NBC News has placed its imprimatur of journalistic integrity on the latest error and inanity filled column by one Barbara McQuade. McQuade was the US Attorney for the Eastern District of Michigan during the last seven years of the Obama Administration, after which she was given her walking papers by Attorney General Sessions on March 10, 2017 -- along with 43 other holdover US Attorneys appointed by President Obama.
It is not surprising that NBC News has published her column. After all, they pay a full-time salary to Ken Dilanian to make repeated errors as a reporter.
McQuade takes aim at Attorney General Barr's firing of Geoffrey Berman as Interim US Attorney for the Southern District of New York. How does she do it? Well, you’ve heard the old saying about falling out of a boat and not hitting water?? That is a pretty good analogy. This article won't be my fourth one on that topic -- except as needed to correct McQuade's many errors – which I haven’t even counted yet as I explain below.
“Barr exposed himself as a lying bully who is determined to subvert the independence of our nation’s federal prosecutors.”
There has been much ink spilled on whether Barr “lied” by putting out a press release saying Berman was stepping down – which was merely Barr’s expectation after leaving his meeting with Berman. Barr did not anticipate Berman’s decision to pursue public immolation rather than professionally resign as requested. But with regard to McQuade, the second part of her sentence is more interesting; the “independence of our nation’s federal prosecutors” part.
Did she mistakenly believe she was referencing President Trump and “federal prosecutors”, and the “ideal” that the work of Justice Department lawyers should do is to enjoy “independence” from political influence or consideration?
Or did she REALLY mean to type that “federal prosecutors” have “independence” from the Attorney General?
Did she ever try that line on Eric Holder or Loretta Lynch? What was their response?
It’s simply moronic, inane, stupid, and [insert synonym here] for a former US Attorney to say federal prosecutors operate independent of the Attorney General. Did the AUSAs in her office operate “independent” of her? After all, they were career “federal prosecutors”, and she was a “corrupt, dirty, grimy political appointee doing President Obama’s dirty work” – isn’t that the script they are all using regarding Barr?
So, let’s count “Independent of the Attorney General” as McQuade Error No. 1, and endeavor to soldier on.
Craig Carpenito would fill in and do “double duty” until the new US Attorney for the Southern District of New York, Jay Clayton, could be confirmed to that position.
Next, she claims that in the press release issued on Friday night announcing the changes, DOJ said that the US Attorney for New Jersey, Craig Carpenito would fill in and do “double duty” until the new US Attorney for the Southern District of New York, Jay Clayton, could be confirmed to that position.
But that’s not what the DOJ Press Release on Friday night said.
"On my recommendation, the President has appointed Craig Carpenito, currently the United States Attorney for the District of New Jersey, to serve as the Acting United States Attorney for the Southern District of New York, while the Senate is considering Jay Clayton’s nomination."
Anyone who understands the reality of the two jobs -- which Barb McQuade obviously does not -- would have known that one person could not simultaneously oversee and perform the function as US Attorney in two separate districts. That is why -- as Andy McCarthy pointed out in his column on Sunday -- the plan was for Carpenito to serve as Interim US Attorney in SDNY, while Carpenito's Deputy stepped in for him as Acting US Attorney in New Jersey. I would wager that Andy McCarthy has better sources inside the SDNY given his 20+ years of experience in that office, than does Barb McQuade, law school professor in Michigan. Andy McCarthy didn't like that idea, but at least he had a factual reason for his view -- unlike Barb "fact are a nuisance" McQuade.
So, let’s call that McQuade Error No. 2.
Three paragraphs, two material errors. Impressive start.
What then could be the reason for wanting to remove Trump’s handpicked U.S. attorney from one of the nation’s largest and busiest federal prosecutor’s offices?
Offering Berman a high post means that Barr and Trump did not think that Berman was incompetent or that they had lost confidence in him. Trump doesn’t keep such people around, especially those he believes to be disloyal. What then could be the reason for wanting to remove Trump’s handpicked U.S. attorney from one of the nation’s largest and busiest federal prosecutor’s offices?
The facts are that Berman had never been "handpicked" by Trump for anything. In fact, he was never nominated to the Senate for the position. Berman was originally designated the "Interim US Attorney" by Attorney General Jeff Sessions on January 4, 2018, pursuant to the provisions of 28 U.S.C. Sec 546 which deals with "Vacancies" in US Attorney positions. That statute reads:
(a) Except as provided in subsection (b), the Attorney General may appoint a United States attorney for the district in which the office of United States attorney is vacant.
(b) The Attorney General shall not appoint as United States attorney a person to whose appointment by the President to that office the Senate refused to give advice and consent.
(c) A person appointed as United States attorney under this section may serve until the earlier of—
(1) the qualification of a United States attorney for such district appointed by the President under section 541 of this title; or
(2) the expiration of 120 days after appointment by the Attorney General under this section.
(d) If an appointment expires under subsection (c)(2), the district court for such district may appoint a United States attorney to serve until the vacancy is filled. The order of appointment by the court shall be filed with the clerk of the court.
When Barb McQuade produces a list of names given by Donald Trump to Jeff Sessions, and that list has Geoff Berman's name on it for Interim US Attorney for the Southern District of New York, in my book he will remain Jeff Sessions' "handpicked" US Attorney.
Near the end of the 120 day period, the district court judges of the SDNY appointed Berman to continue as Interim US Attorney under subparagraph (d). At that point Berman was the "handpicked" US Attorney of the 40-some-odd district judges of the SDNY.
We'll just give Barb a single error for this one - McQuade Error No.3. It’s too bad that it did break her string of two consecutive paragraphs without an obvious factual mistake.
Trump moved [District of Columbia] U.S. Attorney Jessie Liu by offering her a post at the Treasury Department, which he later withdrew. Upon Liu’s departure, Barr promptly installed as acting U.S. attorney his close aide Timothy Shea.
So Mr. Tim Shea disagreed with the sentencing recommendation as to Roger Stone, and used his authority as the supervisor of the AUSAs on the case to modify the recommendation. I guess Barb McQuade, US Attorney, would have stood idly by and let AUSAs working for her file sentencing recommendations with which she disagreed. See how that works Barb? Line prosecutors have supervisors. It’s too bad you didn’t realize that when you were US Attorney.
But, let us consider the subject of what was recommended and withdrawn by the case prosecutors, what it was replaced with, and what happened at Stone’s sentencing. What I'm going to write next is kind of technical and wonky, but if I tried to explain it in a narrative manner, it would take way too much time. So I'm going to just go by the "Numbers", and wrap them up with one short explanation.
The prosecutors' original recommendation was that the “base offense level” should be 14, which corresponded to the most serious crime for which he was convicted, obstruction of justice. To this the prosecutors wanted to increase it by 8 levels based on Stone’s threats of physical injury or property damage as part of the "obstruction" offense. The prosecutors asked for an additional 3 level increase based on "substantial interference with the administration of justice" because Stone's conduct prevented Congress from gathering all the information it was seeking. The prosecutors then asked for another 2 levels because the crime involved "otherwise extensive scope, planning, or preparation." Finally, they asked for another 2 levels based on Stone having interfered with the administration of justice in the prosecution of the case in connection with his pretrial statements. Based on their “adjusted offense level” calculation of 29, the prosecutors asked for a sentence in the range of 87 to 108 months as set forth in the “Sentencing Table”.
When US Attorney Shea pulled that recommendation, he noted in his supplemental memo that the "enhancements" sought in the original recommendation totaled more levels (15) than the base offense level for the offense Stone was convicted of (14). This is a situation known as the "enhancement tail wagging the sentence dog" -- where a defendant gets more time in custody for enhancements -- not found by the jury -- than he does for the crimes which the jury convicted him. In recognition of that, the supplement dropped the request for the 8 level enhancement for "threats of physical injury or property damage" based on the acknowledgment by the "victim" of the threat that he did not take it seriously. While that did not conclusively establish that the enhancement did not apply, it was something the Court should take into consideration in deciding whether to apply the 8 level enhancement. Without the 8 level enhancement, the recommended sentence range would be 37-46 months, a range that would be substantially similar to sentences given in similar cases to similarly situated defendants.
So how did it all work out?? The judge imposed a sentence of 40 months. She found that application of the 8 level enhancement was not warranted – as Shea said. She agreed with the supplemental memorandum filed by Shea -- except she did apply 2 levels for obstruction connected to Stone's own case because of his pre-trial comments to the press in violation of her gag order.
So let’s call that McQuade Error No.4.
Back to the McQuade story:
Like the prosecutors in the D.C. office, lawyers in the Southern District of New York are reportedly working on matters that hit close to home for Trump. Berman had recused himself from investigating Trump’s lawyer Michael Cohen...
To tease a bit something else I'm working on, I think this recusal is a story not yet well understood. But for purposes of banging on Barb, let’s take up the issue of "Who recused Who?"
So far as I have been able to find in my research, the reason for the recusal of Berman from the Cohen investigation has never been disclosed. But Barb McQuade didn't spend any time or effort on this issue, because with very little time and effort I found the following:
Chief Manhattan federal prosecutor and Trump administration appointee Geoffrey Berman, whose office oversees a federal inquiry into President Trump's longtime personal lawyer, was recused from the investigation before FBI agents raided Michael Cohen's offices and home, a person familiar with the matter said Tuesday.
Berman, named in January as an interim replacement to fill the post formerly held by Preet Bharara, whom Trump dismissed last year, was recused by Justice Department officials under Deputy Attorney General Rod Rosenstein, said the source, who was not authorized to comment publicly.
McQuade in 2020 while championing Berman in his “death match” with AG Barr:
"Berman recused himself from Cohen case."
USA Today in 2018 just reporting straight news:
"DOJ officials recused Berman from Cohen case."
Barb McQaude Error No. 5 – and in back-to-back paragraphs no less. Dang -- she's good.
Honest admission -- I stopped reading her article at this point. It was just too much for me to take, and I had to start writing THIS article without further delay. So, everything from here down is like finding money in your pants pocket when taking them out of the dryer -- no idea it was even there until I got to this point in writing my story. Is double-digit errors by her really an achievable goal? Or just a fantasy?
Berman had recused himself from investigating Trump’s lawyer Michael Cohen, whose campaign finance charges included reference to an un-indicted co-conspirator identified as "Individual-1," believed to be Trump himself.
There is no doubt that "Individual-1" in the Cohen case documents is President Trump. Based on the description of events, President Trump is the only person on the planet who fits the description.
The only thing Barb McQuade got wrong is that nowhere in the Cohen case is President Trump - as "Individiual-1" or otherwise -- alleged to be a "co-conspirator." Michael Cohen was not charged with, nor did he plead guilty to the crime of conspiracy. There are no "co-conspirators" alleged in the facts described in the Information filed against Cohen by the SDNY, nor is Indivdual-1 ever described as a "co-conspirator" with Cohen. It’s almost like Barb McQuade doesn’t understand how prosecutors charge conspiracies in information or indictments. That would be a good trick for someone who spent 20 years as a federal prosecutor. But the ED of Michigan was always known for going slow, and where good investigations went to die quietly and without much work being done.
I could go to the trouble of explaining why no such criminal conspiracy is necessarily alleged even in the context of the "concerted activity" that is described in Cohen's case -- but that would only confuse Barb McQuade because her writing is a testament to her inability to make careful legal distinctions.
This is Barb McQuade Error No. 6 -- and making it even more impressive is the fact that it is contained in the same paragraph as Error No. 5!
Back to her work:
The Southern District of New York ... also has jurisdiction over matters occurring at Trump Tower, Trump’s home before his presidency and the headquarters of Trump’s business, the Trump Organization.
As I've pointed out elsewhere on this subject, the SDNY has been looking for crimes by Donald Trump and/or Trump Inc., for nearly four decades -- and they haven't found any yet. The SCO certainly got every tax filing, every financial document, and every bank account statement/ records in their efforts to find financial links between President Trump and Russia. Yet the Mueller Report doesn't spend a single paragraph on the subject. Why? Because there's nothing to find.
But Barb McQuade thinks SDNY led by Geoffrey Berman must be on the verge of 'Cracking the Enigma Code," and only that explains Barr's action in removing Berman.
I'm going to give Barb a pass on this one. I'm going to assume that maybe she's not a big newspaper or internet reader in Detroit, and she was genuinely unaware of the fact that Donald Trump might be the most investigated man to ever step foot in the White House. Maybe she gets all her news from watching "The View." So we are still holding at Error No. 6.
Because Berman had been appointed by the court rather than through the usual process of presidential nomination and Senate confirmation, the law says he must be replaced by a nominee who was also Senate-confirmed or, presumably, approved by the judges of the Southern District of New York.
I'm giddy over this one because as I mentioned above, I didn't even know it was here until right at this moment. I could only dream that she "went there" and made this patently stupid argument. It is so patently stupid, in fact, that I'm tempted to give her a "bonus error", and count it as 2 on her scorecard.
Yes, as noted above, 28 U.S.C. Sec. 546 says judges of the district court may appoint someone as US Attorney when the position is vacant for 120 days, and it says that appointment shall remain valid until the vacancy is filled. No, it does not say that the vacancy is only "filled" when there is a Senate confirmed US Attorney in place. It doesn't say anything about when it is "filled", and it doesn't say anything about who has the power to remove a court-appointed US Attorney.
But there are Court cases and an opinion of the DOJ Office of Legal Counsel (OLC) which both say the President can remove court-appointed US Attorneys just as he can remove US Attorneys he appoints himself. In fact, in United States v. Hilario, the First Circuit Court of Appeals -- you know, some other judges -- said the fact that the President can remove court-appointed US Attorneys is probably the only thing that makes the appointment power under Sec. 546(d) constitutional. Otherwise, you would have a situation where the Art. III Judicial branch was appointing "Officers" of the Art. II Executive Branch -- without the Executive being able to control the actions of that Executive Branch "Officer." That Court wrote:
"[I]nsofar as interim United States Attorneys are concerned, the Executive Branch holds all the trump cards. For one thing, the President may override the judges' decision and remove an interim United States Attorney. See 28 U.S.C. § 541(c). For another thing, the President retains the right to nominate a United States Attorney whose confirmation by the Senate automatically will oust the interim appointee. See id. § 546(d). Even short of presidential involvement, the Attorney General can shunt the interim appointee to one side on any given investigation or case."
This 1979 OLC Opinion says the same thing -- the President retains the authority to remove all US Attorneys, however appointed. Although McQuade doesn't make this argument, I've seen others suggest that this OLC opinion has never been tested, and might very well be wrong. Because of her stunning performance, I'm going to attribute this argument to McQuade because the only reason I can come up with for her having left it out is that she just didn't think of it. I'm sure if someone had suggested it to her, she would have included it.
But that would also be an error as well. We’ll call it an "implied error" here. You see, all OLC Opinions are binding on DOJ by policy. OLC is the office of the "lawyers" for DOJ attorneys. When DOJ attorneys are not certain of the answer to a particular legal question, an Opinion issued by OLC on that question is one DOJ lawyers are bound to follow. So, Geoffrey Berman, as US Attorney for the Southern District of New York, a DOJ attorney, had no choice when it came to the application of the 1979 OLC Opinion to his predicament. The Opinion says Trump can fire him even though he is court-appointed. He was bound by that Opinion as a DOJ lawyer -- right up to the point he was no longer a DOJ lawyer because he was fired based on that Opinion – and then it didn’t apply to him any longer.
So, Barb McQuade racked up Error No. 7 on the claim that Berman having been court-appointed limited President Trump's options in terms of firing him.
And, after due consideration, the answer is "Yes", I am giving her bonus Error No. 8 -- the implied error that she would have agreed that the OLC Opinion could be challenged by Berman as being incorrect - she would have included that in her column if she had thought of it.
So, 8 significant factual errors in her 13 paragraph column.
That is impressive. She'll have to work hard to top this with her next effort.
Now, let’s count them down in order of significance, from "Least Egregious" to "Most Egregious"
- [Cut to black like the Sopranos finale]
Shipwreckedcrew has 22 years as federal prosecutor; six years in private practice. Follow on Twitter @shipwreckedcrew