July 18, 2019 / by 

 

Roger Stone Lawyer Bruce Rogow Concedes His CrowdStrike Ploy Was Just That

Most of the reporting on Roger Stone’s status hearing yesterday has focused on whether Judge Amy Berman Jackson would hold Stone in contempt for violating her gag. She did find he had violated her gag, but responded only by prohibiting him from using Twitter, Facebook, or Instagram — an outcome consistent with what I laid out here. Shortly after the hearing ended, Stone’s spouse, Nydia, posted a picture of the two of them on Instagram, though on terms that are within the terms permitted by ABJ’s gag.

I’m more interested, however, in the exchanges covering Stone’s Fourth Amendment challenge to all the warrants against him and his demand to obtain full copies of the CrowdStrike reports (including descriptions of what new defenses CrowdStrike implemented) provided to the Democrats and shared with the FBI, a pair of motions that Stone successfully used to inflame conspiracies among frothy right and denialist left.

It was always clear this was about disinformation. After all, the very same lawyers had argued for the very same client that Russia did do the hack in the DNC lawsuit.

Predictably, ABJ was clearly having none of the Fourth Amendment challenge. She repeatedly challenged Stone’s motion by undermining his false claim, noting that the FBI relied on the US Intelligence Committee’s attribution of the DNC hack to Russia and not — as Stone had claimed and the useful idiots responding to his motion had repeated unquestioningly — the CrowdStrike reports. Aaron Zelinsky sounded like a DFH blogger when he described the effort as an attempt, “to backdoor a debunked conspiracy theory.”

A more telling moment came when ABJ got Bruce Rogow to concede that Stone’s team had not acted as if they really needed the CrowdStrike reports, as they had claimed to inflame their useful idiots.

The government had represented they didn’t have the full reports (as noted, in the reports the Democrats shared with the FBI, they redacted the information describing what they did to harden their networks).

At the direction of the DNC and DCCC’s legal counsel, CrowdStrike prepared three draft reports.1 Copies of these reports were subsequently produced voluntarily to the government by counsel for the DNC and DCCC. 2 At the time of the voluntary production, counsel for the DNC told the government that the redacted material concerned steps taken to remediate the attack and to harden the DNC and DCCC systems against future attack. According to counsel, no redacted information concerned the attribution of the attack to Russian actors. The government has also provided defense counsel the opportunity to review additional reports obtained from CrowdStrike related to the hack.

[snip]

As the government has advised the defendant in a letter following the defendant’s filing, the government does not possess the material the defendant seeks; the material was provided to the government by counsel for the DNC with the remediation information redacted. However, the government has provided defense counsel the opportunity to review additional unredacted CrowdStrike reports it possesses, and defense counsel has done so. 3

1 Although the reports produced to the defendant are marked “draft,” counsel for the DNC and DCCC informed the government that they are the last version of the report produced.

2 The defendant describes the reports as “ heavily redacted documents,” Doc. 103, at 1. One report is thirty-one pages; only five lines in the executive summary are redacted. Another runs sixty-two pages, and redactions appear on twelve pages. The last report is fifty-four pages, and redactions appear on ten pages.

3 These materials are likewise not covered by Brady, but the government produced them for defense counsel review in an abundance of caution.

As ABJ noted, given the representation that the government doesn’t have full unredacted reports, asking for them from the government is pointless, something Rogow conceded. The way to get the full reports, ABJ noted, would be to subpoena them from the Democrats or CrowdStrike itself.

And Stone’s lawyer admitted they hadn’t done that.

This is tantamount to a confession that Stone never really needed the documents in the first place, but instead only wanted to use them to stake a false claim about them in the press.

And given the large number of people who repeated the claim credulously, that effort succeeded.

Update: After issuing a minute order yesterday, ABJ issued a written one today, making it clear that Stone can’t just move to Gab or have Nydia post for him to get around the gag.

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. 


Renewing My Obsession with Paul Manafort’s iPods: Robert Mueller’s 2,300 Media Devices

In an attempt to argue that properly processing Jason Leopold’s admittedly very broad FOIA for materials relating to the Mueller investigation, DOJ has claimed that it would need to process the contents of 2,300 media devices to fully comply with his FOIA, which would amount to more content than is stored in the Library of Congress.

For Request No. DOJ-2019-003143—Plaintiffs’ request for all records from the Office of the Special Counsel—the volume of responsive documents is enormous. Defendant estimates that the approximate number of responsive records that OIP would process is as follows:

  • 11 terabytes of non-email digital data, which is the approximate equivalent of 825 million pages (assuming each terabyte consists of 75 million pages); and
  • 318 gigabytes of email, which is the approximate equivalent of over 215 million pages (assuming each gigabyte consists of 677,963 pages).

Defendant estimates that the approximate number of responsive records that FBI would process is as follows:

  • More than 2 million pages of investigative records that are not on media devices; and
  • More than 2,300 media devices that have a combined storage capacity of 240 terabytes of data. If these devices are filled to capacity, this is the approximate equivalent 18 billion pages. [my emphasis]

I find that number — 2,300 — intriguing, given that in the public records on the investigation, I’m not sure we’ve seen warrants reflecting that volume of production. As a reminder, here’s what we know about the warrants obtained in the DC District; there are around 321 docket entries, the better part of which are for stored content rather than searches of media devices. The volume of devices obtained with DC searches would mean the balance of the 500 warrants Mueller obtained are either still sealed, precede Mueller’s appointment, or in other districts.

As a test of how we get to that number, consider what we learned as part of my continuing obsession with Paul Manafort’s iPod habit (I was interested in that habit, in part, because iPods can be used for non-telephonic texting). Just from the search of Manafort’s condo, the government obtained the contents of over 83 devices (note there were some device extractions done as part of the search).

  • 4 DVD discs
  • 7 external hard drives
  • 12 SD cards
  • 7 memory sticks
  • 1 micro SD card
  • 1 iPod
  • 3 compact flash cards
  • 1 MacBook Air hard drive
  • 2 iPads
  • 9 thumb drives
  • 1 iPhone
  • 1 micro vault pro
  • 1 DEWF_COMBO1: A 1TB (containing forensic images and device extractions from rooms: C, F, K, and Q)
  • 7 iPods
  • 1 iMac (including 1 Solid State Drive (SSD) and 1 Hard Disk Drive (HDD))
  • 4 iPhones
  • 1 SD card
  • 12 digital flash drives
  • 1 Macbook Air
  • 2 iPad Minis
  • 2 micro SD HC cards
  • 2 SD HC cards
  • 1 ultra-SD XC I card

My impression is that the government seized fewer devices from Michael Cohen and the same or more from Roger Stone, plus three from George Nader. But they are the only public searches of residences that would result in a big haul of devices, meaning about 300 would be from those three men (there are around 3 searches of residences the owners of which are not identified in the DC docket). Cooperating witnesses like Rick Gates and — before he reneged — Mike Flynn likely provided a number (Flynn described facilitating the production of electronic devices in his sentencing memo), though probably not that high of one, of devices. And many of Mueller’s 500 witnesses provided their phones “voluntarily,” or had some of their content subpoenaed. Mueller also obtained the transition cell phones and laptops for 13 transition officials, but the team appears to have obtained warrants before actually searching them, meaning they’re already accounted for in the DC docket.

Still, somehow that gets us from a universe of around 1,000 devices (counting 500 from Manafort, Cohen, Stone, Gates, and Flynn, plus 500 more from witnesses) to 2,300.

So there’s still a great number of media devices the source of which is not readily apparent.

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 Original Subpoenas in the Mike Flynn FARA Investigation

The trial of Mike Flynn partner Bijan Kian, which gets started today in earnest, is as interesting for the exhibits reflecting on Flynn himself as they are for the Kian case (which he still stands a good chance of winning, given a variety of reasons). For example, yesterday the government had to file a motion to compel production from Covington, the law firm of Flynn’s original lawyer Rob Kelner, to obtain documents they presumably already obtained voluntarily from Flynn.

On Friday, July 12, 2019, the government verbally requested that current counsel for FIG produce these materials, and noted that time was of the essence, given that trial was scheduled to begin on Monday, July 15. Also on July 12, the government emailed this request to FIG’s current counsel and to Covington, attaching the April 5th subpoena, the June 15th subpoena, and the Court’s memorandum opinion. Covington responded by email the same day, copying FIG’s current counsel and General Flynn’s current counsel, and proposed that the government engage with them because they are the ones who would have to authorize any production at this point because the documents belong to them. To date, neither FIG’s current counsel nor General Flynn’s current counsel have responded to the government’s request to produce these documents.

If nothing else, any current resistance from Flynn to providing these documents will establish more evidence for Emmet Sullivan that Flynn is trying to undermine the government’s case against Kian (which may well succeed).

But the motion is interesting, as well, for what it reveals about how Flynn’s false FARA filing turned into charges.

The concern that the government would subpoena Flynn for FARA backup appears repeatedly in the notes his current lawyers released recently.

On April 5, 2017 — less than a month after Flynn submitted his FARA filing — EDVA prosecutor William Sloan sent a subpoena anyway, at first asking for a ton of organizational documents on Flynn Intelligence Group, asking for records including internal memoranda on Inovo BV, Ekim Alptekin, Ibrahim Kurtulus, and FIG’s work for Turkey and Inovo specifically. On June 15, 2017, Brandon Van Grack — using his EDVA address, not his Special Counsel one yet (it’s not clear Mueller’s grand jury had been convened yet) — sent another subpoena. The language of the subpoena should largely have covered the same material — asking for any and all documents relating to FIG, including internal memoranda generally, dated from January 1, 2014 to the present. This subpoena named Flynn Sr, his spawn, and Bijan Kian specifically. It also asked for,

a copy of any FIG LLC and FIG INC documents and physical objects that you have provided to Congress or any congressional committees from January 1, 2014, to present.

The second, broader subpoena, particularly with the reference to congressional requests, would have incorporated Russian matters, such as Flynn’s spawn’s notes after their meeting with Sergey Kislyak.

In his sentencing memo, Flynn said that he had voluntarily provided documents (but admitted there were still five productions of documents produced after he pled).

Even before his voluntary pre-plea proffer sessions, he had chosen to produce sweeping categories of documents held by his two companies, rather than fight over the breadth of subpoenas, and facilitated the production of electronic devices. After his Plea Agreement, he made another five productions of documents.

This may or may not be a big deal, but if going to trial without Flynn’s cooperation but with broad waivers of Covington’s privilege leads to him having to fully respond to an admittedly broad subpoena he always treated as voluntary, it may have some risk for Flynn going forward.

In which case Flynn might still be in the running for the Trump associate who fucked up good lawyering in most spectacular fashion.

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. 


On CNN’s WikiLeaks Exclusive: Remember the Other Document Dumps

CNN has a report on leaked security records describing some of the visitors and improved computer equipment Julian Assange got in 2016, as Russia was staging the election hack-and-leak. The story is a better expose of how increased pressure from the US and a change of president in Ecuador dramatically changed Assange’s freedom to operate in the Ecuadorian Embassy in London, with many details of the internal Ecuadorian politics, as it is proof of anything pertaining to the hack-and-leak.

As for the latter, the story itself insinuates ties between WikiLeaks and Russia’s hack-and-leak operation by matching the profile of Assange’s known (and dramatically increased number of) visitors in 2016 with the timing of those visits. Those people are:

  • A Russian national named Yana Maximova, about whom CNN states almost nothing is known, who visited at key moments in June 2016 (though CNN doesn’t provide the specific dates)
  • Five meetings in June 2016 with senior staffers from RT, including two visits from their London bureau chief, Nikolay Bogachikhin
  • German hacker Andrew Müller-Maguhn
  • German hacker Bernd Fix (who visited with Müller-Maguhn a few times)

These visitors have, in generally, been identified before, and with the exception of Müller-Maguhn, CNN doesn’t give the precise dates when people visited Assange, instead providing only screen shots of entry logs (which, CNN notes, key visitors wouldn’t be on). The exception is Müller-Maguhn, whose pre-election visits the TV version lists as:

  • February 19 and 20, 2016
  • March 14, 2016
  • May 8, 2016
  • May 23, 2016
  • July 7, 2016
  • July 14, 2016
  • July 28, 2016
  • August 3, 2016
  • August 24, 2016
  • September 1, 2016
  • September 19, 2016
  • October 21, 2016
  • October 31, 2016

And, yes, some of those visits match the known Russian hack-and-leak timeline in enticing ways, such as that Müller-Maguhn, who told WaPo that, “he was never in possession of the material before it was put online and that he did not transport it,” showed up the same day Mueller documents describe WikiLeaks obtaining an archive that had been uploaded (“put”) online and by that means transferred to WikiLeaks.

But that would be entirely consistent with Müller-Maguhn helping to process the emails — something the Mueller team determined did not violate US law — not serving as a mule. Not that Müller-Maguhn would be best used as a mule in any case.

The descriptions of the changes in computer and other gear are more interesting: with Assange bumping up his resources on June 19, a masked visitor dropping off a package outside the embassy on July 18, and exempt WikiLeaks personnel removing a ton of equipment on October 18, as Ecuador finally threatened to shut WikiLeaks down.

Shortly after WikiLeaks established contact with the Russian online personas, Assange asked his hosts to beef up his internet connection. The embassy granted his request on June 19, providing him with technical support “for data transmission” and helping install new equipment, the documents said.

[snip]

Days later, on July 18, while the Republican National Convention kicked off in Cleveland, an embassy security guard broke protocol by abandoning his post to receive a package outside the embassy from a man in disguise. The man covered his face with a mask and sunglasses and was wearing a backpack, according to surveillance images obtained by CNN.

[snip]

The security documents lay out a critical sequence of events on the night of October 18. Around 10 p.m., Assange got into a heated argument with then-Ecuadorian Ambassador Carlos Abad Ortiz. Just before midnight, Abad banned any non-diplomatic visitors to the embassy and left the building. Behind the scenes, Assange communicated with the foreign minister in Quito.

Within an hour of Abad’s departure, he called the embassy and reversed the ban.

By 1 a.m., two WikiLeaks personnel arrived at the embassy and started removing computer equipment as well as a large box containing “about 100 hard drives,” according to the documents.

Security officials on site wanted to examine the hard drives, but their hands were tied. The Assange associates who removed the boxes were on the special list of people who couldn’t be searched. The security team sent a memo back to Quito raising red flags about this late-night maneuver and said it heightened their suspicions about Assange’s intentions.

Again, none of that proves a knowing tie with Russian intelligence. But it does show an interesting rhythm during that year.

But this schedule doesn’t consider the other things going on with WikiLeaks in 2016. At almost the same time that WikiLeaks released the DNC emails, after all, they also released the AKP email archive.

More interesting still, according to the government’s current allegations about Joshua Schulte’s actions in leaking the CIA’s hacking tools to WikiLeaks, he made a copy of the CIA’s backup server on April 20, then transmitted the files from it to … someone (I suspect these may not have gone directly to WikiLeaks) … in late April to early May.

But then for some reason, on August 4, Schulte for the first time ever started conducting Google searches on WikiLeaks, without visiting the WikiLeaks site until the first release of the Vault 7 leaks.

Meanwhile, WikiLeaks claimed in August 2016  — and ShadowBrokers invoked that claim, in January 2017 — that WikiLeaks had obtained a copy of the original ShadowBrokers files released on August 16, 2016. A Twitter account claiming to be ShadowBrokers reiterated this claim late last year.

Consider the continued presence of highly skilled hackers at the Embassy and the removal of tons of computer equipment as Ecuador cracked down from the viewpoint of what happened to all of NSA and CIA’s hacking tools, rather than what happened with John Podesta’s risotto recipe. Add in the fact that the government seems to think Schulte altered the air gap tool he allegedly wrote for CIA outside of CIA.

To the extent they provide these dates (again, they do so with specificity only for Müller-Maguhn, and only before the election; not to mention, his emails appear to fit a fairly regular twice-monthly pattern), a few of them are quite intriguing. But there was a whole lot else going on with WikiLeaks that year that might be even more important for describing the true nature of WikiLeaks.

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. 


On Mike Flynn’s Previously Undisclosed Interactions with Ekim Aptekin

In Friday’s pre-trial hearing for former Mike Flynn partner Bijan Kian, Kian’s attorneys revealed something prosecutors had told them in discovery: that Flynn had more ties with Alptekin than has been made public.

Prosecutors wrote to lawyers for Flynn’s ex-lobbying partner Bijan Kian that the US government was “in possession of multiple, independent pieces of information relating to the Turkish government’s efforts to influence United States policy on Turkey and Fethullah Gulen, including information relating to communications, interactions, and a relationship between Ekim Alptekin and Michael Flynn, and Ekim Alptekin’s engagement of Michael Flynn because of Michael Flynn’s relationship with an ongoing presidential campaign, without any reference to the defendant of FIG.”

Flynn’s new firebreather lawyer Sidney Powell thinks this is all about him, and as such suggests this is a last minute attack on Flynn because he reneged on a key part of his plea allocution.

Kian’s attorney Mark MacDougall read the statement at a court hearing Friday morning. He implied that the newly revealed information about Flynn — which was not part of his admitted crimes in his plea deal with special counsel Robert Mueller — may be classified.

Flynn’s attorney Sidney Powell responded to the new accusation Friday, saying, “We have no idea what the government is talking about. It smacks of desperation.”

Admittedly, having blown up his plea deal, she now has to worry about anything that would provide cause to change the government stance on Flynn’s sentencing. And she’s probably — though not definitely — correct that this is something the government had in hand when they supported probation for Flynn. I do keep thinking of the redaction in the Mueller Report — a footnote that must explain the outcome of the counterintelligence investigation into Flynn — signaling an ongoing investigation.

Though I still think that likely relates to the investigation into Flynn’s Russian ties, not his Turkish ones.

That said, Powell’s concerns have to go beyond whether this is new information. The revelation that the government has proof that Alptekin’s efforts to influence Flynn go beyond the Flynn Intelligence Group consulting contract provide key background information to some of the files Powell released in an already unpersuasive effort to claim Flynn was fully forthcoming with his former, competent attorney, Rob Kelner, when they filed Flynn’s FARA submission in 2017. Of particular note, in the notes of the last interview recorded before the filing itself, Flynn told Kelner that he didn’t remember key parts of the relationship with Alptekin — neither the “consulting” agreement itself (which was really a kickback scheme) nor any side conversations about it.

It may well be that Flynn forgot those details, but if there are independent communications between Flynn and Alptekin, his claim to Kelner that Bijan was conducting all discussions with Alptekin seems demonstrably false.

The very last line of the first interview between Covington and Flynn, on January 6, 2017, shows him claiming he spoke with Alptekin “a handful of times.”

More interestingly, in that interview and elsewhere, Flynn downplays his role in the FIG consulting because he was on the campaign trail, away from Washington.

From the standpoint of claiming you weren’t lobbying, noting you were on the campaign with Trump might help. But if the point of all this, for Turkey, was to pay Flynn a half million dollars to (as his firebreather attorney claims) write an op-ed precisely to ensure they had access to someone who was spending all his time with Trump, then it actually hurts him.

The government claims that when Flynn downplayed the involvement of Turkey in his FARA filing, he did it knowingly and intentionally. If these notes — released by his own firebreather defense attorney — show him downplaying the extent of his relationship with Alptekin, that’s going to seriously undermine that claim.


With Latest Stunt, Mike Flynn May Save Bijan Kian from Prison Time But Double His Own

When Mike Flynn hired new counsel, it became clear he was … up to something. Now that something might get him — and possibly even his son (concerns about whom motivated Flynn to cooperate in the first place) — sent to prison. Or, it might spectacularly fuck over the government. We’ll find out next week, when Flynn’s former partner Bijan Kian goes on trial … or maybe sooner, given that Emmet Sullivan has demanded details on the backstory before the end of the week.

Filings unsealed in Kian’s case make it clear that, since the time Flynn replaced the very good Rob Kelner with Fox News firebreather Sidney Powell and Jesse Binnall, he reneged on a key part of his guilty plea. He newly claimed to prosecutors that that he had not knowingly lied about working for Turkey in the March 7, 2017 FARA filing that admitted Turkey might benefit — but denied they were paying for — his services. In response, the government has informed Kian they will not have Flynn testify at trial, and instead tried to name him a co-conspirator and submit one of his statements as the statements of a co-conspirator. That led to the unsealing of these documents, with Kian trying to prevent the government from upending their defense strategy, which has consisted of portraying Flynn as a liar, and Flynn trying to prevent the government from designating him a co-conspirator. Last night, Judge Anthony Trenga ruled largely for Kian on a  bunch of other matters (which may have interesting effects for FARA and 951 prosecutions in EDVA); along the way Trenga ruled that the government has not sufficiently shown a conspiracy to violate 951 such that they can enter Akim Alptekin’s statements as a co-conspirator. That will also prevent them–at least as of now–from entering one exhibit involving Flynn as the statement of a co-conspirator, unless and until they submit enough evidence at trial to lay out such a conspiracy (though that exhibit will be admissible under other standards). Naming Flynn a co-conspirator might make it easier to prove a conspiracy, but they’re not there yet.

To be sure, Kian (who like Flynn hired really good lawyers but unlike Flynn did what they told him and also didn’t fire them) already stood a good chance of prevailing at trial, because Trenga is really skeptical of the way the government charged this, including their initial decision not to treat Flynn himself as a co-conspirator. But the chaos Flynn has caused by reneging on his testimony may be the final straw that sinks the government’s case.

All that said, Flynn’s decision to renege on his testimony may have short-circuited a plan to challenge his guilty plea down the road. That’s because Emmet Sullivan has ordered the parties to immediately explain how the government’s decision not to have Flynn testify will affect his sentencing, which had been delayed exclusively for that purpose.

Flynn’s motion objecting to being named a co-conspirator is what you’d expect from a firebreather. It makes a lot of allegations about Flynn being pressured to plead the way he did and invokes David Laufman, whom the frothy right has inserted into some of their hoaxes, to suggest that it was improper for DOJ to insist that the National Security Advisor disclose that he had been on Turkey’s payroll while ostensibly serving as Trump’s top national security advisor during  the campaign.

A key part of this strategy appears to be to review Kelner’s prior work, and blame him for the decisions already made.

This really fucks over Kelner, who in December was on the verge of getting his client no prison time before Flynn decided to use his sentencing as an opportunity to discredit the prosecution of him for acting as an unregistered foreign agent while getting Top Secret briefings, and who might still have saved him from prison time had he simply testified in the Kian trial as planned. Kelner will be unable to rebut some of the claims Powell is making, because Flynn gets to decide what privilege to waive, not Kelner. Flynn has probably not even paid Kelner due recompense for that work! Note, too, how Kelner is exposed by Flynn’s own lies.

All that said, the case Flynn’s lawyers are making is — typical of the frothy right — better suited for seeding more conspiracies than winning a legal argument. First, they overstate the assurances the government made that Flynn had no danger of being described as a co-conspirator in this case.

The transcript all sides are relying on — the June 13 statement the government tried to correct — does not deny that Flynn was part of the conspiracy, just states that the government won’t label him as such.

THE COURT: Let me ask you this. It’s not in the indictment. Is the government alleging that Mr. Flynn was part of this conspiracy?

MR. GILLIS: We are not, Your Honor.

THE COURT: Right. So you’re not presenting any statements by him, any testimony – there would be no evidence from him as to the existence of the conspiracy?

MR. GILLIS: Well, Your Honor – no. Your Honor, as to that. There will certainly be testimony from General Flynn. And from that testimony, the jury could draw a reasonable inference that there was a conspiracy, but we are not – we do not contend that General Flynn was a part of that conspiracy.

They make it quite clear his testimony would describe actions he was involved in that amount to a conspiracy. The government just wasn’t labeling the guy who was then going to be a friendly witness a co-conspirator. Flynn points to assurances that Gillis told them the government would not charge Flynn in the conspiracy.

Not only did the prosecutors advise the Court on the record that Mr. Flynn is not a coconspirator, AUSA Gillis has stated repeatedly in interviews of Mr. Flynn and representations to counsel that Mr. Flynn was not implicated in the charged conspiracy.4

4 Mr. Gillis informed undersigned counsel and Mr. Flynn twice on June 6 alone that Mr. Flynn was not charged in this conspiracy, and they did not intend to charge him. This is one reason new counsel for Mr. Flynn understood that the government was only interested in and satisfied with Mr. Flynn’s factual testimony as given repeatedly to date–which, as Mr. Gillis put it, “would allow the jury to infer supervision and control” of the project by the Government of Turkey.

These are different things: not alleging Flynn is part of the conspiracy, not contending that he is, not charging him for it, but nevertheless being implicated in it.

Plus, the record before Judge Sullivan is quite clear: absent his cooperation agreement, Flynn could have been charged with both conspiracy and 18 USC 951 (being an Agent of a foreign power).

THE COURT: I think that’s fair. I think that’s fair. Your answer is he could have been charged in that indictment.

MR. VAN GRACK: Yes, Your Honor.

THE COURT: And that would have been — what’s the exposure in that indictment if someone is found guilty? MR. VAN GRACK: Your Honor, I believe, if you’ll give me a moment, I believe it was a conspiracy, 18 U.S.C. 371, which I believe is a five-year offense. It was a violation of 18 U.S.C. 951, which is either a five- or ten-year offense, and false statements — under those false statements, now that I think about it, Your Honor, pertain to Ekim Alptekin, and I don’t believe the defendant had exposure to the false statements of that individual.

THE COURT: Could the sentences have been run consecutive to one another?

MR. VAN GRACK: I believe so.

THE COURT: So the exposure would have been grave, then, would have been — it would have been — exposure to Mr. Flynn would have been significant had he been indicted?

In other words, as far as Sullivan is concerned, given Flynn’s changed testimony the government now reaffirms that he was part of that conspiracy, as they did in December.

Moreover, Flynn’s lawyers doesn’t seem to understand the purpose of Flynn’s FARA in March 2017, which was to fix a reliance on a commercial exception and admit Flynn that had actually been influence peddling. The March 2017 FARA filing did that. What it didn’t do is admit that Flynn was aware the Turkish government was paying for the work, not just that it might benefit from it (which is what the filing said). What the FARA filing did not do is admit Flynn knew the Turkish government was his actual client, not Inovo.

Thus, showing (as they do) that Kelner learned and expressed concern about Turkey’s role in January 2017 doesn’t prove he knew that the FARA filing was a lie in March. Nor does pointing out that Alpetkin’s lawyers lied. At one point they point to Kelner, in a recent interview with prosecutors, stating that they did not go through all of Flynn Intelligence Group emails, without realizing that that would mean any lies Flynn told to Kelner would be more significant.

In another, they make a big deal that notes of significant legal issues don’t include something — the evolution of the project from one focused on business to one focused on influence-peddling — that was already well established by that point.

Handwritten notes of 2/22/2017 meeting with Mr. Flynn were transcribed a year later and omit the crucial fact that Mr. Flynn told counsel the “business activities” reason that originated the project quickly “crystalized” down to “Gulen” which the raw notes show with a V diagram. The later transcription also omits or misinterprets the fact that the op-ed was pushed at the time for campaign reasons (in addition to for the Inovo project). Compare Ex. 8 with Ex. 9See Ex. 8-A, transcription of handwritten notes.

But there’s abundant reason to believe Flynn’s claim here — that the op-ed in question, which was done for Turkey, was in fact really meant to benefit the campaign — was utter horseshit. And the accurate transcription of these notes reflecting that conversation …

… instead strongly suggests that in the latest document Flynn produced yesterday, his lawyers caught him lying to them about the central purpose of the op-ed, which was to help Turkey.

In other words, the documents released yesterday show that Kelner didn’t read through every FIG document, and that up until the end Flynn continued to lie to him about what the purpose of the November 8, 2016 op-ed was (as clearly shown by other records released in advance of this trial). They support the government’s claim that Flynn knowingly lied in March 2017.

Don’t get me wrong. This strategy, bolstered by months of riling of the frothy right, might well have worked like a charm. It even still may!

But Emmet Sullivan — and the government — are under no obligation to give Flynn’s Fox firebreathers time to sow these new conspiracies.

Plus, Sullivan seems to have expected something like this might ultimately happen, because the last time Flynn tried to sow conspiracies, only to walk them back, Sullivan made sure to put Flynn under oath before he stated that he was satisfied with Kelner’s representation.

THE COURT: All right. I want to focus on the plea first because I think I need to. And there are some questions that I’m going to ask Mr. Flynn, and because this is an extension, in my opinion, of the plea colloquy, I’m going to ask the courtroom deputy at that time to administer the oath, because normally when we have plea colloquies, we always require a defendant to be under oath, and that’s what I’m going to do this morning, unless there are objections.

MR. KELNER: No objection, Your Honor.

[snip]

So I’m going to invite Mr. Flynn and his attorney or attorneys to come to the podium, and I’m going to ask the courtroom deputy to administer the oath to Mr. Flynn.

(MICHAEL FLYNN, DEFENDANT IN THE CASE, SWORN)

THE COURT: All right. And I will inform you, sir, that any false answers will get you in more trouble. Do you understand that?

THE DEFENDANT: Yes.

[snip]

THE COURT: All right. Are you satisfied with the services provided by your attorneys?

THE DEFENDANT: I am.

THE COURT: In certain special circumstances, I have over the years appointed an independent attorney to speak with a defendant, review the defendant’s file, and conduct necessary research to render a second opinion for a defendant. Do you want the Court to consider appointing an independent attorney for you in this case to give you a second opinion?

THE DEFENDANT: I do not, Your Honor.

THE COURT: Do you feel that you were competent and capable of entering into a guilty plea when you pled guilty on December 1st, 2017?

THE DEFENDANT: I do, Your Honor.

THE COURT: Do you understand the nature of the charges against you and the consequences of pleading guilty?

THE DEFENDANT: I do understand, Your Honor.

THE COURT: And that was covered extensively by Judge Contreras. I’ve read the transcript. Are you continuing to accept responsibility for your false statements?

THE DEFENDANT: I am, Your Honor

As bmaz presciently wrote at the time, Sullivan was anticipating he might need to lay the groundwork for a fraud on the court.

All of which is to say, it was always going to be hard for Flynn to pull off backing out of his plea deal, even with the three months Powell asked to prepare.

But Sullivan was already fairly pissed that Flynn was getting off easy for having served the interests of Turkey while also serving as Trump’s top national security advisor. He probably had cooled off in the interim 7 months. Except now Flynn has basically taken steps to suggest he perjured himself in front of Judge Sullivan.

Which at least gives Sullivan the opportunity to sentence him immediately, and harshly.

Update: The government says that Flynn’s change of testimony does raise significant issues for Flynn’s sentencing, but they won’t be sure how until after the Kian trial.

At this time the government cannot speculate on how specifically the aforementioned records will impact the government’s sentencing position in the proceedings before this Court. Although the records raise numerous issues, the Rafiekian trial may still impact the government’s position. For example, Rafiekian could call the defendant to testify at trial. As a result, the government intends to reassess its sentencing position at the conclusion of that trial.

It sounds like they’ll want to move to sentencing shortly after trial, but they do want to wait until after it.

Update: The government just updated its witness list to add Flynn’s spawn. That should make things interesting next week, as the spawn can verify some of the things pops might otherwise do.

Timeline

June 27: Flynn reneges on part of his guilty plea

July 2: Prosecutors tell Kian’s lawyers that Flynn now claims he didn’t know about the lies being submitted in his FARA filing

July 3: Government files a correction to the record, notifying Kian that they will not call Flynn as a witness, will treat him as a co-conspirator, and in so doing, submit one of his statements as evidence

July 5: Kian asks for a hearing to force the disclosure of the correction; asks for hearing to see whether indictment was based of coerced testimony from Flynn

July 6: The government rebuts Kian’s claim that his indictment relied on false Flynn testimony, also noting that it was the defense that assumed Flynn would testify

July 8: Kian complains that his comments in November 2016 about dissolving the Flynn Intelligence Group changed when Flynn was filing fraudulent statements on FARA; Flynn tries to prevent the government from calling Flynn a co-conspirator


Ann Donaldson’s Code Makes Richard Burr’s Tip-Off to the White House Far More Damning

The House Judiciary Committee released Ann Donaldson’s responses to their questions yesterday. In general, she was directed not to answer even more questions than Hope Hicks was. But her answers are interesting on several counts.

First, she offers a range of answers that sometimes confirm she was part of a discussion (and that it happened in Don McGahn’s office or via telephone), sometimes suggest she was part of such a conversation but often claims she does not have an independent memory of whether she was part of it, and sometimes make clear that she was not present. Generally, her answers suggest she learned of most of the events covered by the Mueller Report either by listening in on a phone call or by acting as a sounding board for Don McGahn. She states, “I was in meetings directly with President Trump fewer than ten times” (though she was clearly on McGahn’s side of phone calls more times than that).

But Donaldson’s answers are also interesting for the way in which she applies a series of pat answers to certain questions. Here’s the “code” she uses to answer the questions:

The White House has directed that I not provide any further answer to this question because of the constitutionally-based Executive Branch confidentiality interests that are implicated. These are obviously questions for which a truthful answer would be especially damning to the President.

I have no reason to question the accuracy of the Special Counsel’s Office’s description of my handwritten notes. Donaldson answers this way for many questions about her notes, effectively confirming that the Mueller Report’s citations of her notes are accurate.

Any characterization of my notes set forth in the Report is that of the Special Counsel’s Office and may be derived, in part, from sources other than my notes. One time, she adds this to a description of something in her notes, in response to this question:

Page 72 of the Report recount a meeting that occurred the morning of May 10, 2017 at the White House involving former acting FBI Director Andrew McCabe and the President in which the President said he “received ‘hundreds’ of messages from FBI employees indicating their support for terminating Comey” and “asked McCabe who he had voted for in the 2016 Presidential election.” Footnote 477 notes that the account of the meeting is consistent with your notes at Bates Number SC_AD_00347.

She also answers similarly — suggesting things attributed to her in the Mueller Report may involve her relaying something she learned or other Mueller sources — in response to several questions about her interviews with Mueller.

I affirm the accuracy of the voluntary statements I made when being interviewed by the Special Counsel’s Office. Eight times, she affirms the accuracy of something the report says she said. Those are:

  1. Footnote 279 on page 49 of the Mueller Report references an entry in your notes (SC_AD_00123) stating, “just in the middle of another Russia Fiasco.” The footnote cites back to a discussion on March 2, 2017 between the President and Mr. McGahn, during which “McGahn understood the President to be concerned that a recusal would make Sessions look guilty for omitting details in his confirmation hearing; leave the President unprotected from an investigation that could hobble the presidency and derail his policy objectives; and detract from favorable press coverage of a Presidential Address to Congress the President had delivered earlier in the week.” (15)
  2. Page 51-52 of the Report states that on March 5, 2017, President Trump “told advisors he wanted to call the Acting Attorney General [Dana Boente] to find out whether the White House or the President was being investigated.” The accompanying citation (footnote 306) cites to an entry in your notes, Bates Number SC_AD_000168, stating “POTUS wants to call Dana/Is investigation/No/We know something on Flynn/GSA got contacted by FBI/There’s something hot.” (28)
  3. Page 54 of the Report indicates that on March 21, 2017 “[t]he President called McGahn repeatedly that day to ask him to intervene with the Department of Justice, and, according to the notes, the President was ‘getting hotter and hotter, get rid?’” (40)
  4. Footnote 385 of Page 62 of the Report references an entry in your notes at SC_AD_00265 that states “P called Comey – Day we told him not to? ‘You are not under investigation’ NK/China/Sapping Credibility.” (46)
  5. Page 68 of the Report states, “Notes taken by Donaldson on May 9 reflected the view of the White House Counsel’s Office that the President’s original termination letter should ‘[n]ot [see the] light of day’ and that it would be better to offer “[n]o other rationales” for the firing than what was in Rosenstein’s and Sessions’ memoranda.” The accompanying citation (footnote 442) cites your notes, Bates Number SC_AD_00342. (51)
  6. The Report, on pages 81 and 82 citing to your notes at Bates Number SC_AD_00361, states (footnote 541) that Mr. McGahn “advised that the President could discuss the issue [of whether Mr. Mueller had conflicts of interest] with his personal attorney but it would “‘look like still trying to meddle in [the] investigation’ and ‘knocking out Mueller’ would be ‘[a]nother fact used to claim obst[ruction] of justice.’” (63)
  7. Page 82 of the Report states that Mr. McGahn also “told the President that his ‘biggest exposure’ was not his act of firing Comey but his ‘other contacts’ and ‘calls,’ and his ‘ask re: Flynn.’” The accompanying citation (footnote 542) refers to your notes, SC_AD_00361. (64)
  8. Page 113 of the Report states that on January 25, 2018, the New York Times reported that in June 2017, the President had ordered Mr. McGahn to have the Department of Justice fire the Special Counsel. Page 114 of the Report states that on January 26, 2018, the President’s personal counsel called Mr. McGahn’s personal attorney and said that the President wanted Mr. McGahn to put out a statement denying that he had been asked to fire the Special Counsel and that he had threatened to quit in protest. (77)

I have no reason to question the accuracy of the Special Counsel’s Office’s description of my voluntary statements to it, although I do not have access to its records of my statements. For a number of other questions, however, she answers (as she does for many questions about her notes) that she has no reason to question the accuracy of what the report writes. It’s unclear what the difference is (though the answers she affirms generally make McGahn look smart as compared to Trump.)

Given that code, I’m particularly interested in her responses to question 30, which is about Richard Burr informing the White House about the targets of the FBI investigation, because it suggests Trump may have learned of the list.

In response to the first question on it, Donaldson provides most of her regular coded answers. She can’t speak to the accuracy of Jim Comey’s briefing of the Gang of Eight, she doesn’t dispute Mueller’s characterization of her notes and comments, but some of what is included may be from other people.

Page 52 of the Report indicates that the week after Mr. Comey briefed congressional leaders “about the FBI’s investigation of Russian interference, including the identification of the principal U.S. subjects of the investigation” on March 9, 2017, one of the leaders briefed, Senate Select Committee on Intelligence Chairman Senator Richard Burr, was in contact with the White House Counsel’s office, which “appears to have received information about the status of the FBI investigation.” You are quoted in Footnote 309 as saying that Senator Burr identified “4-5 targets.”

a. Is this statement accurate?

RESPONSE: I was not present for Mr. Comey’s briefing to the Senate Select Committee on Intelligence, and therefore I cannot confirm whether the description of his briefing to congressional leaders is accurate.

I have no reason to question the accuracy of the Special Counsel’s Office’s quotation of “4-5 targets” from my notes.

I have no reason to question the accuracy of the Special Counsel’s Office’s description of the voluntary statements I made to it, although I do not have access to its records of my statements.

Any characterization of my voluntary statements set forth in the Report is that of the Special Counsel’s Office and may be derived, in part, from sources other than my statements.

But then, to that same question, she endorses the characterization relayed in the Mueller Report more strongly than she does elsewhere. She didn’t take this to be Burr tipping off the White House — though she specifies that that was her belief “at the time,” suggesting she now realizes that’s not true.

As stated by the Special Counsel’s Office in the Report, at the time, I “believed these were targets of [the Senate Select Committee on Intelligence].”

When asked who initiated this contact, she provides the answer the White House has instructed her to give regarding damaging information pertaining to the President.

Who initiated the contact between the White House Counsel’s office and Senator Burr?

RESPONSE: The White House has directed that I not respond to this question because of the constitutionally-based Executive Branch confidentiality interests that are implicated.

In the course of explaining that this Burr tipoff happened via phone, she pushes back on the characterization that this was a formal briefing, which is the one time she disputes a characterization made by Mueller.

Where did the March 16, 2017 briefing from Senator Burr take place?

RESPONSE: To the extent this question refers to contact between Senator Burr and the Office of the White House Counsel on or about March 16, 2017 (I would not characterize this contact as a formal “briefing”), that conversation took place by telephone.

When asked why Burr tipped off the White House, Donaldson blames the decision on Burr, suggesting that it was done on his initiative (even in spite of her earlier answer refusing to answer just that question).

Why did Senator Burr provide this briefing to the White House Counsel’s office about the investigation into Russian election interference?

RESPONSE: I do not know. I cannot speak to Senator Burr’s state of mind.

Then Donaldson reaffirms that the conversation happened via a call to McGahn, which she was present for (note, I’m not really sure by what she means when she says she was not a participant on calls, but I wonder both whether it was via speaker phone and whether the other party was told she was listening).

Were you present for Senator Burr’s March 16, 2017 briefing to the White House Counsel’s office?

RESPONSE: To the extent this question refers to a telephone call between Senator Burr and the Office of the White House Counsel on or about March 16, 2017, I was in Mr. McGahn’s office during, but not a participant on, the telephone call.

Here’s where it gets interesting. In a series of three more questions about the call — including whether the President learned about it — Donaldson provides the answer the White House made her give regarding things that were damning to the President.

Who else was present?

RESPONSE: The White House has directed that I not respond to this question because of the constitutionally-based Executive Branch confidentiality interests that are implicated.

Describe the substance of Senator Burr’s March 16, 2017 briefing to the White House Counsel’s office.

RESPONSE: The White House has directed that I not respond to this question because of the constitutionally-based Executive Branch confidentiality interests that are implicated.

Were the contents of Senator Burr’s briefing shared with the President? If so, describe who shared the contents of the meeting and if you were present for those discussions.

RESPONSE: The White House has directed that I not respond to this question because of the constitutionally-based Executive Branch confidentiality interests that are implicated.

If no one else was present, she could have just answered that. And unless someone else was present, she should be able to answer about the substance of the question. Ditto the question about passing this information on to Trump: if there were a non-damning answer, given her other practice, she could answer it.

If McGahn passed on the list of people being investigated to Trump, it would make the conversation between Comey and Trump that took place on March 30, two weeks later, more significant. Trump starts by raising Comey’s public testimony on March 20, where he confirmed the investigation. But then Comey raises the Gang of Eight briefing.

After Comey raises the Gang of Eight briefing, Trump requests that Comey clear him publicly. But then Trump makes the comment about wanting to know if “some satellite” to his campaign did something, he would want that to be public. Remember, here’s what Burr told McGahn, with Donaldson present:

Donaldson 11/6/17 302, at 14-15. On March 16, 2017, the White House Counsel’s Office was briefed by Senator Burr on the existence of “4-5 targets.” Donaldson 11 /6/17 302, at 15. The “targets” were identified in notes taken by Donaldson as “Flynn (FBI was ~ooking for phone records”; “Comey~Manafort (Ukr + Russia, not campaign)”; [redacted reference to Roger Stone] “Carter Page ($ game)”; and “Greek Guy” (potentially referring to George Papadopoulos, later charged with violating 18 U.S.C. § 1001 for lying to the FBI). SC_AD_00198 (Donaldson 3/16/17 Notes). Donaldson and McGahn both said they believed these were targets ofSSCI. Donaldson 11/6/17 302, at 15; McGahn 12/ 12/17 302, at 4. But SSCI does not formally investigate individuals as “targets”; the notes on their face reference the FBI, the Department of Justice, and Corney; and the notes track the background materials prepared by the FBI for Corney’s briefing to the Gang of8 on March 9. See SNS-Classified-0000140-44 (3/8/17 Email, Gauhar to Page et al.); see also Donaldson 11 /6/17 302, at 15 (Donaldson could not rule out that Burr had told McGahn those individuals were the FBI’s targets).

If McGahn passed on this information, Trump would have believed that the Mike Flynn investigation would soon be over, and that Paul Manafort was not being investigated for behavior related to his campaign. Trump never gave a shit about George Papadopoulos and Carter Page.

But Roger Stone was his life-long rat-fucker. And during the campaign, Stone spoke repeatedly with Trump to inform him about what he had learned of WikiLeaks’ plans.

It’s one thing if this was a comment about Sergei Millian, as Comey thought it was. But if Trump knew at this point that Roger Stone was under investigation, that would be a very different thing.

Especially because March 2017 is when Stone ratcheted up his efforts to cover up his discussions with WikiLeaks.

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 Steele Dossier and the Mueller Investigation: Michael Cohen

Because the frothy right thinks it’s an important question but won’t actually consult the public record, I’m doing a series on what that public record says about the relationship between the allegations in the Steele dossier and the known investigative steps against Trump’s associates. In this post, I argued that the way the Steele dossier influenced the Carter Page investigation may be slightly different than generally understood: it appears that the dossier appeared to predict — just like George Papadopoulos had — the release of the DNC emails on July 22. From that point forward, Page continued to do things — such as telling people in Moscow he was representing Donald Trump in December 2016, including on Ukraine policy — that were consistent with the general theory (though not the specific facts) laid out in the Steele dossier. That is, Page kept acting like the the Steele dossier said he would. That said, the government had plenty of reason before the Steele dossier to investigate Page for his stated willingness to share information with Russian spies, and his ongoing behavior continued to give them reason.

I’m more interested in the example of Michael Cohen.

The Steele dossier eventually describes Michael Cohen as the villain of coordination with Russia

The dossier makes allegations against Cohen four times, all after the time when Steele and Fusion GPS were shopping the dossier to the press, increasing the likelihood Russia got wind of the project and were shopping disinformation.

The first three mentions came on three consecutive days (probably based on just two sub-source to Kremlin insider conversations), all apparently sourced to the same second-hand access to a Kremlin insider, and evolving significantly over those three days.  Importantly, the sub-source is also the source for the claim that Page had been offered the brokerage of the publicly announced Rosneft sale, meaning this person purportedly had access to Igor Sechin and a Kremlin insider, and if this source was intentionally feeding disinformation, it would account for the most obviously suspect claims in the dossier.

October 18, 2016 (134): A Kremlin insider tells the sub-source that Michael Cohen was playing a key role in the Trump campaign’s relationship with the Kremlin.

October 19, 2016 (135): The Kremlin insider tells his source that Cohen met with Presidential Administration officials in August 2016 to discuss how to contain Manafort’s Russia/Ukraine scandal and Page’s secret meetings with Russian leaders. Since that August meeting Trump-Russian conversations increasingly took place via pro-government policy institutes.

October 20, 2016 (136): In a communication that “had to be cryptic for security reasons,” a Kremlin insider tells a friend on October 19 that the reported meeting with Cohen took place in Prague using Rossotrudnichestvo as a cover. It involved Duma Head of Foreign Relations Committee Konstantin Kosachev. This is notably different from the PA claim made just the day before.

Then there’s the final report, which Steele has claimed was provided for “free,” dated after David Corn and Kurt Eichenwald’s exposure of the dossier, after the election, after the Obama Administration ratcheted up the investigation on December 9, and after Steele had interested John McCain in the dossier. In addition to offering a report that seems to project blame onto Webzilla for what the Internet Research Agency did, this report alleges what would be a veritable smoking gun, missing from the earlier reports: that Cohen had helped pay for the hackers.

December 13, 2016 (166): The August meeting in Prague was no longer about how to manage the Manafort and Page scandals, but instead to figure out how to make deniable cash payments to hackers (located in Europe, including Romania, where the original Guccifer had come from, not Russia), who were managed by the Presidential Administration, not GRU.

This December report is really the only one that claims Trump had a criminal role in the hack-and-leak, but the claims in the report all engage with already public claims: situating the hackers where the persona Guccifer 2.0 claimed to be from, Romania, suggesting the hackers were independent hackers who had to be paid rather than Russian military officers, and blaming Webzilla rather than Internet Research Agency for disinformation. That is, more than any other, this report looks like it was tailored to the Russian cover story.

The way this story evolved over time should have raised concerns, as should have other obvious problems with the December report. But it’s worth noting that there are two grains of truth in it. Cohen had been the key interlocutor between the Trump campaign and the Presidential Administration during the campaign, but to discuss the building of a Trump Tower in Moscow in January, not how to steal the election in October. Few people (at least in the US) should have known that he had played that interlocutor role; how many knew in Russia is something else entirely. Cohen was also someone that people who had done business with Trump Organization, like Giorgi Rtslchiladze and people associated with Aras Agalarov’s Crocus Group, would know to be Trump’s fixer. That fact would have been far more widely known.

Nevertheless, by the end of it, Cohen was the biggest Trump-associate villain in the Steele dossier. If the Steele dossier had been directing the investigative priorities of the FBI, then Cohen should have been a focus for his role in the hack-and-leak as soon as the FBI received this report. Nothing in the public record suggests that happened. Indeed, at the time the FBI briefed the Gang of Eight on March 9, 2017, Cohen was not among the people described as subjects. Just Roger Stone had been added to the initial four subjects (Page, Manafort, George Papadopoulos, and Mike Flynn) by that point. Congress, including the Devin Nunes-led House Intelligence Committee, would focus closely on Cohen more quickly than the FBI appears to have.

That’s true even though Cohen was doing some of the things he would later be investigated for, including — immediately after the election — establishing financial ties with Viktor Vekselberg even while Felix Sater pitched him on a Ukraine deal.

Suspicious Activity Reports and the investigation into Cohen

The investigation into Cohen appears to have started — given this July 18, 2017 warrant application — as an investigation into suspicious payments from large, often foreign companies, particularly Columbus Nova, with which Viktor Vekelsberg has close ties, but also including Novartis, Korean Airlines, and Kazkommertsnank. The investigation probably started based off a Suspicious Activity Report submitted by First Republic Bank, where Cohen had multiple accounts, including one for Essential Consulting, where those foreign payments were deposited.

Cohen opened that Essential Consultants account on October 26, 2016, ostensibly to collect fees for domestic real estate consulting work, but in fact (the investigation would ultimately show) to pay off Stormy Daniels. His use of it to accept all those foreign payments would have properly attracted attention and a SAR from the bank under Know Your Customer mandates, particularly with his political exposure through Trump. Sometime in June 2017, First Republic submitted the first of at least three SARs on this account, covering seven months of activity on the account; that SAR and a later one was subsequently made unavailable in the Treasury system as part of a sensitive investigation, which led to a big stink in 2018 and ultimately to charges against an IRS investigator who leaked the other reports. The language of the third one appears to closely match the language in the warrant applications, including a reference to Viktor Vekselberg’s donations to Trump’s inauguration.

The first warrant application against Cohen

On June 21, the FBI served a preservation request to Google for his Gmail and to Microsoft for Cohen’s Trump Organization emails (see this post for the significance of Microsoft’s role). Generally that suggests that already by that point, FBI decided they would likely want that email, but needed to put together the case to get it. The preservation order on Microsoft suggests they may have worried that people at Trump’s company might destroy damning emails. It also suggests the FBI knew that there was something damaging in those emails, which almost certainly came in part from contact information the bank had and call records showing contacts with Felix Sater and Columbus Nova; it might also suggest the NSA may have intercepted some of Cohen’s contacts with Russians in normal collection targeting those Russians.

That July 2017 warrant (confirmed in later warrants to be the first one used against Cohen) lists Acting as a Foreign Agent (18 USC 951) and false statements to a financial institution. It explains:

[T]he FBI is investigating COHEN in connection with, inter alia, statements he made to a known financial institution (hereinafter “Bank 1”) in the course of opening a bank account held in the name of Essential Consultants, LLC and controlled by COHEN. The FBI is also investigating COHEN in connection with funds he received from entities controlled by foreign governments and/or foreign principals, and the activities he engaged in in the United States on their behalf without properly disclosing such relationships to the United States government.

In other words, the predicate for the investigation was his bank account — one in conjunction with which he would eventually plead guilty to several crimes — not the dossier. Had Cohen told the truth about why he was opening that bank account (to pay off the candidate’s former sex partners!), had he not conducted his international graft with it, had he been honest he was going to be accepting large payments from foreign companies, then he might not have been investigated. It’s possible that the public reporting on the dossier made the bank pay more attention, but his actions already reached the level that the bank was required to report it.

In the unredacted parts of the application, there is one citation of the dossier, but only to the title of a WSJ report on Cohen written in the wake of the dossier release, “Intelligence Dossier Puts Longtime Trump Fixer in Spotlight.” It uses the article in a section introducing who he is to cite Cohen explaining that he’s Trump’s “fìx-it guy . . . . Anything that [then-President-elect Trump] needs to be done, any issues that concern him, I handle,” not to describe any allegations in the dossier.

From there, it introduces the bank account, Essential Consulting.

Redacted section C

The next section, C, is six paragraphs long (¶¶13 to 18), and remains entirely redacted. If the substance of the dossier appears in the warrant application, it would appear here. But such a redacted passage does not appear at all in a search warrant application for Paul Manafort from May, and no redacted passage appears as prominently in a Manafort warrant application from ten days later — which describes his relationship with three Russian oligarchs and the June 9 meeting — though there is a six page redaction describing the investigative interest in the June 9 meeting. The difference is significant because the dossier alleged that Manafort was managing relations with Russia until he left the campaign (including during June), so if there were redacted language about the dossier on Cohen, we would expect it to play a similar role in applications on Manafort, but nothing public suggests it does.

Some background on this redacted section. We got the Mueller-related warrants on Cohen because a bunch of media outlets asked Chief Judge Beryl Howell to liberate them on March 26, the week after Mueller officially finished his investigation. At first, Jonathan Kravis, the DC AUSA who has taken the lead in much of the ongoing Mueller word, noticed an appearance to respond. But it was actually Thomas McKay, one of the SDNY AUSA who prosecuted Cohen there, who responded to the request, along with another SDNY attorney.

Although the Warrant Materials were sought and obtained by the Special Counsel’s Office (“SCO”), the Government is represented in this matter by the undersigned attorneys from the United States Attorney’s Office for the Southern District of New York (“SDNY”), as the SCO’s investigation is now complete.

They argue that they’re willing to release the warrant materials under terms consistent with the terms used in SDNY, where information about the FBI affiants and information we know deals with the hush payments investigation got redacted.

Judge Pauley ruled that “the portions of the Materials relating to Cohen’s campaign finance crimes shall be redacted” to protect an ongoing law enforcement investigation, along with “the paragraphs of the search warrant affidavits describing the agents’ experience or law enforcement techniques and procedures.” Cohen, 2019 WL 472577, at *6. By contrast, Judge Pauley ordered that the portions of the materials that did not relate to the campaign finance investigation be unsealed, subject to limited redactions to protect the privacy interests of certain uncharged third parties. Id. at *6-7. Judge Pauley’s decision in these respects is also consistent with prior decisions of this Court, which have recognized the distinction between law enforcement interests in ongoing, as opposed to closed, investigations, as well as the importance of respecting privacy concerns for uncharged third parties. See, e.g., Matter of the Application of WP Company LLC, 16-mc-351 (BAH), 2016 WL 1604976, at *2 & n.2 (D.D.C. Apr. 1, 2016).

Consistent with the foregoing, the Government does not oppose the Petitioners’ request for partial unsealing, but respectfully requests that the Court authorize redactions consistent with those authorized by Judge Pauley in the SDNY litigation.

Because of this language, some people assume the redacted passage C relates to the hush payments, which were, after all, the reason Cohen opened the account in the first place. That may well be the case: if so, the logic of the warrant application would flow like this:

A: Michael Cohen

B: Essential Consultants, LLC

C: [Use of Essential Consultants to pay hush payments and — maybe — to conduct other illicit business]

[Later warrants would include a new section, D, that described Cohen’s lies about his net worth to First Republic]

D: Foreign Transactions in the Essential Consultants Account with a Russian Nexus

i. Deposits by Columbus Nova, LLC

ii. Plan to Life Russian Sanctions

E: Other Foreign Transactions in the Essential Consultants Account

That would explain McKay’s role in submitting the redactions, as well as his discussion of redacting the warrant consistent with what was done in SDNY, to protect ongoing investigations. (The government will have to provide a status report in August on whether these files still need to be redacted.)

That said, it was not until April 7, 2018 that anyone first asked for a warrant to access Cohen’s email accounts in conjunction with the campaign finance crimes. And some SARs submitted in conjunction with the hush payments, such as one associated with the $130,000 payment on October 27, 2016 to then Daniels lawyer Keith Davidson and one from JP Morgan Chase reflecting the transfer from the Essentials Consulting account to Davidson’s were not restricted in May 2018 in conjunction with a sensitive investigation (nor was the third one reflecting the foreign payments described above), suggesting they weren’t the most sensitive bits in May 2018. Of note, the Elliot Broidy payments to Essential Consulting would post-date this period of the investigation.

That leaves a possibility (though not that likely of one) that Section C could describe the Russian investigation. The next passage after the redacted one describes the “foreign transactions in the Essential Consultants Account with a Russian nexus” (though, as noted, subsequent warrants describe Cohen’s lies in the following paragraph). It describes the $416,664 in payments from Columbus Nova, and describes the tie between Columbus Nova and Vekselberg. After introducing the payments, the affidavit describes the public report on a back channel peace plan pitched by Felix Sater on behalf of Ukrainian politician Andrii Artemenko.

Another possibility is that it describes Trump’s inauguration graft, which embroils Cohen and Broidy (though the investigation into Broidy is in EDNY, not SDNY).

Perhaps most likely, however, is that that section just describes other reasons why that Essential Consulting account merited a SAR. For example, it might describe how Cohen set up a shell company to register the company, something that doesn’t show up in the unredacted sections, but which is a key part of the hush payment prosecution.

If the section does not mention the Russian investigation generally (and the dossier specifically), then it means there is no substantive mention of it in the warrant at all, meaning it played at most a secondary role in the focus on Cohen.

As the timeline of the investigation into Cohen below shows, that redacted section would grow by one paragraph in the next warrant application, for Cohen’s Trump Organization emails, obtained just two weeks later. It would remain that length for all the other unsealed Mueller warrants.

Felix Sater and the investigation into Cohen

The way in which Sater is mentioned in the warrants against Cohen presents conflicting information about what might be in that redacted section. Significantly, Sater (described as Person 3) is introduced as if for the first time, in the discussion of the Ukrainian deal that appears after the redaction. That means that he doesn’t appear in the redacted material. That’s important because Sater would be one other possible focus of any introduction to why Cohen would become the focus of the Russian investigation (aside from the dossier).

The next warrant would also note numerous calls with Sater, reflecting legal process for call records not identified here (the government almost certainly had a PRTT on Cohen’s phones by then). But those calls, as described, were in early 2017 (tied to the suspected Ukrainian peace plan), not in 2015-2016 when the two men were discussing a Trump Tower Moscow.

Mueller interviewed Sater on September 19, 2017, the first of two FBI interviews (he also appeared before the grand jury on an unknown date).

One of the most interesting changes to the Mueller warrants happens after that: In warrant applications submitted on November 13, the unredacted discussion of the Ukraine peace deal gets dropped. It’s unlikely Mueller’s investigation of it was eliminated entirely, because Mike Flynn, who allegedly ultimately received that deal, is not known to have been cooperating yet (his first known proffer was three days later, on November 16), and Mueller was still interested in interviewing Andrii  Artemenko — the Ukrainian politician who pitched the deal — in June 2018.

In addition, based off the details in the Mueller Report cited to Sater’s September interview, Mueller was already investigating the Trump Tower deal. That suggests both topics — the Trump Tower deal and the Ukranian peace pitch — could appear in the redacted passage. Indeed, while the unredacted passages don’t explain it, one important reason to obtain the earlier emails would be to obtain the communications between Sater and Cohen during that period.

None of these warrants explain why Mueller became convinced that Cohen had lied to Congress, but by the second December interview of Sater, he presumably knew that Cohen had lied. But he probably didn’t have all the documents on the deal until he subpoenaed Trump Organization in March 2018.

All of which is to say, the treatment of the warrants’ Sater’s ties to Cohen, so important in any consideration of Cohen’s ties to Russia, ultimately don’t help determine what’s in that section.

If Mueller obtained Cohen’s location data, it was only second-hand

Finally, there’s one other detail not shown in the Mueller warrants you might expect to have if the Steele dossier was central to the Cohen investigation: a concerted effort to confirm his location during August 2016, when the dossier claimed he had been in Prague.

Granted, by obtaining records from Google, Mueller would get lots of information helpful to confirming location. For example, Google would have provided all the IP addresses from which Cohen accessed his account going back to January 2016. He would have obtained calendar data, if Cohen used that Google function. The warrant (as all warrants to Google would) asks for “evidence … to determine the geographic and chronological context of account access” and describes the various ways investigators can use Google to ID location (though it doesn’t specifically talk about location data in conjunction with Google Maps).

Mueller would get even more information from the Apple warrant obtained on August 7, 2017. The warrant for Cohen’s iCloud account on August 7 focused on a new iPhone (a 4s!!!) he obtained on September 28, 2016 and used for a function that gets redacted (which, again, could be the hush payments). It described his use of Dust and WhatsApp on the phone (Dust was what he used with Felix Sater), meaning one reason they were interested in the account was not for Cohen’s Apple content, but for anything associated with the apps he used on his phone (remember that Mueller got Manafort’s otherwise encrypted WhatsApp chats from Apple; the Apple specific language notes that some users back up their WhatsApp texts to iCloud). That said, the language on Apple (as all warrants on it would) specified that users sometimes capture location data with the apps on their phones.

Apple allows applications and websites to use information from cellular, Wi-Fi, Global Positioning System (“GPS”) networks, and Bluetooth, to determine a user’s approximate location.

This is a way the FBI has increasingly gotten location data in recent years, via the apps that access it from your phone. So the FBI would have gotten information that would have helped them rule out a Cohen trip to Prague in 2016.

That said, it’s not until April 7 that the government obtained the only known warrant for cell location data. That warrant focused only on the campaign finance crimes, and it obtained historical data only started on October 1, 2016 — pointedly excluding the August 2016 period when Steele’s dossier alleged Cohen was in Prague.

In short, along the way, Mueller obtained plenty of information that would help him exclude a Prague meeting (and subpoenas and other government information — such as his Homeland Security file — could have helped further exclude a meeting). But there’s no sign in the public record that Mueller investigated the Steele dossier Prague meeting itself.

To sum up: while it’s possible the redacted portions discuss Russia and therefore potentially the dossier. But there are a lot of reasons to think that’s not the case. It is hypothetically possible that between March (when FBI wasn’t investigating Cohen) and May (when Mueller took over) the FBI had done something to chase down the dossier allegations on Cohen. But, there’s no evidence that Mueller investigated them. On the contrary, it appears that the investigation into Cohen arose from the Bank Secrecy Act operating the way it is designed to — to alert the Feds to suspect activity in timely fashion.

In another world, that should placate the frothy right. After all, they complain that the dossier was used in Carter Page’s FISA application. You’d think they’d be happy that, in the eight months between the time FBI obtained that order and started investigating Cohen aggressively, they hadn’t predicated an investigation into the dossier. By that time, there were overt things — like Vekselberg’s donation to the inauguration and the Ukraine plan — that were suspect and grounded in direct evidence.

Timeline

May 18, 2017: Possible date for meeting involving Jay Sekulow, Trump, and Cohen.

May 31, 2017: Cohen and lawfirm subpoenaed by HPSCI.

June 2017: A SAR from Cohen’s bank reflects seven months of suspicious activity in conjunction with this Essential Consulting account

June 2017: Federal Agents review Cohen’s bank accounts.

June 21, 2017: FBI sends a preservation request to Microsoft for Cohen’s Trump Org account.

July 14, 2017: FBI sends a preservation request to Microsoft for all Trump Org accounts.

July 18, 2017: FBI obtains a warrant for Cohen’s Gmail account focused on FARA charges tied primarily to the Columbus Nova stuff, but also his other foreign payments). ¶¶13-18 redacted.

July 20, 2017 and July 25, 2017: Microsoft responds to grand jury subpoenas about both Cohen’s account and TrumpOrg domain generally.

August 1, 2017: FBI obtains a warrant for Cohen’s Trump Org email account (which they obtained from Microsoft), adding bank fraud, money laundering, and FARA (as distinct from 951) to potential charges. ¶¶13-19 redacted. ¶¶20 to 24 note irregularities in claims to First Republic. ¶28 details how Cohen and Andrew Intrater started texting in large amounts on November 8, 2016, showing over 230 calls and 950 texts between then and July 14, 2017. ¶30 includes email reflecting visit to Columbus Nova. ¶31 reflects probable subpoena to bank (rather than just SARs). ¶32 describes Renova paying Cohen through Columbus Nova. ¶36 reflects phone records showing 20 calls with Felix Sater between January 5, 2017 and February 20, 2017, and one with Flynn on January 11, 2017. ¶39, ¶41 include new evidence from Google search.

August 7, 2017: FBI obtains a warrant for Cohen’s Apple ID (tied to his Google email). ¶¶14-20 redacted. ¶50-54 describes Cohen obtaining a new Apple iPhone 4s on September 28, 2016 and using it for a redacted purpose. It describes Cohen downloading Dust (the same encrypted program he used with Felix Sater) the day he set up the phone, and downloading WhatsApp on February 7, 2017.

August 17, 2017: FBI obtains second warrant on Cohen’s Gmail, not publicly released, but identified in second Google warrant. It probably added wire fraud to existing charges being investigated.

August 27-28, 2017: Cohen conducts a preemptive limited hangout on the Trump Tower story feeding WaPo, WSJ, and NYT.

August 31, 2017: Cohen releases the letter his attorney had sent — two weeks earlier — along with two earlier tranches of documents for Congress.

September 19, 2017: FBI interviews Sater. Cohen attempts to preempt an interview with SSCI by releasing a partial statement before testifying, only to have SSCI balk and reschedule the interview.

October 4, 2017: Additional SAR restricted because of ongoing sensitive investigations.

October 20, 2017: Cohen included in expanded scope of investigation.

October 24, 2017: HPSCI interviews Cohen.

October 25, 2017: SSCI interviews Cohen.

November 7, 2017: Mueller extends PR/TT on Cohen Gmail.

November 13, 2017: FBI obtains Cohen’s Gmail going back to June 1, 2015 and his 1&1 email. Adds wire fraud. ¶14-20 redacted.¶23a-25 adds Taxi medallion liability. Eliminates Ukraine/sanctions plan in unredacted section. Adds section F, payments in connection with political activities (associated with AT&T, expand Novartis, add Michael D Cohen and Associates.

December 15, 2017: FBI interviews Sater.

January 4, 2018: Mueller extends PR/TT on Cohen Gmail.

February 8, 2018: Mueller provides SDNY with Gmail and 1&1 email returns.

February 16, 2018: SDNY obtains d-order for header information on 1&1 account.

February 28, 2018: SDNY obtains warrant for emails sent after November 14, 2017 and warrant for emails Mueller handed over in conjunction with different conspiracy, false statements to a bank, wire fraud, and and bank fraud charges.

March 7, 2018: Mueller provides SDNY with iCloud returns.

March 15, 2018: Press reports that Mueller subpoenaed Trump Organization.

April 5, 2018: After CLOUD Act passes, SDNY applies for Google content that had been stored overseas and withheld in February 28 warrant.

April 7, 2018: FBI obtains warrant for cell location for two cell phones, tied only to illegal campaign donation investigation (the FBI would use this to use a triggerfish to identify which room he was in at Loews). FBI obtains warrant to access prior content for use in campaign donation investigation. This is the first warrant that lists 52 USC 30116 and 30109 as crimes being investigated.

April 8, 2018: FBI obtains warrant for cell location for two cell phones, tied only to illegal campaign donation investigation.FBI obtains warrant to search Cohen’s house, office, safe deposit box, hotel room, and two iPhones.

April 9, 2018: FBI obtains a warrant to correct Cohen’s hotel room.

June 20, 2018: Cohen steps down from RNC position.

July 27, 2018: Sources claim Cohen is willing to testify he was present, with others, when Trump approved of the June 9 meeting with the Russians.

August 7, 2018: First Cohen proffer to Mueller.

August 21, 2018: Cohen pleads guilty to SDNY charges. Warner and Burr publicly note that Cohen’s claim to know about the June 9 meeting ahead of time conflicts with his testimony to the committee.

September 12, 2018: Second proffer.

September 18, 2018: Third proffer.

October 8, 2018: Fourth proffer.

October 17, 2018: Fifth proffer.

November 12, 2018: Sixth proffer.

November 20, 2018: Seventh proffer.

November 29, 2018: Cohen pleads guilty to false statements charge.

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 Steele Dossier and the Mueller Investigation: Carter Page

Predictably, the frothy right wants to know whether Robert Mueller investigated the Steele dossier as part of his investigation into the links between Trump’s campaign and Russia’s interference operation in the election, and if not why not. Of the 27 questions Chuck Ross thinks Mueller should be asked about an investigation into Russia’s attack on the US and Trump’s associates ties to Russia, for example, seven are about the Steele dossier in one way or another (while repeating some of the past errors he has made about the dossier).

In his initial question, for example, he asserts as fact both that the FBI was investigating whether Russia was blackmailing Trump and whether there was a well-developed conspiracy of cooperation between Trump and the Kremlin because of the dossier, and suggests that the dossier would be the only reason to investigate such things.

How important was the Steele dossier to the overall investigation?

The FBI relied on the dossier, which was authored by former British spy Christopher Steele, to obtain four Foreign intelligence Surveillance Act (FISA) warrants against former Trump campaign aide Carter Page. The FBI also investigated the allegations in the dossier that the Kremlin was blackmailing Donald Trump and that the campaign was involved in a “well-developed conspiracy of co-operation” with Russia to influence the election.

Mueller’s report all but debunked several key allegations in the dossier. That poses a potential problem for investigators if the probe relied heavily on Steele’s reporting.

Leave aside the presumptions in this question. I’d like to take it on its face and — in a series — show what the public record suggests about the relationship between dossier allegations and the investigation into five people:

  • Carter Page
  • Michael Cohen
  • Paul Manafort
  • Mike Flynn
  • Roger Stone

Here’s my logic for focusing on these five. Obviously, the dossier had a role in the Carter Page investigation — though the continued classification of his FISA application permits Republicans to claim it had a larger role than it actually did. I actually suspect the dossier may have had a larger influence on the rapid progress of the investigation into Michael Cohen than Page. The public record on the investigation into Paul Manafort shows the opposite: FBI didn’t get around to substantiating real evidence that could, even still, support dossier claims about him until relatively late in the investigation. Similarly, the real investigation into Flynn seems to have led rather than followed any real inquiry into the sole allegation about Flynn in the dossier, but that’s likely because that allegation was regurgitated public reporting. Roger Stone — who doesn’t show up in the dossier at all, in spite of his public claims to have advance knowledge of what would be released — provides a useful counterpoint to show what an investigation that could not be influenced by the dossier would look like.

We won’t know for sure until either Bill Barr declassifies all the details about the role of the dossier in the investigation or Jason Leopold or Judicial Watch liberates those details in FOIA. But what we know thus far shows that the FBI generally proceeded based on real predication.

The timelines below also appear in combined form in this page.

Carter Page

Much of the public focus of the dossier’s discussion of Page is on an allegation he’d get to broker the Rosneft sale and his alleged meeting with Igor Sechin.

[July 19 report] [A] Russian source close to Rosneft President, PUTIN close associate and US-sanctioned individual, Igor SECHIN, confided the details of a recent secret meeting between him and visiting Foreign Affairs Advisor to Republican presidential candidate Donald TRUMP, Carter PAGE.

According to SECHIN’s associate, the Rosneft President (CEO) had raised with PAGE the issues of future bilateral energy cooperation and prospects for an associated move to life Ukraine-related western sanctions against Russia.

[snip]

[October 18 report] SECHIN’s associate said that the Rosneft President was so keen to lift personal and corporate western sanctions imposed on the company,  that he offered PAGE/TRUMP’s associates the brokerage of up to a 19 per cent (privatised) stake in Rosneft in return. PAGE expressed interest and confirmed that were TRUMP elected US president, then sanctions on Russia would be lifted.

This stuff does get mentioned in Page’s FISA application. But the unredacted discussion of the alleged meeting quotes from the July 19 report directly, not the October 18 one.

[redacted] reported that, during the meeting, Page and Sechin discussed future bilateral energy cooperation and the prospects for an associated move to lift Ukrainian-related Western sanctions against Russia.

Given the week lead time for preliminary application to the FISA Court and the known dates when Steele briefed the FBI, this is unsurprising, as the second report — the one everyone now focuses on — would seem too late to get into an application approved on October 21.

So while the claim that Russia offered Page energy deals for sanctions relief is part of the application, the visible parts of that initial FISA application use the dossier allegations somewhat differently: to suggest a tie between the alleged offer of “kompromat” on Hillary and the policy stances Trump took in July and August. The logic in the application looks like this:

  • FBI targeted Page because they believed Russia was recruiting him as part of their effort to influence the outcome of the election (4)
  • Trump named both Page and Papadopoulos as advisors in March 2016 (6)
  • What the FBI knew so far of Papadopoulos’ activities [and other things] led the FBI to believe that Russia was not just trying to influence the outcome, but trying to coordinate with Trump’s campaign as well (9)
  • Russia has recruited Page in the past (12-14)
  • [Redacted section that probably explains that Page had told the FBI that he thought providing information to people he knew were Russian intelligence officers was beneficial for both countries and, after he showed up in the Buryakov complaint, he told Russia he had not cooperated with the FBI] (14-15)
  • In addition to allegedly meeting with Sechin and discussing eliminating sanctions, he met with someone assumed to be Igor Nikolayevich Divyekin, also “raised a dossier of ‘kompromat’ that the Kremlin had” on Clinton and the possibility of it being released to Trump’s campaign (18)
  • After those July meetings, Trump appeared to change his platform and publicly announced he might recognize Crimea (21)
  • Once these details became public, the Trump campaign not only denied Page had any ongoing connection to the campaign, but denied he ever had, which was false (24)

Here’s how the “kompromat” language tied to Page appeared in the dossier.

[A] senior colleague in the Internal Political Department of the PA, DIVYEKIN (nfd) also had met secretly with PAGE on his recent visit. Their agenda had included DIVEYKIN raising a dossier of ‘kompromat’ the Kremlin possessed on TRUMP’s Democratic presidential rival, Hillary CLINTON, and its possible release to the Republican’s campaign team.

That is, this offer, in a report dated July 19, looked just like what had happened to Papadopoulos three months earlier: at an alleged meeting that would have taken place weeks before before Russian-stolen emails actually did get released, Russians purportedly offered to share dirt on Hillary with someone publicly identified as a foreign policy advisor on the Trump campaign. Both the alleged offer (dated July 7 or 8) and the report (dated July 19) would look to have predicted what happened on July 22, just as the Papadopoulos offer of dirt did (though, unlike the Papadopoulos dangle, Steele’s report did not predict that the dirt was stolen emails; it said the dirt was FSB intercepts from Hillary’s trips to Russia).

And in response to that, seemingly, Trump changed his policy to be more friendly to Russia.

So to the FBI, Page looked like someone who had, in the past, confessed he’d be happy to share information with Russian spies, who had been brought to Moscow for an event well above his pay grade, who had a known desire to be a player in the Russian energy market (which is how Russia recruited him in 2013). The Steele dossier allegations made it look like the same thing that had happened to Papadopoulos happened to Page as well. And Trump’s public stances in the aftermath looked like his foreign policy, under the advice of the guys who had gotten these dangles, was becoming more Russian friendly, possibly as a result.

And with Page, the FBI had two things they did not yet have with Papadopoulos: someone no longer claimed to be tied to the campaign, and someone with an 8-year track record of showing willingness to respond to Russian entreaties.

Both Sheldon Whitehouse and Trey Gowdy — who are, notably, fairly hawkish former prosecutors — have said there was plenty of evidence to justify a FISA order on Page aside from the dossier, though Gowdy has more recently said that a transcript of Papadopoulos’ meeting with Stephan Halper where he says being involved in this would amount to treason is somehow exonerating of either Papadopoulos or Page (which is really hard to understand). So Page might have been targetable on his own right in any case. But it’s clear that the Steele dossier claim that Page had been offered dirt on Hillary, just as Papadopoulos had, made it look like a pattern, and made it look like it was tied to Trump’s public foreign policy stances taken late enough such that he may have been influenced by his two foreign policy advisors who had been offered dirt.

And once FBI started investigating, Page would look still worse. That’s because the FBI would eventually have found evidence that would seem to corroborate this theory in several ways:

  • In an FBI interview on March 30, 2017, Page described meeting the head of investor relations as Rosneft, Andrey Baranov, and discussing Sechin, the Rosneft sale, and the Trump campaign [see Mueller Report Volume I page 100-101]
  • In the days before his trip, New Economic School employee Denis Klimentov alerted Dmitry Peskov’s office about Page’s visit; Peskov (whom Steele said was a central player in the election influence operation) considered arranging a meeting for Page at the Kremlin, but decided not to because “he is far from being the main” Trump foreign policy advisor [these discussions, and one involving Ministry of Foreign Affairs spox Maria Zakharova, could have been picked up on back door NSA searches of Page’s name]
  • After his meetings, Page wrote emails (which would eventually be turned over to the FBI) boasting of the his discussion with the Deputy Prime Minister Arkady Dvorkovich about “a desire to work together toward devising better solutions in response to the vast range of current international problems” [this email would have been voluntarily turned over to the FBI in the summer of 2017, if Page didn’t turn it over earlier during his five meetings with the FBI in March 2017]
  • After the election, Page would return to Moscow, meeting again briefly with Dvorkovich, who asked Page to put him in touch with the Transition team to discuss future cooperation, and who also floated an academic partnership with Page
  • While on that trip to Moscow, according to Konstantin Kilimnik, Page claimed he represented Trump “on a range of issues of mutual interest, including Ukraine”

That is, the FBI would obtain (in significant part through ongoing FISA collection) that Page continued to meet with senior Russians, discussing both policy changes that FBI suspected might be a response to receiving dirt on Clinton, and business deals that would benefit him personally.

All that raises questions about what the Steele allegations against Page were.

It’s possible the report on his meetings in Moscow were the end result of a game of telephone — a hazard of Steele’s remote HUMINT collection — translating the real Dvorkovich meeting into the alleged Diyevkin one. It’s possible it’s disinformation, an effort to use Page (whom Peskov had already determined wasn’t senior enough to merit Kremlin attention) as a way to taint Trump or confuse the FBI and a presumed future Hillary Clinton Administration; if that’s the case, then it may have been generated by someone with a knowledge of both the real operation itself and the contents of the SVR files explaining how you’d recruit Page if you wanted to do so, with business deals.

Or it’s possible there’s some there there: in both sections on Page, there are significant redactions of what must be Page’s grand jury testimony, and in the discussion of charging decisions, the Mueller Report suggests that Page would have been a willing recruit.

And while the Mueller Report never comments on the corroboration, or not, of any Steele claims, with regards to Page, the conclusion remains particularly non-committal.

The Office was unable to obtain additional evidence or testimony about who Page may have met or communicated with in Moscow; thus, Page’s activities in Russia–as described in his emails with the Campaign–were not fully explained.

In other words, Mueller never ruled out the dossier being correct.

The Steele dossier was clearly a part of the reason why FBI decided to open a full investigation into someone they had had counterintelligence concerns about going back 8 years and as recently as March 2016. But that was largely because the Steele allegations paralleled the reported events involving George Papadopoulos. And every source seemed to corroborate the allegations: the Trump campaign’s false denials of Page’s involvement in the campaign, Russian efforts to cultivate him using precisely the enticements the SVR identified back in 2013, and Page’s own instinct to oversell his access. All provided seeming corroboration of the dossier.

That said, there’s a problem with asking about the centrality of the Steele dossier on Mueller’s investigation of Page. That’s because Page was already aggressively investigated before Mueller took over. The only steps taken by Mueller that are recorded in the Report are interviews with the people who interacted with Page in his July 2016 trip to Moscow: Denis Klimentov on June 9, 2017, Shlomo Weber on July 28, 2017, and apparently one of Weber’s family members in June 2017. In addition, Page appeared before grand jury, though it’s not clear whether that happened in March or after Mueller’s appointment.

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. 


Jim Jordan’s Bubble Has Allowed Him to Remain Painfully Stupid about the Mueller Investigation

Politico has a piece on Republican plans to blow up Robert Mueller’s testimony later this month with stupid questions. It’s a fair piece; it even quotes Louie Gohmert calling Mueller an asshole, in as many words.

The Texas congressman added that his reading of the special counsel’s report did little to temper his long history of animosity for the former FBI director: “It reinforced the anal opening that I believe Mueller to be.”

But it misses an opportunity when it presents what Jim Jordan imagines will be a doozy of a question with only a minimal fact check.

But Republicans preparing over the next two-plus weeks to questionMueller say they have their own points they hope to drive home to Americans as well. Several indicated they intend to press Mueller on when he first determined he lacked evidence to charge Americans with conspiring with Russia — insinuating, without evidence, that he allowed suspicions to linger long after he had shifted his focus to the obstruction of justice investigation.

“The obvious question is the one that everyone in the country wants to know: when did you first know there was no conspiracy, coordination or collusion?” said Jordan, one of the Republicans’ fiercest investigators. “How much longer did it take Bob Mueller to figure that out? Did he intentionally wait until after 2018 midterms, or what?”

Mueller emphasized in his report that he did not make a finding on “collusion,” since it’s not a legal term, and that his decision not to bring charges didn’t mean he found no evidence of them.

If Jim Jordan, who has been spending most of his time as a legislator in the last year investigating this investigation, were not so painfully stupid, he would know not only that not “everyone in the country” feels the need to know when Mueller finalized a decision about conspiracy, but that attentive people already do know that Bob Mueller wasn’t the one who decided to wait out the mid-terms.

The Mueller team told Amy Berman Jackson that Paul Manafort had breached his plea agreement on November 26, 2018. His last grand jury appearance — on November 2 — did not show up in his breach discussion (meaning he may have told the truth, including about Trump’s personal involvement in optimizing the WikiLeaks releases). But in his October 26 grand jury appearance, he tried to hide the fact that he continued to pursue a plan to carve up Ukraine well into 2018, and continued to generally lie about what that plan to carve up Ukraine had to do with winning Michigan and Wisconsin, such that Manafort took time away from running Trump’s campaign on August 2, 2016 to discuss both of them with his co-conspirator Konstantin Kilimnik. Mueller never did determine what that August 2 meeting was about or what Kilimnik and Viktor Boyarkin did with the Trump polling data Manafort was sharing with them. But the delay in determining that Manafort’s obstruction had succeeded was set by Manafort, not Mueller.

And until November 26, prosecutors still hoped to get Jerome Corsi to stop lying to them about how he and Roger Stone got advanced notice of John Podesta’s stolen emails — to say nothing about why Stone was talking to someone “about phishing with John Podesta.” Indeed, the government obtained a search warrant against Stone in February 2019 — possibly the one on February 13 to search multiple devices  — to investigate hacking allegations. If that warrant is the February 2019 one targeting Stone, the devices likely came in the search of his homes on January 25 of this year.

Meanwhile, Donald Trump refused to answer questions — all the questions he answered were about conspiracy, and most of his answers were non-responsive — until November 20, 2018. His answers about the Trump Tower Moscow deal were worse than non-responsive: they replicated the lies for which Michael Cohen is currently sitting in prison. Then, in December and January, Trump and Rudy Giuliani made comments that made it clear Trump’s answers were willful lies. Mueller offered Trump the opportunity to clarify his testimony, but he declined.

In light of the President’s public statements following Cohen’s guilty plea that he “decided not to do the project,” this Office again sought information from the President about whether he participated in any discussions about the project being abandoned or no longer pursued, including when he “decided not to do the project,” who he spoke to about that decision, and what motivated the decision. 1057 The Office also again asked for the timing of the President’s discussions with Cohen about Trump Tower Moscow and asked him to specify “what period of the campaign” he was involved in discussions concerning the project. 1058 In response, the President’s personal counsel declined to provide additional information from the President and stated that “the President has fully answered the questions at issue.” 1059

1057 1/23/19 Letter, Special Counsel’s Office to President’s Personal Counsel.

1058 1/23/ 19 Letter, Special Counsel’s Office to President’s Personal Counsel.

1059 2/6/ l 9 Letter, President’s Personal Counsel to Special Counsel’s Office.

In short, the public record makes it clear that the answer to Jordan’s question — when Mueller made a determination about any conspiracy charges — could not have happened until after the election. But the person who dictated that timing, more than anyone else, was Trump himself, who was refusing to tell the truth to Mueller as recently as February 6.

This is all in the public record (indeed, Trump’s role in the delay is described in the Mueller Report, which Jordan might have known had he read it). The fact that Jordan doesn’t know the answer — much less believes that his already-answered question is a zinger — is a testament to what a locked bubble he exists in, where even the most basic details about the investigation itself, rather than the fevered dreams Jordan has about it, don’t seep in.

Jordan should branch out beyond the spoon-fed journalists from whom he got this question, because even in its original incarnation, the question was utterly inconsistent with the public record.

When did you determine that there was no conspiracy between the Trump campaign and Russia?

Some congressional Republicans have asserted that Mueller figured out early on in his investigation — which started on May 17, 2017 — that there was no conspiracy or collusion between the Trump campaign and Russian government.

Mueller’s report said that prosecutors were unable to establish that the campaign conspired with Russia, but the report did not go into detail about when that conclusion was reached.

Don’t get me wrong: I’m sure Jordan is going to pose unanswerable questions that will feed conspiracists (which is one of the reasons I was somewhat sympathetic for Mueller’s preference for a closed hearing). But it’s only within the closed bubble that can’t be pierced by obvious facts that such questions are legitimate questions.

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. 

Copyright © 2018 emptywheel. All rights reserved.
Originally Posted @ https://www.emptywheel.net/2016-presidential-election/