Originally posted on July 12, 2020

As part of my research into the Roger Stone pardon I chanced upon a more complete listing of Trump’s pardons. In what should be no surprise, Trump’s use of his pardoning powers has been unprecedented for at least three reasons.

The first of these is the relatively few pardons he has (at least, so far) given – a total of 36. Obama gave 963, Bush 100, and Clinton 229. You’d have to go back to Washington and Adams to find presidents who have given fewer. Perhaps on his last day in office he’ll issue some more.

The second is that all other presidents have generally gone through the Department of Justice’s Pardon Attorney, who reviews cases and makes recommendations. The president isn’t required to do so – his power to pardon or commute is absolute and guaranteed by the constitution. Exceptions tend to be controversial though, like Clinton’s pardon of Marc Rich. Of Trumps’ 36 pardons/commutations, only 5 have apparently gone through this office, and all 5 of them were done on the same day. No other president has a ratio even close to this low.

Third, and in what should be no surprise, the remaining 31 of Trumps pardons/commutations, the ones not reviewed by the pardon attorney, involve people who had some connection to Trump himself or to his sense of self-importance. In the listing referenced above they used the following 4 criteria:

• Did it advance a clear political goal of the president?
• Did the person who was pardoned have a personal connection to Trump or someone Trump knows well?
• Was the person who was pardoned brought to the President’s attention by television or a television commentator?
• Was the pardon based on Trump’s admiration for celebrity?

They also referenced a chart that details all 36. Here’s a pdf backup.

Originally posted on July 11, 2020

Roger Stone is a long-time dirty trickster who most recently helped Trump win in 2016 by, among other things, coordinating the Wikileaks’ release of the Podesta and Clinton emails. Robert Mueller investigated him as part of the investigation into Russian interference in Trump’s 2016 election victory. He lied and threatened other witnesses and was convicted on all charges in November 2019 and sentenced to prison.

This treatment of a loyal ally has always rubbed Trump the wrong way. More recently he’s been tweeting about it, i.e.

So, late last Friday night (when it would be least noticed) Trump commuted Stone’s prison sentence. Notice that he didn’t pardon Stone. So Stone is still a convicted seven-time felon. The difference? If Trump had pardoned Stone, then Stone could be compelled to testify against Trump at the risk of being held in contempt of court – after all, the only reason you can not answer questions is self-incrimination, and if you’ve been pardoned that’s no longer applicable. And Stone has made comments that indicate he has a lot more information that he has so far refused to reveal. And Trump has rewarded him for his loyalty. This is apparently what Trump means by “law and order”. My ass.

Reaction was swift and almost universally condemned the commutation. Most interesting was Robert Mueller, who has largely been silent as Trump and Barr have worked to undo most of the convictions he obtained. No longer. Here’s the paragraph that stood out to me.

Congress also investigated and sought information from Stone. A jury later determined he lied repeatedly to members of Congress. He lied about the identity of his intermediary to WikiLeaks. He lied about the existence of written communications with his intermediary. He lied by denying he had communicated with the Trump campaign about the timing of WikiLeaks’ releases. He in fact updated senior campaign officials repeatedly about WikiLeaks. And he tampered with a witness, imploring him to stonewall Congress.

And Stone is not the first Trump associate to benefit from Trump’s sense of law and order. He and Barr have also interfered in the Flynn case. Trump is also the first president to pardon a murderer.

We all know that Trump only considers himself and his approach to “law and order” should be understood in that light. If the law is on his side, it’s legal; if not, it’s illegal.

Originally posted on June 25, 2020

While researching the Berman debacle, I was reminded that this was not the first time Barr/Trump have played games with U.S. Attorneys. Along with the SDNY in New York City, the D.C. office in Washington D.C. is the main office where politics-inspired crimes are likely to be investigated. The D.C. office is also the largest district office, with about 300 prosecutors.

Jessie Liu became the U.S. Attorney in D.C. in September 2017. Before that she had a long career in both private and government legal circles. She was a Trump supporter, working on his transition team after his election. While serving as the U.S. Attorney she oversaw a number of, say we say, politically-sensitive cases.

The Mueller investigation had spun off a number of cases, including Roger Stone and Andrew McCabe. In both of these she went against the wishes of Trump: she didn’t interfere to save Stone and she exonerated McCabe. Obviously, she had to go. Trump transferred her to the Treasury Department and then pulled her nomination there, leaving her unemployed. Nice work.

She was replaced by Timothy Shea, who was a Barr confidant. Shea was just interim, only serving from February to May 2020. Just long enough to call for the dismissal of charges against Michael Flynn and pressure prosecutors for a lighter sentence for Roger Stone. Shea in turn was replaced in May 2020 by yet another interim Attorney, Michael Sherwin. He was best known for obtaining the conviction of a Chinese woman for trespassing at Mar-A-Lago.

Career attorneys are really getting fed up with the injection of politics into the Department of Justice. And this was before Berman’s firing in June 2020. One has to wonder just how deep the rot goes.

Originally posted on June 24, 2020

Several days ago Barr/Trump (they’re both blaming each other, sort of) fired Geoffrey Berman, the lead attorney in the Southern District of NY office. The firing didn’t go well, and no good reason for his firing has been forthcoming. I posted in it earlier and the intervening four days have given me a chance to look more closely at it.

Some history is needed. The SDNY is noted for its prominence (Manhattan) and its independence. When Trump was elected one of his first acts was to request resignation letters from all the district attorneys, including the SDNY’s attorney: Preet Bharara. Bharara declined to do so and was fired in March 2017. In January 2018 Jeffrey Sessions, then the Attorney General, appointed Berman as the U.S. attorney at SDNY. But Trump never formally submitted Berman’s name to the Senate for confirmation. After a statutory waiting period, the judges of the SDNY appointed him “permanently” in April 2018.

The law gets confusing here. Since Berman was appointed by the courts, not by Trump’s administration, there’s some thought that Trump’s administration can’t fire him. There’s other laws that say no matter, they can. When Barr put out the false announcement of Berman’s resignation Berman came back quite strongly denying that he had resigned. I’m guessing that Barr’s plan was to get Berman to go peacefully, even though it isn’t clear why he thought Berman would. The two of them had earlier that day discussed Berman getting a “promotion” to some assistant/associate deputy job, and maybe Barr thought they had reached an agreement. Apparently they hadn’t.

Also part of Barr’s plan was to temporarily replace Berman with Craig Carpenito, the United States Attorney in New Jersey, will serve as acting US attorney in New York, apparently to be followed by the president nominating Jay Clayton to succeed Berman. Clayton is currently the SEC Chairman but has never served as a prosecutor.

There’s lots to speculate about here. The original Barr message was issued late on Friday, the traditional time to announce stuff you want the public to not notice. Eventually, on Saturday, Berman announced he would in fact step down.

But this is where Barr’s plan seems to have gone off the rails. Barr’s chosen temporary replacement, Carpentino, is not moving to SDNY. Instead, Berman’s current deputy, Audrey Strauss, will serve as interim head of SDNY. Strauss is widely respected, was recruited by Berman, and may be even more independent than Berman, who was a registered republican and donated to Trump’s campaign. Strauss is a registered democrat and has contributed to a number of democratic candidates.

Perhaps even worse, she serves until Clayton is confirmed by the Senate. Lindsay Graham, the chairman of the judiciary committee and a Trump acolyte, has indicated that he will let New York’s senators exercise their traditional prerogative of vetoing Clayton’s nomination. They, democrats Schumer and Gillibrand, have lost no time doing so.

So whatever Barr was intending, it didn’t turn out that way. Berman must still have had some leverage, even after being fired. I’m guessing that Berman told Barr he would fight the firing on the basis of his court appointment. Berman would likely lose in the end, but in the meantime the whole affair would be in the news, and likely wouldn’t be resolved by the courts until months passed, potentially after the election.

But why, and why the timing? The White House has said it was a essentially a patronage deal. Clayton apparently wanted to move to NYC and Barr/Trump needed to create a suitable position for him. That’s the most favorable explanation, but even that doesn’t completely jell. The main problem is that this type of deal typically is done at the start of one’s term, not 5 months before the potential (and looking more likely) end of one’s term. Clayton would move, only to be dismissed in January?

And who is Clayton? Along with running the SEC, he is one of Trump’s golfing buddies. One can only wonder what enforcement actions he would take if, for example, Trump or Trump’s family or Trump’s friends were doing insider trading based on advance knowledge of Trump’s tweets.

Another explanation is that the SDNY was known to be pursuing several cases against Trump supporters, including Giuliani. Perhaps one of those cases was close to becoming public and changing lead attorneys would certainly delay such a case while the new guy got up to speed.

Yet another explanation is that Trump is continuing his practice of eliminating anyone who isn’t loyal enough, and Berman certainly wasn’t. Perhaps this was mixed in with pure retribution, another Trump trait.

Reaction has been unanimously negative, or at least I’ve not yet seen any opinions supporting Barr’s actions. The NYC Bar. The Atlantic. Even Fox News.