Ukrainian President Volodymyr Zelensky.

[snip]

As the rough transcript was released, a Justice Department spokeswoman said officials had evaluated it and the whistleblower complaint to see whether campaign finance laws had been broken, determined that none had been and decided “no further action was warranted.”

It was not immediately clear why Barr would not go beyond that statement with a televised assertion that the president broke no laws, nor was it clear how forcefully the president’s desire was communicated. A Justice Department spokeswoman declined to comment. A senior administration official said, “The DOJ did in fact release a statement about the call, and the claim that it resulted in tension because it wasn’t a news conference is completely false.”

So, at a time after someone had already shared Ukrainian information with the Barr-micromanaged Durham investigation, after Barr had met with lawyers who were trading that access for propaganda to feed Durham, after Barr’s DOJ had scoped the whistleblower complaint to ensure it would not tie the complaint to the fully predicated criminal investigation in SDNY, after DOJ failed to turn over the complaint to FEC as required by a memorandum of understanding, after DOJ created an excuse to delay sharing the whistleblower complaint with Congress as mandated by law, after DOJ tried to hide Barr’s own involvement from Congress by overclassifying that fact … after all those overt acts that, depending on Barr’s understanding of what he got briefed way back in February and learned in multiple different ways since then, might amount to overt acts in the conspiracy SDNY has already charged Parnas and Fruman in, Barr declined to go out before cameras and comment on an ongoing investigation (which is, remember, what Jim Comey was ostensibly fired for) by publicly exonerating the President.

Instead, he had DOJ’s spox Kerri Kupec do so, in a statement that offered up excuses for why DOJ failed to connect the dots on a complaint that tied to a fully predicated investigation being conducted by SDNY.

Had Barr made that public comment, with his knowledge that the subject of the complaint connected to an ongoing investigation in SDNY into the underlying information operation that led up to the President’s call, his involvement in the Durham investigation that had already been fed by that information operation, and his meeting with lawyers that helped to provide a payoff for some of that information operation, it would have been an overt act that even Barr, with his abundant flair for PR (as witnessed by this WaPo article), could not deny was an overt act in a conspiracy being investigated by his subordinates.

So instead, he had a different subordinate (there is no evidence Kupec had any knowledge of these other acts) do that.

But that is not — as portrayed by the WaPo — evidence of distance between Barr and the White House. Rather, it’s evidence that Barr recognizes his own risk of becoming an active member of the conspiracy his DOJ went to great lengths to avoid investigating.

And all that’s before Barr slinked into a meeting with Rupert Murdoch as Sean Hannity was about to become part of the conspiracy.

Horowitz

DOJ’s Inspector General (and 70 Colleagues) Says DOJ’s Lawyers Fucked Up

On Tuesday, the Council of Inspectors General on Integrity and Efficiency just sent OLC head Steve Engel a scathing letter criticizing his opinion that Acting Director of National Intelligence Joseph Maguire could not share the whistleblower complaint about President Trump’s July 25 phone call with Volodymyr with Congress. Generally, its content says about what you’d think:

  • ICIG was right to complain about OLC’s decision in a September 17 letter
  • ICIG was about DNI’s jurisdiction over federal elections and classification of information
  • OLC’s opinion could impair whistleblowing
  • OLC’s opinion deviates from Congressional intent on IC statutes, as backed by both Chuck Grassley and Mark Warner
  • OLC did not raise any valid constitutional concern, but instead simply substituted its judgment for the ICIG’s

But I’m more interested in what it means that CIGIE’s Chair, Michael Horowitz, wrote it. Horowitz also happens to be DOJ’s Inspector General, the same guy Bill Barr has loaded up with investigations designed to take down Trump’s critics, someone whom the frothy right has invested a lot of their respect.

Don’t get me wrong. I’m sure Horowitz would have written the letter in any case, even if he weren’t DOJ IG. He’s a fierce protector of IG prerogatives, which is one reason why he’s the Chair.

Horowitz is also a brilliant tactician who has used his positions–both as DOJ IG and as CIGIE head–to assert his authority. Just as one very key example, after a several year fight with FBI, he managed to get broad access to FBI’s files for IG investigations. In another example, he managed to investigate lawyer Jim Comey (in his administrative role) even though generally such investigations get done by DOJ’s Office of Professional Responsibility.

And I view this letter, in addition to being a very public and powerful stand on an important principle, as a tactic. One thing the letter does, for example, is lay out that a top DOJ lawyer violated Congress’ intent on how Inspectors General are supposed to work. That’s the kind of thing that — if my years of watching Horowitz are any indication — we may hear the next time Horowitz testifies about his work and the scope of DOJ’s IG, which is limited in ways that other IGs aren’t.

More interesting, given the abundant proof that DOJ worked hard to avoid connecting the dots on this complaint, is Horowitz’s footnote noting that DOJ and FBI have responsibilities to investigation interference in our elections seems

The fact that other parts of the government, such as the Federal Bureau of Investigation and the Department of Justice, also have responsibilities in this area does not divest the DNI of such duties as a matter of law or practice.

Horowitz may not have the authority to investigate Steve Engel, but he does have the authority to investigate the people who found ways not to investigate this complaint competently, and his concern on OLC may reflect a concern on what else happened at DOJ.

Horowitz also maps out broad authority for ICIG to continue to investigating both the allegation itself and (importantly), the misuse of the Top Secret server to hide other problematic call transcripts.

These responsibilities support the ICIG’s conclusion that the protection of federal elections from foreign interference is squarely within the DNI’s “operations”. The legal authorities cited in his letter also support the ICIG’s determination that the whistleblower raised a claim of a serious or flagrant problem that relates to an intelligence activity within the DNI’s jurisdiction. It surely cannot be the case that the DNI has responsibilities related to foreign election interference but is prohibited from reviewing the cause of any such alleged interference.

We further note that the DNI has jurisdiction over the handling of classified and other sensitive information. As a result, the whistleblower’s allegation that certain officials may have misused an intelligence system also raises an additional claim of a serious or flagrant problem that relates to the operations of the DNI and therefore may properly be considered an urgent concern under the statute.

We actually don’t know whether ICIG has continued to investigate this issue. But Horowitz lays out the case that he has the authority to.

Finally, Horowitz focuses on the delay that OLC’s opinion had, preventing Congress from learning about the complaint by September 2 (when, by law, they should have received the whistleblower complaint).

As Congress has done in every other whistleblower law passed since 1978, it entrusted IGs to play a central role in the evaluation of the information provided. Specifically, the ICWPA requires an IG to make within 14 days a factual determination as to whether an alleged urgent concern provided to the IG “appears credible.” If the IG determines that the allegation appears credible, which necessarily includes a determination by the IG that it involves an “urgent concern,” the IG is required to forward the allegation to the head of the agency and the agency head “shall” forward it to Congress within 7 days “with any comments.” The ICWPA’s use of the word “shall” makes it clear that the statute does not authorize the agency head, or any other party for that matter, to review or second-guess an IG’s good faith determination that a complaint meets the ICWPA’s statutory language.

Congress only received the complaint on September 25, an illegal delay of 23 days, during which time Trump released the withheld funds and had a meeting with a much-weakened Zelensky, to say nothing of whatever meetings Rudy and Bill Barr had in the interim. While it’s unlikely to happen, Horowitz’s language at least lays out the clear impact of Engel’s opinion in obstructing Congress’ ability to be able to deal with this issue in timely fashion.

Thus far, the American public has had little success at disciplining OLC lawyers for the bullshit they cause (though even courts are inching closer to doing so). This letter seems, to me, like the first step in an attempt by Horowitz to be able to do so.