Rudy Is Relying on Tapes to Claim Buzzfeed Is Phony: But There Aren’t Tapes of Everything

Yesterday, I noted that Rudy could not be sure the Buzzfeed story was phony when Trump’s lawyers called Mueller’s office Friday, because the White House should have no knowledge of what Michael Cohen said in his interviews with law enforcement.

Today, the New Yorker provided Rudy’s latest splutter explaining why he believed he could be sure the story was phony.

Where are we now with Trump and Cohen and the BuzzFeed story, and your response to it?

I guess the BuzzFeed story—I don’t remember what it said about Cohen—but it said there was corroboration that the President talked to Cohen and told him to lie about, I guess it was, the Moscow proposal. There are no tapes, there are no texts, there is no corroboration that the President told him to lie. That’s why the special counsel said that the story was inaccurate. First time the special counsel has ever done that. As a prosecutor, having done that for fifteen years, that is quite a heavy rebuke of BuzzFeed. And the reality is that the President never talked to him and told him to lie. And I don’t know what Cohen is saying, but certainly the idea that two federal agents said that there was corroboration is totally untrue.

Did President Trump’s lawyers or you yourself reach out to the special counsel’s office after the story, as has just been reported?

I can’t discuss that. President Trump would not have done that. If anybody would have done it, obviously it would have been his lawyers, and I really can’t discuss that. That would be confidential.

Do you—

But I can tell you, from the moment I read the story, I knew the story was false.

Because?

Because I have been through all the tapes, I have been through all the texts, I have been through all the e-mails, and I knew none existed. And then, basically, when the special counsel said that, just in case there are any others I might not know about, they probably went through others and found the same thing.

Wait, what tapes have you gone through?

I shouldn’t have said tapes. They alleged there were texts and e-mails that corroborated that Cohen was saying the President told him to lie. There were no texts, there were no e-mails, and the President never told him to lie.

So, there were no tapes you listened to, though?

No tapes. Well, I have listened to tapes, but none of them concern this.

This passage explains everything we need to know both about why Mueller’s office set the bar on Cohen’s testimony where they did, and why the White House responded the way it did.

But it doesn’t mean Rudy can be certain that Cohen didn’t tell authorities that Trump ordered him to lie.

Remember that when Cohen was raided, Trump squealed like having his fixer raided was the biggest constitutional crime of the century. Both Trump Org and Trump himself insisted on paying $1 million to get a special master appointed to conduct the privilege review.

The results were expansive and seemingly an expensive dud for Trump. Special Master Barbara Jones ended up finding just 7,434 items out of boxes and boxes of evidence to be privileged. There were 57 other items Trump and friends wanted to claim were privileged, but not enough to argue why they were publicly.

In her summary, Jones described that altogether 7,434 items had been deemed privileged. Trump and or Cohen had objected to Jones’ designations with regards to 57 items, but were unwilling to fight to have Wood overrule Jones’ designation if their arguments would be public.

It was part way through the Special Master process when Cohen started talking about being abandoned by Trump and warming up to flipping on the guy he had been loyal to for so long.

On July 2 and July 13, Jones started releasing big chunks of non-privileged items. Almost 2.2 million items were turned over. On July 10, Cohen moved to share all these materials with Guy Petrillo. By this point, Cohen felt he had been abandoned by Trump and was preparing to flip against his client. July 23 is when Jones reported that Cohen and Trump had withdrawn designations of privilege with respect to 12 audio files, which were then released to the government (and began to be leaked on cable shows).

I guess I was wrong when I said this process was an expensive dud. Trump’s lawyers weren’t using it to assert privilege over stuff they knew was mostly not.

They were using it to assess how much damage Cohen could do to the President. Once they reviewed that discovery, they recognized they didn’t have to continue to dangle a pardon for Cohen, because there wasn’t documentary or recorded evidence to back up the most damning allegations he might make against the President. It’d just be Cohen’s word against Trump’s.

And that’s the basis on which the White House contacted Mueller’s office Friday: Having reviewed everything seized from Cohen’s raid, including any tapes Cohen made of conversations with Trump, they believed they could assert to Mueller’s office that the Buzzfeed story was not true.

This also explains why Mueller set the bar on Cohen’s allocution where he did. Cohen may well have told Mueller that he believed Trump ordered him to lie. Trump likely did! Certainly, Rudy is not denying that happened. But unless Cohen recorded that conversation — as he did for the hush payments — then Mueller is not going to set himself up to have to prove that. That necessarily partly explains (in addition to the issues I raised here) the difference in how SDNY allocuted Cohen and how Mueller did. SDNY has tapes, courtesy of Cohen, of Trump ordering him to pay off his sex partners; Mueller does not have tapes, courtesy of Cohen, of Trump ordering Cohen to lie to Congress.

That said, Rudy still should have no basis for asserting what Cohen has said to one or another law enforcement agent. While it’s not clear what Cohen’s status was at various times of this process, he would only have been recorded by the FBI if he was in custody. And the White House should not have his 302s (nor might they have all the other materials from others who have been interviewed, though admittedly would have lot from having done Trump Organization’s document production and being in a joint defense agreement with most of the relevant people).

One more thing: The degree to which Rudy emphasizes that Trump would not have reached out to Mueller’s office makes me believe we’re shortly going to learn he did reach out to Big Dick Toilet Salesman Matt Whitaker.

President Trump would not have done that.

That’s one of the most logical explanations for the currently contradictory messages coming from seemingly official DOJ sources about what Rod Rosenstein’s office did.

Epic cheap-ass Donald Trump paid $500,000 to figure out whether Michael Cohen had recorded the most damning conversations between them. But it was worth it! He paid it to be able to do what he did Friday, demand a statement disclaiming what is obviously true: that has Trump repeatedly suborned perjury from his advisors to hide what he did with Russia.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

Trump’s Lawyers Raised Concerns with Mueller’s Office about Testimony They Shouldn’t Know Whether Is Phony or Not

In the day since I noted Rudy Giuliani taking credit for the Peter Carr statement Friday night, multiple outlets have confirmed that Trump’s lawyers (the reports have not specified which lawyers) contacted Mueller’s office Friday morning  about Buzzfeed’s report that Trump had directed Michael Cohen to lie to Congress. NBC describes that Trump’s team “‘raised concerns’ in a letter to Mueller’s office.” Meanwhile, CNN has a report that seems to back off WaPo’s report that “In the advanced stages of [Mueller’s discussion about the story Friday], the deputy attorney general’s office called to inquire if the special counsel planned any kind of response, and was informed a statement was being prepared.” Instead, CNN describes Rosenstein’s office getting just a “heads up,” not calling to check in if Mueller was releasing a statement. 

The statement was drafted internally within the special counsel’s office, which made the decision to release it, according to two sources with direct knowledge of the situation. The deputy attorney general’s office, which oversees the special counsel, was only given a heads up it was coming Friday evening.

Whatever happened, Friday was the first time Mueller’s office has issued a statement on a specific story and the first time Trump has offered such positive comments about Mueller’s team.

It was a total phony story, and I appreciate the special counsel coming out with a statement last night. I think it was very appropriate that they did so. I very much appreciate that.”

So even if Trump has bitched before (WSJ says they have not; NYT Maggie says they have) — this has been the only time it worked.

The thing is — Trump shouldn’t know one way or another whether Buzzfeed’s was a phony story. They should have zero idea how Michael Cohen testified (though I note, again, that Mueller has a real incentive to be very modest about how they claim Cohen has testified). Trump’s lawyers may know what Trump Organization employees testified through a joint defense agreement. But Trump’s own lawyer said yesterday that it’s possible Trump spoke to Cohen about his testimony to Congress (he’s now trying to walk that back). If Rudy doesn’t know whether Trump told Cohen to “make it happen” or not, as Buzzfeed alleges, then he can’t know whether the story is phony.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

Rudy Claims Credit for Peter Carr’s Correction of BuzzFeed, Which Had the Goal of Tamping Down Impeachment Talk

In this post, I suggested that Rod Rosenstein’s call to Mueller’s office to see if they were going to release a statement pushing back against Buzzfeed’s story on Michael Cohen’s testimony might be a violation of SCO regulations protecting against “day-to-day supervision” by DOJ.

In his appearance on Jake Tapper’s show today, Rudy Giuliani (starting at 14:25) appears to take credit for SCO’s statement. After agreeing with Tapper that the NYT had corrected their claim that Paul Manafort had shared polling data with Konstantin Kilimnik with the intent that it in turn get shared with two Ukrainian oligarchs he worked for, he noted that the NYT had not issued the correction on their own. He then said that the Special Counsel’s office had not, either.

Rudy: Originally the NYTimes ran with the story [about Paul Manafort sharing polling data with Konstantin Kilimnik] — again, fake news — that he shared it with a Russian, not true. [note: actually it is true, because Kilimnik himself is a Russian citizen]

Tapper: They corrected that. They corrected that.

Rudy: They did correct that. They didn’t correct that — my friend, they didn’t correct that, they didn’t correct that just completely on their own by the way. The same thing with Special Counsel. That didn’t happen spontaneously.

At the very least, this undermines WaPo’s claim that Mueller already had a correction of Buzzfeed in the works before Rosenstein’s office called.

In the advanced stages of those talks, the deputy attorney general’s office called to inquire if the special counsel planned any kind of response, and was informed a statement was being prepared, the people said.

Worse still, it seems to suggest he or someone from the White House was involved.

The WaPo story suggested that the statement was issued because Democrats were discussing impeachment.

[W]ith Democrats raising the specter of investigation and impeachment, Mueller’s team started discussing a step they had never before taken: publicly disputing reporting on evidence in their ongoing investigation.

I’ve since heard the same.

It is not appropriate one way or another to issue a statement that otherwise would not have gotten made solely to tamp down discussion about impeachment — as opposed to reestablish what Special Counsel claims it can prove with regards to Cohen’s lies. If Trump suborned perjury about his own doings with Russia — and Congress already had abundant evidence that he had done so before Buzzfeed’s story — then that is grounds to discuss impeachment. That is a proper function of Congress. It is not the function of the Deputy Attorney General’s office to suppress perfectly legitimate discussions of impeachment.

But if the White House or Trump’s personal lawyer demanded that DOJ interfere in the day-to-day supervision of Mueller’s office with the specific goal of silencing talk about impeachment, as Rudy seems to suggest, that is a far more egregious intervention. That would mean Rosenstein’s office (either with or without the intervention of Big Dick Toilet Salesman Matt Whitaker) did what they did because Trump demanded it, which led them to take action that is arguably outside their permissible role with Mueller, all for the political purpose of squelching legitimate congressional discussion about impeachment.

The Special Counsel’s office declined to comment for this post.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

The House Intelligence Committee Can and Should Subpoena the 18-Minute Gap on the Trump Tower Deal

Over the last few days the following happened:

  • Buzzfeed published a story stating what the evidence already shows: Trump suborned perjury
  • Mueller’s spox Peter Carr issued an unprecedented rebuttal to a specific story
  • WaPo, in a story presenting DOJ’s side of events, revealed that someone from Rod Rosenstein’s office (probably Ed O’Callaghan, who has managed most interactions with Mueller’s office) called to ask them if they were going to issue such a statement

I am not certain whether the call from Rosenstein’s office violated Special Counsel regulations protecting the Special Counsel from day-to-day interference in the office, but it certainly is something Jerry Nadler’s committee should inquire about.

And while I think Mueller’s office can make a very good case they needed to respond to Buzzfeed’s story for prosecutorial reasons, Rosenstein’s involvement seems far more suspect, particularly since he’s the guy who set the new DOJ standard that even warning a journalist off a story, as former FBI General Counsel Jim Baker did, may get you disciplined or referred for prosecution. By all appearances, Peter Carr was playing by Rosenstein’s rules in his interactions with Buzzfeed, so Rosenstein is the last person who should weigh in if he doesn’t like the outcome.

But — in addition to House Judiciary Committee (HJC) asking DOJ about contacts between Rosenstein’s office and Mueller’s, as well as contacts between Big Dick Toilet Salesman Matt Whitaker and Rosenstein and contacts between the White House and either one — Congress has a means of pursuing this question that should not harm Mueller’s investigation: Subpoena the information that Cohen, Felix Sater, the Trump Organization, and the campaign withheld from the House Intelligence Committee so as to sustain Cohen’s false testimony through March 22, 2018.

I’ve put the section of the House Intelligence Report that deals with the Trump Tower deal below, with the claims we now know to be false underlined. In addition to a caveat that the findings in the section are based on the documents turned over to the committee, the section includes the following claims we now know to be false given Cohen’s statement of the offense and/or Buzzfeeed’s extensive report on the deal:

  • The report claims the deal died in January but communications (which may or may not be limited to text messages) between Sater and Cohen show that it continued (at least) through June and Buzzfeed suggests the communications extended into July. Rudy Giuliani today stated publicly it may have gone through November.
  • The report claims Cohen was working with Sater’s company, which may or may not be true. But Buzzfeed makes it clear there should be an October 2015 email between Sater and Cohen — sent weeks before Trump signed the Letter of Intent — showing that VTB, a sanctioned bank, would provide financing. A December 19, 2015 communication (it’s unclear whether email or text) would have showed VTB would host Cohen. On December 31, 2015, Sater sent an image showing another sanctioned bank, GenBank, would instead provide financing. There would also be a letter dated late January from Andrey Ryabinskiy, a Russian mortgage tycoon.
  • The report claims Cohen never received a response from anyone associated with the Russian government. But Cohen received a January 20, 2016 email from Dmitry Peskov’s personal assistant, and his call records would reflect a 20 minute call to the number she provided him to call her on.
  • Sater claimed to HPSCI that his claims about Putin’s involvement was “mere puffery” and that “neither President Putin nor any element of the Russian government was actually directly involved in the project.” Yet on January 21, Sater wrote Cohen, “It’s about [Putin] they called today,” which would show still more response to Cohen from the Russian government. And a May 5 text message from Sater to Cohen conveyed Dmitry Peskov’s invitation to attend the St. Petersburg Forum, at which Cohen could discuss the deal with Peskov and he might meet Putin personally.
  • The report says the deal failed because the due diligence failed and  Trump Organization’s representative (it’s unclear whether this would be Cohen, Sater, or someone else) lost confidence in the licensee. That’s almost certainly not consistent with whatever reason Cohen gave Sater on June 14, three hours after WaPo reported that Russia had hacked the DNC, to say he would not be traveling to St. Petersburg after all. There may well be discussion of the WaPo report in the four texts Sater sent Cohen. There also may be communication reflecting Cohen’s assurances that “We’ll go after Cleveland.”
  • The report says the potential licensing deal was not related to the campaign but Cohen, “asked a senior campaign official about potential business travel to Russia.” It’s unclear whether there’s a paper trail of that or not. But there are communications reflecting Cohen’s consideration of other campaign events — definitely the Convention and probably the WaPo report on the DNC hack. And there should be communications showing it go through November, only to be halted — or rather, moved under Segei Millian and George Papadopoulos — once Trump got elected.

While it’s possible the House Intelligence Committee (HPSCI) received the 2015 communications indicating that Trump contemplated working with sanctioned banks during the time he was running for President (in which case it would be scandalous that the Republicans suppressed that detail, and the one that a former GRU officer was involved), much of the rest of these communications could not have been turned over to HPSCI when they requested documents in 2017. While some of the communications are limited to texts between Sater and Cohen, at least some of this paper trail (including Cohen’s meetings with Trump and Don Jr about it) would either reside at the campaign or Trump Organization (or both).

Remember, when SDNY got a warrant — one naming “many” thus far uncharged people — to raid Michael Cohen a month after subpoenaing Trump Organization, they explained there was a concern that documents would get destroyed.

One of the filings on Cohen (I’m still trying to chase down this reference) suggests Mueller had to get his communications on this matter from someone else. It seems likely Mueller had to get the text messages from Sater’s phone (or perhaps even from forensics on Cohen’s own phone).

Nevertheless, the public record identifies an abundant paper trail that should have been turned over to HPSCI, Senate Intelligence Committee (SSCI), and Senate Judiciary Committee (SJC), but could not have been, given what HPSCI reported last March. Additionally, Don Jr’s testimony to HPSCI is necessarily inconsistent with his SJC, yet still appears to include false claims about the Trump Tower deal (though some got cleaned up between his September testimony to SJC and his December testimony to HPSCI).

While Cohen was initially formally subpoenaed (though possibly only for Steele dossier documents), Trump Organization, Felix Sater, and the campaign were not.

Adam Schiff’s committee can make an important first step to clear up questions about the degree to which Trump only tacitly permitted Cohen, Sater, and his spawn to lie to Congress, or whether — as was the case with the June 9 response — his lawyers worked directly with witnesses to craft a false message to the public and Congress. If the June 9 response is any indication, there should be communications directly between Alan Futerfas or Garten with Cohen as he crafted his false story, which would go a long way to showing that their ultimate client suborned perjury.

Rosenstein’s intervention with Mueller’s office regarding Friday’s statement suggests that he, the Big Dick Toilet Salesman, or their boss, may be trying to tamp down discussions about Trump participating in Cohen’s lies. But because the discovery to HPSCI was so obviously incomplete, that committee has an available significant first step that could answer that question themselves, with little opportunity for DOJ to prevent that (and, given that the documents have already been identified in Buzzfeed’s story already, probably little risk of damaging the Mueller investigation in the way that further Cohen testimony might).

It may not be the kind of showboat witness testimony Schiff seems most interested in right now. But he has the ability to demand all the documents that show what details Cohen, Sater, and the President’s company and campaign knew to withhold to sustain Cohen’s lies. That — and a request for any communications about this matter, both in 2017 and in the wake of last year’s raid on Cohen — would go a long way towards answering a question that only Congress can deal with anyway: the degree to which Donald Trump orchestrated his lawyers’ lies about his ongoing business negotiations with Russia while Russia was helping him get elected.

House Intelligence Report

In approximately September 2015, he received a separate proposal for Trump Tower Moscow from a businessman named [Sater] According to Cohen, the concept of the project was that “[t]he Trump Organization would lend its name and management skills, but It was not going to borrow any money and it would not have any resulting debt for the purchase of the land and the building of the facility.”;~ Cohen worked on this idea with [Sater] and his company, the Bayrock Group, a real estate consultancy that had previously worked with the Trump Organization.

[gratuitous paragraph on what a colorful fellow Sater is]

(U) After signing a letter of intent with a local developer in October 2015,36 Cohen and [Sater] exchanged a number of emails and text messages in late 2015 detailing their attempts to move the project forward. For instance, in December 2015, [Sater] tried to get Cohen and candidate Trump to travel to Russia to work on the project.

(U) Several of [Sater’s] communications with Cohen involved an attempt to broker a meeting or other ties between candidate Trump and President Putin, and purported to convey Russian government interest in the project. Perhaps most notably, [Sater] told Cohen in a November 3, 2015, email, “[b]uddy our boy can become President of the USA and we can engineer it.” 39 [Sater] continued that if “Putin gets on stage with Donald for a ribbon cutting for Trump Moscow, . .. Donald owns the republican nomination.” 10 This assertion apparently arose from [Sater’s] rather grandiose theory that cementing a deal with a hostile U.S. adversary would increase candidate Trump’s foreign policy bona fides.41

(U) Sater testified that his communications with Cohen regarding President Putin were ”mere puffery,” designed to elicit a response from the · Trump Organization to move the project along.42 [Sater] explained that “[u]ntil the bank writes the check, it’s all salesmanship and promotion to try to get many, many, many parties towards the center to try to get the deal done.” 43 Cohen similarly characterized [Sater] as “a salesman” who “uses very colorful language.”44

(U) When the project started proceeding too slowly for the Trump Organization,45 Cohen and [Sater] began to exchange acrimonious text messages. 46 As part of those text messages [Sater] told Cohen that President Putin’s people were backing the deal, including “this is thru Putins [sic] administration, and nothing gets done there without approval from the top,” as well as meetings in Russia with “Ministers” and “Putins [sic] top administration people.”] [Sater] also mentioned Dmitry Peskov (President Putin’s spokesman) would “most likely” be included. 48

(U) Cohen thus attempted to reach out to members of the Russian government in an attempt to make the project proceed, but apparently did not have any direct points of contact. for example, Cohen sent an email to a general press mailbox at the Kremlin in an effort to reach Peskov.49 Cohen’s message notes that he has been working with a local partner to build a Trump Tower in Moscow and that communications have stalled with the local partner.50 The email further seeks contact with Peskov so they may ” discuss the specifics as well as arrang[e] meetings with the appropriate individuals.”51 Based on the documents produced to the Committee, it does not appear Cohen ever received a response from anyone affiliated with the Russian government.

(U) [Sater’s] testimony likewise made clear that neither President Putin nor any element of the Russian government was actually directly involved in the project. For instance, in one exchange, [Sater] testified he was offering the Trump Organization access to one of his acquaintances. This acquaintance was an acquaintance of someone else who is “partners on a real estate development with a friend of Putin’s.” 52

[Sater] testified that he was unaware of “any direct meetings with any [Russian] government officials” in connection with the Trump Tower Moscow project.53 In addition, neither candidate Trump nor Cohen traveled to Russia in support of the deal.54

[U] It appears the Trump Tower Moscow project failed in January 2016.57 Trump Jr. testified that, as of early June 2016, he believed the Trump Tower Moscow project was dormant.53 The project failed because “[t]he due diligence did not come through” and the Trump Organization’s representative “lost confidence in the licensee, and [he] abandoned the project.”59 In fact, the Trump Organization did not have a confirmed site, so the deal never reached the point where the company was discussing financing arrangements for the project.60 The Committee determined that the Trump Tower Moscow project did not progress beyond an early developmental phase, and that this potential licensing deal was not related to the Trump campaign.61

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

DAG Rod Rosenstein Involves Himself in Mueller’s Press Response to Buzzfeed Story

WaPo has a story that provides the official DOJ version of what happened with the BuzzFeed story the other day. It is certainly one explanation for what has happened since Thursday — one that appears to rely on the same number of anonymous sources (two) as the BuzzFeed story it is reporting on (leaving aside a Trump Organization source for both and off the record sources).

And while I’m confident that parts of my take on what happened are correct, I’ll confess the WaPo story makes it clear I was overly optimistic in dismissing the possibility that Big Dick Toilet Salesman Matt Whitaker or his now-subordinate Rod Rosenstein may have weighed in. Indeed, the story reveals that Rosenstein’s office did call to check whether Mueller was going to release a statement debunking the BuzzFeed story.

In the view of the special counsel’s office, that was wrong, two people familiar with the matter said, speaking on the condition of anonymity to discuss internal deliberations. And with Democrats raising the specter of investigation and impeachment, Mueller’s team started discussing a step they had never before taken: publicly disputing reporting on evidence in their ongoing investigation.

[snip]

In the advanced stages of those talks, the deputy attorney general’s office called to inquire if the special counsel planned any kind of response, and was informed a statement was being prepared, the people said.

That seems to be a violation of Special Counsel regulations, which say that Mueller’s office shall not be subject to day-to-day supervision of any official, whether DAG or Acting Attorney General.

The Special Counsel shall not be subject to the day-to-day supervision of any official of the Department. However, the Attorney General may request that the Special Counsel provide an explanation for any investigative or prosecutorial step, and may after review conclude that the action is so inappropriate or unwarranted under established Departmental practices that it should not be pursued.

Maybe Mueller and Peter Carr don’t care. But it should set off all sorts of alarm bells that as soon as a media report states what has long been clear — that Trump suborned perjury — Mueller’s office is getting calls about how to respond to the press, which last I checked was not an “investigative or prosecutorial step” at all. All the more so given that Carr appears to have bent over backward not to reveal any investigative details to the press, adhering rigorously to any DOJ guidelines on that front.

Whichever side is correct (again, I believe WaPo has just one part of this story), that Rosenstein (or Whitaker) got involved seems to be far more important.

The SCO Statement and Why Cohen Should Not Testify Feb. 7

Marcy wrote a great post this morning titled “Peter Carr Speaks“. I agree with almost all of it, if not all of it, but feel compelled to add a couple of things.

As to what the motivation of Carr and Mueller was, it is, at this date, unclear, despite the high handed and dismissive sudden reactive reportage of Devlin Barrett, Zapotsky and Demerjian at WaPo and Ken Dilanian of NBC/MSNBC. They have shown even less sources and credibility than Buzzfeed that they now conveniently and eagerly dismiss. Maybe the Mueller statement is a tad more nuanced and unknown than that.

As to what the target of the Mueller/Carr statement was, when Marcy says:

But I suspect Carr took this step, even more, as a message to SDNY and any other Agents working tangents of this case. Because of the way Mueller is spinning off parts of this case, he has less control over some aspects of it, like Cohen’s plea. And in this specific case (again, presuming I’m right about the SDNY sourcing), Buzzfeed’s sources just jeopardized Mueller’s hard-earned reputation, built over 20 months, for not leaking. By emphasizing in his statement what happened in “the special counsel’s office,” “testimony obtained by this office,” Carr strongly suggests that the people who served as sources had nothing to do with the office.

Yes, this looks almost certain from where I stand. Wasn’t the only aim of Carr’s arrow on behalf of Mueller, but was a rather large one.

Secondly, and since many media outlets and commenters are clacking about how the proof of Trump directly telling Cohen to lie is the end all and be all as to necessity for discussion, that is just wrong.

The record before the Buzzfeed article already established, through signed and accepted court filings, that Cohen indeed lied to Congress with the express intent of supporting the lies Trump was fostering.

That is not in dispute at this point. As to whether Trump personally ordered Cohen to do so, face to face, (and there is still a decent shot of that being true, but we do not know), that is not the end of the discussion legally.

First off, if those around Trump, (think lawyers and family, if not Trump himself), discussed and encouraged Cohen to lie to Congress, that is a huge problem for Trump. Let me remind people of one of the most basic definitional provisions in the criminal code, 18 USC §2:

(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.

(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.

So,  all of the nonsense by Rudy Guliliani is simply nonsense. That is without even considering conspiracy law and implications thereof.

So, sure, the SCO hit on Buzzfeed hurt the narrative in the press. Did it really hurt the narrative legally? No, not so much.

Lastly, I would like to address the upcoming House Oversight Committee hearing Cohen is scheduled for on February 7. He was voluntarily appearing after restrictions Cummings and the Committee agreed to, purportedly, with Mueller. The ground has changed. Frankly,  I think the hearing this quickly was ill considered and premature grandstanding to start with, but now strikes me as nuts given the changed circumstances after the Buzzfeed piece, SCO brushback and Trump’s direct threats to Cohen’s extended family.

Given the aggressive nature of Trump’s followers, there is a credible threat to Cohen and his family. But, more than that, there is a threat to his credibility and usability as a witness in the future. The ranking member on the House Oversight Committee is the odious Jim Jordan. His other GOP minority members will undoubtedly fall in line to attack Cohen, especially after the vague pushback comment of Carr/Mueller last night. It is set up now as a clown show.

The hearing should either be affirmatively postponed by Cummings or withdrawn from by Cohen personally. There is nowhere near enough good that can come from Cohen’s appearance, and a lot to lose for both him and Mueller given the shitshow that the GOP members will bring to the affair. Cancel that February 7 hearing and testimony. Just do not do it.

[For the record, I originally lodged this as a comment on Marcy’s post, but for unrelated reasons, thought the points about criminal liability and conspiracy needed to be included in a separate post, and did not wish to step on hers at the time.]

Peter Carr Speaks

Yesterday, Mueller’s spox Peter Carr issued a statement vaguely denying Thursday’s Buzzfeed story claiming that Trump ordered Michael Cohen to lie.

BuzzFeed’s description of specific statements to the special counsel’s office, and characterization of documents and testimony obtained by this office, regarding Michael Cohen’s congressional testimony are not accurate.

Clearly, there are parts of the story that are correct, in that they provide specific details that match the vague ones Mueller himself has released.

The new details in the story include a price tag for the Trump Tower detail: Trump, “hoped could bring his company profits in excess of $300 million” (Mueller’s sentencing memorandum stated that the deal might be worth “hundreds of millions of dollars from Russian sources in licensing fees and other revenues”).  It quantifies how many times Trump and Cohen spoke about the deal: Trump, “had at least 10 face-to-face meetings with Cohen about the deal during the campaign.” It also confirms that Don Jr and Ivanka were the “family members” described in Cohen’s allocution who were apprised of the details.

That, by itself, suggests that Buzzfeed’s sources have direct access to some of this evidence.

But one thing Mueller is almost certainly responding to is a claim that puts blame for the lies Cohen told to Congress on Trump. Michael Cohen is under oath saying not that Trump ordered him to lie, but that he lied to match the messaging that Trump was using.

By 2017 I was no longer employed in this capacity, but continued to serve on several matters as an attorney to the former CEO of the Trump Organization and now President of the United States, who is referred to as Individual 1 in the information.

As I had in the years before the election, I continued in 2017 to follow the day-to-day political messaging that both Individual 1 and his staff and advisers repeatedly broadcast, and I stayed in close contact with these advisers to Individual 1. As such, I was aware of Individual 1’s repeated disavowals of commercial and political ties between himself and Russia, his repeated statements that investigations of such ties were politically motivated and without evidence, and that any contact with Russian nationals by Individual 1’s campaign or the Trump Organization had all terminated before the Iowa Caucus, which was on February 1 of 2016.

In 2017, I was scheduled to appear before the Senate Select Committee on Intelligence as well as the House Permanent Select Committee on Intelligence concerning matters under their investigation, including principally whether Russia was involved in or interfered in the 2016 campaign and election.

In connection with my appearances, I submitted a written statement to Congress, including, amongst other things, a description of a proposed real estate project in Moscow that I had worked on while I was employed by the Trump Organization.

That description was false — I knew at the time — in that I had asserted that all efforts concerning the project had ceased in January of 2016 when, in fact, they had continued through June of 2016;

That I had very limited discussions with Individual 1 and others in the company concerning the project, when in fact I had more extensive communications; and,

Lastly, that I had never agreed to travel to Russia in connection with the project and had never asked Individual 1 to travel, when in fact I took steps to and had discussions with Individual 1 about travel to Russia.

And I would like to note that I did not in fact travel there, nor have I ever been to Russia.

I made these misstatements to be consistent with Individual 1’s political messaging and out of loyalty to Individual 1. [my emphasis]

That’s a point I made yesterday: Buzzfeed’s story materially differed from the sworn testimony in the case, and even if their sources were right that, in fact, Trump sanctioned Cohen’s lie, they should have explained why Mueller says differently.

Notably, Cohen’s allocution says that he “stayed in close contact with these advisers to Individual 1,” not that he was talking to Trump directly. It’d be hard (though by no means impossible) to have been ordered directly by Trump to lie if he was no longer in day-to-day contact with Trump.

Carr is also seemingly objecting to this characterization:

The special counsel’s office learned about Trump’s directive for Cohen to lie to Congress through interviews with multiple witnesses from the Trump Organization and internal company emails, text messages, and a cache of other documents.

That’s unsurprising. He’s denying that Mueller has documents and Trump Organization (which may be different from White House) witnesses that would make Cohen’s sworn allocution false. In any case, Trump doesn’t use email, so there’s no email where Trump ordered Cohen to lie.

My very strong suspicion is that this happened — and Mueller pushed back — for two reasons.

First, as I noted yesterday, Buzzfeed’s sources appear to have access to primary evidence, but their focal awareness of what Cohen said to Mueller appears to be limited to precisely what Cohen’s sentencing memo had. That is, Buzzfeed didn’t receive any of the details that would be more useful for understanding how the Trump Tower deal relates to any larger conspiracy between Trump and Russia, they received the details that made it into the sentencing memo.

Cohen’s sentencing went through SDNY, where his other guilty plea was, which means SDNY (both the US Attorney’s office and the FBI Field Office) would have visibility on that process. So it’s likely that Buzzfeed’s sources are there, which would be consistent with the two descriptions Buzzfeed provided for their two law enforcement sources.

two federal law enforcement officials involved in an investigation of the matter

law enforcement sources familiar with his testimony to the special counsel

If that’s right, it explains a big part of what happened. As I noted yesterday, there’s a stark difference in the way that Cohen allocuted his hush payments for Trump and the way he allocuted his lies for Trump. Regarding the hush payments, he says he acted at the direction of Trump.

With respect to the conduct charged in these Counts, Michael kept his client contemporaneously informed and acted on his client’s instructions. This is not an excuse, and Michael accepts that he acted wrongfully. Nevertheless, we respectfully request that the Court consider that as personal counsel to Client-1, Michael felt obligated to assist Client-1, on Client-1’s instruction, to attempt to prevent Woman-1 and Woman-2 from disseminating narratives that would adversely affect the Campaign and cause personal embarrassment to Client-1 and his family. [my emphasis]

Regarding the lies to Congress, he says he was just trying to advance Trump’s political messaging.

Michael’s false statements to Congress likewise sprung regrettably from Michael’s effort, as a loyal ally and then-champion of Client-1, to support and advance Client-1’s political messaging. [my emphasis]

Both these statements would have been written in consultation with the prosecutors running the case. So SDNY used a fairly aggressive frame to implicate Trump in the hush payments, whereas Mueller was much more circumspect about Trump’s role.

The difference may, in part, be that when Cohen made those hush payments he was still working directly for Trump, and so was in a position to get a direct order rather than speaking (as he said he was) with Trump’s advisers. But even if both cases basically show Trump making his intentions known and Cohen executing those intentions, there’s a good reason for the asymmetry on the description.

Cohen is not a cooperating witness for SDNY. While they continue to investigate Trump and Trump Organization for campaign finance violations, they’re not relying on Cohen to make that case. They’re relying on immunized testimony from Allen  Weisselberg and David Pecker. So SDNY (whether people in the office or FBI Agents assigned to the case) has no incentive to be exacting in their description of the evidence on the Trump Tower deal. They can go big, just like they did in the hush payment allocution.

Cohen is, however, a cooperating witness for Mueller. If and when they make a case that the Trump Tower deal was part of a larger election year conspiracy, they will likely need to be able to call Cohen to the stand and describe the truth of how he kept Trump and Don Jr in the loop on the deal, most notably to explain how it factored into Don Jr’s mindset when he accepted a meeting offering dirt in exchange for sanctions relief. They need Cohen to explain that Don Jr would have understood there was $300 million riding on that meeting.

Everything about how Mueller’s team has handled Cohen attests to that possibility. They didn’t need to charge him with false statements and the charge did not add any prison time to his sentence. They didn’t need to make him publicly explain, under oath, why he lied. But by doing that, they began to rehabilitate Cohen publicly. In spite of Cohen’s significant cooperation, they didn’t offer him a 5K letter at sentencing, meaning he’s still on the hook for cooperation; unlike Mike Flynn, for example, he’s not getting a sentence reduction before he takes the stand. But because of the way they handled it, they can mandate his silence about what he told Mueller, demand that Congress limit the scope of his testimony next month, and dictate any response Cohen made yesterday to the story.

The possibility they’ll put Cohen on the stand is likely one reason why Cohen’s allocution about the Trump Tower lies is so much more modest than the SDNY allocution: Mueller will need to be able to corroborate, with other documentary evidence, everything that Cohen will ultimately testify to. And so while they may have reason to believe Trump approved of the lies being told on his behalf — maybe even ordered people at Trump Organization or his spawn to do what they needed to sustain the lies (which might look to SDNY law enforcement as clear evidence that he was directing the lies) — Mueller is not going to set the bar for proof of Cohen’s statement anywhere further than they need for a possible larger conspiracy case. And they don’t need to prove that Trump had a role in Cohen’s lies. Rather, they need to be able to prove that Cohen kept Trump and Don Jr in the loop on the deal itself.

If all this is right, it — and not the magnitude of any errors in the Buzzfeed story (because there have been a number of other big stories where the errors were clearly just as significant) — explains why Carr issued a statement yesterday. First, to make it very clear that in Mueller’s mind, Cohen’s allocution was honest, that he wasn’t (for example) protecting Trump in taking responsibility for the initial lie. But also, to make sure the bar they very deliberately set for Cohen’s testimony remained precisely where they put it in his plea allocution. The last thing Mueller needs is a juror who thinks that unless they show an email with Trump ordering Cohen to lie, then Cohen’s testimony is false. And by making this unprecedented statement, Mueller will make it harder for any defense attorney to raise the bar on what Mueller needs to prove in this case.

There’s probably another reason why Carr made this statement. I don’t doubt that Mueller hates Jason Leopold and Anthony Cormier for the way they got the financial transfer part of this story when no one else did, and more of the Moscow Tower deal story than others (which seems to be forgotten in the squawking about Buzzfeed’s loneliness on this latest story).

But I suspect Carr took this step, even more, as a message to SDNY and any other Agents working tangents of this case. Because of the way Mueller is spinning off parts of this case, he has less control over some aspects of it, like Cohen’s plea. And in this specific case (again, presuming I’m right about the SDNY sourcing), Buzzfeed’s sources just jeopardized Mueller’s hard-earned reputation, built over 20 months, for not leaking. By emphasizing in his statement what happened in “the special counsel’s office,” “testimony obtained by this office,” Carr strongly suggests that the people who served as sources had nothing to do with the office.

A couple more points. A lot of people are complaining that Carr didn’t more aggressively warn Buzzfeed off the story (though he did provide what sounds like Cohen’s allocution, which — if it had been reviewed by one of Buzzfeed’s superb legal reporters — probably would have led to the cautions I raised yesterday). I get why that would be nice. But I think people really misunderstand the degree to which Mueller knows that every single action they take will eventually be subjected to scrutiny courtesy of a Judicial Watch FOIA. And any hint at all that Carr provided any inkling about the case to journalists will be blown up by Trump and his lawyers.

Finally, the actions Carr took yesterday (and Mueller’s big-footing on Cohen’s testimony before the Oversight Committee next month) only make sense if Cohen might have to play a role in a possible trial, and not a report submitted confidentially to Attorney General William Barr. That’s what more likely explains Carr’s response than anything else: the discrepancy between what Buzzfeed reported and what Cohen allocuted posed a risk to a possible jury trial. And that may explain another reason why Mueller is a lot more modest about Trump’s role in Cohen’s lies than SDNY is.

Trump’s not going to be indicted by Mueller — at least not before he leaves office via election defeat or impeachment. So Mueller’s focus needs to be on the crimes of those he can charge, like Don Jr. That doesn’t rule out that the evidence he’s looking at shows that Trump oversaw a series of coordinated false statements. He did! With Mike Flynn’s lies, Don McGahn’s clean up of Flynn and Jim Comey’s firings, the response to the June 9 meeting, and yes, this Trump Tower deal, nothing explains the coordinated story-telling of multiple Trump flunkies other than Trump’s approval of those lies. It is, frankly, journalistic malpractice that the press hasn’t noted that, especially on the June 9 meeting, the evidence that Trump lied and ordered others to has already been made public. Trump’s tacit (and explicit, with the June 9 statement) approval of serial false statements, to Congress, to the FBI Director, to FBI Agents, and to Mueller, is an impeachable offense. Multiple outlets have gotten solid proof of that, they just haven’t stated the obvious like Buzzfeed did, perhaps in part because they’re relying on White House sources for their reporting.

But Mueller won’t need to allege that for his case in chief, at least not on the issue of the Trump Tower deal. Because the events that matter to Mueller’s case in chief — the events to which Cohen might have to serve as a witness — happened in 2016, not 2017 or 2018. And the guilt that Mueller would need to prove beyond a reasonable doubt if he does indict this conspiracy is not Trump’s guilt — except as an unindicted co-conspirator. It is Don Jr’s guilt.

So outlets that are suggesting that Mueller’s pushback backs off any evidence that Trump committed a crime make no more sense than the original Buzzfeed report (and ignore the actual evidence of how Cohen’s lies evolved, an evolution in which these outlets were active participants). The only thing that explains Carr issuing such an unprecedented statement is if Cohen’s ability to testify on the stand must be preserved.

Robert Mueller has the unenviable task of needing to sustain as much credibility for a bunch of serial liars as possible, starting with Michael Cohen. Buzzfeed’s story — whether generally true or erroneous on details about Trump Organization witnesses or totally wrong — threatened that effort.

And that’s why, I strongly suspect, Peter Carr finally publicly spoke.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

Compromise: Before Trump Won His First Primary, Putin Collected His First Receipt

In this post, I noted that, while important, the Buzzfeed story on Trump’s role in Michael Cohen’s lies to Congress did not advance our understanding of  how the Trump Tower deal fits into the larger Trump conspiracy with Russia.

It doesn’t include a number of details that would be more important for understanding how the Trump Tower deal relates to other parts of Trump’s conspiracy with Russians: who (if not Trump himself or Don Jr) was the senior campaign official who knew of Cohen’s negotiations, precisely what Don Jr knew of the negotiations on June 3 when he took a meeting described to be “part of  Russia and its government’s support for Mr. Trump,” and whether the timing of Cohen’s plans for a trip to St. Petersburg — which started on June 9 and ended on June 14 — related somehow to the June 9 Trump Tower meeting and the June 14 revelation that Russians had hacked the DNC. It’d also be useful to know whether Cohen had any 2016 dealings with Ike Kaveladze, who knew of Cohen from the 2013 business dealings between Trump and the Agalarovs, and who had a curious reaction to a video of him in the wake of the June 9 meeting story breaking. Those are the details that would advance the story of how the Trump Tower deal relates to Russia’s efforts to hack the election.

But there is a piece of the Cohen statement of the offense the significance of which hasn’t gotten sufficient attention. That’s the detail that Dmitry Peskov’s personal assistant took detailed notes from a 20-minute January 20, 2016 phone call with Cohen, which led to Putin’s office contacting Felix Sater the next day.

On or about January 16, 2016, COHEN emailed [Peskov]’s office again, said he was trying to reach another high-level Russian official, and asked for someone who spoke English to contact him.

On or about January 20, 2016 , COHEN received an email from the personal assistant to [Peskov] (“Assistant 1 “), stating that she had been trying to reach COHEN and requesting that he call her using a Moscow-based phone number she provided.

Shortly after receiving the email, COHEN called Assistant 1 and spoke to her for approximately 20 minutes. On that call, COHEN described his position at the Company and outlined the proposed Moscow Project, including the Russian development company with which the Company had partnered. COHEN requested assistance in moving the project forward, both in securing land to build the proposed tower and financing the construction. Assistant 1 asked detailed questions and took notes, stating that she would follow up with others in Russia.

The day after COHEN’s call with Assistant 1, [Sater] contacted him, asking for a call. Individual 2 wrote to COHEN, “It’s about [the President of Russia] they called today.”

Cohen had lied about this, claiming that he had emailed Peskov’s public comment line just once, but gotten no response.

This language is important not just because it shows that Cohen lied.  It’s important because of what Cohen would have said to Peskov’s assistant. And it’s important because a written record of what Cohen said got handed on to Putin’s office, if not Putin himself.

BuzzFeed’s piece from May reveals that Cohen would have been in discussions with one of two banks in January 2016: VTB or GenBank.

Their surrogates in Moscow would be meeting with Putin and a “top deputy” just two days later, and they had financing: VTB Bank President and Chairman Andrey Kostin was on board to fund the project, Sater said in an email.

The bank was a dicey choice. VTB was under US sanctions at the time, with American citizens and companies forbidden to do business with it. Asked by congressional investigators if he knew the bank was blacklisted, Sater responded: “Of course. I wasn’t seeking funding, the local development partner would have. Trump Organization never gets financing from local partners.”

[snip]

New Year’s Eve 2015, he sent Cohen an image of a letter from GenBank — not VTB Bank, as they had earlier discussed — inviting the men to Moscow for a visit.

Just nine days earlier, the US Treasury Department had sanctioned GenBank for operating in Crimea after the disputed Russian takeover. GenBank became the first Russian financial institution to move into the Crimean peninsula.

Both were sanctioned. While Sater (who seems to have knowingly set this trap) dismissed the import of the sanctions, Cohen clearly knew — and left record that he knew in communications with Sater — that they were the intended funders.

A former GRU officer contact of Sater’s was key to obtaining funding from VTB.

This friend is a former member of the GRU, Russia’s military intelligence unit that the US intelligence community believes interfered during the 2016 election.

[snip]

[On December 19], Sater told Cohen that their invitations and visas were being arranged by VTB Bank, and that Kostin, the bank’s powerful president and chairman, would meet Cohen in Moscow. Key to getting VTB on board was the former GRU spy; Sater told congressional and special counsel investigators that the former spy said he had a source at VTB Bank who would support the deal.

Obtaining funding from GenBank would have relied on Putin and Peskov.

Sater told Cohen that GenBank operates “through Putin’s administration and nothing gets done there without approval from the top. The meetings in Moscow will be with ministers — in US, that’s cabinet-level and with Putin’s top administration people. This likely will include Dmitry Peskov, Putin’s press secretary. To discuss goals, meeting agenda and meeting time between Putin and Trump.”

The BuzzFeed article makes it clear that Sater’s GRU contact got back involved after Cohen’s conversation with Peskov’s assistant.

All of which is to say that when Cohen called Peskov’s assistant, he would have told her that he was speaking on behalf of Donald Trump, that Trump remained interested in a Trump Tower in Moscow (as he had been in 2013, the last time Putin had dangled a personal meeting with Trump), and that on Trump’s behalf Cohen was willing to discuss making a deal involving both a sanctioned bank (whichever one it was) and a former GRU officer.

So it’s not just that Trump was pursuing a real estate deal while running for President. He was pursuing a real estate deal involving a sanctioned  bank — possibly one sanctioned for its involvement in Crimea — and involving someone with ties to the intelligence agency that was preparing to hack Hillary Clinton’s campaign manager.

Cohen told Peskov’s assistant Trump was willing to negotiate that deal while running for President. The assistant wrote all that down (how Mueller knows this is an interesting question on its own right). And then she or Peskov passed on at least the content of the notes to get Putin’s office to contact Sater.

And all that happened before Trump performed unexpectedly well in the Iowa caucuses on February 1.

Last year, I argued that — pee tape or no — the kompromat Putin has on Trump consists of a series of receipts of Trump formally communicating his willingness to enter into a conspiracy with Russia, receipts that would be devastating if Putin released them.

Trump and the Russians were engaged in a call-and-response, a call-and-response that appears in the Papadopoulos plea and (as Lawfare notes) the GRU indictment, one that ultimately did deal dirt and got at least efforts to undermine US sanctions (to say nothing of the Syria effort that Trump was implementing less than 14 hours after polls closed, an effort that has been a key part of both Jared Kushner and Mike Flynn’s claims about the Russian interactions).

At each stage of this romance with Russia, Russia got a Trump flunkie (first, Papadopoulos) or Trump himself to publicly engage in the call-and-response. All of that led up to the point where, on July 16, 2018, after Rod Rosenstein loaded Trump up with a carefully crafted indictment showing Putin that Mueller knew certain things that Trump wouldn’t fully understand, Trump came out of a meeting with Putin looking like he had been thoroughly owned and stood before the entire world and spoke from Putin’s script in defiance of what the US intelligence community has said.

People are looking in the entirely wrong place for the kompromat that Putin has on Trump, and missing all the evidence of it right in front of their faces.

Vladimir Putin obtained receipts at each stage of this romance of Trump’s willing engagement in a conspiracy with Russians for help getting elected. Putin knows what each of those receipts mean.

What Cohen’s plea deal makes clear is that Putin pocketed the first of those receipts — a receipt showing Trump’s willingness to work with both sanctioned banks and the GRU — even before the first vote was cast. Even before GRU hacked its first Democratic target (though APT 29 had been spying on the Democrats since the previous summer).

Discussing a real estate deal is not, as Trump has repeated, illegal. If that’s all this were about, Trump and Cohen might not have lied about it.

But it’s not. Even before the GRU hacked John Podesta, even before Don Jr told his June 9 visitors that his dad would consider lifting sanctions if he got elected, Michael Cohen let a key Putin deputy know that Trump would be happy to discuss real estate deals that involved both partnering with the GRU and with sanctioned banks.

And Putin has been sitting on that receipt ever since.

Update: 22-paragraphs into a 1400-word story on the latest developments in the Trump Tower Moscow story yesterday, the NYT revealed the name of the officer, without explaining why the connection is important to the larger story of a GRU-led operation targeting the US election.

One of the people Mr. Sater contacted was Evgeny Shmykov, a former general in Russian military intelligence who once worked with anti-Taliban fighters in Afghanistan. Mr. Sater appears to have seen Mr. Shmykov as a conduit to get Russian government approval for the Trump project.

According to emails reviewed by The Times, Mr. Sater sent an urgent message to Mr. Cohen in late 2015 saying that Mr. Shmykov was on the phone and he needed passport information for Mr. Cohen and Mr. Trump so they could receive visas.

As I disclosed in July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

About the BuzzFeed Scoop: It’s Important, But It Oversells the Lying Part

BuzzFeed has an important story that fleshes out what was made clear in Michael Cohen’s allocution, sentencing memo, and the public record (including earlier BuzzFeed reports). Trump and his kids knew a lot about Cohen’s negotiations for a Trump Tower, and also knew and helped sustain his lies to Congress. BuzzFeed even suggests that all the lying came from Trump; on that issue, the story is problematic for reasons I lay out below.

The new details in the story include a price tag for the Trump Tower detail: Trump, “hoped could bring his company profits in excess of $300 million” (Mueller’s sentencing memorandum stated that the deal might be worth “hundreds of millions of dollars from Russian sources in licensing fees and other revenues”).  It quantifies how many times Trump and Cohen spoke about the deal: Trump, “had at least 10 face-to-face meetings with Cohen about the deal during the campaign.” It also confirms that Don Jr and Ivanka were the “family members” described in Cohen’s allocution who were apprised of the details.

Cohen gave Trump’s children “very detailed updates.”

[snip]

The two law enforcement sources disputed this characterization and said that [Don Jr] and Cohen had multiple, detailed conversations on this subject during the campaign.

It doesn’t include a number of details that would be more important for understanding how the Trump Tower deal relates to other parts of Trump’s conspiracy with Russians: who (if not Trump himself or Don Jr) was the senior campaign official who knew of Cohen’s negotiations, precisely what Don Jr knew of the negotiations on June 3 when he took a meeting described to be “part of  Russia and its government’s support for Mr. Trump,” and whether the timing of Cohen’s plans for a trip to St. Petersburg — which started on June 9 and ended on June 14 — related somehow to the June 9 Trump Tower meeting and the June 14 revelation that Russians had hacked the DNC. It’d also be useful to know whether Cohen had any 2016 dealings with Ike Kaveladze, who knew of Cohen from the 2013 business dealings between Trump and the Agalarovs, and who had a curious reaction to a video of him in the wake of the June 9 meeting story breaking. Those are the details that would advance the story of how the Trump Tower deal relates to Russia’s efforts to hack the election.

That said, I have qualms about the way the story deals with the perjury side of this. First, it makes an absurd claim that this is the first time we’ve heard that Trump told someone to lie.

Cohen’s testimony marks a significant new frontier: It is the first known example of Trump explicitly telling a subordinate to lie directly about his own dealings with Russia.

The NYT first reported that Trump floated pardons to Mike Flynn and Paul Manafort in March of last year and they also reported that Mueller had asked Trump about discussions with Flynn about his testimony by the same month. The entire story leading up to Flynn’s firing includes a series of lies, and like Cohen’s false claims about the Trump Tower story featured the kind of matching lies that require coordination (though Trump’s directions to Flynn probably did not include foreknowledge of his FBI interview, so legally the import is that he sustained Flynn’s lies). Manafort, under whatever expectation of a pardon, spent the two months leading up to the election perjuring himself about his ongoing work with Konstantin Kilimnik and communications with the White House, all while reporting back to Trump via his lawyer. Trump had Don McGahn craft a letter to Comey (who, after all, was part of the FBI when he received it) about his firing that hid that he did it because of the Russia investigation, after first writing a statement that acknowledged that clearly. And Trump himself dictated (probably in consultation with Vladimir Putin) a misleading statement about the June 9 Trump Tower meeting, only part of which got cleaned up before Don Jr repeated the misleading comments before Congress. Trump’s current defense attorney Jay Sekulow even went on teevee last August to apologize for repeating a lie Trump told about the June 9 meeting; while he told that lie publicly, the statement Don Jr told to Congress retained part of that lie. Not all of those amount to suborning perjury, but some of them do, and they’ve been public for a long time.

Buzzfeed also suggests that the lying all came from Trump:

the law enforcement sources familiar with his testimony to the special counsel said he had confirmed that Trump directed him to lie to Congress

Cohen’s own public sworn testimony on this issue is slightly different though. He said,

I made these misstatements to be consistent with Individual 1’s political messaging and out of loyalty to Individual 1,

The latter detail may be semantics. After all, Trump Organization necessarily withheld documents from Congress to sustain Cohen’s (and Don Jr’s) lies. So the directive to lie and the coordination obviously came from the top (though some of it was achieved by Cohen’s leaks to the press). And the sentencing memo’s statement that “Cohen described the circumstances of preparing and circulating his response to the congressional inquiries, while continuing to accept responsibility for the false statements contained within it,” make it clear he could have blamed others for the coordination of his lies. But Cohen is on the record suggesting he chose to lie, in contrast to his allocutions with the hush payments, where he said Trump directed him to undertake the criminal activity. The discrepancy on this issue — which could be cleared up with a few details — may otherwise subject Cohen to accusations of perjury in his allocation.

And heck, if Cohen downplayed Trump’s direction of his lies, then that is newsworthy in and of itself.

I’m more concerned that Buzzfeed claimed, on January 17, 2019, that this is the first evidence that Trump ordered someone to lie about Russia. Normally, I’d excuse this kind of exaggeration to get eyeballs as normal publicity for a story. But not coming, as it does, two days after Trump’s nominee to be Attorney General stated clearly in his confirmation hearing that suborning perjury would be clearly criminal, even if done by the President. Yes, William Barr already made that clear in his memo on the Mueller investigation. But few people besides me realized that fact until, in Tuesday’s hearing, he was asked to confirm that things we know Trump has done — such as float pardons — amount to a crime.

And the response to this story, coming two days after Barr made that statement, has been to suggest that the stuff included in it — as distinct from the long line of lies we already knew Trump suborned — would put Trump at legal jeopardy under Barr that he’s not already in.

Trump is already getting itchy upon discovering that Barr has a close relationship with Mueller.

President Donald Trump was startled Tuesday as he watched television coverage of his nominee for attorney general describing a warm relationship with the special counsel Robert Mueller in front of the Senate Judiciary Committee, according to three people familiar with the matter.

During the first day of his confirmation hearing, William Barr described telling the President the first time he met him in June 2017 that he was friends with Mueller, referring to him on a first name basis.

“I told him how well I knew Bob Mueller and that the Barrs and Muellers were good friends and would be good friends when this was all over,” Barr said. “Bob is a straight-shooter and should be dealt with as such.”

While Barr said during his hearing that Trump “was interested” in hearing about the friendship, the details that emerged this week caught the President off guard, the three sources said. He bristled at Barr’s description of the close relationship, complaining to aides he didn’t realize how much their work overlapped or that they were so close.

I think Barr will be shitty on a range of issues (though he’s less of a bigot and homophobe than Jeff Sessions and the Big Dick Toilet Salesman). But there are many reasons to believe, from his testimony, that he won’t interfere with the Mueller investigation. The overhyped claims in this Buzzfeed story, however, are likely to make Trump newly aware of that fact, and could have negative and unnecessary consequences (and in that way, I worry the Buzzfeed story is like NYT’s two underreported stories about the aftermath of the Jim Comey firing, which both did significant damage that could have been avoided with more awareness of the rest of Russian story and more context).

The Buzzfeed story is important for the concrete details it adds to a story we already knew — and these reporters deserve a ton of kudos for consistently leading on this part of the story. But it has unnecessarily overhyped the uniqueness of Trump’s role in these lies, in a way that could have detrimental effect on the country’s ability to actually obtain some kind of justice for those lies.

Update: The language in Cohen’s own sentencing memorandum similarly sets up a contrast in the language used to discuss the hush payments, where his lawyers emphasize Trump’s direction.

With respect to the conduct charged in these Counts, Michael kept his client contemporaneously informed and acted on his client’s instructions. This is not an excuse, and Michael accepts that he acted wrongfully. Nevertheless, we respectfully request that the Court consider that as personal counsel to Client-1, Michael felt obligated to assist Client-1, on Client-1’s instruction, to attempt to prevent Woman-1 and Woman-2 from disseminating narratives that would adversely affect the Campaign and cause personal embarrassment to Client-1 and his family. [my emphasis]

Compare that with their discussion of his Trump Tower lies, which emphasizes his efforts to reinforce Trump’s messaging, but lacks any mention of Trump’s direction.

Michael’s false statements to Congress likewise sprung regrettably from Michael’s effort, as a loyal ally and then-champion of Client-1, to support and advance Client-1’s political messaging. At the time that he was requested to appear before the Senate Select Committee on Intelligence and House Permanent Select Committee on Intelligence, Michael was serving as personal attorney to the President, and followed daily the political messages that both Client-1 and his staff and supporters repeatedly and forcefully broadcast. Furthermore, in the weeks during which his then-counsel prepared his written response to the Congressional Committees, Michael remained in close and regular contact with White House-based staff and legal counsel to Client-1.

As such, he was (a) fully aware of Client-1’s repeated disavowals of commercial and political ties between himself and Russia, as well as the strongly voiced mantra of Client-1 that investigations of such ties were politically motivated and without evidentiary support, and (b) specifically knew, consistent with Client-1’s aim to dismiss and minimize the merit of the SCO investigation, that Client-1 and his public spokespersons were seeking to portray contact with Russian representatives in any form by Client-1, the Campaign or the Trump Organization as having effectively terminated before the Iowa caucuses of February 1, 2016.

Seeking to stay in line with this message, Michael told Congress that his communications and efforts to finalize a building project in Moscow on behalf of the Trump Organization, which he began pursuing in 2015, had come to an end in January 2016, when a general inquiry he made to the Kremlin went unanswered. [my emphasis]

Cohen’s lawyer uses clearly different language on these two issues, language that suggests in the latter case Trump’s “direction” might be what it was for Mike Flynn’s lies.

 

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

How to Talk about Impeachment: Preventing Harm to the Country

In the Atlantic, Yoni Appelbaum has a very long article making the case that the House should start the process of impeaching Donald Trump as a way to start reining in his abuses. At its core, the article argues that impeachment serves as a check on abusive Executive power, whether or not it succeeds. It describes five benefits of starting an impeachment proceeding.

In these five ways—shifting the public’s attention to the president’s debilities, tipping the balance of power away from him, skimming off the froth of conspiratorial thinking, moving the fight to a rule-bound forum, and dealing lasting damage to his political prospects—the impeachment process has succeeded in the past. In fact, it’s the very efficacy of these past efforts that should give Congress pause; it’s a process that should be triggered only when a president’s betrayal of his basic duties requires it. But Trump’s conduct clearly meets that threshold. The only question is whether Congress will act.

I don’t agree with everything in the article. I’ll also note that it dismisses the possibility Trump will be charged with bribery, with virtually no real consideration of the issue.

 The Constitution offers a short, cryptic list of the offenses that merit the impeachment and removal of federal officials: “Treason, Bribery, or other high Crimes and Misdemeanors.” The first two items are comparatively straightforward. The Constitution elsewhere specifies that treason against the United States consists “only in levying War” against the country or in giving the country’s enemies “Aid and Comfort.” As proof, it requires either the testimony of two witnesses or confession in open court. Despite the appalling looseness with which the charge of treason has been bandied about by members of Congress past and present, no federal official—much less a president—has ever been impeached for it. (Even the darkest theories of Trump’s alleged collusion with Russia seem unlikely to meet the Constitution’s strict definition of that crime.) Bribery, similarly, has been alleged only once, and against a judge, not a president.

I’ve argued there’s a good deal of evidence Trump did enter in a quid pro quo agreement — Trump Tower and dirt on Hillary for sanction relief and help with Syria and Ukraine — that would meet even the narrowed standards of bribery laid out in John Roberts’ McDonnell decision.

In any case, the Atlantic piece is very worthwhile. And it serves as welcome background for what I was initially trying to write when I wrote that bribery post.

First, there are more reasons than just Trump’s compromise by Russia to pursue impeachment. Rashida Tlaib laid out the following in the op-ed that preceded her “motherfucker” comment.

We already have overwhelming evidence that the president has committed impeachable offenses, including, just to name a few: obstructing justice; violating the emoluments clause; abusing the pardon power; directing or seeking to direct law enforcement to prosecute political adversaries for improper purposes; advocating illegal violence and undermining equal protection of the laws; ordering the cruel and unconstitutional imprisonment of children and their families at the southern border; and conspiring to illegally influence the 2016 election through a series of hush money payments.

David Leonhardt laid out the reasons this way:

He has repeatedly put his own interests above those of the country. He has used the presidency to promote his businesses. He has accepted financial gifts from foreign countries. He has lied to the American people about his relationship with a hostile foreign government. He has tolerated cabinet officials who use their position to enrich themselves.

Appelbaum describes all the ways Trump violated his oath of office this way:

The oath of office is a president’s promise to subordinate his private desires to the public interest, to serve the nation as a whole rather than any faction within it. Trump displays no evidence that he understands these obligations. To the contrary, he has routinely privileged his self-interest above the responsibilities of the presidency. He has failed to disclose or divest himself from his extensive financial interests, instead using the platform of the presidency to promote them. This has encouraged a wide array of actors, domestic and foreign, to seek to influence his decisions by funneling cash to properties such as Mar-a-Lago (the “Winter White House,” as Trump has branded it) and his hotel on Pennsylvania Avenue. Courts are now considering whether some of those payments violate the Constitution.

More troubling still, Trump has demanded that public officials put their loyalty to him ahead of their duty to the public. On his first full day in office, he ordered his press secretary to lie about the size of his inaugural crowd. He never forgave his first attorney general for failing to shut down investigations into possible collusion between the Trump campaign and Russia, and ultimately forced his resignation. “I need loyalty. I expect loyalty,” Trump told his first FBI director, and then fired him when he refused to pledge it.

Trump has evinced little respect for the rule of law, attempting to have the Department of Justice launch criminal probes into his critics and political adversaries. He has repeatedly attacked both Deputy Attorney General Rod Rosenstein and Special Counsel Robert Mueller. His efforts to mislead, impede, and shut down Mueller’s investigation have now led the special counsel to consider whether the president obstructed justice.

As for the liberties guaranteed by the Constitution, Trump has repeatedly trampled upon them. He pledged to ban entry to the United States on the basis of religion, and did his best to follow through. He has attacked the press as the “enemy of the people” and barred critical outlets and reporters from attending his events. He has assailed black protesters. He has called for his critics in private industry to be fired from their jobs. He has falsely alleged that America’s electoral system is subject to massive fraud, impugning election results with which he disagrees as irredeemably tainted. Elected officials of both parties have repeatedly condemned such statements, which has only spurred the president to repeat them.

These actions are, in sum, an attack on the very foundations of America’s constitutional democracy.

Russia is but one of the reasons why Trump should be impeached.

Indeed, in the last day two new pieces of evidence about the damage Trump has done with his conflicts of interest have come out. A CREW report cataloging all the conflicts of interest generated from the use of Trump properties to curry favor with him.

  • CREW has identified 12 foreign governments that have made payments to Trump properties during his first two years in office, each of which is likely a violation of the Constitution’s foreign emoluments clause. At least three foreign countries held events at Trump properties during his second year in office, and two of them did so after having held similar events elsewhere in previous years.
  • Instead of pushing back on President Trump’s refusal to divest from his business, allies in Congress have embraced the arrangement. 53 U.S. senators and representatives made more than 90 visits to Trump properties during his second year in office, up from 47 visits by 36 members the prior year, and similarly, at least 33 state-level government officials visited Trump properties, likely resulting in taxpayer funds going into Trump’s coffers.
  • More than 150 political committees, including campaigns and party committees, have spent nearly $5 million at Trump businesses since he became president. In Trump’s second year in office, CREW tracked 33 political events held at Trump properties—13 of which Trump himself attended, meeting and speaking with wealthy donors.
  • Special interests held at least 20 events at Trump properties during the president’s second year in office. Since Trump took office, at least 13 special interest groups have lobbied the White House, some for the first time, around the same time they patronized a Trump property, suggesting that making large payments to Trump’s businesses is viewed as a way to stay in his administration’s good graces.
  • Over the past year, President Trump made 118 visits to properties he still profits from in office, bringing his two-year total to 281 visits. CREW also identified 119 federal officials and employees who visited Trump properties over the past year, up from 70 the prior year.
  • In addition to making frequent visits to his properties, President Trump and other White House staff have promoted Trump businesses on at least 87 occasions. Trump himself mentioned or referred to his company 68 times during his second year in office, more than double the 33 times he did so the prior year.
  • Paying members at Trump’s resorts and clubs have received benefits beyond getting occasional face time with the President. Four Mar-a-Lago members have been considered for ambassadorships since his election, and three other members—with no federal government experience—acted as unelected, non-Senate-confirmed shadow officials in Trump’s Veterans Administration.

Yesterday, the Inspector General for the General Services Administration released a report showing that GSA recognized that Trump’s Old Post Office property might present a problem under the Emoluments Clause, but basically blew off reviewing what to do about it.

We found that GSA recognized that the President’s business interest in the OPO lease raised issues under the Constitution’s Emoluments Clauses that might cause a breach of the lease; however, GSA decided not to address those issues in connection with the management of the lease. We also found that the decision to exclude the emoluments issues from GSA’s consideration of the lease was improper because GSA, like all government agencies, has an obligation to uphold and enforce the Constitution; and because the lease, itself, requires that consideration. In addition, we found that GSA’s unwillingness to address the constitutional issues affected its analysis of Section 37.19 of the lease that led to GSA’s conclusion that Tenant’s business structure satisfied the terms and conditions of the lease. As a result, GSA foreclosed an early resolution of these issues, including a possible solution satisfactory to all parties; and the uncertainty over the lease remains unresolved.

Congress doesn’t have to wait for Mueller to begin reviewing Trump’s conflicts of interest. Indeed, it’d be a far better use of the Oversight Committee’s time to chase down these issues than to interview Michael Cohen and in the process endanger a witness central to the Mueller probe.

Importantly, by focusing on the other ways — other than potential Russian compromise — that Trump has placed his self-interest above the good of the country, an impeachment inquiry might step beyond the debate as it currently stands, where impeachment is considered a political question, to one where it becomes a question of preventing ongoing damage to the country (on top of the legal remedy provided by the Constitution, as I noted in my bribery post).

Sure. An impeachment inquiry may not get 20 Republican votes in the Senate to impeach. But it might. In his first post after laying out why impeachment is necessary, Leonhardt laid out numbers showing that Trump is actually weaker than a lot of people assume.

In the days after I revealed that I had shared information with the FBI, I met with a few Republicans — that was a big part of the reason why I did go public. Remember, I didn’t go to the FBI about Trump, I went about information about the election year attack; but I suspected — and indeed confirmed — that even key members of Congress did not understand the full scope of the attack. My goal in meeting with those Republicans was to point out the damage they were doing by running interference for Trump instead of making sure that the country mounted an adequate response to those aspects of the attack that were not public. I started one meeting with a key Republican member of Congress (we both agreed we would not reveal we had met) literally by saying I was taking a leap of faith in even meeting with him. We agree on literally nothing in politics, except that we love our country. As I left that meeting, that member of Congress told me we may agree on more than I knew.

But that conversation was not about Donald Trump. It was, instead, about how the focus on winning a political fight over Donald Trump was distracting from ensuring the well-being of the country.

We are almost four weeks into a government shutdown that serves just one purpose: to ensure that Donald Trump doesn’t have to face Ann Coulter’s criticism, and the ego damage, of admitting he failed to implement a campaign promise he never delivered over two years of two-house Republican rule. We’ve had stupid government shutdowns before. But never before have we failed to fund the government because one narcissistic man put his own ego above the good of the country.

Now, more than ever, it should be easy to talk impeachment not as a way for Democrats to win partisan advantage by taking down Donald Trump, but as a way to protect the country from the harm he is doing. For the same reason, Democrats should be especially careful about how they talk about impeachment (as this great Balkans Bohemia thread argues); because to actually prevent further damage, impeachment needs to be a sober, legitimate process. That’s what impeachment needs to be about: not a political question. But a question about how to protect the one thing we all share — this country.

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