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The Proud Boys Have Already Been Used to Intimidate Those Holding Trump Accountable — and Bill Barr Has Protected Them

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As a number of people have observed, in last night’s debate, Donald Trump not only refused to condemn white supremacist terrorists, but seemed to call on them to stand by to support him.

President Donald J. Trump: (42:10)
What do you want to call them? Give me a name, give me a name, go ahead who do you want me to condemn.

Chris Wallace: (42:14)
White supremacist and right-wing militia.

President Donald J. Trump: (42:18)
Proud Boys, stand back and stand by. But I’ll tell you what somebody’s got to do something about Antifa and the left because this is not a right wing problem this is a left wing.

He named the Proud Boys explicitly.

Today, I noted that the reason why Randy Credico took Roger Stone’s threats seriously — the reason the witness tampering charge merited the full enhancement — was because of Stone’s ties to the Proud Boys. Credico confirmed that by posting a picture of Stone with his gang.

In Stone’s sentencing hearing, Judge Amy Berman Jackson described how Credico told the grand jury he was worried about Stone’s gang.

I note, since the defense has informed me that I can consider this material, that that is not consistent with his grand jury testimony, which was closer in time to the actual threats, at which time he said he was hiding and wearing a disguise and not living at home because he was worried, if not about Trump, about his — about Stone, but about his friends. So, I think his level of concern may have changed over time.

It’s not just Credico. When ABJ held a hearing to consider a gag on Roger Stone, she first got him to explain how his associates — whom he first declined to identify but then, when pressed by prosecutor Jonathan Kravis, named Proud Boys members Jacob Engles and Enrique Tarrio — had been working with him on that post but he couldn’t really describe who had picked the image of Judge Jackson with the crosshairs on it.

Amy Berman Jackson. How was the image conveyed to you by the person who selected it?

Stone. It was emailed to me or text-messaged to me. I’m not certain.

Q. Who sent the email?

A. I would have to go back and look. I don’t recognize. I don’t know. Somebody else uses my —

THE COURT: How big is your staff, Mr. Stone?

THE DEFENDANT: I don’t have a staff, Your Honor. I have a few volunteers. I also — others use my phone, so I’m not the only one texting, because it is my account and, therefore, it’s registered to me. So I’m uncertain how I got the image. I think it is conceivable that it was selected on my phone. I believe that is the case, but I’m uncertain.

THE COURT: So individuals, whom you cannot identify, provide you with material to be posted on your personal Instagram account and you post it, even if you don’t know who it came from?

THE DEFENDANT: Everybody who works for me is a volunteer. My phone is used by numerous people because it can only be posted to the person to whom it is registered.

[snip]

Jonathan Kravis. What are the names of the five or six volunteers that you’re referring to?

Stone. I would — Jacob Engles, Enrique Tarrio. I would have to go back and look

When she imposed a gag on Stone, she explained that his Instagram post amounted to incitement of others, people with extreme views and violent inclinations.

What concerns me is the fact that he chose to use his public platform, and chose to express himself in a manner that can incite others who may feel less constrained. The approach he chose posed a very real risk that others with extreme views and violent inclinations would be inflamed.

[snip]

The defendant himself told me he had more than one to choose from. And so what he chose, particularly when paired with the sorts of incendiary comments included in the text, the comments that not only can lead to disrespect for the judiciary, but threats on the judiciary, the post had a more sinister message. As a man who, according to his own account, has made communication his forté, his raison d’être, his life’s work, Roger Stone fully understands the power of words and the power of symbols. And there’s nothing ambiguous about crosshairs.

Then, again at the sentencing hearing, ABJ talked about the risk that, “someone else, with even poorer judgment than he has, would act on his behalf.

Here, the defendant willfully engaged in behavior that a rational person would find to be inherently obstructive. It’s important to note that he didn’t just fire off a few intemperate emails. He used the tools of social media to achieve the broadest dissemination possible. It wasn’t accidental. He had a staff that helped him do it.

As the defendant emphasized in emails introduced into evidence in this case, using the new social media is his “sweet spot.” It’s his area of expertise. And even the letters submitted on his behalf by his friends emphasized that incendiary activity is precisely what he is specifically known for. He knew exactly what he was doing. And by choosing Instagram and Twitter as his platforms, he understood that he was multiplying the number of people who would hear his message.

By deliberately stoking public opinion against prosecution and the Court in this matter, he willfully increased the risk that someone else, with even poorer judgment than he has, would act on his behalf. This is intolerable to the administration of justice, and the Court cannot sit idly by, shrug its shoulder and say: Oh, that’s just Roger being Roger, or it wouldn’t have grounds to act the next time someone tries it.

Both Credico and ABJ, then, pointed to the white supremacist gang that Roger Stone hangs out with to explain why Roger Stone’s threats must be taken seriously.

And Bill Barr dismissed the seriousness of both those threats — the threats Roger Stone makes that might lead one of his associates to take violent action — when he undermined the sentencing recommendation on Stone.

Trump’s invocation of the Proud Boys is no idle threat. Because the Proud Boys have already been used to intimidate those holding Donald Trump accountable.

In Letter Confirming DOJ Altered Peter Strzok’s Notes, His Lawyer Identifies Additional Privacy Act Violations

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Among a slew of last minute documents submitted in advance of today’s hearing in the Mike Flynn case, Peter Strzok’s lawyer, Aitan Goelman, confirmed what I laid out here and here: DOJ altered some of the exhibits submitted in their effort to blow up Flynn’s prosecution.

Some of Mr. Strzok’s notes included in this attachment appear to have been altered. On at least two occasions, there were handwritten additions, not written by Mr. Strzok, inserting dates, apparently designed to indicate the date or dates on which the notes were written. On at least one occasion, the date added is wrong and could be read to suggest that a meeting at the White House happened before it actually did.

Goelman included those both altered records pertaining to Strzok (there may be one related to Andrew McCabe as well), including the one that shows someone wanted to implicate Joe Biden in all this.

That may not be the most important thing Goelman established, however.

Among the things DOJ released the other night was yet another version of the Strzok and Lisa Page texts. When she sent them to Flynn’s lawyers, Jocelyn Ballantine admitted the relevant texts had been provided to Flynn in 2018, before he allocuted his guilty plea a second time.

We are also providing you with additional text messages between former DAD Strzok and Lisa Page (23516-23540). As you know, some of these messages were originally made available to Flynn’s former attorneys on March 13, 2018 through a publicly available link to a Senate webpage. On June 24, 2018, the government provided a link to a second website that contained additional text messages. In an abundance of caution, we are providing you additional text messages in this production; please note that purely personal messages have been deleted from this production.

DOJ seems to have re-released the texts in an effort knit together unrelated actions to suggest they all related to Mike Flynn. Among the texts included in this release, purportedly in support of blowing up Mike Flynn’s prosecution, I can identify texts pertaining to:

  • The investigation into Russia’s attack on the US
  • The Mid-Year Exam investigation into Hillary’s server
  • The general Crossfire Hurricane investigation
  • Extensive efforts to ensure the Crossfire Hurricane investigation remained secret
  • Efforts to ensure that Obama officials didn’t politicize the Mike Flynn intercepts
  • Specific Crossfire Hurricane sub-investigations, including substantial threads pertaining to Carter Page and George Papadopoulos
  • The opening of the Jeff Sessions false statements investigation
  • The bureaucratic set-up of the Mueller investigation
  • References to Kevin Clinesmith (and possibly some references to other Kevins)
  • Substantive critiques of Donald Trump (for example, pertaining to his desire to blow up NATO)
  • Discussions of Trump sharing highly classified Israeli intelligence with the Russians
  • Proactive ethical discussions about how to deal with the appointment of Rudolph Contreras, whom Strzok was friends with, to the FISA Court
  • Leak investigations, both into stories pertaining to Flynn or Trump and stories not related to Trump
  • Unrelated FISA applications
  • 702 reauthorization
  • Apparently unrelated cases, including things like CFIUS reviews

There are long swaths with half the side of the conversation left out, hiding what are clear changes of topic.

Then there are personal details, like talks about showers and anniversaries, as well as some emotional chatter and one declaration of love.

That makes Ballantine’s claim that, “purely personal messages have been deleted from this production,” utterly damning, particularly given the timing, September 23, and the fact that unlike past productions, this was not noticed to the docket in real time.

“Did your anniversary go ok? I don’t really want a lot of deta[]” is by any sane measure a purely personal message. It was not deleted or redacted from this production.

What DOJ decided to do, just days before a decision in the parallel lawsuits Strzok and Page have against DOJ alleging a violation of the Privacy Act for the release of personal information, was to release more personal information, information that had — in the past, under an earlier purported ethics review of what was releasable — been deemed personal information.

DOJ knit together a bunch of texts that DOJ admits were already public before Flynn allocuted his guilty plea a second time, but threw in yet more personal texts.

And then, on September 25, Amy Berman Jackson ruled that Page and Strzok should both get discovery to prove their Privacy Act (and in Strzok’s case, other claims) cases. That makes all of this — all the decisions that led up to to the release of these texts — discoverable in what I assume will be an expanded Privacy Act lawsuit.

It’s unclear what malicious thinking led DOJ to include more texts attempting to humiliate Strzok and Page (even while providing a slew of other information making it clear that Strzok did not have it in for Flynn). But they just likely made this entire process subject to discovery in a lawsuit overseen by Amy Berman Jackson.

Leaks on Top of Leaks Related to Roger Stone

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In February, when I wrote up the latest performance art from serial hoaxsters Jacob Wohl and Jack Burkman, I suggested that their failure to hide the hand-written notes on one of the juror questionnaires they leaked from the Roger Stone jury might lead to quick discovery of the culprit.

But the poor execution may be the downfall. The released documents don’t actually reveal anything beyond what had already been identified during the initial frenzy against he foreperson (and since the foreperson gave credible responses in the hearing, backed by the testimony of two other jurors who said she was one of the last jurors to vote to convict). But Wohl and Burkman failed to redact the handwritten notes about a potential juror on one of the questionnaires.

This is going to make it easier to identify the potential sources for this document, something that ABJ was already trying to do in the hearing earlier this week.

There is a concerted effort on the part of the frothy right to violate every single norm of jury service, all to discredit a slam-dunk case against Roger Stone that even Bill Barr said was righteous. And for once these shithole hoaxsters may have done some good — in the form of helping the FBI figure out who’s behind it all.

Apparently, I was wrong.

Seven months later, as Will Sommer reported, the FBI continues to investigate Wohl and Burkman for potential witness intimidation.

The FBI is investigating blundering conservative operatives Jacob Wohl and Jack Burkman for a series of possible crimes, according to a document filed by federal prosecutors.

Ironically, the document revealing the investigation was filed just days after Wohl and Burkman staged a fake FBI raid on Burkman’s home in a bid for media attention.

The FBI investigation centers on Wohl and Burkman’s February release of confidential juror questionnaires from the trial of Trump associate Roger Stone. The FBI is investigating the pair for potential witness harassment, criminal contempt, and obstruction of justice, according to the filing.

[snip]

The HD Carrier subpoena relates to a series of phone numbers that Burkman contacted prior to the publication of the questionnaires, according to the filing. HD Carrier provides phone numbers for teleconferencing companies and other businesses that use temporary phone numbers, suggesting that the phone numbers were used only briefly by whoever Burkman was in contact with. The court filing notes that Burkman contacted the phone numbers around the time of the questionnaire release, according to a law enforcement review of his call records.

There are a number of interesting things about the request for call records, but not content.

First, as Sommer noted, this is a DC District order, but it was signed by the US Attorney and two AUSAs from Philadelphia. That’s not that surprising. The Stone prosecutors got the list of jurors that was part of this leak and passed it onto Stone’s team. They are potential (if highly unlikely) culprits for the leak. By asking outsiders to investigate it, DOJ avoids a conflict. This may be (though I always get proven wrong when I say this) the rare example where Bill Barr has appointed one of his favored US Attorneys to investigate something pertaining to Trump that doesn’t reek of interference.

It’s almost certain Wohl and Burkman are not the primary targets. The application notes that they, “may have been engaged in an attempt to influence or injure the jurors, as well as tampering with potential witnesses before the court,” which covers two of the three crimes under investigation, obstruction and witness tampering. And they did do that.

But the third, criminal contempt, probably wouldn’t apply to them. How could Amy Berman Jackson hold them in contempt, after all, when they were not party to her authority?

Another detail that supports that is the time frame — from last year during the pre-trial period. As explained in a hearing exchange after Wohl and Burkman had released the questionnaires, Jonathan Kravis went and got the list from the court on October 31 and sent it to the Stone team sometime thereafter.

In the hearing, Stone’s lawyer Seth Ginsberg tried to suggest that Stone’s team might not have had the list until closer to September 5, to which Michael Marando responded it was likely that it got sent out on November 1, which was a Friday.

THE COURT: Okay. Do you have any questions for this witness about any of these issues?

MR. GINSBERG: Just one. It may have been answered. I may have been distracted, Your Honor.

THE COURT: Just for the record, I don’t know that you’ve talked yet today. Can you put your name on the record.

MR. GINSBERG: Seth Ginsberg, appearing for Roger Stone.

THE COURT: Okay.

MR. GINSBERG: Do you recall the date on which it was transmitted to the defense?

MR. MARANDO: No, but it would have been close in time. My feeling, just going back and remembering, it was very close in time.

MR. GINSBERG: And the date that you said that Mr. Kravis went and created the list was what date?

MR. MARANDO: I don’t know the exact date, but it would have been shortened time to after we were invited to go and copy it down, and then we would have gotten the list and sent it over.

MR. GINSBERG: And you were notified on or about October 31st, 2019, that the list was available?

MR. MARANDO: That’s what the e-mail says.

COURT: Yes, it says they were notified at 5:24 p.m. on October 31st. So it would be my guess that you did not come on October 31st. I don’t know that we would have kept chambers open for that, but that you could come at any point between — the next day was a Friday, and then Monday was the return of the pretrial conference; is that correct?

MR. MARANDO: Exactly; that’s right.

MR. GINSBERG: And jury selection was on the 5th?

MR. MARANDO: Yes.

THE COURT: It began on the 5th, correct.

MR. GINSBERG: So it was somewhere between November 1st and November 5th?

MR. MARANDO: Yes, but more likely it would have been November 1st. It would have been right after that. We wouldn’t have — because then November 2nd would have been a Saturday. November 3rd would have been a Sunday. We wouldn’t have waited until November 4th to get this. I’m assuming we would have just hopped on it the next day.

In the interim 7 months, the FBI may have narrowed when the questionnaires got sent out. Which makes Ginsberg’s attempt to muddy that timeline rather curious (he is a very thorough lawyer, but I also find it interesting that the one lawyer not on the trial team posed these questions).

At the time, Amy Berman Jackson seemed to suspect two lawyers who had not filed an appearance in the case might have been the culprits. One of them, Tyler Nixon, was also interviewed to be a witness against Randy Credico.

THE COURT: So you worked electronically on them until you came for trial and then had a paper set?

MR. BUSCHEL: Yes. We were able to — as you can see, each .pdf is broken down juror by juror. So if you’re looking for 12345, you could just pull up 12345 .pdf.

THE COURT: So who had access to the .pdfs?

MR. BUSCHEL: Everyone on the defense team, lawyers, Mr. Stone. And do we — and there are a couple of lawyers that did not file appearances in this case. Do you want to know their names?

THE COURT: Well, yes. I seem to remember they were seated here at the beginning of trial, and then we didn’t have space for them inside the well of the court, and they had to step out.

MR. BUSCHEL: Right. THE COURT: But yes, if there were additional attorneys
who had electronic access to the information —

MR. BUSCHEL: For a period of time electronically, Bryan Lloyd, Tyler Nixon.

But certainly Robert Buschel did admit that his client the rat-fucker had the files and could have sent them.

Ultimately, though, the real reason for this gag would seem to keep the information from Stone, who presumably expects a full pardon before Trump leaves office. If Stone were the culprit here, the charges would replace those he got commuted.

But magically this sealed application ended up on PACER, if that’s really how it happened, with people pitching the seemingly obscure site it got posted on to make it into a bigger story.

And I’m not sure it’s just the jury questionnaires at issue. As the application notes, Wohl and Burkman also claimed to have gotten Steve Bannon’s grand jury transcript. In it, he told some truths about the 2016 operation that he didn’t otherwise share with the FBI. Not all of it pertains to Stone (they had to redact it for trial). That suggests there may be more interesting details that would interest very powerful people.

As Sommer notes, this order was submitted just three days after the hoaxsters staged a fake FBI raid. It’s possible that they did know about the investigation, and the fake raid (for which they paid $400 per fake FBI officer) was just an attempt to alert co-conspirators.

And now a purportedly sealed call records order wasn’t properly sealed after all.

After Bill Barr Minimized Roger Stone’s Threat against Amy Berman Jackson, Emmet Sullivan Got Threatened by a Mike Flynn Supporter

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In this post, I showed how Billy Barr justified a lenient sentence for Roger Stone in part by treating threats against judges as a technicality.

As I laid out in this post, prosecutors asked for the following enhancements:

  • 8 levels for the physical threats against Randy Credico
  • 3 levels for substantial interference
  • 2 levels for the substantial scope of the interference
  • 2 levels for obstructing the administration of justice

The last of these, per the original sentencing memo, had to do with Stone’s threats against ABJ.

Finally, pursuant to U.S.S.G. § 3C1.1, two levels are added because the defendant “willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the prosecution of the instant offense of conviction.” Shortly after the case was indicted, Stone posted an image of the presiding judge with a crosshair next to her head. In a hearing to address, among other things, Stone’s ongoing pretrial release, Stone gave sworn testimony about this matter that was not credible. Stone then repeatedly violated a more specific court order by posting messages on social media about matters related to the case.

This enhancement is warranted based on that conduct. See U.S.S.G. § 3C1.C Cmt. 4(F) (“providing materially false information to a magistrate or judge”); see, e.g., United States v. Lassequ, 806 F.3d 618, 625 (1st Cir. 2015) (“Providing false information to a judge in the course of a bail hearing can serve as a basis for the obstruction of justice enhancement.”); United States v. Jones, 911 F. Supp. 54 (S.D.N.Y. 1996) (applying §3C1.1 enhancement to a defendant who submitted false information at hearing on modifying defendant’s conditions of release).

Barr’s memo got to the outcome he wanted by eliminating the 8-point enhancement for physically threatening Credico and the 2-point enhancement for threatening ABJ.

The memo suggested the 8-level enhancement shouldn’t apply, first, because doing so would double Stone’s exposure.

Notably, however, the Sentencing Guidelines enhancements in this case—while perhaps technically applicable— more than double the defendant’s total offense level and, as a result, disproportionately escalate the defendant’s sentencing exposure to an offense level of 29, which typically applies in cases involving violent offenses, such as armed robbery, not obstruction cases. Cf. U.S.S.G. § 2B3.1(a)-(b). As explained below, removing these enhancements would have a significant effect on the defendant’s Guidelines range. For example, if the Court were not to apply the eight-level enhancement for threatening a witness with physical injury, it would result in the defendant receiving an advisory Guidelines range of 37 to 46 months, which as explained below is more in line with the typical sentences imposed in obstruction cases.

[snip]

Then, Barr’s memo argued (and this is the truly outrageous argument) that Stone’s attempts to obstruct his own prosecution overlapped with his efforts to obstruct the HPSCI investigation.

Second, the two-level enhancement for obstruction of justice (§ 3C1.1) overlaps to a degree with the offense conduct in this case. Moreover, it is unclear to what extent the [defendant’s obstructive conduct actually prejudiced the government at trial.]

Effectively, this language treated threats against a judge as unworthy of enhancement.

The Attorney General of the United States found a way to go easy on the President’s life-long rat-fucker by downplaying the importance of threats against those participating in trials.

After an anti-feminist Trump supporter allegedly targeted the family of federal judge Esther Salas in July, Barr claimed to care about such attacks on judges, even though he had treated the threat against ABJ as a technicality.

Unbelievably, the very next week, when Barr lied under oath about treating threats to judges as a technicality, he would have known of another threat against a judge.

Not just any judge.

Another judge presiding over a case against a Trump flunky, Emmet Sullivan. In August, a Long Island man, Frank Caporusso, was charged for threats left on Sullivan’s Chambers phone.

On May 15, 2020, Deputy United States Marshal Louie McKinney, Jr. discovered threatening statements made against Victim One and his staff while listening to voicemails left on Victim One’s Chambers’ telephone line. One voicemail, which recorded a male caller speaking for approximately 30-31 seconds, stated:

We are professionals. We are trained military people. We will be on rooftops. You will not be safe. A hot piece of lead will cut through your skull. You bastard. You will be killed, and I don’t give a fuck who you are. Back out of this bullshit before it’s too late, or we’ll start cutting down your staff. This is not a threat. This is a promise.

[snip]

Investigation also revealed social media accounts that appear to belong to the defendant. These accounts, primarily a Twitter account, contain posts and images calling various politicians and celebrities “morons” and “sycophants.” The last “tweets” were sent on July 3, 2020. Additionally, a twitter reply was sent at 10:48 p.m. on May 14, 2020 (the same evening the voicemail was left).

WaPo’s Ann Marimow first suggested the timing of the threat suggested it was Sullivan and Newsday confirms it.

According to sources, Caporusso accessed the “dark web,” including sites that encouraged people to take action against the judge for his overall handling of the Flynn case.

So after Bill Barr treated a threat against a judge presiding over a Trump associate as a technicality, an apparent QAnon nutter with a long gun responded to Sullivan’s actions in QAnon supporter Mike Flynn’s case by threatening to assassinate Sullivan.

HHS Propgandist Michael Caputo Is the Rat-Fucker’s Protégé

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It was inevitable when Trump installed a press flack in April with the intention of riding herd on Health and Human Services Secretary Alex Azar that the flack, Michael Caputo, would invent a false reality about Trump’s efforts to fight COVID.

Last week, Politico described how Caputo has done just that.

Caputo and his team have attempted to add caveats to the CDC’s findings, including an effort to retroactively change agency reports that they said wrongly inflated the risks of Covid-19 and should have made clear that Americans sickened by the virus may have been infected because of their own behavior, according to the individuals familiar with the situation and emails reviewed by POLITICO.

Caputo’s team also has tried to halt the release of some CDC reports, including delaying a report that addressed how doctors were prescribing hydroxychloroquine, the malaria drug favored by Trump as a coronavirus treatment despite scant evidence. The report, which was held for about a month after Caputo’s team raised questions about its authors’ political leanings, was finally published last week. It said that “the potential benefits of these drugs do not outweigh their risks.”

In one clash, an aide to Caputo berated CDC scientists for attempting to use the reports to “hurt the President” in an Aug. 8 email sent to CDC Director Robert Redfield and other officials that was widely circulated inside the department and obtained by POLITICO.

That has led to a closer focus on Caputo, including this NYT piece describing a fevered Caputo calling for armed insurgency if Trump doesn’t win.

“I don’t like being alone in Washington,” he said, describing “shadows on the ceiling in my apartment, there alone, shadows are so long.” He then ran through a series of conspiracy theories, culminating in a prediction that Mr. Trump will win re-election but his Democratic opponent, Joseph R. Biden Jr., will refuse to concede.

“And when Donald Trump refuses to stand down at the inauguration, the shooting will begin,” he said. “The drills that you’ve seen are nothing.” He added: “If you carry guns, buy ammunition, ladies and gentlemen, because it’s going to be hard to get.”

Bizarrely — particularly given Caputo’s ranting about insurgency and his claims to be stressed by his implication in the Mueller Report — few of the stories on him (WaPo is one exception) have even mentioned his relationship to Roger Stone.

Caputo did not just set Stone up for a meeting with a Russian offering dirt in May 2016. He’s Stone’s protégé. Multiple Mueller 302s describe that Stone got Caputo a job with the campaign. Manafort testified that he used Caputo to keep track of what Stone was up to — a damning description given that Manafort offered more details about Stone’s foreknowledge of the Podesta emails than other known witnesses. Caputo’s own 302–which was released in February– was heavily redacted because of ongoing investigations. One thing it revealed, however, is that Caputo ran a “Project Rasputin” for Trump in 2016 that remains unexplained.

Caputo repeatedly complained that, after Stone was indicted, a gag prohibited him from speaking with witnesses, including him. In December he wrote Judge Amy Berman Jackson a plaintive letter asking for permission to spend Christmas with Stone.

Mr. Stone and I have been close friends since 1986. We work together, we dine together, our families share holidays together.

[snip]

[I]t’s Chrismas, Judge, and our family wants to spend time with his.

[snip]

[W]ith the holiday season imminent, I am writing to ask to see Roger and his family again soon. During this season, I hope you see fit to give our families this gift.

He also wrote a letter in support of leniency.

As the years went on, Roger and I became close friends. I learned important lessons from him: to listen more than talk, to keep driving forward during hard times, to keep my friends and family close. He loved friendly but hard-hitting banter, and I learned to give as well as I got. He was the big brother I never had, and I feel fortunate.

[snip]

People think they know Roger Stone: he plays hardball; he’s Machiavellian. But he is at his center a caring man.

Since Stone’s commutation, however, Caputo and Stone should be free to talk. It’s likely not a coincidence. then, that Caputo is making the same calls for insurgency after Trump loses that the rat-fucker is.

Bill Barr Repeatedly Lied, Under Oath, about Judge Amy Berman Jackson

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The judge agreed with me, Congressman.

The judge agreed with me.

The judge agreed with me.

Bill Barr spent a lot of time in yesterday’s hearing claiming the federal officers in Portland have to violently suppress the protests in Portland because the protests are an assault on the Federal courthouse.

He also lied, repeatedly, to cover up the assault on the judiciary he ignored.

In just one exchange with Ted Deutch, Barr claimed at least six times that Judge Amy Berman Jackson agreed with his analysis on the Roger Stone sentence.

Barr tried — and ultimately succeeded — in dodging Deutch’s question, which is whether there was ever a time in the history of the Justice Department where DOJ considered threats against a witness and a judge just a technicality.

Deutch: You said enhancements were technically applicable. Mr. Attorney General, can you think of any other cases where the defendant threatened to kill a witness, threatened a judge, lied to a judge, where the Department of Justice claimed that those were mere technicalities? Can you think of even one?

Barr: The judge agreed with our analysis.

Deutch: Can you think of even one? I’m not asking about the judge. I’m asking about what you did to reduce the sentence of Roger Stone?

Barr: [attempts to make an excuse]

Deutch: Mr. Attorney General, he threatened the life of a witness —

Barr: And the witness said he didn’t feel threatened.

Deutch: And you view that as a technicality, Mr. Attorney General. Is there another time

Barr: The witness — can I answer the question? Just a few seconds to answer the question?

Deutch: Sure. I’m asking if there’s another time in all the time in the Justice Department.

Barr: In this case, the judge agreed with our — the judge agreed with our —

Deutch: It’s unfortunate that the appearance is that, as you said earlier, this is exactly what you want. The essence of rule of law is that we have one rule for everybody and we don’t in this case because he’s a friend of the President’s. I yield.

The exchange is interesting for a lot of reasons — Barr’s story on the timeline on replacing Jesse Liu and Timothy Shea’s subsequent interventions in the Stone and Mike Flynn cases does not hold up in the least, though now he’s on the record, under oath, with that story.

As to the part where there is a public record, Barr was wrong on the facts. For example, while Barr claims that Randy Credico said he didn’t feel threatened by Stone after Stone made threats against him, Credico has said he feared what Stone’s thuggish friends might do. And, as Amy Berman Jackson noted in the sentencing hearing, Credico described to the grand jury how he wore a disguise and lived in hiding out of fear.

I note, since the defense has informed me that I can consider this material, that that is not consistent with his grand jury testimony, which was closer in time to the actual threats, at which time he said he was hiding and wearing a disguise and not living at home because he was worried, if not about Trump, about his — about Stone, but about his friends. So, I think his level of concern may have changed over time.

The revised sentencing memo that Barr falsely claimed ABJ agreed with suggested “the Court [] not [] apply the eight-level enhancement for threatening a witness with physical injury.” But ABJ explicitly said the guideline applied, but she said would account for the nature of the threats and Credico’s leniency letter in deciding whether the sentence should apply the full guideline enhancement.

The guideline plainly applies. Even if one considers the threat to the dog to be property damage, that’s covered too. Application Note 5 explains that the guideline includes threats of property loss or damage, quote, Threatened as a means of witness intimidation.

But as the second government’s memorandum appears to be suggesting, as the defense has argued, the vague nature of the threat concerning any physical harm and its actual impact on Mr. Credico can be considered when I determine whether this sentence should fall within the guideline range or not, and they will.

In other words, ABJ said Stone should be punished for the kinds of threats he made about Credico, but that the enhancement itself was too severe.

ABJ similarly argued the opposite of what Barr did with regards to the enhancement for Stone’s obstruction of his prosecution, which the revised sentencing memo claimed, “overlaps to a degree with the offense conduct in this case,” and argued may not have, “actually prejudiced the government at trial.”

ABJ scoffed at DOJ’s erroneous claim that an enhancement designed to address entirely post-indictment actions could overlap — as DOJ claimed — with the pre-indictment actions charged in the indictment.

The supplemental memorandum says: Well, this enhancement overlaps, to a degree, with the offense conduct in this case.

I’m not sure I understand that assertion. As proposed, the guideline is not meant to cover any pre-indictment conduct at all. And, yes, the guideline says it doesn’t apply if obstruction of justice is the charge of conviction; but, that’s not true, say the guidelines, if there is further obstruction during the prosecution.

The government also said in its supplemental memo: It’s unclear to what extent the defendant’s obstructive conduct actually prejudiced the government at trial. But that isn’t the test. Obstruction is an attempt; it doesn’t have to be successful. And the administration of justice is a little bit more than whether they got in the prosecution’s way.

And she laid out, at length, the import of Stone’s threats and lies.

Even after he first denied and then acknowledged personally selecting the crosshairs photo, he sat there telling me: Yes, I’m going to follow any restrictions on talking about the investigation; but, forgetting to mention that he had a book on the subject wending its way to publishers as we spoke. I certainly haven’t seen anything that would attribute that to mere anxiety.

The defense also says his conduct, quote: Didn’t cause significant further obstruction of the prosecution of the case, close quote.

[snip]

But, certainly, A., threatening or intimidating a juror or a fact-finder in the case; F., providing false information to a judge; and J., not complying with the restraining order. While the orders here are not the ones specifically mentioned in the list, it’s not necessary that there’s an exact fit. The list is supposed to be illustrative.

And given the similarity of the conduct in this case to what’s listed in A., F., and J., I find that the guideline applies. The defendant engaged in threatening and intimidating conduct towards the Court, and later, participants in the National Security and Office of Special Counsel investigations that could and did impede the administration of justice.

I suppose I could say: Oh, I don’t know that I believe that Roger Stone was actually going to hurt me, or that he intended to hurt me. It’s just classic bad judgment.

But, the D.C. Circuit has made it clear that such conduct satisfied the test. They said: To the extent our precedent holds that a §3C1.1 enhancement is only appropriate where the defendant acts with the intent to obstruct justice, a requirement that flows logically from the definition of the word “willful” requires that the defendant consciously act with the purpose of obstructing justice.

However, where the defendant willfully engages in behavior that is inherently obstructive, that is, behavior that a rational person would expect to obstruct justice, this Court has not required a separate finding of the specific intent to obstruct justice.

Here, the defendant willfully engaged in behavior that a rational person would find to be inherently obstructive. It’s important to note that he didn’t just fire off a few intemperate emails. He used the tools of social media to achieve the broadest dissemination possible. It wasn’t accidental. He had a staff that helped him do it.

As the defendant emphasized in emails introduced into evidence in this case, using the new social media is his “sweet spot.” It’s his area of expertise. And even the letters submitted on his behalf by his friends emphasized that incendiary activity is precisely what he is specifically known for. He knew exactly what he was doing. And by choosing Instagram and Twitter as his platforms, he understood that he was multiplying the number of people who would hear his message.

By deliberately stoking public opinion against prosecution and the Court in this matter, he willfully increased the risk that someone else, with even poorer judgment than he has, would act on his behalf. This is intolerable to the administration of justice, and the Court cannot sit idly by, shrug its shoulder and say: Oh, that’s just Roger being Roger, or it wouldn’t have grounds to act the next time someone tries it.

The behavior was designed to disrupt and divert the proceedings, and the impact was compounded by the defendant’s disingenuousness. As the opinion in Henry pointed out in U.S. versus Maccado, 225 F.3d 766, at 772, the D.C. Circuit even upheld a §3C1.1 enhancement for failure to provide a handwriting example because such failure, quote, Clearly has the potential to weaken the government’s case, prolong the pendency of the charges, and encumber the Court’s docket.

And the record didn’t show a lack of such intent. The defendant’s conduct here certainly imposed an undue burden on the Court’s docket and court personnel, as we had to waste considerable time convening hearing after hearing to get the defendant to finally be straight about the facts, to get the defendant to comply with court orders that were clear as day, and to ensure that the public and that people who come and go from this building every day were safe. Therefore, I’m going to add the two levels, and we are now at a Level 27.

Contrary to the government’s claim that Stone’s lies and threats had no effect on the case, ABJ laid out the risks of the threat and the added time she and court personnel had to expend responding to them.

It is true that ABJ ended up around where Barr wanted Stone’s sentence to end up, but as she explicitly said, she got there the same way she would have for any defendant, but deciding that the sentencing guidelines are too severe. If Barr agreed with that then other people would benefit from Barr’s brief concern about prison sentences.

That didn’t happen.

But Barr is not afraid to lie and claim it did, under oath.

Bill Barr Testifies He’s Unfamiliar with the Obstruction Portion of the Mueller Report

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I’m just finishing up the Bill Barr testimony before the House Judiciary Committee. While it wasn’t useful at eliciting new information, Barr did not succeed at filibustering over questions he wanted to ignore. Jim Jordan, whose favorite tactic is to scream and refuse to let witnesses answer questions, four times complained that Democrats had insisted on reclaiming their time when Barr tried to filibuster.

Democrats didn’t nail Barr on some of his key lies. For example, as he did in his written testimony, he complained that protestors were endangering federal judges; yet Democrats let him get away with the lie — which he yelled over and over — that Amy Berman Jackson agreed with his view on the Stone sentencing. The reality is ABJ very pointedly disagreed with Barr’s decision that Stone should not be punished for threatening her.

The headline of the hearing, though, should be that, now that he’s finally testifying under oath, Barr backed off his claim — made when releasing the Mueller Report — that the White House fully cooperated with the Mueller investigation. [This is about 45 minutes before the end.]

Joe Neguse: I want to go through a couple of your prior statements. On April 19–or, excuse me, April 18 of 2019, you stated that the White House fully cooperated with the Special Counsel’s investigation. You’re aware of that?

Barr: Umm hmm.

Neguse: Today, yes or no Mr. Barr with the penalty of perjury, do you testify that that statement was true at the time you made it?

Barr: I thought it to be true at the time I made it. Why isn’t it true–

Neguse: I’ll get to that Mr. Barr.

Barr: Does it have to do with quibbling over–

Neguse: Mr. Barr, I’ll get to that, reclaiming my time, you answered the question. I have another question for you. On June 19, of 2020,

Barr: Actually, I have to answer that question.

Neguse: Mr. Barr, you did answer that question.

Barr: No, you said under penalty of perjury. I’m going to answer the damn question.

Neguse: You said the answer was yes. Are you saying no?

Barr: I think what I was referring to — and I’d have to see the context of it — was the supplying of documents.

Neguse: No, Mr. Attorney General, the statement was not limited to the supply of documents. You stated it at a press — Mr. Attorney General —

Barr: I think that’s that I was talking about —

Neguse: Reclaiming my time —

Barr: I think that’s what I was talking about —

Neguse: Reclaiming my time. You stated at a press conference on April 19, 2019 that the White House fully cooperated with the Special Counsel’s investigation. You knew, when you made that statement, that the President had not agreed to be interviewed by the Special Counsel.

Barr: I think that was subsequently —

Neguse: Now on June 18th of this year —

Barr: I was referring to —

Neguse: Mr. Attorney General, I was referring to

Barr: The production of documents —

Neguse: Mr. Attorney General, on June 18th of this year, the Department of Justice issued a statement saying that Mr. Berman, the former US Attorney for the Southern District of New York, had quote, “stepped down.” You’re aware of that statement being released by the department, correct?

Barr: Yes.

Neguse: And do you testify today that that statement was true, at the time the Department issued it?

Barr: Um, he may not have known it, but he was stepping down.

Neguse: He may not have known that he was stepping down? That’s your testimony today?

Barr: He was being removed.

Neguse: Mr. Attorney General. The statement did not say he was being removed. It did not say he was being fired. It said that he was stepping down.

But I think the far more damning testimony from the Attorney General is that he is not familiar with the obstruction part of the Mueller Report.

Eric Swalwell had this exchange with Barr:

Swalwell: Mr. Barr, have you ever intervened other than to help the President’s friend get a reduced prison sentence for any other case where a prosecutor had filed a sentencing recommendation with a court?

Barr: A sentencing recommendation?

Swalwell: Yeah. Have you ever intervened, other than that case with the President’s friend?

Barr: Not that I recall–

Swalwell: Does that seem like something you’d recall? Where you would–

Barr: Well, I’m saying I can’t really remember my first — if you let me finish the question, I can’t remember thirty years ago I was Attorney General.

Swalwell: As Attorney General now?

Barr: Uh, no, I didn’t. But that’s because issues come up to the Attorney General in a dispute and I’ve never [starts yelling] I’VE NEVER HEARD OF A DISPUTE … I’VE NEVER HARD OF A DISPUTE WHERE LINE PROSECUTORS–

Swalwell: Mr. Attorney– Mr. Attorney–

Barr: [still yelling] THREATEN TO QUIT —

Swalwell: Well it’s a pretty big deal–

Barr: Because of a discussion over sentencing–

Swalwell: Mr. Barr, Americans from both parties are concerned that in Donald Trump’s America there are two systems of justice. One for Mr. Trump and his cronies. And another for the rest of us. But that can only happen if you enable it. At your confirmation hearing, you were asked, “Do you believe a President could lawfully issue a pardon in exchange for the recipient’s promise to not incriminate him?

Barr: Not to what?

Swalwell: You said, “That would be a crime.” You were asked, could a President issue a pardon in exchange for the recipient’s promise to not incriminate him, and you responded, “no, that would be a crime.” Is that right?

Barr: Yes, I said that.

Swalwell: You said “a crime.” You didn’t say, “it’d be wrong,” you didn’t say, “it’d be unlawful.” You said, “it’d be a crime.” And when you said that, that a President swapping a pardon to silence a witness would be a crime, you were promising the American people that if you saw that, you would do something about that, is that right?

Barr: That’s right.

Swalwell: Now, Mr. Barr, are you investigating Donald Trump for commuting the prison sentence of his long-time friend and political advisor Roger Stone?

Barr: No.

Swalwell: Why not?

Barr: Why should I?

Swalwell: Well, let’s talk about that. Mr. Stone was convicted by a jury on 7 counts of lying on the Russian investigation. He bragged that he lied to save Trump’s butt. But why would he lie? Your prosecutors, Mr. Barr, told a jury that Stone lied because the truth looked bad for Donald Trump. And what truth is that? Well, Donald Trump denied in written answers to the Russia investigators that he talked to Roger Stone during the time that Roger Stone with in contact with Agents of a Russian influence operation. There’s evidence that Trump and Stone indeed did talk during that time. You would agree that it’s a federal crime to lie under oath, is that right?

Barr: Yes.

Swalwell: It’s a crime for you, it’s a crime for me, and it’s certainly a crime for the President of the United States. Is that right?

Barr: Yes.

Swalwell: So if Donald Trump lied to the Mueller investigators, which you agree would be a crime, then Roger Stone was in a position to expose Donald Trump’s lies. Are you familiar with the December 3rd, 2018 tweet, where Donald Trump said Stone had showed “guts” by not testifying against him?

Barr: No, I’m not familiar with that.

Swalwell: You don’t read the President’s tweets?

Barr: No!

Swalwell: Well, there’s a lot of evidence in the President’s tweets, Mr. Attorney General, I think you should start reading them, because he said Mr. Stone, “showed guts,” but on July 10 of this year, Roger Stone declared to a reporter, “I had 29 or 30 conversations with Trump during the campaign period. Trump knows I was under enormous pressure to turn on him. It would have eased my situation considerably. But I didn’t. The prosecutors wanted me to play Judas, I refused.” Are you familiar with that Stone statement?

Barr: Actually I’m not.

Swalwell: So how can you sit here and tell us, why should I investigate the President of the United States,” if you’re not even aware of the facts concerning the President using the pardon or commutation power to swap the silence of a witness?

Barr: Because we require, you know, a reliable predicate before we open a criminal investigation.

Swalwell: And I just gave you, sir–

Barr: I don’t consider it, I consider it a very Rube, uh, Goldberg theory that you have —

Swalwell: Well it sounds like you’re hearing this theory for the first time.

Barr: And by the way if apply this standard it’d be a lot, it’d be a lot more people under investigation.

Swalwell: Mr. Attorney General, the very same day that Roger Stone said that Donald Trump — no surprise — commuted his

Barr: The two tiered standards of justice were really during the tail end of the Obama Administration.

Barr may well be unfamiliar with Trump’s December 3, 2018 tweet.

Let’s take his testimony as truth.

If that’s true, than Barr is also unfamiliar with the Obstruction portion of the Mueller Report. In passages just recently declassified by Billy Barr’s DOJ, the Mueller Report laid out how the back-and-forth between Stone and Trump might be evidence of obstruction.

As described above, in an interview on November 28, 2018, one week after submitting his written answers, the President criticized “flipping” and said that Stone (along with Manafort and Corsi) was “very brave” in indicating he would not cooperate with prosecutors.897 On December 2, 2018, Stone told the press that there was “no circumstance” under which he would “testify against the president.”898 He also said he had had no discussions about a pardon.899 On December 3, 2018, the President tweeted, “‘I will never testify against Trump.’ This statement was recently made by Roger Stone, essentially stating that he will not be forced by a rogue and out of control prosecutor to make up lies and stories about ‘President Trump.’ Nice to know that some people still have ‘guts!’”900

On January 24, 2019, a grand jury indicted Stone on charges of obstruction, witness tampering, and making false statements.901 One of the counts charged Stone with violating 18 U.S.C. § 1001 for testifying falsely in Congress that he had never told anyone involved in the Trump Campaign about discussions he was having during the campaign with an individual who acted as an intermediary between him and Assange.902 After making an initial court appearance on January 25, 2019, Stone told reporters, “There is no circumstance whatsoever under which I will bear false witness against the president, nor will I make up lies to ease the pressure on myself. . . . I will not testify against the President, because I would have to bear false witness.”903

That evening, Stone appeared on Fox News and indicated he had knowledge of the President’s answers to this Office’s written questions. When asked if he had spoken to the President about the allegation that he had lied to Congress, Stone said, “I have not” and added, “When the President answered the written interrogatories, he correctly and honestly said Roger Stone and I never discussed this and we never did.”904

[snip]

Finally, there is evidence that the President’s actions towards Stone had the potential to affect a decision about cooperating with the government. After Stone publicly announced that he would never provide evidence against the President’s interests, the President called Stone “very brave” and said he had “guts!” for not “testify[ing] against Trump.”

[snip]

With regard to the President’s conduct towards Stone, there is evidence that the President intended to reinforce Stone’s public statements that he would not cooperate with the government when the President likely understood that Stone could potentially provide evidence that would be adverse to the President. By late November 2018, the President had provided written answers to the Special Counsel’s Office in which the President said he did not recall “the specifics of any call [he] had” with Stone during the campaign period and did not recall discussing WikiLeaks with Stone. Witnesses have stated, however, that candidate Trump discussed WikiLeaks with Stone, that Trump knew that Manafort and Gates had asked Stone to find out what other damaging information about Clinton WikiLeaks possessed, and that Stone’s claimed connection to WikiLeaks was common knowledge within the Campaign. It is possible that, by the time the President submitted his written answers two years after the relevant events had occurred, he no longer had clear recollections of his discussions with Stone or his knowledge of Stone’s asserted communications with WikiLeaks. But the President’s conduct could also be viewed as reflecting his awareness that Stone could provide evidence that would run counter to the President’s denials and would link the President to Stone’s efforts to reach out to WikiLeaks. On November 28, 2018, eight days after the President submitted his written answers to the Special Counsel, the President criticized “flipping” and said that Stone was “very brave” for not cooperating with prosecutors. Five days later, on December 3, 2018, the President applauded Stone for having the “guts” not to testify against him. These statements, as well as those complimenting Stone and Manafort while disparaging Michael Cohen once Cohen chose to cooperate, support the inference that the President intended to communicate a message that witnesses could be rewarded for refusing to provide testimony adverse to the President and disparaged if they chose to cooperate.

The December 3, 2018 tweet was a key part of Mueller’s case that Trump’s discussion of pardons for Roger Stone were an effort to get him to be silent about the fact that Trump had lied (not just about talking about WikiLeaks, but also about a pardon for Julian Assange).

This was a key part of the Mueller Report’s analysis of the obstruction case against Trump.

And Billy Barr testified today, under oath, he’s not familiar with it.

It’s not just that Barr disclaims familiarity about Trump’s tweets (though his testimony was inconsistent about whether he saw the one claiming Stone’s sentence was unfair). It seems to be the case that Barr testified that he’s not familiar with the obstruction portion of the Mueller investigation.

And yet, the Attorney General claims to have reviewed that and concluded — for reasons that have nothing to do with DOJ’s policy that a President can’t be indicted — Trump did not commit obstruction.

In other words, the Attorney General’s sworn testimony as of today is that he’s not familiar with the obstruction case against Trump and — arguably — never read it, or at least is unfamiliar with the case it lays out about why, if Trump gave Stone clemency, it would be a crime.

Billy Barr Admits, for the Third and Fourth Time, that He Intervenes without Knowing the Facts

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Billy Barr’s statement for his testimony today is here. It is as cynical and dishonest as you might imagine.

In his first paragraph, he pays tribute to John Lewis, without mentioning the ways he personally is trying to roll back the ability for every citizen to vote (most notably, of late, by falsely suggesting that the only safe way to vote during a pandemic is susceptible to fraud).

In his second paragraph, he suggests only politicians are political, and then suggests “mobs” are among those pressuring DOJ to take political decisions.

We are in a time when the political discourse in Washington often reflects the politically divided nation in which we live, and too often drives that divide even deeper. Political rhetoric is inherent in our democratic system, and politics is to be expected by politicians, especially in an election year. While that may be appropriate here on Capitol Hill or on cable news, it is not acceptable at the Department of Justice. At the Department, decisions must be made with no regard to political pressure—pressure from either end of Pennsylvania Avenue, or from the media or mobs.

Then he spends five paragraphs addressing what he calls “Russiagate,” a term used exclusively by those who like to diminish the seriousness of an attack on our country.

Ever since I made it clear that I was going to do everything I could to get to the bottom of the grave abuses involved in the bogus “Russiagate” scandal, many of the Democrats on this Committee have attempted to discredit me by conjuring up a narrative that I am simply the President’s factotum who disposes of criminal cases according to his instructions. Judging from the letter inviting me to this hearing, that appears to be your agenda today.

Four paragraphs later, Billy Barr admits that the sole reason he returned to government was to avenge what he believed — as an admitted outsider!! — to be two systems of justice.

But as an outsider I became deeply troubled by what I perceived as the increasing use of the criminal justice process as a political weapon and the emergence of two separate standards of justice. The Department had been drawn into the political maelstrom and was being buffeted on all sides. When asked to consider returning, I did so because I revere the Department and believed my independence would allow me to help steer her back to her core mission of applying one standard of justice for everyone and enforcing the law even-handedly, without partisan considerations. Since returning to the Department, I have done precisely that. My decisions on criminal matters before the Department have been my own, and they have been made because I believed they were right under the law and principles of justice.

Remember: Billy Barr has repeatedly stated that the investigation into Trump’s associates (not Trump himself) was unprecedented, proving he’s either unaware of or uninterested in the two investigations into Hillary, both of which involved abuses (the ostensible reason for the firing of both Jim Comey and Andrew McCabe) and leaks. The only evidence that a biased FBI Agent was running an informant on a candidate during the election involved the Clinton Foundation investigation which — unlike the Russian investigation — is understood to be entirely predicated on dodgy opposition research. Clinton did sit for an interview in the investigation into her actions; Trump refused.

In other words, every complaint floated about the Russian investigation actually applies more readily to the two Clinton ones, the treatment of investigations which had some effect, however unmeasured, on the election.

Yet the Attorney General of the United States has now admitted that he came into office planning to avenge what he sees as the opposite. Importantly, he admits he formed this conclusion an outsider! That means he formed the conclusion in spite of — by his own repeated admission — not knowing the facts of the investigation. “I realize I am in the dark about many facts,” he admitted in his memo on what he believed Mueller was doing on obstruction. As part of his confirmation process, he told both Dianne Feinstein and the Senate Judiciary that, “As I explained in a recent letter to Ranking Member Feinstein, my memo was narrow in scope, explaining my thinking on a specific obstruction-of-justice theory under a single statute that I thought, based on media reports, the Special Counsel might be considering.”

Billy Barr decided to become Attorney General based off what he admitted then and has proven since to be badly mistaken understanding of what the Russian investigation entailed. That’s it. That’s why he agreed to become Attorney General.

Barr may think he’s working from an independent standpoint (a laughable claim in any case given his outspoken hatred for anything progressive), but he keeps admitting that he’s doing something worse, working from an understanding based off media portrayals rather than an understanding based off the public, much less the investigative, record.

No wonder Reggie Walton ruled that Attorney General Barr had spun the real outcome of the investigation. Barr, by his own admission, formed conclusions when he was “in the dark about many facts.” There’s no evidence he has revisited those conclusions since.

Billy Barr performs his own toxic bias in numerous other ways in his opening statement, for example by focusing on Antifa’s potential threat to law enforcement rather than Boogaloo’s much greater threat.

Most cynical, though, is the way he explains the storm troopers in Portland as an effort to defend not just Federal property (which it is, if counterproductively heavy-handed), but Article III judges.

Inside the courthouse are a relatively small number of federal law enforcement personnel charged with a defensive mission: to protect the courthouse, home to Article III federal judges, from being overrun and destroyed.

Barr has demonstrated his disdain for Article III judges over and over: by overriding the decisions of Emmet Sullivan on the Mike Flynn case, by lying to courts on census cases, by ignoring Supreme Court orders on DACA.

Most importantly, however, on issues pertaining to Trump’s flunkies — even the Roger Stone case that he has twice said was righteous — Barr completely dismissed the seriousness of an actual threat to a Federal judge. As I have noted, contrary to Barr’s repeated claims that Amy Berman Jackson agreed with the sentencing recommendation DOJ made after he made an unprecedented intervention to override a guidelines sentencing recommendation, she did not agree that his revised sentencing included the appropriate enhancements. Not only did Barr dismiss the seriousness of making a violent threat against a witness, but Barr’s revised sentencing memo eliminated the sentencing enhancement for threatening a judge, opining (as Barr has a habit of doing) that DOJ wasn’t sure whether Stone’s actions had obstructed his prosecution and trial under ABJ.

Moreover, it is unclear to what extent the defendant’s obstructive conduct actually prejudiced the government at trial.

This is why we have judges: to decide matters like this! Indeed, that’s the justification for recommending guidelines sentences in the first place — so the actual judge who presided over the case, rather than an Attorney General who has admitted to repeatedly forming opinions without consulting the actual record, makes the decisions based off the broadest understanding of the record. Even in this, his most egregious action, Billy Barr’s DOJ weighed in while admitting it didn’t have the knowledge to do so. And did so in such a way that minimized the danger of threats against Article III judges.

Billy Barr thinks the moms defending protestors in Portland are a threat to judges. But his repeated, acknowledged intervention on matters he knows fuckall about is a bigger threat to the rule of law, up to and including when that record includes threats against judges.

Earlier This Year, Billy Barr Minimized Threats of Violence against Judges

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Billy Barr lies, a lot.

One of the things he has lied about — first anonymously to irresponsible beat reporters and then repeatedly on the record — is that Amy Berman Jackson agreed with his sentencing recommendation in the Roger Stone case. To Steve Inskeep, for example, Barr first lied by hiding that he created a dispute by replacing Jesse Liu with his crony Timothy Shea  so Shea could start disagreeing with prosecutors.

I was the decision maker in that case because there was a dispute. And usually what happens is, disputes, especially in high profile cases, come up to the attorney general. It’s not unusual for there to be a dispute in a high-profile case and for it to be resolved by the attorney general. And what actually happened in that case is that the four prosecutors who had prosecuted the case, the first line, they wanted to recommend a seven to nine year sentence on Stone, and the U.S. attorney felt that was too severe and was not justified under the circumstances.

Barr then claimed that all he did, in replacing the sentencing memo written by prosecutors adhering to DOJ guidelines on calling for the maximum sentence with one calling for far less, was to lay out the relevant information and let Amy Berman Jackson decide.

And what I said was set forth all the relevant information and leave it to the judge’s discretion to select the right decision, which is also not uncommon in the department. And that judge actually gave the sentence that I thought was correct, which was half of what the line prosecutors were recommending. They could not point to any case even remotely close to the seven to nine year sentence. The cases were essentially centered on about two and a half to three years. The judge gave him three years and four months, which I thought was a fair sentence under the circumstances. And it was essentially what I was proposing, or thought was fair. And so the proof of the pudding is in the eating. I made that decision based on what I was felt was fair to that person.

Aaron Zelinsky has made it clear that, in fact, even in the first memo, prosecutors were ordered to downplay certain information.

The more important detail — given that an anti-feminist Trump supporter allegedly targeted the family of federal judge Esther Salas, killing her son and also shooting her spouse — is how he overrode the sentencing recommendation of prosecutors.

As I laid out in this post, prosecutors asked for the following enhancements:

  • 8 levels for the physical threats against Randy Credico
  • 3 levels for substantial interference
  • 2 levels for the substantial scope of the interference
  • 2 levels for obstructing the administration of justice

The last of these, per the original sentencing memo, had to do with Stone’s threats against ABJ.

Finally, pursuant to U.S.S.G. § 3C1.1, two levels are added because the defendant “willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the prosecution of the instant offense of conviction.” Shortly after the case was indicted, Stone posted an image of the presiding judge with a crosshair next to her head. In a hearing to address, among other things, Stone’s ongoing pretrial release, Stone gave sworn testimony about this matter that was not credible. Stone then repeatedly violated a more specific court order by posting messages on social media about matters related to the case.

This enhancement is warranted based on that conduct. See U.S.S.G. § 3C1.C Cmt. 4(F) (“providing materially false information to a magistrate or judge”); see, e.g., United States v. Lassequ, 806 F.3d 618, 625 (1st Cir. 2015) (“Providing false information to a judge in the course of a bail hearing can serve as a basis for the obstruction of justice enhancement.”); United States v. Jones, 911 F. Supp. 54 (S.D.N.Y. 1996) (applying §3C1.1 enhancement to a defendant who submitted false information at hearing on modifying defendant’s conditions of release).

Barr’s memo got to the outcome he wanted by eliminating the 8-point enhancement for physically threatening Credico and the 2-point enhancement for threatening ABJ.

The memo suggested the 8-level enhancement shouldn’t apply, first, because doing so would double Stone’s exposure.

Notably, however, the Sentencing Guidelines enhancements in this case—while perhaps technically applicable— more than double the defendant’s total offense level and, as a result, disproportionately escalate the defendant’s sentencing exposure to an offense level of 29, which typically applies in cases involving violent offenses, such as armed robbery, not obstruction cases. Cf. U.S.S.G. § 2B3.1(a)-(b). As explained below, removing these enhancements would have a significant effect on the defendant’s Guidelines range. For example, if the Court were not to apply the eight-level enhancement for threatening a witness with physical injury, it would result in the defendant receiving an advisory Guidelines range of 37 to 46 months, which as explained below is more in line with the typical sentences imposed in obstruction cases.

[snip]

Then, Barr’s memo argued (and this is the truly outrageous argument) that Stone’s attempts to obstruct his own prosecution overlapped with his efforts to obstruct the HPSCI investigation.

Second, the two-level enhancement for obstruction of justice (§ 3C1.1) overlaps to a degree with the offense conduct in this case. Moreover, it is unclear to what extent the [defendant’s obstructive conduct actually prejudiced the government at trial.]

Effectively, this language treated threats against a judge as unworthy of enhancement.

The Attorney General of the United States found a way to go easy on the President’s life-long rat-fucker by downplaying the importance of threats against those participating in trials.

ABJ disagreed with both of those changes (though she did rule against the government’s enhancement on scope), taking Credico’s letter asking for leniency into account but also noting that in his grand jury testimony Credico had described being genuinely fearful of Stone’s thuggish buddies, and insisting on the import of the threat against her.

She got to close to the same conclusion as Barr, however, because she believes that sentencing recommendations are too harsh.

On one side, Barr dismissed the import of physical threats against a witness and a judge (while otherwise backing harsh sentencing). On the other side, ABJ insisted in the import of threats to participants in the judicial system, while finding sentencing recommendations generally too harsh.

ABJ in no way agreed with Barr’s logic, in part because she felt it important to punish threats against judges. Barr, however, thought it more important to go easy on Trump’s rat-fucker than reinforce the danger of threats to judges.

Then Trump commuted Stone’s sentence, showing that he doesn’t much give a damn if people threaten witnesses and judges either (unsurprisingly, because he does so much of it himself).

In the wake of the attack on Salas, Barr has taken to the press, proclaiming how serious he thinks such attacks to be.

U.S. Attorney General Bill Barr also offered his condolences to Judge Salas and her family.

“This kind of lawless, evil action carried out against a member of the federal judiciary will not be tolerated, and I have ordered the full resources of the FBI and U.S. Marshals Service to investigate the matter,” Barr said in a statement.

Bullshit.

You don’t get to proclaim how serious you think attacks on judges are if earlier this year you took extraordinary measures to minimize threats on a judge. The actions Barr and Trump took earlier this year sent the message that it doesn’t much matter if someone undermines the entire judicial system by intimidating judges and witnesses — particularly if they’re supporters of Trump.

Billy Barr wants you think he’s a hard ass on such violence. But earlier this year, he took unprecedented action to dismiss the import of violence against judges. No credible journalist should print his statements without explaining that Barr is part of the problem.

The World’s Biggest Donald Trump Fan Believes Donald Trump Is Lying about COVID

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Roger Stone has been one of Donald Trump’s biggest boosters for decades. But Stone’s actions make it clear he believes Trump is lying about the risks of COVID.

Yesterday, Stone’s lawyers moved to delay the date when he’ll have to report to prison 60 days (he has already gotten a 30-day extension). They claim that going to prison — even a prison that has had no recorded cases of COVID — will be life-threatening to Stone, for medical reasons filed under seal.

Those medical conditions make the consequences of his exposure to the COVID-19 virus in a prison facility life-threatening. The threat of exposure, given the current status of COVID-19 within BOP facilities and the lack of testing, is compelling.

The severity of the circumstances is highlighted by the fact that the Attorney General issued memoranda directing the BOP to release prisoners at risk from COVID-19 infection. Memorandum from the Attorney General to the Director of the Bureau of Prisons, regarding “Prioritization of Home Confinement As Appropriate in Response to COVID-19 Pandemic,” dated March 26, 2020; Memorandum from the Attorney General to the Director of the Bureau of Prisons, regarding “Increasing Use of Home Confinement at Institutions Most Affected by COVID-19,” dated April 3, 2020.

[snip]

While the BOP website currently does not show any inmates with the COVID-19 virus at FCI Jesup, it reports that there are 25 tests pending. https://www.bop.gov/coronavirus/. 1 Given that the BOP does not routinely test inmates,2 combined with the relatively high positivity results in BOP facilities,3 the pending tests do not bode well.

Of course, Donald Trump doesn’t appear to believe that COVID is life-threatening, because he keeps scheduling indoor rallies where he packs people closer together than even a prison, if only for two hours. Sure, he makes attendees sign away their right to sue.

But if it’s safe for the President to pack people in closed spaces to feed his ego, it is safe for the US government to put Roger Stone in a prison facility to punish him for protecting the President.

Likewise, if Americans don’t need access to testing to assess the risk of COVID, then neither does Roger Stone.

Stone’s filing claims that the US Attorney’s office doesn’t object to his request.

The defense contacted the United States Attorney’s Office to ascertain its position on this motion, and was informed that, based on the Department of Justice’s and the Executive Office of United States Attorneys’ guidance on the handling of voluntary surrender dates during the pandemic at this point in time, it does not oppose a 60-day extension of Stone’s surrender date.

But as Politico noted, in addition to some wails about an attempt to kill him posted on Instagram, Stone also posted on Friday that the US Attorney’s Office did object to his delay.

In a video posted on Instagram Friday, Stone said the U.S. Attorney’s Office turned down his request to delay his prison report date, but Stone’s lawyers said in their court filing Tuesday that prosecutors were not opposed to giving him an additional two months to report.

Perhaps given the proof that Trump has the ability to cow the DC US Attorney to show favors on Trump’s buddies, Judge Amy Berman Jackson is taking no chances. She is asking DOJ to certify to what Stone has claimed.

MINUTE ORDER as to ROGER J. STONE, JR. It is ORDERED that the government must file a submission setting forth its position on defendant’s motion to extend his surrender date [381], and its reasons for that position, in writing. The government must also inform the Court of the results of the COVID-19 tests at FCI Jesup that were described in the motion as pending at the time it was filed. The government’s submission is due by June 25, 2020. 

It will be interesting to see whether line AUSAs will sign such a filing.

Whatever ABJ decides to do with Stone, reporters should not let this double standard pass. If even being in a prison during the pandemic will kill Roger Stone, then being in a packed Trump rally likely poses a deadly risk as well. If COVID poses a risk to his buddies, then it’s time Trump started treating COVID as a risk to every American.