Tag Archives: Special Counsel

Court Eviscerates Barr Attempt to Whitewash Mueller Report

Federal District Court Judge Amy Berman Jackson yesterday issued a 35-page opinion (exclusive of attachments) rejecting the claims of the Department of Justice that it can withhold  a memorandum behind then-Attorney General Barr’s attempt to whitewash the Mueller Report.  Citizens For Responsibility and Ethics in Washington v. U.S. Department Of Justice,  Civil Action No. 19-1552 (DC DC May3, 2021). [Note: bolding of text is mine]

You may recall that, as brilliantly reported by Judge Jackson, and at the risk of giving away the conclusion,

 On Friday, March 22, 2019, Special Counsel Robert S. Mueller, III delivered his Report of the Investigation into Russian Interference in the 2016 Presidential Election to the then-Attorney General of the United States, William P. Barr.

But the Attorney General did not share it with anyone else.

Instead, before the weekend was over, he sent a letter to congressional leaders purporting to “summarize the principal conclusions” set out in the Report, compressing the approximately 200 highly detailed and painstakingly footnoted pages of Volume I – which discusses the Russian government’s interference in the election and any links or coordination with the Trump campaign – and the almost 200 equally detailed pages of Volume II – which concerns acts taken by then- President Trump in connection with the investigation – into less than four pages. The letter asserted that the Special Counsel “did not draw a conclusion – one way or the other – as to whether the examined conduct constituted obstruction,” and it went on to announce the Attorney General’s own opinion that “the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense.”

The President then declared himself to have been fully exonerated.

The Attorney General’s characterization of what he’d hardly had time to skim, much less, study closely, prompted an immediate reaction, as politicians and pundits took to their microphones and Twitter feeds to decry what they feared was an attempt to hide the ball.

When, almost a month later, Barr presented the Mueller Report to Congress, “He asserted that he and the Deputy Attorney General reached the conclusion he had announced in the March 24 letter “in consultation with the Office of Legal Counsel and other Department lawyers.” CREW immediately filed Freedom of Information Act requests for any documents related to those consultations. Predictably, DOJ resisted, citing exemptions from disclosure based on “deliberative process” and “attorney-client privilege.”

At issue then before the Court were two memoranda to the Attorney General. The DOJ justification for withholding the first one, the Judge noted, was poor, but the Judge conducted an in camera [private, in chambers] review of the document and gave DOJ a helping hand:

there was a particular, immediate decision under review to which the document pertained, that it also addressed another specific issue that was likely to arise as a consequence of the determination made with respect to the first, and that the entire memorandum was deliberative with respect to those decisions.

Judge Berman therefore held that document need not be disclosed to CREW.

The other document, however, was another cup of joe entirely. It was dated just two days after Mueller gave Barr the report and “specifically addresses the subject matter of the letter transmitted to Congress.” Most of the document is redacted in the Judge’s opinion but she also conducted, over DOJ’s strenuous objections, an in camerareview of that document.

Noting first CREW’s objections to the timeline represented by DOJ attorneys:

DOJ’s . . . arguments rest on the demonstrably false proposition that the memo was submitted to the Attorney General to assist him in making a legitimate decision on whether to initiate or decline prosecution of the President for obstructing justice . . . . [H]owever, the Special Counsel already had made final prosecutorial judgments and the time for the Attorney General to challenge those judgments had passed. Whatever the contents of the March 24, 2019 OLC memo, it was not part of a deliberation about whether or not to prosecute the President….

The absence of a pending decision for the Attorney General to make necessarily means the memo did not make a recommendation or express an opinion on a legitimate legal or policy matter. Instead, it was part of a larger campaign initiated by Attorney General Barr to undermine the Special Counsel’s report and rehabilitate the President . . . .”

The Judge concluded:

the redacted portions of Section I reveal that both the authors and the recipient of the memorandum had a shared understanding concerning whether prosecuting the President was a matter to be considered at all. In other words, the review of the document reveals that the Attorney General was not then engaged in making a decision about whether the President should be charged with obstruction of justice; the fact that he would not be prosecuted was a given.

In a footnote, most of which is redacted, the Judge noted, “DOJ made a strategic decision to pretend as if the first portion of the memorandum was not there.” Ooof.

Similarly, Judge Jackson later observed,

the in camera review of the document, which DOJ strongly resisted …. raises serious questions about how the Department of Justice could make this series of representations to a court in support of its 2020 motion for summary judgment

and,

summary judgment may be granted on the basis of agency affidavits in FOIA cases, when “they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.” But here, we have both.

Noting a previous court opinion (the EPIC case) that found,

The speed by which Attorney General Barr released to the public the summary of Special Counsel Mueller’s principal conclusions, coupled with the fact that Attorney General Barr failed to provide a thorough representation of the findings set forth in the Mueller Report, causes the Court to question whether Attorney General Barr’s intent was to create a one-sided narrative about the Mueller Report – a narrative that is clearly in some respects substantively at odds with the redacted version of the Mueller Report.

Judge Jackson found,

the [DOJ] affidavits are so inconsistent with evidence in the record, they are not worthy of credence.

and,

the suspicions voiced by the judge in EPIC and the plaintiff here were well-founded, and that not only was the Attorney General being disingenuous then, but DOJ has been disingenuous to this Court with respect to the existence of a decision-making process that should be shielded by the deliberative process privilege. The agency’s redactions and incomplete explanations obfuscate the true purpose of the memorandum, and the excised portions belie the notion that it fell to the Attorney General to make a prosecution decision or that any such decision was on the table at any time.

and,

A close review of the communications reveals that the March 24 letter to Congress describing the Special Counsel’s report, which assesses the strength of an obstruction-of-justice case, and the “predecisional” March 24 memorandum advising the Attorney General that [redacted text] the evidence does not support a prosecution, are being written by the very same people at the very same time.

As to the claim of attorney-client privilege, Judge Jackson was equally incisive and for similar reasons:

… since the memorandum was being written at the same time and by the same people who were drafting the Attorney General’s letter to Congress setting forth his views on the basis for a prosecution, and the record reflects that the priority was to get the letter completed first one simply cannot credit the declarant’s statement that the Attorney General made the “decision” he announced based on the advice the memo contains.

Finally,

The Court emphasizes that its decision turns upon the application of well-settled legal principles to a unique set of circumstances that include the misleading and incomplete explanations offered by the agency, the contemporaneous materials in the record, and the variance between the Special Counsel’s report and the Attorney General’s summary.

These devastating (for the DOJ attorneys) findings confirm the suspicions that I and many other expressed at the time that the fix was in at the Barr Justice Department and that Barr was acting more as personal counsel to Trump than doing his job as Attorney General of the United States.

Judge Jackson gave DOJ until May 17 to move for a stay pending appeal, but it is unlikely that AG Merrick Garland is going to do anything to resist the force of Judge Jackson’s definitive analysis. Stay tuned. The release of an unredacted version of the Judge’s opinion will be an explosive eye-opener about the extent of corruption in the Trump-Barr Justice Department.

 

MUELLER REPORT PART I – TRUMP CANOODLING WITH RUSSIA

Introduction¹

This is the first of a series of posts in which I will analyze the Mueller Report based on the Special Counsel’s Office (SCO) investigation into two questions: (1) did the Trump Campaign conspire with the Russian government to affect the 2016 election in Trump’s favor and (2) did Trump engage in obstruction of justice regarding the Mueller investigation or otherwise? Based on the evidence adduced by the SCO, I believe the answer to both questions is ‘yes.’

Trump has argued that everything that transpired with Russia during and after the Campaign was intended merely to improve relations with Russia. On its face, there is nothing wrong with that — as a policy position – since Russia is clearly a major world power and, provided US interests are protected, better relations with it would be an important and valid foreign policy objective. Such claimed improvements in relations, however, must have mutual benefits, including that (1) vital relationships with allies around the world are respected and nourished, and (2) the personal and financial interests of our government leaders are not implicated in decisions regarding Russia. Because the Trump administration has been conducted largely in secret, often violating federal laws governing record-keeping by federal officials, and because the president has demonstrably lied about so many aspects of his governance before and after his election, including particularly his relations with Russia, little or no credence should be given to his protestations of innocence and doubts should be resolved against him.

Moreover, and this supersedes all other considerations, efforts to improve relations may not, under any imaginable circumstances, include seeking or accepting offers of assistance in the election of our leaders. Such activities by candidates are plainly and completely forbidden. It is well to remember, as President Obama reminded us when asked about possible changes to US foreign policy following his election, but before his inauguration, we have only one president at a time. Interference in the foreign policy of the United States by collaboration with a hostile foreign power, which Russia unquestionably has been, is beyond the pale. Every putative leader and those in the inner circle are chargeable with knowledge of, and the duty to comply with, this policy. Failure to adhere to it is a clear violation of the constitutionally prescribed oath of office (Article II, Section I, Clause 8) and is tantamount to, if not actually, treason.

Treason is a term that should not be thrown about lightly. The U.S. Constitution, in an effort to limit the abuses of the King of England, provides “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.”

Since the Constitution provides only a limitation on what may be treason, the Congress enacted 18 USC 2381 of the federal criminal code:

“Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.”

Historically, very few formal allegations of treason have been brought in the United States and, as a practical matter, there is little chance that Donald Trump will be so accused. Nevertheless, in evaluating his behavior, and that of his chosen associates, it is well to keep the concept in mind. “I didn’t know the law” is no excuse.

It is important to me personally and, I hope, important to readers, to understand the many curiosities and nuances of the Mueller investigation, especially now that the Trump-appointed Attorney General has taken it upon himself to “decide” the very issues about which Mueller declined to make a final prosecutorial judgment. In doing this, the AG has made blatantly false statements about the substance of the Mueller Report in an effort to shape the public understanding of that Report in Trump’s favor. The AG has acted more like Trump’s personal attorney than like the chief legal officer of the country.

Mueller opened the door to this chicanery by failing to state clear conclusions about many aspects of the investigation. He could have done otherwise even if he believed, as he says, he was constrained by Justice Department policies that prevent the indictment of a sitting president for the corrupt conduct of his office. But he didn’t state those conclusions. Overall, his approach to the investigation seems to lack an appropriate measure of aggression, considering what was and is at stake.

Understanding the Report is also important because the Republicans in Congress now seek to “investigate” the investigators, pursuing the false narrative that there was no justification for the investigation in the first place and, taking words from Trump’s tweet storms, it was all just an effort to “take down a president.” That characterization is plainly false. That fact does not mean, however, that the Muller Report is without shortcomings. In addressing what I believe those are, I will be unsparing in my own critique.

That critique does not support the false Republican narrative. Indeed, the reverse is true. For reasons I will state, Mueller, in my view, failed to pursue leads and to follow up and report on some obvious issues. I understand, of course, that Mueller is famous as a prosecutor and highly regarded as a man above reproach. I accept that, but that just makes the questions about the Report all the more pointed and the absence of answers more difficult to accept at face value. This was not a time to be timid and, I believe, the Report reflects a stunningly timid approach.

On the issue of election interference, the Report contains many details, some of which refer to what seem like peripheral matters. Large sections of Vol. 1, for example, deal with Russian cyber-attacks and how they were investigated, not with Trump Campaign coordination. If you choose to read the Report, do not be distracted by this. The Report’s crucial finding is that not only did the Trump Campaign “expect … to benefit electorally from information stolen and released through Russian efforts” [I-MR 1-2] but the Campaign did not report what it knew was going on, and being attempted, to the FBI.

Also, keep in mind this warning from Mueller: “A statement that the investigation did not establish particular facts does not mean there was no evidence of those facts.” I-MR 2 There are many instances in which that statement applies to the situation the investigation was trying to explore.

Mueller has stated that if questioned in Congress, he will say nothing more than what is written in the Report. That is, for reasons that will appear, an unacceptable position. There are many legitimate questions about the conduct of the investigation, the framing of the analytical basis for the matters investigated and the conclusions (and non-conclusions) drawn. Mueller has, I believe, a solemn obligation to appear and respond to questions. He has apparently now agreed to do so, despite the continued entreaties of the Attorney General that he should not undergo that examination. I trust Mueller will not simply say “sorry, I have nothing further to say.” Time will tell.


[1] Page references are to the actual Report, not the pagination in Adobe Reader. I-I-MR X refers to Volume 1 at page X and II-I-MR X refers similarly to Volume II.

Next: Collusion vs. Conspiracy – Setting a High and Unnecessary Threshold of Proof