Another Day in Trumpyville
United States v. William P. Barr
William Barr may face exactly the criminal obstruction investigation he recently tried to abort on behalf of former President Donald Trump. This would be a first for a former AG and signal the depths a Trump ally will go to protect his client’s illegality.
Michael Cohen, move over.
On Sept. 6 former AG William Barr was asked on Fox News if Trump’s removing classified documents from the White House, was a crime. Barr’s reply was a classic example of obfuscation. ‘Though it would appear that classified documents were removed and that a crime might have occurred,’ Barr added, it would seem that the DOJ should appeal Judge Cannon’s decision to appoint a Special Master. It won’t work… “It’s a bad decision.”
This on Fox News. The commentators wagged their heads in affirmation.
Really? That’s it?
Now one can appeal a Judge’s flawed decision masking political intent to a higher court?
Barr, as America has witnessed, favors the long political game, in this case stall and delay the investigation of Trump past the mid-term elections, when presumably the Republicans could win or at minimum curtail Democrats from gaining a powerful footing in both Congressional Houses. Recall that one, the DOJ “60-day rule” applies (1) and two, to help prepare a defense requires moving the ball well into 2023, less than eighteen months before the 2024 Presidential primaries.
What Barr did by suggesting an appeal as the singular path forward for the DOJ, was to position the DOJ appeal attempt as a political move, bolstering the claim that the DOJ is not pursuing justice but pursuing the former President.
Was this a former Republican ally finally seeing the light and signaling to likeminded Republican souls it’s time to put the President away?
Barr did quit in 2020, after all.
What meddling Barr didn’t suggest is noteworthy.
The DOJ could,
1 Petition Cannon’s decision by addressing the Judge, requesting that she reconsider her decision based on security implications;
2 Urge the Judge to amend her decision so that the FBI investigation could proceed; that to distinguish between the FBI work and the intelligence impact was impossible;
3 Request Judge Cannon exclude from Special Master intervention the 100 documents classified as ‘Top Security;’
4 Meet the Judge’s request for agreeing to a Special Master;
5 Petition to move the appeal to the DC Circuit Court of Appeals.
On Friday, Sept. 9, the DOJ in their court brief wisely performed the first four. The fifth suggestion was revealed on MSNBC by former Solicitor General, Neal Katyal. (2) By moving the appeal to the DC Circuit Court, Judges more experienced with the workings of the intelligence community would hear the case and rule on the ‘Special Master.’
Consider the consequence of Barr’s obfuscation. What Barr opined on Fox News was an attempt to lure the Fox audience away from the real issue — a security breach and illegal seizure — not was there evidence of a crime nor the tasking of who determines privilege.
Imagine you are a Judge on the 11th Circuit. No matter your party affiliation nor ideological leaning. Facing the DOJ plaintiffs, you are thinking to yourself,
So, you come before the Circuit Court with a flimsy appeal. Your beef is with a District Court Judge’s decision. Why didn’t you follow up with the Judge? You have proven nothing except we are being asked to intervene in a lower court Judge’s decision. On what premise is your client harmed by this decision? Because the District Judge was appointed by the defendant? What rules did she not follow except to offer a remedy to the impasse of both parties, whom are seeking to protect documents allegedly removed from the White House?
On Sept. 12, a book entitled Holding the Line by Geoffrey Berman, who served at the 7th Southern District for New York, was released to the public. (3) The book detailed multiple times the former Attorney General, on promptings from Trump, used his position to cease investigations by the 7th District into alleged campaign finance violations by the President Trump, to change District convictions (Bannon, Cohen), to use the authority of the office to investigate and charge Trump “enemies” (John Kerry, Geoffrey B. Craig)
On the same day, Sen. Dick Durbin, ranking Democrat of the Senate Judiciary Committee, announced that the Committee…
“…will investigate allegations that the Justice Department under President Donald J. Trump sought to use the U.S. attorney’s office in Manhattan to support Mr. Trump politically and pursue his critics, the committee’s chairman said on Monday…
“The chairman, Senator Richard J. Durbin of Illinois, the №2 Senate Democrat, made the announcement in a letter sent to Attorney General Merrick Garland, which cited a New York Times report on Thursday detailing the book’s allegations.” (4)
The DOJ is not removed from corruption. What will the fallout look like?
What is the cost of prosecutors’ transparency?
Berman’s book and the Senate Committee investigation may begin to provide clues, such as the refusal to investigate obstruction of justice as the Mueller Report recommended.
Barr would join former AG John Mitchell in being accused of obstructing a Congressional investigation.
In 1974 Mitchell went to jail for planning the Watergate break-in, for obstructing the subsequent investigation into the break-in and for covering up the Watergate break-in. (5)
In 2022 Barr is offering his opinions about criminal obstruction on cable TV.
Another day in Trumpyville.
Sept. 9–14
Notes
1- ‘60-Day Rule:’ the DOJ and Congressional Judicial committees would suspend investigations of a candidate running for election 60 days prior to election day. For a recent opinion of the ‘rule’ — a ‘conduct tradition,’ really — read https://www.thedailybeast.com/the-justice-departments-60-day-rule-is-obsolete-and-needs-to-go
2- MSNBC legal contributors, Andrew Weismann, Neal Katyal, “Last Word with Lawrence ODonnell
3-Ex-U.S. Attorney’s Book Addresses Pressure to Help Trump Causes — The New York Times (nytimes.com)
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