Here Comes the Judge

Judge Amy Berman Jackson started the week off with a bang.

Because hardly anyone seemed to be listening, and because the Memorandum Opinion she signed on May 3rd explained a matter of great import exceedingly well, and because it suggests that there is some slight possibility that justice—real justice—might someday actually prevail, we’ll quote her memorandum below, at considerable length.

Citizens for Responsibility and Ethics in Washington [CREW] had asked the Justice Department for two documents. Jackson ruled that CREW was entitled to get one. That may be enough.

Take it away, Judge Amy Berman Jackson:

On Friday, March 22, 2019, Special Counsel Robert S. Mueller, III delivered his Report of the Investigation into Russian Interference in the 2016 Presidential Election to the then-Attorney General of the United States, William P. Barr.

But the Attorney General did not share it with anyone else.

Instead, before the weekend was over, he sent a letter to congressional leaders purporting to “summarize the principal conclusions” set out in the Report, compressing the approximately 200 highly detailed and painstakingly footnoted pages of Volume I—which discusses the Russian government’s interference in the election and any links or coordination with the Trump campaign—and the almost 200 equally detailed pages of Volume II—which concerns acts taken by then-President Trump in connection with the investigation—into less than four pages. The letter asserted that the Special Counsel “did not draw a conclusion—one way or the other—as to whether the examined conduct constituted obstruction,” and it went on to announce the Attorney General’s own opinion that “the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense.”

The President then declared himself to have been fully exonerated.

The Attorney General’s characterization of what he’d hardly had time to skim, much less, study closely, prompted an immediate reaction, as politicians and pundits took to their microphones and Twitter feeds to decry what they feared was an attempt to hide the ball.

Even the customarily taciturn Special Counsel was moved to pen an extraordinary public rebuke on March 27:

“The summary letter the Department sent to Congress and released to the public late in the afternoon of March 24 did not fully capture the context, nature, and substance of this Office’s work and conclusions. We communicated that concern to the Department on the morning of March 25. There is now public confusion about critical aspects of the results of our investigation. This threatens to undermine a central purpose for which the Department appointed the Special Counsel: to assure full public confidence in the outcome of the investigations.”

Mueller called for the immediate release of his report, id., but it remained under wraps for another three weeks.

On April 18, 2019, the Attorney General appeared before Congress to deliver the report. He asserted that he and the Deputy Attorney General reached the conclusion he had announced in the March 24 letter “in consultation with the Office of Legal Counsel and other Department lawyers.” Id.

Citizens for Responsibility and Ethics in Washington (“CREW”) immediately fired off a Freedom of Information Act (“FOIA”) request for any records related to those consultations, but the Department of Justice (“DOJ”) demurred on the grounds of the deliberative process and attorney-client privileges. What remains at issue today is a memorandum to the Attorney General dated March 24, 2019, that specifically addresses the subject matter of the letter transmitted to Congress.

It is time for the public to see that, too.

What follows is an excrutiatingly detailed dive into an exceedingly complex matter, most of which went zzzzip! right over our editorial head.

A few things did stand out:

Jackson wrote that some of the material in front of her “calls into question the accuracy of Attorney General Barr’s March 24 representation to Congress.” Review of another document “raises serious questions about how the Department of Justice could make this series of representations to a court.”

Perjury, anyone?

Judge Jackson wrote scathingly that Barr’s critics were more credible than the Attorney General: “In sum, while CREW had never laid eyes on the document, its summary was considerably more accurate than the one supplied by the Department’s declarants.”

Barr had asked that CREW’s request for documents be dismissed by summary judgment. Berman was having none of that: “summary judgment may be granted on the basis of agency affidavits in FOIA cases, when ‘they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.’

“But here, we have both.”

The question had been whether or not CREW would get the documents it sought. It will only get one, but that may be enough:

…the affidavits are so inconsistent with evidence in the record, they are not worthy of credence. The review of the unredacted document in camera reveals that the suspicions voiced by the judge in EPIC and the plaintiff here were well-founded, and that not only was the Attorney General being disingenuous then, but DOJ has been disingenuous to this Court with respect to the existence of a decision-making process that should be shielded by the deliberative process privilege. The agency’s redactions and incomplete explanations obfuscate the true purpose of the memorandum, and the excised portions belie the notion that it fell to the Attorney General to make a prosecution decision or that any such decision was on the table at any time.…

Jackson’s memo suggests that, for a time, the former President had just what he wanted: an Attorney General willing—eager, in fact—to act as his own Roy Cohn.

Given the fact that the review of the document in camera reveals that there was no decision actually being made as to whether the then-President should be prosecuted, [redacted] the Court is not persuaded that the agency has met its burden to demonstrate that the memorandum was transmitted for the purpose of providing legal advice, as opposed to the strategic and policy advice that falls outside the scope of the privilege.

Jackson gave this government until May 17th to come up with a response to her ruling. In our view that response should include the confiscation of Barr’s passport.


The Flag Code 4 U.S.C. § 1 makes no reference to anything like “Aggravated Flag Abuse,” but if it did, this battered banner would most certainly qualify. The top three stripes have ripped free from the rest, nearly to the canton, and the end of the bottom stripe has become entangled with end of the fourth stripe. Normally, the Flag Police would assume that the person responsible for the condition of this flag is patriotic and, for one reason or another, has been unable to properly attend to it. Given the spectacularly bad condition of this item, though, certain members of the force have begun to wonder. Is this a covert operation by Putin’s FSB, intended to lower U.S. morale? More benignly, could this be a sign from someone in a personal crisis, unable to come up with a better way to call for help? Alas, such speculation is futile. All the Flag Police can say for certain is that they busted this very flagpole ten or fifteen years ago. At that time, they attributed responsibility to the most likely party—thus incurring the wrath of the business owner. Whatever the consequences, a citation must be issued. After all, “Eternal vigilance is the price of upholding the fetishization of material objects which symbolize the values of a purported republic in the absence of any perceptible functionality thereof.” Rather than take the risk, though, of making the same mistake twice, this time they’ll simply note the pole’s location—43.048923° N, 70.771585° W.


Lobbyist Botches Murder of Elephant

Faithful readers of Admiral Fowle’s Piscataqua River Tidal Guide—dear to our wretched, ink-stained hearts, every one of them—will note that this issue includes the following entry for May 19, 2017: “Big game hunter Theunis Botha, 51, dies in Zimbabwe when an elephant shot by a client falls on him.”

A few days later, this appears on May 22, 1977: “Gun rights fanatic Harlon Carter takes over the NRA—46 years after murdering Ramón Casiano, 15.” Carter was 17 in 1931, when he murdered Casiano in Laredo, Texas. The case was later overturned on the sort of technicality “conservatives” so often bemoan. Carter initially denied any knowledge when newspapers exposed the murder in 1981, but later admitted his culpability.

On April 27th, The New Yorker published a piece by Mike Spies headlined, “The Secret Footage of the N.R.A. Chief’s Botched Elephant Hunt.” The subhed read, “Wayne LaPierre has cultivated his image as an exemplar of American gun culture, but video of his clumsy marksmanship…tells another story.” The accompanying video shows a feckless LaPierre handling his rifle carelessly, disregarding instructions from the Great White Hunter leading him through the bush, wounding the animal with a bad shot, pumping more lead into it without killing it, watching his companions end its misery, then accepting their insincere congratulations.


Oh, look—on Church Street, next to the crumbling Daily Times building—it’s an Ingersoll-Rand VR-1056C Materials Handler! Surely this means that the deterioration of this fine 19th century building—the last remnant of Portsmouth’s own “Newspaper Row”—will soon come to a halt. Just in time, too—look at all those blown-out temporary plastic windows, letting in the rain and pigeons…oops. Wait a minute. According to this Street Encumbrance Permit, Church Street is blocked off to allow for work on the roof of South Church. Oh, well….


Black Heritage Trail of New Hampshire Announces Juneteenth Celebration

Portsmouth, N.H.—The Black Heritage Trail of New Hampshire will commemorate Juneteenth, 2021 on June 17, 18, and 19 with the theme Found Lineage: Celebrating African American Roots & Branches. The current debate around race is coinciding with a technological phenomenon: the extraordinary growth of DNA testing, along with the meaning of these results on concepts of lineage and race. The ease of access to this scientific testing has led people on a journey to delve deeper into their roots and to fill out the branches of their family tree. While the research has brought some remarkable stories of reconciliation to the public, the data collected through our genes has demonstrated the brutality of America’s history. A recent study shows that, while the majority of enslaved people brought to the Americas were male, enslaved women had a disproportionate impact on the gene pool of their descendants. There is much evidence of the systematic rape and sexual exploitation of enslaved Black women.

With a focus on African American genealogy and research, this year’s Juneteenth celebration offers a series of engaging, informative, and entertaining programs that will examine the connection between the emerging knowledge of DNA and the historical events in the Black community. Programs will also highlight how science is leading journeys of self-discovery, helping people rewrite their understanding not only of their families but also of their orientation as Americans.

Juneteenth is the oldest known nationally celebrated event commemorating the end of slavery in the United States. President Lincoln’s Emancipation Proclamation declared that, as of January 1, 1863, all slaves in states in rebellion against the Union “shall be then, thenceforward, and forever free.” However, it was not until June 19, 1865, two years later, when the U.S. Army took possession of Galveston Island in Texas and began a war against defenders of slavery, that the enslaved people in Galveston could begin their journey toward freedom.

Eastern Bank, ReVision Energy, People’s Bank, the University of New Hampshire, the Music Hall, McClane Middleton, and Centrus Digital are sponsoring this year’s celebration.

The Schedule of events is as follows:

Thursday, June 17, 10:00 a.m. – 2:30 p.m., cost $40.00. In a virtual workshop Finding Our Roots: Researching Black History & Genealogy, divided into four one-hour segments, five experts will offer techniques and resources for researching African American history and genealogy.

Friday, June 18, 7:30 p.m., cost TBA. In a live concert at the Music Hall, Portsmouth, N.H., Feeling Good: N’Kenge Celebrates African American Sopranos, N’Kenge will honor Nellie Brown Mitchell, Aretha Franklin, and other famous African American female singers who changed the trajectory of American music.

Saturday, June 19, 10:00 – 11:30 a.m., a free virtual panel discussion. In Art of the Story: Exploring How DNA Powers a Changing Narrative, three professionals will explore the role the new science is playing in presenting a more complete story of our country, the power of the story to aid in individual and collective healing, and the dangers inherent in the new science.

Saturday, June 19, 3:00 p.m, free and open to the public, live streamed on Zoom and Facebook from the Portsmouth African Burying Ground, Dance of the Ancestors: Ritual, Chants, Drumming & Movement. Chief Wande Abimbola, a Yoruba Babalowo and the Awise Awo Agbaye (Voice of Ifa in the World), Chief Oscar Mokeme from the Nmuo Society, and members from Akwaaba Ensemble will honor the ancestors through rituals, chants, and African drumming and dance.

For more information and to register for these programs, please visit the website:


Pining for Newsprint

Let’s see now…when was it…ah, yes: Friday, March 13, 2020. That was the last time we set those great cylinders in motion, peeling fresh, clean newsprint off that huge spinning roll, converting it into thousands of svelte, one-ounce packets of unfettered, non-fiction news.

Since then, 29 times, we’ve performed all the work necessary to print a newspaper—except print a newspaper; posting it online only, instead.

Next fortnight, once again, we will repeat that ritual…but….

The fortnight after that, we may return to print.

Note please, that cautious “may.” There are some arrangements still to be made. There are probably myriad details which we have not yet even considered.

Barring any unseen obstacles, though, it now seems possible—perhaps even likely—that we will resume printing this newspaper on Friday, June 4th.

In a fortnight we expect to be able to be more definitive.

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