Whether you are against the death penalty or support it, I think you will find last night's main story on John Oliver's show worthwhile. It's about the current standard, lethal injections, and however you feel about death penalty this does not appear to be the most humane way to go about it, and may well be more "cruel and unusual" than even the electric chair was. And remarkable, Oliver and his staff have found a way to make at least some of this bleak story very funny.
We have a new song parody from Randy Rainbow that is most-especially appropriate today, titled "Barr!" The song is written to the tune of "Belle" from Beauty and the Beast. The lyrics are fun, but the particular treat here is that he goes all-out with the production here.
A day after writing about Trump claiming that doctors and parents who the bring a baby to birth and then decide whether or not to "execute" it, it's difficult to build up the same amount of outrage over Attorney General William Barr receiving a letter written by Special Counsel Robert Mueller complaining about Barr having misrepresented his two-year report. And so I won't express the same outrage.
But make no mistake, this is reprehensible and will likely have deep ramifications.
It's not that Mueller and Barr are compatriots. William Barr is in fact Robert Mueller's boss, moreover heading the Justice Department. And so Mueller reprimanding Barr is profound.
Robert Mueller is incredibly tight-lipped, without a slip or even a leak in two years of his investigation. And so Mueller not only speaking out at all, let alone so critically -- albeit in private -- but it getting leaked is profound.
William Barr, having given his intention to not testify before the House, prompting the need for him to perhaps be subpoenaed, coming just days after the release of a letter from Robert Mueller criticizing him, is profound.
Learning of William receiving a letter from Mueller criticizing him just days being scheduled to testifying before the Senate days is profound.
Transcripts which now show William Barr not telling the truth during his earlier Senate testimony -- that came after he had received Mueller's letter which we now know contradict some of his testimony -- is profound.
This is not small matter.
Indeed, this is outrageous. All from the top law enforcement official in the country.
[Update: since writing this, the Mueller letter has now been released to the public, and its criticism of Barr bringing about "confusion" is blunt, making the Attorney General's statements to the Senate under oath all the more clearly misleading.]
I think comments from some in the House about the possibility of impeaching William Barr are not posturing for the camera, but sincere and meaningful. I don't see Barr resigning -- the history of Trump team responses is to double-down and dig in to a hole. And with orders from Trump for his officials to rebuff all calls to testify before the House, including subpoenas, it seems that the administration is pushing the limits of House Democrats into taking actions beyond the polite norm of House etiquette. And if that means issuing Contempt of Congress fines at best or even arrests, let alone impeachment of cabinet officials for greater offenses, I see those possibilities as very real. None of this, after all, comes in a vacuum. It all comes as a part of the Mueller Investigation into Russian efforts to influence the U.S. elections and matters of obstruction of justice, alone with nine guilty verdicts and 36 impeachments, along with the referrals of 14 redacted cases for other jurisdictions. All of which fall on the question not only of further indictments, but the impeachment of the president. And it is not just a House Democrats matter, but those in entire Congress -- including the Senate -- generally respond poorly to being treated with contempt and defied as a separate but equal branch of the government, on general principle but also knowing the precedent it sets. And further, the question of Barr's lying under oath is specifically for his testimony to Senators. It is not just that the House could possibly impeach him, but that even the Republican-led Senate cannot be counted on to not convict the Attorney General for, if it comes to that, refusing a subpoena and perjury.
If the Trump administration sees this as a game they want to play thinking it will work in their favor -- enraging their base and uniting the public for them -- I think that is a big mistake. The base will always be enraged, and it is a small part of the electorate. But stepping outside that vortex, this is not a popular administration, with only a 39% approval. The vast majority of the public indeed believes the Mueller Report and its criticism of Trump. Most of the public wants Trump to release his taxes. And most importantly, almost all people understand the general concept in life of what it means when people refuse adamantly, unrelentingly, aggressively, angrily to provide information that others have all provided without qualm in the past, fight at all costs to keep from personally releasing information, sue their banks from releasing information (as Trump has just done with Deutsche Bank, as well as Capitol Bank and even his accounting firm), even sue to block Congress from getting documents it's entitled to by law, defy subpoenas from Congress, and more. People understand all of that means you have a great deal to hide. People have understood this since the third grade. And people, whatever their political belief, also tend to like that the law is followed -- most especially by the president in charge and the top law official of the country -- not only because in a democracy the concept that "No one is above the law" is foundational, but also because the public understands that following the law provides structure and a functioning system of government and protection, the alternative being anarchy and chaos.
This is the short version, outrage-free. The outraged version would have gone on much longer. And louder.
And so, Attorney General William Barr backtracked a bit from his outrageous and wildly-vilified statement about spying by U.S. intelligence services on the Trump campaign, now trying to say that, no, he wasn't saying that anything illegal was done, just that things should be looked into.
I don't buy his clarification. That's because this is the second time in weeks that he's done this, and it's not only insidious, but also he's a smart man and knows what he's doing.
The first time was when he wrote his summary of the Mueller Report and largely let Trump off the hook, saying that he was exonerated of his deeds, only later after the outrage backtracking by "clarifying" that he wasn't making a summary of the Mueller Report, it was just a letter with his own observations about the report.
And in both instances, not only were the "clarifications" minimal -- though important -- but the damage was already done. In the first case, Trump immediately went on his "Victory Tour" claiming total vindication and setting that as the standard for his base to use. In the second, Trump immediately claimed that his earlier charges of a "witch hunt" were vindicated and that he was glad to see the Attorney General talk about an investigation -- once again allowing his base to again raise the mantel of conspiracies.
And so, the subsequent Barr "clarifications" were close to lost in the morass. Which I'm sure was the intent. Those those "clarifications" were minor, if he had made both those statements in the first place, even the slight difference would have removed any opportunity for Trump to send out marching orders to his base.
I'm not saying that everything Barr did was specifically planned, that he knew there would be outrage and he could count on that to help obfuscate the issue. But I do think that he absolutely knew his initial comments were exactly what Trump wanted to hear and could use, and Barr probably hoped his position of authority would be accepted. But when the widespread reaction from people he himself respected was so livid at how irresponsible and dangerous his comments were, in both instances, he felt obligated to dial them back a bit. But comfortable nonetheless that he'd accomplished what he set out to do.
Which is why I don't buy his "clarifications" Because they are secondary to the acts he intentionally committed, because they are merely part of protecting his own tarnished reputation, not intended to have any political impact. The political impact was already accomplished.
Happily, the reaction to both statements in the legal community and even much of the political arena (even to a slight degree on both sides) was so profound that it did tarnish Barr's reputation, and any words from his pie hole at this point will be met with utter reticence and the kind of scorn reserved for an irresponsible political hack.
And to any who say they are surprised now by Barr, who they thought at least honored the rule of law, I say you were only fooling yourself, because this was a man who helped bury damning evidence of crimes by Ronald Reagan and George W. Bush in the Iran-Contra Scandal. He did it before, and then he wrote a 19-page job application decrying the Special Counsel's investigation. Why on earth was anyone surprised?? Other than blind wishful thinking and unprovoked sunny optimism.
"But he'd been Attorney General before...", people try to suggest, dearly hoping that will give them cover. Yes, he had been Attorney General before -- and look what he did when he was!!! He -- did -- the -- same -- thing -- that -- he's -- doing -- now. ANNNNDDD, on top of that, he then wrote a 19-page treatise telling us he'd do it again.
Color me shocked...
And so...no, I really don't buy his "clarifications." Any of them. And when it happens in the future, all of them.
In a manner of speaking, I think we got the proof yesterday that Trump has major tax fraud in his past. It may be beyond the statute of limitations, but it's unlikely that it stopped there. And the SDNY is investigating it all -- and I suspect Trump is terrified.
The evidence is his sister.
Maryanne Trump Barry has long been a federal judge. But not long ago, there was a charge of judicial misconduct made against her, which came as a result of a major New York Times article that went into great detail about tax fraud the Trump family used in connection with the inheritance from their father. As a result of that charge, an internal judicial investigation was opened. And 10 days later she resigned. Which ended the investigation.
(The charge made wasn't for a federal crime, but dealt with legal ethics. That's why, with her no longer being a judge, there was no reason to investigate her.)
Either that is wildly coincidental and she just happened to resign from a lifetime appointment to the federal bench for no known reasons, or It appears pretty clear that she resigned because she didn't want an investigation into family business over the inheritance, which seemingly dealt with tax fraud. And given that it was likely all a part of the same scheme -- since it not being part of the same fraudulent scheme makes no sense -- then her brother was involved with it all, as well.
As I said, any fraud over the family inheritance is most-probably beyond the statute of limitations. Though I don't know if that fraud has had to be continually perpetuated through the years to the present day. At the very least, people who commit such major fraud for such huge amounts are...well, fraudulent, and what we know publicly about his dealings shows it was only beginning.
What we also now know is that -- remarkably amazing coincidences aside -- that original inheritance fraud was massive enough to get a federal judge to retire to shut down an internal investigation.
Here's the thing --
The SDNY probably noticed. And if they didn't start investigating it themselves after the New York Times report, they probably are now...
There are many things that not only bother me about the Barr Report Summary -- and keep bothering me even more the more I think about them. But at the center of them all is one thing that strikes me as foundational to the problems.
It's when Attorney General William Barr (R-Trump Towers) writes in his summary that a person can't commit Obstruction of Justice if there's no underlying crime. Now, I'm not only not a lawyer, I don't even play one on TV or in print -- and the moment I hear that it immediately struck that it couldn't be right, that it made no sense. A person can lie or cover-up and obstruct prosecutors if he or she doesn't want to talk about something that's perfectly legal (like having an affair, for instance, or It hurts their reputation, or they want to protect someone). So, I couldn't believe that the law the Attorney General said was true -- even though he's the Attorney General, and I type my various thoughts.
So, it was a great comfort to me and my non-existent legal degree that federal prosecutor after federal prosecutor all day yesterday came saying the same thing all day -- that Attorney General Barr was wrong, that there was no such legal principle. That anyone can obstruct justice for any reason, whether there is an underlying crime or not. The most innocent person, they all said, can obstruct justice. (Interestingly, many of these federal prosecutors used the same, famous example -- that Martha Stewart had actually committed no crime, but lied to federal prosecutors about her actions, committing obstruction of justice and going to jail for five months because of it.) That what Attorney General William Barr said is not the law, and he made the chimera up out of thin air and a large dose of obfuscation.
What bothers me so much about this and why I find it almost more problematic than any of the other transgressions in his summary (though it's a close race for #1) is not only because it's not just deceptive, but because he's the Attorney General of the United States and knows it's deceptive, and knows that every lawyer listening knows it's non-existent and deceptive (as well as many non-lawyers, including all those people who went to jail for lying and obstructing justice even though they hadn't committed an underlying crime) but also since the point Barr is making up is so central to the whole investigation. Obstruction of justice.
Obstruction of justice is no small matter here. Trump is on record for firing FBI Director James Comey -- the man in charge of the investigation -- specifically because of "the Russia thing." He fired most of the people he could who had subsequently been in charge at the FBI or had significant positions in the investigation. And when you fire the people who are investigating you, even if you haven't been convicted or just indicted for a crime, you are not only obstructing justice...but your obstruction might be the very reason that the people investigating you have been blocked and unable to conduct a proper investigation and get the actual evidence needed to indict you.
Indeed, obstruction of justice is perhaps the very reason William Barr is currently Attorney General, since he is the man who wrote a 19-page, unsolicited letter in an effort to get his job as Attorney General that argued it was not Constitutionally possible for a president to commit...(let's say it all together now...) obstruction of justice.
And there's the Attorney General lying, making up the most childish, non-existent legal doctrine that if you haven't been convicted of a crime, it's therefore not illegal to lie about it and obstruct justice to keep officers of the law from asking questions.
And it was from that core whitewash lie that Barr's entire manifest summary to protect Trump was built.
If only Martha Stewart's attorneys had known this legal principle at the time!! All her fellow inmates would have been spared the hell having to eat on doilies at every meal for the five months she was in prison.
One of the latest efforts by the Republican Party is to try and blame the college bribery scandal on entitled, liberal Hollywood elites. Meghan McCain did as much on her The View rant the other day when she attempted to paint herself as the victim (yet again) somehow. (I can't quite figure it out, but it involved Hollywood Liberal Elites not considering Arizona State University an Elite College like Yale and Harvard. And no, I'm not kidding.) And all of this effort -- as far as I can tell -- is because two actresses were on the list. So, apparently, in Far Right Conspiracy Theory World that means everyone was a Liberal Hollywood Elite.
What I find remarkable (although not surprising, given the empty state of today's Republican Party, throwing away the concept of morals to support Trump, accused pedophiles, wife beaters, pathological lying, neo-Nazis and more) is how Ms. McCain or most anyone on the far right actually know the political affiliation of all the donors. For all I know, they indeed all are liberals. Everyone of them. It's absolutely possible. Though what is even more possible -- in fact, probable -- is that they aren't. For all I know, 70% are conservative Republicans. (For those keeping score, note that I'm being fair enough to not say that they could all be Republican.)
I don't have a clue who they all are. And most anyone being fair would say the same.
What I can say, and do have a clue of is that --
Among money that can be directly accounted for, at least $220,000 went to Republican entities. Much of that to Mitt Romney, and a lot to the Republican National Committee, the Republican Senatorial Committee, and the Republican Campaign Committee. So, there you have it, and...Oh, okay, wait a moment. Not only that but also Lori Loughlin and her husband donated to Marco Rubio (R-FL) and Mitt Romney (R-UT).
Well, gee, so much for that "Hollywood Liberal Elite Theory." It was really cool while it lasted... (Okay, with today's GOP, I have no doubt that this crackpot, disproven theory will nonetheless continue along with Pizzagate and HillaryIsTheRealOneWhoColludedWithRussia.
To be clear, there were donations to Democratic politicians and Democratic organizations. But then, I'm not someone blaming this all on reactionary Republican wingnuts -- or whatever the opposite is of Liberal Hollywood Elites. (Given that "Liberal Hollywood Elites" is often wink-wink code for "Jews," perhaps the opposite may be simply "Christians." Though again, I'm not blaming the scandal on them. As a fun sidenote, though, I did find a lovely interview with Lori Loughlin on the Christian Broadcast Network website where she talks about balancing her family, work and faith. It's very sweet.) Scrolling through the list, a quick glance appears reasonably split somewhat evenly between political parties.
(Disclaimer: Years ago, I very briefly had an agent who was just starting out. The agent's assistant was Lori Loughlin's sister. We had lunch once, though as personable as she was that was largely the limit of our interaction since she rarely responded to my emails which ultimately was one of the main reasons I left the start-up agency after only about six months, because I thought an assistant returning a client's emails was not an unreasonable expectation, at least as a starting point . I do not blame this on Lori Loughlin. She was busy balancing her family, work and faith.)
In the end, though, I think the only common denominator that we can fairly make about the people who paid bribes to get their children into colleges is that everyone of them were all financially well off. This is the polite term for "rich." So, if Republicans and Meghan McCain truly, honestly want to put the blame on anyone, that might be at least a good place to start.
Not that they will. Because it would give their brand a bad name.
Okay, worse name.
Several friends were disappointed (again) that Paul Manafort didn't get the maximum sentence yesterday aasked me my thoughts. They're similar to what I wrote after the first sentence though with a lot more information now to add to it.
I absolutely am utterly understanding of all the people who wanted Paul Manafort to get the longest sentence that was possible and being disappointed (and a little surprised) it wasn't more. But as I said the other day, I think that's mainly an "I want revenge" attitude, not one related to the law and how it impacts sentences for other people upcoming. In the end, although disappointing that it wasn't more, this is all fine. Not only is 7-1/2 years in federal prison really pretty awful, most especially when you're starting it when 70 years old and used to a grand lifestyle of high-living…but the New York City indictments from the D.A. could bring him up to 16 more years -- and keep in mind that he's already plead guilty to all the facts he was indicted for, which is a pretty high hurdle to overcome. AND there are still likely to be further charges by the New York State Attorney General. AND FURTHER, it's not even certain that Robert Mueller is done with him, and could bring additional federal indictments, this on Russian conspiracy felonies (boy, would Manafort's lawyer be red-faced about that), not just financial crimes. On top of which (yes, there's more!) the U.S. Justice Department petitioned the court for him to pay $25 million in restitution. So, while being bothered that he doesn't already have 30 years in prison and accept that the concept of "May he rot in hell" is very understandable, I can't lose much sleep over his sentence yesterday not being the maximum. Paul Manafort was not celebrating his good luck last night. Yes, I wish Manafort got more. A lot more. More than was even allowed. But his future nonetheless is really very dismal.
But my biggest reaction to yesterday's sentence is focused more on the many other Really Big Names yet to be indicted who are far more complicit in even bigger national crimes than Manafort. And that because (to me) I think the New York City District Attorney may have been even the biggest news. It not only give Manafort potentially more time in prison (up to 16 additional years), but more importantly it had to have given a horrifically bad night to Don Jr., Eric, Ivanka and Jared. And Trump. It not only shows how even New York City -- not just the state -- is going after them, but that the D.A.'s office has already been investigating it and were so prepared that they were ready to go the INSTANT the federal sentencing came down. More than anything, perhaps, it's that blatant preparation that should stoke the most terror in their bodies.
It may even be the most important news here. It shows how prepared they were – it not only shows how prepared they are, but that they are well-passed “fishing expositions” or trying to figure out if there are any crimes hidden. It shows they they know precisely what they’re looking for, and they found it. Further, and on its own pinnacle, none of these indictments, if proven guilty, can be pardoned. And the fact that the D.A. went after mortgage fraud - which, as I said, could get up to 16 years in prison - and these potential defendants are all realtors involved with mortgages, they all have to have been in hell last night. (If they're smart, which admittedly may not be the case…) And this is just New York City, not even New York state. Or the feds.
So, to me, as much as most of the attention was on Judge Jackson's sentence, those New York City indictments to me wee the biggest part about the day's sentencing news, even though it wasn't directly related to sentencing.
For everyone understandably upset at the 4-year sentence given to Paul Manafort, consider this about how UNLUCKY he is. (Yes, unlucky) --
After the recent sentencing in Virginia federal court, Manafort's lawyers asked Judge Ellis to make the sentencing for upcoming DC hearing run concurrently with his. But Ellis said he was not able to, noting that only the DC judge whose hearing comes after could do that. He did say that if Manafort's lawyers could show that he was wrong, he would take that under advisement. But his ruling was correct, the first judge is not allowed to make such a ruling. So, consider If this just-past Virginia hearing had been the one that came second, Judge Ellis could have made his sentencing run concurrent with whatever DC court under Judge Jackson would have ordered previously. But since it's the DC hearing that is second, whatever new sentence is imposed there will likely be consecutive.
Yes, I know that Paul Manafort had a sentencing guideline of 19-24 years and yet was only given four years in prison. And I know that it's a ghastly short sentence given his conviction of a wide swath of critical felonies, some with people at the heart of an attack on the United States. And I know that black people and other minorities get much longer sentences for far lesser crimes, even -- literally -- shoplifting, (Just this week, a black man in Boulder, CO, was detained by eight policemen with guns drawn for suspiciously picking up trash in front of his own home.) And I know that the actions of the judge throughout the trial were described by many lawyers as bizarre and biased towards white collar crime. And that the judge's reasoning for the light sentence ignored a great many larger realities -- including that Manafort was only tried only 18 counts before this judge rather than many more because he had pleaded guilty in his earlier trial, and as part of that plea Robert Mueller agreed to not charge him more.
But -- amid the understand and substantive outrage at the sentence -- I think a few things should get not lost in the reaction. And first among them is that the former campaign manager of Trump was just sentenced to four years in prison. And though four years is very light considering what he could have gotten and what he was convicted of, it's four years. I suspect most people would be distraught to spend four years of their life in prison, especially if you'd lead a life of ease and were 70 years old. And there is still another sentencing ahead, where Manafort is up for 10 years in prison.
Now, it's possible the judge there, Judge Amy Berman Jackson, will give him a light sentence, as well. And maybe the judge will make the sentence to run concurrently. But then, Manafort may get the full 10 years and it may run consecutively. Which means Manafort could conceivably spend 14 years in prison until he is 84 years old
And of course whatever his sentences, he could end up with less time in prison for good behavior. Or get pardoned.
But my sense in all this is that this first judge, Judge Ellis, is known from his actions at the trial and previous actions to be a wild card, and it's unlikely that the Judge Jackson will be the same. And given the general widespread reaction by the legal community at the lightness of this sentence, it seems reasonable to think Manafort won't get off as easily next week. So, in the end, he may well end up with at least a total of 10 years in prison until he's 80 -- or more. This was a very sickeningly light sentence. But Paul Manafort has a terrible future waiting him.
I suspect he will get some years knocked off for good behavior. I suspect too that this will come from this Judge Ellis, and less so from Judge Jackson, especially since she knows that Manafort got off incredibly lightly with his other sentence. But all this is a guess.
Pardoning Manafort though is another matter entirely, and not as cut-and-dried as one might think. To begin with, if Trump does pardon his former campaign manager, it could open the door to obstruction of justice charges leading to his impeachment. And further, if Manafort is pardoned, he would be compelled to testify in Congress openly and honestly. And if he didn't, he would not only have to serve his full time in prison, but could be charged with obstruction of justice.
In the end, I understand the galling outrage at Manafort's light sentence, and share it. But I also understand that that's mainly from almost a sense of vengeance, since the length of the sentence really doesn't change much. Nor do I think it will give comfort to anyone facing their own indictment, since it's pretty well accepted that this speaks far more about Judge Ellis than it does about the Manafort crimes. And ultimately, this is the campaign chairman of the the president of the United States going to prison. For a minimum of four years. Which could be 14 years. Until he's 84 years old.
Paul Manafort may have been relieved that he didn't get 24 years in prison. I can't imagine he's relieved by his future. He was a beaten man in court. In a wheelchair. His hair gray. Facing massive debts. Facing health issues. And facing another sentencing next week.
Anyone who takes pleasure in how light this sentence was compared to what it could have been is missing the larger picture. This was not a Good Day for Paul Manafort.
Robert J. Elisberg is a two-time recipient of the Lucille Ball Award for comedy screenwriting. He's written for film, TV, the stage, and two best-selling novels, is a regular columnist for the Writers Guild of America and was for the Huffington Post. Among his other writing, he has a long-time column on technology (which he sometimes understands), and co-wrote a book on world travel. As a lyricist, he is a member of ASCAP, and has contributed to numerous publications.
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