William Barr's Department of Justice Is a Rogue Agency

By Charles Pierce, Esquire

24 September 20

This is completely, howl-at-the-moon, barking nuts.

he Judiciary Committee of the House of Representatives would like to speak to an assistant attorney general named Eric Driesband, as well as one Michael Carvajal, the director of the federal Bureau of Prisons, and one Donald Washington, the director of the U.S. Marshals Service. The committee has some questions covering a broad range of topics related to the civil rights division of the Department of Justice. The DOJ responded with a letter from Stephen F. Boyd, yet another assistant attorney general, in which it was explained that the three administration* officials would not be coming before the committee. It is an altogether remarkable letter and yet completely typical of this administration.

Unfortunately, when given the opportunity to obtain information from the head of the Department of Justice about precisely these matters, many Committee Members chose instead to use their allotted time to air grievances. Rather than attempt to obtain information from the Department that would assist the Committee in recommending legislation to the House, many Members of the majority devoted their time entirely towards scolding and insulting the Attorney General. These Members refused to allow the Attorney General to respond to their accusations or to answer questions asked for rhetorical effect.

As the New York Times reported, “Democrat after Democrat posed questions to Mr. Barr only to cut him off when he tried to reply, substituting their own replies for his.” See Barr Testimony: Highlights of Combative Hearings on Protests, Stone Case and More, N.Y. Times (July 28, 2020). In what can only be viewed as a coordinated effort to muzzle the Attorney General, the Members repeatedly invoked the phrase, “reclaiming my time,” which they employed more than 30 times when the Attorney General tried to respond.

All told, when the Attorney General tried to address the Committee’s questions, he was interrupted and silenced in excess of 70 times. Some Members were quite candid that they had no interest in actually hearing from the Attorney General. One Member interrupted him and admitted, “Well I don’t want you to tell your story.” Oversight of the Department of Justice, Hearing Before the H. Comm. on the Judiciary, 116th Cong. (July 28, 2020). Another advised, “You will have a chance to comment after your testimony is done here today.” Despite the Attorney General appearing in person and taking questions from all Members who were present, he was denied the most basic opportunities to respond.

In short, the reply from the Executive to a perfectly legitimate request from the Legislature, a co-equal branch of government, can be summed up as:

a) Pound sand, and

b) It should pound sand because it had the audacity to pay insufficient respect to William Barr, the White House manure spreader.

This is pure, raw balls. Barr tried to filibuster his way through every answer and the Democrats on the committee refused to let him do that, and now the DOJ claims the right to deny Congress its legitimate oversight power because members of Congress tried to do what they're supposed to do. Worse, through a tortured misreading of a Supreme Court decision, the administration* is claiming the de facto right to determine what is or is not a "legitimate legislative purpose."

Yet the House’s so-called oversight “hearing” of the Attorney General did preciously little to advance any legitimate interest since the Attorney General was repeatedly denied the opportunity to provide information to the Committee. We very much regret that the Committee did not elect to engage in a meaningful, good-faith effort to obtain information and views from the Attorney General while he was present and prepared to testify. Having squandered its opportunity to conduct a meaningful oversight hearing with the Attorney General, it remains unclear how further public spectacles with other Department officials would now—a mere 14 legislative days since the Attorney General’s hearing—advance the Committee’s legitimate oversight efforts.

That's not your decision to make, Bunky. I don't care if the committee members squirted Barr with seltzer bottles the last time he appeared, you don't get to tell a congressional committee what it can and cannot question a government official about, and you don't get to blow off the committee's request for testimony from witnesses because you didn't like the decorum that prevailed when somebody else was testifying earlier.

(Here, for example, is Rep. Lucy McBath of Georgia being so dreadfully rude to poor Bill Barr, who was just trying to duck the questions like any veteran government white dude would.)

Under Barr, the Department of Justice has become a rogue agency at the beck and call of the White House. This is further illustrated by the weird-but-nonetheless-scary declaration that New York City, Portland, and Seattle should be recognized as "anarchist jurisdictions" and, as such, denied aid from the federal government. From CNN:

"When state and local leaders impede their own law enforcement officers and agencies from doing their jobs, it endangers innocent citizens who deserve to be protected, including those who are trying to peacefully assemble and protest," Attorney General William Barr said in a statement on Monday. "We cannot allow federal tax dollars to be wasted when the safety of the citizenry hangs in the balance. It is my hope that the cities identified by the Department of Justice today will reverse course and become serious about performing the basic function of government and start protecting their own citizens."

This is, not to put a finer point on it, completely, howl-at-the-moon, barking nuts—far more literally anarchic than anything done by a kid in the streets of Seattle. The Executive cannot unilaterally repurpose money already appropriated, no matter what magic incantation Barr comes up with out of his Conservative Book of Spells.

Moreover, there's more than a little evidence that these three cities were chosen because a) the president* has no chance of winning the states in which they're located, and b) because the local officials spurned the president's offer of shock troops. You will note that neither Kenosha nor Minneapolis are on the list, probably because the president*'s campaign thinks Wisconsin and Minnesota are still up for grabs. And, as for the second reason, it is becoming plain that the worst thing you can do to Bill Barr is laugh at his mighty sword. Why do they laugh at his mighty sword?

Andrew Weissmann's Inside Story of the Mueller Probe's Mistakes

By George Packer, The Atlantic

24 September 20

In a new book, Andrew Weissmann, one of Special Counsel Robert Mueller’s top deputies, lays out the limits and letdowns of the years-long Russia investigation.

ndrew Weissmann was one of Robert Mueller’s top deputies in the special counsel’s investigation of the 2016 election, and he’s about to publish the first insider account, called Where Law Ends: Inside the Mueller Investigation. The title comes from an adapted quote by the philosopher John Locke that’s inscribed on the façade of the Justice Department building in Washington, D.C.: “Wherever law ends, tyranny begins.”

Weissmann offers a damning indictment of a “lawless” president and his knowing accomplices—Attorney General William Barr (portrayed as a cynical liar), congressional Republicans, criminal flunkies, Fox News. Donald Trump, he writes, is “like an animal, clawing at the world with no concept of right and wrong.” But in telling the story of the investigation and its fallout, Weissmann reserves his most painful words for the Special Counsel’s Office itself. Where Law Ends portrays a group of talented, dedicated professionals beset with internal divisions and led by a man whose code of integrity allowed their target to defy them and escape accountability.

“There’s no question I was frustrated at the time,” Weissmann told me in a recent interview. “There was more that could be done that we didn’t do.” He pointed out that the special counsel’s report never arrived at the clear legal conclusions expected from an internal Justice Department document. At the same time, it lacked the explanatory power of last month’s bipartisan Senate Intelligence Committee report on the 2016 election. “Even with 1,000 pages, it was better,” Weissmann said of the Senate report. “It made judgments and calls, instead of saying, ‘You could say this and you could say that.’”

The Mueller inquiry was the greatest potential check on Trump’s abuse of power. The press gives the president fits, but almost half the country chooses not to believe the news. Congress will protect Trump as long as his party controls at least one chamber. Local prosecutors and civil plaintiffs are severely limited in pursuing justice against a sitting president. Public opinion is immovably split and powerless until the next election. Only the Special Counsel’s Office—burrowing into the criminal matter of Russian interference in the 2016 election, a possible conspiracy with the Trump campaign, and the president’s subsequent attempts to block an investigation—offered the prospect of accountability for Trump. Mueller couldn’t try the president in court, let alone send him to prison, but he could fully expose Trump’s wrongdoing for a future prosecutor, using the enforceable power of a grand jury subpoena. The whole constitutional superstructure of checks and balances rested on Mueller and his team. As their work dragged on through 2017 and 2018, with flurries of indictments and plea deals but otherwise in utter silence, many Americans invested the inquiry with the outsized expectation that it would somehow bring Trump down.

Suddenly, in March 2019, the Special Counsel’s Office completed its work. A report, hundreds of pages long, with many lines blacked out, was delivered to the attorney general. Before releasing it to the public, Barr pronounced the president innocent, in a brazen mix of elisions, distortions, and outright lies—for the report presented extensive evidence of cooperation between the Trump campaign and Russian assets, and of the president’s efforts to obstruct justice. The lesson Trump took from the Mueller investigation was that he could do anything he wanted. He declared himself vindicated, vowed to pursue the pursuers, and immediately turned to extorting favors for another election from another foreign country. Uproar over “Russiagate” gave way to uproar over “Ukrainegate.” The Mueller report faded away, as if it had all been for nothing.

“Had we given it our all—had we used all available tools to uncover the truth, undeterred by the onslaught of the president’s unique powers to undermine our efforts?” Weissmann writes in the introduction. “I know the hard answer to that simple question: We could have done more.” Elsewhere, he admits that, “like Congress, we were guilty of not pressing as hard as we could” for evidence. He calls a crucial passage of the Mueller report “mealymouthed”—an easy mark for Barr’s treachery. “Part of the reason the president and his enablers were able to spin the report was that we had left the playing field open for them to do so.”

Weissmann, who now teaches at NYU, is a former federal prosecutor from New York, with an aggressive reputation and a precise manner. He won cases against Mafia bosses and Enron executives, served as Mueller’s general counsel at the FBI, and became the head of the Justice Department’s criminal-fraud section under President Obama. When Mueller was appointed special counsel in May 2017, he chose Weissmann to lead “Team M”—the group responsible for the case against Paul Manafort, Trump’s corrupt former campaign chairman. Theirs was the most straightforward part of the investigation; they produced an early indictment and, ultimately, a conviction of Manafort on tax fraud and other charges.

Team M also came close to establishing a conspiracy between the Trump campaign and the Russian government. On August 2, 2016, Manafort dined in New York City with Konstantin Kilimnik, a Ukrainian-born business associate with ties to Russian intelligence and oligarchs. Manafort, a lavishly compensated hired gun for some of the oligarchs, had been sharing campaign strategy with Kilimnik, including sensitive polling data. Over dinner, Manafort described Trump’s strategy in four battleground states; Kilimnik in turn presented for Trump’s approval a Russian “peace plan” that would amount to the annexation of eastern Ukraine. Last month’s Senate report, going further than Team M, named Kilimnik as an actual Russian intelligence officer and revealed his likely connection to the 2016 election-interference operations. “This is what collusion looks like,” the committee’s Democratic members wrote in an appendix.

In the absence of a discoverable deal between the Trump campaign and Russian assets, the number and flagrancy of contacts and the readiness of Trump and his advisers to lie about them have been too easily minimized. As Weissmann observes in Where Law Ends: “The hope of uncovering something even greater distorted the perception of what was actually brought to light.” Weissmann and his colleagues were thwarted by chance—Manafort’s No. 2, Rick Gates, arrived late for the dinner with Kilimnik and was subsequently unable to tell investigators all that was discussed. They were hamstrung by Mueller’s decision not to look into Trump’s financial dealings with Russia, which might have established a source of Russian leverage over Trump, but which the president had declared a red line not to be crossed. And they were frustrated by perjury—for Manafort never stopped lying to Team M. His lies were encouraged by the president, who made sympathetic noises about Manafort with the suggestion that stonewalling might earn him a pardon. Trump’s pardon power was an obstacle that the prosecutors didn’t anticipate and could never overcome. It kept them from being able to push uncooperative targets as hard as in an ordinary criminal case.

The Special Counsel’s Office also worked under the constant threat that Trump would fire Mueller, as Richard Nixon had fired Archibald Cox, the first Watergate special prosecutor, in the Saturday Night Massacre. Trump tried several times to get rid of Mueller, but he was stopped by his underlings, who knew that it would lead to legal and political disaster. Still, the threat never went away, and in the end, it served the president’s interests well: “The specter of our being shut down exerted a kind of destabilizing pull on our decision-making process.” Where Law Ends describes numerous instances, large and small, when Mueller declined to pursue an aggressive course for fear of the reaction at the White House. For example, the special counsel shied away from subpoenaing Don Trump Jr. to testify about his notorious June 2016 meeting in Trump Tower with a Russian lawyer offering dirt on Hillary Clinton. Ivanka Trump, who didn’t attend the meeting but talked with participants afterward in the lobby, and later discussed with her father how to conceal details from the press, was never even asked to speak with Mueller’s investigators: They “feared that hauling her in for an interview would play badly to the already antagonistic right-wing press—Look how they’re roughing up the president’s daughter—and risk enraging Trump, provoking him to shut down the Special Counsel’s Office once and for all.”

Weissmann blames this persistent timidity on one of Mueller’s other top deputies, a lawyer named Aaron Zebley, comparing Zebley to George B. McClellan (and more zealous team members, including himself, to Ulysses S. Grant). “Repeatedly during our twenty-two months in operation,” Weissmann writes, “we would reach some critical juncture in our investigation only to have Aaron say that we could not take a particular action because it risked aggravating the president beyond some undefined breaking point.”

Weissmann described to me this failure of nerve on Zebley’s part, an aversion to confronting the ugliness coming from Trump. I pointed out that all of these were ultimately Mueller’s decisions. Weissmann agreed.

His portrait of Mueller is admiring and affectionate. The former FBI director is laconic, loyal, demanding, and, very occasionally, drily charming. Weissmann goes to great lengths to understand Mueller’s thinking on two of his central decisions: not to subpoena Trump, and not to state plainly in the report what the evidence of volume two makes clear—that Trump obstructed justice. Neither decision holds up to Weissmann’s scrutiny.

On the subpoena, Weissmann told me that the reason given in the report—that the legal battle would have unduly delayed the inquiry—was less than candid, since a subpoena issued at the start of the investigation could have been resolved by the Supreme Court months before the date of the report’s completion. In Where Law Ends, Weissmann reveals that the real reason for not compelling the president to be interviewed was Mueller’s aversion to having an explosive confrontation with the White House. On the obstruction of justice, Mueller declined to make a determination because of a long-standing Justice Department policy that a sitting president cannot be indicted. Mueller, judging that Trump wouldn’t have his day in court until he became a private citizen again, refrained from stating that Trump had broken the law (even though volume one of the report explicitly cleared the president of the conspiracy charge).

Weissmann politely demolishes this effort at extreme fairness. “I was flummoxed by Mueller’s thinking,” he admits. The special counsel was required to make a legal recommendation on the facts and present it in an internal department document to the attorney general. Barr could decide to keep the report private. Or, if it became public, Trump could use his unparalleled platform to defend himself to the country. Or he could choose to be charged and tried in order to clear his name. Mueller, completely out of character, was “making his own, freelance judgments about what was appropriate and not delivering on what he was tasked with doing.”

Weissmann made these arguments to the lawyer whom Mueller had assigned to draft this tricky passage of the report. “I also think it seems like a transparent shell game,” Weissmann told his colleague. “When there is insufficient proof of a crime, in volume one, we say it. But when there is sufficient proof, with obstruction, we don’t say it. Who is going to be fooled by that? It’s so obvious.”

By abdicating the role of prosecutor, Mueller cleared the way for Barr to take it on himself. Mueller and Barr were old friends. Several weeks before submitting the report, Weissmann writes, Mueller informed Barr of his intent to omit any legal recommendation. Barr didn’t object. Without telling Mueller, he saw a chance to disfigure the report into an exoneration of the president and thereby make its damning truths disappear. “Barr,” Weissmann writes, “had betrayed both friend and country.”

And Mueller? He was incapable of navigating the world remade by Trump. He conducted himself with scrupulous integrity and allowed his team to be intimidated by people who had no scruples at all. His deep aversion to publicity silenced him when the public badly needed clarity about the special counsel’s dense, ambiguous, at times unreadable report. His sense of fairness surrendered the facts of presidential criminality to an administration that was at war with facts. He trusted his friend Barr to play it straight, not realizing that Barr had gone crooked. He left the job of holding the president accountable to a Congress that had shown itself to be Trump’s willing accomplice. He wanted, above all, to warn the American people about foreign subversion of our democracy, while the greater subversion gathered force here at home.

In our interview, I asked Weissmann if Mueller had let the American people down. “Absolutely, yep,” Weissmann said, before quickly adding: “I wouldn’t phrase it as just Mueller. I would say ‘the office.’ There are a lot of things we did well, and a lot of things we could have done better, to be diplomatic about it.”

And the investigation—was it a historic missed opportunity?

Weissmann’s reply was terse. “That’s fair.”

With the end of the Special Counsel’s Office, the one real check on Trump’s unfettered power was gone, until the next election. Now it’s upon us, and the president remains free to repeat what worked for him in the last one.