Friday, February 14, 2020

Bill Barr Feigns Surprise

This is either bullshit, or Bill Barr is a terrible administrator and has no business being the Attorney General in charge of the Justice Department.

BARR: Well, as you know, the Stone case was prosecuted while I was attorney general. And I supported it. I think it was established, he was convicted of obstructing Congress and witness tampering. And I thought that was a righteous prosecution. And I was happy that he was convicted.

The issue then became the sentencing. A new U.S. attorney had just started in Washington D.C. and the week before the filing, he engaged in conversations with senior staff here who raised some questions about the sentencing because he was concerned that the so called guidelines, the sentencing guideline formula, was indicating a sentence between 7 and 9 years.

Which, he felt and all of us immediately felt was very, very high and excessive in this case. And so he wanted to discuss that and over a number of days it became clear that the prosecution team wanted to recommend to the judge, and by the way, sentencing is a function for the judge and not the Department of Justice, we're not the decision maker. But they wanted to advocate for a sentence that was, at the top, between 7 and 9 years.

And, in those discussions here at the department, you know, I came to the view as my colleagues did that I wouldn't support affirmatively advocating what I thought was an excessive sentence.

So, what I wanted to do what to provide dis -- defer to the discretion of the judge, let the judge make the determination.

THOMAS: You wanted to do that from the outset?

BARR: Yes. And then point out different features of the case that she should consider if she wanted to go below the 7 to 9 years. And I won't get into the wires on that, but there were a lot of, I think, very legitimate arguments to be raised, there are points to be raised there. But at the end of the day, we deferred to her. Or, and that was what the approach was, I thought, we were going to take.

THOMAS: So the US attorney for the District of Columbia signed off on, his name is on the recommendation that went in there.

BARR: Yeah.

THOMAS: How did that happen?

BARR: On Monday, he came by to briefly chat with me and say that the team very much wanted to recommend the 7-9 year to the judge. And, but he thought that there was a way of satisfying everybody and providing more flexibility.

And there was a brief discussion of that. I was under the impression that what was going to happen was very much what I had suggested, which is deferring to the judge and then pointing out the various factors and circumstances. On Monday night, when I first saw the news reports, I said, “Gee, the news is spinning this. This is not what we were going to do.”

THOMAS: So you were surprised?

BARR: I was very surprised. And once I confirmed that that's actually what we filed, I said that night, to my staff, that we had to get ready cause we had to do something in the morning to amend that and clarify what our position was.
If Barr was "surprised," it's because he doesn't have his ducks in a row.  If he was "surprised," it's because someone between Barr and the attorneys actually handling the case (who were in D.C., not out in Back-of-Beyond Bumfuck, Egypt where the wind blows free and the telephones don't go) didn't get the message through by carrier pigeon.  If Barr was surprised, it's because he runs a very poorly administered government agency.

In short the buck, as Harry Truman said, stops on Barr's desk.

And why did he want to recommend a lighter sentence?  Why was that so important he had to send word down the line that consideration should be given to leaving sentencing to the discretion of the judge?  So DOJ wouldn't be complicit or responsible or have any ties to what the Judge did, because that would be insulation from Trump?  Because Barr doesn't like the sentencing guidelines and wants to review the thousands of cases the DOJ is prosecuting, to be sure each is as lenient as possible?  Because a new attorney took over in D.C., and Barr agreed that attorney should talk to those attorneys and be sure they did, not what the guidelines recommended, but what this new attorney thought should be done in this case that in less than a week would need a submission to the judge on sentencing recommendations?

Sure, why not?

And then the message is fumbled all the way down the chain?  Or the attorneys hear it and say "Fuck you, we're in charge!"?  Or maybe because the attorneys knew their case and the facts and the verdict (always more than the sum of its parts; a verdict is how the jury answers the questions put to it about what the facts of the case are.  The jury doesn't apply the law and determine an outcome; the jury decides the facts, and the judge decides the verdict based on those findings.  It's not the simple process movies and news accounts make you think it is.), and knew their recommendation was better than that of someone who'd been in their job less than a week?

And the decision to "amend...and clarify what our position was" is a terrible decision to make at that point in time.  Better to let it go and establish new procedures for communication and direction in succeeding cases than to blow this one up and pull the rug out from under four career attorneys and tell the judge "Never mind!" and "Don't rely on those guys to speak for the government, rely on these guys instead!"  Which is what happened in the census cases late last year, which lead more than one DOJ attorney to seek to withdraw rather than be made to look that foolish and incompetent and without authority before the court.  Barr, then, doubled down on that debacle, and all because, he now says, there was a new attorney in charge in D.C., and Barr wanted to defer to him?

Is anybody believing this?

Bill Barr reached into this case for reasons he has still not explained, but he is still relying on the "appearance of impropriety is NOT evidence of impropriety" argument that no one is engaging, because it's so absurd on its face no one can take it seriously.  Evidence is a very good thing to demand when you are going to force someone to pay remuneration for damages, or take away their life or liberty; but appearances matter in questions of impropriety or conflicts of interest, because by the time the evidence is produced the damage to public trust or fiduciary relationships is already done, and can't be remediated so easily.  Barr is insisting there is no impropriety here and the appearance of same is irrelevant, but it's that very appearance that is so damaging and damning.  Some think Barr has tamped down a 'mutiny' in the DOJ with this interview, but I would not be so quick to jump to such conclusions.  Perhaps there is no appetite for mutiny in the ranks of the lawyers in the Justice Department; it would not surprise me if there weren't.  But this is less than 3 months after the November census debacle, when DOJ lawyers were forced to recant arguments and even evidence they had presented to courts, and now they can't even make recommendations on sentencing without those memos being withdrawn and replaced on the whim of the Attorney General who is accepting his gambling winnings even as he is shocked to learn there is gambling in the White House.  Because maybe, just maybe, this is why Barr was concerned about the Stone sentencing recommendations:

Nah.  I'm sure it's all just coincidence and polite professional disagreement about which syllable gets the emphasis.
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