How Amy Berman Jackson Got Roger Stone to Step in It and Then Step in It Again

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As you no doubt have heard, Amy Berman Jackson imposed a gag on Roger Stone yesterday in response to his posting a picture of her with a cross-hairs on it.

But I’d like to look at how she did so, not just because of the way she crafted it to withstand what may be a legal challenge from Stone’s lawyers, but for how she got Stone on the hook for lies that may get him jailed anyway.

At the beginning of the hearing, she puts Bruce Rogow, Stone’s attorney, on the record about several issues. She gets him to certify that the post in question came from Stone’s Instagram account, as well as the timing of its posting and removal.

THE COURT: And I note that the defendant is present. Who’s going to be handling the argument for the defendant?

MR. ROGOW: I am, Your Honor.

THE COURT: Okay. Well, why don’t you remain there. And you can be seated, Mr. Farkas. Mr. Haley, could you please provide a copy of something that I’ve marked as Exhibit A to Mr. Rogow?

MR. ROGOW: Received, Your Honor. I have a copy.

THE COURT: I would like to know if Exhibit 1 is the Instagram post for which the defendant docketed the notice of apology, found at docket 38, on February 18, 2019?

MR. ROGOW: It is, Your Honor.

THE COURT: So, Roger J. Stone, Jr. is the defendant’s Instagram account?

MR. ROGOW: Yes, sir — yes, ma’am. I’m sorry.

THE COURT: And the post depicted in Exhibit 1 was posted and later removed on that Instagram account on or about February 18?

MR. ROGOW: It was.

THE COURT: Okay. You can return the exhibit to the deputy clerk. And it will be sealed and made a part of the record in this proceeding. I’m not done with you. So what is your position on behalf of the defendant on whether the media contact order in this case should be modified? [my emphasis]

It probably didn’t help matters that Rogow — who has already broken local rules twice in this case — misgenders ABJ. And from the transcript he seemed surprised she was having him — an officer of the court — certify these things from the start.

Rogow tries to deliver his flourish — that he (insanely!!) was going to put Stone on the stand. ABJ lets him, but then proceeds to get him to restate the basis for his objection to a gag. Rogow presents it as a strict prior restraint issue, arguing that as a defendant Stone should have even more right to speak than a member of the press would.

MR. ROGOW: My position is that it should not be modified, that Mr. Stone should have another opportunity to comply. And I want to put Mr. Stone on the witness stand so that he can — you can hear him, Your Honor, and hear him explain what happened, why it happened, and how he apologizes for it, as he did in that filing a couple of days ago. But he would like to have another opportunity to comply with this Court’s original order. And I think that is our position with regard to that.

THE COURT: All right. Well, if you choose to put Mr. Stone on the stand, I’m going to give you that opportunity. I do have a few questions for you first, and then I may save my other questions for Mr. Stone. In docket 28, your submission in response to my solicitation of submissions about the media contact order, you relied heavily on Nebraska Press Association, a case involving prior restraints on the press. Does the — and I don’t know if it’s pronounced Gentile or Gentile or Gentile case — indicate that Nebraska — the Nebraska Press test, the clear and present danger test that you hung your hat on, has to be applied when the restraint is on a participant in a criminal trial?

MR. ROGOW: It does not.

THE COURT: All right. So how does it apply then in this situation?

MR. ROGOW: It applies by analogy. And I think even stronger with regard to a defendant which is on trial for his or her freedom. The Nebraska Press case, of course, deals with restraints upon the press. In a situation with Mr. Stone, we’re talking about a restraint upon the defendant. The Supreme Court has never addressed the restraint upon the defendant in the First Amendment context, as far as I’m aware, which is what I said in my filing to the Court.

That’s when ABJ makes her move. She asks him how this prior restraint issue applies under the Bail Reform Act, which requires a judge to use the least restrictive means to keep a trial and the public safe. Rogow doesn’t understand where she’s going, so concedes that the Bail Reform Act permits her to impose new conditions to keep the community safe.

THE COURT: All right. He’s currently on bond pending trial on an indictment charging multiple felonies, and subject to conditions of pretrial release. How do the principles that you’re talking about operate in connection with the Bail Reform Act?

MR. ROGOW: Well, they operate to the extent that the Bail Reform Act focuses on whether or not there is a risk of flight or a threat to the community, for the most part. And in this situation there is neither a risk of flight nor a threat to the community. The question in this case is whether or not there was a violation of this Court’s order, an order that the Court entered, with warnings. And Mr. Stone will address that. But our position is that the Bail Reform Act is not the issue in this case in terms of revocation of the conditions of his release.

THE COURT: Well, what if I want to modify the conditions of release? What’s the test for what a Court has to find to impose a condition of pretrial release that’s necessary to protect another person or the community? [my emphasis]

Rogow then introduces a standard — clear and present threat — that has no basis in case law, which ABJ calls him on, which he immediately concedes, then tries to reclaim.

MR. ROGOW: Well, if you found that there is a real threat to another person in the community, an actual clear and present threat to that person, then of course you could apply Your Honor’s power to restrain that person, including revocation of the conditions of release, or change of the conditions of release.

THE COURT: Where does the Bail Reform Act require a clear and specific threat to a specific person?

MR. ROGOW: It doesn’t require in those terms, a clear and present threat, Your Honor, but —

THE COURT: Right. You keep using those terms, and now you’ve told me that it hasn’t been applied in this situation to a participant in the trial and it doesn’t apply in the case of the Bail Reform Act. So why do you keep using that test?

MR. ROGOW: Because I think the test is the proper test to use in a situation where a person is about to go on trial, and is a defendant in a case, and has a right to bail, a right to release on conditions that the Court sets. And so it seems to me that at that point, if the Court is going to not allow him or her to be released, that there ought to be very specific facts. I use clear and present because clear and present seems to be a test that gets applied in many situations where important liberty interests are at stake. [my emphasis]

So she asks him again for case law, and he defers by saying he didn’t expect her to raise this issue because it’s not within the basis of his own argument against a gag.

THE COURT: All right. And what is the best legal authority you have for the theory that you’ve just laid out?

MR. ROGOW: Well, I didn’t have any legal authority on that issue because that was not the subject of my response with regard to the gag order. So I really don’t have any authority off the top of my head, Your Honor, to tell you what case or what statute holds with regard to the conditions of release in a situation like this. And I’m focusing on a situation like this, where you have a specific single instance where this occurred.

Having gotten him to admit that — at least as he stood there, not realizing where she was headed — he had no case law to dispute her, ABJ then gets Rogow on the record regarding how much of what he did claim — that Stone was effectively a journalist — really pertained to speech he needed to conduct for his livelihood.

THE COURT: You said the following in your very impassioned submission about the proposed media contact order: You said, “While it is true that most criminal defendants do not wish to be heard, either publicly or in the course of their trial, Mr. Stone is not such a defendant. His work, for more than 40 years, has been talking and writing about matters of public interest. “He’s published half a dozen books, many stating controversial viewpoints. He’s penned many hundreds of articles and has been the subject of many hundreds more, published in myriad publications. Whether it is his pursuit of a posthumous pardon for Marcus Garvey or the style of his clothes or the state of the nation, Roger Stone is a voice. “Given those realities, a prior restraint of Roger Stones’s free speech rights would be an unconstitutional violation of Stone’s right to work, to pursue his livelihood, and be a part of the public discourse.” That raised some questions in my mind, particularly in the wake of the recent events and his explanations for them that may bear on his conditions of release. And so my first question is: How exactly does he pursue his livelihood? [my emphasis]

ABJ gets Rogow to distinguish Stone’s blather from the things he gets paid for — effectively, PR. Rogow then proceeds to certify that his client is an expert of sorts in PR.

MR. ROGOW: He consults with different business and other political persons. That is one of his kinds of work. The other is he comments, obviously, and gets paid for his commentary. He speaks and gets paid for his speaking.

THE COURT: All right. So when he consults, he consults on the subject of communications or public relations? Is that his —

MR. ROGOW: It could be. It could be both.

THE COURT: — field of expertise? All right. Now, he told Pretrial Services Agency he was employed at Drake Ventures, LLC. So what is the nature of the work for which he reported an income of $47,000 a month? Is that the communications consulting?

She establishes a few more details about Stone’s business, then permits Rogow to call Stone to the stand — but not before she warns him that Stone will be sworn (Rogow knows that, but this will be important if and when he gets charged for lying on the stand) , then also warns Rogow she’ll have questions for him again when Stone is done.

THE COURT: All right. So as long as you understand he’s going to be subject to cross-examination. I have a number of questions. If you are saying to me that you would like me to pose them directly to your client, instead of to you, I will do that; he will be sworn.

MR. ROGOW: I am saying that, Your Honor.

THE COURT: All right. You can call Mr. Stone to the stand. I may still have questions for you after, since you entered your appearance in this case.

MR. ROGOW: I understand, Your Honor.

THE COURT: And I expect you to be able to answer my questions. All right. You can call your client to the stand. Understand that the United States will have the right to cross-examine him in the scope of his direct.

MR. ROGOW: I do. I do.

THE COURT: All right.

Remarkably, Rogow seems unprepared when ABJ tells him to go first.

MR. ROGOW: Thank you.

THE COURT: You may proceed.

MR. ROGOW: May I remain? I thought Your Honor was going to ask the questions.

THE COURT: You can start.

What happened next has been the focus of most of the coverage of this. Under Rogow’s direction, Stone tried to appear sorry. ABJ interjects, when Rogow tries to tie Stone’s livelihood to his speech, to challenge that.

Q. How could we be assured, Mr. Stone, if the Judge remains with the order that she had entered allowing you to speak freely, how can we be assured that there will not be a recurrence of something like this, or anything like this?

A. First of all, I’m very grateful to Your Honor for the initial order, because I do have to make a living. And I am sorry that I abused your trust. I —

THE COURT: Is anybody paying you to speak about this case?

THE DEFENDANT: No.

THE COURT: Okay. So an order that you couldn’t speak about this case wouldn’t affect your ability to make a living?

THE DEFENDANT: That is correct.

When Rogow finishes, ABJ then gets Stone on the record about several issues: who owns the Instagram account, what he claimed the crosshairs to be. Then she notes that Stone’s public comments about what he had done differed from what his lawyers had gotten him to sign in the apology they submitted to her. She gets Stone on the record trying to square what he had said publicly with what he and his lawyers had represented to her.

THE COURT: Well, according to the apology, the post was improper. What was improper about it?

THE DEFENDANT: My attorneys wrote that and I signed it because it was improper for me to criticize at all; I recognize that.

THE COURT: Well, at the time I imposed the order there were no restrictions on your talking about the case. So, my questions to you are not about the fact that you criticized the office of special counsel, that you criticized me, that you criticized an opinion in the case that I had written earlier. My question to you is what is it that you said was improper when you told me it was improper.

THE DEFENDANT: Again, I did not write that, I signed it on the advice of counsel. I would have —

THE COURT: Well, wait.

THE DEFENDANT: Yes.

THE COURT: You said to me, “I abused your trust.”

It goes on for a bit, leading up to ABJ getting epic rat-fucker Roger Stone to agree, under oath, that his post could have a malicious impact, regardless of what he himself claimed to intend by it.

THE COURT: Why is it consistent with how sorry you were, when you sent the apology, to continue for the next two days to speak publicly about the fact that you’re being treated unfairly in this situation as well, that it’s really this symbol, that it’s really that symbol, it’s the media going after you. How is that consistent with your telling me that you’re deeply and sincerely sorry?

THE DEFENDANT: Because that was a reference to what I believe was a media distortion of my intent. It was — I did not have a malicious intent, Your Honor.

THE COURT: Do you understand that what you did could have a malicious impact, notwithstanding your intent?

THE DEFENDANT: That’s why I abjectly apologized and I have no rationalization or excuse. I’m not seeking to justify it.

DC prosecutor Jonathan Kravis then gets Stone on the record about a bunch of things I’m sure the FBI is busy at work to prove to be false claims, such as who found the photo of ABJ with the crosshairs, which device was used to post it, which Proud Boy “volunteer” he worked with to make a threat against a judge. This is important, not just because the FBI is likely to find several issues about which Stone lied under oath yesterday (which if they can prove will provide immediate reason to deny Stone bail), but also because much of the eventual case (and much of what Mueller’s team spent a year getting all of Stone’s retinue on the record about) will be about proving what Stone personally tweeted or otherwise communicated, and what someone else did.

ABJ interjects a few times, including to call him on an attempt to use the passive voice to avoid saying something that the FBI will be able to prove is a lie.

THE COURT: When you say, “My phone is used,” who’s the subject of that sentence? The passive voice is not helpful. Who uses your phone to post?

THE DEFENDANT: All of the people who work for me.

She also gets Stone to contradict earlier testimony about who picked the photo. She gets Stone on the record affirming that he stated to InfoWars that the media was making him a target. She calls Stone on a bullshit claim about five people being too many to know who had access to his phone.

Stone really wasn’t prepared to be grilled by ABJ.

Just to be fair to Bruce Rogow, note that when ABJ asks Kravis for what the government wants, he doesn’t realize what she has just done, either. He still believed, at this point, that this was a question about the jury pool.

That conduct amounts to what the Court in United States versus Brown referred to as, quote, a desire to manipulate media coverage to gain favorable attention, unquote, thereby threatening to taint the jury pool. The defendant, even after the Instagram post was taken down, continued to give interviews where he reiterated the statements that appeared in the text of the message. He gave varying accounts of who was responsible for the post, what the symbol meant, where it came from, so on and so forth. And every time the defendant gave another one of those interviews, he continued to amplify the media coverage and increase the risk — increase the risk to the jury pool.

After Kravis argues jury pool jury pool jury pool, ABJ finally guides him to where she’s headed: the the safety of the community. Kravis doesn’t get the hint, and returns to the jury pool, before — lightbulb! — he notes that Stone’s comments might be deemed threatening and therefore appropriate for restrictions under the Bail Reform Act.

THE COURT: All right. Looking at the Bail Reform Act, however, under 18 U.S.C. Section 3142(g), when I’m considering imposing conditions on someone’s release, I’m supposed to consider the available information concerning the nature and circumstances of the charged offenses, the weight of the evidence against the defendant, the history and characteristics of the defendant, and the nature and seriousness of the danger to any person or to the community that would be posed by the defendant’s release, or release without certain conditions. Is there anything you would like to bring to my attention in that regard, assuming that I would be considering making any restrictions on speech a condition of his release?

MR. KRAVIS: Your Honor, the facts that I would bring to the Court’s attention are the facts and circumstances surrounding the content of the post, in that whatever the defendant’s testimony about his subjective intentions may have been, the result of his conduct was the wide dissemination of an image that could be construed, could reasonably be construed by people as a threatening image, and that introduces a new threat of — a new threat of taint to the — taint to the jury pool.

And because the conduct we’re talking about now, because the message we’re talking about now are not just messages about proclaiming innocence or articulating a defense, but are messages that could be construed as threatening, the government believes that the restriction on extrajudicial statements would be appropriate under the Bail Reform Act.

ABJ gets Rogow on the record once more to walk him through how Stone’s actions prove his own claims from last week about publicity to be false.

That’s when ABJ takes a break, then comes back and imposes a gag not just to ensure her ability to seat a jury, but to preserve the safety of the community. She presents Stone’s speech, rightly, as an incitement (and neatly blames the wingnuts he hangs out with for any potential violence).

Under Section 3142(g), in determining whether there are conditions that will reasonably assure the safety of other persons or the community, I’m supposed to take into account a number of things, including the nature and circumstances of the charged offenses, the weight of the evidence against the defendant, the history and characteristics of the defendant, and the nature and seriousness of the danger to any person, or to the community, that would be posed by the defendant’s release. In connection with that assessment, you can’t overlook the fact that this indictment does not charge the defendant with financial or regulatory irregularities in connection with some business deal a long time ago. It’s not even limited to the allegations that he lied to the United States Congress. It specifically charges him with threatening witnesses, within the past year. Now, it’s true those allegations have yet to be proven. But for purposes of Section 3142, the evidence detailed in the indictment alone is quite compelling. And the evidence of the past few days indicates that this defendant has not been chastened by the pendency of those charges, and that in connection with this matter, he has decided to pursue a strategy of attacking others.

[snip]

What concerns me is the fact that he chose to use his public platform, and chose to express himself in a manner that can incite others who may feel less constrained. The approach he chose posed a very real risk that others with extreme views and violent inclinations would be inflamed.

Importantly, ABJ uses Stone’s own testimony to emphasize that he chose to use a threatening image, and he’s an expert so he surely didn’t do it by accident.

The defendant himself told me he had more than one to choose from. And so what he chose, particularly when paired with the sorts of incendiary comments included in the text, the comments that not only can lead to disrespect for the judiciary, but threats on the judiciary, the post had a more sinister message. As a man who, according to his own account, has made communication his forté, his raison d’être, his life’s work, Roger Stone fully understands the power of words and the power of symbols. And there’s nothing ambiguous about crosshairs.

So here’s what she did.

First, in spite of the fact that both the prosecution and the defense were treating this as primarily a jury pool issue (which ABJ did return to and establish in the record), she instead — from the start — laid the ground work to impose a gag because Stone’s public comments pose a threat to the community, giving her the authority to impose the gag under the Bail Reform Act. She makes clear that whether or not he intends violence, those around him might.

In the process, she did a number of things:

  • Impose a gag that a Twitter account bearing Stone’s name may have violated within an hour
  • Get Rogow and Stone on the record explaining why the terms of her gag won’t impact Stone’s ability to make a living, undercutting a significant part of the First Amendment claim they’ve been making
  • Provide a basis for the gag that Rogow did not anticipate, which may be far harder — and politically more difficult — to challenge
  • Provide an opportunity for both the prosecution and herself to catch Stone in multiple sworn lies (which, again, I’m sure the FBI is busy at work proving now), which if charged as perjury would lead to Stone’s immediate jailing

Here’s why, I think, this was allowed to happen. For Stone’s entire life, the press has coddled Stone, treating him as a nifty character whose toxic speech doesn’t damage society. ABJ was having none of that, and used both Rogow’s position as an officer of the court and Stone’s insane willingness to take the stand to get them to acknowledge that his speech is toxic, that it does pose a threat to society. Stone presumably wasn’t prepared for that because no one has called him on his toxic speech before.

If Stone’s lucky, the now much harder to challenge gag will be the only detrimental outcome from yesterday’s hearing and he’ll avoid perjury charges.

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. 

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The Significance of the Rod Rosenstein / William Barr Window

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As I noted here, CNN has a report that not only backs NBC’s report, but provides flesh to the logic that Mueller is providing his report to DOJ next week. That would mean several things I said in this report are incorrect — mostly that Mueller would wait until the Andrew Miller and Mystery Appellant challenges are resolved (remember, as I noted, he knows what both of those challenges will get him).

I don’t know what to expect next week. I have suspicions but won’t share them because I don’t want people to treat my suspicions with any more weight than suspicions deserve, which is not much.

I do, however, want to talk about the timing.

This is happening in the window of time when Rod Rosenstein is still around and — because William Barr has presumably not been through an ethics review on the investigation — presumably back in charge of sole day-to-day supervision of the investigation. But it is happening after Barr has been confirmed, and so any problems with the investigation that might stem from having an inferior officer (an unconfirmed hack like the Big Dick Toilet Salesman) supervising Mueller are gone.

I’m fairly certain the concerns about Barr coming in and forcing Mueller to finish this are misplaced. I say that, in part, because Mueller seemed to be preparing for this timing. I say it, too, because Barr is too close to Mueller to do that to him.

That says that Mueller is choosing this timing (and choosing not to wait for the appeals to be done). Whatever reason dictates this timing, by doing it in this window, Mueller can ensure the legitimacy of what happens, both legally (because Barr will be in place) and politically (because it will be clear Rosenstein presided over it).

So whatever comes next week, people on both sides should accept that it is the outcome of the investigation that Mueller deemed appropriate.

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Questions to Ask before Reporting a BREAKING Mueller Report

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Update: CNN is matching NBC’s reporting on this. It also backs its report with real details from their superb stakeout.

On Monday, Tuesday and Wednesday last week, special counsel’s office employees carried boxes and pushed a cart full of files out of their office — an unusual move that could foreshadow a hand-off of legal work.

At the same time, the Mueller prosecutors’ workload appears to be dwindling. Four of Mueller’s 17 prosecutors have ended their tenures with the office, with most returning to other roles in the Justice Department.

And the grand jury that Mueller’s prosecutors used to return indictments of longtime Trump confidant Roger Stone, former Trump campaign chairman Paul Manafort, and several Russians hasn’t apparently convened since January 24 the day it approved the criminal charges against Stone.

I take from that I’m wrong about Mueller waiting for the two appeals (he knows what he’ll get from them) before he delivers his verdict. 

Pete Williams did the NBC circuit yesterday claiming that the Mueller report may be submitted to DOJ as soon as next week.

Pete Williams on MSNBC says the Mueller report may go to DOJ as early as next week

Because a lot of people have asked me about this and because Williams (and some other journalists) don’t appear to know enough about the Mueller investigation to ask the proper questions to assess that claim, I’d like to lay out a little logic and a few facts. It’s certainly possible that a Mueller report is coming next week — I’d argue that one is assuredly coming on Friday. But I doubt that means what Williams thinks it does.

The conclusory report is not coming next week

When most people think of “the Mueller report,” they mean this report, dictated by the Special Counsel regulations.

At the conclusion of the Special Counsel’s work, he or she shall provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel.

When Mueller is done, he has to submit a confidential report to the Attorney General (who is now Mueller’s friend William Barr) telling him what he did and didn’t do. Given everything Barr said as part of his confirmation process, we’re unlikely to see this report.

To assess whether this report is what Pete Williams thinks is coming, we should assess whether public evidence is consistent with Mueller being done.

The answer to that is clearly no. He’s still chasing testimony from Roger Stone flunkie Andrew Miller and from some foreign owned corporation (and has been chasing that, in the case of Miller, since last May).

Given that Miller already interviewed with the FBI for two hours and the foreign company is, by dint of being foreign, a no-brainer target for NSA, it’s quite likely Mueller knows what he’s getting from both of these entities. He just needs Miller on the record, so he can’t change his story to protect Stone, and needs to parallel construct the information from the foreign company. So it’s possible that as soon as Mueller gets both of these things, he’ll finish up quickly (meaning The Report could be soon). But there is no way that’ll happen by next week, in part because whatever the DC Appeals Court says in the Andrew Miller case, the loser will appeal that decision.

So it’s virtually certain that The Report is not coming by next week.

A report talking about “collusion” is coming this week

But maybe NBC’s sources are speaking metaphorically, and mean something else that isn’t the conclusory report but that will more closely resemble what everyone thinks of when they talk about The Report.

That’s likely to happen, but if it does, it’ll just be a partial report.

That’s because both Mueller and the defense have to submit a sentencing memo in Paul Manafort’s DC case Friday. As I noted back in November when Mueller’s prosecutors declared Manafort to have breached his plea agreement, this sentencing memo presents an opportunity for Mueller to “report” what they’ve found — at least with respect to all the criminal actions they know Manafort committed, including those he lied about while he was supposed to be cooperating — without anyone at DOJ or the White House suppressing the most damning bits. DOJ won’t be able to weigh in because a sentencing memo is not a major action requiring an urgent memo to the Attorney General. And the White House will get no advance warning because Big Dick Toilet Salesman Matt Whitaker is no longer in the reporting chain.

So, as noted, Mueller will have an opportunity to lay out:

  1. The details of Manafort’s sleazy influence peddling, including his modus operandi of projecting his own client’s corruption onto his opponents
  2. The fact that Manafort already pled guilty to conspiring with a suspected Russian intelligence asset
  3. The details about how Manafort — ostensibly working for “free” — got paid in 2016, in part via kickbacks from a Super PAC that violated campaign finance law, possibly in part by Tom Barrack who was using Manafort and Trump as a loss-leader to Middle Eastern graft, and in part by deferred payments or debt relief from Russian-backed oligarchs
  4. Manafort’s role and understanding of the June 9 meeting, which is a prelude of sorts to the August 2 one
  5. The dates and substance of Manafort’s ongoing communications with suspected Russian intelligence asset Konstantin Kilimnik, including the reasons why Manafort shared highly detailed polling data on August 2, 2016 that he knew would be passed on to his paymasters who just happened to be (in the case of Oleg Deripaska) a central player in the election year operation
  6. The ongoing efforts to win Russia relief from the American Ukrainian-related sanctions by pushing a “peace” plan that would effectively give Russia everything it wants
  7. Manafort’s ongoing discussions with Trump and the Administration, up to and including discussions laying out how if Manafort remains silent about items two through six, Trump will pardon him

Because those items are all within the substance of the crimes Manafort pled guilty to or lied about during his failed cooperation, they’re all squarely within the legitimate content of a sentencing memo. And we should expect the sentencing memo in DC to be at least as detailed as the EDVA one; I expect it, like the EDVA one and like Manafort’s plea deal, will be accompanied by exhibits such as the EDVA one showing that Manafort had bank accounts to the tune of $25,704,669.72 for which suspected Russian intelligence asset Konstantin Kilimnik was listed as a beneficial owner in 2012. Heck, we might even get to see the polling data Manafort shared, knowing it was going to Russia, which was an exhibit to Manafort’s breach determination.

The only thing limiting how much detail we’ll get about these things (as well as about how Manafort served as a secret agent of Russian backed Ukrainian oligarchs for years) is the ongoing sensitivities of the material, whether because it’s grand jury testimony, SIGINT collection, or a secret Mueller intends to spring on other defendants down the road.

It’s the latter point that will be most telling. As I noted, thus far, the silences about Manafort’s cooperation are — amazingly — even more provocative than the snippets we learned via the breach determination. We’ll likely get a read on Friday whether Mueller has ongoing equities that would lead him to want to keep these details secret. And the only thing that would lead Mueller to keep details of the conspiracy secret is if he plans to charge it in an overarching conspiracy indictment.

We may also get information, however, that will make it far more difficult for Trump to pardon Manafort.

So, yeah, there’s a report coming out this week. But it’s not The Report.

Any overarching conspiracy indictment will not be coming this week

It’s possible Mueller is close to charging an overarching conspiracy indictment, laying out how Trump and his spawn entered into a quid quo pro with various representatives of the Russian government, getting dirt on Hillary and either a Trump Tower or maybe a bailout for the very same building in which Manafort met with Konstantin Kilimnik on August 2, 2016. In exchange for all that, Trump agreed to — and took steps to deliver on, with some success in the case of election plot participant Deripaska — reversing the sanctions that were such a headache to Russia’s oligarchs.

Such an indictment, if Mueller ever charges it, will look like what Trump opponents would like The Report to look like. In addition to naming Don Jr and Jared Kushner and Trump Organization and a bunch of other sleazeballs, it would also describe the actions of Individual-1 in adequate detail to launch an impeachment proceeding.

But that indictment, if Mueller ever charges it, won’t be coming on Friday or Monday, as Williams predicts, because it likely requires whatever it is Mueller is trying to parallel construct from that foreign-owned company. And even if SCOTUS denies its appeal today, it’s unlikely that evidence will be in hand in time for a Friday indictment.

Mueller could ensure a report gets delivered to Jerry Nadler next week … but that’s unlikely

There’s one other possibility that would make Williams’ prediction true: if Mueller deliberately triggered the one other way to deliver a report, by asking to take an action William Barr is unlikely to approve, and if Mueller was willing to close up shop as a result, then a report would go to Congress and — if Barr thought it in the public interest — to the public.

Upon conclusion of the Special Counsels investigation, including, to the extent consistent with applicable law, a description and explanation of instances (if any) in which the Attorney General concluded that a proposed action by a Special Counsel was so inappropriate or unwarranted under established Departmental practices that it should not be pursued.

[snip]

The Attorney General may determine that public release of these reports would be in the public interest, to the extent that release would comply with applicable legal restrictions.

The only thing that Mueller might try to do that Barr would not approve (though who knows? maybe what Mueller has is so egregious Barr will surprise us?) is to indict the President.

I think this is unlikely, for all the reasons the first possibility laid out here is unlikely: that is, Mueller is still waiting on two details he has been chasing for quite some time, and I doubt he’d be willing to forgo that evidence just to trigger a report. It’s also unlikely because Mueller is a DOJ guy, and he’s unlikely to ask to do what he knows OLC says he should not do.

Still, it’s hypothetically possible that Mueller believes Trump is such an egregious criminal and national security risk he needs to try to accelerate the process of holding him accountable by stopping his investigation early (perhaps having the DC AUSAs named on the Miller and Mystery Appellant challenges take over those pursuits) and asking to indict the President.

But if that’s what Williams is reporting, he sure as hell better get more clarity about that fact, because, boy would it be news.

All of which is the lesson of this post: If you’re being told — or telling others — that Mueller’s report is imminent, then you’re either being told very very big news, or bullshit. Do yourself and us a favor of learning the base level regulations to understand which it is.

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. 

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About the Two Investigations into Donald Trump

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I’m still pretty cranky about the timing and form of Andrew McCabe’s publicity tour.

But since it’s out there, I’d like to comment on three details, two of which have gotten significant comment elsewhere.

Trump wanted Rod Rosenstein to include Russia in the reasons he should fire Comey

The first is that Trump specifically asked Rosenstein to include Russia — McCabe doesn’t further specify what he meant — in the letter recommending he fire Jim Comey.

McCabe says that the basis for both investigations was in Mr. Trump’s own statements. First, Mr. Trump had asked FBI Director Comey to drop the investigation of National Security Adviser Michael Flynn, who has since pleaded guilty to lying to the FBI about his Russian contacts.  Then, to justify firing Comey, Mr. Trump asked his deputy attorney general, Rod Rosenstein, to write a memo listing the reasons Comey had to go. And according to McCabe, Mr. Trump made a request for that memo that came as a surprise.

Andrew McCabe: Rod was concerned by his interactions with the president, who seemed to be very focused on firing the director and saying things like, “Make sure you put Russia in your memo.” That concerned Rod in the same way that it concerned me and the FBI investigators on the Russia case.

If Deputy Attorney General Rosenstein listed the Russia investigation in his memo to the White House, it could look like he was obstructing the Russia probe by suggesting Comey’s firing. And by implication, it would give the president cover.

Scott Pelley: He didn’t wanna put Russia in his memo.

Andrew McCabe: He did not. He explained to the president that he did not need Russia in his memo. And the president responded, “I understand that, I am asking you to put Russia in the memo anyway.”

When the memo justifying Comey’s firing was made public, Russia was not in it. But, Mr. Trump made the connection anyway, telling NBC, then, Russian diplomats that the Russian investigation was among the reasons he fired Comey.

The most obvious explanation for this is that Trump wanted to box DOJ in, to prevent them from expanding their investigative focus from one campaign foreign policy advisor, a second campaign foreign policy advisor, his former campaign manager, his National Security Advisor, and his lifelong political advisor to the one thing those five men had in common, Trump.

But it’s also possible that Trump wanted Rosenstein to do what Don McGahn had narrowly prevented Trump from doing, effectively shifting the obstruction to Rosenstein. That seems like what Rosenstein was worried about, an impression he may have gotten from his instructions from McGahn, laying out the case that investigating Russia would get you fired.

It’s possible, too, that Trump was particularly interested in the public statement for the benefit of the Russians, a view supported by the fact that Trump made sure he fired Comey before his meeting with Sergey Lavrov and Sergey Kislyak, and then stated that he had more freedom with Comey gone. That is, it’s possible he needed to prove to the Russians that he could control his own DOJ.

The order to Rosenstein was one of the predications for the investigation into Trump

McCabe elaborates on a story told at least partly by the Peter Strzok-Lisa Page texts: that the day after Trump fired Comey, FBI moved to open two investigations into Trump. A number of people have suggested McCabe just vaguely pointed to Trump’s statements, but he’s more specific than that. One of the statements was that order to Rosenstein to include Russia in the firing memo.

Scott Pelley: How long was it after that that you decided to start the obstruction of justice and counterintelligence investigations involving the president?

Andrew McCabe: I think the next day, I met with the team investigating the Russia cases. And I asked the team to go back and conduct an assessment to determine where are we with these efforts and what steps do we need to take going forward. I was very concerned that I was able to put the Russia case on absolutely solid ground in an indelible fashion that were I removed quickly or reassigned or fired that the case could not be closed or vanish in the night without a trace.

[snip]

Andrew McCabe: There were a number of things that caused us to believe that we had adequate predication or adequate reason and facts, to open the investigation. The president had been speaking in a derogatory way about our investigative efforts for weeks, describing it as a witch hunt…

President Trump on Feb. 16, 2017: Russia is a ruse. I have nothing to do with Russia. Haven’t made a phone call to Russia in years.

Andrew McCabe: …publicly undermining the effort of the investigation. The president had gone to Jim Comey and specifically asked him to discontinue the investigation of Mike Flynn which was a part of our Russia case. The president, then, fired the director. In the firing of the director, the president specifically asked Rod Rosenstein to write the memo justifying the firing and told Rod to include Russia in the memo. Rod, of course, did not do that. That was on the president’s mind. Then, the president made those public comments that you’ve referenced both on NBC and to the Russians which was captured in the Oval Office. Put together, these circumstances were articulable facts that indicated that a crime may have been committed. The president may have been engaged in obstruction of justice in the firing of Jim Comey.

As McCabe describes it, the other things are obstruction-related: Trump’s attacks on the Russian investigation.

But remember, McCabe had heard the substance of Mike Flynn’s comments to Sergei Kislyak. The rest of us have seen just outlines of it. In some way, Mike Flynn convinced Sergei Kislyak on December 29, 2016, that Russia had Trump’s assurances on sanctions relief. Trump may well have come up specifically. In any case, the FBI would have had good reason — from Flynn’s lies, and his call records showing his consultations before he lied — to suspect Trump had ordered Flynn’s statements to Kislyak.

McCabe describes the genesis of the obstruction and the counterintelligence investigation

Finally, McCabe provides additional details to the dual investigation into Trump: the obstruction one arising out of Trump’s efforts to kill the Russian investigation, and the counterintelligence one into whether Trump was doing that at Russia’s behest (which goes back to my initial point, that Trump may have wanted Russia included in the firing memos as a signal to Russia he could kill the investigation).

Andrew McCabe: …publicly undermining the effort of the investigation. The president had gone to Jim Comey and specifically asked him to discontinue the investigation of Mike Flynn which was a part of our Russia case. The president, then, fired the director. In the firing of the director, the president specifically asked Rod Rosenstein to write the memo justifying the firing and told Rod to include Russia in the memo. Rod, of course, did not do that. That was on the president’s mind. Then, the president made those public comments that you’ve referenced both on NBC and to the Russians which was captured in the Oval Office. Put together, these circumstances were articulable facts that indicated that a crime may have been committed. The president may have been engaged in obstruction of justice in the firing of Jim Comey.

Scott Pelley: What was it specifically that caused you to launch the counterintelligence investigation?

Andrew McCabe: It’s many of those same concerns that cause us to be concerned about a national security threat. And the idea is, if the president committed obstruction of justice, fired the director of the of the FBI to negatively impact or to shut down our investigation of Russia’s malign activity and possibly in support of his campaign, as a counterintelligence investigator you have to ask yourself, “Why would a president of the United States do that?” So all those same sorts of facts cause us to wonder is there an inappropriate relationship, a connection between this president and our most fearsome enemy, the government of Russia?

Scott Pelley: Are you saying that the president is in league with the Russians?

Andrew McCabe: I’m saying that the FBI had reason to investigate that. Right, to investigate the existence of an investigation doesn’t mean someone is guilty. I would say, Scott, if we failed to open an investigation under those circumstances, we wouldn’t be doing our jobs.

With that laid out, I’d like to look at Rod Rosenstein’s August 2 memo laying out precisely what Mueller was — and had, from the start — been authorized to investigate, which both Paul Manafort and the President’s flunkies in Congress spent a great deal of effort trying to unseal. Knowing as we now do that the redacted passages include at least one and probably two bullet points relating to Trump himself, it seems more clear than every that once you lay out the investigations into Trump’s flunkies known to have been predicated at the time, that’s all that would have been included in the memo:

  • Obstruction investigation into Trump
  • Counterintelligence investigation into Trump
  • Election conspiracy investigation into Manafort
  • Ukrainian influence peddling investigation into Manafort
  • Transition conspiracy investigation into Flynn
  • Turkish influence peddling investigation into Flynn
  • Counterintelligence investigation into Carter Page
  • Election conspiracy investigation into George Papadopoulos
  • Election conspiracy investigation into Roger Stone

At that point, there wouldn’t have been space for at least two of the three bullets that now exist on a scope memo, as laid out by Jerome Corsi’s draft plea (though “c” may have been there in conjunction with Stone).

At the time of the interview, the Special Counsel’s Office was investigating the Russian government’s efforts to interfere in the 2016 presidential election, including:

a. the theft of campaign-related emails and other documents by the Russian government’s Main Intelligence Directorate of the General Staff (“GRU”);

b. the GRU’s provision of certain of those documents to an organization (“Organization 1”) for public release in order to expand the GRU’s interference in the 2016 U.S. presidential election campaign; and

c. the nature of any connections between individuals associated with the U.S. presidential campaign of Donald J. Trump (“Trump Campaign”) and the Russian government or Organization 1.

That’s another to believe — as I have long argued — that bullets a and b got moved under Mueller at a later time, probably around November 2017. After Flynn flipped, the Middle Eastern pass-through corruption would likely have been added, and inauguration graft probably got added after Rick Gates flipped (before the non-Russian parts of both got spun off).

One thing that means, if I’m correct, is that at the time Mueller was hired, the investigation consisted of predicated investigations into probably six individuals. While there would have been a counterintelligence and criminal aspect to both, there was a criminal aspect to each of the investigations, with specific possible crimes envisioned. If that’s right, it means a lot of hot air about Mueller’s appointment simply misunderstood what part of Comey’s confirmed investigation got put under Mueller at first.

I have been authorized by the Department of Justice to confirm that the FBI, as part of our counterintelligence mission, is investigating the Russian government’s efforts to interfere in the 2016 presidential election and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia’s efforts. As with any counterintelligence investigation, this will also include an assessment of whether any crimes were committed.

In any case, the certainty that there are at least one and probably two bullets pertaining to Trump in that August 2 memo is interesting for a few more reasons.

It makes it far more likely that the Strzok 302 — based on a July 19, 2017 interview, drafted the following day, and finalized August 22 — was an effort to formalize Mueller’s authorization to investigate the President. The part of the 302 that pertains to Mike Flynn’s interview takes up the middle third of the report. The rest must lay out the larger investigations, how the FBI found the intercepts between Flynn and Kislyak, and what the response to the interview was at DOJ.

The 302 is sandwiched between two events. First, it follows by just a few weeks the release of the June 9 meeting emails. Indeed, the interview itself took place on the day the NYT published the interview where Trump admits he and Putin spoke about adoptions — effectively making it clear that Putin, not Trump, drafted a statement downplaying that the meeting had established a dirt-for-sanctions relief quid pro quo.

The 302 was also drafted the day before Mueller started pursuing the transition emails and other comms from GSA that would have made it clear that Trump ordered Flynn’s statements and key members of the transition team knew that.

Specifically, on August 23, 2017, the FBI sent a letter (i.e., not a subpoena) to career GSA staff requesting copies of the emails, laptops, cell phones, and other materials associated with nine PTT members responsible for national security and policy matters. On August 30, 2017, the FBI sent a letter (again, not a subpoena) to career GSA staff requesting such materials for four additional senior PTT members.

It also happens to precede, by days, when Michael Horowitz would inform Christopher Wray and then Mueller about the Page-Strzok texts, though that is almost certainly an almost unbelievable coincidence.

In any case, as I’ve noted, unsealing that August 2 memo has been like a crown jewel for the obstructionists, as if they knew that it laid out the investigation into Donald Trump. That effort has been part of a strategy to suggest any investigation into Trump had to be improper, even one investigating whether he engaged in a quid pro quo even before the General Election started, trading US policy considerations — starting with, but not limited to, sanctions relief — in exchange for help getting elected.

The obstructionists want to claim that an investigation that started with George Papadopoulos and then Carter Page and then Mike Flynn (the obstructionists always seem to be silent about Paul Manafort and Roger Stone, as if they knew who engaged in substantive conspiracy with the Russians) should not end up with Donald Trump. And they do so, I think, to suggest that at the moment it discovered that quid pro quo in July 2017, it was already illegitimate.

But as McCabe said, “the FBI had reason to investigate that. Right, to investigate the existence of an investigation doesn’t mean someone is guilty. I would say, Scott, if we failed to open an investigation under those circumstances, we wouldn’t be doing our jobs.”

It just turned out that Trump was guilty.

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. 

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Four Sentences: What the Legal System Has Said about the Suspect Loyalty of Trump’s Aides

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In an attempt to undercut Andrew McCabe’s publicity tour, the President is on a tear, attacking what he claims was McCabe and Rod Rosenstein’s “treasonous” insurance policy.

We’re at a point where both sides are making claims of treason, which only serves to feed the intensity of both sides, without convincing Trump’s supporters (and other denialists) that the concerns about Trump’s loyalty — and therefore the investigation that McCabe opened into him — are well-grounded.

But there are neutral third party observers here, weighing the claims of loyalty. Four different sentencing processes have sided with those questioning the loyalty of Trump and those close to him.

George Papadopoulos

In the first two cases where Trump flunkies have been sentenced, the flunkies themselves have pointed to how their own misplaced loyalties caused them to commit crimes. In George Papadopoulos’ sentencing memo, he attributed the actions that led to his prosecution — his attempts to broker a meeting between Putin and Trump — to a desire to curry Trump’s favor.

Eager to show his value to the campaign, George announced at the meeting that he had connections that could facilitate a foreign policy meeting between Mr. Trump and Russian President Vladimir Putin. While some in the room rebuffed George’s offer, Mr. Trump nodded with approval and deferred to Mr. Sessions who appeared to like the idea and stated that the campaign should look into it.

George’s giddiness over Mr. Trump’s recognition was prominent during the days that followed the March 31, 2016 meeting. He had a sense of unbridled loyalty to the candidate and his campaign and set about trying to organize the meeting with President Putin.

Papadopoulos says he lied to the FBI out of loyalty to Trump.

Mr. Papadopoulos misled investigators to save his professional aspirations and preserve a perhaps misguided loyalty to his master.

[snip]

George explained that he was in discussions with senior Trump administration officials about a position and the last thing he wanted was “something like this” casting the administration in a bad light. The agents assured him that his cooperation would remain confidential.

More specifically, he lied to avoid tainting the Trump campaign with any tie to Russia.

George found himself personally conflicted during the interrogation as he felt obligated to assist the FBI but also wanted to distance himself and his work on the Trump campaign from that investigation. Attempting to reconcile these competing interests, George provided information he thought was important to the investigation while, at the same time, misleading the agents about the timing, nature, and extent of his contacts with Professor Mifsud, Olga, and Ivan Timofeev. In his answers, George falsely distanced his interactions with these players from his campaign work. At one point, George told the agents that he did not want to “get too in-depth” because he did not know what it would mean for his professional future. He told the agents he was “trying to help the country and you guys, but I don’t want to jeopardize my career.”

George lied about material facts central to the investigation. To generalize, the FBI was looking into Russian contacts with members of the Trump campaign as part of its larger investigation into Russian interference with the 2016 election. This issue had dominated the news for several months with stories concerning Carter Page and Paul Manafort. The agents placed this issue squarely on the table before George and he balked. In his hesitation, George lied, minimized, and omitted material facts. Out of loyalty to the new president and his desire to be part of the administration, he hoisted himself upon his own petard.

I have argued that this memo served the dual purpose of accepting responsibility while signaling others and reaffirming his loyalty to Trump, and I stand by that. Given his efforts to reverse his sentence, Papadopoulos show of contrition at his hearing was just that, a ruse. But it was one of the things that convinced Judge Randolph Moss to impose just two weeks. Another, however, were the comments of Papadopoulos’ lawyer, Thomas Breen, who argued Trump had obstructed the Mueller investigation far more than his client had.

Trump, Breen said, “hindered this investigation more than George Papadopoulos ever could,” by calling the FBI’s Russia inquiry a “witch hunt” and casting doubt on credible allegations of wrongdoing by his associates.

“The president of the United States, the commander in chief, told the world that this was fake news,” Breen said, contrasting this with Mueller’s “professional” and “well-prepared” team.

In imposing prison time, Moss emphasized that Papadopoulos lied about a manner of grave importance.

The judge noted that most defendants convicted on a false-statement charge don’t get any prison time, but he said he considered the Mueller investigation “a matter of enormous importance.” Moss, an appointee of President Barack Obama who served as a top Justice Department official under President Bill Clinton, described the inquiry as an attempt to investigate an “effort to interfere in our democracy.”

“It’s important that the public know there are real consequences when you mislead and tell lies to the FBI about a matter of grave national importance,” he said.

[snip]

Breen said his client was trying to preserve his job prospects in the Trump administration, but Moss told the lawyer that those were “not noble reasons to tell a lie.”

“This was fairly calculated,” the judge said. “It took six months for Mr. Papadopoulos to correct the record.”

So Papadopoulos’ lawyers agreed his loyalties were misplaced and Judge Moss judged that Papadopoulos’ lies pertained to something that strikes at the integrity of our democracy.

Michael Cohen

As Papadopoulos did, Michael Cohen attributed his obstruction to his blind loyalty to Trump and a desire to sustain Trump’s false narrative denying ties to Russia.

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

In his cynical, Lanny Davis-crafted statement at sentencing, Cohen talked about how he put loyalty to Trump over that to his family, ending with an apology to the US.

 I blame myself for the conduct which has brought me here today, and it was my own weakness, and a blind loyalty to this man that led me to choose a path of darkness over light. It is for these reasons I chose to participate in the elicit act of the President rather than to listen to my own inner voice which should have warned me that the campaign finance violations that I later pled guilty to were insidious.

Recently, the President Tweeted a statement calling me weak, and he was correct, but for a much different reason than he was implying. It was because time and time again I felt it was my duty to cover up his dirty deeds rather than to listen to my own inner voice and my moral compass. My weakness can be characterized as a blind loyalty to Donald Trump, and I was weak for not having the strength to question and to refuse his demands.

[snip]

I stand behind my statement that I made to George Stephanopoulos, that my wife, my daughter, my son have my first loyalty and always will. I put family and country first. My departure as a loyal soldier to the President bears a very hefty price.

For months now the President of the United States, one of the most powerful men in the world, publicly mocks me, calling me a rat and a liar, and insists that the Court sentence me to the absolute maximum time in prison. Not only is this improper; it creates a false sense that the President can weigh in on the outcome of judicial proceedings that implicate him.

[snip]

I want to apologize to the people of the United States. You deserve to know the truth and lying to you was unjust.

In sentencing Cohen, Judge William Pauley pointed to how his ties to Trump and the access that gave him led him to lose his moral compass.

[H]is entire professional life apparently revolved around the Trump organization. He thrived on his access to wealthy and powerful people, and he became one himself.

[snip]

But somewhere along the way Mr. Cohen appears to have lost his moral compass and sought instead to monetize his new-found influence. That trajectory, unfortunately, has led him to this courtroom today.

Cohen’s guilty plea — particularly the way he tried to cabin off cooperation implicating his family — is cynical as hell. But to the extent he is willing to help prosecutors, it entails being treated as a traitor by the President.

Mike Flynn

The other two Trump flunkies who’ve gotten close to sentencing are even more striking — in part because they have been less successful at crafting a fiction about setting their loyalty to Trump or other paymasters aside.

Flynn was set to get probation until he and his lawyer used their own sentencing memo to continue the line all the other loyal Trump flunkies have, suggesting that the investigation was illegitimate.

There are, at the same time, some additional facts regarding the circumstances of the FBI interview of General Flynn on January 24, 2017, that are relevant to the Court’s consideration of a just punishment.

At 12:35 p.m. on January 24, 2017, the first Tuesday after the presidential inauguration, General Flynn received a phone call from then-Deputy Director of the FBI, Andrew McCabe, on a secure phone in his office in the West Wing.20 General Flynn had for many years been accustomed to working in cooperation with the FBI on matters of national security. He and Mr. McCabe briefly discussed a security training session the FBI had recently conducted at the White House before Mr. McCabe, by his own account, stated that he “felt that we needed to have two of our agents sit down” with General Flynn to talk about his communications with Russian representatives.21

Mr. McCabe’s account states: “I explained that I thought the quickest way to get this done was to have a conversation between [General Flynn] and the agents only. I further stated that if LTG Flynn wished to include anyone else in the meeting, like the White House Counsel for instance, that I would need to involve the Department of Justice. [General Flynn] stated that this would not be necessary and agreed to meet with the agents without any additional participants.”22

Less than two hours later, at 2:15 p.m., FBI Deputy Assistant Director Peter Strzok and a second FBI agent arrived at the White House to interview General Flynn.23 By the agents’ account, General Flynn was “relaxed and jocular” and offered to give the agents “a little tour” of the area around his West Wing office. 24 The agents did not provide General Flynn with a warning of the penalties for making a false statement under 18 U.S.C. § 1001 before, during, or after the interview. Prior to the FBI’s interview of General Flynn, Mr. McCabe and other FBI officials “decided the agents would not warn Flynn that it was a crime to lie during an FBI interview because they wanted Flynn to be relaxed, and they were concerned that giving the warnings might adversely affect the rapport,” one of the agents reported.25 Before the interview, FBI officials had also decided that, if “Flynn said he did not remember something they knew he said, they would use the exact words Flynn used, . . . to try to refresh his recollection. If Flynn still would not confirm what he said, . . . they would not confront him or talk him through it.”26 One of the agents reported that General Flynn was “unguarded” during the interview and “clearly saw the FBI agents as allies.”27

While Emmet Sullivan — ever on guard against prosecutorial misconduct — might have done so anyway, this led the judge to ask for the paperwork behind Flynn’s claims. Which in turn led to the production of really damning details of Flynn’s lies. That, in turn, led Sullivan to hesitate before sentencing Flynn, in part because the “great deal of nonpublic information in this case” he read led him to grow disgusted about what Flynn had done. Sullivan, as the first judge to read in detail about Mueller’s underlying investigation, said some absolutely remarkable things (and note, at least some of this language pertains to Flynn selling out to Turkey, not Russia).

I’m going to also take into consideration the aggravating circumstances, and the aggravating circumstances are serious. Not only did you lie to the FBI, but you lied to senior officials in the Trump Transition Team and Administration. Those lies caused the then-Vice President-Elect, incoming Chief of Staff, and then-Press Secretary to lie to the American people. Moreover, you lied to the FBI about three different topics, and you made those false statements while you were serving as the National Security Advisor, the President of the United States’ most senior national security aid. I can’t minimize that.

Two months later you again made false statements in multiple documents filed pursuant to the Foreign Agents Registration Act. So, all along you were an unregistered agent of a foreign country, while serving as the National Security Advisor to the President of the United States.

[snip]

COURT: All right. I really don’t know the answer to this question, but given the fact that the then-President of the United States imposed sanctions against Russia for interfering with federal elections in this country, is there an opinion about the conduct of the defendant the following days that rises to the level of treasonous activity on his part?

[snip]

I mean, arguably, that undermines everything this flag over here stands for (indicating). Arguably, you sold your country out. The Court’s going to consider all of that. I cannot assure you that if you proceed today you will not receive a sentence of incarceration. But I have to also tell you that at some point, if and when the government says you’ve concluded with your cooperation, you could be incarcerated.

It could be that any sentence of incarceration imposed after your further cooperation is completed would be for less time than a sentence may be today. I can’t make any guarantees, but I’m not hiding my disgust, my disdain for this criminal offense.

So in this case, Flynn’s bid to discredit the investigation instead led to remarkable comments about how Flynn’s underlying crimes — the ones he lied to cover-up — amount to selling out his country.

Paul Manafort

Which brings us to Paul Manafort, who is currently facing what amount to be several life sentences because he refused to cooperate, even after promising to do so, against Trump and his Ukrainian and Russian paymasters. As I have noted, Manafort’s lies served to avoid giving the government evidence that Trump conspired with Russia to get elected.

But don’t take my word for it. In announcing her ruling in the breach determination last week, Amy Berman Jackson paid special attention to Manafort’s lies about Konstantin Kilimnik. The most important lie, it seems, pertains to Manafort sharing of detailed polling data with Kilimnik at a meeting where they also discussed sanctions relief in the guise of a Ukrainian peace detail. The description of whom Manafort intended that data to be shared with is redacted. But ABJ moved directly from describing the intended recipients to judging that sharing the data amounts to a link with Russia.

Also, the evidence indicates that it was understood that [redacted] would be [redacted from Kilimnik [redacted] including [redacted], and [redacted]. Whether Kilimnik is tied to Russian intelligence or he’s not, I think the specific representation by the Office of Special Counsel was that he had been, quote, assessed by the FBI, quote, to have a relationship with Russian intelligence, close quote. Whether that’s true, I have not been provided with the evidence that I would need to decide, nor do I have to decide because it’s outside the scope of this hearing. And whether it’s true or not, one cannot quibble about the materiality of this meeting.

[snip]

I don’t think that’s a fair characterization of what was said. The intelligence reference was just one factor in a series of factors the prosecutor listed. And the language of the appointment order, “any links,” is sufficiently broad to get over the relatively low hurdle of materiality in this instance, and to make the [redacted] Kilimnik and [redacted] material to the FBI’s inquiry, no matter what his particular relationship was on that date.

She continued by saying that she didn’t even have to determine whether — as the government claims — Kilimnik has active ties to GRU. Whatever Kilimnik’s ties to Russian military intelligence, ABJ still considers his relationship with Manafort to implicate coordination with the Russian government.

I also want to say we’ve now spent considerable time talking about multiple clusters of false or misleading or incomplete or needed-to-be-prodded-by-counsel statements, all of which center around the defendant’s relationship or communications with Mr. Kilimnik. This is a topic at the undisputed core of the Office of Special Counsel’s investigation into, as paragraph (b) of the appointment order put it, Any links and/or coordination between the Russian government and individuals associated with the campaign.

Mr. Kilimnik doesn’t have to be in the government or even be an active spy to be a link. The fact that all of this is the case, that we have now been over Kilimnik, Kilimnik, and Kilimnik makes the defense argument that I should find the inaccurate statements to be unintentional because they’re all so random and disconnected, which was an argument that was made in the hearing, is very unpersuasive.

ABJ’s most striking comments, however, came in language introducing why, even though she didn’t find that Mueller’s team had proven Manafort’s lies about conspiring with Kilimnik to be proven by a preponderance of the evidence, it nevertheless was obvious that what Manafort was trying to do in disclaiming a conspiracy with Kilimnik was to “shield his Russian conspirator.”

Mr. Manafort doesn’t just say to the agents, Kilimnik doesn’t believe he was pressuring the witness, or Kilimnik didn’t think he was suborning perjury, he didn’t intend to violate U.S. law, he makes the affirmative assertion that Kilimnik believed the project was a European project, when Manafort plainly knew that Kilimnik knew it wasn’t and the documents plainly reflect that it wasn’t, and that was the basis for the conspiracy count to which he pled guilty in the first place.

To me, this is definitely an example of a situation in which the Office of Special Counsel legitimately concluded he’s lying to minimize things here, he’s not being forthcoming, this isn’t what cooperation is supposed to be. This is a problematic attempt to shield his Russian conspirator from liability and it gives rise to legitimate questions about where his loyalties lie.

We have yet to get Mueller’s sentencing memo in the DC case or ABJ’s response to any claims they may make about why Manafort chose to face a life sentence rather than tell the truth about his conspiracies with Konstantin Kilimnik.

But it’s pretty clear that ABJ believes Manafort’s lies suggest he has suspect loyalties.

Four times so far in this investigation, Trump’s aides have started the sentencing process for their crimes designed to obstruction Robert Mueller’s investigation. All four times, before four different judges, their misplaced loyalty to Trump above country has come up. And with both Flynn and Manafort — where the judges have seen significant amounts of non-public information about the crimes they lied to cover-up — two very reasonable judges have raised explicit questions about whether Trump’s aides had betrayed their country.

Trump wants this to be a case of contested claims of betrayal. But the judges who have reviewed the record have used striking language about who betrayed their country.

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. 

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Roger Stone and the Dozens of Search Warrants on Accounts Used to Facilitate the Transfer and Promotion of Stolen Democratic Emails

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In response to Roger Stone’s bid to get a new judge, the government has submitted a filing explaining why his case is related to the GRU indictment. It explains that Stone’s alleged false statements pertained to an investigation into links between the Russians who stole Democratic emails, entities who dumped them, and US persons like Stone:

The defendant’s false statements did not arise in a vacuum: they were made in the course of an investigation into possible links between Russian individuals (including the Netyksho defendants), individuals associated with the dumping of materials (including Organization 1), and U.S. persons (including the defendant).

More interestingly, it makes clear that Stone’s communications “with Guccifer 2.0 and with Organization 1” were found in some of the accounts used to transfer and promote the stolen emails.

In the course of investigating that activity, the government obtained and executed dozens of search warrants on various accounts used to facilitate the transfer of stolen documents for release, as well as to discuss the timing and promotion of their release. Several of those search warrants were executed on accounts that contained Stone’s communications with Guccifer 2.0 and with Organization 1.

To be clear: We know that Stone had (innocuous) DMs with both Guccifer 2.0 and WikiLeaks. So this passage is not necessarily saying anything new. But given that Stone’s indictment obscures precisely who his and Jerome Corsi’s go-between with WikiLeaks is, it suggests there may be more direct Stone communications of interest.

Stone will get a sealed description of what those warrants are and — eventually — get the warrants themselves in discovery.

The relevant search warrants, which are being produced to the defendant in discovery in this case, are discussed further in a sealed addendum to this filing.

Meanwhile, Amy Berman Jackson has issued a very limited gag in Stone’s case, prohibiting lawyers from material comments on the case, but gagging Stone only at the courthouse. That said, her gag includes lawyers for witnesses, which would seem to include Jerome Corsi lawyer Larry Klayman.

Counsel for the parties and the witnesses must refrain from making statements to the media or in public settings that pose a substantial likelihood of material prejudice to this case

ABJ does give Stone the following warnings to shut up, however.

This order should not be interpreted as modifying or superseding the condition of the defendant’s release that absolutely prohibits him from communicating with any witness in the case, either directly or indirectly. Nor does this order permit the defendant to intimidate or threaten any witness, or to engage or attempt to engage in any conduct in violation of 18 U.S.C. §1512.

Finally, while it is not up to the Court to advise the defendant as to whether a succession of public statements would be in his best interest at this time, it notes that one factor that will be considered in the evaluation of any future request for relief based on pretrial publicity will be the extent to which the publicity was engendered by the defendant himself.

So the biggest news here might be that Larry Klayman has to shut up.

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. 

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The Unseen Aspects of Paul Manafort’s Lies and Truth-Telling Are as Telling as the Ones We’ve Seen

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As noted, yesterday Judge Amy Berman Jackson ruled that Mueller’s team had proven Paul Manafort lied in three of the five areas they accused him of lying about:

  • The kickback scheme via which he got paid
  • Meetings with Konstantin Kilimnik to share polling data and discuss a “peace” deal with Ukraine
  • The role of a 7-character named person in an attempt to salvage Trump’s campaign being investigated in another district

The ruling is damning, and Manafort now may face what amounts to a life sentence (though, in her order ABJ noted that whether she’ll give him credit for acceptance of responsibility at sentencing depends “on a number of additional factors”).

Yet, in spite of the mounting evidence that Manafort shared polling data at a meeting where he also discussed a Ukrainian peace deal (a backdoor way of giving Russia sanctions relief), in spite of how damning this breach discussion has been, ABJ’s ruling is still just one step in an ongoing process.

I say that for several reasons that have to do with what we didn’t see as part of this breach determination.

We’re only seeing half of Manafort’s cooperation

First, we’re only seeing material relating to half of Manafort’s cooperation. In his declaration on the breach determination, FBI Agent Jeffrey Weiland described Manafort’s cooperation to include 14 sessions:

  • 3 pre-plea proffer sessions: September 11, 12, and 13
  • 9 debriefing sessions: September 20, 21, 25, 26, 27, October 1, October 5, October 11, and October 16
  • 2 grand jury appearances: October 26 and November 2

If I’ve tracked everything properly, the descriptions of Manafort’s lies only include material from some of those sessions:

  • 3 pre-plea proffer sessions: September 11, 12, and 13
  • 5 debriefing sessions: September 20, 21, October 1, October 5, and October 16
  • 1 grand jury appearance: October 26

That means there are three debriefing sessions and a grand jury appearance we haven’t heard anything about yet:

  • 4 debriefing sessions: September 25, 26, 27, and October 11
  • 1 grand jury appearance: November 2

In the breach hearing, Richard Westling claimed that the material we’ve seen constitutes just a “small set” of the topics covered in Manafort’s cooperation and he says some of the other topics were “more sensitive topics.”

WESTLING: And I think, you know, the last point that I would make is that given that relatively small set of areas where this occurred, whether even the allegations are being made, you know, we note that there’s not really a lot to explain. There’s no pattern, there’s no clear motive that would suggest someone who was trying to intentionally not share information. And many of the more sensitive topics that we’re aware of from a — all of us paying attention to what’s gone in the news cycle over the last many months, you know, are things where these issues didn’t come up, where there wasn’t a complaint about the information Mr. Manafort provided. And so we think that’s important context as we get started here today.

THE COURT: Do I have — and I don’t think I need them for today, but I’m certain that what you just said is also going to be a part of your acceptance of responsibility argument and argument at sentencing. Do I have the 302s from 12 days of interviews? Do I have everything, or do I only have what was given to me because it bore on the particular issues that I’m being asked to rule on today?

MR. WEISSMANN: Judge, you do not have everything. We are happy to give you the — all of the 302s. We just gave you — you have, I think, the majority of them, but not all of them.

THE COURT: Okay. And I don’t know that — if I need them. But, it’s hard to assess — and I certainly don’t think they should be a public part of any sentencing submission. But, if you want me to put this in context of more that was said, it helps to have it.

Now, it’s possible that Manafort did tell the truth about these more sensitive topics. It’s possible that (for example, with regards to Trump’s foreknowledge of the June 9 meeting), Manafort lied but prosecutors don’t have proof he did. Or it’s possible they know he lied about other issues but for investigative reasons, don’t want to share the proof they know he lied.

One of the other topics Manafort would have been asked about — which Westling’s reference to “what’s gone in the news cycle over the last many months” may reference — pertains to Roger Stone’s actions.

ABJ asked for — and presumably has or will obtain — the rest of the 302s from Manafort’s cooperation, so she may end up agreeing with Manafort’s lawyers that some of his cooperation was quite valuable.

Mueller was interested in Manafort’s cooperation, in part, to obtain intelligence

As I’ve noted before, Andrew Weissmann described Manafort’s cooperation to be somewhat unusual for the extent to which Mueller was seeking intelligence, rather than criminal evidence. Though he makes clear that that was true, as well, of Rick Gates’ early cooperation.

[T]here’s enormous interest in what I will call — for lack of a better term — the intelligence that could be gathered from having a cooperating witness in this particular investigation

[snip]

And with Mr. Gates, we also wanted to make sure that we could get information, and we thought that there was — I think there was certainly a significant issue. And we dealt with it by having the defendant plead to something in addition to take — to have the ramification for it. But that is to show, I think, an example of wanting the intelligence, but dealing with what we considered to be, you know, unacceptable behavior from the Government, particularly from somebody whose information we would rely on, and potentially ask the jury to rely on.

So we may never see a great deal of what Manafort was asked about.

Mueller is still protecting an ongoing investigation

That said, Mueller is still protecting both his and the other DOJ ongoing investigation. We know what Mueller is protecting from the redactions in the transcript.

ABJ noted that much of what they discussed at the breach hearing could be unsealed, while noting that Mueller felt more strongly about keeping some things secret.

I think a large portion of what we discussed could be public. I think there are certain issues where you probably only need to redact out names and turn them back into entities. And then there are may be one or two issues where we’re really talking about something that was completely redacted at every point prior to this and will continue to be. And, hopefully, you’ll both be on the same page about that with respect to what of the investigation is not yet public. I think the Office of Special Counsel has the stronger point of view about that.

Certainly, all the names had to be redacted, under DOJ guidelines prohibiting the publication of anyone’s name who has not been charged. Likewise, the other investigation is not Mueller’s to reveal (in any case, it seems to be still active, even if Manafort’s refusal to cooperate may have protected the target of it).

But more of the rest of the discussion could have been unsealed if Mueller didn’t have ongoing interests in the topics. Those topics include Manafort’s ongoing communications with the Administration, Ukrainian peace deal/sanctions relief, and his sharing of polling data (though there’s one reference to sharing polling data on page 19 that may have gotten missed by the censors). Mueller redacted those things even though Weissmann makes clear that they believe the polling data goes to the core of what they are investigating.

MR. WEISSMANN: So — so, first, in terms of the what it is that the special counsel is tasked with doing, as the Court knows from having that case litigated before you, is that there are different aspects to what we have to look at, and one is Russian efforts to interfere with the election, and the other is contacts, witting or unwitting, by Americans with Russia, and then whether there was — those contacts were more intentional or not. And for us, the issue of [2 lines redacted] is in the core of what it is that the special counsel is supposed to be investigating.

Note his use of the present progressive. They’re still trying to answer the question about whether that August 2 amounts to witting conspiracy with Russia.

Mueller is still sitting on information about the shared polling data

It may well be that, given Manafort’s refusal to cooperate on this issue, Mueller will never be able to charge Trump’s campaign for sharing polling data with Russia in the context of sanctions relief.

But they are sitting on more information than came out publicly in this breach discussion. Starting on page 93 of the transcript, ABJ, on her own, brings up other information she has seen, that pertains to the topic.

THE COURT: I need to ask the Office of Special Counsel about something ex parte because — and so I apologize for that, but I need to do that. And it may be after I talk to them, they tell me there’s no problem with sharing it with you. But I have received information in this case, in this binder, and in other means, and I just want to make sure I understand something. And so, I can’t — I need to ask —

MR. DOWNING: We would object. But we don’t know he —

THE COURT: I note your objection. And I will deem your objection also to be a request that what we’re about to discuss be revealed to you. And that will be the first thing I’m going to ask. And we can do it at the end, after we’re done, or you can just have him come to the bench for a minute.

The ex parte discussion on this topic is fairly short. But after the lunch break, Weissmann tells ABJ that the material she was thinking of remains redacted. But he does point her to two Gates 302s from early in his cooperation that seem to provide some of the same information.

THE COURT: All right. Let me start with you, Mr. Weissmann. Is there anything further you can add to what we talked about, that you can add publicly?

MR. WEISSMANN: Yes. Yes, Your Honor. So, we haven’t finished our review, but we believe that the material that you asked about was redacted.

THE COURT: Okay.

MR. WEISSMANN: However, I would like to direct your attention to two exhibits in the record. If you recall, I mentioned that I recalled that Mr. Gates had, very early on in his cooperation, given us information about [redacted]. And there are two 302s that are dated in, I believe, both in January of 2018. So before he actually pled guilty, so in connection with his proffers. So, the first one is Exhibit 222. And if you look at page 17 of that exhibit, there’s a long explanation of communications with [redacted] that refer to [redacted] at the direction of Mr. Manafort. And then if you look — and that is dated January 31st, 2018. And that was, of course, provided to counsel in connection with the Eastern District of Virginia trial. And Exhibit 236, and I believe I referred you previously to page 3, and I would also refer you to page 5. Both of those refer to [redacted] and also refer to the discussions of the — discussions of [redacted] at the August 2nd, 2016 meeting.

THE COURT: All right. I will look at all of that. So for right now, I’m going to leave the little conversation that we had ex parte, ex parte with your objection noted.

MR. WEISSMANN: Judge, we will continue to look to see if there is any portion that was unredacted to confirm that.

Given the issues she has presided over, this may pertain to one of the search warrant affidavits that Manafort tried to get completely unsealed last year, but which ABJ suggested pertained to other people.

In any case, there’s more on the sharing of polling data that ABJ knows about, this is relevant to its importance, but that does not appear in the unsealed transcript.

Mueller didn’t reveal all the evidence of Manafort’s attempts to contact the Administration

Finally, there appear to be communications between Manafort and Administration officials that Mueller did not release as part of this process. The government stated that clearly in a footnote (on page 27) of its breach declaration.

This is not a complete listing of such contacts Manafort had with Administration officials. Further, for the purpose of proving the falsity of Manafort’s assertions in this section, the government is not relying on communications that may have taken place, with Manafort’s consent, through his legal counsel.

And, in a bid to refute Manafort’s claim, in the redaction fail filing, that, “Mr. Manafort was well aware that the Special Counsel’s attorneys and investigators had scrutinized all of his electronic communications” because “Mr. Manafort voluntarily produced numerous electronic devices and passwords at the request of the Government,” Agent Weiland states that the FBI had found more than 10 devices or documents for which Manafort hadn’t shared a password.

Defendant said in his pleading that he has provided electronic to the government. However, although he has provided some electronic data, passwords, and documents, in more than ten instances he did not provide passwords to access his electronic communications, thumb drives, or documents.

Mueller’s team remains coy about how many of those 10 accounts, thumb drives, or documents they’ve been able to access without his assistance.

And Greg Andres provides some hints about what those other conversations involve: Manafort providing information about the investigation.

MR. ANDRES: Sure. Judge, throughout the interviews with Mr. Manafort and some of the issues we’ve discussed today, you see that he constantly either minimizes the information he has about the administration or any contact with the administration. So there’s an issue whether or not during his cooperation he’s communicating with [15 character redaction] or providing information about the questions or other things that are happening in the special counsel investigation, whether he’s sharing that with other people. And this is another example of Mr. Manafort —

THE COURT: That hasn’t been given to me as we’re troubled by this or he wasn’t truthful about that, so I don’t see how to put this in the context of that because I don’t know about that.

MR. ANDRES: Well, so for example, in the No. 4, the one that Mr. Manafort — that Mr. Weissmann just talked about with respect to the [redacted, other investigation], you see Mr. Manafort changing his story so as not to implicate either [redacted] or someone in [redacted]. I think, with respect to this issue, again, Mr. Manafort is trying to distance himself from the administration and saying he’s not having contact with the administration at a time when he’s under at least one indictment.

THE COURT: But you’re not suggesting right now that there’s more information in here about other efforts to distance himself from the administration or to deny a relationship or to deny reporting back to them?

MR. ANDRES: We’re not relying on any other evidence of that issue.

Particularly given that Manafort, between his early September proffers and his October 5 lies about the other investigation, managed to match his own testimony to that of the Trump associate being targeted in it, those communications may even date as recently as last fall (though that would mean he was communicating with the Administration from jail).

The fact that Mueller has other communications between Manafort and the Administration — but chose not to bolster their argument that Manafort lied about ongoing communications with the White House — suggests protecting what he wants to do with those communications is more valuable than convincing ABJ that Manafort lied about this topic (and, indeed, this is one of the two topics where she did not rule for the government).

For all the debate about whether Mueller is almost done or not, the things we didn’t learn about during this breach discussion are just as interesting as the things we did learn about. They suggest that all the discussion about cooperation deals (including my own) often forgets that Mueller is seeking both criminal evidence and intelligence on what the Russians were doing. They also suggest that Manafort may have provided testimony that bears on other parts of the investigation we’ve recently learned about (which might include Stone, or the Trump Tower deal) — but we can’t be sure whether Manafort told the truth, or whether he lied but Mueller either can’t prove or doesn’t want to reveal that he knows Manafort lied. They suggest that Mueller would still like to make the case, in whatever form, that Manafort intentionally gave the Russians polling data with the understanding that he’d push a Ukrainian peace deal that amounted to sanctions relief — but Manafort’s refusal to cooperate on this point might thwart that effort. Finally, they make it clear that Manafort remained a part of an effort to obstruct this investigation, including via means that bypassed the Joint Defense Agreement Trump has exploited.

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. 

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Amy Berman Jackson Rules that Manafort Lied about Possible Criminal Activity Related to Donald Trump’s Campaign

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Amy Berman Jackson has issued her ruling on whether Paul Manafort breached his plea agreement. She ruled that, for the purposes of acceptance of responsibility, Mueller’s team proved he had lied on three of the five topics they laid out: about his kickback scheme with a SuperPAC that was probably illegally coordinating with Trump’s campaign, about another investigation pertaining to someone’s efforts to save Trump’s candidacy, and when Manafort claimed he didn’t hand Konstantin Kilimnik polling data on the same day they talked about sanctions relief.

I. OSC has established by a preponderance of the evidence that defendant intentionally made false statements to the FBI, the OSC, and the grand jury concerning the payment by Firm A to the law firm, a matter that was material to the investigation. See United States v. Moore, 612 F.3d 698, 701 (D.C. Cir. 2010).

II. OSC has failed to establish by a preponderance of the evidence that on October 16, 2018, defendant intentionally made false statements concerning Kilimnik’s role in the obstruction of justice conspiracy.

III. OSC has established by a preponderance of the evidence that the defendant intentionally made multiple false statements to the FBI, the OSC, and the grand jury concerning matters that were material to the investigation: his interactions and communications with Kilimnik.

IV. OSC has established by a preponderance of the evidence that on October 5, 2018, the defendant intentionally made false statements that were material to another DOJ investigation.

V. OSC has failed to establish by a preponderance of the evidence that on October 16, 2018, defendant intentionally made a false statement concerning his contacts with the administration.

That she didn’t rule that he had lied on the other two doesn’t help him much. While he tried to walk back his admission that he conspired with suspected GRU-asset Konstantin Kilimnik on witness tampering last year, ABJ effectively just ruled his efforts to walk back that guilty plea were only half-hearted.

And while prosecutors didn’t prove he lied about ongoing communications with Trump, they also didn’t show all their cards there, withholding some of the other communications they know about. Effectively, though, ABJ has just ruled that Manafort breached his plea agreement because he continues to lie about possible criminal activity related to Trump’s campaign.

Mind you, Manafort may not mind this outcome, much. After all, according to Andrew Weissmann, he lied (especially about sharing polling data) because he figured it was his best hope for a pardon. Admitting to the full details about the polling data he shared with the intent it be passed on to his Ukrainian and Russian paymasters, according to Weissman, “would have, I think, negative consequences in terms of the other motive that Mr. Manafort could have, which is to at least augment his chances for a pardon.”

So he may be sentenced to 20 years next month, but so long as he continues to lie about the crimes committed during Trump’s campaign, he might get a pardon.

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On SSCI’s Investigation: Manafort “Conspired” Whether or Not Trump Also “Colluded”

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I’d like to point out something about this NBC report headlined, “Senate has uncovered no direct evidence of conspiracy between Trump campaign and Russia,” but instead showing,

investigators disagree along party lines when it comes to the implications of a pattern of contacts they have documented between Trump associates and Russians — contacts that occurred before, during and after Russian intelligence operatives were seeking to help Donald Trump by leaking hacked Democratic emails and attacking his opponent, Hillary Clinton, on social media.

I sometimes beat up on Ken Dilanian and I don’t mean to do so here. Putting the headline and lead aside, his report shows the disagreement here, and he even references Mark Warner’s recent focus on Paul Manafort’s sharing of polling data with Konstantin Kilimnik (though it’s not clear he asked Richard Burr about the report).

After it recently emerged that Trump campaign chairman Paul Manafort shared campaign polling data with a man the FBI says is linked to Russian intelligence, Warner called that the most persuasive evidence yet of coordination.

“This appears as the closest we’ve seen yet to real, live, actual collusion,” he said on CNN.

No evidence has emerged, however, linking the transfer of polling data to Trump.

Natasha Bertrand says the report soft-pedals the Democrats’ belief.

Senate Intelligence Committee aide tells me, re: NBC story, that right now there is “a common set of facts” that the panel is working with, “and a disagreement about what those facts mean.” They add: “We are closer to the end than the beginning, but we’re not wrapping up.”

But I think something else is going on, in addition to any downplaying Democrats’ views.

It’s that the report shifts back and forth between “conspiracy” and “collusion.”

After two years and 200 interviews, the Senate Intelligence Committee is approaching the end of its investigation into the 2016 election, having uncovered no direct evidence of a conspiracy between the Trump campaign and Russia, according to both Democrats and Republicans on the committee.

[snip]

“If we write a report based upon the facts that we have, then we don’t have anything that would suggest there was collusion by the Trump campaign and Russia,” said Sen. Richard Burr, R-N.C., the chairman of the Senate Intelligence Committee, in an interview with CBS News last week.

[snip]

“We were never going find a contract signed in blood saying, ‘Hey Vlad, we’re going to collude,'” one Democratic aide said.

[snip]

House Republicans announced last year they had found no evidence of collusion, but their report came under immediate criticism as a highly partisan product that excluded Democrats.

[snip]

“Senator Richard Burr, The Chairman of the Senate Intelligence Committee, just announced that after almost two years, more than two hundred interviews, and thousands of documents, they have found NO COLLUSION BETWEEN TRUMP AND RUSSIA!” Trump tweeted Sunday. “Is anybody really surprised by this?”

[snip]

“This [sharing polling data] appears as the closest we’ve seen yet to real, live, actual collusion,” he said on CNN.

[snip]

The final Senate report may not reach a conclusion on whether the contacts added up to collusion or coordination with Russia, Burr said.

Democrats told NBC News that’s a distinct possibility.

“What I’m telling you is that I’m going to present, as best we can, the facts to you and to the American people,” Burr told CBS. “And you’ll have to draw your own conclusion as to whether you think that, by whatever definition, that’s collusion.”

The story promises to talk about conspiracy, but then ends up talking about “collusion,” going so far as quoting Burr saying you need to draw your own conclusion about what you think the definition of “collusion” is.

That’s an important distinction, especially in a report that talks about Paul Manafort, not least because Manafort has already pled guilty to conspiring with Konstantin Kilimnik, albeit for covering up crimes in 2018 rather than committing them in 2016.

And while Burr complains we can’t know his or any of the other flunkies’ motives, Andrew Weissmann made it clear that Manafort told the grand jury he didn’t have just one motive when he handed highly detailed, recent polling data to Konstantin Kilimnik to be handed over to his Ukrainian and Russian paymasters.

And I think that in the grand jury, Mr. Manafort said that from his perspective, [sharing polling data] which he admitted at that point was with — he understood that it was going to be given by [redacted] to the [redacted] and to Mr. redacted 9 character name], both. That from his perspective, it was — there was no downside — I’m paraphrasing — it was sort of a win-win. That there was nothing — there was no negatives.

[snip]

My answer, with respect to the Court’s question about what it is — what the defendant’s intent was in terms of what he thought [redacted] I was just trying to answer that question, even though that’s not one of the bases for saying there was a lie here. And so I was just trying to answer that question. And what I meant by his statement that there’s no downside, is that can you imagine multiple reasons for [redacted]. And I think the only downside —

THE COURT: You meant no downside to him?

MR. WEISSMANN: Yes.

THE COURT: You weren’t suggesting that there was nothing — there’s no scenario under which this could be a bad thing?

MR. WEISSMANN: Oh, sorry. Yes. I meant there was no downside — Mr. Manafort had said there was no downside to Mr. Manafort doing it.

[snip]

MR. WEISSMANN: And meaning all of this is a benefit. The negative, as I said, was it coming out that he did this.

This August 2, 2016 data hand-off occurred in the specific context of Manafort trying to get whole on his $20 million debt to Oleg Deripaska. The data was also going to some Ukrainian oligarchs that Manafort expected to pay him $2.4 million in November 2016. And all that’s aside from whether Manafort expected the Russians to do anything with the data that might help Trump.

He was badly underwater, and — according to his grand jury testimony, at least as described by Weissmann — he clandestinely handed off recent detailed polling data to a guy connected to the agency that was still hacking Hillary Clinton, to be shared with a bunch of oligarchs who could help him reverse his financial fortunes.

It seems there’s a conspiracy there one way another. Either Manafort effectively stole Trump’s campaign data and traded it to foreigners for monetary gain. And/or Manafort handed over that data expecting that the campaign would get a thing of value from the foreigners he was sharing it with.

Richard Burr would seem to argue that’s not “collusion” unless Trump knew about it (whether he did is one of the questions Mueller posed to Trump).

But it is a conspiracy, an agreement with Konstantin Kilimnik to commit one or more crimes, right there in the middle of the election season. Whether Mueller will charge it or do something else with it remains to be seen. But it is fairly clearly a conspiracy, down to the clandestine arrivals and departures from the dark cigar lounge.

Ultimately, Burr’s retreat to that word “collusion” is a tell. Because, given the public facts in this case, Republicans should be outraged that Trump’s campaign manager was so disloyal he shared highly sensitive data with potentially malign actors. Republicans should be outraged that Trump’s campaign manager was putting his own financial imperatives ahead of sound campaign practice.

But they’re not. For some reason, Republicans are not squawking about the explanation for this data hand-off that would suggest the campaign didn’t expect to benefit.

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. 

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A Primer on How to Read: So the NYT Can Stop Telling Paul Manafort’s Lies

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NYT Continues to Tell Paul Manafort’s Lies for Him

It has been two and a half days since I pointed out that their single anonymous source — described as “a person knowledgeable about the situation” — lied to the NYT last month when it reported that Paul Manafort and Rick Gates shared poll data, “most of which was public,” “in the spring” with Konstantin Kilimnik.

Both Mr. Manafort and Rick Gates, the deputy campaign manager, transferred the data to Mr. Kilimnik in the spring of 2016 as Mr. Trump clinched the Republican presidential nomination, according to a person knowledgeable about the situation. Most of the data was public, but some of it was developed by a private polling firm working for the campaign, according to the person.

The NYT has not corrected the error and identified who turned them into a vehicle for significant propaganda.

Instead, two of the same journalists, plus Scott Shane, wrote a story they say is based on “A closer look at the transcript” focusing on the Ukrainian stuff that had already been revealed in significant detail last month.

In it, they correctly identify roughly where the beginning of the poll sharing discussion starts, but describe a lie that Manafort corrected — the same lie the NYT continues to tell — as the final testimony of Manafort.

The transcript suggests that Mr. Manafort claims that he wanted only public data transferred. But Mr. Weissmann told the judge that the question of whether any American, wittingly or unwittingly, engaged with Russians who were interfering in the election relates to “the core” of the special counsel’s inquiry.

They don’t mention that the judge, Amy Berman Jackson, Andrew Weissmann, and even Manafort’s lawyer Richard Westling, all acknowledge this was not just public polling data.

And then they present a comment by ABJ that was about Manafort’s poll sharing lies and suggest (in a story focused on the Ukraine peace deal) it generally relates to Manafort’s comments on Kilimnik.

Judge Amy Berman Jackson seemed to agree with prosecutors that whether Mr. Manafort lied about his contacts with Mr. Kilimnik was important, saying at one point, “I am, actually, particularly concerned about this particular alleged false statement.”

Because the NYT is struggling so much, as a service to them (and in hopes they expose whoever lied to them), I’m going to provide a primer on how to read redacted documents so they don’t have to continue to be a mouthpiece for Paul Manafort.

Identify How this Document Fits into the Pattern

We have a lot of tools with which to read Manafort’s breach hearing transcript, largely because it is part of a series. As I noted in my post laying out the lies NYT continues to tell, there are four prior versions of this discussion.

The hearing is a discussion about the arguments made in all these earlier documents, particularly the last two, which means we can look to them to understand what we’re seeing in the transcript.

All four discuss the same five topics. Though, as Judge Amy Berman Jackson notes, the lawyers have not remained consistent in the order in which they discuss them. (Note to Judge ABJ: I was also annoyed by that. Thanks for razzing them about it!)

This morning I’m going to organize myself by the issues the way they were numbered in the initial declaration. It was great because in every pleading, you all numbered the five issues into different orders. So I can’t really call them Issue No. 1 and Issue No. 2, but that’s the template I’m going to use. And what I’m going to do is, I’m going to hear from both sides on each issue before I move on to the next issue.

Thankfully, ABJ is more helpful at providing guideposts than the lawyers, though to clarify, when ABJ says she’s using the “initial declaration,” she’s referring to this FBI declaration, not Mueller’s original breach filing. You can tell that’s the case because it’s called a “declaration” and because it starts the same way ABJ does, with Manafort’s lies about the kickback payment.

The Structure and Content of Past Filings

To read a document that is the fifth in a series it’s helpful to map its structure and understand how that structure compares to previous iterations in the series.

I laid out the structure of the declaration ABJ says she’s following in this post. Here’s an updated version in which I’ve included some of what past documents refer to as proof and timing.

I) Kickback to/from Rebuilding America Now (0-series exhibits)

Firm A to receive 6% commission from Firm B (12/7)

After a break, it became clear that the government’s facts were incorrect – it was a $125,000 payment. (1/8 filing)

Manafort explained that it was unclear to him how this payment was recorded by his accountants and he believed the original plan was to report the payment as a loan, but that it had actually been reported as income on his 2017 tax return. The Government has indicated that Mr. Manafort’s statements about this payment are inconsistent with those of others, but the defense has not received any witness statements to support this contention. (1/8 filing)

Three false statements, first that the other people had paid him, then conflicting statements from the others (but Manafort recording the payment as income), finally that it was a loan (supported by loan documents provided at that time) (1/15 filing)

Three false statements, the last being that it was a loan

II) Konstantin Kilimnik’s role in witness tampering (100-series exhibits)

During a proffer session with the OSC on October 16, 2018, Mr. Manafort acknowledged that he and Mr. Kilimnik agreed to reach out to the witnesses. Mr. Manafort was asked to agree that Mr. Kilimnik, too, possessed the requisite state of mind to legally establish his guilt. Mr. Manafort balked at this characterization, because he did not believe he could confirm what another person’s internal thoughts or understandings were, i.e., another individual’s state of mind. (1/8 filing)

Kilimnik didn’t think he had exerted pressure (1/15 filing)

Manafort expressing Kilimnik’s views (1/23)

III) Interactions with Kilimnik (200-series exhibits)

a) Discussions of the Ukraine Peace Deal

Manafort “conceded” that he discussed or may have discussed a Ukraine peace plan with Mr. Kilimnik on more than one occasion (1/8 filing citing 12/7 one)

Issues and communications related to Ukrainian political events simply were not at the forefront of Mr. Manafort’s mind during the period at issue and it is not surprising at all that Mr. Manafort was unable to recall specific details prior to having his recollection refreshed. (1/8 filing)

Beginning August 2 and continuing until March 2018 Kilimnik and Manafort communicated about Ukraine peace plan. Three discussions were in person (1/15 filing)

Manafort freely brought up August 2 meeting, didn’t think one plan would work

1) August 2 meeting

Manafort would have given the Ukrainian peace plan more thought, had the issue not been raised during the period he was engaged with work related to the presidential (1/8)

Discussed at September 11 and 12 debriefings, then in grand jury on October 26, he admitted he saw the email (1/15 filing)

2) December 2016 meeting

Discussed September 11, September 21, October 26 (1/15)

3) Madrid meeting

Admitted it after shown evidence (12/7)

After being told that Mr. Kilimnik had traveled to Madrid on the same day that Mr. Manafort was in Madrid, Mr. Manafort “acknowledged” that he and Mr. Kilimnik met while they were both in Madrid (1/8 filing, citing 12/7 one)

September 11, 12, 13, October 26 (1/15)

Manafort lied, claimed it was about a business investment, then was shown something, and then admitted it (1/23)

4) A 2018 proposal

Not brought up prior to GJ (1/23)

b) Manafort’s false statements about sharing polling data

Email and testimonial evidence (12/7)

The same is true [he needed his memory refreshed] with regard to the Government’s allegation that Mr. Manafort lied about sharing polling data with Mr. Kilimnik related to the 2016 presidential campaign.

Evidence = interviews (plural) with gates, Gates on his access, multiple emails, on the morning of the meeting (at which Gates came late) (1/15 filing, ¶¶53-36)

Whether he told anyone to do something, SCO relies on Gates’ testimony (1/23)

IV) Another DOJ investigation (possibly that of PsyGroup or the hush payments) (300-series exhibits)

Another district (12/7)

Manafort provided the government with information pertinent to an investigation in another district prior to entering into the plea agreement in this case but then, in post-plea proffer meetings with other prosecutors not associated with the OSC, provided a different version of the same events. (1/8 filing)

One version on September 13, another on October 5, largely retracted second version; series of text messages, prior to leaving campaign (1/15)

Corrected in same interview (1/23)

V) Manafort’s contact with the Administration (400-series exhibits)

Text May 26, 2018 (12/7)

There is no support for the proposition that Mr. Manafort intentionally lied to the Government. The first alleged misstatement identified in the Special Counsel’s submission (regarding a text exchange on May 26, 2018) related to a text message from a third-party asking permission to use Mr. Manafort’s name as an introduction in the event the third-party met the President. This does not constitute outreach by Mr. Manafort to the President. The second example identified by the Special Counsel is hearsay purportedly offered by an undisclosed third party and the defense has not been provided with the statement (or any witness statements that form the basis for alleging intentional falsehoods). (1/8 filing)

May 2018 effort, targets (1/15)

Misread text messages, Gates claim (1/23)

By mapping out what the prior versions of the series look like, we can put this transcript into the structure ABJ has told us we’re dealing with, to identify with certainty which discussion is which.

The Structure of the Breach Hearing Transcript

Now we can identify the structure of this document, which will help us identify the boundaries between these parts of the discussion.

After some introductory legal discussions, ABJ teaching Andrew Weissmann how to use a microphone, and then Weissman framing why they think Manafort is a lying turd trying to get a pardon but honestly they did engage in a good faith effort to get him to cooperate, the substantive discussion starts.

ABJ tells us she is using the “way they were numbered in the initial declaration” and she’ll hear from both sides before she moves on to the next issue.

So here’s what the structure of the breach hearing looks like. Importantly, while Weissmann addresses a few issues at the beginning (which are noted), otherwise the discussions have clear start and end points, meaning we know that what appears between those start and end points pertain to the topic at hand.

I. Kickback to/from Rebuilding America Now

Start: Page 25, line 18: “With respect to the $125,000 payment by”

End: Page 47, lines 6-9

THE COURT: All right. I think you made that clear. And I think I understand everybody’s point of view about this, and what the evidence is. But, there’s some aspects of the evidence I’m going to need to re-review.

Also page 14-15, 20

II. Konstantin Kilimnik’s role in witness tampering

Start: Page 47, lines 10-12

All right. So let’s go on to what is II, or the second subject touched upon in the declaration, which is Mr. Kilimnik’s role in the obstruction conspiracy.

End: Page 63, lines 3-5

THE COURT: All right. Well, I don’t think I need any more of your telling me what it says because I’m going to read it again.

Also pages 14, 20

III. Interactions with Kilimnik

Start: Page 63, lines 5-8

So let’s go on to III, the interactions with Kilimnik, which I think I’m going to break up a little bit into the Ukraine stuff and the [polling] stuff.

a. Discussions of the Ukraine Peace Deal

Start: Page 63, lines 9-10:

With respect to the first, sort of, subtopic here, the discussions concerning the [redacted] Ukraine

End: Page 82, lines 9-13:

THE COURT: Right. But, I think what gives them cause to be theorizing is the fact that it’s described differently on different occasions, and described inconsistently with the communications between Mr. Kilimnik and Mr. Manafort, and that leads them to wonder.

b. Manafort’s false statements about sharing polling data

Start: Page 82, line 14-15:

But, I think we can go on to the question of the [polling]

End: Page 110, lines 13-17:

THE COURT: All right. I mean, when I asked you, do you want to hear from him, you said you wanted to file something. I just want to make sure you’re saying we’re done; when this record is concluded, we’re done with the record.

MR. DOWNING: Correct.

Also, pages 18-19,

IV: Another DOJ investigation

Start: Page 110, lines 20-21:

Okay. I think we can go on to category IV, the other DOJ investigation.

End: Page 121, line 18:

THE COURT: All right.

V: Manafort’s contact with the Administration

Start: Page 121, line 18-19:

Well, that leads me into No. 5, the contacts with the administration.

End: Page 132, line 5-6:

THE COURT: All right. That covers all the subject matter areas.

Validate the Model

Now it helps to make sure this model does match the prior model.

Unfortunately, the issue that NYT is perpetuating Manafort’s lies about — the sharing of polling data — is one for which we don’t have that many signposts in past filings (because this discussion is so heavily redacted). But the key dispute is clear from past filings. The government maintains the evidence includes Gates’ testimony and email evidence, while Manafort would like ABJ to believe the government is relying exclusively on Gates’ testimony.

The same is true [he needed his memory refreshed] with regard to the Government’s allegation that Mr. Manafort lied about sharing polling data with Mr. Kilimnik related to the 2016 presidential campaign.

Evidence = interviews (plural) with Gates, Gates on his access, multiple emails, on the morning of the meeting (at which Gates came late) (1/15 filing, ¶¶53-36)

Whether he told anyone to do something, SCO relies on Gates’ testimony (1/23)

Thankfully, this is a place where Weissmann’s earlier comments provide another point of validation. At the beginning, he uses the polling data as an example to refute the defense claim they had engaged in a “gotcha,” by not providing them Gates’ prior statements on the issue.

But, I wanted to address that that’s not — this is an unusual case. This is an unusual case. Not because we did that, it’s an unusual case because of the volume of evidence that the defendant had. As the Court knows, there was a trial in the Eastern District of Virginia. And as the Court knows, there was a discovery order in this case. There, the vast, vast majority of information was available to the defendant. And as one of the submissions having to do with bail conditions and — or, prison location, what’s in the record is that the defendant, on tape, in prison, says yes, he has been through all of that discovery. So, for one example of that, all of the Gates 302s that were extant in September of last year were something that had been disclosed to the defendant. So, the defendant was very well aware of what Mr. Gates had said about sharing of polling data, and that it was something that was not — not simply a matter of [redacted]. And it sort of [redacted].

In the section devoted to the topic, we see several of the things that show up earlier: Manafort ordering Gates to do something, and the reliance on Gates’ testimony.

Whether he told anyone to do something

Manafort asking Mr. Gates

[snip]

THE COURT: And because Mr. Manafort told Mr. Gates to do it?

MR. WESTLING: That’s what Mr. Gates says, yes.

THE COURT: In an e-mail.

MR. WESTLING: But I think that the e-mail says, Please print this. That’s all it says.

THE COURT: Doesn’t it say bring it to the meeting?

MR. WESTLING: I’m sorry?

THE COURT: Doesn’t it say bring it to the meeting?

MR. WESTLING: It says related to a scheduling meeting. Doesn’t say anything about a meeting with Mr. Kilimnik, it doesn’t say anything about — just on the same date.

[snip]

THE COURT: The only thing I said that corroborated his testimony about this matter was the e-mail within — related to on this date. Is that correct?

MR. DOWNING: Yes.

THE COURT: And you’re saying read more carefully, Judge, because it doesn’t say [redacted] to the meeting. So I will do that, but —

MR. DOWNING: I doesn’t say that, Your Honor —

THE COURT: — I do believe that that is corroborative.

Reliance on Gates’ testimony

they believe because Mr. Gates says so and because it’s referred to in Mr. Kilimnik’s various emails

Multiple references to whether they’ve gotten the 302s in question

Kevin Downing’s repeated attempt to suggest Gates couldn’t be credible because the jury didn’t find him credible (even while being careful to avoid having Gates testify to refute that).

Weissmann’s description of the earlier 302s they had in time for the EDVA trial.

Process New Information

Having now validated that that discussion pertains to the sharing of polling data question, we can now turn to what else new we learn in it.

There’s Weissmann’s description of Manafort telling the grand jury he understood someone was going to be sharing the data with some entity and some individual and that  considered that a win-win for himself (which is why I say Manafort sold Trump out, because he figured even if this didn’t help Trump win, he would still curry favor with his Ukrainian and Russian paymasters).

which he admitted at that point was with — he understood that it was going to be given by [redacted] to the [redacted] and to Mr. [redacted], both. That from his perspective, it was — there was no downside — I’m paraphrasing — it was sort of a win-win. That there was nothing — there was no negatives.

There’s ABJ’s question about why the pollster was getting paid so much if this was no big deal.

And if that’s true, then why was [redacted] being paid so much

Westling responds by trying to argue that it’s no big deal because the data is so detailed it would be so incomprehensible to him.

This is very detailed [redacted] on a level that is very focused

Which ABJ says is why the polling data is so important.

THE COURT: But if I determine that it is established by the record and in his statement — but that’s what makes it significant and unusual.

Whereupon Westling (again, this is Manafort’s defense attorney!!!!) says that sharing data would be beneficial if it were something more public, effectively refuting the claim Manafort tried to make, which is the claim the NYT refuses to correct.

if the goal were to help Mr. Manafort’s fortunes, that some other kind of [redacted] something more public,

Then, in an effort to suggest this was just about the campaign meeting that morning, Westling says this was the most recent data.

it was the most recent, from what we can tell, the most recent

Then ABJ corrects Westling’s claims about timing, noting that Gates specifically tied this to the Havana Club meeting.

THE COURT: Didn’t he say it happened at the meeting where they had to leave by different doors and all that? Doesn’t he connect [redacted] to the meeting and the Havana Club and the coming and going

Weissmann explicitly supports this timing later in the hearing (with what seems to be a description of Manafort walking Kilimnik through what the data showed).

And then Mr. Gates, in — I think I referred you to 236, on page 3, Mr. Gates talks about the August. 2nd meeting and actually has Mr. Manafort walking Mr. Kilimnik through

And Weissmann returns to this, once again making it clear the data sharing happened on August 2.

Both of those refer to [redacted] and also refer to the discussions of the — discussions of [redacted] at the August. 2nd, 2016 meeting.

ABJ also notes there is some kind of ex parte information that she has seen that the government can’t share with the defense.

THE COURT: I need to ask the Office of Special Counsel about something ex parte because — and so I apologize for that, but I need to do that. And it may be after I talk to them, they tell me there’s no problem with sharing it with you.

This information seems to give ABJ further confidence that the government is telling the truth here.

The NYT Continues to Tell Paul Manafort’s Lies

So to repeat: both ABJ and Andrew Weissmann make it clear that on the morning of August 2, 2016, Manafort told Gates to print out some polling data. Later that day, they clandestinely meet with Konstantin Kilimnik, where they discuss both a “peace” deal in Ukraine — which Manafort admits amounts to sanctions relief — and the polling data. Indeed, Weissmann claims that Gates said Manafort walked this guy, with ties to the same Russian intelligence agency that was still hacking Hillary Clinton, through that very complex and recent polling data.

And the fact that the data was so complex, according to ABJ, is “what makes it significant and unusual.” Indeed, even Manafort’s own lawyer suggests this is not public information, which is one of the things he tries to argue would suggest Manafort wasn’t trying to benefit himself.

When the NYT says this:

The transcript suggests that Mr. Manafort claims that he wanted only public data transferred. But Mr. Weissmann told the judge that the question of whether any American, wittingly or unwittingly, engaged with Russians who were interfering in the election relates to “the core” of the special counsel’s inquiry.

They are not telling their readers that Richard Westling, in an attempt to defend Manafort, made it very clear this was not public data.

And when the NYT suggests that this comment pertains to Manafort’s interactions with Kilimnik generally,

Judge Amy Berman Jackson seemed to agree with prosecutors that whether Mr. Manafort lied about his contacts with Mr. Kilimnik was important, saying at one point, “I am, actually, particularly concerned about this particular alleged false statement.”

They need to acknowledge that the comment comes from a paragraph (on page 103, the section exclusively dedicated to a discussion of the polling data) that focuses on the defense effort to discredit Gates’ polling data testimony by claiming they hadn’t gotten his 302s from January 2018.

THE COURT: All right. So, whether we need to have a hearing on that because I am, actually, particularly concerned about this particular alleged false statement. But I also think we need to think about what the purposes I’m being asked to find whether or not this is, what the burdens are, etcetera. So, you’re entitled to think about it, although I don’t think this has come as a surprise, that this was the issue, since this was the only evidence they pointed to as the fact that this fact was false, was Mr. Gates’s 302s and the e-mail.

Manafort doesn’t want this public because he knows it’ll kill his chance for a pardon

Here’s why I just wasted so much time trying to teach the NYT to read (aside from the fact that the NYT probably “corrected” a story that was initially correct, that this data got shared with Oleg Deripaska, which is made more obvious once you stop telling the lie that the data got shared in the spring).

This is an area where Weissmann specifically suggests Manafort was lying last fall to sustain his chance for a pardon.

the other motive that Mr. Manafort could have, which is to at least augment his chances for a pardon.

Paul Manafort doesn’t want the public to know he gave highly detailed polling data to a GRU-tied Russian, Konstantin Kilimnik, at a clandestine meeting he may have flown home from on Oleg Deripaska’s plane. He doesn’t want the public to know that because it’ll kill his chance for a pardon.

And for some unfathomable reason, the NYT doesn’t appear to want the public to know that, either.

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. 

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