1100 (and Counting) Former Federal Prosecutors Have a Few Thoughts on the Survival of the Republic

prosecutor

DOJ Alumni Statement on the Events Surrounding the Sentencing of Roger Stone

We, the undersigned, are alumni of the United States Department of Justice (DOJ) who have collectively served both Republican and Democratic administrations. Each of us strongly condemns President Trump’s and Attorney General Barr’s interference in the fair administration of justice.

As former DOJ officials, we each proudly took an oath to support and defend our Constitution and faithfully execute the duties of our offices. The very first of these duties is to apply the law equally to all Americans. This obligation flows directly from the Constitution, and it is embedded in countless rules and laws governing the conduct of DOJ lawyers. The Justice Manual — the DOJ’s rulebook for its lawyers — states that “the rule of law depends on the evenhanded administration of justice”; that the Department’s legal decisions “must be impartial and insulated from political influence”; and that the Department’s prosecutorial powers, in particular, must be “exercised free from partisan consideration.”

All DOJ lawyers are well-versed in these rules, regulations, and constitutional commands. They stand for the proposition that political interference in the conduct of a criminal prosecution is anathema to the Department’s core mission and to its sacred obligation to ensure equal justice under the law.

And yet, President Trump and Attorney General Barr have openly and repeatedly flouted this fundamental principle, most recently in connection with the sentencing of President Trump’s close associate, Roger Stone, who was convicted of serious crimes. The Department has a long-standing practice in which political appointees set broad policies that line prosecutors apply to individual cases. That practice exists to animate the constitutional principles regarding the even-handed application of the law. Although there are times when political leadership appropriately weighs in on individual prosecutions, it is unheard of for the Department’s top leaders to overrule line prosecutors, who are following established policies, in order to give preferential treatment to a close associate of the President, as Attorney General Barr did in the Stone case. It is even more outrageous for the Attorney General to intervene as he did here — after the President publicly condemned the sentencing recommendation that line prosecutors had already filed in court.

Such behavior is a grave threat to the fair administration of justice. In this nation, we are all equal before the law. A person should not be given special treatment in a criminal prosecution because they are a close political ally of the President. Governments that use the enormous power of law enforcement to punish their enemies and reward their allies are not constitutional republics; they are autocracies.

We welcome Attorney General Barr’s belated acknowledgment that the DOJ’s law enforcement decisions must be independent of politics; that it is wrong for the President to interfere in specific enforcement matters, either to punish his opponents or to help his friends; and that the President’s public comments on DOJ matters have gravely damaged the Department’s credibility. But Mr. Barr’s actions in doing the President’s personal bidding unfortunately speak louder than his words. Those actions, and the damage they have done to the Department of Justice’s reputation for integrity and the rule of law, require Mr. Barr to resign. But because we have little expectation he will do so, it falls to the Department’s career officials to take appropriate action to uphold their oaths of office and defend nonpartisan, apolitical justice.

For these reasons, we support and commend the four career prosecutors who upheld their oaths and stood up for the Department’s independence by withdrawing from the Stone case and/or resigning from the Department. Our simple message to them is that we — and millions of other Americans — stand with them. And we call on every DOJ employee to follow their heroic example and be prepared to report future abuses to the Inspector General, the Office of Professional Responsibility, and Congress; to refuse to carry out directives that are inconsistent with their oaths of office; to withdraw from cases that involve such directives or other misconduct; and, if necessary, to resign and report publicly — in a manner consistent with professional ethics — to the American people the reasons for their resignation. We likewise call on the other branches of government to protect from retaliation those employees who uphold their oaths in the face of unlawful directives. The rule of law and the survival of our Republic demand nothing less.

If you are a former DOJ employee and would like to add your name below, click hereProtect Democracy will update this list daily with new signatories.

Signatories have been vetted to the best of our ability.

Pollyanna Will Not Like this Story

glad game

Washington Post, Trump-Barr divide worsens as the president bucks a request to stop tweeting, and the Justice Dept. declines to charge ex-FBI official McCabe. Buried deep within the story, we read,

The public rebuke of the president by a sitting member of his Cabinet arose from a crisis of confidence at the Justice Department, which had been accused this week of buckling to an angry tweet the president issued after he learned of prosecutors’ initial prison recommendation for his longtime friend Roger Stone.

Jonathan Chait, Obama Auto Standards May Survive Because Trump Staff Can’t Do Math

The Tradeoff

Senior civil servants make a tradeoff. Pretty much invariably, they could make much more money outside the government. They stay inside in exchange for job security, responsibility, and the opportunity to do good.

Hanging by a Thread

At this point, it’s likely that many, many of our public servants are just hanging on until November of this year. (The New York Times story implies that a whole bunch of career lawyers are just before walking out the door, right here and now.)

If Trump is reelected, the civil servant tradeoff will change fundamentally. Job security, responsibility, and the opportunity to do good will be gone. The choice will be: take service as Trump’s lackey, or make a whole lot more money in a private professional job.

Which option will look more attractive—or the least unattractive?

What the hell do you think they are going to do?

A Hollowed Out Bureaucracy, Personnel by Incompetent, Otherwise Unemployable Lickspittles

The competent and the well-intentioned will leave in droves. There will be a move to install even more Trumpian lickspittles. But the government will be largely hollowed out. Its mechanisms will begin to grind to a halt.

Jonathan Chait gives us a foretaste—simultaneously playing the Glad Game along with Pollyanna:

One of the Obama administration’s most effective climate initiatives was tightened regulations of auto emissions, which will reduce carbon emissions by billions of tons. Trump, of course, is trying to roll it back. The good news is that he is almost certainly too incompetent to pull it off in his first term.

When regulatory agencies write new rules, they have to follow some fairly complicated legal procedures, which often have to hold up under judicial scrutiny. Historically, agencies win about 80 percent of the time against legal challenges. But Trump’s regulations lose about 90 percent of the time, because his administration is staffed with incompetent hacks.

The courts will soon be fighting over Trump’s plan to weaken auto-emission standards. Trump is highly likely to lose, because, as two new reports show, the incompetence of his regulators reached almost mind-boggling proportions.

The Atlantic’s Robinson Meyer has a deep dive into how Trump’s political appointees circumvented all the nonpolitical experts and tried to come up with cost-benefit studies justifying their decision. Meyer’s account of the bureaucratic car wreck should be read in whole, but here are a few highlights. They mixed up supply and demand, assuming higher prices would cause more cars to be driven …

Their own roster of economists dismissed their numbers …

They even failed arithmetic. (“At one point, the NHTSA team forgot to divide by four.”)

Lying Liar DOJ Head Firmly Places Blame on DOJ for Unfathomable, Incomprehensible Series of Mistakes Leading to Epstein’s Suicide

roadkill

DOJ DEMANDS FULL INVESTIGATION OF DOJ

Motive

To me, this is like one of those classic English murder mysteries, where 37 people have really good motives to want Victor Victim dead.

Generally, the first chapter or so points to a lot of good reasons why it was probably the butler.

You have to read all the way to the end.

It’s never the butler.

And Opportunity

The man was suicidal. If you wanted him dead, all you would have to do is pay off the folks at the prison to stand aside and let him kill himself.

Bonaparte’s Retreat

Trump retreats on adding citizenship question to 2020 Census

No, Attorney General Houdini couldn’t escape from his predicament.

We’ll hear more in coming days, but for now, I assume the attorneys in the Department of Justice just revolted, and refused to go forward with yet another pretextual reason to insert the citizenship question.

There were a few occasions during my career when I had to tell a client, “Sir (or madam, as the case might be), I am a competent lawyer. But, unfortunately, you, sir (or madam) do not need a good lawyer. What you need is Merlin the Fucking Magician.”

I assume Barr told Trump something along those lines today.

 

Multiple Felony Indictments, Part 2

I don’t know where all of this will lead—we are all on one hell of a rollercoaster ride—but my instinct tells me the former prosecutors signing the statement, now numbering more than 700, might be beginning to make a difference. I particularly appreciated the comments in the video from one of Kenneth Starr’s henchpersons.

Meanwhile, Dr. Aardvark and I dined at Happy Acres this evening with four of our progressive friends. (Crabmeat stuffed flounder. Very good.) Some of my friends took me to task for “continuing to defend Barr.” I deny that’s what I’m doing, but I adhere to the view that Barr’s performance is so bad that it isn’t a defense of Trump, it’s a parody of a defense of Trump. In short, on the available evidence, I believe Barr’s throwing the game. Certainly, he doesn’t seem to be trying very hard to fool anyone except Trump.

For a related perspective, see Barr has set himself up — and Trump — for embarrassment.

**

Today’s readers come from Canada, Germany, Pakistan, South Africa, the United States, and some unidentified location in the European Union. Greetings to all. Recent readers from Bosnia and Denmark appear to have had enough. I feel their pain.

The Devil’s Advocate

Trump in hell

Alexandra Petri writes,

… Barr then is in another hearing room. It is about the same as in Congress, only the light all feels artificial, as though it is deep underwater, seen through feet of smeared glass. Perhaps deeper than that. The walls of the room seem to heave and breathe and perspire.

Sen. Lindsey O. Graham (R-S.C.) is still running the hearing, but he looks a little more concerned, and hotter. Barr is in the midst of talking. There is a Bible in front of him, but for some reason he does not wish to touch it. …

“I have not read the full evidence,” Barr says, “but I am confident this so-called Good Book largely exonerates my client. The serpent did no wrong.” …

“There isn’t any law against offering people free apples. Though it could be argued that those apples were planted there by his opponent and, thus, any attempt to use them to indict him is fruit of a poisoned tree. In fact, the real question is why a nude woman was trying to take ownership of a garden. The real question is what she was trying to cover up afterward.”

“All these allegations that they saw him transform into a serpent are just mind-bendingly bizarre, and I don’t know why they were spying on him. He should be allowed to transform into a serpent in privacy, although, of course he did not. ‘Spying’ is not a pejorative term.” …

“Tormenting a righteous man and covering him with boils and demolishing his cattle — some would call that Job creation. That’s what I call it.”

A deep sulfurous rumble, almost like laughter, like the belch after you had eaten a soul that did not agree with you.

“The real question is why this framework for judgment and investigation was constructed in the first place. My client has a right to retaliate when he feels he is being treated unjustly. If anyone comes along and seeks to cast you out of a place, you are entitled to retaliate. You are where you are because you deserve to be there.” …

“Did he try to lead people into temptation? I am struggling with the word temptation. I will spend up to 40 days struggling with it. Tempt? Did he tempt people? I’m sorry, I do not know what the word means. I am confused. Did he suggest that people do bad things? What are words? What is bad? I am sorry, I have forgotten the meaning of all words. I have forgotten even myself. I am just a little baby who has gotten here for the first time today. No word carries any value or meaning. I say them and they flutter away and I forget them, like instructions from a president.” …

“Yes, I am familiar with the people who have called him directly and personally responsible for every bad thing that happens, and who have castigated me for my willingness to serve as his personal defender. But afterward, I called them on the phone and they said they did not mean it. They said really they were upset because of the way it was talked about. They regretted denouncing me. I wish that instead of the evidence of all the derogatory things they said publicly in writing, you had evidence of all the good things that they said afterward, definitely, in secret, where only I could hear them. And my client, who hears all things. No matter where we are.” The light is gone. His voice echoes. “Where are we?”

If this were a nightmare, the sound would wake him, but it has not awakened him yet. He meant well enough. He knows where he is.

Impeach Barr?

grab him

Rich Lowry lives in a rightwing house of mirrors, but he gets an anomaly that pretty much everyone else is overlooking: “Let’s be clear. If Barr wanted to cover for Trump, he could have crimped the Mueller probe, sat on the report, or redacted it into meaninglessness. He did none of the above.”

Having grasped the apparently large gap between what Barr says and what Barr does, Lowry leaps to the risible conclusion that only what he does is important; what he says makes no nevermind. (Or, at least I think that’s the burden of his essay; I couldn’t make myself read the whole thing.)

Today, there’s talk of beginning impeachment proceedings against Barr. My initial impression is that might not be the world’s worst idea. Not mainly because he richly merits removal from office—for lying to Congress, lying to the public, and holding heterodox and authoritarian legal opinions. No, in my view, the best reason to start the process would be establishing a stronger basis to watch him like a hawk, in respect of his supervision of ongoing investigations.

My hypothesis is that Barr is playing Trump for a sucker—a strategy that implies he has to play the rest of us like suckers for the next little while. As of now, I adhere to that hypothesis.

But I might be wrong. So, to ensure Barr’s good behavior, it might be well to begin the impeachment process> Let Nancy Pelosi grab him down where the hairs are short, get a good and steady grip, and give a strong squeeze as and when necessary.

Also, there is this. If my hypothesis happens to be right, Trump will wake up one day and realize what is happening. He will want to fire Barr. But if he fires Barr while Barr is under threat of impeachment, it will look weak. Paradoxically, then, beginning the process of impeachment might help ensure that Barr isn’t replaced by someone worse.

On Thursday, William Barr Needs to Wash His Hair, Get a Pedicure, and Pick Up Some Groceries

pedicure

So he will not be able to testify before the House Judiciary Committee.

Pundits continue to marvel that William Barr Didn’t Really Need This Job—and that in his testimony today he showed “casual contempt and disdain”for the proper role of the attorney general. He was just sort of phoning it in.

But the Trumpster, we are told, loved it. Ate it up with two spoons. Saw Barr’s testimony as a great victory for his team.

But don’t forget: what Barr redacted is important, but so is what he didn’t redact.

And what Barr says is important, but so is what he does.

Most importantly, will he obstruct the many ongoing investigations? (Dr. Aardvark asked, “How will we know?” Good question. The answer is that, if he obstructs, there will be leaks. Man o man, will there be leaks.)

A performance so wretched as materially to diminish his, and Trump’s, already diminished reputations. Imbecilic exclamations of delight from Trump—elicited by a man who “really didn’t need this job.”

I become increasingly persuaded that Barr has decided that if he is going to live in Looneytown, then the only way he will be effective is to act the part of the looniest loon around.

That’s what Looneytown’s mayor wants. That’s what Barr is giving him.

Meanwhile, overacting so badly that sometime soon the only one who will not get the joke is the mayor.

Looneytown

Just Bonkers

crazy like a fox

Jennifer Rubin, William Barr and his horrible hearing:

So far, Attorney General William P. Barr’s testimony before the Senate Judiciary Committee has done himself and the administration no favors. To the contrary, former acting solicitor general Neal Katyal observes, “Barr has been evasive and misleading from the first paragraph. It’s conduct totally unbecoming of an attorney general. He’s not even very good at misleading.”

Fordham law professor Jed Shugerman were more blunt. “This is nuts . . . just bonkers, ” he told me mid-morning. …

The attorney general seems determined to incinerate his professional reputation. Former federal prosecutor Renato Mariotti says, “Barr is deliberately misleading the U.S. Senate by making statements that are highly deceptive but technically accurate.

Putting Barr’s Testimony in Context

As Freud may or may not have said, sometimes a pencil is just a pencil. Sometimes bonkers behavior is just bonkers behavior.

But Barr comes out of a “BigLaw” and big business environment where people often deceive others about their true motivations. A fair share are crazy—or become crazy with time. Some are crazy like a fox. Some THINK they can act crazy like a fox, and achieve some hidden objective.

So, I’m tellin’ you, whether you believe me or not, something other than simple bonkers behavior is going on here. If Barr “seems determined to incinerate his professional reputation”—and that’s a very fair summary of the situation—then it’s a conscious decision, and there’s a reason behind it. Maybe not a good reason. Maybe not a reason that you or I would approve. But there is a reason.

Tonight’s News

meat puppet

Washington Post, Mueller complained that Barr’s letter did not capture ‘context’ of Trump probe

One of many valid ways of looking at this evening’s developments is see the opportunity for a fun parlor game: trying to figure out what in the world Bill Barr is doing.

Barr has been acting as Trump’s meat puppet. He has repeatedly lied his ass off in public. And he has either lied under oath to Congress, or gone within about one millimeter of committing perjury in his congressional testimony. What he may have done in private, we don’t know at this point.

One theoretical explanation is that Barr does not know what he is doing and does not grasp the consequences of what he is doing. Despite the news tonight, I believe that explanation is highly implausible. It might apply to fifth-raters like Sarah Sanders or Kellyanne Conway. But Barr’s experience and accomplishments prove he knows how to think ahead three steps in the chess game. Hell, he can probably think ahead twenty-four steps in the chess game.

A second theoretical explanation is that, blinded by the glory of a second gig as Attorney General of the United States, and covetous of the money and career advancement that might come from high government service, Barr has simply sold out. This is unpersuasive. Barr has all the money he will ever need, his resume needs no burnishing, and he risks going down in the history books with the likes of Aaron Burr and John Mitchell. Seeking money and prestige as an explanation for Barr’s bizarre conduct just does not cut the mustard.

A third theoretical explanation is that he has just swallowed the Kook-Aid and joined the Cult of Trump. I regard this as slightly less unlikely than the first or second explanations, but it’s certainly not consistent with his background and associations.

The fourth possibility is that he sought the post of Attorney General so that he could achieve some as-yet-publicly-unidentified goal. That, to keep his position as Attorney General, he has to appear to the world, and appear to Donald Trump, to be Trump’s shameless meat puppet. And that that is exactly the role he is playing—pretty much to the point of parody—in order to keep his job and thus to have some chance to achieve whatever it is he returned to Washington to achieve.

Barr is not stupid. He understands that, to keep your job under Trump, you have to kiss Trump’s ass effusively and you have to kiss your own reputation goodbye. And he has made a clear choice to do just that.

He does not grit his teeth and kiss the ring, like General Mattis and others. Oh, no. He goes into full-throated prevarication and shameless neglect of duties.

I’ll go even a little further. Barr’s act is so comically bad at actually doing anything to protect Trump that it may go beyond parody. It may approach sabotage.

Is He an Actual Toady, or Does He Just Play One on TV?

Generally, it’s a sign of insanity when you see a pattern that has eluded every smart person in the world but yourself. So if you detect a sign of insanity in me, that’s fine. But I still see what I see.

Among the commentariat, the consternation and puzzlement over Barr’s toadying behavior grows from day to day. See supra.

Right now, folks are perseverating, bigly, on how much Barr is going to redact from the Mueller report. The question is important, and the perseveration is understandable.

But as important as the coming redactions may be, of equally great importance is what part of the Mueller report will NOT be redacted. What will we see? And how bad will it be for Trump?

So, here is what I think may have happened. I think Trump got wind of what the redacted Mueller report will look like. I think he threatened to fire Barr’s sorry ass on twitter, and that right speedily, unless Barr would gin up some headlines about the purportedly rotten oranges of the Mueller report. Thus, when the redacted but still bad report comes out, Trump and his minions will be able to jump up and down with distracting claims about rotten oranges.

And I think Barr did what he had to do.

As you know, I also think Barr came back to Washington to do an as yet unidentified Task X. Barr would have known that he had no hope in hell of accomplishing Task X without sticking around for some months. And you cannot stick around Trump for some months without your reputation going to hell.

Sometimes, to get the job done, a good lawyer has to take a bullet.

Strategery

strategery

Incapable of Strategic Thinking

This morning, two Politico writers serve up a lengthy thumb-sucker titled How Trump Conspired with the Freedom Caucus to Shut Down the Government.

If you read it, you will learn nothing that will surprise or shock you. Nevertheless, IMHO, it’s worth a read, just to wallow in the details.

The takeaway is that the President of the United States entirely lacks the mental capacity to engage in strategic thinking.

Think about that.

Think about it really hard.

Can Think Strategically

Also recommended this morning: Sean Wilentz, writing in the The New Yorker, The “Reputational Interests” of William Barr.

Unlike our president, William Barr can, beyond peradventure of doubt, think strategically. In fact, he is probably as incapable of thinking unstrategically as The Donald is lacking in the capacity for strategic thinking.

Please read the Wilentz piece; there’s a lot there, and I won’t try to cherry pick it.

But my takeaway is that Barr is either acting as a shill for The Donald—and an awkward and ineffective shill at that—or he is doing a good job pretending to do so.

As a reality-based thinker, I do my best to follow where the evidence leads me. And I will cheerfully, and without mental reservation, concede that evidence is mounting that Barr is fully on board the Trump train.

Nevertheless, in my view, the evidence at this point is far from conclusive that William Barr—who has spent his career as well-compensated chief towel boy in the plutocratic brothel—is acting straightforwardly and in good faith toward The Donald. Because lots of the plutocrats running the brothel have figured out that The Donald lacks the capacity for strategic thinking—see first recommended article, supra—and is, in consequence, headed straight down the crapper in 2020. I remain of the view that Barr is playing a double game: acting in ways that will simultaneously please The Donald and induce The Donald to act self-destructively, so that he can be replaced with a more malleable useful idiot.

Attorney General Weasel Word

14536155 - long tailed weasel performing a flexible stretch to look behind

William Saletan looks at the Barr letter and calls out ten weasily phrases.

Some of you may think that partisan commentators are just looking for stuff that isn’t really there.

No, ladies and germs, clever, weasily language is what lawyers employ to defend guilty clients.

I know. Been there. Done that.

Let me call your attention in particular to this paragraph from the Saletan post, which addresses much the same issue I wrote about previously:

“Absence of such evidence.” One reason to be suspicious of Barr’s conclusions is that in the course of the letter, he tweaks Mueller’s opinion to look more like his own. Mueller’s report, as excerpted by Barr, says “the evidence does not establish that the President was involved in an underlying crime related to Russian election interference.” Barr quotes that line and then, in the same sentence, concludes that “the absence of such evidence bears upon the President’s intent with respect to obstruction.” But the excerpt from Mueller’s report doesn’t refer to an absence of evidence. It refers to a presence of evidence, and it says this evidence isn’t enough to prove a crime. Throughout the investigation, this has been a standard Republican maneuver: misrepresenting an absence of proof as an absence of evidence. Barr’s use of this maneuver in his letter is a red flag that he’s writing partisan spin.

“Good Morning Mr. President”: A Hypothetical Conversation between Attorney General Barr and The Donald

Barr Adjusts Glaases

This hypothetical presentation is based on the thoughts laid out in the immediately preceding post.

Good morning, Mr. President. I am here to brief you on the Mueller Report and how I intend to handle it.

Before going any further, I want to remind you that you are not my client. My client is the United States of America. But what I have to tell you has grave implications for your own personal interests. Therefore, I urge you to engage qualified personal counsel to advise you on these matters. I will be happy to have a full and candid discussion with your lawyer. I believe that, when all is said and done, your personal lawyer will see your own self-interest the way I see your self-interest. But that is a matter for discussion with him or her.

With that out of the way, Mr. President, I regret to inform you that Mr. Mueller has concluded—and I agree with his conclusions, based on the evidence he has cited—that you have violated the following provisions of the United States Criminal Code. [To be elaborated, though briefly, so that he might possibly understand the presentation.]

Secondly, Mr. President, as you know, it is the policy of the Department of Justice that a sitting president may not be indicted. And it is the policy of the Department of Justice that, where no indictment is brought, prosecutors do not disclose derogatory information about the target of an investigation.

You should know that, as the Attorney General and head of the Justice Department, I have the right to modify those policies, or to authorize an exception to them.

As of this point, it is, however, my intention to adhere to those policies and thus not to disclose to Congress the vast body of evidence pointing toward your commission of a variety of criminal offenses.

But, most importantly, you need to understand—you need to fully grasp—that continued adherence to those policies is not politically or legally sustainable over time. In other words, I can fight a temporary, rearguard action. But in the end, it is overwhelmingly likely that most or all of the evidence cited by Mueller will be made public, one way or another. [Explain as necessary.]

And there is something else of vital importance to your own interests: after you leave office—and however you leave office—you can be prosecuted for committing federal crimes, and you surely will be prosecuted. And, even while you are still president, other jurisdictions, such as New York state, are highly likely to prosecute you for crimes within their jurisdiction.

But the good news, Mr. President, is that right now you have significant leverage that I believe you can successfully use to achieve immunity from any and all criminal prosecution, both for you and your immediate family. That political leverage arises out of the fact that vast numbers of politically influential people—Republican as well as Democrat—would like you to leave office, and to leave office expeditiously.

You have the power to give them what they want in exchange for what you and your family urgently need: immunity from prosecution

If you will agree to negotiate toward that end, then, Mr. President I believe I can work out a deal with all relevant parties that will fully protect you and your family from prosecution for any alleged state or federal crimes that have occurred to date.

Mr. President, you may believe that you can avoid impeachment and achieve reelection, and that by 2025, when you leave office, any criminal exposure will have somehow disappeared. Or you may believe that you can pardon yourself or your family out of this situation.

If such is your belief, and if you plan your affairs based on that belief, then, I am sorry to say, Mr. President, that I will need to seriously consider whether to make an exception to current departmental policy, and to publicly disclose all of the evidence Mueller has found.

But if you work with me toward an immunity agreement, then you and your family can keep your freedom. And you can keep your wealth. And you can very likely keep much of your following—and leverage their trust in you for your future economic gain, throughout the remaining years of your life.

It’s your choice, Mr. President.

Have a nice day. 

No Sport for Dullards

dullard_

Jacqueline Alemany, Power Up: ‘By the Book Bob:’ Prosecutors say Mueller will tightly hug Justice guidelines in report

Ms. Alemany, whoever she may be, gives us what purports to be—and very probably is—a granular look at the problematic procedural issues surrounding the forthcoming Mueller reports. I won’t summarize; if the topic interests you, best read it for yourself. Then, if you are still interested, you may wish to note the following Aardvark observations.

“No Sport for Dullards”

That’s how a law professor of mine described an especially challenging course. And that’s the situation Barr finds himself in, as the new attorney general. Ms. Alemany spells out the balancing judgments Barr will have to make, and the issues he will need to finesse. This is a job for a senior, high powered lawyer. Barr is a senior, high powered lawyer.

Will he do his job in a responsible way? As to all the judgment calls he will need to make, will he in fact exercise good judgment?

Time will tell.

And maybe he will surprise us, by doing the right thing.

It would certainly make a change.

The Presidential Immunity Catch-22

Leakers are leaking that Mueller will abide by Justice Department policy that no matter how many crimes a president may have committed, you can’t prosecute him—at least while he’s still president.*

Meanwhile, there is also a departmental policy—famously violated by Jim Comey in respect of the Clinton email investigation—that if you aren’t going to prosecute, then you don’t publicly disclose derogatory information about the target of your investigation.

And one more thing: it’s pretty much universally understood that, for purposes of impeachment, “high crimes and misdemeanors” in the Constitution calls for a political and moral judgment, not just a narrow criminal law judgment.

Can you hold those three thoughts in your head at the same time?

Good for you.

What conclusions do you draw?

For example, it may occur to you that it’s one thing to say that if a prosecutor investigates and concludes that the target of the investigation did some bad things, but those bad things weren’t actually crimes, then the prosecutor is supposed to just keep his trap shut. But maybe it’s another thing if the investigation shows that the target violated large swaths of the criminal code, but he or she can’t be prosecuted for an arbitrary reason, such as the fact that he or she is the sitting president. Maybe the latter situation calls for an exception, so that the public can learn about all the crimes the sitting president appears to have committed.

And it may occur to you that it’s ironic that an investigation widely understood as examining whether the president is qualified for office based on moral and national security concerns might wind up concealing information of vital relevance to those moral and national security concerns.

Attorney General Barr Addresses President Trump

See my next post for a hypothetical conversation between Barr and Trump. It’s a thought experiment based on the considerations outlined above.

*Let the record reflect my view that this Justice Department “policy” is unwise and legally unfounded. But debating that question is not the point of this post.

Does Anyone Else Think This Might not be a Good Idea?

aliens

Astronomers are asking kids to help them contact aliens

Meanwhile, quells surprise, back on planet earth, just as William Barr assumes office,

Justice Department officials are preparing for the end of special counsel Robert S. Mueller III’s nearly two-year investigation into Russian interference in the 2016 election and believe a confidential report could be issued in coming days, according to people familiar with the discussions. …

Regulations call for Mueller to submit to the attorney general a confidential explanation as to why he decided to charge certain individuals, as well as who else he investigated and why he decided not to charge those people. The regulations then call for the attorney general to report to Congress about the investigation.

An adviser to President Trump said there is palpable concern among the president’s inner circle that the report might contain information about Trump and his team that is politically damaging, but not criminal conduct.

Even before he was confirmed by the Senate, Barr had preliminary discussions about the logistics surrounding the conclusion of Mueller’s inquiry, a second person said. At that time, though, Barr had not been briefed on the substance of Mueller’s investigation, so the conversations were limited. …

How detailed either Mueller’s report and the attorney general’s summary of the findings will be is unclear. Lawmakers have demanded that Mueller’s report be made public, but Barr has been noncommittal on that point, saying that he intends to be as forthcoming as the regulations and department practice allow. He has pointed, however, to Justice Department practices that insist on saying little or nothing about conduct that does not lead to criminal charges.

When You’re Smiling, the Whole World Smiles with You

William Barr

We have it on good authority that Mick Mulvaney—the person who would have sacrificed a valuable appendage to be Trump’s chief of staff—has vowed to be the kind of Trump servant who will just let Trump be Trump.

Meanwhile, a usually reliable pundit says, Now We Know Trump Picked William Barr to Shut Down Mueller’s Investigation. Well, in all probability, that was exactly Trump’s thinking. Barr’s gratuitous June, 2018, legal memorandum endorsing presidential obstruction of justice was surely music to the Trumpster’s ears.

And, at a very high level of confidence, I think we may infer that Barr wrote the memo for the precise purpose of pleasing Trump and laying the groundwork for his own nomination to be Attorney General.

But does the memo actually reflect Barr’s opinion? Well, maybe it does. Or maybe it doesn’t. Folks like William Barr seldom write legal memoranda out of a disinterested and generous desire just to share their wisdom with the world. They write legal memoranda to achieve a purpose.

Feel free to call me a conspiratologist, but I still think Barr, backed up by his hubristic buddies at Kirkland & Ellis, and operating in collusion with one or more Republican corporate and financial donors, is coming to Washington to get Trump out of the way. Most probably by organizing a Spiro Agnew-type deal where he resigns in exchange for a binding promise not to prosecute.

Such a denouement will be very difficult to achieve. But a great many of the deals on which K & E works present great challenges. That is why they make buckets of money.

And here, ladies and gentlemen, I detect the fine Italian hand of Kirkland & Ellis.

And, by the way, Mick Mulvaney is coming to the White House to be the Trump Whisperer—and to whisper him into taking the deal Barr will propose.

As I said, call me a conspiratologist. But remember, you heard it here first. And that he who laughs last, laughs best.