Barr provided legal cover for Trump on obstruction, according to recently released documents

In response to a court order, the Justice Department has released a 2019 internal memorandum to then-Attorney General William P. Barr concerning whether the evidence gathered by special counsel Robert S. Mueller III would justify charging then-President Donald Trump with obstruction of justice, writes Randall Eliason of the Washington Post. As Mueller noted in his report, the prospect of charging a president with obstruction raises difficult issues. But this newly released memo is not a serious attempt to grapple with those issues. It’s a whitewash — a failed effort to provide legal cover for Barr’s foregone conclusion exonerating the president. And as the statute of limitations clock continues to tick away, we still don’t have an honest assessment from the Justice Department regarding Trump and obstruction.

Mueller infamously declined to make a prosecutorial judgment on this question, based on the long-standing Justice Department policy that a sitting president cannot be indicted. In the memo, dated two days after Mueller sent his 400-plus page report to Barr, senior Justice Department officials Steven A. Engel and Edward O’Callaghan urge Barr to make that judgment himself and declare there was insufficient evidence of obstruction. Barr did just that in a misleading letter to Congress released that same day.

In their nine-page memo, Engel and O’Callaghan note that Mueller concluded there was insufficient evidence to find that Trump or his campaign conspired or coordinated with the Russians seeking to interfere with the 2016 election. They argue this would make obstruction charges inappropriate, because it would be unusual to prosecute someone for obstruction when there was no underlying criminal offense.

Scooter Libby and Martha Stewart would like a word. Both were convicted of obstructing investigations that ultimately did not result in other criminal charges — and that is not at all unusual. At the time of the obstruction, of course, a defendant does not know whether criminal charges ultimately will be brought. And people obstruct investigations for all kinds of reasons — including that the results might be politically damaging or embarrassing — even if they don’t fear criminal liability.

But the bigger flaw in this argument is that the obstruction itself might be the reason there was insufficient evidence to bring charges. According to this memo, if you are good at obstruction and succeed in thwarting the investigation, you get a free pass not only for the underlying conduct but also for the obstruction itself. That is not the law.

Engel and O’Callaghan also claim Mueller had a flawed view of obstruction because he believed that otherwise lawful acts — such as firing the FBI director — could constitute obstruction if done with corrupt intent. They argue this is incorrect, and that obstruction charges could not properly be based on conduct that is “lawful on its face.”

Wrong again. Obstruction charges often apply when otherwise lawful acts are done with the corrupt intent to obstruct. If I shred my personal files because my office is cluttered, that is perfectly lawful. If I shred those files because they have been subpoenaed by a grand jury, that same conduct is now obstruction of justice, based on my corrupt intent.

The memo also suggests Trump’s actions were not obstruction because they were motivated by his belief that the Mueller investigation was unfair and was interfering with his governing agenda. No doubt all public officials under investigation feel the same way. But that is no defense. Just as believing he won the election would not justify Trump unleashing a mob on the Capitol, being unhappy about the Mueller investigation would not justify obstructing that investigation.

But the strongest evidence of the memo’s true purpose is its suggestion that Barr himself decide the obstruction question. Engel and O’Callaghan argue it would be contrary to DOJ policy to leave that question unresolved. But if that were truly the concern, the best solution was obvious: Barr could have ordered Mueller to make that call. The very purpose of a special counsel is to take such decisions out of the hands of political appointees. Mueller and his team lived with the investigation for nearly two years and were in the best position to reach a legal conclusion about Trump’s conduct. Barr’s failure to ask Mueller for his view and decision to claim that role for himself suggests he knew he would not like Mueller’s answer.

Before he was even appointed as attorney general, Barr wrote an unsolicited memo to the Justice Department arguing that Mueller’s obstruction theories were “fatally misconceived.” There was never any doubt about where Barr was going to come down on the obstruction question, and the flimsy analysis in this memo does nothing to further illuminate the issue. Merrick Garland’s Justice Department could still take an independent look — and potentially prosecute — but time is running out.

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MCN: Trump’s pardons reveal extraordinary abuse of power

Matthew T. Mangino
More Content Now
December 24, 2020

The worst fears of the framers of the U.S. Constitution have come to realization 233 years after the document was drafted, debated, revised and submitted for ratification. President Donald Trump, in an attempt to shield himself from potential prosecution, just pardoned Paul Manafort and Roger Stone. He pardoned Michael Flynn on Nov. 25.

Stone was convicted last year of making false statements, obstruction and witness tampering as revealed in the Mueller investigation. The Justice Department initially recommended a 7- to 9-year sentence, but reduced the recommendation after the attorney general intervened.

Manafort was convicted of eight felonies in Virginia in 2018 and entered into a plea agreement in a separate case to 10 charges, including three counts of failing to file reports of foreign bank and financial accounts, and seven counts of bank fraud and bank fraud conspiracy.

Flynn admitted to twice lying under oath. He pleaded guilty in December 2017 to lying to FBI investigators about his communications with Russian ambassador Sergey Kislyak before Trump took office.

The drafters of the Constitution were concerned that a president could use his pardon powers to protect himself or maybe worse, set in motion illegal conduct by subordinates with the promise of a pardon.

Paul Rosenzweig, a prosecutor during the Clinton Whitewater investigation, wrote in The Atlantic that during the Constitutional Convention the president’s pardon power was hotly contested. George Mason from Virginia was strongly opposed to granting the president such an imperial power. Mason worried that the president “ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself. It may happen, at some future day, that he will establish a monarchy, and destroy the republic.”

Erick Trickey of Boston University wrote in The Atlantic that special counsel Robert Mueller wrote about the possibility of Trump pardoning Manafort and Flynn.

“Evidence concerning the President’s conduct towards Manafort indicates that the President intended to encourage Manafort to not cooperate with the government,” the report states. “The evidence supports the inference that the President intended Manafort to believe that he could receive a pardon,” Mueller adds, “which would make cooperation with the government as a means of obtaining a lesser sentence unnecessary.”

Trickey continued that the Constitution doesn’t allow the president to abuse his pardon power. Mueller’s continued, “Congress has the authority to prohibit the corrupt use of anything of value to influence the testimony of another person which would include the offer or promise of a pardon to induce a person to testify falsely or not to testify at all.”

James Pfiffner, a professor at - ironically - George Mason University, wrote in The Hill that Mueller believed the president dangled pardons over the heads of Manafort and Flynn “intend(ing) to shape their conduct in the future and encourage them to provide false testimony or otherwise obstruct justice.”

Mason is also known for a key addition to the impeachment provision of the Constitution. Trickey wrote in The Smithsonian, that Mason asked his fellow delegates why treason and bribery were the only grounds in the draft Constitution for impeaching the president? Treason, he warned, wouldn’t include “attempts to subvert the Constitution.”

After a heated exchange with fellow Virginian James Madison, Mason came up with another category of impeachable offenses: “other high crimes and misdemeanors.” The very grounds used to impeach Donald Trump.

Trump’s impeachment did not result in his removal from office. A second attempt at impeachment is impossible with less than four weeks remaining in his term. That leaves the only limits on his power, public scorn and his legacy - neither of which Trump seems to care anything about.

Ken Gormley, a Constitutional scholar and President of Duquesne University in Pittsburgh, recently wrote in the Washington Post, “If President Trump makes the ill-advised decision to try to pardon himself ... incoming president Joe Biden should respond with another unprecedented step: He should ‘un-pardon’ his predecessor.”

I would take it one step further - if the pardons of Stone, Manafort and Flynn were provided to obstruct justice, in other words to protect Trump from criminal liability “un-pardon” them as well.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

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Trump pardons Flynn

President Donald Trump pardoned his former national security adviser Michael Flynn, ending a years long prosecution in the Russia investigation that saw Flynn twice plead guilty to lying to the FBI and then reverse himself before the Justice Department stepped in to dismiss his case, reported The Associated Press.

“It is my Great Honor to announce that General Michael T. Flynn has been granted a Full Pardon,” Trump tweeted. “Congratulations to @GenFlynn and his wonderful family, I know you will now have a truly fantastic Thanksgiving!”

The pardon, in the waning weeks of Trump’s single term, is part of a broader effort by Trump to undo the results of a Russia investigation that shadowed his administration and yielded criminal charges against a half-dozen associates. It comes just months after the president commuted the sentence of another associate, Roger Stone, days before he was to report to prison.

A Justice Department official said the department was not consulted on the pardon and learned Wednesday of the plan. But the official, who spoke on condition of anonymity to discuss internal deliberations, noted that the president has the legal power to pardon Flynn.

The move is likely to energize supporters who have taken up Flynn as a cause celebre and rallied around the retired Army lieutenant general as the victim of what they assert is an unfair prosecution, even though Flynn twice admitted guilt. Trump has repeatedly spoken warmly about Flynn and, in an indication of his personal interest in his fate, asked then-FBI Director James Comey in February 2017 to end a criminal investigation into the national security adviser.

In a statement, Flynn’s family thanked Trump “for answering our prayers and the prayers of a nation” by issuing the pardon.

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Toobin examines Mueller investigation in new book

Katie Benner's New York Times review of Jeffrey Toobin's latest book, “True Crimes and Misdemeanors," wherein the author explains why President Trump came out basically unscathed, despite the fact that, as he writes, the president “never really pretended to be anything other than what he was — a narcissistic scoundrel.” He rightly argues that the investigation was an utter political failure.

Mueller ran a by-the-book, narrow inquiry and adhered to Justice Department rules that bar comment about ongoing investigations. He provided ample evidence that the president broke the law, but in the end he would not clearly say as much. His equivocation provided the president room to declare that Mueller found “no collusion and no obstruction.” Toobin says that this half-truth and falsehood, respectively, were a rhetorical success because “simplicity rarely loses to complexity in battles in the public square.”

Trump, bound by very little, used his pulpit to misrepresent the investigation as an out-of-control witch hunt and the investigators as partisan liars and leakers. Neither Mueller nor the Justice Department fought back, which Toobin says let Trump publicly define the special counsel’s work.

Toobin’s narrative unfolds like a tragedy. Before and after the tumult of the 2016 election, the Justice Department investigated the Trump campaign for ties to Russia; once in office the president opposed their work. As Trump pressured department officials to protect his associates, Mueller was quietly tapped in May 2017 to serve as special counsel and take over the investigation.

That Trump would eventually undermine Mueller seemed absurd on its face. Their résumés paint them as nearly caricatures of a hero and a villain: Mueller a decorated Vietnam War veteran and devoted civil servant who led the F.B.I. in the aftermath of 9/11; Trump a dishonest businessman and D-list reality show star who once described dodging sexually transmitted diseases as his “personal Vietnam.” Simply presenting them side by side “is to challenge the conventions of journalistic balance,” Toobin writes.

Toobin primarily relies on details from the Mueller report and the public record to reconstruct the investigation, but his own reporting yields striking new information, especially in the case against the Internet Research Agency, a Russian company that weaponized social media to manipulate voters. It was Facebook itself that brought the special counsel evidence that the Russian outfit had used the platform to help Trump. Jeannie Rhee, the Mueller team member who built the case against the I.R.A. for defrauding the United States, faced a quandary. The company hadn’t hacked Facebook or committed a traditional cybercrime. In fact, it used the platform as intended, sharing viral information that influenced users. Employed as designed, Facebook had become the perfect weapon, but how did that violate United States law?

That question foreshadowed one of the investigation’s central dilemmas: What do you do when you uncover acts that don’t explicitly violate the law but that clearly seem wrong?

Mueller’s prosecutors could not prove beyond a reasonable doubt that the Trump team coordinated with Russia, even though campaign associates seemed aware that the Kremlin was interfering in ways that likely favored them. Paul Manafort, Trump’s campaign manager, shared polling data with an oligarch linked to Vladimir Putin, the Russian president. Donald Trump Jr. agreed to meet at Trump Tower with a lawyer who represented Russian interests, after being told that he might obtain negative information about Hillary Clinton. But neither of those facts led to charges.

The 2017 revelation about the I.R.A. was part of the special counsel’s whirlwind first year. In the fall it unsealed a guilty plea from the former campaign associate George Papadopoulos, who had lied to investigators. It indicted Manafort for financial crimes related to his lobbying work for pro-Russian interests in Ukraine. It then indicted the I.R.A. for interfering in the election, as well as other Russian operatives for hacking the Democrats. And in November it had what felt like an enormous breakthrough: Don McGahn, the White House counsel, told Mueller’s team that Trump had demanded that he fire Mueller — the clearest evidence yet that the president obstructed justice.

But at that point, the investigation stalled and never regained momentum, in large part, Toobin says, because Mueller was overly cautious. He chose not to probe Trump’s financial ties to Russia, examine his personal finances or obtain his tax returns. Investigators tried other methods to establish connections between Trump and Russia but the president’s associates stymied efforts to penetrate Trump’s orbit.

Mueller didn’t subpoena Trump after he reneged on an agreement to be interviewed at Camp David in January 2018 — which Trump saw as a sign of weakness and Toobin as Mueller’s key misstep. Trump was further emboldened in May, when Mueller’s deputies told the White House that they would not indict the president, in deference to a Justice Department legal opinion on the matter. Trump’s public attacks helped to end the bipartisan support that Mueller initially enjoyed, and made it nearly impossible for Congress to use his findings as the basis for oversight measures, or even impeachment, once opinion about him broke along party lines.

Toobin’s absorbing, fast-paced narrative is anchored by detailed scenes of chaos inside the Trump administration and meetings between Trump’s and Mueller’s lawyers. But it provides no hard information about how and why Mueller came to make his most significant and ill-fated decisions. As a former prosecutor and legal analyst, Toobin can offer somewhat satisfying educated guesses, but ultimately Mueller’s caution and restraint remain an enigma.

What is clear is that the Mueller investigation ultimately taught Trump that he could largely act with impunity. No one in his administration, or in any other branch of government, stopped him from attacking the Russia probe, dodging an interview with Mueller’s team and dangling pardons before witnesses to keep them from cooperating with investigators. He emerged from the two-year inquiry unbroken, unbowed and emboldened. And before the ink was dry on the report, he embarked on an effort to strong-arm Ukraine into announcing that it would investigate Joe Biden and his son. It also taught the American people that our system of checks and balances no longer works when Congress believes it should enable, rather than oversee, the president.

The Mueller report has been eclipsed by a parade of fresh crises, and its immediacy has faded. A whistle-blower complaint about Trump’s dealings with Ukraine led to his impeachment this past winter. A pandemic has resulted in over 150,000 American deaths and brought the economy to a standstill. And several recent killings of unarmed Black people sparked a summer of nationwide protests and a revived civil rights movement.

But Toobin’s larger argument is that Trump’s attacks on democracy will grow only more extreme in the months to come. If he is right, then “True Crimes and Misdemeanors” stands as a chilling preview of what to expect should Trump win a second term, and also as a road map for all that needs repair should he lose.

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Mueller Defends Prosecution of Roger Stone

The former special counsel Robert S. Mueller III broke his long silence on Saturday to defend his prosecution of Roger J. Stone Jr., forcefully rebutting President Trump’s claims that the investigation into Russian interference in the 2016 election was political and illegitimate, reported the New York Times.

Speaking out the day after Mr. Trump commuted Mr. Stone’s prison sentence for obstructing an inquiry into Russia’s role in the campaign, Mr. Mueller said Mr. Stone was no innocent victim and emphasized that the president’s clemency grant did not erase the conviction on seven felony counts.

“Stone was prosecuted and convicted because he committed federal crimes,” Mr. Mueller wrote in an op-ed in The Washington Post. “He remains a convicted felon, and rightly so.”

Mr. Mueller seemed most aggrieved over the president’s assertions of bad faith on the part of those who prosecuted Mr. Stone and others affiliated with Mr. Trump.

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GateHouse: Newly released Flynn documents, bombshell or dud?

Matthew T. Mangino

GateHouse Media

May 1, 2020

On Dec. 2, 2017, President Donald Trump tweeted, “I had to fire General (Michael T.) Flynn because he lied to the Vice President and the FBI. He has pled guilty to those lies. It is a shame because his actions during the transition were lawful. There was nothing to hide!”

Flynn served in the United States Army with distinction in Afghanistan and Iraq. He was the Director of the Defense Intelligence Agency for two years during the Obama Administration. He served as President Trumps’ first National Security Advisor. His tenure was the shortest in history, lasting 24 days before resigning after it was revealed he misled the FBI and Vice President Mike Pence about the nature and content of his communications with the Russian Ambassador to the United States Sergey Kislyak.

In December 2017, Flynn pleaded guilty to lying to the FBI about conversations with Kislyak in the Fall 2016 before Donald Trump was sworn into office. Flynn was being prosecuted by Special Counsel Robert Mueller pursuant to 18 U.S. Code 1001, a federal statute that “makes any materially false, fictitious, or fraudulent statement or representation,” in this case to the FBI, unlawful.

Flynn’s case has been bogged down in federal court as his new defense team alleges he was framed in a government conspiracy. Last month, Flynn withdrew his guilty plea. According to USA TODAY Flynn’s lawyers accused prosecutors of acting in “bad faith” during their investigation.

Flynn’s attorneys accused the government of forcing him to admit to crimes he didn’t commit and hiding evidence that would’ve exonerated him.

A federal judge rejected those claims. In January, Attorney General William Barr directed the U.S. attorney for eastern Missouri, Jeffrey B. Jensen, to assist federal prosecutors in the U.S. attorney’s office in Washington D.C., who began handling Flynn’s case after Mueller’s office closed in March 2019.

This week documents were released as part of Barr’s review of Flynn’s case. The documents were turned over, under seal, last week to Flynn’s lawyers. Flynn’s supporters, which again includes the president, suggest the documents will exonerate Flynn.

In a sudden change of heart, President Trump retweeted a post from his son Donald Trump Jr. calling for the imprisonment of FBI officials involved in Flynn’s prosecution.

Before GOP’s start popping the champagne let’s take a look at what the documents reveal. The documents relate to how top FBI officials prepared for an interview with Flynn in January 2017.

The FBI was aware that Flynn had talked by phone with the Russian Ambassador during the presidential transition.

Flynn asked Kislyak not to react to sanctions placed on Russia by the Obama Administration in retaliation for Russia’s meddling in the 2016 election. Flynn’s conversation raised concerns about violating federal law.

The newly released documents indicated that the FBI debated their approach to interviewing Flynn and how to best elicit an admission of wrongdoing.

One handwritten annotation by Bill Priestap, then the FBI’s head of counterintelligence asked, “What’s our goal? Truth/Admission or to get him to lie, so we can prosecute him or get him fired?”

Establishing a strategy in anticipation of an interview hardly seems like wrongdoing. Priestap also noted, “If we’re seen as playing games, WH (White House) will be furious. Protect our institution by not playing games.” Clearly Priestap intended to remind agents to play it by the book.

Bradley P. Moss, a partner at the Washington, D.C. law office of Mark S. Zaid, P.C., told The Law and Crime Network, “These tactics, while maybe unseemly to the public, are largely consistent with the very type of deceptive interrogation techniques law enforcement has been permitted to use for at least 50 years.” Moss added, “This isn’t a legal bombshell that is likely to save Flynn in court.”

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

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Federal judge sharply criticized AG Barr on handling 0f Mueller Report

A federal judge sharply criticized Attorney General William P. Barr’s handling of the report by the special counsel, Robert S. Mueller III, saying that Mr. Barr put forward a “distorted” and “misleading” account of its findings and lacked credibility on the topic, reported the New York Times.

Mr. Barr could not be trusted, Judge Reggie B. Walton said, citing “inconsistencies” between the attorney general’s statements about the report when it was secret and its actual contents that turned out to be more damaging to President Trump. Mr. Barr’s “lack of candor” called into question his “credibility and, in turn, the department’s” assurances to the court, Judge Walton said.

The judge ordered the Justice Department to privately show him the portions of the report that were censored in the publicly released version so he could independently verify the justifications for those redactions. The ruling came in a Freedom of Information Act lawsuit seeking a full-text version of the report.

The differences between the report and Mr. Barr’s description of it “cause the court to seriously question whether Attorney General Barr made a calculated attempt to influence public discourse about the Mueller report in favor of President Trump despite certain findings in the redacted version of the Mueller report to the contrary,” wrote Judge Walton, an appointee of President George W. Bush.

Mr. Barr’s public rollout of the Mueller report has been widely criticized. Still, it was striking to see a Republican-appointed federal judge scathingly dissect Mr. Barr’s conduct in a formal judicial ruling and declare that the sitting attorney general had so deceived the American people that he could not trust assertions made by a Justice Department under Mr. Barr’s control.

A department spokeswoman had no immediate comment. The lawsuit centers on Freedom of Information requests by the Electronic Privacy Information Center and by Jason Leopold, a BuzzFeed News reporter.

Judge Walton’s decision focuses on the period last spring between the delivery of the Mueller report to the attorney general, his publicly issued summary of it two days later that drew widespread condemnation and the release of the report itself a month later that revealed several discrepancies between the documents.

Among those Judge Walton cited: Mr. Barr’s obfuscation about the scope of the links that investigators found between the Trump campaign and Russia, and how the report documented numerous episodes that appear to meet the criteria for obstruction of justice, echoing the complaints of many critics of Mr. Barr’s summary of the report.

The attorney general issued an initial four-page letter in March 2019 — two days after receiving the 381-page Mueller report — that purported to summarize its principal conclusions. But within days, Mr. Mueller sent letters to Mr. Barr protesting that he had distorted its findings and asking him to swiftly release the report’s own summaries. Instead, Mr. Barr made the report public only weeks later, after a fuller review to black out sensitive material.

Among the issues Judge Walton flagged: Mr. Barr declared that the special counsel had not found that the Trump campaign had conspired or coordinated with Russia in its efforts to influence the 2016 presidential election, and left it at that.

But while Mr. Mueller did conclude that he found insufficient evidence to charge any Trump associates with conspiring with the Russians, Mr. Barr omitted that the special counsel had identified multiple contacts between Trump campaign officials and people with ties to the Russian government and that the campaign expected to benefit from Moscow’s interference.

Judge Walton also wrote that the special counsel “only concluded” that the investigation did not establish that the contacts rose to “coordination” because Mr. Mueller interpreted that term narrowly, requiring, in the report’s words, agreement that is “more than the two parties taking actions that were informed by or responsive to the other’s actions or interests.”

In addition, Mr. Barr told the public in March that Mr. Mueller had made no decision about whether the president obstructed justice, then pronounced Mr. Trump cleared of those suspicions.

But Mr. Barr “failed to disclose to the American public,” Judge Walton wrote, that Mr. Mueller had explained that it would be inappropriate to make a judgment while the president was still in office about whether he committed obstruction crimes. The report also said that if the evidence had cleared Mr. Trump, Mr. Mueller would have said so, but he was unable to exonerate him.

“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 Walton wrote. 

The judge also blasted similar “inconsistencies” in public comments made by Mr. Barr hours before he released the redacted version of the report in April.

Because of that pattern, Judge Walton wrote, he could not look away from the fact that the portions of the Mueller report that the Justice Department was withholding in the Freedom of Information Act case mirrored the deletions made under Mr. Barr’s guidance in the version of the report released in April.

That echoing, he wrote, causes “the court to question whether the redactions are self-serving and were made to support, or at the very least to not undermine, Attorney General Barr’s public statements and whether the department engaged in post-hoc rationalization to justify Attorney General Barr’s positions.”

Appointed to the Federal District Court bench in Washington in 2001, Judge Walton has presided over a variety of high-profile cases, including the perjury trial of the former baseball pitcher Roger Clemens and the trial of I. Lewis Libby Jr., the onetime chief of staff to Vice President Dick Cheney who was convicted of lying in connection with the leak of the identity of a C.I.A. operative. Mr. Trump pardoned Mr. Libby in 2018.

A former prosecutor who handled drug and street crime cases, Judge Walton is known for handing down tough sentences and for being careful and methodical. He also once broke up a street brawl near the courthouse.

The Mueller ruling was not the first time that Judge Walton had criticized the actions of the Barr Justice Department. Last month, he unsealed the transcript of a September closed-door meeting with prosecutors about whether and when the department was going to charge Andrew G. McCabe, the former acting F.B.I. director whom Mr. Trump has vilified for his role in the Russia case, in connection with a leak investigation.

Noting in that September hearing that prosecutors had said to him weeks earlier that a decision about charging Mr. McCabe could come “literally within days,” Judge Walton chastised them for stringing along Mr. McCabe and noted the president’s comments about Mr. McCabe with disapproval, saying they created the appearance of a “banana republic.”

 “I don’t think people like the fact that you got somebody at the top basically trying to dictate whether somebody should be prosecuted,” the judge said, adding that even if Mr. Trump’s moves were “not influencing the ultimate decision, I think there are a lot of people on the outside who perceive that there is undue, inappropriate pressure being brought to bear.”

Nevertheless, the Justice Department continued to keep Mr. McCabe hanging for another five months, announcing only last month that he would not be charged. Hours later, Judge Walton unsealed the transcript of the closed September hearing, which was part of a Freedom of Information lawsuit filed by the liberal watchdog group Citizens for Responsibility and Ethics in Washington.

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DOJ Inspector General: FBI and DOJ investigation of Russia/Trump justified

The FBI mishandled parts of its application to monitor a Trump campaign aide as it was probing possible Russian interference in the 2016 election, but the overall investigation was justified, according to a long-awaited report by the Justice Department's watchdog that rebuts the president's depiction of a politically biased plot against him, reported NBC News.

The report by Justice Department Inspector General Michael Horowitz concluded that the FBI and the Justice Department launched their investigation into the 2016 campaign not for political reasons, but because of evidence the Russian government was using cutouts to reach out to the Trump campaign as part of its efforts to influence the election.

Horowitz found that political bias did not taint the actions of former FBI leaders who have frequently been the subject of presidential attacks on Twitter, including former Director James Comey, former Deputy Director Andrew McCabe and former Deputy Assistant Director Peter Strzok.

"We did not find documentary or testimonial evidence that political bias or improper motivation influenced the decisions" to open investigations into four Trump campaign aides, the report says.

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Mueller to testify before congressional committees

Robert Mueller agreed Tuesday to testify before the House Judiciary Committee and House Intelligence Committee in an open session, reported the Huffington Post.

The special counsel is set to appear before both committees in separate but back-to-back hearings on Wednesday, July 17, according to Reps. Jerry Nadler (D-N.Y.) and Adam Schiff (D-Calif.), who chair the judiciary and intelligence committees, respectively.

“Americans have demanded to hear directly from the Special Counsel so they can understand what he and his team examined, uncovered, and determined about Russia’s attack on our democracy, the Trump campaign’s acceptance and use of that help, and President Trump and his associates’ obstruction of the investigation into that attack,” Nadler and Schiff said in a joint statement. “We look forward to hearing his testimony, as do all Americans.”

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Mueller: 'If we had confidence that the President clearly did not commit a crime, we would have said that'

Special Counsel Robert Mueller issued a statement at the Department of Justice reviewing the findings of his investigation and closing down his office, reported Jurist.

Mueller began by reviewing the order creating his office and the grand jury indictments that allowed him to investigate Russian interference in the 2016 election. Mueller also highlighted his investigation into possible obstruction of justice by President Donald Trump, which arose out of actions the president undertook while the investigation was ongoing.

Mueller reiterated statements from the Mueller Report that “if we had confidence that the President clearly did not commit a crime, we would have said that.” He also once again stated that his office did not make a determination about whether the president had committed a crime due to longstanding Department of Justice policy asserting that a sitting president cannot be indicted. Mueller said that the same policy preventing him from indicting the president suggests an alternative constitutional remedy for holding a president accountable. The alternative remedy is heavily implied to be impeachment and the purview of Congress. 

Mueller ended his statement by saying that any testimony he gave to Congress would not go beyond what was already in the report as the document should speak for itself. Mueller thanked the various attorneys and staff who worked on the investigation and announced that he was closing the Special Counsel’s Office and resigning from the Department of Justice to return to private life.

A number of responses have been released regarding the Special Counsel’s statement. Trump is holding firmly on the line of “No Obstruction, No Collusion” with a statement released by Press Secretary Sarah Sanders. Several members of the House are calling for impeachment inquiries to begin, including Justin Amash (R-MI), Bill Pascrell(D-NJ) and Alexandria Ocasio-Cortez (D-NY). Several Democrats in the Senate have called for impeachment as well, including Elizabeth Warren (D-MA), Kamala Harris (D-CA) and Cory Booker (D-NJ), each of whom is running for president in the 2020 election. House Judiciary Chairman Jerry Nadler held a press conference announcing intentions to hold the president accountable, stating that all options including impeachment are on the table but refusing to commit to impeachment at this time.

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GateHouse: Contempt of Congress: Where do we go from here?

Matthew T. Mangino

GateHouse Media

May 10, 2019

The House Judiciary Committee voted 24-16 to recommend the House hold Attorney General William Barr in contempt of Congress for failing to comply with a subpoena seeking an unredacted copy of Robert Mueller’s report. The vote came after President Donald Trump asserted executive privilege to prevent the unredacted report from going to Congress.

Congressional rules empower all committees with the authority to compel witnesses to appear and testify or produce documents for matters being investigated by a Congressional committee.

In 1961, the Supreme Court ruled that a Congressional committee must meet three requirements for a valid enforceable subpoena. First, the committee’s investigation must be authorized by a chamber congress; second, the investigation must pursue “a valid legislative purpose;” and third, the specific inquiries must be pertinent to the subject matter that has been authorized for investigation.

Once the threshold is met, Congress has three options to enforce a subpoena. First, Congress’ inherent contempt power provides constitutional authority to detain and imprison an individual until that person complies with the subpoena. The last time Congress used its inherent contempt powers was in 1934 when the Senate held William MacCracken, a former member of Herbert Hoover’s administration, after he refused a subpoena. According to the Washington Post, the Senate had nowhere to hold MacCracken so he was imprisoned at a hotel.

Second, Congress can pursue a criminal contempt citation through the executive branch seeking criminal prosecution for contempt. This is the most common method used by Congress. The person accused of contempt is charged with a misdemeanor punishable by a fine and up to a year in jail.

There are some practical concerns with this option. Where the official refuses to disclose information pursuant to the president’s decision that such information is protected under executive privilege, it is unrealistic that the Department of Justice (DOJ) will pursue a prosecution for criminal contempt. More to the point, under the current facts the DOJ would be asked to prosecute its boss, the attorney general.

Finally, Congress may rely on the courts to enforce a congressional subpoena. Under this option, Congress may seek a civil judgment from a federal court declaring that the individual in question is legally obligated to comply with the congressional subpoena.

A number of obstacles face Congress in any attempt to enforce a subpoena issued to the Attorney General, an executive branch official. Congress may be able to enforce its subpoena through a civil lawsuit; however, relying on this option to enforce a subpoena directed at the attorney general may be inadequate to protect the authority of Congress due to the time required to achieve a final court ruling.

The two most recent court cases seeking to enforce a Congressional subpoena involved former Attorney General Eric Holder in 2012 and former White House counsel Harriet Miers in 2008. According to a 2017 report from the Congressional Research Service, ”(B)oth conflicts ended the same way: The contempt charge was stuck in a court battle for so long that a new president and Congress were elected and new administration officials took office along with them.”

Trump’s blanket claim of executive privilege appears to be an effort to shield Barr from contempt. Essentially, the president is saying the redacted aspects of the report are privileged and Barr cannot turn them over to Congress.

Trump’s efforts parallel Richard Nixon’s unsuccessful effort to prevent his White House Counsel, John Dean, from testifying pursuant to a subpoena from the Watergate special prosecutor.

According to Michael Conway - a former counsel to the House Judiciary Committee - like Nixon, Trump is trying to use an expansive claim of executive privilege to thwart a legitimate Congressional investigation.

Trump seems to be prepared to do as Nixon did in 1973. Conway wrote on the NBC News website, “Nixon predicted that the Senate would question his claim of executive privilege if Dean were required to testify. If that occurred, Nixon said ‘we’ll let it go to the (Supreme) Court. Fight it like hell.’”

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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Barr in contempt of Congress

House Democrats on the Judiciary Committee voted to hold Attorney General William Barr in contempt of Congress for failing to provide the full version of Special Counsel Robert Mueller’s report on Russian interference in the 2016 election, and the White House responded by invoking executive privilege over it, reported Time Magazine.

The immediate consequences will be mostly symbolic. About 10 percent of the Mueller report was redacted, at times clearly because it involved information relevant to the upcoming trial of longtime Trump confidant Roger Stone. The next step in the proceedings will be a vote on the House floor. Although it will likely pass since Democrats control the chamber, Barr will probably face few legal repercussions, as federal prosecutors are unlikely to pursue criminal penalties for a contempt of Congress charge against their own boss.

But the speed with which Democrats took the nearly unprecedented measure — it is only the second time in U.S. history that the nation’s top law enforcement officer was held in contempt of Congress — and the surrounding cloud of suspicion and counter-charges reflected the unprecedented scope of conflict between the executive and legislative branches.

In the 48 hours since the Judiciary Committee announced it would hold contempt proceedings on Monday, the Trump Administration issued a flurry of rejections for congressional requests, adding to an already deep pile. On Monday, Treasury Secretary Steve Mnuchin announced he would not turn over the President’s tax returns to the Ways and Means Committee; on Tuesday, the White House told former White House Counsel Don McGahn not to comply with a subpoena from the judiciary committee; and on Wednesday, after a day of futile negotiations between the committee and the Department of Justice, it invoked executive privilege over the redacted portions of the Mueller report.

Democrats unsurprisingly used the high-profile proceedings on contempt to highlight what Nadler is deeming a constitutional crisis. As the markup stretched into the afternoon, the sentiments became less about Barr’s actions and more about about preserving the powers of the legislative branch.

“This is unprecedented,” Judiciary Chairman Jerrold Nadler said in his opening statement after listing all the other ways the White House has stonewalled Congress. “If allowed to go unchecked, this obstruction means the end of congressional oversight. As a co-equal branch of government, we should not and cannot allow this to continue.”

Every member of the committee was allotted a brief time to speak, and the tenor reflected the partisan tensions. Democrats’ comments largely echoed Nadler’s about the state of U.S. democracy. Republicans, by comparison, defended Barr, arguing that Democrats were on a “witch hunt,” and wanted Barr to break the law by handing over the un-redacted report. Several also pointed out Democrats moved much more quickly to hold Barr in contempt than Republicans on the oversight committee did with his Democratic predecessor Eric Holder in 2012 when they were seeking documents in the Fast and Furious case.

“[Democrats] have moved from request to contempt vote in only 43 days, and yet the Justice Department is still at the negotiating table — waiting for Democrats to arrive in good faith,” said ranking member Doug Collins, adding that Democrats want to “sully Bill Barr’s good name and reputation.”

Department of Justice spokesperson Kerri Kupec released a statement after the vote, calling it “politically motivated,” and “unnecessary.” “It is deeply disappointing that elected representatives of the American people have chosen to engage in such inappropriate political theatrics,” she said.

There is undoubtedly some irony that Barr is the first administration official facing contempt proceedings when his department, unlike the White House counsel’s office, actually came to the table to negotiate. And it is also true that the vote to hold Holder in contempt was, like Barr, upheld along party lines. But veterans of Congressional oversight say that, more than anything, it is this partisanship that is the problem.

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Congress may hold AG Barr in contempt of congress

Congress indicated they could be forced to hold Attorney General William Barr in contempt of Congress if he did not cooperate with a subpoena for an unredacted copy of special counsel Robert Mueller’s report on the Trump campaign and Russian interference in the 2016 election, reported the USA Today. The Justice Department missed Wednesday's deadline to hand over the subpoenaed report, writing to Nadler that the committee had not "articulated any legislative purpose for its request."  congressional Democrats said they could be forced to hold Attorney General William Barr in contempt of Congress if he did not cooperate with a subpoena for an unredacted copy of special counsel Robert Mueller’s report on the Trump campaign and Russian interference in the 2016 election. The Justice Department missed Wednesday's deadline to hand over the subpoenaed report, writing to Nadler that the committee had not "articulated any legislative purpose for its request."

While Congress is given powers to investigate and subpoena individuals and entities, it typically does not just arrest people for not cooperating. 

Instead, Congress can hold a person in contempt if their actions are viewed as obstructing legislative business or a congressional investigation.

Lawmakers have three routes: 

• Inherent contempt: The Supreme Court has ruled that lawmakers have inherent contempt powers to have an individual held until the person "provides the testimony or documents sought, or until the end of the session," reads a 2017 report from the Congressional Research Service, Congress' policy research arm. Using this process is incredibly rare and hasn't been done in modern times, not since the 1930s.
• Criminal contempt: Congress also has the option to use its "criminal contempt" powers, a law that allows lawmakers to charge an individual with a crime. This is the process listed above with regard to Barr that's more common and would have to be passed through one of the chambers in Congress. 
• Civil judgment: The third option is going through a civil process in the courts. Lawmakers can seek a civil judgment, asking a judge to enforce a subpoena. 

The most common method used by Congress has been criminal contempt; a charge is a misdemeanor and punishable by jail time of between a month and a year and a fine.

But it's not as easy as simply charging someone. The measure doesn't have to pass in both the House and Senate and can start in committee, meaning in this case, Nadler could bring the issue before the House Judiciary Committee. 

After it passes with a simple majority, it would move to a full vote in the House.

Once approved, the House speaker or the Senate president pro tem then turns the matter over to the U.S. attorney for the District of Columbia, "whose duty it shall be to bring the matter before the grand jury for its action," according to the law. 

While Congress has broad investigative powers, there are limits. The Supreme Court has said that congressional inquiries should have a legitimate legislative purpose and should not be used for political purposes to embarrass, expose wrongdoing or target a particular person or group.  

And holding someone in contempt of Congress has caveats and drawbacks. Jailing someone until they testify or offer up documents might seem like an easy solution but the CRS notes that Congress is not allowed to hold someone past the "end of the current session of Congress." The process could also likely end up worsening tensions between each branch of government and give the public a front-row seat to the chaos. Plus some, like Barr, have armed security and it's unclear what would happen if Congress attempted to arrest him. 

And while a civil claim could be the path of least resistance, it could be time-consuming and delay an investigation. Even criminal contempt has a catch: It's up to the Justice Department to actually take up a criminal case against someone. In the past, the Justice Department has declined to prosecute criminal contempt-of-Congress cases.

There's also the question of executive privilege, which President Trump said was being considered to block his current and former aides from testifying before lawmakers. 

It isn't clear whether Congress' contempt powers could trump the president invoking executive privilege as neither the White House nor Congress has sought a resolution to the question from the Supreme Court, both sides fearing they might lose.  

Congress would have a harder time investigating presidents for decades to come if the high court ruled against it and if the White House lost, it would open the door for a multitude of congressional inquiries.

Congress rarely holds people in contempt. But it has done so in the past to force witnesses to appear or produce documents. 

The last time Congress used its inherent contempt powers was in 1934 when the Senate held William MacCracken, a former member of Herbert Hoover's administration, after he refused a subpoena. The Senate had nowhere to hold MacCracken so he was imprisoned at a hotel, according to the Washington Post. 

But Congress has voted on contempt charges more recently, even discussing using it against members of the Trump administration last year after former White House adviser Steve Bannon refused to answer questions. 

Other examples include in 2012 when the House voted to hold then-Attorney General Eric Holder in contempt for declining to provide documents and in 2014 after IRS official Lois Lerner invoked her Fifth Amendment right against self-incrimination during a congressional hearing. In both cases, the Justice Department declined to bring criminal cases. 

While a contempt charge normally moves through the criminal justice system and the courts, there's one final method that has gotten attention in recent days, given the president's reluctance to cooperate with congressional investigations. 

Lawmakers can elect to pursue a contempt-of-Congress charge in an impeachment proceeding, which is a political process to remove the president from office that moves through Congress instead of the courts. 

A contempt-of-Congress charge was one of the three articles of impeachment filed against President Richard Nixon in 1974 after he defied subpoenas for documents and information that Congress said it needed for an impeachment inquiry. 

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The Mueller Report's 'smoking gun' revealed

It is only two sentences in a report of some 448 pages. As yet unnoticed, these lines provide the strongest new evidence uncovered by Robert Mueller’s investigators that President Donald Trump may have indeed obstructed justice. Two people directly involved in the case told me that several of the special counsel’s prosecutors privately considered this information to be a “smoking gun” suggesting that the president acted criminally, according to Murray Wass in  the New York Review of Books. 

That section of the Mueller report—which also refers to former FBI Director James Comey, former National Security Adviser Michael Flynn, then White House Counsel Don McGahn II, and the former Russian ambassador to the United States, Sergey Kislyak—reads as follows:

By the time the President spoke to Comey about Flynn, DOJ officials had informed McGahn, who informed the President, that Flynn’s statements to senior White House officials about his contacts with Kislyak were not true and that Flynn had told the same version of events to the FBI. McGahn also informed the President that Flynn’s conduct could violate 18 USC §1001. [US Code Title 18 § 1001 is the federal statute that makes it a felony to lie to the FBI or other federal investigators, a crime that Flynn did indeed later plead guilty to.]

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Slate: DOJ 'an institution compromised by rank partisanship'

Peter M. Shane writes at Slate:

In no small part because of the performance of Attorney General William Barr, history will treat his Justice Department as it treats the Justice Department under Richard Nixon’s one-time attorney general, John Mitchell—an institution compromised by rank partisanship and more committed to ideology than the rule of law. Barr’s spin on special counsel Robert S. Mueller’s report all but ignored the report’s damning findings, misrepresented significant parts of Mueller’s reasoning, and described President Donald Trump’s motivations and supposed cooperation in terms straight out of White House talking points. Barr engaged in word-splitting pettifoggery that would make even Bill Clinton blush. Barr is clearly compromised by the partisan goals of this White House to the point where he cannot be trusted in the job. He should resign immediately.

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