Steven Harper

Trump's latest cover-up: The many glaring omissions in the Pentagon's account of the Capitol siege

The Department of Defense's January 8, 2021 press release purports to "memorialize the planning and execution timeline" of the deadly insurrection that it calls the "January 6, 2021 First Amendment Protests in Washington, DC."*

The memo's minute-by-minute account creates a false illusion of transparency. In truth, its most noteworthy aspects are the omission of Trump's central role in the insurrection and the effort to shift blame away from Trump and his new Acting Secretary of Defense Christopher Miller.

Who is Christopher Miller?

By November 9, every news organization declared that former Vice President Joe Biden had won the election. On that day, Trump fired Acting Secretary of Defense Mark Esper and replaced him with Miller, an Army retiree who worked for a defense contractor until Trump tapped him as his assistant in 2018. Miller's promotion began a departmental regime change that embedded three fierce Trump loyalists as top Defense Department officials: Kash Patel (former aide to Rep. Devin Nunes (R-CA)), retired army Gen. Anthony Tata (pro-Trump Fox News pundit) and Ezra Cohen-Watnick (former assistant to Trump's first national security adviser, Mike Flynn).

At such a late date in Trump's presidency, many asked why the shake-up at the Department of Defense? We may be learning the answer.

Prior to the Attack

The department's January 8, 2021 memo ignores Trump's central role in igniting and then encouraging the January 6 insurrection. In fact, the only reference to Trump appears in a January 3 entry, when Miller and Chairman of the Joint Chiefs of Staff Mike Milley meet with him and he concurs in activation of the DC National Guard "to support law enforcement."

Other than that, Trump is conspicuously absent, along with the most important parts of the story. In the date and time entries that follow, only those in italics and preceded with "(DoD Memo)" summarize items from the Defense Department's January 8 memorandum. The memo ignores every other fact set forth in this post.

Dec. 19, 2020: Trump tweets: "Big protest in D.C. on January 6th. Be there, will be wild!"

Jan. 3, 2021: Replying to a tweet from one of the rally organizers, Trump tweets: "I will be there. Historic day."

Jan. 4: The National Park Service increases the crowd estimate on the January 6 rally permit to 30,000 — up from the original 5,000 in December.

January 6, 2021:

8:17 a.m.: Trump tweets: "States want to correct their votes, which they now know were based on irregularities and fraud, plus corrupt process never received legislative approval. All Mike Pence has to do is send them back to the States, AND WE WIN. Do it Mike, this is a time for extreme courage!"

Noon: Trump begins to address the mob and continues speaking for more than 90 minutes.

  • "We will never give up. We will never concede. It doesn't happen. You don't concede when there's theft involved."
  • "We won this election, and we won it by a landslide. This was not a close election."
  • "I hope Mike is going to do the right thing. I hope so. I hope so, because if Mike Pence does the right thing, we win the election. All Vice President Pence has to do is send it back to the states to recertify, and we become president, and you are the happiest people."

1:00 p.m.: While Trump continues his rant to the mob, some members of Trump's crowd have already reached the US Capitol Building where Congress assembles in joint session to certify President-elect Joe Biden's victory. An initial wave of protesters storms the outer barricade west of the Capitol Building. As the congressional proceedings begin, Pence reads a letter saying that he won't intervene in Congress's electoral count: "My oath to support and defend the Constitution constrains me from claiming unilateral authority."

1:10 p.m.: Trump ends his speech by urging his followers to march down Pennsylvania Avenue. "We're going to the Capitol. We're going to try and give them [Republicans] the kind of pride and boldness that they need to take back our country…If you don't fight like hell, you're not going to have a country anymore."

The Attack

If the District of Columbia were a state, its governor alone could have deployed the National Guard to crush the riot. Instead, Trump and his Defense Department had that responsibility, and an unprecedented assault on a sacred institution of government succeeded, if only for a few hours.

(DoD Memo) 1:26 p.m.: The Capitol Police orders the evacuation of the Capitol complex.

1:30 p.m.: The crowd outside the building grows larger, eventually overtaking the Capitol Police and making its way up the Capitol steps. Suspicious packages — later confirmed to be pipe bombs — are found at Republican National Committee headquarters and Democratic National Committee headquarters in Washington.

(DoD Memo) 1:34 p.m.: DC Mayor Muriel Bowser asks Army Secretary Ryan McCarthywho reports to Millerfor more federal help to deal with the mob.

Bowser is told that the request must first come from the Capitol Police.

(DoD Memo) 1:49 p.m.: The Capitol Police chief asks the commanding general of the DC National Guard for immediate assistance.

2:15 p.m.: Trump's mob breaches the Capitol building – breaking windows, climbing inside and opening doors for others to follow.

(DoD Memo) 2:22 p.m.: Army Secretary McCarthy discusses the situation at the Capitol with Mayor Bowser and her staff.

They are begging for additional National Guard assistance. Note the time. It's been almost an hour since Bowser requested help.

2:24 p.m.: Trump tweets: "Mike Pence didn't have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!"

After erecting a gallows on the Capitol grounds, the mob shouts, "Hang Mike Pence." Rioters create another noose from a camera cord seized during an attack on an onsite news team.

2:26 p.m.: Capitol Police Chief Steven Sund joins a conference call with several officials from the DC government, as well as officials from the Pentagon, including Lt. Gen. Walter E. Piatt, director of the Army Staff. Piatt later issues a statement denying the statements attributed to him.

"I am making an urgent, urgent immediate request for National Guard assistance," Sund says. "I have got to get boots on the ground."

The DC contingent is flabbergasted when Piatt says that he could not recommend that his boss, Army Secretary McCarthy, approve the request. "I don't like the visual of the National Guard standing a police line with the Capitol in the background," Piatt says. Again and again, Sund says that the situation is dire.

(DoD Memo) 2:30 p.m.: Miller, Army Secretary McCarthy and the chairman of the joint chiefs of staff meet to discuss Mayor Bowser's request.

(DoD Memo) 3:04 p.m.: Miller gives "verbal approval" to full mobilization of the DC National Guard (1,100 members).

It has now been more than 90 minutes since Mayor Bowser first asked Army Secretary McCarthy for assistance. It took an hour for Defense Department officials to meet and another half hour for them to decide to help. And Bowser still doesn't know the status of her request.

(DoD Memo) 3:19 p.m.: Pelosi and Schumer call Army Secretary McCarthy, who says that Bowser's request has now been approved.

(DoD Memo) 3:26 p.m.: Army Secretary McCarthy calls Bowser to tell her that her request for help has been approved.

The Defense Department's notification of approval to Bowser came two hours after her request.

While Miller and his team were slow-walking Mayor Bowser's request, she had sought National Guard assistance from Virginia Governor Ralph Northam (D) and Maryland Governor Larry Hogan (R). At about the same time, House Speaker Nancy Pelosi (D-CA) called Northam directly for help and he agreed.

3:29 p.m.: Gov. Northam announces mobilization of Virginia's National Guard. But there's a hitch. Federal law requires Defense Department authorization before any state's National Guard can cross the state border onto federal land in DC. That approval doesn't come until almost two hours later.

(DoD Memo) 3:47 p.m. Governor Hogan mobilizes his state's National Guard and 200 state troopers.

The Defense Department "repeatedly denies" Hogan's request to deploy the National Guard at the Capitol. As he awaits approval, House Majority Leader Steny Hoyer (D-MD) calls Hogan from the undisclosed bunker to which he, Speaker Pelosi and Senate Minority Leader Chuck Schumer (D-NY) have been evacuated. Hoyer pleads for assistance, saying that the Capitol Police is overwhelmed and there is no federal law enforcement presence.

4:17 p.m.: Trump tweets a video telling rioters, "I know your pain, I know you're hurt. We had an election that was stolen from us. It was a landslide election and everyone knows it, especially the other side…It's a very tough period of time. There's never been a time like this where such a thing happened where they could take it away from all of us — from me, from you, from our country. This was a fraudulent election, but we can't play into the hands of these people. We have to have peace. So go home. We love you. You're very special. You've seen what happens. You see the way others are treated that are so bad and so evil."

(DoD Memo) 4:18 p.m.: Miller gives voice approval notifying surrounding states to muster and be prepared to mobilize their National Guard personnel.

(DoD Memo) 4:32 p.m.: Miller gives verbal authorization to "re-mission" DC National Guard from city posts where most have been directing traffic and monitoring subway stations "to conduct perimeter and clearance operations" in support of the Capitol Police force.

4:40 p.m.: More than 90 minutes after Governor Hogan had requested federal approval to send his state's National Guard troops to DC, Army Secretary McCarthy calls and asks, "Can you come as soon as possible?" Hogan responds, "Yeah. We've been waiting. We're ready."

5:40 p.m.: The first DC National Guard personnel arrive at the Capitol.

(DoD Memo) 5:45 p.m.: Miller signs formal authorization for out-of-state National Guard personnel to muster and gives voice approval for deployment to support the Capitol Police.

The first Maryland National Guard personnel don't arrive at the Capitol until January 7 at 10:00 a.m. The first Virginia National Guard members arrive at noon.

6:01 p.m.: Trump tweets: "These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long. Go home with love & in peace. Remember this day forever!"

(DoD Memo) 8:00 p.m.: The DC Capitol Police declare the Capitol Building secure.

The Aftermath of the Attack

8:31 p.m.: After widespread media reports that Pence, not Trump, had actually given the order to deploy the National Guard, Kash Patel — Miller's chief of staff and former top aide to Rep. Nunes — tells the New York Times, "The acting secretary and the president have spoken multiple times this week about the request for National Guard personnel in D.C. During these conversations, the president conveyed to the acting secretary that he should take any necessary steps to support civilian law enforcement requests in securing the Capitol and federal buildings."

But according to the Defense Department's January 8 memo, the only such conversation with Trump occurred on January 3.

Jan. 7: Trump releases a video in which he lies, saying, "I immediately deployed the National Guard and federal law enforcement to secure the building and expel the intruders." Defense Department officials confirm that they did not speak to Trump on January 6.

Jan. 8: Trump tweets: "The 75,000,000 great American Patriots who voted for me, AMERICA FIRST, and MAKE AMERICA GREAT AGAIN, will have a GIANT VOICE long into the future. They will not be disrespected or treated unfairly in any way, shape or form!!!"

Shortly thereafter, he tweets again: "To all of those who have asked, I will not be going to the Inauguration on January 20th."

Jan. 8: Twitter issues a statement saying that it has banned Trump because his "statement that he will not be attending the Inauguration is being received by a number of his supporters as further confirmation that the election was not legitimate…and encouragement to those potentially considering violent acts that the Inauguration would be a 'safe' target, as he will not be attending."

Twitter's statement continues, "The use of the words 'American Patriots' to describe some of his supporters is also being interpreted as support for those committing violent acts at the US Capitol. The mention of his supporters having a 'GIANT VOICE long into the future' and that 'They will not be disrespected or treated unfairly in any way, shape or form!!!' is being interpreted as further indication that President Trump does not plan to facilitate an 'orderly transition' and instead that he plans to continue to support, empower, and shield those who believe he won the election."

The statement concludes: "Plans for future armed protests have already begun proliferating on and off-Twitter, including a proposed secondary attack on the US Capitol and state capitol buildings on January 17, 2021."

Understand what is happening. The US Department of Defense is reframing an attack on the Capitol and attempted coup as a "First Amendment Protest." That benign label isn't just a dog whistle. It's a megaphone that blesses a violent insurrection, disguising it as the exercising of a constitutional right.

Another cover-up is underway. Another false narrative is in the works. And another agency of the federal government has revealed that Trump has co-opted it.

The fight to save American democracy is now down to a single defining question:

Which side are you on?

*[Note: Late in the afternoon on January 11, 2021, the Defense Department changed the title of its January 8 memorandum and reissued it "to more appropriately reflect the characterization of the events at the U.S. Capitol on January 6."]

Inside the Trump administration's coverup at the Cleveland Clinic

The Cleveland Clinic boasted that co-hosting the first presidential debate along with Case Western Reserve University was an honor for both institutions and the city. As the health security adviser to the Commission on Presidential Debates, it publicized protocols to protect everyone at their site on the Health Education Campus and at subsequent debates. It knew those protocols would also protect members of the public with whom all attendees would later come into contact.

Then the Cleveland Clinic failed to follow its own rules, and Donald Trump's COVID-19 cover up began.

The Rules

The Clinic required all attendees to obtain a negative COVID-19 PCR test — the most reliable diagnostic tool — within 72 hours of the debate on September 29. It also required all audience members to wear masks. Neither rule should have been controversial.

After all, on July 14, Trump called himself “probably the most tested person in the world." On July 21, press secretary Kayleigh McEnany said that he was tested for COVID-19 “multiple times a day." Likewise, for months the nation's top medical and scientific experts have urged the public to use face masks, especially in large indoor gatherings.

The Trump Outbreak Timeline

The typical incubation period between exposure to the coronavirus and the onset of COVID-19 symptoms is five to six days. During the six days prior to Trump's first symptoms on October 1, all of the individuals in bold had close contact with him and subsequently tested positive for the disease on or before October 7.

Sept. 25: Trump and Ronna McDaniel, chair of the Republican National Committee, mingled with the RNC leadership team at the Trump International Hotel in Washington DC. McDaniel returned to her home in Michigan and, a few days later, became ill.

Sept. 25: Trump traveled aboard Air Force One with Hope Hicks and others to a rally in Newport News, Virginia, where the audience did not wear face masks or maintain social distancing.

Sept. 26: Trump held what Dr. Anthony Fauci later called a “super-spreader event in the White House" for his new US Supreme Court nominee. There were few facemasks in the crowd, which did not maintain social distancing at either the private indoor reception or the larger outdoor gathering in the Rose Garden. Among the participants later testing positive for COVID-19 were Trump's wife Melania, Sen. Thom Tillis (R-NC), Sen. Mike Lee (R-UT), former Gov. Chris Christie (R-NJ), University of Notre Dame President John Jenkins, Kayleigh McEnany, three of McEnany's aides (Chad Gilmartin, Karoline Leavitt and Jalen Drummond), former counselor to the president Kellyanne Conway, megachurch pastor Greg Laurie and New York Times photojournalist Al Drago.

Also on Sept. 26: Trump, Hicks, McEnany and others took Air Force One to a rally in Middletown, Pennsylvania. Few in the audience wore face masks and there was no social distancing.

Sept. 27: Trump, Melania, McEnany and US Coast Guard Admiral Charles Ray attended a reception for Gold Star families in the White House. Most attendees did not wear face masks or maintain social distancing.

Sept. 27 – 29: For several hours, Trump and his advisers met in the White House in preparation for the first presidential debate. At various times, participants who later tested positive for COVID-19 were Hicks, Conway, Stephen Miller, Christie and campaign manager Bill Stepien. No one wore face masks and participants did not maintain social distancing.

The Debate Debacle

Sept. 29: Trump, Melania, Hicks, Miller and Stepien flew with others aboard Air Force One to Cleveland. But the entourage arrived too late for COVID-19 testing that the Cleveland Clinic required. So the Clinic relied on assurances from the campaign that Trump and others had satisfied the requirement. Debate moderator Chris Wallace later said, “There was an honor system when it came to the people that came into the hall from the two campaigns."

After entering the debate hall, Trump family members and chief of staff Mark Meadows then removed their face masks. A Cleveland Clinic doctor wearing a white lab coat approached Trump's group to ask that they put them on, but she was waved off. When the doctor walked off the floor, a debate hall staffer told her, “That's all you can do."

The Coverup

Sept. 30: McDaniel tested positive for COVID-19. That evening, Hicks began to feel ill after attending a Trump fundraiser and rally in Minnesota.

Oct. 1: Hicks tested positive for COVID-19, but the White House kept her diagnosis quiet. Trump continued on to a fundraiser at the Trump National Golf Club in Bedminster, New Jersey, where he held an indoor roundtable for about 20 big donors and an outdoor event including 200 people.

That evening, Bloomberg broke the story that Hicks had tested positive for COVID-19. Two hours later, Trump confirmed her diagnosis on Fox News without mentioning that he too had already tested positive. Nor did anyone inform former Vice President Joe Biden's campaign.

As the virus spread throughout the White House, Trump asked an adviser not to disclose the results of their own positive test. “Don't tell anyone," he said. By October 7, at least 34 White House staff members and other individuals who had been in close contact with Trump between September 25 and October 1 tested positive for COVID-19.

Oct. 5: Reporters asked Trump's physician, Dr. Sean Conley, when Trump had last tested negative for COVID-19.

“I don't want to go backwards," he said, ignoring the medical importance of that information for tracing Trump's contacts prior to the onset of his symptoms.

Also on Oct. 5: The New York Times reported that the White House was not using the Centers for Disease Prevention and Control to perform contact tracing for the Trump outbreak. Instead, the White House medical unit was in charge and “limited its efforts to notifying people who came in close contact with Mr. Trump in the two days before his Covid diagnosis Thursday evening [October 1]." That meant excluding two Trump rallies, the super-spreader event in the White House Rose Garden and, depending how precisely the White House calculated the “two days before his COVID diagnosis," possibly the presidential debate itself. {Emphasis added]

Oct. 9: White House deputy press secretary Brian Morgenstern refused repeatedly to answer when Trump had last tested negative for COVID-19:

The Clinic's Continuing Failure

The Cleveland Clinic's initial response to Trump's positive test scandal was to minimize the problem.

Oct. 2: “As health advisor to the Commission on Presidential Debates and the host site, we had requirements to maintain a safe environment that align with CDC guidelines – including social distancing, hand sanitizing, temperature checks and masking. Most importantly, everyone permitted inside the debate hall tested negative for COVID-19 prior to entry. Individuals traveling with both candidates, including the candidates themselves, had been tested and tested negative by their respective campaigns. Based on what we know about the virus and the safety measures we had in place, we believe there is low risk of exposure to our guests. Out of an abundance of caution, we are reaching out to our guests to address any questions and concerns."

Oct. 2 – 6: As the White House outbreak grew and Trump refused to reveal when he had last tested negative for COVID-19 prior to the debate, scrutiny of the Clinic's actions intensified.

Oct. 6: The Cleveland Clinic issued a statement trying to shift the blame: “Prior to the first debate, we worked closely with the CPD to create health and safety requirements. These are the same requirements that we have recommended be implemented at each of the other host sites. They include testing, social distancing, hand sanitizing, temperature checks and masking. Any questions regarding the recommendations and requirements, including their implementation and enforcement, should be directed to the CPD." (Emphasis added)

The Cleveland Clinic is one of the premier medical institutions in the world. But it accepted the word of a serial liar, wilted as he defied rules that applied to everyone else and compromised the health of the public. In the process, it facilitated a Trump coverup that endures to this day.

After four years of Trump's mendacity, bullying and victims, the Cleveland Clinic has only itself to blame for the resulting stain on its reputation.

Read all installments of Steven Harper's Pandemic Timeline.

Bill Barr battles the rule of law: In this war, there are no bystanders

"With your law degrees, you will have immense power to do great harm," Harvard Law Professor Duncan Kennedy admonished our one-L torts class in 1976.

A few months later, former President Richard M. Nixon (JD, Duke, '37) — who thought Watergate had been a political "witch hunt" — uttered his infamous line, "Well, when the president does it, that means it is not illegal." And his former attorney general, John N. Mitchell (JD, Fordham, '38), was headed to prison.

More than 40 years after that class, United States Attorney General William P. Barr (JD, George Washington, '77) has driven home the gravity of Prof. Kennedy's admonition. When the story of the Trump era is written, history will pose a single defining question to every American lawyer: In the fight to preserve the rule of law, which side were you on?America has seen which side William Barr is on. As the nation's top law enforcement officer, the attorney general represents the "People of the United States." Early in his tenure, Barr jettisoned that role.

Operating as Trump's personal advocate, Barr has abused the power of his office to undermine the Trump-Russia investigation. Although troublesome, Barr's actions are best viewed as a case study in his modus operandi. What Barr has done to that investigation and its key players, he can do to anything and anyone. That makes Barr's methods ominous for the rule of law itself.

Hiring Barr was no accident. Early in 2017, before special counsel Robert Mueller's appointment, Trump feared that he was losing control of the Trump-Russia investigation. He was furious at then-Attorney General Jeff Sessions' (JD, Alabama, 73) for recusing himself from the ongoing probe. Referring to his former personal attorney, notorious fixer, and top aide to Sen. Joseph R. McCarthy (R-WI) during the investigations of communist activity in the 1950s, Trump lamented, "Where's my Roy Cohn?"

A year later, he got his answer. Barr sent Deputy Attorney General Rod Rosenstein (JD, Harvard, '89) an unsolicited 19-page memo challenging the premise of Mueller's obstruction of justice investigation and urging that the special counsel should not even be permitted to question Trump. In William Barr, Trump had finally found his Roy Cohn.

First came the lies and deceptions. According to The Washington Post, as of July 9, 2020, Trump had made more than 20,000 "false or misleading claims" since assuming office. Like Trump, Barr understands the rhetorical and psychological concepts of primacy and repetition. Whoever speaks first and most frequently on an important topic has the upper hand in controlling the resulting narrative, regardless of its veracity.

From his first days in office, Barr has reinforced Trump's false assertions that the Trump-Russia investigation never should have happened. In the maelstrom that followed, truth became a casualty. So it's important to start with a brief reprise of the Mueller report's key conclusions:"[T]he Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome." (Vol. I, p. 5)

The Trump campaign "expected it would benefit electorally from information stolen and released through Russian efforts." (Vol. I, p. 5)

Trump tried repeatedly to obstruct the investigation into his campaign ties to Russia.

And Mueller concluded, "[I]f we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, however, we are unable to reach that judgment… Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him." (Vol. II, p. 2)

Barr's dissembling prevented the truth from gaining traction. Two days after Mueller gave Barr his final report confidentially — including summaries suitable for public dissemination — Barr sent a letter to Congress with his own misleading "summary" of Mueller's findings. It was so deceptive that Mueller himself complained to Barr immediately, saying that Barr's letter "did not fully capture the context, nature, and substance of this Office's work and conclusions." The result, Mueller wrote, "is public confusion about critical aspects of the results of our investigation."But public confusion was the objective because it led to public indifference. For another three weeks, Barr did not release even a redacted version of Mueller's report, and Mueller's dissenting letter to Barr did not surface until two weeks after that. During the intervening month-and-a-half, Barr's mischaracterizations became the only story of Mueller's findings, and they stuck. Primacy gave Barr the edge and repetition then took over.

Immediately, Trump used Barr's spin to reinforce his big lie. "No collusion, No obstruction, Complete and Total EXONERATION," Trump tweeted — three lies in a single post.

Then Barr made things worse — or from Trump's perspective, better. Two hours before releasing a redacted version of Mueller's report, Barr held a press conference to spin its conclusions again. He repeated Trump's false "no collusion" meme four times.

On obstruction, Barr also made this disingenuous claim: "The White House fully cooperated with the special counsel's investigation, providing unfettered access to campaign and White House documents, directing senior aides to testify freely, and asserting no privilege claims. And at the same time, the president took no act that in fact deprived the special counsel of the documents and witnesses necessary to complete his investigation."

Here's the truth:

From its inception, Trump attacked Mueller's investigation and repeatedly pressured then-Attorney General Jeff Sessions and White House counsel Don McGahn (JD, Widener, '94) to curtail or terminate it. (Vol. II, pp. 77-120)

Trump refused Mueller's requests for an interview. (Vol. II, pp. C-1-2)

Mueller said Trump's written answers to his questions were "inadequate." (Vol. II, C-2)

Trump dangled pardons aimed at influencing key witnesses, including his former national security adviser Mike Flynn, former campaign chairman Paul Manafort (JD, Georgetown, '74), and a person whose name was initially redacted from Mueller's report but who we now know is Trump's longtime confidant, Roger Stone. Trump also tried to influence and intimidate his former personal attorney, Michael Cohen (JD, Thomas M. Cooley, '91). (Vol. II, pp. 120-156)

The Rule of Law

In 1789, Thomas Jefferson wrote that a well-informed electorate is a prerequisite to democracy. Barr kneecapped the truth. When the redacted version of Mueller's report finally appeared, The Washington Post awarded him "Three Pinocchios" for his "incomplete or misleading" descriptions of Mueller's investigation and conclusions. But Barr had withheld even a redacted version so long that his false spin had irrevocably infected the body politic.

Fortunately, the rule of law has courageous defenders who honor the oath that every attorney takes to uphold the rule of law. In an opinion on a Freedom of Information Act request for an unredacted copy of Mueller's report, U.S. District Court Judge Reggie B. Walton blasted Barr's pre-release "distortions" and "lack of candor." In a remarkable ruling, the respected federal judge wrote that he could not trust the attorney general of the United States:

"The speed by which Attorney General Barr released to the public the summary of Special Counsel Mueller's principal conclusions, coupled with the fact that Attorney General Barr failed to provide a thorough representation of the findings in the Mueller Report, causes the Court to question whether Attorney General Barr's intent was to create a one-sided narrative about the Mueller Report — a narrative that is clearly in some respects substantively at odds with the redacted version of the Mueller Report." (Elec. Privacy Info. Ctr. v. US Dept. of Justice, No-19-810 RBW, slip op. p. 17-18 (D.D.C. Mar 5, 2020)

Judge Walton could not reconcile "certain public representations made by Attorney General Barr with the findings in the Mueller Report." The inconsistencies caused him "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." (Op. p. 19)

The court's Mar. 5, 2020 rebuke came a year too late. As Jonathan Swift wrote more than two centuries ago, "Falsehood flies, and truth comes limping after it." With Barr's help, Trump created a narrative that was at odds with the evidence set forth in Mueller's report. Barr had fired his first bullet at the rule of law and it was a bulls-eye.

But lies and false spin were just Barr's opening gambit. Trump wanted the entire investigation discredited — destroyed root and branch. Barr quickly weaponized the Justice Department. He used his prosecutorial powers as a vehicle to pursue Trump's attacks on those responsible for launching the investigation in the first place.

In a revealing exchange on May 1, 2019, Sen. Kamala Harris (D-CA, California-Hasting, '89) asked Barr if "the president or anyone at the White House ever asked or suggested that you open an investigation of anyone."

Barr stuttered, stammered, and asked her to repeat the question.

"It seems you'd remember something like that and be able to tell us," she pressed.

"I'm trying to grapple with the word 'suggest,'" Barr said. "I mean there have been discussions of, of matters out there, that, uh, they've not asked me to open an investigation."

"Perhaps they suggested?" Harris offered.

"I don't know. I wouldn't say 'suggest'," Barr hesitated.

"Hinted?" she continued.

"I don't know," he replied.

"Inferred?"

Barr didn't answer.

"You don't know," Harris said.

"No," Barr mumbled.

Delegitimizing the Investigators

Sen. Harris might have sensed where Trump and Barr were heading. Unable to erase the proof that Mueller had found, they focused on undermining the investigation itself as illegitimate and attacking the investigators as "corrupt."

Immediately after Trump fired FBI Director James Comey in May 2017, acting Director Andrew McCabe (JD, Washington Univ. – St. Louis, '93) authorized the Trump-Russia counterintelligence probe. Two years later, McCabe became a poster child for Trump and Barr's abuse of power. Even prior to Barr's appointment, a team of prosecutors had investigated whether McCabe had lied to investigators about improper media leaks concerning an FBI investigation into the Clinton Foundation. Those prosecutors concluded that they could not win a conviction, so Trump's chosen US attorney for the District of Columbia, Jessie Liu (JD, Yale, '98), brought in another team to go after McCabe.For months, Liu's office asked the judge handling the matter — U.S. District Court Judge Reggie Walton once again — for more time. By then, Barr was the attorney general. In a closed-door session on Sept. 30, 2019, Walton warned prosecutors to stop stringing McCabe along:

"I don't think people like the fact that you got somebody at the top basically trying to dictate whether somebody should be prosecuted. I just think it's a banana republic when we go down that road…"

Judge Walton added, "I just think the integrity of the process is being unduly undermined by inappropriate comments and actions by people at the top of our government. I think it's very unfortunate. And I think as a government and as a society we're going to pay a price at some point for this." (9/30/2019 Tr., p. 5)

Eventually, the case against McCabe fell apart again and a grand jury refused to indict him. But for months, Barr left McCabe twisting in the wind of legal uncertainty. Once again, defenders of the rule of law rose to the challenge. The Citizens for Responsibility and Ethics in Washington (CREW) won a court order requiring the release of the devastating Sept. 30 transcript of Judge Walton's earlier comments. On Feb. 14, 2020 — the day that transcript became public — the Justice Department finally informed McCabe that he would not face charges.

As Barr's efforts to investigate the investigators failed to produce Trump's desired outcome, he assigned new teams to keep trying. For example, Mueller had concluded that the FBI had opened its Trump-Russia investigation appropriately in late July 2016. (Mueller Rep., Vol. I, pp. 88-89, fn. 465) Despite knowing Mueller and claiming to respect him as a friend and colleague for years, Barr appointed U.S. Attorney John Durham (JD, Connecticut, '75) to second-guess that finding. Barr also asked foreign leaders in the United Kingdom and Italy for help in gathering information that Trump hoped would discredit Mueller's work. Trump personally made such a request of the Australian prime minister.

Likewise, in December 2019, the Justice Department's inspector general, Michael Horowitz (JD, Harvard, '87), completed an 18-month investigation into the origins of the Trump-Russia investigation. Although his 400-page report found that the FBI had adequate reasons for opening the probe, Barr nevertheless asserted that the FBI's reasons were insufficient and publicly attacked Horowitz's conclusion.

Undermining the Convictions

Finally, beyond using the power of his office to pursue Trump's perceived enemies, Barr has deployed the Justice Department to help Trump's convicted friends. It was the final step in wiping the Russia investigation from the history books altogether. But Barr's manipulations also have profound implications for the rule of law.

When Mueller closed up shop in 2019, then-U.S. Attorney Liu (whose office supervised the McCabe investigation) assumed control of several special counsel prosecutions and earlier referrals, including cases against Roger Stone and Mike Flynn. But after Liu failed to get McCabe indicted, Barr replaced her with his old friend and confidant, Timothy Shea (JD, Georgetown '91) — just as the Justice Department was finalizing its sentencing recommendation in Stone's case.

In 2017, Stone had lied to the House Intelligence Committee about his role concerning Trump campaign contacts with Russia. Then he threatened a witness who was going to expose him. A jury deliberated for about seven hours before convicting Stone on all seven counts of lying to Congress and witness tampering.

As Shea replaced Liu in the District of Columbia U.S. attorney's office, career prosecutors handling Stone's case filed a brief that followed federal sentencing guidelines recommending seven to nine years in prison. Immediately, Trump tweeted that Stone's plight was "horrible," "unfair," and a "miscarriage of justice." Hours later, an official at Justice Department headquarters said that the DC office's recommendation was "extreme" and "excessive" and that a new memorandum would outline the government's revised position.

Defending the rule of law, four of the federal prosecutors who signed the sentencing memorandum resigned immediately from the case. Jonathan Kravis (Yale, JD, '04) — one of Stone's prosecutors at trial — resigned from the Justice Department altogether. That left Shea and his assistant who was newly assigned to the Stone case to file a revised memorandum asserting that the government's previously recommended sentence "could be considered excessive and unwarranted."

The following day, Trump congratulated Barr for "taking charge" of the Stone case, "which perhaps should not even been brought."

Defenders of the rule of law fought back. Appearing on national television, the former chief of the criminal fraud section of the Justice Department, Andrew Weissmann (JD, Columbia, '84) — an appointee of President George H. W. Bush — said he could think of no instance where he had even heard of the attorney general reaching into a single criminal case to weigh in on a sentencing submission. Former Attorney General Eric Holder (JD, Columbia, '76) called Barr's direct intervention "unprecedented, wrong, and ultimately dangerous."

"Public confusion was the objective, because it led to public indifference"

The most damning criticism came from Donald Ayer (JD, Harvard, '75), who had served as President George H. W. Bush's deputy attorney general and Barr's boss at one point. On Feb. 17, 2020, Ayer wrote in The Atlantic:

"All of this conduct — including Barr's personal interventions to influence or negate independent investigations or the pursuit of criminal cases, and his use of the department's resources to frustrate the checks and balances provided by other branches — is incompatible with the rule of law as we know it…"

Ayer concluded: "Bill Barr's America is not a place that anyone, including Trump voters, should want to go. It is a banana republic where all are subject to the whims of a dictatorial president and his henchmen. To prevent that, we need a public uprising demanding that Bill Barr resign immediately, or failing that, be impeached."

Trump and Barr were undeterred. Trump attacked Stone's judge, Amy Berman Jackson (JD, Harvard, JD '79), calling her "the Judge that put Paul Manafort in SOLITARY CONFINEMENT, something that not even mobster Al Capone had to endure." That was another Trump lie. Prison officials had made the decision about Manafort's federal housing. But Barr did not defend Jackson against Trump's attack, and the Judicial Code of Conduct prevented her from defending herself.

Instead, Barr gave an interview during which he sent Trump a message — the tweets were making it "impossible" for him to do his job. Since then, Barr's view of his job has become even clearer: obliterate all trace of the Russia investigation. Mike Flynn became a stunning example of Barr's methods.

Moving to Drop Charges After a Guilty Plea

On Dec. 1, 2017, Flynn pled guilty to lying to the FBI about his conversations with the Russian ambassador during the presidential transition and agreed to cooperate with prosecutors. On Dec. 18, 2018, he again acknowledged his crimes in open court. Judge Emmett G. Sullivan (JD, Howard Univ., '71) did not hide his disgust.

"[Y]ou lied to the FBI about three different topics, and you made those false statements while you were serving as the national security advisor, the President of the United States' most senior national security aid. I can't minimize that," the judge said. "Two months later you again made false statements in multiple documents filed pursuant to the Foreign Agents Registration Act. So, all along you were an unregistered agent of a foreign country, while serving as the national security advisor to the President of the United States. I mean, arguably, that undermines everything this flag over here stands for. Arguably, you sold your country out."

But after Barr became attorney general two months later, he appointed the U.S. attorney in St. Louis, Jeff Jensen (JD, St. Louis Univ., '98), to review Flynn's case. In June 2019, Flynn retained new a lawyer — Sidney Powell (JD, North Carolina, '78), a far-right conspiracy theorist. Powell wrote directly to Barr, urging him to conduct an internal review and throw out Flynn's conviction. A week later, Trump congratulated Flynn for retaining Powell, tweeting that she was a "GREAT LAWYER."

Shortly before the July 2019 trial at which Flynn was supposed to be a cooperating witness against his former business associate, he suddenly became uncooperative and prosecutors did not call him to testify. Powell then asked Judge Sullivan to nullify Flynn's conviction on the grounds that prosecutors had engaged in misconduct — claims that the judge rejected. As Flynn's sentencing approached in early January 2020, prosecutors withdrew their earlier recommendation of probation and urged Flynn's incarceration for as long as six months.

As with Roger Stone, things then changed abruptly and mysteriously in Flynn's favor. And as with Stone, Barr and his confidant, interim US Attorney for the District of Columbia Timothy Shea, made it happen. On May 7, Shea's office took the unprecedented step of moving to drop all charges against Flynn. Shea alone signed the motion with no line prosecutors joining. It included no affidavits or declarations supporting its many new factual allegations. No motion to vacate the government's prior, contrary filings and representations accompanied the filing.

The defenders of the rule of law stepped forward again. One of Flynn's prosecutors withdrew from the case and Judge Sullivan invited amicus briefs on the unusual motion. Then he assigned a former federal judge to oppose the Justice Department's move and to determine whether Flynn should be found in criminal contempt for lying to the court when he had pled guilty — twice.

Flynn's attorney sought a writ of mandamus in the District of Columbia circuit court of appeals. That, in turn, forced Judge Sullivan to hire an attorney, Beth Wilkinson (JD, Virginia, '87), to answer the mandamus petition. The circle was complete: A judge defending the rule of law now needed his own lawyer to defend himself.

In her brief on Judge Sullivan's behalf, Wilkinson wrote, "It is unprecedented for an Acting U.S. Attorney to contradict the solemn representations that career prosecutors made time and again, and undermine the district court's legal and factual findings, in moving on his own to dismiss the charge years after two different federal judges accepted the defendant's plea."

What began in March 2019 with Barr's false spin and outright lies to assuage a president's obsession with the Russia investigation had exploded into a multidimensional assault on the rule of law itself. No limiting principle has guided Barr's abuses, but he has encountered resistance. Individually and together, attorneys — especially litigators — have stepped forward:

More than 1,000 former federal prosecutors from Republican and Democratic administrations signed an open letter stating that, but for the fact that Trump was a sitting president, Mueller's proof would have led to Trump's indictment for obstruction of justice.

In connection with Roger Stone's sentencing, more than 2,600 former prosecutors and other DOJ attorneys from Republican and Democratic administrations signed an open letter condemning Barr for "interference in the fair administration of justice," "openly and repeatedly flouting" the fundamental principle of "equal justice under law," and calling on Barr to resign. They wrote, "Governments that use the enormous power of law enforcement to punish their enemies and reward their allies are not constitutional republics; they are autocracies."

The president of the New York State Bar Ass'n issued a statement saying, "The intervention by senior Department of Justice officials in the sentencing of Roger Stone is an assault on a bedrock principle of the rule of law — the apolitical administration of justice. Our nation was founded on the principle that everyone must be treated equally in the eyes of the law…"

More than 2,000 former Justice Department officials from Republican and Democratic administrations signed an open letter stating that Barr had "once again assaulted the rule of law" in seeking the dismissal of Flynn's case. "Attorney General Barr's repeated actions to use the Department as a tool to further President Trump's personal and political interests have undermined any claim to the deference that courts usually apply to the Department's decisions about whether or not to prosecute a case," they wrote.

Judge Sullivan and the appeals court received numerous amicus briefs supporting the district court's exercise of judgment when deciding whether to accept the government's motion to dismiss the federal criminal charges against Flynn. Filings in support of the judge came from former federal judges, former Watergate prosecutors, legal scholars, and the New York City Bar Ass'n.

ABA President Judy Perry Martinez issued a statement declaring, "Public officials who personally attack judges or prosecutors can create a perception that the system is serving a political or other purpose rather than the fair administration of justice. It is incumbent upon public officials and members of the legal profession, whose sworn duty it is to uphold the law, to do everything in their power to preserve the integrity of the justice system."

What's next? Federal judges enjoy lifetime tenure that prevents Trump from purging the bench of his perceived judicial enemies. But Trump and his key Senate enabler with a law degree, Sen. Mitch McConnell (JD, Kentucky, '67), have boasted about filling federal judgeships at a brisk pace. Those judges must demonstrate their independence. With their actions, they have a unique opportunity to reaffirm that "equal justice under law" and "no one is above the law" are not empty platitudes, but guiding principles of our democracy.

Pundits often understate Barr's conduct as violating "norms." It is more accurate to say that he and Trump are at war with the rule of law. Federal judges and litigators throughout the country have become first-responders in the fight. The front lines have formed in courtrooms throughout the country, but lawyers away from the immediate field of battle are also making a difference.

So which side are you on?

In this war, there are no bystanders.

This article appears in the Fall 2020 issue of Litigation – The Journal of the Section of Litigation of the American Bar Association.

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