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July 30, 2020

CAFE Insider Newsletter #82

Dear Reader,

Attorney General Bill Barr finally appeared before the House Judiciary Committee this week. As Anne and I discussed on the CAFE Insider podcast, the hearing was disappointing in myriad ways. With a few notable exceptions, Barr’s exchanges with members were not illuminating. Some of that was the fault of the Attorney General, but much of it could be laid at the feet of Democratic Representatives, many of whom asked vague questions, poor questions, or no questions at all.

One five-minute round, however, got to the heart of the matter. It shone a light on the unprecedented nature of Barr’s personal interference in a case commenced by Special Counsel Robert Mueller and then professionally handled by career prosecutors in the Department of Justice: the sentencing recommendation to the judge in the criminal case of Trump’s friend, Roger Stone.

With a tone of righteous indignation, Barr defended his last-minute order that the D.C. U.S. Attorney’s office withdraw its sentencing brief, which recommended seven to nine years of imprisonment, and submit a new, lower recommendation of three to four years. As you have heard me say, reasonable people could differ on the proper sentencing range. In my own experience, 7-9 years for Stone’s conduct seemed high, and as Barr triumphantly noted, the judge who had complete discretion to go higher or lower, imposed the more lenient sentence. But that misses the point. Of all the cases in all the land, why did the chief federal law enforcement officer intervene in this case, which involved not only a Presidential friend, but misconduct that was designed to protect that President? To judge the action and whether it was inappropriate or unethical or corrupt, it would be important to know if Barr had quietly in other, less well-known cases brought his exquisite sense of justice to bear. Perhaps in a narcotics case or a robbery case or an immigration case? That would take some of the stink off the intervention. Maybe we would be surprised.

Well into Tuesday’s hearing, someone finally probed this issue. Congressman Eric Swalwell asked a simple and important question: “Mr. Barr, have you ever intervened, other than to help the president’s friend get a reduced prison sentence, in any other case where a prosecutor had filed a sentencing recommendation with the court?”

“Not that I’d recall,” Barr replied. There it was, a striking admission that this was a unique case of the Attorney General reaching down into the trenches to replace a filing that displeased the President, as evidenced by an irate tweet, with a filing that would mollify the President. Whether or not there is an argument that the second recommendation was more fair (and there is), the move rightly looks to the average person as special treatment at the direction of a President with a personal and legal stake in the matter. An Attorney General who truly cared about fairness would have steered clear. At the barest minimum, his action carried the appearance of impropriety.

Such an appearance, for the President and others, used to matter.

Compare the foregoing to the infamous tarmac meeting between then-Attorney General Loretta Lynch and former President Bill Clinton on June 27, 2016. Recall that by happenstance the AG and Clinton wound up at the same airport in Phoenix, while the investigation into Hilary Clinton’s emails was still ongoing. That interaction caused an uproar and was weaponized as an ethical transgression to end all ethical transgressions by the presumptive Republican nominee, Donald Trump.

I am somewhat biased in the matter because I know Loretta Lynch personally. She is a friend and former colleague, and there is no question in my mind that she would never have discussed any pending case, much less one of this sensitivity, with the former President. That is my sincere belief, based not only on my understanding of her character but also given the public nature of the interaction and her demonstrable discomfort with the entire encounter.

Still, it was a mistake. More on the part of Bill Clinton than Lynch, but it was a mistake nonetheless. In fact, the former Attorney General herself has called it a mistake and chided herself for it. The meeting was one of the subjects of a lengthy Inspector General report, and the testimony of Melanie Newman, one of Lynch’s staffers, cited in the report is compelling:

“Newman characterized Lynch as ‘devastated’ about the tarmac meeting. She stated: ‘[Lynch] doesn’t take mistakes lightly, and she felt like she had made…an incredible…mistake in judgment by saying yes instead of no, that he could come on the plane. But also, she’s like the most polite, Southern person alive. I, I don’t know in what circumstances she would have said no, or what would have happened if she had said no…. I would have much preferred a story that the Attorney General turned a former President of the United States away on the tarmac, but…she doesn’t make mistakes, and she was not pleased with herself for making this kind of high-stakes mistake.’”

Lynch felt remorse and regret, rightly so. But not for doing anything wrong – rather, because of the appearance of it.

That incident, in fact, was top of mind when the President called me on March 11, 2017. In no universe would I have talked about a pending enforcement matter with Trump even if he asked, but I ultimately did not return the call because of the appearance of it. There was no law against us talking, no precise ethical rule against having a casual conversation, but I understood – in part because of Trump’s own weaponization of the tarmac incident – that it would look awful. There would be a stench to it, and in the absence of a surreptitious recording of the conversation, it would be impossible to prove to everyone the discussion was innocent.

These considerations don’t seem to matter to Bill Barr. He doesn’t seem to care about what his conduct looks like. He doesn’t seem to care that it looks corrupt, that he looks like the President’s personal lawyer. And this is so not just in the Stone case. He didn’t seem to care when it came to releasing a misleading summary of the Mueller Report, or when it came to his involvement in the clearing of the park outside the White House for Trump’s photo op.

People make mistakes, like Loretta Lynch did. Barr, on the other hand, doubles down on what stinks to high heaven. That makes him especially dangerous for the remainder of his time in office.

My best,

Preet

Tech’s Big Tobacco Moment?

by Sam Ozer-Staton

 

On Wednesday, congressional lawmakers took turns grilling the chief executives of the tech industry’s four most powerful companies: Amazon, Apple, Facebook and Google. The hearing comes as the tech industry faces intense backlash from across the political spectrum. It also marks the conclusion of the House Judiciary Committee’s 13-month antitrust investigation into each of the four tech giants, the most sweeping congressional inquiry of its kind since Microsoft faced antitrust charges in the 1990’s.

The hearing seesawed back and forth as members on opposite sides of the aisle tried to push different agendas — Democrats focusing on the companies’ monopolistic behavior, and Republicans alleging anti-conservative bias.

In his opening statement, Rep. David Cicilline (D-RI), chairman of the antitrust subcommittee, summarized the central argument that Democratic lawmakers made all afternoon: “Any single action by one of these companies can affect hundreds of millions of us in profound and lasting ways. Simply put: They have too much power.”

The tech CEOs fought back against that characterization, taking pains to emphasize their lack of marketplace dominance and, in some cases, invoking their personal stories. Amazon CEO Jeff Bezos, making his first-ever appearance before Congress, opened his testimony by describing his family’s humble beginnings:

“My dad arrived in America alone. His parents felt he’d be safer here. His mom imagined America would be cold, so she made him a jacket sewn entirely out of cleaning cloths, the only material they had on hand. We still have that jacket; it hangs in my parents’ dining room.”

The Democrats on the committee, whose staff conducted hundreds of hours of interviews and collected over 1.3 million documents as part of its investigation, attempted to puncture the CEOs carefully-crafted appeals for sympathy by highlighting their alleged anticompetitive behavior. Bezos in particular faced criticism for allegations that Amazon uses data from third-party sellers on its platform to develop its own products. In an exchange with Rep. Pramila Jayapal (D-WA), who represents the district where Amazon is headquartered, Bezos admitted that he could not categorically deny those accusations: “We have a policy against using seller specific data to aid our private label business, but I can’t guarantee you that that policy has never been violated.”

Sundar Pichai, the CEO of Google’s parent company, Alphabet, faced consistently aggressive questioning around the tactics his company uses to protect — and profit from — its search engine dominance. Rep. Cicilline accused Google of using its search engine to direct users to other sites and products owned by the company, forcing consumers to stay within what he called a “walled garden.” Pichai responded by claiming that the search market is growing more competitive: “People have more ways to search for information than ever before—and increasingly this is happening outside the context of only a search engine. Often the answer is just a click or an app away.”

Armed with newly-released documents unearthed by its investigation, the committee pressed Facebook’s Mark Zuckerberg on the motivations behind the company’s 2012 acquisition of Instagram. In an email Zuckerberg sent to Facebook’s chief financial officer in February 2012, Zuckerberg asked about whether the company would benefit from acquiring smaller social media companies. “These businesses…could be very disruptive to us,” he wrote. “Given that we think our own valuation is fairly aggressive and that we’re vulnerable in mobile, I’m curious if we should consider going after one or two of them. What do you think?” In a separate email sent later that year, just days before making the offer to buy Instagram, Zuckerberg wrote, “Instagram could hurt us meaningfully.”

Zuckerberg told committee members on Wednesday that Instagram’s success was not preordained but the result of years of work after its acquisition. “The acquisition has done wildly well not just because of the founders’ talent, but because we invested heavily in building up the infrastructure and promoting. And I think that this has been an American success story,” Zuckerberg said.

Apple’s Tim Cook received significantly fewer questions than any other tech CEO testifying before the committee. Apple, which relies more heavily on its hardware business and less on advertising revenue, still received criticism for its management of the App Store. Responding to allegations that Apple favors certain developers over others, Cook said that the App Store’s guidelines “are transparent and applied equally to developers of all sizes and in all categories.”

Republicans, for their part, primarily reserved their questioning for accusations of anti-conservative bias. Ranking Member Jim Jordan (R-OH) began his questioning by saying, “I’ll just cut to the chase, Big Tech’s out to get conservatives.” Republican members were wary of Democratic claims of monopolistic behavior, but they threatened to fight back against what they described as censorship of conservative voices on tech platforms. “We all think the free market is great. We think competition is great. We love the fact that these are American companies,” Rep. Jordan said. “But what’s not great is censoring people, censoring conservators and trying to impact elections. And if it doesn’t end, there has to be consequences.”

Heading into the 2020 election, the tech industry finds itself in the rare position of being a punching bag for both liberals and conservatives. According to Gigi Sohn, an expert on technology law and policy who was a senior adviser at the Federal Communications Commission and now serves as a fellow at Georgetown Law School, the hearing “has the feeling of tech’s Big Tobacco moment.”
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Is that a fair comparison? Do you think the government should rein in big tech with additional regulation? Let us know your thoughts by writing to us at [email protected], or reply to this email.

FOLLOW

Sarah Cooper is an author and comedian whose viral lip-sync videos mimicking President Trump have many laughing. Follow her @sarahcpr.

To listen to Insider content on your favorite podcast app, follow these instructions*

— Listen to Stay Tuned, “Covering the State of Our Union,” featuring CNN’s Jake Tapper, who joins Preet for a discussion of the recently-released film based on his book, “The Outpost: An Untold Story of American Valor,” a recounting of the Battle of Kamdesh in Afghanistan. Tapper also discusses his criticisms of New York Governor Andrew Cuomo’s handling of the COVID-19 crisis, and President Trump’s recent Twitter attacks on him.

—  Listen to this week’s episode of CAFE Insider, “Barr Fight.” Preet and Anne break down AG Barr’s testimony before the House Judiciary Committee, “Operation Legend,” and the release of Michael Cohen from prison.

— If you haven’t already, listen to the latest episode of United Security, “Blended Threat: Twitter & China.”

That’s it for this week. We hope you’re enjoying CAFE Insider. Reply to this email or write to us at [email protected] with your thoughts, suggestions, and questions.

— Edited by Tamara Sepper

The CAFE Team:

Tamara Sepper, Sam Ozer-Staton, David Kurlander, Noa Azulai, Calvin Lord, David Tatasciore, and Matthew Billy.

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