Category: Attack the Judiciary

Barr appoints outside prosecutor to review criminal case against Michael Flynn

Attorney General William Barr has appointed an outside prosecutor to review the criminal case of former national security adviser Michael Flynn, who is awaiting sentencing after pleading guilty to lying to the FBI, an official familiar with the matter said Friday.

Barr has tapped Jeffrey Jensen, the chief federal prosecutor in St. Louis, to conduct the review. Flynn and his attorneys have sought to withdraw his guilty plea, claiming the FBI and federal prosecutors engaged in misconduct.

Flynn’s case was one of the first brought by former special counsel Robert Mueller as part of the investigation into Russia’s interference in the 2016 presidential election and possible ties to the Trump campaign.

The development, first reported by The New York Times, caps off a controversial week for the Justice Department as the agency faces allegations it has succumbed to political pressure from President Donald Trump.

The Justice Department caused an uproar earlier this week after it intervened to reduce its recommended prison sentence for Roger Stone, a longtime friend and ally of Trump who was convicted of seven felonies, including lying to Congress. Career prosecutors who handled the case had asked for a sentence of seven to nine years in prison, which Trump said was a “miscarriage of justice.” 

The Justice Department overruled the attorneys, saying the prison recommendation was too harsh. The prosecutors withdrew from Stone’s case in apparent protest. One resigned from the Justice Department. 

In an interview with ABC News, Barr pushed back against criticism that he was doing Trump’s bidding. The president “has never asked me to do anything in a criminal case,” he said. 

But the fast-moving developments have cast a harsh spotlight on the Justice Department’s leadership, primarily Barr, and have raised fresh questions about the department’s independence from the White House. 

Flynn is scheduled to be sentenced Feb. 27. He pleaded guilty in 2017 to lying to the FBI about his communication with Sergey Kislyak, a former Russian ambassador to the U.S., in the weeks before Trump took office.

Flynn’s case has been stalled in federal court for two years as his defense team alleges the former Army general was framed in a government conspiracy. Last month, Flynn withdrew his guilty plea, accusing prosecutors of acting in “bad faith” during their investigation. 

His defense team, led by conservative lawyer and Fox News commentator Sidney Powell, declared his innocence. Flynn’s attorneys accused the government of forcing him to admit to crimes he didn’t commit and hiding evidence that would’ve exonerated him. A federal judge has rejected those claims. 

Flynn’s attorneys did not respond to calls seeking comment.

The government initially recommended Flynn be sentenced to six months in prison, citing his attempts to “thwart” prosecutors and his “apparent failure to accept responsibility.” 

Federal prosecutors later softened their position, suggesting that probation is also an “appropriate” sentence for Flynn.

Barr’s decision to tap outside prosecutors to review Flynn’s case comes as the Justice Department conducts another politically charged inquiry into the origins of the FBI’s investigation into Russian interference in the 2016 election. That probe led to the criminal charges against Flynn and cast a cloud over the first years of Trump’s presidency. 

That inquiry, which Barr launched last year, focuses on whether federal investigators abused their surveillance authority in the initial stages of the Russia investigation. John Durham, Connecticut’s chief federal prosecutor, is leading the investigation.

Also this week, the Justice Department decided not to file criminal charges against former FBI deputy director Andrew McCabe, one of several former FBI officials who have been the target of Trump’s attacks. 

The investigation into McCabe stemmed from a Justice Department Inspector General’s report that found he improperly authorized a leak about a federal investigation into the Clinton Foundation in the final weeks of the 2016 presidential campaign. Investigators concluded he displayed a lack of candor when asked about the leak. 

[USA Today]

Trump lashes out with a dangerous lie at the federal judge overseeing Roger Stone’s case

President Donald Trump lashed out Tuesday night at Amy Berman Jackson, a federal judge who has overseen several key cases that arose from former Special Counsel Robert Mueller’s investigation. She is currently presiding over the case against longtime Trump friend Roger Stone, who is due to be sentenced soon after being found guilty of lying to Congress and attempting to impede its Russia investigation.

In response to a tweet naming Jackson, Trump tweeted: “Is this the Judge that put Paul Manafort in SOLITARY CONFINEMENT, something that not even mobster Al Capone had to endure? How did she treat Crooked Hillary Clinton? Just asking!”

Judge Jackson did send Manafort to prison ahead of his trial in the summer of 2018, finding that he had violated the terms of his release. But judges do not determine the conditions prisoners are kept in; those decisions are made by the prisons and jails that house inmates.

And despite his lawyer’s claims that Manafort was in solitary confinement, prosecutors described his conditions as far more accommodative than is usually imagined when the term is invoked. As Vox reported, a filing from Special Counsel Robert Mueller’s team said his conditions included:

  • Manafort “is not confined to a cell”
  • Between 8:30 am and 10 pm, Manafort “has access to a separate workroom at the jail to meet with his attorneys and legal team”
  • He has “his own bathroom and shower facility”
  • He has “his own personal telephone,” which he can use more than 12 hours a day
  • Those calls are limited to 15 minutes each, but when they cut off, he can just call the person back immediately
  • He’s made nearly 300 phone calls in the last three weeks
  • He has a personal laptop he can use in his unit to review materials and prepare for his trial
  • He was provided an extension cord to let him use his laptop in either his unit or his workroom
  • He’s not allowed to send emails, but he “has developed a workaround” for even that — his legal team brings in a laptop, he drafts the emails on that laptop, and they send them out after they leave.
  • He’s being treated like a “VIP,” according to his own account on a monitored phone call.

Jackson noted at one hearing that Manafort was later moved to another jail in Alexandria, Virginia, because of his team’s complaints. CNN explained:

She said Manafort “realized the tactic had backfired immediately.” He was in a self-contained (“VIP”) suite in Northern Neck, Jackson added.

“I’m not going to split hairs over whether the word solitary was accurate because he had a room of his own,” Jackson said.

What Manafort’s detention quarters looks like now: Now he’s in protective confinement, not technically solitary. He has a window, radio, newspapers and view of TV. He’s released for a few hours a day to walk around and be with other people

“Mr. Manafort, I don’t want to belittle or minimize the discomforts of prison for you. It’s hard on everyone, young and old, rich or poor,” she said.

In short, Trump’s attack on Jackson was a lie.

It was also extremely dangerous. Jackson’s high-profile cases have already left her vulnerable to public threats; Stone himself posted a disturbing image of the judge ahead of his trial. And Trump’s efforts to attack a judge online are at least an order of magnitude worse. His fans have been known to target the subjects of his public rebukes before, most notably in the case of Cesar Sayoc, who sent pipe bombs to Trump’s perceived enemies. The fact that he is tossing out such inflammatory attacks ahead of his friend’s sentencing in another extreme assault on the rule of law.

[Alternet]

DOJ set to lower Stone sentencing recommendation that was criticized by Trump

The Department of Justice (DOJ) on Tuesday is reportedly expected to change its sentencing recommendation for Roger Stone a day after telling a federal judge the Trump associate should serve between seven and nine years in prison, guidance that was sharply criticized by President Trump.

Department officials found prosecutors’ initial recommendation “excessive,” according to multiple news outlets, including The Washington Post, Fox News and The Associated Press, citing an anonymous department source.

Reports of the expected change came after Trump denounced the recommended prison term as “horrible and very unfair” in an early Tuesday morning Tweet.  

“The real crimes were on the other side, as nothing happens to them. Cannot allow this miscarriage of justice!” Trump said, sharing a message from a Daily Caller reporter about Stone’s prison sentence.

Stone, a 67 year-old right-wing provocateur, was convicted in November of seven counts of obstructing and lying to Congress and witness tampering related to his efforts to provide the Trump campaign inside information about WikiLeaks in 2016.

Stone is scheduled to be sentenced on Feb. 20 by D.C. District Judge Amy Berman Jackson, an Obama appointee.

Prosecutors recommended in a Monday filing that Stone serve between 87 and 108 months in prison in accordance with federal guidelines.

“Roger Stone obstructed Congress’s investigation into Russian interference in the 2016 election, lied under oath, and tampered with a witness,” the DOJ court filing reads. “And when his crimes were revealed by the indictment in this case, he displayed contempt for this Court and the rule of law.”

Department prosecutors wrote that a sentence of up to nine years would “accurately reflect the seriousness of his crimes and promote respect for the law.”

Stone’s attorneys in a Monday night filing asked that the judge impose probation as an alternative to prison.

A Stone lawyer on Tuesday said the legal team had “read with interest” the new reporting on the DOJ’s shifting position.

“Our sentencing memo stated our position on the recommendation made yesterday by the government,” attorney Grant Smith told The Hill. “We look forward to reviewing the government’s supplemental filing.”

The department will reportedly clarify its recommendation on Stone’s sentencing later Tuesday.

[The Hill]

Trump hits ‘political hacks in New York’ after settling Trump Foundation lawsuit

President Trump on Thursday lashed out at New York’s Democratic attorney general, accusing Letitia James of “deliberately mischaracterizing” a settlement in a lawsuit involving his charity for “political purposes.”

“I am the only person I know, perhaps the only person in history, who can give major money to charity ($19M), charge no expense, and be attacked by the political hacks in New York State. No wonder why we are all leaving!” Trump said in a statement issued on Twitter Thursday evening. 

“Every penny of the $19 million raised by the Trump Foundation went to hundreds of great charitable causes with almost no expenses. The New York Attorney General is deliberately mischaracterizing this settlement for political purposes,” the president continued.

A Manhattan judge earlier Thursday ordered Trump to pay $2 million to nonprofit groups as part of a settlement in a civil lawsuit filed by the New York attorney general’s office last year that alleged he used his charity’s funds for personal and political means. The dispute centered on $2.8 million raised by the Trump Foundation at a 2016 fundraiser for military veterans.

Manhattan Supreme Court Justice Saliann Scarpulla ruled Thursday that Trump “breached his fiduciary duty to the Foundation” by allowing “his campaign to orchestrate the Fundraiser, allowing his campaign, instead of the Foundation, to direct distribution of the Funds, and using the Fundraiser and distribution of the Funds to further Mr. Trump’s political campaign.”

Scarpulla said that she ordered Trump to pay $2 million in damages rather than $2.8 million — the amount the attorney general had argued for — because the funds ultimately reached their intended destinations, veterans charities.

The lawsuit, filed by then-New York Attorney General Barbara Underwood in June 2018, named Trump, his three eldest children and the Trump Foundation and alleged violations of campaign finance law.

Trump on Thursday attacked James as well as Underwood and her processor, Eric Schneiderman, who resigned amid accusations of physical abuse. Trump accused them of targeting him for political purposes.

Trump also criticized James for not investigating the Clinton Foundation — the charity founded by his former 2016 Democratic presidential rival, Hillary Clinton, and former President Bill Clinton.

“It has been 4 years of politically motivated harassment – first by lightweight AG Schneiderman, prior to his resignation for beating up women – then AG Underwood, who was impossible to deal with, and now AG Letitia James, who does not acknowledge that we gave 100% of the funds to great charities, but refuses to investigate the Clinton Foundation with all of its problems,” Trump said.  

Trump also said he would be “happy to donate” $2 million to eight charities, namely Army Emergency Relief; Children’s Aid Society; City Meals on Wheels; Give an Hour; Martha’s Table; United Negro College Fund; United Way of Capital Area; and the U.S. Holocaust Memorial Museum.

Thursday’s order came after the foundation agreed in December to dissolve under court supervision as part of agreement with the state attorney general’s office. In the order, Scarpulla wrote that the parties agreed to a “consensual resolution of the bulk of this proceeding” in October that left it up to her to determine the amount Trump would pay in damages.  

James positioned the order as a major victory for her office. 

[The Hill]

The DOJ sent immigration court employees a link to a racist and anti-Semitic blog post attacking immigration judges

The Justice Department sent immigration court employees an email this week that linked to an article attacking immigration judges with offensive and anti-Semitic slurs, BuzzFeed News reported on Thursday.

The article was posted on the white nationalist website VDare, which routinely traffics in racist and anti-immigration rhetoric and has explicitly targeted immigration judges in the past.

Ashley Tabbador, the head of the National Association of Immigration Judges, said in a letter to the Justice Department that the email came from the department’s Executive Office for Immigration Review (EOIR).

Tabbador wrote that the article “directly attacks” immigration judges “with racial and ethnically tinged slurs,” and the label ‘Kritarch,'” according to BuzzFeed. “The reference to Kritarch in a negative tone is deeply offensive and Anti-Semitic,” Tabbador added.

Kritarch is a term derived from the concept of a “kritarchy,” or a society run by judges. It’s referenced in the Old Testament’s Book of Judges as a type of rule in ancient Israel. VDare has repeatedly used the term to pejoratively refer to immigration judges. 

Tabbador called on James McHenry, the head of EOIR, to take action following the dissemination of the article.

“Publication and dissemination of a white supremacist, anti-semitic website throughout the EOIR is antithetical to the goals and ideals of the Department of Justice,” she wrote. She added that the court should withdraw the email and issue an apology to immigration judges.

“Separately, EOIR should take all appropriate safety and security measures for all judges given the tone and tenor of this posting,” she wrote.

The post was sent to immigration court employees as part of a daily briefing that usually includes links to news reports about immigration, BuzzFeed reported.

EOIR Assistant Press Secretary Kathryn Mattingly told Insider in a statement, “The daily EOIR morning news briefings are compiled by a contractor and the blog post should not have been included. The Department of Justice condemns Anti-Semitism in the strongest terms.”

[Business Insider]

Trump Administration Seeks Decertification Of Immigration Judges’ Union

The Justice Department late last week moved to seek the decertification of the union representing hundreds of U.S. immigration judges, ratcheting up a simmering battle over the Trump administration’s immigration enforcement policies.

The department filed a petition Friday asking the Federal Labor Relations Authority to determine whether the certification of National Association of Immigration Judges as the union representing some 440 immigration judges should be revoked “because the bargaining unit members are management officials under the statutory definition,” according to a Justice Department spokesperson.

“This is nothing more than a desperate attempt by the DOJ to evade transparency and accountability, and undermine the decisional independence of the nation’s 440 Immigration Judges,” Judge Ashley Tabaddor, speaking in her capacity as president of the National Association of Immigration Judges, said in an emailed statement. “We are trial court judges who make decisions on the basis of case specific facts and the nation’s immigration laws. We do not set policies, and we don’t manage staff.”

The administration and the immigration judges union have been at loggerheads over a variety of issues, including the judges’ status as employees of the Justice Department. Judges are appointed by the attorney general and they are not part of the independent judiciary. They have publicly argued for their separation from the Justice Department.

Last year, then-Attorney General Jeff Sessions took the unusual step of reviewingsome judicial decisions in the name of reducing the backlog of hundreds of thousands of cases clogging the courts.

Sessions also ordered judges to end the practice of temporarily removing cases from their dockets without issuing decisions, a move known as “administrative closure.”

The Justice Department also imposed a quotasystem on judges, linking the number of cleared cases to their performance evaluations. The judges’ union said the courts need more immigration judges, not assembly-line proceedings.

President Trump has appointed 190immigration judges since taking office. As of June 2019, there are more than 900,000 pending cases in immigration courts, according to the Transactional Records Access Clearinghouse at Syracuse University.

The move to decertify the immigration judges’ union comes as no surprise to many judges.

“Clearly they want to use the judges to ramrod through cases and ramp up deportation regardless of any due process defects their policies have,” said one judge who isn’t authorized to speak for the union and requested anonymity. Without the union, judges would be effectively muzzled and unable to publicly share their views about the courts, the judge added.

This is not the first time the Justice Department has tried to decertify the immigration judges’ union. The Clinton administration sought decertification, but the Federal Labor Relations Authority rejectedthe notion that judges are managers who make policy. But some judges are concerned that the FLRA under the Trump administration would be less sympathetic to the union. 

“It’s absurd that anyone would consider us managers,” said Tabaddor, a judge based in Los Angeles. “We don’t even have the authority to order pencils.”

[NPR]

White House blasts ‘tyranny of a dysfunctional system’ after judge holds Trump asylum restrictions

The White House blasted a federal court’s ruling blocking its proposed restrictions on asylum-seekers and pledged to “pursue all available options” against the finding.

“The tyranny of a dysfunctional system that permits plaintiffs to forum shop in order to find a single district judge who will purport to dictate immigration policy to the entire Nation – even in the face of a contrary ruling by another Federal court – must come to an end,” White House press secretary Stephanie Grisham said in a statement.

U.S. District Judge Jon Tigar issued the preliminary injunction Wednesday evening following a challenge from the American Civil Liberties Union, the Southern Poverty Law Center and the Center for Constitutional Rights.

The rule, which the departments of Justice and Homeland Security announced earlier in July, would disqualify any asylum-seekers passing through another country on their way to the U.S. from applying for asylum.

Tigar called the regulation “arbitrary and capricious” and said it would leave asylum seekers without “a safe and effective alternative via other countries’ refugee processes.”

His ruling came the same day that U.S. District Judge Timothy J. Kelly of the District of Columbia denied a motion to temporarily block the rule in a separate legal challenge, which the White House noted in its statement.

[The Hill]

Trump says he’s considering executive order to force census question

Donald Trump told reporters he is “thinking of” issuing an executive order to force including a question about citizenship on the 2020 Census, according to the White House pool.

Four days ago, the department that oversees the Census, the Commerce department, said it was printing Census forms without the question.

Chaos ensued.

The president said reports that this was happening were fake – even though the Commerce secretary said it was happening – and then a Justice department lawyer had to defend the president’s comment without anyone in the department apparently being briefed on it.

The judge presiding over the case of whether its legal to include a citizenship question in the Census is not happy about how things are playing out.

On Wednesday, just before the Fourth of July holiday, federal district court judge George Hazel convened a call with the attorneys and said:

If you were Facebook and an attorney for Facebook told me one thing, and then I read a press release from Mark Zuckerberg telling me something else, I would be demanding that Mark Zuckerberg appear in court with you the next time, because I would be saying I don’t think you speak for your client anymore.

[The Guardian]

Reality

This would be a constitutional crisis in two ways, first going around the courts, and second the power of the census is given to Congress in Article I while the presidential powers are spelled out in Article II. Trump has no constitutional authority over the census.

Trump attacks judge who blocked border wall plans as ‘Obama activist’

After a federal judge blocked his attempt to build key sections of his border wall with money secured under his declaration of a national emergency, Donald Trump criticised the justice for being an “activist” appointed by Barack Obama.

In what may prove a temporary setback to the president, US district judge Haywood Gilliam Jr’s order, issued on Friday, stopped work from beginning on two Pentagon-funded projects: a section of border barrier spanning 46 miles in New Mexico and another covering five miles in Yuma, Arizona.

Trump inherited barriers covering 654 miles, or about one-third of the border with Mexico, the country he insisted during his 2016 campaign would pay for a border wall but which flatly rejected the idea.

Of the 244 miles of barrier covered by contracts awarded so far, more than half is covered by Department of Defense money. All but 14 miles awarded so far are to replace existing barriers, not extend coverage. Ignoring that, Trump has regularly claimed his wall is being built.

On Saturday, from Japan, Trump pledged to file an expedited appeal.

Echoing other controversial attacks on judges, he tweeted: “Another activist Obama appointed judge has just ruled against us on a section of the Southern Wall that is already under construction. This is a ruling against Border Security and in favor of crime, drugs and human trafficking. We are asking for an expedited appeal!”

While Gilliam’s order applied only to two projects, the judge made clear he felt the challengers were likely to prevail at trial on their argument that Trump was wrongly ignoring Congress’s wishes by diverting defense department money.

“Congress’s ‘absolute’ control over federal expenditures, even when that control may frustrate the desires of the executive branch regarding initiatives it views as important, is not a bug in our constitutional system,” the judge wrote in a 56-page opinion.

“It is a feature of that system, and an essential one.”

It was not a total defeat for Trump. Gilliam, who is based in Oakland, rejected a request by California and 19 other states to prevent the diversion of hundreds of millions of dollars in Treasury asset forfeiture funds to wall construction, in part because he felt they were unlikely to prevail on arguments that the administration skirted environmental impact reviews.

The administration faces several lawsuits over the emergency declaration but only one other seeks to block construction. A judge in Washington DC on Thursday heard arguments on a challenge brought by the House of Representatives that says the money-shifting violates the constitution.

In February, Trump declared a national emergency after losing a fight with the Democratic-led House that led to a 35-day government shutdown. As a compromise, Congress set aside $1.375bn to extend or replace existing border barriers in the Rio Grande Valley, the busiest corridor for illegal crossings.

Trump grudgingly accepted the money, then declared the national emergency in order to siphon money from other government accounts, identifying up to $8.1bn. The funds include $3.6bn from military construction funds, $2.5bn from defense department counter-drug activities and $600m from the treasury asset forfeiture fund.

The Pentagon has transferred the counter-drug money. Patrick Shanahan, the acting defense secretary, is expected to decide soon whether to transfer the military funds. Gilliam’s ruling gives a green light, at least for now, for the administration to tap the treasury funds.

Trump’s adversaries say the emergency declaration was an illegal attempt to ignore Congress. The administration says Trump was protecting national security as unprecedented numbers of asylum-seeking families arrive at the southern border.

[The Guardian]

Trump Retweets Call for Fox News to Take Andrew Napolitano Off the Air

President Donald Trump is calling for Fox News to take one of the networks biggest critics off their air, in a Sunday morning retweet of Twitter User @HH41848213, aka “HowardH” who joined Twitter in 2016 and has roughly 235 followers until today.

The analysis of  Mueller Report drama — and the competing news narratives that have followed suit — has been, for the most part, predictable. That is to say, that media outlets that have been consistently critical of President Trump have amplified evidence of Executive Branch malfeasance, while those that traditionally take a pro-Trump perspective (take Fox New for example) have been quick to promote Trump’s “no collusion, no obstruction” story.

The most notable exception to that pretty hard and fast rule has been Fox News Senior Legal Analyst, Judge Andrew Napolitano, who has consistently demonstrated his independent judicial perspective, much to the disappointment of Trump and his supporters.

Trump’s retweet:

When you look at the continuous incorrect statements by Napolitano over the past 2 years, it is fair to ask FNC why they allow him to have national air time. The man has been significantly wrong on at least 8 major occasions. Unacceptable! Take him off the air!

What has Napolitano said that has raised the ire of the commander in chief? Where to start? His insights have been remarkably critical of Mueller Report findings on Trump’s obstruction of justice, the behavior of Attorney General William Barrand even the curious behavior of Trump son-in-law Jared Kushner.

Donald Trump’s use of Twitter has flouted previous presidential decorum for years. But the retweeting of some rando on Twitter calling for the ostensible firing of the well-respected legal mind of Andrew Napolitano is a new level that we haven’t quite seen before.

[Mediaite]

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