Rudy and Barr, Back in the News

One hundred days into the Biden administration, two leading characters from the Trump years are making headlines again. Federal authorities executed search warrants at the home and office of Trump’s former attorney Rudy Giuliani, dramatically escalating the criminal investigation into his activities in Ukraine. And a federal judge harshly criticized former Attorney General William Barr and his Department of Justice for engaging in a cover-up concerning Barr’s handling of the Mueller report. The stories were an unwelcome reminder of the abuses that routinely took place during the Trump years, and highlighted that we still have a lot to learn about those abuses.

Rudy Giuliani

The Giuliani Investigation

We’ve known for some time that Rudy Giuliani is the subject of a criminal investigation by the U.S. Attorney’s Office for the Southern District of New York related to his dealings with Ukraine. Those activities are closely related to the events that led to Trump’s first impeachment, when Trump asked the president of Ukraine to “do us a favor” by providing dirt on Joe Biden’s son in exchange for U.S. assistance. In 2019 Giuliani was actively working in Ukraine to to dig up potentially damaging information concerning Biden, who was considered to be Trump’s most likely rival in the 2020 election.

Giuliani also was actively involved in the successful efforts to have Trump oust the U.S. ambassador to Ukraine, Marie Yovanovitch, who was notoriously tough on government corruption. Giuliani apparently saw Yovanovitch as an obstacle to his efforts. Her ouster was also a focus of Trump’s first impeachment, and Yovanovitch testified during the House impeachment hearings about Giuliani’s smear campaign against her that ultimately led to her removal.

Prosecutors apparently are exploring whether Giuliani was working not only for Trump but also on behalf of Ukrainian government officials or other Ukrainian individuals. Those Ukrainians may have been seeking favors from the Trump administration or may have wanted the ambassador removed for their own reasons.

The Search Warrants

On April 28th, federal agents executed search warrants at Giuliani’s home and office in New York City. They reportedly seized a number of phones and electronic devices looking for communications, perhaps on encrypted apps.

According to news reports, prosecutors in the Southern District sought to execute the search warrants as early as last summer. Top DOJ officials would have needed to sign off, given the sensitivity involved in searching the office of an attorney for the president. The Barr Justice Department refused to allow it. After Merrick Garland was sworn in as Attorney General, the Justice Department gave the go-ahead.

The most charitable explanation for the Barr DOJ’s refusal to approve the warrants would be DOJ’s unwritten policy to avoid investigative steps within sixty days of an election if they might influence the vote. But if approval was sought last summer, the election was much more than sixty days away. And that policy would not explain why the searches could not have been approved after the election and before Biden’s inauguration.

Last summer was also when Barr sought to remove the U.S. Attorney for the Southern District and replace him with a Trump loyalist. All of this raises suspicions that president Trump’s Justice Department sought to protect Giuliani by stifling the investigation into his Ukraine activities as long as possible – which also, of course, protected Trump himself.

Michael Cohen

Searching an Attorney’s Office

Giuliani and his lawyers responded with predictable outrage over the search warrants. Searching an attorney’s office does raise special concerns, due to the possibility that materials covered by the attorney-client privilege might be seized. But of course a law degree does not confer immunity from the criminal law, and in appropriate circumstances attorneys may be the subject of a search warrant just like anyone else. As with any search warrant, it requires a neutral judge or magistrate to find probable cause that a crime has been committed and that evidence may be located during the search. And the Justice Department has special procedures in place to review requests for such warrants and handle the screening of potentially privileged material.

The Trump years featured another prominent example of such a search: in April 2018 investigators executed search warrants at the home and office of Michael Cohen, president Trump’s former private attorney and “fixer.” Cohen ultimately was indicted on multiple charges, pleaded guilty, and was sent to prison.

As many criminals have learned the hard way, having an attorney involved in your activities does not necessarily mean that everything the attorney touches is privileged. The attorney-client privilege applies only to communications that involve providing legal advice. If an attorney is working as a business person or in some other non-legal capacity, their activities and communications will not be shielded by the privilege. The privilege also contains an exception for communications that are made in the furtherance of a crime or fraud.

After the Cohen search, a judge appointed a special master to review all of the seized materials and screen them for anything privileged before turning them over to investigators. Ultimately only a small amount of material was withheld. Recognizing the sensitivity of these searches and hoping to speed the process along, prosecutors have already asked the court to do the same for the Giuliani materials.

It will take some time for all of the seized materials to be reviewed and we shouldn’t expect anything to happen in the immediate future. But it’s an ominous sign for Giuliani. DOJ is unlikely to take the serious step of searching an attorney’s office without a compelling reason. That’s especially true when that attorney once represented the former president of the United States. Attorney General Garland would be extremely unlikely to sign off on such politically-charged warrants if this were a marginal case.

The Potential Criminal Charges

Much of the news coverage concerning potential criminal charges against Giuliani has focused on his possible violation of the Foreign Agents Registration Act, or FARA. At least one of the search warrants reportedly mentioned FARA as the potential crime under investigation. That law requires those engaged in political activities in the United States on behalf of a foreign principal to register with the Justice Department. Giuliani may have violated FARA by failing to disclose his work on behalf of various Ukrainian nationals.

Historically FARA was rarely enforced criminally. But the law has gained prominence in recent years, and during the Trump administration and Mueller investigation there were a number of high-profile FARA cases. Former National Security Advisor Michael Flynn was charged with violating FARA for failing to disclose that he was working for the government of Turkey (although he pleaded guilty to a different charge – before ultimately being pardoned). Former Trump campaign manager Paul Manafort also pleaded guilty to violating FARA for his undisclosed work on behalf of Ukraine.

But a search warrant does not need to name every crime under investigation, and other charges could be implicated as well. Financial crimes such as tax evasion or money laundering are always a possibility. Manafort, for example, also was convicted of tax evasion and money laundering based on his handling of the money he received from Ukrainians. If you’re keeping your work as a foreign agent a secret, you naturally have an incentive to hide payments for that work from the IRS and other authorities.

Another possibility is public corruption – taking part in a conspiracy to bribe president Trump. The first impeachment was essentially about bribery, although the articles of impeachment did not expressly cite that criminal law. The charge was that Trump offered to release military aid to Ukraine in exchange for that country’s help in digging up damaging information about Biden. This is an allegation of quid pro quo bribery: I will do an official act (release the aid) in exchange for something of value to me (the political dirt on my rival).

Giuliani was at the center of all these activities. He appears to have been working with a number of Ukrainians who were seeking something from president Trump — and may have been willing to offer something in return. Prosecutors could be investigating whether such conduct amounted to a conspiracy to commit bribery. A conspiracy charge would not require that the bribe was ever consummated or successful. Nor would it necessarily require charging Trump himself; Giuliani and others could be charged with simply trying to arrange the quid pro quo transaction.

Whether prosecutors are focusing on charges in addition to FARA is just speculation at this point. But it seems unlikely to me that DOJ would have taken the aggressive and politically explosive step of executing the Giuliani search warrants if they were looking only FARA, a relative technicality. That makes me suspect they are looking at something more substantial.

Would Rudy flip?

One tantalizing prospect that all of this raises is whether Giuliani would cooperate in an investigation of Trump in exchange for leniency. It’s hard to imagine Giuliani turning on the man to whom he has so slavishly linked his own image and reputation. But there are reports that their relationship is strained. Michael Cohen, for one, has opined that Giuliani would flip on Trump to save himself “in a heartbeat.”

There also have been reports that Giuliani is seeking Trump’s help in paying his legal fees and that he has not been paid for much of his legal work on Trump’s behalf. That raises some interesting prospects as well. If Giuliani feels like Trump has stiffed him, he may be more willing to cooperate against the former president. On the other hand, given all that Giuliani knows about Trump’s own potential misconduct, if Trump were to help Giuliani with his legal bills that could look like bribery of a witness, in violation of 18 U.S.C. 201: Trump paying Giuliani to keep his mouth shut.

Before this is over, Giuliani may end up wishing he had persuaded Trump to grant him a pardon before leaving office.

William Barr
Former Attorney General William Barr

The Barr Cover-Up

On March 22, 2019, special counsel Robert Mueller delivered his 400+ page report to Attorney General William Barr. Barr did not release the entire report, or the detailed summaries that Mueller prepared for that purpose. Instead, two days later he wrote a four-page letter to Congress purporting to summarize Mueller’s conclusions, and held a press conference. He noted that Mueller had declined to make a prosecutorial decision concerning whether Trump obstructed justice. Barr then announced his own conclusion that the evidence presented by Mueller did not establish that crime.

This extremely misleading letter and press conference set the public narrative for the still-secret Mueller report. It allowed Trump to claim he had been completely exonerated and that Mueller had concluded there was “no obstruction, no collusion.” Mueller himself objected to Barr’s characterization of the report which did, in fact, contain substantial evidence of obstruction of justice by the president. But by the time the full redacted report was released three weeks later, Barr’s “spin” had firmly taken hold.   

Barr testified before Congress that he had reached the conclusions in his letter after consultations with the DOJ Office of Legal Counsel and other Department attorneys. The public interest group CREW promptly filed a request under the Freedom of Information Act for documents related to those consultations. Barr’s DOJ withheld a number of documents, claiming attorney-client and deliberative process privileges. One withheld document in particular, a memo to Barr dated March 24, 2019 from Steven Engel in the Office of Legal Counsel and Ed O’Callaghan in the Deputy Attorney General’s Office, was the subject of a federal court ruling last week.

Federal Judge Amy Berman Jackson ruled on May 3 that the memo must be turned over. Much of her opinion deals with the somewhat dry procedural requirements of FOIA. But her conclusions about DOJ’s behavior are damning.

DOJ had claimed the memo was privileged because it involved DOJ attorneys giving legal advice to Barr concerning whether Trump had obstructed justice. Their story was that these attorneys had reviewed Mueller’s lengthy and detailed report on obstruction, formulated their advice to Barr, and written him a memo, which Barr then used to prepare his letter to Congress – all in the space of a couple of days.

Judge Jackson concluded that these claims were false. The memo itself and Barr’s infamous letter to Congress, she found, were all being drafted at the same time and by the same people. And all of those Trump DOJ officials agreed from the outset that Trump should not be charged with obstruction. The memo was not true legal advice to help Barr decide, but apparently was designed to provide legal cover for a decision that had already been made: “the review of the document reveals that the Attorney General was not then engaged in making a decision about whether the President should be charged with obstruction of justice; the fact that he would not be prosecuted was a given.”

Judge Jackson’s conclusion that the fix was in when it came to obstruction of justice doesn’t really come as a surprise to those who followed the Mueller investigation. Before he was named attorney general, Barr – then a lawyer in private practice – wrote a nineteen page memo to the DOJ about why he believed the president could not be charged with obstruction for anything done in his official capacity. Many considered this memo a sort of job application for the attorney general position. When Trump appointed Barr, he was putting in place a final backstop against any potential obstruction of justice charges. And that’s exactly what he got.

“Disingenuous” = “You’re Lying”

Judge Jackson repeatedly accused Barr’s DOJ of being “disingenuous” before the court in its description of the OLC memo. She held that the affidavits submitted by DOJ officials were “so inconsistent with evidence in the record, they are not worthy of credence.” This is essentially a polite way of accusing the department of lying to the court and engaging in a cover-up about the true reasons for Barr’s actions. 

As Judge Jackson noted in her opinion, she is not the first judge to question Barr’s handling of the Mueller report and the credibility of his statements in court. In an earlier case involving the redactions to the Mueller report, Judge Reggie Walton also expressed his “grave concerns” about Barr’s characterizations of the report, which he found were at odds with Mueller’s actual conclusions. He questioned whether Barr had tried to create a “one-sided narrative” about the report in order to benefit Trump.

Barr and the Trump DOJ desperately sought to prevent the truth about Barr’s shielding of the president from coming to light – so much so that they were willing to lie to more than one federal judge about it. It will be interesting to see now whether the Biden DOJ chooses to appeal Judge Jackson’s order that the memo be turned over. They presumably would like the truth about Barr’s actions to be revealed. But depending on their internal review concerning the merits of Judge Jackson’s conclusions, they may feel they need to appeal to try to protect the institutional privileges potentially at stake. Hopefully the full memo will soon see the light of day.

Barr’s effort to use the Department of Justice to protect the president and his cronies was one of the most disturbing aspects of the Trump years. We saw it with Roger Stone and Michael Flynn. And this episode also ties right back in to the Giuliani story, where the Barr DOJ refused to approve the search warrants that could have unearthed evidence implicating Trump.

It’s apparent that we have still more to learn about the corruption within Barr’s DOJ.

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The Protecting Our Democracy Act

Last week House Democrats introduced new legislation, the “Protecting Our Democracy Act,” described as “a landmark reforms package that will prevent future presidential abuses, restore our system of checks and balances, strengthen accountability and transparency, and protect our elections.” The need for such reforms has become apparent in light of the abuses by the Trump administration over the past four years. Trump’s actions — including stonewalling Congressional investigations, firing Inspectors General, and interfering in criminal investigations — have highlighted how much the proper functioning of the executive branch has relied on unwritten norms without legal force to back them up. The legislation seeks to provide some new legal muscle to enforce those norms.

Just as in the post-Watergate era, legislators in the post-Trump era must take steps to ensure that the abuses by this administration are not repeated. The bill has no chance of passage until after the election, and only then if the Democrats succeed in taking the Senate. But overall it’s a solid package of much-needed reforms, and the country would benefit from its passage.

Roger Stone
Roger Stone

Preventing Abuse of the Pardon Power

Title I of the Act contains reforms designed to prevent the abuse of the pardon power by a president, with “pardon power” broadly defined to include not only granting pardons but also the commutation of sentences. Pardon reform is tricky, because the Constitution gives the president broad authority to grant clemency. Congress probably can’t simply prohibit particular kinds of pardons. Instead, the legislation seeks to increase transparency surrounding pardons and to clarify that in some circumstances granting a pardon may run afoul of other criminal laws.

President Trump’s use and threatened use of the pardon power has led to several different controversies. During the Mueller investigation, there were reports that attorneys for the president may have dangled the prospect of a pardon before potential witnesses such as Paul Manafort and Michael Flynn. The implication was that they should refuse to cooperate against the president and if they got into any trouble, Trump would pardon them. More recently, when Trump confidant Roger Stone was convicted for obstruction of justice and lying to Congress about his role as an intermediary between the Trump campaign and Wikileaks concerning stolen Democratic emails, Trump commuted Stone’s sentence rather than allow him to report to prison.

The first section of this Act requires that for pardons involving certain “covered offenses” the Attorney General must provide to Congress within thirty days the Department of Justice investigative materials related to the offense and consideration of the pardon. The president must also produce to Congress within the same time period any materials produced or obtained by the White House pertaining to the pardon. “Covered offenses” under this section include offenses arising from investigations where the president or one of his/her relatives is a target, subject or witness, offenses involving refusal to testify or provide documents to Congress, and crimes of obstruction of justice, false statements, or perjury related to Congressional proceedings or investigations.

This first section is primarily about transparency. Again, Congress can’t prohibit the president from pardoning a family member, or from commuting the sentence of someone like Roger Stone. But the Act seeks to ensure that Congress and the public will at least receive information related to the grant of any such pardons. Of course, this depends on compliance by the DOJ and White House; with the current administration, for example, we might expect them to resist compliance with at least some of these requirements, perhaps by claiming executive privilege over the pardon deliberations.

Pardons and Bribery

The Act also clarifies that federal bribery law may apply to granting pardons. It specifies that the definition of “public official” under 18 U.S.C. 201, the primary federal bribery law, includes the president and vice president. It further specifies that the grant of a pardon or other clemency could serve as an “official act” under that statute, and that the grant of clemency also could constitute a “thing of value” under the statute in a case involving bribery of a witness.

Once again, these changes would not outlaw a president pardoning a witness against himself. But they seek to clarify that, in such a case, the act of granting the pardon may violate federal bribery law, even if the pardon itself stands. These changes are primarily clarifications, not new requirements. As I wrote here, I believe under the existing law it’s already true that granting a pardon is an “official act” and could be a “thing of value,” and that corrupt pardons could be prosecuted as bribery. And it’s already generally accepted that the bribery statute applies to the president. These changes would simply make these things explicit, and there’s no harm in that even if it’s not strictly necessary.

No Self-Pardons: The final section of this portion of the Act provides that a president can’t pardon himself and that such a pardon will have no legal effect. This section is of dubious constitutionality. Whether a president could self-pardon has never been settled, but it is almost certainly a constitutional question for the Supreme Court if we ever get to that point. It’s likely not something that Congress can control by statute.

The “No President Is Above the Law” Act

The next portion of the Protecting Our Democracy Act is about statutes of limitations. It provides that the limitations period for federal crimes will be tolled – stop running – during the time a president and vice-president are in office. This would apply to crimes committed before they took office, as well as to crimes committed while in office. The limitations time would start to run again once they left office.

The need for this act stems from the current Department of Justice opinion that a sitting president may not be indicted while in office. This is just an internal opinion, and has never been tested by a court. But it is current DOJ policy and special counsel Robert Mueller, for example, felt himself bound by it. Once a president leaves office, it’s clear he or she is then subject to prosecution.

Most federal crimes have a statute of limitations of five years. If a president committed crimes in order to win the election and then was in office for two terms, he or she could effectively “run out the clock” on those crimes. The same would be true for crimes committed while in office, if they were more than five years old when the president left office. If the president is not impeached and removed from office before the limitations period expires, and if the president can’t be indicted while in office, then he/she effectively would be immune from prosecution. This previously unlikely hypothetical has taken on real significance with the prospect of president Trump possibly winning a second term.

This Act will ensure that while the president and vice-president are in office, the statute of limitations clock stops running. This is a much-needed reform and is well within Congress’s power. As the name suggests, it will ensure that the president is not above the law and cannot avoid criminal responsibility merely by virtue of being in office.

Picture of the U.S. Constitution

Foreign and Domestic Emoluments Enforcement

The formerly obscure emoluments clauses of the Constitution have been front and center since before Trump was even sworn in. The foreign emoluments clause prevents federal officers from receiving presents or other things of value from foreign nations unless Congress provides its consent. The  domestic emoluments clause prohibits the president from receiving payments or gifts from the federal government or a state government. These anti-corruption provisions are designed to prevent conflicts of interest and divided loyalties in federal officials.

President Trump’s international business empire has raised grave concerns about potential violations of these clauses. For example, foreign governments may have granted favored tax or zoning treatments to properties owned by the Trump Organization in order to curry favor with the president.  Foreign delegations visiting Washington D.C. stay at the Trump Hotel, effectively putting money in the president’s pockets. Several lawsuits have been filed alleging emoluments clause violations, but they have sputtered through the courts for nearly four years and have raised difficult issues concerning proof of injury and who actually has standing to sue.

The Protecting Our Democracy Act seeks to put some enforcement teeth behind the constitutional provisions. The legislation basically repeats the constitutional prohibitions but goes on to provide that Congress may bring a civil action to enforce those prohibitions and that those lawsuits will be heard on an expedited basis. In other words, this Act gets around the constitutional standing issues related to enforcing the emoluments clauses by essentially repeating those prohibitions in a statute and providing that Congress has standing to enforce it. It also makes clear that the statutory prohibitions apply to the president and vice-president, in response to some academic debate over whether the constitutional language applies to those officers.

This too should be well within Congress’s power and seems like a useful reform. The Act also beefs up requirements under the Ethics in Government Act for public officials to disclose the receipt of any emoluments, and provides that the Office of Government Ethics and Office of Special Counsel may investigation any violations.

Enforcement of Congressional Subpoenas

A significant problem highlighted during the Trump administration has been the inability of Congress to enforce compliance with its subpoenas. Trump has routinely stonewalled Congress, refused to produce documents, and instructed members of his administration not to testify. During the impeachment investigation, for example, many key witnesses simply refused to show up, and the White House refused to supply subpoenaed documents. Congress can file a lawsuit to force compliance, but the court process can take many months. For example, the lawsuit seeking to compel former White House counsel Don McGahn to testify before the House about incidents detailed in the Mueller report is still working its way through the courts after a year and a half. It appears the administration will successfully run out the clock without McGahn ever testifying.

The bill seeks to remedy this problem. It first makes it clear that Congress has a right of action to sue to enforce its subpoenas, to clear up any lingering questions about standing that have plagued some of the subpoena lawsuits. It requires that such lawsuits be expedited as much as possible, and requires the judiciary to establish rules to ensure that happens. It provides financial penalties for failure to comply with a subpoena, and that those fines may not be paid by government agencies with taxpayer dollars.   

The Act also contains other rules to ensure compliance with subpoenas. One interesting section provides that a failure to comply with a Congressional subpoena may be referred to the D.C. Attorney General for prosecution for contempt, in which case the crime would be a misdemeanor. The current Contempt of Congress statute requires Congress to refer such a case to the D.C. U.S. Attorney. But that prosecutor works for the administration, and if the lawsuit is seeking to compel compliance by the administration that sets up a potential conflict of interest. Now in such a case Congress may seek enforcement by the local Attorney General instead.

The Act also makes clear that this legislation does not override or constrain any other authority that Congress already has to enforce its subpoenas. This would include the inherent contempt power: Congress’s ability to send out its Sergeant at Arms to arrest and detain those who fail to comply. Congress has been reluctant to invoke this power and has not used it for decades, but it is always lurking in the background.

William Barr
Attorney General William Barr

Security from Political Interference in Investigations

Since Watergate, there has been a strong norm that limits the communication and coordination between the White House and the Justice Department concerning ongoing investigations. This shields the administration of justice from even the appearance of political influence.  Trump and Attorney General Barr have demonstrated that this norm can easily be shredded by an administration indifferent to the damage it causes to the DOJ.  This DOJ has intervened in cases involving Trump allies such as Roger Stone and Michael Flynn, and has launched investigations, such as the probe into the origins of the Russia investigation, that appear to be designed to benefit the president politically. The politicization of the Justice Department may end up being the area where damage caused by this administration takes the greatest time to heal.

The Act seeks to at least shed some light on any such activities by requiring the Attorney General to keep a log of certain contacts between DOJ and the White House concerning ongoing investigations, and to provide that log to the DOJ Inspector General on a semi-annual basis.  The IG, in turn, can provide notice of any suspicious communications to Congress.

This provision too is limited in that it depends on voluntary compliance by the administration. A corrupt administration bent on politicizing the DOJ could simply refuse to enter relevant communications in the log. And we could probably expect claims of Executive Privilege as to at least some such communications. But this provision would at least give some legislative recognition to the vital importance of what, up until now, has simply been an executive branch policy.

Protecting Inspector General Independence

The independent Inspectors General who oversee the various federal agencies perform a critical role in rooting out corruption and ensuring compliance with federal law. President Trump has removed a number of Inspectors General, apparently in retaliation for investigations that may have led to exposing wrongdoing within his administration — in other words, for doing their jobs. The Act provides that an IG may be removed only for specific, limited causes, requires the administration to provide documentation to Congress explaining the reason for any removal, and clarifies the independence and powers of the IGs within the intelligence community.  

Red square in Moscow
Red Square in Moscow

Defending Elections Against Foreign Interference

This section is inspired, of course, by Russia’s interference in the 2016 election and efforts to assist the Trump campaign, which was well-documented by the Mueller report and by an even lengthier report by the bi-partisan Senate Intelligence Committee. After the election, we learned that although most campaign officials would understand it was improper to accept foreign assistance and that any offers of such assistance should be reported to the FBI, there was no law in place that required such reporting. Federal election law was also potentially ambiguous concerning whether accepting something like opposition research from a foreign government would violate the law.

The Act seeks to remedy those deficiencies by requiring campaigns and other political entities to report any efforts at foreign interference or contact by foreign agents to the Federal Election Commission and the FBI, and requiring the FBI to report such information to Congress. It provides criminal penalties for those who violate these requirements. The Act also clarifies that the Federal Elections Campaign Act prohibits accepting help such as opposition research, polling, and other non-public information from foreign actors, and provides criminal penalties for violating that prohibition.

Other Sections

Other portions of the bill include: 1) strengthened protections for whistleblowers; 2) increased restrictions on the Executive Branch’s ability to re-direct or refuse to spend money appropriated by Congress;  3) strengthened enforcement and penalties for the Hatch Act, which generally prohibits federal employees from engaging in improper partisan political activities (and which has been repeatedly ignored and violated by members of the Trump administration); 4) limits on the president’s ability to appoint acting heads of agencies, rather than permanent heads subject to Senate confirmation; and 5) strengthening Congressional oversight of presidential emergency declarations.

Conclusion

In the post-Trump era, there will be a compelling need for reform legislation to prevent some of the abuses we’ve seen over the past few years. This proposed legislation from the House is a great start. Let’s hope it is able to be re-introduced and passed by a new Congress after the first of the year.

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