Let’s Go Back AGAIN To The Memo That Was Central To Attorney General Bill Barr Getting The Job

Trump’s Attorney General Bill Barr at his confirmation hearing last year

Especially after 4 federal prosecutors removed themselves from the Roger Stone case, and one quit the Justice Department altogether, after Trump complained their recommended sentence was “horrible and…very unfair”, and a “miscarriage of justice”, throwing in a conspiracy theory: that the “real crimes were on the other side”, for good measure!

Trump claims Tweet was all he did. But if that’s all he did, that Tweet resonated through the halls of the Justice Department and in the offices of Attorney General Bill Barr, loud and clear.

And shortly after, lo-and-behold, the Department of Justice changed its mind. Triggering those prosecutors’ departure. DOJ issued a statement that reeled back the original recommendation of 7-9 years for Stone (which corresponds to federal sentencing guidelines for his type of crime). And remember, Stone–a long-time Trump crony and advisor–was convicted of federal crimes by a jury, after a trial. Now, suddenly, the DOJ says “The department finds the recommendation extreme and excessive and disproportionate to Stone’s offenses”. It’s own recommendation!

Anyway why all the fuss? A sentencing recommendation doesn’t mean that’s what a convicted criminal will get. That’s up to the judge. So now Trump’s turning his attention to federal Judge Amy Berman Jackson, who also was responsible for pulling former Trump Campaign Chair (and also convicted felon), Paul Manafort’s bail, after he violated conditions of his bail by trying to tamper with witnesses. Judge Jackson ticks a lot of the boxes Trump often cites as appropriate qualifications to serve on the federal bench: both an undergraduate degree and law degree from Harvard. But she’s also strapped with one unforgivable sin in his view: she’s an Obama appointee.

We’ve written extensively about the unsolicited 19-page memo now- Attorney General Bill Barr sent to Trump as a private citizen that proved central to him getting the job. But previously, we discussed it in the context of the Mueller Report, and how Barr reasoned it was unreasonable for Mueller to be investigating Trump in the first place. (The Stone prosecution was a product of Special Counsel Robert Mueller’s investigation, and 2 of the 4 attorneys who removed themselves were part of the Mueller team.)

But heck, Barr wrote 19-pages. So of course there’s stuff in there that explains his frame of mind in framing these more recent DOJ actions too. And justifications for not necessarily keeping the Department of Justice at arm’s length from the President, as has been convention. So as we did before let’s quote Barr directly:

DOJ prosecutors are steeped in the notion that it is illegal for an official to touch a case in which he has a personal stake. But constitutionally, as applied to the President, this mind set is entirely misconceived….The Constitution itself places no limit on the President’s authority to act on matters which concern him…

“On the contrary, the Constitution’s grant of law enforcement power to the President is plenary. Constitutionally, it is wrong to conceive of the President as simply the highest officer within the Executive branch hierarchy. He alone is the Executive branch.”

As such, he is the sole repository of all Executive powers conferred by the Constitution. Thus, the full measure of law enforcement authority is placed in the President’s hands, and no limit is placed on the kinds of cases subject to his control and supervision. While the President has subordinates–the Attorney General and DOJ lawyers–who exercise prosecutorial discretion on his behalf, they are merely “his hand”—the discretion they exercise is the President’s discretion, and their decisions are legitimate precisely because they remain under his supervision….

The illimitable nature of the President’s law enforcement discretion stems not just from the Constitution’s plenary grant of those powers to the President, but also from the “unitary” character of the Executive branch itself. Because the President alone constitutes the Executive branch,the President cannot “recuse” himself.

By and large, fear of political retribution has ensured that, when confronted with serious allegations of misconduct within an Administration, Presidents have felt it necessary to take practical steps to assure the people that matters will be pursued with integrity. But the measures that Presidents have adopted are voluntary, dictated by political prudence, and adapted to the situation; they are not legally compelled.”

But what happens when the President has no fear of political retribution, because the Republicans who control the Senate (except for Mitt Romney) have just resoundingly told him he doesn’t have to?

And does that mean the President is completely within his rights to use “his” Justice Department to investigate and punish only political foes, while letting his cronies slide on all kinds of dastardly things? We can’t speak for Barr’s state of mind, only his actions. And he’s saying a lot with those. In addition, if you follow his reasoning to the letter: Seems to. The only thing that might prevent the President acting that way–according to Barr–is the possibility that type of behavior could get him impeached (so forget about that for now), or voted out of office.

Which leads us to one final theory of our own, that we’d like to float by all of you, even though no one we ran it by today–including several lawyers–agrees with us on, because they say we’d be giving the Attorney General way too much credit. But what if Barr realizes it would look really bad if Trump ends up pardoning Stone (because he’s guilty as sin,) and so is working overtime to finesse a sentence that would be “reasonable” enough that the President might let it go…?

On top of everything else that’s happening, Trump appears to have suddenly nixed a top job at the Treasury Department for the former U.S. Attorney for Washington, D.C. This according to Axios. During her 2 years in that position, Jessie Liu oversaw the Manafort and Stone cases, among others. Her former U.S. Attorney position is now being filled by Timothy Shea, currently a direct report to AG Barr at the Justice Department.

Sorry folks, who were expecting something about the New Hampshire primary from us today. This is bigger than the New Hampshire primary. We’ll have plenty of time to talk about the campaign between now and Super Tuesday.