Defendant Barr’s Flip-Flops Finally Attract Press Attention

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Bill Barr’s sloppy lying may finally be catching up to him.

The press should have stopped treating the Attorney General as credible after he obviously lied about the contents of the Mueller Report. But he continued to be accorded the courtesy of the office, through changing DOJ stories about his involvement in Trump’s effort to coerce a quid pro quo in Ukraine (and the impeachment that followed) and his cover stories to explain unprecedented interference in the prosecution of Trump flunkies.

But over the course of the last week, the press has gone from reporting anonymous DOJ scoops, to noting how later DOJ claims conflicted with that scoop, to outright debunking of Barr (even if they’re not yet treating him as the consistent liar they recognize Trump to be).

On Tuesday, WaPo had a scoop citing an anonymous DOJ official stating that Barr personally ordered the attack on protestors, perhaps an effort to shift the focus from Trump.

Attorney General William P. Barr personally ordered law enforcement officials to clear the streets around Lafayette Square just before President Trump spoke Monday, a Justice Department official said, a directive that prompted a show of aggression against a crowd of largely peaceful protesters, drawing widespread condemnation.

The claim took the heat off of President Trump.

In a presser on Thursday, Barr offered a more elaborate explanation. He claimed he made the decision to move the perimeter around the White House on Trump’s orders — to protect the White House from protestors — before the arrival of protestors on Monday.

On Monday, the president asked me to coordinate the various federal law enforcement agencies, not only the multiple department of justice agencies, but also other agencies such as those in the Department of Homeland Security. So we had a coordinated response and worked with the National Guard and also with the DC police. That morning, we decided that we needed more of a buffer to protect the White House and to protect our agents and secret service personnel who could be reached by projectiles from H Street. I made the decision that we would try to move our perimeter northward by a block to provide this additional protection. And later at 2:00 on Monday, I met with all the various law enforcement agencies and we set our tactical plan. And that plan involve moving our perimeter a block North to I Street. It was our hope to be able to do that relatively quickly before many demonstrators appeared that day.

Unfortunately, because of the difficulty in getting appropriate units into place, by the time they were able to move our perimeter up to I street, a large number of protestors had assembled on H Street. There were projectiles being thrown and the group was becoming increasingly unruly. And the operation to what… They were asked to three times if they would move back one block, they refused. And we proceeded to move our perimeter out to I Street.

In the same presser, he claimed that he saw “instigators” before the move to push them back, thereby claiming both advance planning but also an imminent threat.

I think one of the difficulties is that while there are peaceful demonstrators and participants in these protests, the instigators, those committed to violence, basically shield themselves by going among them and carrying out acts of violence. I saw the projectiles on Monday when I went to Lafayette Park to look at the situation. And as one of the officials said, he pointed out various knots of people where the projectiles were coming from and we could see… and it was a lot of demonstrators. And it’s hard to know exactly where they’re coming from. Frequently, these things are thrown from the rear of the demonstration, but we could not continue to protect the federal property involved and protect the safety of our agents with such a tight perimeter. And so our object was to move it out by one block. Next question, please.

On Friday, however, Barr started backing away from responsibility. That day, the AP reported that Barr had not given the tactical move to attack the protestors. Instead, some unnamed person who could not be directly tied to a Barr (and therefore a Trump) command did that.

On Friday, Barr told the AP that both he and U.S. Park Police were in agreement on the need to push back the security perimeter. He said he attended a meeting around 2 p.m. Monday with several other law enforcement officials, including Metropolitan Police Chief Peter Newsham, where they looked at a map and decided on a dividing line. Under the plan, the protesters would be moved away from Lafayette Park and federal law enforcement officials and members of the National Guard would maintain the perimeter line, Barr said.

[snip]

Barr said it was a Park Police tactical commander — an official he never spoke to — who gave the order for the law enforcement agencies to move in and clear the protesters.

“I’m not involved in giving tactical commands like that,” he said. “I was frustrated and I was also worried that as the crowd grew, it was going to be harder and harder to do. So my attitude was get it done, but I didn’t say, ‘Go do it.’”

Barr insisted there was no connection between the heavy-handed crackdown on the protesters and Trump’s walk soon after to St. John’s Church.

Finally, on Sunday, Margaret Brennan interviewed Barr on Face the Nation, one of the first times during this tenure as AG Barr has sat for an interview with someone who was neither (like Pete Williams or Pierre Thomas) someone he knew from the Poppy days, nor (like Catherine Herridge) a right wing stenographer. Brennan challenged a lot of these inconsistencies, leading to Barr to make a comment — that pepper balls are not tear gas — that has been widely mocked since.

MARGARET BRENNAN: I want to ask you about some of the events of the week. On Monday, Lafayette Park was cleared of protesters. You’ve spoken about this. The federal agents who were there report up to you. Did you think it was appropriate for them to use smoke bombs, tear gas, pepper balls, projectiles at what appeared to be peaceful protesters?

BARR: They were not peaceful protesters. And that’s one of the big lies that the- the media is- seems to be perpetuating at this point.

MARGARET BRENNAN: Three of my CBS colleagues were there. We talked to them.

BARR: Yeah.

MARGARET BRENNAN: They did not hear warnings. They did not see protesters–

BARR: There were three warnings.

MARGARET BRENNAN:–throwing anything.

BARR: There were three warnings given. But let’s get back to why we took that action. On Friday, Saturday and Sunday, OK, there were violent riots in- at Lafayette Park where the park police were under constant attack at the- behind their bike rack fences. On Sunday, things reached a crescendo. The officers were pummeled with bricks. Crowbars were used to pry up the pavers at the park and they were hurled at police. There were fires set in not only St. John’s Church, but a historic building at Lafayette was burned down.

MARGARET BRENNAN: These were things that looters did.

BARR: Not looters, these were- these were the- the violent rioters who were- dominated Lafayette Park.

MARGARET BRENNAN: But what I’m asking about–

BARR: They broke into the Treasury Department,–

MARGARET BRENNAN: –on Monday when it was a peaceful protest.

BARR: I’m going to- let me get to this, because this has been totally obscured by the media. They broke into the Treasury Department, and they were injuring police. That night,–

MARGARET BRENNAN: Sunday night?

BARR: Sunday night, the park police prepared a plan to clear H Street and put a- a larger perimeter around the White House so they could build a more permanent fence on Lafayette.

MARGARET BRENNAN: This is something you approved on Sunday night?

BARR: No. The park police on their own on- on Sunday night determined this was the proper approach. When I came in Monday, it was clear to me that we did have to increase the perimeter on that side of Lafayette Park and push it out one block. That decision was made by me in the morning. It was communicated to all the police agencies, including the Metropolitan Police at 2:00 p.m. that day. The effort was to move the perimeter one block, and it had to be done when we had enough people in place to achieve that. And that decision, as I say, was communicated to the police at 2:00 p.m.. The operation was run by the park police. The park police was facing what they considered to be a very rowdy and non-compliant crowd. And there were projectiles being hurled at the police. And at that point, it was not to respond–

MARGARET BRENNAN: On Monday, you’re saying there were projectiles–

BARR: On Monday, yes there were.

MARGARET BRENNAN: As I’m saying, three of my colleagues were there.

BARR: Yeah.

MARGARET BRENNAN: They did not see projectiles being thrown–

BARR: I was there.

MARGARET BRENNAN: –when that happened.

BARR: I was there. They were thrown. I saw them thrown.

MARGARET BRENNAN: And you believe that what the police did using tear gas and projectiles was appropriate?

BARR: Here’s- here’s what the media is missing. This was not an operation to respond to that particular crowd. It was an operation to move the perimeter one block.

MARGARET BRENNAN: And the methods they used you think were appropriate, is that what you’re saying?

BARR: When they met resistance, yes. They announced three times. They didn’t move. By the way, there was no tear gas used. The tear gas was used Sunday when they had to clear H Street to allow the fire department to come in to save St. John’s Church. That’s when tear gas was used.

MARGARET BRENNAN: There were chemical irritants the park police has said–

BARR: No, there were not chemical irritants. Pepper spray is not a chemical irritant.

It’s not chemical.

MARGARET BRENNAN: Pepper spray, you’re saying is what was used–

BARR: Pepper balls. Pepper balls.

MARGARET BRENNAN: Right, and you believe that was appropriate. What I want to show you is what a lot of people at home who were watching this on television saw and their perception of events. So while the president says that he appreciates peaceful protest, around the same time, this crowd–

BARR: Well, six minutes- six minutes difference–

MARGARET BRENNAN: Right, around same time the area is being cleared of what appear to be peaceful protesters using some force. And after the speech is finished, the president walks out of the White House to the same area where the protesters had been and stands for photo op in front of the church where the protesters had been. These events look very connected to people at home. In an environment where the broader debate is about heavy handed use of force in law enforcement, was that the right message for Americans to be receiving?

Along the way, however, Barr’s explanation got more and more inconsistent.

What started out as an apparent effort to shield the President from direct responsibility for attacking protestors to clear way for his photo op became, by the end of the week, an effort to create a legal justification — protestors throwing things — while still distancing the time of the order from the photo op.

That’s a conflict Phil Bump highlighted in a particularly good job of shredding Barr’s statements, relying on an earlier detailed timeline he did. In addition to mocking Barr’s claim that pepper balls are not tear gas because they’re naturally occurring, Bump shows how Barr’s statements yesterday conflict with the justification for using tear gas.

“Here’s what the media is missing,” Barr said to Brennan on Sunday. “This was not an operation to respond to that particular crowd. It was an operation to move the perimeter one block.”

The problem with that framing is twofold.

First, it contradicts that same statement from the Park Police that serves as the backbone of the tear-gas defense. In that statement, the Park Police claim that protesters “began throwing projectiles including bricks, frozen water bottles and caustic liquids” at 6:33 p.m. This prompted the effort to clear the square to “curtail the violence that was underway.” There’s nothing about this being a planned operation.

What’s more, Barr himself made the claim to Brennan that the protesters were being violent at the time that the effort to remove them began.

“Three of my colleagues were there,” Brennan told him. “They did not see projectiles being thrown.”

“I was there,” Barr replied. “They were thrown. I saw them thrown.”

The timing of Barr’s visit is important, and we’ll get to it in a bit. But suffice it to say that video evidence from the period not only doesn’t back up the Park Police claim, it also doesn’t show Barr reacting to any such events.

It has been rare, possibly unprecedented, for the press to track Barr’s obvious lies this closely, even in the case of legal cases (like the Flynn prosecution) where Barr’s flip-flops are docketed.

I think a lot of things explain the unusual attention to Barr’s flip-flops. The assault on protestors and Trump’s tone-deaf photo op was so pathetic, the White House went into damage control. And because there were so many journalists at Lafayette Park, there were a slew of witnesses attesting to inconsistencies and inaccuracies in the official version of the story (starting with the Park Police’s flip-flops on the tear gas). Now, Barr is in a position of accusing three CBS reporters and at least one WaPo reporter, whose versions of this story differ dramatically from his own, of lying: His word against the reports of outside observers who have film to backup those reports.

But Barr’s changing excuses may also be partly explained by one other thing.

As noted, Barr’s first instinct seemed to be to distance the President from the order targeting peaceful protestors, and as he has repeatedly done, he took responsibilty (and Kayleigh McEnany happily gave him responsibility). But that created new problems: including why the Attorney General was ordering cops, many of them not within his chain of command, but more importantly, why Trump —  through orders given to Barr who executed those orders by issuing orders of his own — had responded to First Amendment protected activities with a violent assault.

The stakes of the answers to that question may have gone up with the filing of a lawsuit captioned, “Black Lives Matter v. Donald Trump:” Bill Barr is a named defendant.

Defendant William Barr is the Attorney General of the United States. He is sued in his individual and official capacity. He personally issued the order that resulted in the unlawful actions complained of in this lawsuit.

[snip]

At approximately 6:08 pm, Defendant Barr entered Lafayette Square.

At 6:10 pm, Defendant Barr was behind the law enforcement officials in Lafayette Square pointing north towards St. John’s Church. The Department of Justice subsequently acknowledged that Defendant Barr personally ordered that Lafayette Square be cleared.

Let me be clear: because this suit focuses on Bivens complaints about the violation of Constitutional rights, it probably won’t succeed in terms of the damages requested. Recent proceedings have largely gutted Bivens.

But what the suit does do is trace a link between Barr’s actions and the complaints of the plaintiffs (who include a 9-year old boy, a Navy veteran, and a former Eagle Scout). It does so through some of the same details that Barr is now trying to obfuscate.

And what the lawsuit may do is force a way to make the events that Barr is trying to cover up public.

Barr’s lies are consistent with all his other lies. He makes broad claims to power — not authority — and then he keeps changing the story as needed to try to give his claims retroactive legal cover.

This time, he may be forced to do so in court.

Update: WaPo did an unbelievably detailed piece showing no evidence for Park Police claims of dangerous projectiles, and making evident how the clearance of the Square led to the photo op.

The Why of “Defund the Police” [UPDATE]

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[Update at the bottom of this post. /~Rayne]

Apart from the purely economic rationale that a function which has so repeatedly failed should not continue to be funded, there are ample reasons why policing as we know it in this country needs to be deconstructed and replaced — in shorthand, defund the police.

Last night on HBO, John Oliver did an amazing job of discussing the problems with policing in America. It’s so good I can’t add anything. It’s a primer from which we should start.

Yet Oliver’s work was tremendous not just because it examined the history of this country’s failure to reform policing, but because the end of his program gave a black voice a platform long overdue (31:56).

I want to reverse what he did by insisting you listen to author Kimberley Jones first, her entire comment and not just the excerpt Oliver shared. This is a powerful statement you should not miss:

And then watch John Oliver’s program last night. In this order you can see that everything about policing in America has been constructed on lies.

You’ll hear and read puzzlement about calls to defund the police.

What does it mean? asked because their privilege has never forced them to look carefully at how fucked up policing is in the U.S. (note carefully the person and context surrounding them when they ask).

What do they want instead? as if “they” are a separate group, disclosing the bias at the root of the problem.

Why can’t we just fix it? again, privilege blinds those who ask to how fatally flawed policing has been from the start. Some who have internalized this country’s systemic oppression will also ask this same question.

The wealth of this country was built on economic theft, and American policing has been constructed to preserve this massive looting of hundreds of years of black lives.

What Kimberley Jones doesn’t point out is that the looting didn’t stop with black lives. The ground Americans stand on was stolen from yet more brown people who were eradicated, and then farmed and developed by stolen people under whips and chains and at gun point. The theft continues apace under a legal system which ensures the gap of wealth remains uncrossable, that power likewise remains solely in the hands of those with wealth.

There is no fixing a police system designed to protect capital created from ongoing crime.

 

Defund the police, by which it means see with clear eyes the original sin of placing preservation of property rights over human rights, the original sin of treating some humans as less worthy than others.

Defund the police, by which it means to re-prioritize our spending with those same clear, open eyes with an aim to realize reasonable distributive justice, developing and preserving human lives.

 

UPDATE — 09-JUN-2020 11:15 AM ET —

Because there’s a lot of complaining about the unofficial slogan, “Defund the Police,” I think these couple of tweets are worth consideration.

Quit complaining. Focus: we need to change how we ensure public safety. What are you doing about it?

Start attending your local county/city/town/village council meetings. Research your local law enforcement entity’s performance. Are municipalities measuring complaints against law enforcement along with use of force? What has your locality done to ensure there is adequate access to mental health care, addiction, housing, and domestic crisis intervention, all of which affect the number of calls to police?

You can also do other research right now before you attend a local meeting.

Citizens Police Data Project – https://www.CPDP.co

CPDP takes records of police interactions with the public – records that would otherwise be buried in internal databases – and opens them up to make the data useful to the public, creating a permanent record for every CPD police officer. Examine this as a model for tracking your local law enforcement’s performance.

Mapping Police Violence – https://mappingpoliceviolence.org/nationaltrends

A research collaborative collecting comprehensive data on police killings nationwide to quantify the impact of police violence in communities. Check your state against others for trends in death by cops.

Police Use of Force Project – http://useofforceproject.org/

This Campaign ZERO project investigates the ways in which police use of force policies help to enable police violence in our communities. Read their report examining 100 communities.

Police Union Contract Project – https://www.checkthepolice.org/

This Campaign ZERO project reviewed police union contracts and police bill of rights legislation to examine how they make it more difficult to hold police accountable. Read their summary report of 81 cities in 15 states.

The Open Policing Project – https://openpolicing.stanford.edu/

This project at Stanford University aims to help researchers, journalists, and policymakers investigate and improve interactions between police and the public by collecting and analysing data from police traffic stops across the country. Read their findings.

Policing Project – https://www.policingproject.org/

This NYU School of Law project works to ensure accountability and democratic participation on the front end, before police violence requires ineffective back-end accountability. Read their work to date.

National Police Accountability Project – https://www.nlg-npap.org/

A National Lawyers Guild project dedicated to holding law enforcement accountable for misconduct. If you’re a lawyer, check for one of their online webinars.

 

This is NOT an open thread. Please stick to this topic in this thread.

Three Things: A for “Antifa”, B for Brutality, C for Commit (Murder)

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Messy title, sorry — couldn’t think of something snappy and I’m even struggling with a lead in. Let’s just get to it.

~ 3 ~

A/B switch: “Antifa”

A little article about a tiny town caught my eye this weekend. Some racist gits in a rural area of Washington state played cat-and-mouse with a multi-racial family trying to camp in the area while driving a bus-turned-camper.

Local racists harassed them, accusing them of being members of “Antifa” — the made-up bugbear conjured from anti-fascist philosophy by Trump’s brain trust, hereinafter referred to with appropriate scare quotes. Even the local paper reports “Antifa” exists as an organization when there isn’t one.

What struck me as odd is how intensely a local gun shop owner and at least a dozen local residents believe there is an effort by “Antifa” to bus in their anarchist members to make trouble.

Right…busloads into a town with an estimated population of 6,600.

How did this notion about bogeyman “Antifa” become so quickly and deeply embedded in a remote area of the U.S.? Especially where the possibility of any anarchists making a big splash let alone filling a bus is utterly ridiculous.

It’s not just this one small town, either. It’s much of the Pacific Northwest and beyond — so many people looking like doofuses, claiming victory over non-existent anarchist hordes.

This mythology has even eaten the already-compromised brains of candidates like this one:

She’s threatening people with an automatic weapon in a campaign ad and then complains because Facebook took down her advertisement. Greene is simply unfit to hold office if she can’t understand threats of violence are simple violations of Terms of Service.

Now it’s true that figureheads in the GOP have been willing to push the vaporous entity “Antifa” using their bully pulpit — like Sen. Ted Cruz droning on last summer about a non-binding Senate resolution, S.Res. 279, submitted by Sen. Bill Cassidy (R-LA) declaring “Antifa” a terrorist organization while pointing to a Pacific Northwest group which may or may not have truly existed and whose domain address has been defunct for three years.

But most right-wing voters don’t run around saying, “But Ted Cruz said…” about any topic. If they did he might have had a chance at winning the primary in 2016, but he’s just a placeholder.

Same for Bill Cassidy — he’s just another empty suit in a GOP seat.

Some organized effort has been put into building and consolidating pro-fascist sentiment among people willing to arm themselves, take to the streets, and cut down trees in the woods, and openly harass persons of color.

Here’s my theory: “Antifa” isn’t just a bogeyman. It’s a test, like an A/B switch. The folks who adopt this concept so deeply they are willing to take action outside the norm can also be persuaded to take other action.

QAnon likely serves a similar purpose, providing a centralized mythology for persons identified as too weak to reason out of a wet paper bag but willing to invest some degree of effort for their new “faith” system.

What can’t be seen apart from idiots like this gun shop owner and his compadres is how this uptake is being tested online. This small town gun shop owner didn’t pull the idea of bus-packing “Antifa” terrorists out of thin air; he must have gotten through broadcast media and social media, of which only social media would allow a two-way push-pull of content.

Who or what is at the other end of whatever pushed this “Antifa”-on-buses meme to this tiny town in northwestern Washington? Is it just Facebook content and Fox, or is something more in play?

Is it like the Russian influence operations which were able to convince people to organize Trump rallies via Facebook in 2016?

Or is it something more simple — a convenient distraction from the continuing mass death event we know as COVID-19?

~ 2 ~

B for Brutality

Greg Doucette has been collecting and curating cases of police brutality and abuse from across the country since protests began after George Floyd’s murder-by-racist-cop.

As of this afternoon Doucette has collected at least 384 independent cases, nearly all captured on camera.

This many cases over the last week’s time suggests there are not merely a few bad apples, but that the entire barrel has now gone rotten.

Brutality is normalized from top to bottom of law enforcement, deeply embedded into policing.

These persons employed by our tax dollars are not protecting anyone. It’s not clear who they are serving apart from property owners; they are not serving the greater public interest.

Most telling: in cities where curfews were not enforced or were lifted, there was no violence.

The police have been the source of violence — many of nearly 400 cases itemized so far provide ample evidence of this fact.

It’s time to look for better models to serve the public’s needs. We are paying too much for services which do not work. We need to do more than reform policing. It should be torn down, plowed into the ground, and something better built from scratch.

Look at the City of Los Angeles’ projected budget allocation:

New York City’s budget is similarly distributed with a massive skew toward policing.

What this currently pays for is abusive police who assault the public, escalate tensions, after failing to make a good faith effort to de-escalate and mediate community conflict.

The money is there; priorities need to change. Tax dollars need to be spent more effectively on the root causes which have driven the need for policing — more money for mental health resources, community housing for the homeless, therapy for drug addiction, child care, after-school programs, and crisis intervention instead of militarized policing which moves to violence far too eagerly, too often.

It’s time to abolish police as we’ve known them and build something better, healthier for our society.

If you’re balking at this idea, ask yourself why.

~ 1 ~

C for Committing Murder — mass murder by COVID-19

Given the large number of rallies across all 50 states protesting police brutality and racism, it’s reasonable to expect an uptick in COVID-19 cases.

The police bear a substantive portion of responsibility for anticipated cases arising from the protests due to poor policing practices including imposition and enforcement of curfews. Like the nearly 400 documented cases of brutality and abuse, police kettling of protesters into tight clusters breaking social distancing appeared organized and systematic.

Like repeated use of bridge closures to limit protesters’ movement even when being herded away from protest sites toward home at the end of the day.

New York City was particularly bad; it not only shut down bridges, forcing protesters into narrow streams, but it shut down subway stations for several days, sometimes at NYPD’s orders. Protesters bunched up at the subway finding themselves without transportation, hemmed in by police. Lack of alternate public transportation did not help matters.

The situation was further aggravated by police seizure of bikes for stupid (read: no) reasons.

Kettling wasn’t confined to New York City. There are many tweets documenting cases in larger cities like Seattle and Chicago.

An additional risk factor for protesters is their exposure to chemical irritants like pepper spray and tear gas. This Twitter thread explains the risks irritants pose.

Stress caused by police abuses may make protesters more vulnerable to COVID-19 exposure.

Which may have been the point: abusive police encouraged to use bad police practices may have been engaged in passive-aggressive large scale murder by exposure to biological agents.

We can only hope that the increased use of masks by protesters discouraged coronavirus transmission and reduced injuries caused by chemical irritants.

Yes, chemical irritants, Bill Barr, you lying sluggard with zero background in science. Let an expert in chemistry tell you.

Barr poses a threat to the health and welfare of the American public and needs to be impeached. Even if the GOP Senate will slack off and fail to remove him, the Dem-led House should impeach Barr for his abuse of office and his lying to the public so that Congressional records tell the future Barr’s bullshit was and is unacceptable from an attorney general.

~ 0 ~

And then the white nationalists embedded throughout police forces across the country, for which I haven’t enough energy remaining though it’s urgently in need of attention.

Like Salem, Oregon:

And Las Vegas:

There’s more of them. Trump’s Department of Justice under Jeff Sessions and Bill Barr have failed to do anything effective to root them out, though a GOP-led Congress throughout Obama’s administration and beyond has also played a role in suppressing oversight of white nationalist threats infiltrating law enforcement.

It looks less like neglect and more like deliberate abuse.

 

This is an open thread.

Judge Emmet Sullivan Makes A Serious Holiday Move on DOJ and Flynn

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I have expressed some qualms over Judge Sullivan naming John Gleeson as the court’s amicus on the crazy Flynn situation. But today there is a new player on the pitch, Beth Wilkinson.

Judge Sullivan has engaged a hired gun.

Folks need to understand the Yoda like move Emmet Sullivan made in hiring Beth Wilkinson.

First off, she is an absolutely fantastic advocate and tough as hell.

Second, she has serious DOJ cred.

Third, she still has major friends at Paul Weiss, and that counts below the surface.

Fourth, Brett Kavanaugh may well owe his Supreme Court seat to her.

Fifth, her husband is David Gregory, the former NBC guy and now senior political guy at CNN. That is some media contact potential whether direct or indirect.

Also, again, she is really kick ass. Beth Wilkinson is a serious player, and a killer advocate. Judge Emmet Sullivan is not going quietly into the night. I actually thought that, given the short response time the DC Circuit ordered, Sullivan and his clerks might do the response themselves. Obviously they will still have major input, but this battle is joined, and in a very big way.

Trump Pride and DOJ Prejudice: The Flynn Volume

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As Marcy has already reported, the DOJ has formally moved to dismiss the Flynn case. Here is the pleading they filed. (Marcy also addressed here) Trump is, of course, calling the DOJ who just did his command influence bidding “scum” and accusing them of “treason”.

Let’s start with a little Q and A:

Q: Can DOJ do that?

A: Sure, but it is bizarre beyond belief.

Q: Does this mean the case is over?

A: No. As I have repeatedly said, the plea has been accepted, after full allocution, not just once (Judge Contreras), but twice (Judge Sullivan) and, arguably thrice (also Judge Sullivan). There is a technical difference between a plea being entered and a plea being accepted. The Flynn plea was very much accepted. Multiple times.

Q: So, what does that mean?

A: It means that there was a formal finding of guilt entered by the court.

Q: So is that finding of guilt gone now?

A: No. The DOJ can file whatever it wants, the final decision still remains with Judge Emmet Sullivan.

Q: Does that mean “Flynn is an innocent man” as Trump is bellowing?

A: No. Flynn has sworn to his guilt under oath and penalty of perjury multiple times, and the court accepted his sworn guilt.

Q: So, what happens now?

A: Yeah, I don’t know the answer to that. We shall have to await Judge Sullivan entering in with his thoughts. I have no idea where Judge Sullivan will go. For the sake of the rule of law, and, frankly, legal sanity, I hope Judge Sullivan takes this as the full on broadside to law and intelligence that it really is. As I importune relentlessly, courts and law are a function of men and women. They are us. They speak and act for us. Judge Emmet Sullivan is not a man that will take this affront to justice lightly. Nor should he. It is absurd, the court should treat it that way, and, if anything, sanctions ought be imposed on Powell and Flynn.

Okay, where does that leave things? Now that is not a very easy question to answer. Here are a few thoughts though. The first one is “prejudice”. It is absolutely critical whether a dismissal request by the DOJ (or any prosecutor for that matter) is “with prejudice” or “without prejudice”. Here, Tim Shea, and it is crystal clear that means Bill Barr, demands that any dismissal be “with prejudice”. That means that no case based on these facts could ever be brought again. It is a pardon by a corrupt DOJ, without Trump ever having to even issue a pardon. Anybody, including the national press, that describes it differently is straight up lying.

The statute of limitations on a 18 USC §1001 charge for false statements is (as pretty much any charge possible against Flynn save for an ongoing conspiracy allegation) is five years, which is the general statute in federal criminal law. But, you see, that exceeds the time of Trump and Barr if Trump is not reelected. And therein lies the problem and why Mr. Barr and his lackeys Shea and Jensen, are apoplectic to make any dismissal “with prejudice”. Does this ever occur in real criminal justice life? No. Hell no. Of course not, in fact it is always “without prejudice”. Always, unless the government is caught by incontrovertible facts beyond dispute, and even then they usually demur to “without prejudice” dismissal.

But, wait, there’s more, I have other questions! Let’s talk about “materiality” for a moment. It is replete in the position taken by Bill Barr, through his cutout, Tim Shea. To be kind to Mr. Shea, he is an eggplant installed by Trump and Barr. And, here, the eggplant has signed this pleading on his own. Normally any such pleading would be signed by underlings, including career prosecutors. But not here. Why? That is not clear, but apparently no career track lawyer in DOJ would undersign this garbage. So there is that.

Back to “materiality”: Peruse pages 12-20 of the DOJ motion. Good grief, law review articles will spend hundreds of pages in the future laughing at the arguments Tim Shea has signed off on. Because, presumably nobody but a Trump/Barr appointed toady would even touch that. Yes, it is truly that absurd.

Okay, a parting shot: Normally, when a client puts an attorney’s work in dispute through claims of malpractice, all attorney/client privilege is waived. That is generally how it works. And if Flynn and his Fox News addled lawyer Sid Powell have not accused Rob Kelner and Covington & Burling of malpractice, then there has never been such an accusation. Privilege is waived.

While I thought Judge Sullivan should have disregarded the nonsense, denied all the the Powell crazy (arguably unethical conduct) and just sentenced Flynn. Marcy was right, and I underestimated just how sick the DOJ could be under Barr.

Well, here we are. Flynn and Powell have waived privilege. The DOJ under Barr and, here, Shea, is corrupt beyond comprehension.

But the irreducible minimum is that Judge Emmet Sullivan is the one with jurisdiction and control of this case. Not Trump. Not Barr. An honest and good judge, and one that has proven that over decades. Sidney Powell was right about one, and only one, thing: The Stevens case is a template for the court to find the truth.

Emmet Sullivan is a judge that can appoint an honest and independent special prosecutor to make sure real justice is done. Trump and Barr cannot fire the truth if Judge Sullivan seeks the truth and justice. And he should, for all of us. Judge Sullivan is a lion of justice that has done this before, and he should again.

Roger Gets Stoned by Amy Berman Jackson

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I left a comment earlier about the decision by Judge Amy Berman Jackson of the US District Court for the District of Columbia in the Roger Stone case. ABJ denied the Stone motion on Stone’s motion for new trial, and it was scathing. As it should have been.

You might remember the transcript of Stone’s sentencing on February 20, 2020 and his lame motion for ABJ to recuse herself dated February 23, 2020, both of which went nowhere. Then he filed the motion for new trial, based on alleged juror irregularities, which has now also gone nowhere.

Here is the full decision. The whole decision is good, but if you want the court summary, reading the first nine pages will give you all that.

Given that federal courts speak usually in very veiled language, this is pretty blistering. Here are a few choice nuggets, starting off with the main conclusion:

The assumption underlying the motion – that one can infer from the juror’s opinions about the President that she could not fairly consider the evidence against the defendant – is not supported by any facts or data and it is contrary to controlling legal precedent. The motion is a tower of indignation, but at the end of the day, there is little of substance holding it up. Therefore, the request for a new trial will be denied based on the facts and the case law set out in detail in the body of this opinion, and which are summarized briefly here.

Ouch. But here are a couple of more:

Defendant contends that he is entitled to a new trial because this “newly discovered evidence” reveals that the foreperson answered questions falsely on her written juror questionnaire and when she was questioned in the courtroom, and that by doing so, she concealed the fact that she harbored bias against him. He also seeks a new trial based on an allegation that the juror engaged in misconduct during deliberations, tainting the verdict.
…
It is important to emphasize that the question before the Court is not whether the defense would have taken a different approach towards the juror if had it seen the posts earlier. The trial is over, and a verdict – which was based largely on the defendant’s own texts and emails, and was amply supported by this undisputed evidence – has been returned. At this point, it is incumbent upon the defendant to demonstrate that the juror lied, and that a truthful answer would have supplied grounds for the Court to strike her for cause. Also, a defendant seeking a new trial must establish that the information presented in his motion could not have been discovered earlier through the exercise of due diligence. Only if those criteria are met would one then assess whether the lack of the newly discovered evidence affected the conviction.
The defendant has not shown that the juror lied; nor has he shown that the supposedly disqualifying evidence could not have been found through the exercise of due diligence at the time the jury was selected. Moreover, while the social media communications may suggest that the juror has strong opinions about certain people or issues, they do not reveal that she had an opinion about Roger Stone, which is the opinion that matters.
…
There is a second reason why Stone’s motion fails: to the extent one could consider any of the social media posts to be inconsistent with the juror’s questionnaire, they do not warrant a new trial because they do not meet the legal test for something that has been “newly discovered.” The information in the motion could have easily been found with the exercise of due diligence: by posing a few pointed follow-up questions in person, or by using the same search engines that quickly brought the public social media posts to light the day the juror identified herself to the rest of the world. The evidence the defense claims was critical was never “concealed” – it was a few clicks of a mouse away.

Again, if interested, read the whole opinion. But at least read the first nine pages of summary, it is worth it.

Lev Parnas’ Co-Defendant David Correia Tests the Send-Your-Phone Border Exception Work-Around

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As much of a splash as Lev Parnas made during the Trump impeachment, his co-defendants are each mounting more intriguing defenses.

In the case of David Correia — who was charged in the marijuana side of the indictment — that includes an attempt to bypass the border exception (which allows authorities to search anything carried on your person through customs) by sending his attorney an iPhone, a Microsoft Surface Pro, a hard drive, and two notebooks he had with him before he returned to the United States to be arrested in October.

Are devices sent from overseas to an attorney covered by attorney-client privilege?

The issue first became public in March, when the government asked Judge Paul Oetken to order Correia’s lawyers, William Harrington and Jeff Marcus, to file a privilege claim over the package by March 23 (the government has been holding off accessing the evidence from the devices awaiting such claims). In a letter claiming that March 23 deadline was unrealistic given the COVID crisis, Correia’s lawyers claimed the government had totally misrepresented the attorney-client claim (and complained that the government had neither informed Correia right away about the seizure in October nor raised this issue at a status conference in February). With the government’s consent, Oetken gave Correia an extension.

Ultimately, Correia argued that he had sent the materials, “for the purpose of seeking legal advice,” The filing argued that because the FBI had ample notice that Marcus represented Correia (Correia lawyered up by August), and because Marcus negotiated a self-surrender upon Correia’s return from abroad, the government had to recognize that the DHL package was privileged when they obtained it. Correia further argued that because the notebooks include information that was clearly intended to solicit advice, the entire package must be privileged (that argument, however, was utterly silent about the devices). The lawyers also note that Correia did not send all the papers he had with him, which they point to as proof that the documents — to include the devices — that he did send were a selection specifically intended to get advice.

The government just submitted its response (note that one of the lawyers on this case, Nicholas Roos, also took part in the privilege fight over Michael Cohen’s devices). In it, they reveal that a privilege team reviewed the notebooks, after which prosecutors sent scanned copies of the notebooks and asked Correia’s lawyers to assert any privilege claims by January 20.

In the course of reviewing these materials for privileged information, the Government’s filter team identified items that potentially could be privileged. Accordingly, those items were withheld from the prosecution team and were redacted from the materials that are being produced in discovery. Since the filter team identified those items as only potentially privileged because the records do not contain adequate information to make a definitive assessment, the filter team will be providing the unredacted materials to you. If you believe any of the items that were redacted, or any other items, are privileged, please so indicate by January 20, 2020, and provide the factual basis for such a privilege assertion to the filter team. After that date, the materials in their unredacted form will be released to the prosecution team and produced in discovery.

After receiving that, Correia first claimed that everything in the package, including the devices, was privileged.

The government, however, cites Second Circuit and SDNY precedent holding that materials pre-existing attorney-client communications are not privileged.

Indeed, as the Second Circuit held nearly sixty years ago—rejecting a claim that the attorney-client privilege applied to various documents provided by a client to his counsel—“the attorney-client privilege protects only those papers prepared by the client for the purpose of confidential communication to the attorney or by the attorney to record confidential communications,” but “pre-existing documents and . . . records not prepared by the [client] for the purpose of communicating with their lawyers in confidence . . . acquired no special protection from the simple fact of being turned over to an attorney.” Colton v. United States, 306 F.2d 633, 639 (2d Cir. 1962); see also United States v. Walker, 243 F. App’x 261, 623-24 (2d Cir. 2007) (“putting otherwise non-privileged business records . . . in the hands of an attorney . . . does not render the documents privileged or work product (citing Ratliff v. Davis Polk & Wardwell, 354 F.3d 165, 170-71 (2d Cir. 2004))).

And it argues that they should be able to access anything pre-existing that is not privileged (the filter team continues to review the content of the devices).

The FBI’s preliminary analysis indicates that Correia’s hard drive contains tens of thousands of documents, images, and audio and video files; his iPhone contains tens of thousands of documents, images, and audio and video files, as well as other data such as internet browsing history and location information; and his Suface Pro computer contains hundreds of thousands of documents, images, and audio and video files. It is undisputed that these materials, as well as his notebooks, existed prior to Correia’s communications with counsel on this case. They were not, in toto, created at the direction or advice of counsel, and did not become privileged merely because Correia sought to send them to his counsel.

The government rejects Correia’s argument that by accessing the files, the government learned about what selection of materials Correia was seeking counsel. It argues that nothing in the package reflected instructions from Marcus to Correia (there was no note included at all), and the  government first learned that the selection of items in the package ended up there based on Marcus’ advice from Correia’s own filing.

Correia erroneously claims that by intercepting the DHL package, the Government learned what materials counsel had advised Correia to collect. On the contrary, the DHL package contained no such communication. The Government “learned” that fact—assuming it is true— only through counsel’s briefing on this motion. In any event, it is simply false to suggest that the DHL package contained a carefully curated selection of relevant documents. It contained the opposite: the entirety of Correia’s multiple devices and notebooks, with no indication as to what particular documents or portions of documents may be relevant. The seizure of those materials revealed nothing about counsel’s “defense planning” (Mot. 13)

[snip]

As counsel is well aware, the Government’s assumption had been that Correia simply sent his devices and notebooks to counsel so that they would not be in his possession and subject to seizure when he was arrested.

While the government doesn’t address the documents Correia had on his person on his arrest, they describe that he had no devices at all, just the charging cords for them.

Although Correia still had a phone case, multiple phone chargers, and charging cords with him, he did not have a single electronic device on his person.

Given how often InfoSec people have argued that this method — sending your lawyer sensitive devices before crossing a border — is the best way to protect them, the resolution of this issue has some wider legal interest.

But in this case, the resolution likely comes down to the fact that prosecutors told Judge Oetken, when getting a warrant for the DHL package, that it was sent from Correia to his lawyer.

This Court, based upon an affidavit that made clear the DHL package was sent by Correia to his counsel, found probable cause to believe that the package and its contents contained evidence, fruits, and instrumentalities of federal crimes.

[snip]

On or about October 21, 2019, the Court signed a search warrant authorizing the Government to search a package sent via DHL from Correia to his counsel (the “DHL Package Warrant”). The supporting affidavit explained the following, among other things: On October 9, 2019—the same day that Lev Parnas and Igor Fruman were arrested—agents with the Federal Bureau of Investigation (“FBI”) attempted to arrest Correia at his home, but learned from his wife that Correia was out of the country. Shortly thereafter, Jeff Marcus, Esq., contacted the FBI, identifying himself as Correia’s counsel. Counsel arranged for Correia to fly into New York on October 14, 2019, arriving on October 15, 2019, in order to surrender. Counsel confirmed that Correia was aware that he would be arrested by the FBI upon landing in the United States.1 On October 14, 2019, however, counsel advised the FBI that Correia had left his passport at a DHL store, where he was mailing something before flying back to the United States, and could not board the plane without his passport.

[snip]

The affidavit in support of the DHL Package Warrant further stated that “materials obtained from DHL” reflected that Correia had mailed the DHL package to his counsel. The affidavit noted that the package’s listed contents—provided by the sender, Correia—apparently included a phone, tablet, and hard drive, which “do not appear to be items that were created for the purpose of legal advice but rather appear to have been sent by mail so that they would not be on Correia’s person when he arrived in the United States to be arrested.” The affidavit stated that the Government would nonetheless “utilize a filter review process, including through the use of a filter team comprised of agents and prosecutors who are not part of the prosecution team, for review of the [DHL package and its contents].”

That is, Oetken has already weighed in on this matter, and the government has provided a good deal of Second Circuit and SDNY precedent far more on point than a single Fifth Circuit case, United States v. Hankins, that Correia relies on. One key detail seems to distinguish this seizure and search from any garden variety attempt to bypass the border exception: Correia knew he was going to be arrested when he landed, meaning he knew he was trying to defeat not just the border exception, but a search warrant for anything on his person.

Where did the seizure happen and under what legal authority?

All that said, there’s a detail that, while it probably doesn’t affect the legal argument, raises questions about how and when the government seized the package. As noted, Correia sent the package from a DHL office in whatever country he was in (he was somewhere in the Middle East, and wherever it is, flights to JFK all seem to involve red eyes). He left his passport at that office, so he was unable to board his scheduled flight on October 14. In explaining the one day delay in Correia’s self-surrender, Marcus unwisely told prosecutors that DHL was involved and only in later communications revised his explanation to say Correia had left his passport in a “local” store. It’s unclear whether the government seized the package in that foreign country or as it entered the US. Nor is it clear — from the scant details of the affidavit included in the government filing — whether the government had, or needed, a warrant to make that seizure. However they seized it, Correia is not challenging the legal sufficiency of the seizure itself on any but privilege grounds (though he may file suppression motions in May).

As Correia described it, when the package never arrived at Marcus’ office, they asked DHL where it had gone, and DHL ultimately claimed to have lost it.

In the following days, Mr. Marcus’s law firm never received the communication sent by Mr. Correia via DHL. Id., at ¶ 20. Mr. Correia made repeated inquiries to DHL about its status but was told several times that it was “lost” in transit and DHL was taking steps to locate the sent package. Id. Finally, on October 29, 2019, DHL informed Mr. Correia that “[a]fter conducting extensive searches of our Service Centers, including warehouses, docks, vehicles and lost and found facilities, we have not been able to locate your shipment.” Id. They also said they were ending their search.

DHL was either obeying a gag, or seem not to have received process from the government that would show up in their files.

So unbeknownst to Correia, the government somehow seized the package, and on October 21 (a week after Correia sent it), got Judge Oetken to approve a warrant to search the package and the devices in it.

Correia only learned details of what happened, serially, between December and January.

After a December 2019 court conference, the defense team learned that the Government said it was in possession of the telephone that Mr. Correia had sent to his lawyers via DHL. Id., at ¶ 21. The defense team also subsequently received a search warrant which indicated that the Government had intercepted and searched Mr. Correia’s communication to Mr. Marcus. Id., at ¶ 22. In a production letter dated January 10, 2020, the Government produced an agent’s inventory of Mr. Correia’s communication to Mr. Marcus which included two notebooks, a hard drive, a computer and a telephone.

The most likely answer, however, is that the government obtained the package with DHL’s assistance, which is not legally surprising, but something worth noting for those attempting to use this method to bypass border exceptions.

The pending superseding indictment

The government has said in past hearings that it plans to obtain a superseding indictment before May. Given how COVID has affected all legal proceedings, including grand juries, that likely will be delayed. But it seems clear that the government wants to obtain this information before that happens.

ABC Conducts an “Exclusive” “Interview” about Sentencing Guidelines without Asking about Sentencing Guidelines

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Update: Overnight ABC posted the full interview. It does discuss sentencing guidelines without talking about the significance of Barr overriding them. As laid out here, Barr provides three inconsistent explanations for why he intervened.

In its story writing up its “exclusive” “interview” with Attorney General Bill Barr, ABC gets to the core of the issue: The Attorney General not only intervened to override the sentencing recommendation of career prosecutors, but he did so in defiance of the sentencing guidelines recommended by the Probation Office.

In a stunning reversal, the Justice Department overruled a recommendation by its own prosecution team that Stone spend seven to nine years in jail and told a judge that such a punishment – which was in line with sentencing guidelines – “would not be appropriate.”

Yet ABC didn’t ask Barr about the sentencing guidelines, at least not in the clip posted. Nor did Pierre Thomas ask any of the follow-up questions about that:

  • How he could ever justify overriding line prosecutors on a sentencing recommendation that deviated from guidelines.
  • Whether he had ever done so in the past.
  • How he could be–as he claimed to be–surprised that prosecutors resigned given that this action is unprecedented and not justified by sentencing guidelines.
  • Whether he believed sentencing guidelines were too harsh and should be amended downward, even while he maligns District Attorneys around the country for advocated lesser sentences.

In short, in this “interview” ABC didn’t ask Barr the first question that needs to be answered. As a result, Thomas waltzed through this interview to its typical Bill Barr conclusion, where others are at fault for asking why guidelines designed to prevent precisely this kind of politicized tampering were overridden, where Bill Barr has a right to be “irritated” for being called out for engaging in such a naked political act.

Instead of asking that basic question, ABC allowed the Attorney General to claim that the problem was not Barr’s actions, which have rightly been described as unprecedented, but instead the President’s tweets.

Lev Parnas Wouldn’t Reveal Whether He Has Receipts on Bill Barr

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I suggested in this post that Lev Parnas appears to believe that how and when he was arrested was an attempt to silence him and force him to take the fall for Trump.

With that in mind, I want to reexamine why he might believe that coming forward now might help his defense.

Obviously, one thing he is trying to do — thus far unsuccessfully — is make it clear that in his actions regarding Ukraine, he is a co-conspirator with the President, Victoria Toensing, Joe DiGenova, and, of course, Rudy Giuliani. That doesn’t mean he didn’t insert himself into that role — by all appearances he did; that’s what his existing indictment is about, how he spent big money to insinuate himself into Trump’s immediate circle.

But since that time, Rudy, Toensing, and DiGenova took actions that might be deemed an overt act of a conspiracy. So did Trump, not least on July 25, 2019, on a call with President Zelensky. Implicating powerful Americans in his influence-peddling is particularly important because, if he can’t do that, he may be exposed to further charges. WSJ reports that, late last year, Parnas’ lawyer Joseph Bondy tried to convince prosecutors that Parnas did not “push[] for the removal of the U.S. ambassador to Ukraine at the behest of a Ukrainian official—one of the charges in the campaign finance indictment.” If Parnas can claim that anything he did after some point in 2018 — which otherwise might be deemed to be FARA violations, suborning perjury, Foreign Corrupt Practices Act violations, bribery, and more — he did with the approval of the President of the United States, he might be able to claim that those actions were the official foreign policy of the United States, which would basically be the same claim Trump is using to defend against impeachment.

None of that may matter, however, depending on what SDNY plans or is allowed to do.

After all, Barr had been briefed on this investigation since shortly after he was confirmed, probably indicating that SDNY deemed it a significant matter reflecting the sensitivities of an investigation into political figures including Pete Sessions, some Las Vegas politicians, Ron DeSantis, and the President’s SuperPAC. As such, Barr would receive advance notice before SDNY took steps against any of these political figures (and it would have to happen before pre-election blackouts kick in in August). The Criminal Division would need to approve any search or prosecution of an attorney, covering Rudy, Toensing, and DiGenova. Barr would have to approve any legal process targeting media figures like John Solomon or Sean Hannity, as he would have to approve their treatment as subjects of the investigation. And, just on Monday, Barr stated he will require Attorney General approval before DOJ or FBI can open a counterintelligence investigation into a presidential campaign (and Trump started his reelection campaign almost immediately upon inauguration).

In short, for SDNY to go after any of Parnas’ other known potential co-conspirators, aside from Fruman, Bill Barr or Criminal Division head Brian Benczkowski would have to approve.

That gives Barr veto power over including most of Parnas’ potential co-conspirators in an indictment with him. And he has made no secret that he was brought in to protect Trump from facing any legal consequences for his crimes.

For a time, it looked like Barr believed he couldn’t protect Rudy. But then Rudy loudly announced he had insurance.

“I’ve seen things written like he’s going to throw me under the bus,” Giuliani said in an interview with Fox News’ Ed Henry about the characterizations and comments made in the media about him and his relationship with the president. “When they say that, I say he isn’t, but I have insurance.”

And if Rudy’s actions are beyond legal sanction, then Parnas is left holding the bag, just like Michael Cohen appears to have been for hush payments he made on the orders of Trump. Indeed, while Parnas expressed some interest in cooperating with prosecutors, if prosecutors are barred from pursuing anyone more senior than Parnas, then there’s little for Parnas to offer.

Which brings us to Parnas’ expressed fear of Barr.

In the second installment of his Maddow interview, Parnas claimed he was doing all of this because he fears Barr — or deems Trump too powerful when he is protected by Barr.

PARNAS: The only reason – if you’ll take a look, and you know very well because you have been following, the difference between why Trump is so powerful now, and he wasn’t as powerful in ’16 and ’17 –

MADDOW: Uh-huh.

PARNAS: – he became that powerful when he got William Barr.

MADDOW: Yes.

PARNAS: People are scared. Am I scared? Yes, and because I think I`m more scared of our own Justice Department than of these criminals right now, because, you know, the scariest part is getting locked in some room and being treated as an animal when you did nothing wrong and – or when you’re not, you know, and that’s the tool they’re using.

I mean, just – because they’re trying (ph) to scare me into not talking and with God’s help, and with my lawyer next to me that I know will go bat for me no matter what, with the truth –

MADDOW: Yes.

PARNAS: – and I’m taking a chance.

That comment makes sense whether he believes Barr had him arrested to silence him or even just worries that Barr will protect everyone else. It would even make sense if — as is quite possible — Parnas is working for powerful Russians or Ukrainians who’ve been trying to control Trump by making him vulnerable.

There’s no doubt that abundant evidence can be shown that Barr is not just covering up, but actively obstructing any investigation into Trump’s actions. As I’ve noted repeatedly, Barr or one of his subordinates:

  • Scoped the assessment of the whistleblower complaint to ensure it wasn’t tied to the ongoing investigation of Parnas and Fruman in SDNY
  • Failed to share the whistleblower complaint with the FEC, which (if it were functional) could have imposed civil penalties for the illegal solicitation of campaign help
  • Had OLC invent a bullshit reason to withhold the complaint from Congress
  • Had Kerri Kupec exonerate Trump publicly, reportedly in response to a demand from Trump

Mind you, I’m the only one harping on this obstruction, but they’re still details that deserve more attention.

But that’s not how Parnas is focusing on Barr.

In his interview with Maddow, Parnas twice alleged that he had seen Barr receiving calls from Rudy and others on this stuff. First, he said that Rudy and Toensing and DiGenova had told him they were engaging Barr on this project.

MADDOW:  Did Rudy Giuliani tell you he had spoken to the attorney general specifically about Ukraine?

PARNAS:  Not only Rudy Giuliani. I mean, Victoria and Joe, they were all best friends. I mean, Barr was – Attorney General Barr was basically on the team.

He then expanded on that to say, first, that he witnessed conversations between the lawyers and Barr, and then, less convincingly, claimed that “Barr had to have known everything. I mean, it’s impossible.”

PARNAS:  I personally did not speak to him, but I was involved in lots of conversations that Joe diGenova had with him in front of me, Rudy had with him in front of me, and setting up meetings with Dmytro Firtash’s team. I was involved in that.

MADDOW:  Do you know if Rudy Giuliani was ever in contact with Mr. Barr, specifically about the fact that he was trying to get Ukraine to announce these investigations into Joe Biden?

PARNAS:  Oh, absolutely.

MADDOW:  Mr. Barr knew about it?

PARNAS:  Mr. Barr had to have known everything. I mean, it’s impossible.

MADDOW:  Did Rudy Giuliani tell you he had spoken to the attorney general specifically about Ukraine?

PARNAS:  Not only Rudy Giuliani. I mean, Victoria and Joe, they were all best friends. I mean, Barr – Barr was – Attorney General Barr was basically on the team.

Claiming “Barr had to have known everything,” while seemingly consistent with the public actions of Barr’s DOJ, is not going to be strong enough to get Barr, personally, in trouble.

Though it is worth noting that (in the same way that Devin Nunes unforgot speaking to Parnas as Parnas started rolling out receipts), CNN reported that Barr had attended a meeting where Rudy pitched the case of the Venezuelan paying for the grift long after he had to have known Rudy was under criminal investigation.

The Giuliani meeting at the Justice Department in September became public months ago in the wake of the arrest of two Giuliani associates, Lev Parnas and Igor Fruman, who were working on Giuliani’s Ukraine mission for the President.

Brian Benczkowski, assistant attorney general for the criminal division, issued a public statement at the time expressing regret for holding the meeting and saying he wouldn’t have met with Trump’s personal lawyer had he known about Giuliani’s role in the ongoing investigation.

But department officials didn’t mention then that Barr was also in the meeting. Barr was at the meeting for about 10 minutes and had dropped in to greet other lawyers who worked alongside Giuliani to represent the Venezuelan businessman, according to a Justice Department official. His presence is also notable because Justice officials have said he was briefed after taking office in February on the investigation by Manhattan federal prosecutors into Parnas and Fruman, and the connections with Giuliani.

There’s almost certain to be more, though. When Maddow asked Parnas whether he knew whether Barr ever spoke with any of the Ukrainians that Parnas was grifting (the question I’ve been asking for some time), he claimed not to recall, even though the entire point of his interview was to talk about how he had come forward out of fear of Bill Barr.

MADDOW:  Do you know if Attorney General William Barr every [sic] spoke with any Ukrainian officials?

PARNAS:  I don’t recall at this moment. I’d have to look at my text messages and see.

There is absolutely no way that Parnas did not know, when he gave this answer, whether he has proof that Barr was personally involved with the three Ukrainians who have spoken to John Durham. None.

Which likely means Parnas does have proof that, contrary to every denial DOJ has issued since they started issuing very carefully crafted denials since September 25, Barr did interact with the corrupt Ukrainians Rudy was teeing up.

Parnas kept receipts, for just the moment when his grifting on behalf of Trump and his associates can do damage. Those receipts might, conservatively, make additional charges from SDNY more difficult. They might even make a cooperation deal possible.

But it sure sounds like something even crazier. Parnas apparently believes Barr makes Trump something he hadn’t been before, protecting Trump in a way he hadn’t been. But that’s only true if Parnas can’t produce proof that Barr is part of this conspiracy.

In other words, whatever the reality, Parnas appears to be dribbling out the receipts implicating the people that SDNY prosecutors work for in an attempt to either increase the chances of cooperating out of his indictment or at least raising the costs of any further charges.

Perhaps a more interesting question is why SDNY prosecutors permitted Parnas to launch this media campaign. They didn’t have to: Parnas got permission to modify the protective order on this stuff so he could release it, and they may have had to question Robert Hyde earlier than they otherwise intended to because of the publicity surrounding Parnas’ texts with Hyde. SDNY might be doing it to encourage a criminal target to run his mouth and say something incriminating. They might have done it for counterintelligence reasons, to see who responded to this media campaign. But it’s also possible that SDNY is happy for Parnas to expand the possible scope of their own investigation by making it harder for Barr to protect Rudy and others.

The suspense, though, has to do with that non-committal answer Parnas gave about whether he has any texts directly implicating the Attorney General of the United States. A defendant being prosecuted by the Department of Justice was asked whether he had proof that the top law enforcement officer in the country was personally implicated in his corrupt influence peddling.

And Parnas is not telling. Yet.

The Government’s Coy Dance on FISA and Rudy’s Grifters

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As I noted last month, one of the guys indicted along with Rudy’s grifters, Andrey Kukushkin, asked the government for notice of any of several kinds of surveillance, including FISA. The government responded today with the kind of non-denial that all-but confirms that one of the grifters, Lev Parnas and Igor Fruman, their co-conspirators, or their funders were implicated in a FISA order.

It starts by stating, “the Government has repeatedly informed the defendants, it does not intend to use any information that was obtained or derived from FISA or other forms of surveillance identified by Kukushkin,” meaning under FISA they have no obligation to notify defendants of its use. It then reviews the requirements of statute, which state that the government only has to provide notice if it plans to use evidence obtained via FISA. It asserts it has met the requirements of FISA.

The Government has complied with its discovery and disclosure obligations, and Kukushkin’s motion fails to set forth any legal basis to require anything more.

With respect to FISA, the Government has complied with its obligations under Section 1806 in this case. On December 1, 2019, the Government notified defense counsel that it did not intend to use any FISA-obtained or FISA-derived information against the defendants at trial.

It’s basically a legalistic way of saying, “yes, yes, yes, but no.” All the more so given that the government corrects a Kukushkin claim that the government had stated they had not obtained FISA collection.

Kukushkin incorrectly states that the Government has “denied procuring evidence pursuant to Title III or FISA warrants.” Dkt. 45 at n.1. The Government has told the defense that it did not obtain or use Title III intercepts in this investigation. The Government has not made any representations about the use of FISA warrants.

And the government  provided Judge Oetken an ex parte filing, which is the kind of thing you’d do to be very transparent to the judge when asked about FISA.

The Government is separately submitting a supplemental letter to the Court ex parte and under seal.

Again, all this is legally uninteresting but factually intriguing given how open the government is about the likelihood they did use FISA in this case.

Especially given how they note that the representations the government makes in this letter apply to all the defendants, including Fruman and Parnas.

The Government writes in response to defendant Andrey Kukushkin’s December 12, 2019 letter motion, which is made “on behalf of all defendants,” seeking the Court to direct the Government to affirm or deny, under 18 U.S.C. § 3504, whether the defendants were the subject of any Government surveillance, including under Executive Order 12333 or the Foreign Intelligence Surveillance Act (“FISA”). [my emphasis]

If Kukushkin were targeted with a FISA order, it would mostly implicate some Nevada Republicans — that’s the side of the grift Kukushkin got charged under.

But if Parnas or Fruman were targeted, it might implicate Pete Sessions, Ron DeSantis, Devin Nunes, the other members of Congress Adam Schiff intimated were also included in the Parnas call records obtained by HPSCI, the President’s lawyer, and possibly even the President himself.

And if any of the grifters were personally targeted, it would probably mean that Bill Barr (who has been personally involved in the case since early last year) had agreed that someone in direct communication with all these Republicans was or is probably an Agent of a Foreign power.