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Elie Honig breaks down the latest development in the long saga of Bill Barr: a federal judge reprimanding the former attorney general for misleading Congress about whether Donald Trump should have been charged with obstructing the Russia investigation.

Join Elie every Monday and Wednesday, Friday on Third Degree for a discussion of the urgent legal news making the headlines.

Third Degree is brought to you by CAFE Studios and the Vox Media Podcast Network.

Executive Producer: Tamara Sepper; Senior Editorial Producer: Adam Waller; Technical Director: David Tatasciore; Audio and Music Producer: Nat Weiner; Editorial Producer: Sam Ozer-Staton.


Published May 12th, 2021

Elie Honig:

From CAFE and the Vox Media Podcast Network, this is Third Degree. I’m Elie Honig. How long do you think it would take you to read a 448 page document, single spaced, small font, non-fiction, dense, hundreds of footnotes, thousands of names, dates, places? And you can’t just skim it, you have to internalize it, you have to get a real fluency with the facts, with the details. Assume you knew time was of the essence, assume you knew a lot of people were waiting on you to read it. So how long? A week, if you worked around the clock? Maybe two, more realistically. How much time if you knew you had to do complex legal research and analysis based on those 448 pages, and then make a decision of national consequence based on your conclusion? You have to tack on some more time for that. So we’re now up to what, three, four weeks, maybe, again, if you push yourself to the limit?

Well, do you remember how long it took Bill Barr to read, I’m using scare quotes here, absorb and draw complex legal conclusions from the report of Robert Mueller? Do you remember? It was two days, 48 hours, not even. Bill Barr got the Mueller Report on a Friday. It was March 22nd, 2019. And he was done, conclusion in hand, no obstruction, by the end of that weekend, by Sunday, March 24th when Barr sent out his famous or infamous four page hatchet job on Mueller’s report. Do you believe Bill Barr really did all that in a weekend? Or do you believe Bill Barr already had his mind made up in advance, was in the bag, and just did what he already knew and we already knew he would do ahead of time? We got some fascinating new information on that very question and it turns out not only did Bill Barr lie to the American public about the contents of the Mueller Report, we already knew that, but it was reconfirmed, but there was also something of a scramble, a coverup within DOJ to try to paper over what Barr had done.

First of all, let me remind you, it didn’t take a fortune teller to know Bill Barr was going to trash whatever Robert Mueller did, because the fact is Barr already had announced what he would do before he ever became Attorney General. You probably remember the audition memo. Bill Barr sent this into DOJ just out of what he called private concern as a private citizen back in June of 2018 when it was clear Jeff Sessions would soon be goner after the midterms that year and the AG position would soon be opening up. And in that memo, Barr said that Mueller’s theory of obstruction of justice was, and I quote, “fatally misconceived.” Misconceived as in wrong, fatally, as in dead. Done. Well, guess what? That memo just happened to reach Donald Trump, who just happened to love it and just happened to choose Bill Barr as his next Attorney General.

By the way, Bill Barr’s notion that he was just offering up penny for your thoughts kind of ideas, why then did Bill Barr also do media on this? He did an interview with the media where he called Robert Mueller’s theory, and I quote, “asinine.” If Barr was just interested in privately sharing his thoughts with DOJ as a wise old head, it seems a little odd to do media too, doesn’t it? One more important note, by the way, about the calendar. After Barr issued his infamous four pager clearing Trump, he then held onto the Mueller Report, kept it away from the public and Congress for 27 days, claimed he was doing redactions later found by a Republican nominated federal judge to have been done improperly and redactions shouldn’t have taken him anywhere near that amount of time, anyway. During those 27 days, the political opportunists swooped in. Donald Trump, many others, Donald Trump started waving the no collusion, no obstruction flag and public opinion calcified and before we ever even saw one word of the Mueller Report, it was essentially DOA, dead on arrival.

Bill Barr played this one like an expert card shark. He played dirty and he choreographed it perfectly, which brings us to part two, accountability, a little bit late, but accountability. Now, we got a new decision this week from a federal judge down in D.C. Judge Amy Berman Jackson. Yes, you probably recognize that name. She was the same judge who presided over the Roger Stone trial and part of the Paul Manafort case and she is a common target of unhinged attacks from Donald Trump and accusations from Donald Trump. Here’s the dispute before Judge Amy Berman Jackson. A public transparency group called CREW, Citizens for Responsibility and Ethics in Washington, filed a series of lawsuits seeking transparency in the Mueller investigation. They just were unwilling to accept, to their credit, what Bill Barr had done to spin it. So they filed lawsuits seeking internal documents and memos. They clearly are convinced that there was an injustice here, a coverup, and a bigger one than we in the public fully understand.

In this case, CREW was seeking various memos, of most interest, a document that seems to be some kind of internal DOJ justification for Bill Barr’s hasty two day long conclusion of no obstruction. Two major headlines come out of this case. First Judge Amy Berman Jackson joined the chorus of other officials who have found that Bill Barr indeed lied to the public about the Mueller Report. No surprise, but still it’s important. It needs to be noted. It’s a big damn deal for any federal judge to find that any Attorney General past or present has been dishonest. Judge Jackson found that Barr was “disingenuous in his summary of the Mueller Report.” That’s being kind. That’s how judges politely say the guy lied. I don’t wear a robe so I don’t need to couch things in terms of niceties, the guy lied, which is in no way breaking news. It just puts Judge Jackson next in line of people, officials, who have called out Barr for lying.

It started with Mueller himself who wrote a letter to Bill Barr saying that Barr “did not fully capture the context, nature, and substance of this office’s work and conclusions.” And later another federal judge, Judge Reggie Walton, appointed to the bench, by the way, by a Republican President, George W. Bush, he also blasted bar for his “lack of candor” which “calls into question Attorney General Barr’s credibility and in turn the Department’s representation on the Mueller Report.” Here’s a line from Judge Walton’s opinion, which came out last year. He said Barr’s actions “caused the court to seriously question whether Attorney General Barr made a calculated attempt to influence public discourse about the Mueller Report in favor of President Trump despite certain findings in the redacted version of the Mueller Report to the contrary.”

Again, this is a judge being polite. Oh, I call into question whether Barr was making an attempt, a dishonest attempt to influence public discourse. Yeah, he was, judge, and the judge was saying as much. Now, Judge Amy Berman Jackson has joined this group calling Bill Barr, “disingenuous.” Now, that brings us to our third point. Here’s what’s new from this lawsuit. So CREW brought this lawsuit under FOIA, the Freedom of Information Act, which enables the public to get access to certain government documents. DOJ resisted. They argued this research memo, this legal memo, they said it was a “pre-decisional memo” and DOJ strongly suggested to the court that this was a detailed legal memo that Barr used and relied on and consulted during those two key days that weekend when he somehow managed to absorb the entire Mueller Report.

If so, if that was true, okay, that’s important. That would actually help Bill Barr because that would make it look less like he just flipped through the pages and went, “Yeah, yeah, yeah, yeah. Not guilty, blah, blah, blah.” Now, if DOJ was telling it straight, maybe Barr did do real research or rely on it. Maybe he did go through at least some process, some serious consideration before declaring no obstruction. Two days is still ridiculously rushed and implausible, but maybe it was more than just an in the bag fixed job. Nope. Turns out DOJ was, to use Judge Berman Jackson’s words, “disingenuous” in what it represented about this memo. It’s a little unclear because parts of Judge Amy Berman Jackson’s decision are redacted, but the judge found two things in particular. One, this memo, this legal memo was not pre-decisional. She says at one point, the word pre matters here. And second, this memo was not finalized and adopted until after March 24th, until after Barr had declared no obstruction.

The judge found DOJ disingenuous and she found that they gave “incomplete explanations” intended to “obfuscate the true purpose of the memorandum.” The judge also found that the facts “belie a notion that it fell to the Attorney General to make a prosecution decision or that any such decision was on the table at any time.” The fact that Trump would not be prosecuted was a given. And maybe most damning, the judge found that while the plaintiff, CREW, never laid eyes on the document, its summary was considerably more accurate than the one provided by DOJ. Meaning, these outsiders, CREW, they’ve still never seen the document, were better at predicting Barr and DOJ’s lies than Barr and DOJ were at actually lying. So what happens now? DOJ can appeal this. Obviously, my advice here, Merrick Garland, don’t. Don’t fight these battles, not to protect Bill Barr. Get DOJ back on track. Drop this nonsense. Disclose whatever needs to come out to the public.

In a way, it’s a good opportunity to make a statement. We’re done with the game-playing, the half-truths, the disingenuous, incomplete, obfuscating stuff. We already know Bill Barr did grave damage to DOJ, and it’s remarkable that even five months after he’s now left, we’re still learning that it was even worse than we thought. And by the way, if you’re offended at how badly Bill Barr abused his power as Attorney General and corrupted the Justice Department, have I got the book for you. it’s called Hatchet Man. It’s by, well, me, and it’s available for pre-order now. And I’m signing for pre-orders. I know the cafe audience, third degree listeners will love this. You can pre-order it now on Amazon or whatever else you may use. I felt like it was such an important story that needed to be told. I contrast my own upbringing and experience at DOJ using real life behind the scenes stories from the SDNY and trials I did to illustrate how badly Bill Barr misused his power.

And I’ll tell you, when it’s all laid out end to end, you will be shocked at just how bad and how corrupt and how devious Bill Barr was. I believe it will be even worse than you and I initially remembered. Thank you as always for listening, everybody. And as always, send us your thoughts, questions, and comments to letters@cafe.com. Third Degree is presented by Cafe Studios. Your host is Elie Honig. The executive producer is Tamara Sepper. The senior producer is Adam Waller. The technical director is David Tatasciore. The audio and music producer is Nat Wiener. And the CaAFE team is Matthew Billy, David Kurlander, Sam Ozer-Staton, Noah Azulai, Jake Kaplan, Geoff Isenman, Chris Boylan, and Sean Walsh.