According to Google, there are almost 4 million results for a search on “nude selfie Mueller.” All the top results report on a recent filing from Concord Management objecting to Robert Mueller’s request to submit an ex parte filing explaining why Concord should not be able to share the unclassified but sensitive information obtained in discovery with their boss, Yevgeniy Prigozhin. None of the reports I read considered why and how Mueller’s team would have obtained a nude selfie along with the rest of the vast amounts of social media data it obtained as part of its effort to investigate how trolls paid by Prigozhin operated (one explanation might be that Prigozhin employees sent a nude selfie of themselves via a US-based provider which then got turned over as part of a content request, which contributed to the process of identifying the employees).

In other words, rather than reporting on the mention of the nude selfie as part of covering a legal case, the press instead treated it largely as Concord lawyer Eric Dubelier presumably intended, as a means of making and calling attention to a legally frivolous but politically damning insinuation about Mueller’s investigation. Tellingly, the coverage of the nude selfie claim came only after Dubelier included it in the short response filing rather than the legally more interesting initial request to amend the protective order, which complained that Mueller had turned over “irrelevant data ranging from promotional emails for airlines to personal correspondence, even including personal naked selfie photographs” (which also provides context that might explain why the selfie(s) was discoverable).

All that is useful background, in my opinion, to reports from the hearing that Judge Dabney Friedrich scheduled for today on Friday, before she permitted Mueller to submit a related filing under seal today.

By all appearances, Friedrich brought Concord’s lawyers in (when effectively all she did was schedule a follow-up hearing for March and — apparently — review Mueller’s claims about grand jury proceedings separately) to yell at them for their trollish filings.

A judge publicly slammed the defense lawyers for a Russian company criminally charged by special counsel Robert Mueller, accusing the firm’s attorneys of submitting unprofessional and inappropriate court filings attacking Mueller’s office and of unwisely peppering legal briefs with jarring quotes taken from movies like Animal House.

“I’ll say it plain and simple: knock it off,” U.S. District Court Judge Dabney Friedrich told lawyers for the Russian company, Concord Management and Consulting, at a brief court hearing in Washington Monday morning.

[snip]

A stern-faced Friedrich, the newest of President Donald Trump’s three appointees to the district court in Washington, made clear Monday that she was not amused by what she called the “clever quotes.” She also chastised Dubelier for ad hominem attacks on Mueller’s attorneys and other prosecutors in the case.

“I found your recent filings, in particular your reply brief filed Friday, unprofessional, inappropriate and ineffective,” the judge said. She suggested the submissions were an effort to bully her into granting pending defense motions to give the owners and officers of Concord greater access to materials Mueller’s office has turned over to permit the defense to prepare for trial.

Here’s the filing from Friday that appears to have caused her to finally lose patience with Dubelier’s stunts.

The issues presented by the Concord case — particularly the question about whether Prigozhin, who made himself a Director after Concord got indicted (a parallel move to one he appears to have made to set up a Facebook lawsuit), can obtain discovery without showing up in the US to get it — are legally interesting and potentially important as precedents.

But even the legal press that knows better — and especially the political journalists covering the Mueller investigation as part of their White House coverage — are playing willing tools for Dubelier’s trolling.

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. 

WikiLeaks decided it was a good idea to release a long list of claims about Julian Assange and WikiLeaks that it considers defamatory. Emma Best obtained and liberated the list. Given that the list clearly attempts (unsuccessfully in some places, and hilariously in other places where they deem matters of opinion defamatory) to be factually correct, I’m interested in the way WikiLeaks uses the list to try to deny a bunch of things that might end up in a US criminal indictment.

The US is only angry with Assange because Ecuador has lots of debt

Pretty far down the list, WikiLeaks denies being gagged for claims made about Sergey Skripal in such a way as to falsely suggest the only concerns the US had over Assange came to do with debt pressure.

It is false and defamatory to suggest that Ecuador isolated and gagged Mr. Assange due to his comments on Sergei Skripal [in fact, he was isolated over his refusal to delete a factually accurate tweet about the arrest of the president of Catalonia by Spain in Germany, along with U.S. debt pressure on Ecuador. The president of Ecuador Lenin Moreno admitted that these two countries were the issue, see https://defend.wikileaks.org/about-julian/].

It’s nonsensical to claim that Assange was gagged just because of debt pressure, but it’s a good way to hide how the timing of his gag correlated with actions he took to piss of the US government, including by releasing a live CIA malware file.

The US charged Assange for actions it already decided not to charge him for, on which statutes of limitation have expired

The rest of the list is sprinkled with efforts to spin the US government’s legal interest in Assange. There’s an extended series of items that attempt to claim, as WikiLeaks has since DOJ accidentally revealed the existence of a recently filed complaint against Assange, that the charges instead relate to long-past publications (like Cablegate).

It is false and defamatory to deny that Julian Assange has been formally investigated since 2010 and charged by the U.S. federal government over his publishing work [it is defamatory because such a claim falsely imputes that Mr. Assange’s asylum is a sham and that he is a liar, see https://defend.wikileaks.org/].

It is false and defamatory to suggest that such U.S. charges have not been confirmed [in fact, they have, most recently by Associated Press (AP) and the Washington Post in November 2018].
– It is false and defamatory to suggest that the U.S. government denies the existence of such charges.
– It is false and defamatory to suggest that Julian Assange is not wanted for extradition by the U.S. government [in fact, public records from the Department of Justice show that the U.S. government says it had been intentionally concealing its charges against Mr. Assange from the public specifically to decrease his ability to “avoid arrest and extradition”].
– It is false and defamatory to suggest that the U.S. government has not publicly confirmed that it has an active grand jury, or pending or prospective proceedings, against Julian Assange or WikiLeaks, each year since 2010.

These claims are all true. WikiLeaks has been under investigation since well before 2010. There are charges that the US would like to extradite Assange for.

But all the public evidence suggests those charges relate to WikiLeaks’ recent actions, almost certainly involving Vault 7 and probably involving Russia’s election year operation.

Julian Assange is not a hacker, which is different from being someone who solicits or assists in hacks

WikiLeaks makes repeated claims that might appear to deny that the organization has solicited or assisted in hacks. The list denies that the DNC (which doesn’t have all the evidence Mueller does) has accused Assange of soliciting hacks of the DNC or Podesta. (Everywhere, this list is silent about the DCCC and other election year targets).

It is false and defamatory to suggest that the Democratic National Committee has claimed that Julian Assange directed, conspired, or colluded to hack the Democratic National Committee or John Podesta [in fact, the DNC makes no such claim: https://www.courthousenews.com/wp-content/uploads/2018/12/WikiLeaksDNC.pdf].

It denies that France has claimed that the MacronLeaks came from Russia (which again stops short of saying that the MacronLeaks came from Russia).

It is false and defamatory to suggest that the French government found that “MacronLeaks” were hacked by Russia [in fact, the head of the French cyber-security agency, ANSSI, said that they did not have evidence connecting the hack with Russia, see https://wikileaks.org/macron-emails/].

It denies that Assange has hacked the state of Ecuador (but not the Embassy of Ecuador or other states, including the US or Iceland).

It is false and defamatory to suggest that Julian Assange has ever hacked the state of Ecuador.

And it denies that Assange is, himself, a hacker.

It is false and defamatory to suggest that Julian Assange is a “hacker”.

All of these hacking denials stop well short of denying that WikiLeaks has solicited hacks before, including by publicizing a “most wanted” list that Russian hackers might respond to.

Mueller described WikiLeaks as an unindicted co-conspirator but that doesn’t mean Mueller has any interest in the organization

Close to the top of the list, WikiLeaks makes two claims to suggest the organization and Assange are not targets in the Mueller investigation.

Last month, I argued that a memo William Barr wrote that many say disqualifies him to be Attorney General in fact (or perhaps, “also”) should make him utterly toxic to Trump, because he (unknowingly) makes the case for impeaching Trump.

That’s because of the specific content of a William Barr memo sent to Rod Rosenstein, first reported by WSJ last night. While I’m certain Barr didn’t intend to do so, the memo makes a compelling case that Trump must be impeached.

The memo is long, lacks pagination, and presents an alarming view of unitary executive power. Barr also adopts the logically and ethically problematic stance of assuming, in a memo that states, “I realize I am in the dark about many facts” in the second sentence, that he knows what Mueller is up to, repeating over and over claims about what theory of obstruction he knows Mueller is pursuing.

Yet even before Barr finishes the first page, he states something that poses serious problems for the White House.

Obviously, the President and any other official can commit obstruction in this classic sense of sabotaging a proceeding’s truth-finding function. Thus, for example, if a President knowingly destroys or alters evidence, suborns perjury, or induces a witness to change testimony, or commits any act deliberately impairing the integrity or availability of evidence, then he, like anyone else, commits the crime of obstruction.

Probably by the time Mueller’s office captured Peter Strzok’s testimony on July 19, 2017 — and almost certainly by the time they obtained Transition emails on August 23, 2017 (perhaps not coincidentally the day after Strzok’s 302 was formalized) showing Trump’s orchestration of Mike Flynn’s calls with Sergei Kislyak — Mueller has almost certainly had evidence that Trump suborned false statements from Mike Flynn. So even before he finishes the first page, Trump’s hand-picked guy to be Attorney General has made the argument that Trump broke the law and Mueller’s obstruction investigation is appropriate.

Today, as part of a rebuttal to Daniel Hemel and Eric Posner’s comments about the memo, Jack Goldsmith reviews an OLC memo they rely on to back my argument.

Barr’s invocation and application of the presidential plain-statement rule, far from shocking, is quite ordinary. It is so ordinary, in fact, that I doubt Mueller is pursuing the theory that Barr worries about, even though press reports have sometimes suggested that he is. (For similar doubts, see the analyses of Mikhaila Fogel and Benjamin Wittes and of Marty Lederman.) Deputy Attorney General Rod Rosenstein implied that Barr misunderstood Mueller’s theory when he stated that Barr did not have the “actual facts of the case.” One can read Rosenstein’s statement, as Marcy Wheeler does, to mean that Mueller possesses facts—including evidence that Trump suborned false statements from Flynn—to show that Trump has obstructed justice under Barr’s “evidence impairment” theory and that, under the Barr memorandum’s separate discussion of impeachment, Trump can be impeached.

If Wheeler is right, then the Barr memorandum is more likely to be cited in support of an article of impeachment of President Trump for obstruction of justice than it is to be cited, as Hemel and Posner suggest, to immunize Trump from obstruction. We will see if the Democrats presiding over Barr’s confirmation hearings are clever enough not to take Hemel and Posner’s suggestion that Barr’s memo is extreme, and instead use Barr’s memo, as Wheeler counsels, “to talk the incoming Attorney General into backing the logic of the Mueller probe and impeachment in a very public way.”

Given the stakes on all this, I wanted to focus on why I think the public record suggests strongly that Trump suborned perjury (actually, false statements), meaning that Barr has already made the case for impeachment.

Mike Flynn lied to hide consultations with the Transition Team at Mar-a-Lago

First, let’s consider what Mike Flynn lied about, which I lay out in detail here. In addition to lies about being a foreign agent for Turkey and trying to undercut an Obama foreign policy decision pertaining to Israeli settlements, Flynn admitted to lying about whether he discussed sanctions during a series of conversations with Sergey Kislyak. The focus in reporting has always been on the conversations with Kislyak, but as the statement of the offense makes clear, Flynn’s conversations with other Transition Team members — most notably his Deputy, KT McFarland — got almost as much emphasis.

On or about January 24, 2017, FLYNN agreed to be interviewed by agents from the FBI (“January 24 voluntary interview”). During the interview, FLYNN falsely stated that he did not ask Russia’s Ambassador to the United States (“Russian Ambassador”) to refrain from escalating the situation in response to sanctions that the United States had imposed against Russia. FLYNN also falsely stated that he did not remember a follow-up conversation in which the Russian Ambassador stated that Russia had chosen to moderate its response to those sanctions as a result of FL YNN’s request. In truth and in fact, however, FLYNN then and there knew that the following had occurred:

a. On or about December 28, 2016, then-President Barack Obama signed Executive Order 13757, which was to take effect the following day. The executive order announced sanctions against Russia in response to that government’s actions intended to interfere with the 2016 presidential election (“U.S. Sanctions”).

b. On or about December 28, 2016, the Russian Ambassador contacted FLYNN.

c. On or about December 29, 2016, FLYNN called a senior official of the Presidential Transition Team (“PTT official”), who was with other senior ·members of the Presidential Transition Team at the Mar-a-Lago resort in Palm Beach, Florida, to discuss what, if anything, to communicate to the Russian Ambassador about the U.S. Sanctions. On that call, FLYNN and the PTT official discussed the U.S. Sanctions, including the potential impact of those sanctions on the incoming administration’s foreign policy goals. The PIT official and FLYNN also discussed that the members of the Presidential Transition Team at Mar-a-Lago did not want Russia to escalate the situation.

d. Immediately after his phone call with the PTT official, FLYNN called the Russian Ambassador and requested that Russia not escalate the situation and only respond to the U.S. Sanctions in a reciprocal manner.

e. Shortly after his phone call with the Russian Ambassador, FLYNN spoke with the PTT official to report on the substance of his call with the Russian Ambassador, including their discussion of the U.S. Sanctions.

f. On or about December 30, 2016, Russian President Vladimir Putin released a statement indicating that Russia would not take retaliatory measures in response to the U.S. Sanctions at that time.

g. On or about December 31, 2016, the Russian Ambassador called FLYNN and informed him that Russia had chosen not to retaliate in response to FL YNN’s request.

h. After his phone call with the Russian Ambassador, FLYNN spoke with senior members of the Presidential Transition Team about FLYNN’s conversations with the Russian Ambassador regarding the U.S. Sanctions and Russia’s decision not to escalate the situation. [my emphasis]

And the 302 (302s are what the FBI calls interview reports) makes this even more clear: Flynn was not only lying about the content of his calls with Kislyak, he was lying about his consultations with McFarland, and through her, the rest of the Transition Team, almost certainly including Trump. Flynn was lying about using language, “tit-for-tat,” that came right out of those consultations.

He was lying to hide that his interactions with Kislyak reflect a deliberate Trump Transition policy choice, rather than his own choice to freelance foreign policy.

Flynn got other people to lie — to the public and to the FBI

But it’s not just Flynn’s lies. It’s also the lies others in the Administration told. According to the NYT story of the relevant emails, at a minimum both McFarland and Sean Spicer would have known that Flynn got instructions ahead of his call with Kislyak and reported positively afterwards.

Mr. Bossert forwarded Ms. McFarland’s Dec. 29 email exchange about the sanctions to six other Trump advisers, including Mr. Flynn; Reince Priebus, who had been named as chief of staff; Stephen K. Bannon, the senior strategist; and Sean Spicer, who would become the press secretary.

That’s important because both McFarland and Spicer lied to the press about the call in early 2017.

Early on the morning of Jan. 13, 2017, McFarland phoned one of the authors of this article to rebut a column in The Washington Post, which said Flynn and Kislyak had spoken “several times” on Dec. 29, the day the Obama administration announced it was expelling 35 Russian officials and taking other punitive measures.

The column, by David Ignatius, questioned why Flynn was engaging in sensitive foreign policy discussions with Russia when Trump had yet to take office.

McFarland insisted in an on-the-record conversation that Flynn and Kislyak had never discussed sanctions and that they had actually spoken before the administration’s announcement on Dec. 29.

[snip]

McFarland’s earlier account from the on-the-record conversation also matches public statements from Sean Spicer, the transition team’s spokesman and future White House press secretary.

Spicer said that Flynn and Kislyak spoke Dec. 28, before the sanctions were announced, and that “the call centered around the logistics of setting up a call with the president of Russia and the president-elect after he was sworn in.”

“That was it, plain and simple,” he said.

Most of the focus on public statements about the Kislyak calls has been on Mike Pence, but there’s no public record that he was in the loop on discussions about the Kislyak call (nor is there a record of him being interviewed by either the FBI or Mueller, which is one of the reasons I keep saying there’s no public record of him doing anything for which he could or should be indicted).

With McFarland and Spicer, however, we can be sure they both knowingly lied when they told the press that sanctions had not come up.

That’s why I keep pointing to two passages from the addendum to Flynn’s sentencing memo describing the significance of his cooperation. This passage makes it clear there’s some significance to the fact that Transition Team people repeated Flynn’s lies.

This passage makes it clear that, in the wake of Flynn’s cooperation, several other people decided to cooperate.

We know that McFarland is included among the people who decided to be forthcoming with Mueller; Sean Spicer probably is too and others (like Reince Priebus) may be as well. Importantly, we know they decided to be forthcoming after not having been at first. McFarland, at a minimum, lied not just to the press, but also in her first interview with the FBI, after which she made a concerted effort to unforget what really transpired.

Note, too, that that redaction is the last line of the Flynn addendum. While we don’t know what it says, it’s likely that the addendum as a whole reflects something that Mueller seems to be doing with his cooperating witnesses: either finding ways to rehabilitate liars (as he did with Michael Cohen) or using their testimony to pressure others to tell the truth, resulting in witnesses who will be more credible on the stand (which is what I suspect he has done with a number of witnesses with Flynn).

Trump has changed stories about what his Administration knew about Flynn’s lies at least twice

The public record doesn’t actually say how it happened that McFarland and Spice lied about something they should have known to be false. As I’ve laid out, it’s clear that Flynn was not free-lancing when he discussed sanctions with Kislyak, but the record is still unclear about whether he was freelancing when he ordered others to lie about it or not.

But two things strongly suggest he was not.

First, nothing yet has come close to explaining Trump’s actions with Jim Comey, first asking for his loyalty, then, after firing Flynn, asking him to let Flynn’s lies go. That’s all the more true if, as is likely but not publicly proven yet, Pence also knew he was lying when he claimed sanctions didn’t come up in the Flynn-Kislyak call, because lying to Pence is the only explanation Trump has offered for firing Flynn.

It is virtually certain Flynn was following orders — Trump’s orders — when he engaged in discussions about sanctions with Kisylak. And so it is virtually certain that Trump knew, from before he was inaugurated, that his top aides were lying to the press. Yet Trump didn’t find those lies to be a fireable offense until it became clear the lies would lead to a sustained FBI investigation into why Flynn had Kislyak hold off on responding to sanctions.

And over the course of the Mueller investigation, Trump has struggled to come up with a credible explanation for why Flynn’s lies became a fireable offense only after the FBI started looking more closely at his plans for sanctions relief.

Don McGahn wrote a report inventing one explanation for the firing just after it happened (akin to the way he later orchestrated a paper trail justifying Comey’s firing). But even when he wrote the report, it was inconsistent with what Sally Yates told McGahn.

Then, after Flynn flipped and it became clear Comey also documented his side of events (and shared those events contemporaneously with others in DOJ and FBI), Trump’s lawyers tried to massage the story one more time.

Mike Flynn, KT McFarland, Sean Spicer, Don McGahn, and John Dowd (at a minimum — possibly Reince Priebus and others, too) have all had to revise the stories they told the press and even, for some, FBI or Mueller after the fact to try to come up with a non-incriminating explanation for why everyone lied, first to the press, and then to the government.

There’s really only one thing that might explain why at least five top Donald Trump aides or lawyers had to revise stories to try to come up with innocent explanations for non-credible stories they were willing to tell the government from the start. And that’s if Trump were involved in all these lies.

It may well be that Trump didn’t formally suborn false statements before Mike Flynn interviewed with the FBI on January 24, 2017. Perhaps he just instructed Flynn to lie to the press and Flynn sustained the story he had been ordered to tell when the FBI came calling (Trump may well be more involved in the lies that Michael Cohen told to Congress).

But there is little else that can explain why so many people were willing to tell bullshit stories about Flynn (both his conversation with Kislyak and his firing) except that Trump was involved in orchestrating those stories.

Mueller’s obstruction investigation was likely always premised on a theory of obstruction that Trump’s presumed Attorney General nominee William Barr has argued does merit investigation and impeachment: that Trump ordered his subordinates to lie to obstruct an investigation.

 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. 

Welcome to the 116th Congress, where Democrats in the House will finally exert some check on the unmanageable man sitting the Oval Office.

There’s a lot I’m excited about in the new Congress: the unprecedented diversity, some rules and agreements that should give progressives more sway in the House, and a fierce, talented leader holding the Speaker’s gavel (even if I disagree with some of Nancy Pelosi’s moves, such as Pay-Go).

Pelosi is taking a really aggressive approach with Trump. In an interview on NBC this morning, Pelosi suggested he doesn’t know how to deal with women in power or women with strength. She dinged Trump because he “may not know this, but Hawaii is part of the United States,” and wondered whether Trump actually “observed the religious holiday of Christmas.” (Here’s the actual interview; I have yet to find a transcript.)

Remarkably, given the way Pelosi categorically ruled it out in 2006, she spoke at length about impeachment (partly, though not entirely, because Savannah Guthrie pushed her repeatedly on this point). After agreeing with her past comments that an impeachment would be “sad and divisive” to impeach the president, Pelosi suggested that the law does not prohibit indicting a sitting president.

Asked if Mueller could legally indict a sitting president, Pelosi said: “Let’s just see what Mueller does. Let’s spend our time on getting results for the American people.”

The Office of Legal Counsel’s guidance, issued in 2000, says, “The indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.”

“It’s not the law,” Pelosi told Guthrie. “Everything indicates that a president can be indicted after he is no longer president of the United States.”

Guthrie asked, “What about a sitting president?”

“Well, a sitting president when he is no longer president of the United States,” Pelosi answered.

Guthrie pressed again, asking, “A president who’s in office? Could Robert Mueller come back and say, ‘I am seeking an indictment?’”

“I think that is an open discussion,” Pelosi said. “I think that’s an open discussion in terms of the law.”

She also did not rule out impeachment proceedings against Trump.

“We have to wait and see what happens with the Mueller report,” Pelosi said. “We shouldn’t be impeaching for a political reason, and we shouldn’t avoid impeachment for a political reason.”

I’m totally okay with Pelosi making comments that will emasculate Trump in front of his base, particularly when it highlights his failed campaign promises, starting with his idiotic promise that Mexico would pay for his wall. I think making him appear as the weak coward he is is a necessary step to begin to chip away at unquestioning support among his supporters.

But I keep thinking back to something I raised in this post, where I pointed out that the increasing likelihood Trump Organization might be targeted by prosecutors might change Trump’s calculus as he tries to retain power.

If I’m right, there are a whole slew of implications, starting with the fact that (as I laid out on a Twitter rant this morning), it utterly changes the calculation Nixon faced as the walls started crumbling. Nixon could (and had the historical wisdom to) trade a pardon to avoid an impeachment fight; he didn’t save his presidency, but he salvaged his natural person. With Trump, a pardon won’t go far enough: he may well be facing the criminal indictment and possible financial ruin of his corporate person, and that would take a far different legal arrangement (such as a settlement or Deferred Prosecution Agreement) to salvage. Now throw in Trump’s narcissism, in which his own identity is inextricably linked to that of his brand. And, even beyond any difference in temperament between Nixon and Trump,  there’s no telling what he’d do if his corporate self were also cornered.

In other words, Trump might not be able to take the Nixon — resign for a pardon — deal, because that may not be enough to save his corporate personhood.

For virtually every other legal situation, it seems to me, existing in both natural and corporate form offers protection that can save both. But if you’re the President of the United States, simultaneously existing — and criminally conspiring — in corporate form may create all sorts of additional exposure any normal President would normally be protected from.

I think this is true not just of the presidency, though. I think it was almost immediately true of the Russian investigation, as exhibited by the emails KT McFarland sent from Mar-a-Lago as the Trump Transition responded to Obama’s sanctions on Russia.

Obama is doing three things politically:

• discrediting Trump’s victory by saying it was due to Russian interference
• lure trump into trap of saying something today that casts doubt on report on Russia’s culpability and then next week release report that catches Russia red handed
• box trump in diplomatically with Russia. If there is a tit-for-tat escalation trump will have difficulty improving relations with Russia which has just thrown USA election to him.

There are many reasons that might explain why Trump responded to punishment of Russia the way he did: because he knew the Russians did have some role in his win, because he is a paranoid freak who always suspects an ulterior motive to hurt him.

Ultimately, though, it’s about his narcissism. Trump cannot admit any failures, any weakness. And admitting that he didn’t win the election fair and square would be like admitting that he had fewer inauguration visitors than Obama did.

I’m fairly confident that Trump thoroughly compromised himself with his eagerness to deal with the Russians for a Tower, for election help, for whatever else they demanded in response. I’m fairly confident that Putin has receipts from that compromise which creates a real dilemma for Trump on whether Mueller or Putin poses the biggest threat.

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

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

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

Vladimir Putin obtained receipts at each stage of this romance of Trump’s willing engagement in a conspiracy with Russians for help getting elected. Putin knows what each of those receipts mean. Mueller has provided hints, most obviously in that GRU indictment, that he knows what some of them are.

For example, on or about July 27, 2016, the Conspirators  attempted after hours to spearphish for the first time email accounts at a domain hosted by a third-party provider and used by Clinton’s personal office. At or around the same time, they also targeted seventy-six email addresses at the domain for the Clinton Campaign.

But Mueller’s not telling whether he has obtained the actual receipts.

And that’s the kompromat. Trump knows that if Mueller can present those receipts, he’s sunk, unless he so discredits the Mueller investigation before that time as to convince voters not to give Democrats a majority in Congress, and convince Congress not to oust him as the sell-out to the country those receipts show him to be. He also knows that, on the off-chance Mueller hasn’t figured this all out yet, Putin can at any time make those receipts plain. Therein lies Trump’s uncertainty: It’s not that he has any doubt what Putin has on him. It’s that he’s not sure which path before him — placating Putin, even if it provides more evidence he’s paying off his campaign debt, or trying to end the Mueller inquiry before repaying that campaign debt, at the risk of Putin losing patience with him — holds more risk.

Trump knows he’s screwed. He’s just not sure whether Putin or Mueller presents the bigger threat.

But ultimately there is one other factor that makes Trump more self-destructively defensive about this investigation than he otherwise would be: his narcissism.

And while I’d welcome his utter humiliation before the world stage, I also believe that any single-minded pursuit of that humiliation will only increase the likelihood he’ll dig in, regardless of the damage that doing so will do to the country.

Even if we do get to the point where indictment or impeachment became viable (and I’m not sure we will), it’s worth thinking about whether pursuing either one might just trigger a narcissistic response that will only lead Trump to do further damage to this country. If we provide Trump an off-ramp that allows him to preserve some of his destructive ego, it may do less damage to the country.

Update: Fixed Guthrie’s first name–apologies to her for the error. h/t jk

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. 

One of the last filings of 2018 in the cases I keep track of here was a three line joint motion in Sam Patten’s case, noting that the parties had filed a joint status report under seal. Sam Patten, recall, is the sleazy influence peddler who (like Paul Manafort) was a business partner with alleged GRU operative Konstantin Kilimnik who first proffered information to Mueller’s office on May 22 of last year, but who didn’t plead guilty until August 31. He pled guilty to lying on FARA registration, lying to the Senate Intelligence Committee and withholding documents from them, in part about setting up straw purchasers to let foreigners donate money to Trump’s inauguration. He’s also got ties to Cambridge Analytica, though that did not show up in his plea at all.

So rather than a routine status report — either telling the court that Patten continued to cooperate with Mueller, the DC US Attorney’s Office, and other law enforcement entities with which his deal required him to cooperate — or rather than moving towards sentencing, the government instead filed something under seal.

When asked what this might mean, I’ve deferred any answer, because it could be so many things and there’s so little to go on.

But CNN’s Katelyn Polantz has what (for any straight news outlet — and I mean that as a genre issue, not a competence one) is remarkably good analysis. She points to the timing of Patten’s plea (just before Paul Manafort was set to go to trial on his own FARA crimes, and thus just weeks before Manafort decided to flip) and to Patten’s multi-office cooperation obligations to suggest this sealed plea may have to do with Mueller’s case.

Patten agreed to cooperate with the Mueller investigation and other Justice Department actions before Manafort pleaded guilty to criminal charges in September. Manafort had been Mueller’s target for almost a year before his plea deal — and the Mueller team initially charged him with a host of financial crimes and foreign lobbying violations. A jury found Manafort guilty of tax and bank fraud related to his Ukrainian lobbying proceeds, then Manafort flipped and agreed to help prosecutors in September to avoid a second trial related to his foreign lobbying operation.

Patten was lined up by prosecutors as a person involved in that planned second trial against Manafort.

Typically, in a plea deal such as Patten’s, once prosecutors no longer need his cooperation for an upcoming trial or to put pressure on a criminal target, they would move the case to the sentencing phase. No date has been set yet by the court for Patten’s sentencing, and it’s still not determined when that process would even begin.

What she doesn’t say, but I would add, is that we’ve heard remarkably little about Manafort’s fate since a hearing on December 11 where Manafort’s lawyers pushed to begin adjudicating this month (in advance of his sentencing in the EDVA case) whether they agreed that Manafort had lied to the government while supposedly cooperating, even while saying they were having ongoing discussions with the government about those lies. Judge Amy Berman Jackson set a deadline for next Monday, January 7, for Manafort’s lawyers to file some kind of statement about whether they agree with the government or not. Sure, the holidays happened in the middle of that. But throughout the period before that, we got regular updates from Rudy Giuliani and Manafort’s lawyers making the extent of Manafort’s cooperation clear; we’ve gotten nothing since December 11.

Polantz also notes something most reporters covering the Mueller investigation forget: prosecutors don’t just hold off on sentencing until a cooperating witness testifies (note, the same mob of reporters also falsely suggest that Michael Cohen’s cooperation with Mueller is done, misunderstanding that Mueller will reward Cohen’s cooperation with a sentencing adjustment if it continues). Indeed, the only Mueller cooperating witness who has thus far testified before sentencing has been Rick Gates, and he remains under a cooperation agreement over five months later. Prosecutors also use (and Mueller seems to have especially) cooperating witnesses to pressure other witnesses. Indeed, that seems to be the significance of this passage from the addendum describing Mike Flynn’s cooperation.

Mueller used Flynn to get all the other people — starting with but by no means limited to KT McFarland — who originally lied about the Russian conspiracy to testify, and to do so as witnesses who clarified their testimony rather than sustained a lie and therefore got branded a liar making them less useful as witnesses at trial.

In other words, Polantz seems to suggest that Mueller rolled out Patten’s cooperation agreement just before Manafort’s trial in a bid to get him to flip. That worked. But not well enough to get Manafort to really cooperate.

Which may explain why his current status is such a big secret: because no one wants to give Manafort — or Trump — any hints about his status until Manafort decides what he’s going to do this week.

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. 

In yet another attempt to project criminal wrong-doing on those investigating criminal wrong-doing, both Rudy …

… And his client, Individual 1, have repeated a false claim that Robert Mueller deleted 19,000 Peter Strzok and Lisa Page texts.

The claim is, like so much else emanating from these two men’s twitter thumbs, an either willful or ignorant misstatement, this one based on a DOJ IG Report on efforts to collect Strzok-Page texts that, because of a technical malfunction, didn’t get collected by an FBI contractor. It conflates efforts to replace texts sent using their FBI-issued Samsung Galaxy phones (where some 19,000 texts did not get archived, though the number itself is inflated because it would necessarily include a lot of overlap) with a belated effort to check their Mueller-issued iPhones. Worse still, it talks about texts that actually were recovered.

OIG digital forensic examiners used forensic tools to recover thousands of text messages from these devices, including many outside the period of collection tool failure (December 15, 2016 to May 17, 2017) and many that Strzok and Page had with persons other than each other. Approximately 9,311 text messages that were sent or received during the period of collection tool failure were recovered from Strzok’s S5 phone, of which approximately 8,358 were sent to or received from Page. Approximately 10,760 text messages that were sent or received during the period of collection tool failure were recovered from Page’s S5 phone, of which approximately 9,717 were sent to or received from Strzok. Thus, many of the text messages recovered from Strzok’s S5 were also recovered from Page’s S5.

The only thing to blame Mueller’s office for is that, after reviewing Strzok’s phone and finding no substantive text messages, his Records Officer freed up the phone to be factory reset and issued to someone else.

According to SCO’s Records Officer, Strzok was removed from SCO-related work in late July 2017, and he completed his Exit Clearance Certificate on August 11, 2017. As part of an office records retention procedure, the SCO Records Officer stated that she reviewed Strzok’s phone on September 6, 2017. She told the OIG that she determined it did not contain records that needed to be retained. She noted in her records log about Strzok’s phone: “No substantive texts, notes or reminders.”

The Records Officer appears not to have realized that Page had a Mueller iPhone, so it was only subsequently checked for content, after which point it, too, had been factory reset.

But there’s no reason to think hers would have anything more substantive than Strzok’s phone. That’s because they appear to have kept using their Samsungs in the period they were assigned with Mueller (which is where their interesting texts were sent).

On May 17, 2017, the Special Counsel’s Office (SCO) was established to investigate alleged Russian interference in the 2016 Presidential election. Strzok and Page were assigned to the SCO shortly thereafter (Strzok in early June; Page on May 28) and were provided DOJ JMD iPhones during their SCO assignment. Based on OIG’s examination of their FBI mobile devices, Page and Strzok also retained and continued to use their FBI mobile devices. Specifically, on or about May 18, 2017, Page received an FBI-issued Samsung Galaxy S7 mobile device to replace her previously-issued FBI Samsung Galaxy S5. On or about July 5, 2017, Strzok received an FBl•issued Samsung Galaxy S7 mobile device to replace his previously-issued FBI Samsung Galaxy S5.

So what the President and his plays-a-lawyer-on-TV-flack are complaining about is that the federal government reissued government devices when users no longer needed those government devices, something bureaucracies of all types do all the time. With Strzok, at least, before doing so, the Records Officer checked the device to make sure no important content would be overwritten.

And in trying to invent an obstruction claim out of normal bureaucratic thriftiness, they are ignoring the really damning part of the IG Report. The government contractor whose “bug” was responsible for the text messages that weren’t originally archived (but which were later recovered) still can’t ensure more than 90% of FBI’s texts are recovered.

Among the other excuses FBI offers for implementing a fix to a 20% failure with one that still results in a 10% failure is to say, “complete collection of text messages is neither required nor necessary to meet the FBI’s legal preservation obligations” (which goes back to how they’re requiring retention via policy, but not technologically-assisted procedure). The FBI also says that it “is not aware of any solution that closes the collection gap entirely on its current mobile device platforms,” which makes me wonder why they keep buying new Samsungs if the Samsungs aren’t serving their needs? Aside from the question of why we’d ask FBI Agents to use less secure Korean phones rather than more secure American ones (note, Mueller’s team is using iPhones)?

This story — particularly the contractor’s squirreliness when asked about what privileges its retention function accesses…

As DOJ IG was trying to puzzle through why they couldn’t find all of Strzok and Page’s texts, the unnamed vendor got squirrelly when asked how the retention tool interacts with administrative privileges.

Upon OIG’s request, ESOC Information Technology Specialist [redacted] consulted with the FBl’s collection tool vendor, who informed the FBI that the collection application does not write to enterprise.db. [Redacted] further stated that ESOC’s mobile device team and the vendor believed enterprise.db is intended to track applications with administrative privileges and may have been collecting the logs from the collection tool or another source such as the Short Message Service (SMS) texting application. The collection tool vendor preferred not to share specific details regarding where it saves collected data, maintaining that such information was proprietary; however, [redacted] represented that he could revisit the issue with the vendor if deemed necessary.

Maybe it’s me, but I find it pretty sketchy that this unnamed collection tool vendor doesn’t want to tell the FBI precisely what they’re doing with all these FBI Agents’ texts. “Proprietary” doesn’t cut it, in my opinion.

… Seems like what happens in government when a unit has made inappropriate purchase and contracting decisions, but even two years after discovering that fact, nevertheless doubles down with new investments in the same inappropriate purchase decisions.

If Trump really cared that FBI wasn’t archiving all its texts and continues to fail to do so, he should command Big Dick Toilet Salesman Matt Whitaker to ensure that FBI make purchasing decisions (perhaps starting by replacing the Samsungs with more secure iPhones) that will result in full archival records.

But he didn’t do that. Perhaps it’s time for journalists to start asking why he’s not demanding better of DOJ and FBI going forward?

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

Because of a McClatchy story claiming two new details corroborating a Steele dossier claim that Michael Cohen had a meeting with people serving the interests of Putin’s Administration, people have gotten themselves into a tizzy again about what a smoking gun it would be if the allegations in the Steele dossier were proven true.

It’s an utterly bizarre tizzy, both because the allegations in the Steele dossier not only don’t match some more damning allegations Cohen has already pled guilty to, but because Mueller has already charged other people for some of the allegations about Cohen made in the dossier. In other words, the McClatchy story has people excited about the wrong allegations, rather than focusing on the damning things Cohen (and others) have already been charged with.

Indeed, most functional allegations made in the Steele dossier have already been publicly explained in either court filings or sworn testimony. That doesn’t rule out that Cohen had a role in some of them, however. Indeed, one detail from Cohen’s SDNY plea — that among the things Trump Organization reimbursed Cohen for in January 2017 was a $50,000 payment to a tech services company — actually could confirm a detail made in the dossier. But generally, Mueller and other entities have already explained away many of the allegations made against Cohen in the dossier.

I’ve put the substantive claims the Steele dossier made about Cohen below. I’ll take each and show public reporting that explains who did something attributed to Cohen in the dossier.

Cohen met with Russian Presidential Administration Legal Department officials

The central allegation involving Cohen is that he met with people from Putin’s Presidential Administration’s legal department or, in a later version, someone acting on their behalf.

By the time that allegedly happened in August or maybe September, however, Cohen had already established a paper trail with someone more central than some anonymous lawyers. Cohen’s Mueller plea describes Cohen receiving an email on January 20, 2016 from Dmitry Peskov’s personal assistant and shortly thereafter calling her. Somehow Mueller knows that the assistant “asked detailed questions and took notes.” The day after Cohen spoke with the personal assistant, someone from Putin’s office called Felix Sater.

Given that Cohen made reservations to travel to St. Petersburg (for a possible meeting directly with Putin) on June 9, then canceled those reservations on June 14 (after Russia’s role in the DNC hack was made public), those communications about a Trump Tower deal surely tie to the hack-and-leak operation.

It’s certainly possible that, later in the summer (or in the fall, during Cohen’s known trips to London), Cohen would attempt to reschedule that meeting, though the purpose was originally and probably would remain more central to a quid pro quo trading a Trump Tower and election assistance for sanctions relief and policy considerations. But having already exchanged easily collectable communications directly with Peskov’s office (whom the dossier calls “the main protagonist” in the operation), it’s not clear how helpful using Rossotrudnichestvo would be to hide the Trump role. Furthermore, there are other known cut-outs for related matters, including Steele dossier source Sergei Millian and the Agalrovs.

Cohen aimed to contain the Paul Manafort scandal

The three Cohen reports in October all claim that Cohen got involved to tamp down scandals connecting Trump to Russia. That’s not, at all, far-fetched. After all, Cohen was Trump’s fixer and he told a bunch of lies to Congress in an effort to hide Trump’s Moscow Project.

That said, a filing explaining why Mueller might have to mention the Trump campaign in Manafort’s aborted DC trial and a filing in Alex Van der Zwaan’s prosecution show that Manafort and Rick Gates themselves — with the direct involvement of Oleg Deripaska associate Konstantin Kilimnik — worked to contain this scandal.

As Mueller laid out in numerous ways, the Manafort-Gates-Kilimnik team went on a crime spree in the fall trying to cover up their past activities with Russian-backed oligarchs.

Indeed, that a claim that Cohen managed this pushback (and its timing) appeared in the dossier is particularly tantalizing for two reasons. First, one of the things Manafort reportedly lied about after agreeing to cooperate with Mueller pertained a boat trip he took with Tom Barrack; Mueller seems to know that Kilimnik joined the two men. If that happened, then it would show that someone did indeed hold a meeting in August to contain the damage of Manafort’s burgeoning scandals, but that meeting would have been between a key Trump funder, Manafort himself, and someone suspected of ongoing ties with GRU, the agency that conducted the DNC hack.

More intriguing still, as I noted above, Kilimnik was Manafort’s go-between with Oleg Deripaska. That’s interesting because in 2016, Christopher Steele was attempting to convince DOJ’s Bruce Ohr that Deripaska could be a useful source on Russian organized crime. If Steele thought Deripaska would be a useful source for DOJ, he may well have been relying on Deripaska himself. If so, the report that Cohen (who in fact did have communications with Peskov!) was containing the damage of Manafort’s ties to Russian oligarchs might be an attempt to distract from the way that a Russian oligarch was actually working through his handler, Kilimnik, to minimize that damage himself.

Cohen aimed to contain the Carter Page scandal

It likewise seems unlikely that Cohen was the one to try to contain the Carter Page scandal. While he shouldn’t be relied on for anything, several claims in Page’s testimony to HPSCI provide an alternate explanation about who was containing the scandal tied to him.

Page denied ever speaking to Cohen.

But he did describe Keith Kellogg discussing the allegations with him. And he did describe Steve Bannon, both by himself and with the assistance of Trump’s election lawfirm, Jones Day, trying to minimize the Page scandal.

That’s consistent with a number of on-the-record claims from the campaign in the days following Page’s resignation in September. Which is to say, minimizing the Page scandal fell to the campaign itself.

The people who carried out the information operation had been paid by Russia and Trump

The three initial reports on Cohen came, in suspiciously quick succession, in October, after the number of reporters briefed on the Steele dossier started to expand.

The one other report implicating Cohen was the December 13 report, based on intelligence Steele claimed he obtained for “free.”

The report is most notable for the legal battle it caused. The allegations most clearly resemble what Adrian Chen had identified and attributed to the Internet Research Agency year earlier and there had been extensive reporting on it all through the campaign. But instead of blaming Internet Research Agency, the report blames all that on Webzilla. And Webzilla’s owner, Aleksei Gubarev was sufficiently comfortable facing the prospect of discovery to sue BuzzFeed right away (though he lost his lawsuit a few weeks back).

There’s another reference in the report to a long debunked claim made by the Russians — that a Romanian hacker was involved, presumably an allusion to Guccifer 2.0’s half-hearted claim to be Romanian.

Still, much of that last report instead presented the most inflammatory claim in the entire dossier: that Trump’s campaign had helped pay for the information operation targeting Hillary.

On its face, that claim makes zero sense. The scenario as a whole assumes that the hack was done by independent hackers coerced to work for the FSB — perhaps people like Yevgeniy Nikulin, who had already been arrested in Prague by this point. As far as Mueller has shown publicly, however, the information operation was instead done by two entities: Russians in the employ of Putin crony Yevgeniy Prigozhin’s Internet Research Agency and officers in the employ of Russia’s military intelligence agency, GRU. In indictments of both conspirators, Mueller provided details about how the money was handled.

So we’ve already got explanations for how the information operation was funded: by Prigozhin and the Russian state, using a range of money laundering techniques to hide Russia’s role. We even have evidence that — contrary to the claim about information warriors’ loyalty to Sergei Ivanov — Prighozhin’s employees even sucked up to him in one of their dry runs getting Americans to perform IRL actions.

Cohen arranged deniable cash payments to hackers working in Europe against the Clinton campaign

As noted, the December report involving Cohen made the most incendiary claim of all: that the Trump organization planned to pay for some of the hackers that targeted Hillary.

In spite of the fact that Mueller has already explained how the two main groups of participants in the information operation got funded, this allegation gets more interesting given details laid out in Cohen’s SDNY plea. Several of his SDNY crimes, after all, involving making deniable payments, in that case to Stormy Daniels and Karen McDougal.

That shows Cohen’s modus operandi for paying off Trump’s illicit debts. Mind you, it shows that he didn’t use cash. He laundered the funds using more sophisticated money laundering. But it does show that Cohen was the guy who did that kind of thing.

Which makes this detail included — but not explained — in the same plea document intriguing.

Cohen paid some tech company $50,000 in connection with the campaign.

That’s not a whole lot of money, in any case. And if it went to pay off part of the information operation, it would have to have involved some part of the operation not yet publicly identified. Even the one known instance of Trump supporters reaching out to hackers in Europe — Peter Smith’s reported consultation of Weev — is known to have been paid for by other means (in that case, Smith’s own fundraising).

Still, it’s certainly possible that that $50,000 went to some still unidentified entity that played a role in the information operation that, for some reason, didn’t get paid for by Putin’s cronies or the Russian state.

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

18 October

Speaking separately to the same compatriot in mid-October 2016, a Kremlin insider with direct access to the leadership confirmed that a key role in the secret TRUMP campaign/Kremlin was being played by the Republican candidates personal lawyer Michael COHEN. [redacted line]

19 October

1. Speaking in confidence to a longstanding compatriot friend in mid-October 2016, a Kremlin insider highlighted the importance of Republican presidential candidate Donald TRUMP’s lawyer, Michael COHEN, in the ongoing secret liaison relationship between the New York tycoon’s campaign and the Russian leadership. COHEN’s role had grown following the departure of Paul MANNAFORT as campaign manager in August 2016. Prior to that MANNAFORT had led for the TRUMP side.

2. According to the Kremlin insider, COHEN now was heavily engaged in a cover up and damage limitation operation in the attempt to prevent the full details of relationship with Russia being exposed. In pursuit of this aim, COHEN had met secretly with several Russian Presidential Administration (PA) Legal Department officials in an EU country in August 2016. The immediate issues had been to contain further scandals involving MANNAFORT’s commercial and political role in Russia/Ukraine and to limit the damage arising from exposure of former TRUMP foreign policy advisor, Carter PAGE’s secret meetings with Russian leadership figures in Moscow the previous month. The overall objective had been to “to sweep it all under the carpet and make sure no connections could be fully established or proven”

3. Things had become even “hotter” since August on the TRUMP-Russia track. According to the Kremlin insider, this had meant that direct contact between the TRUMP team and Russia had been farmed out by the Kremlin to trusted agents of influence working in pro-government policy institutes like that of Law and Comparative Jurisprudence. COHEN however continued to lead for the TRUMP team.

[snip]

The Kremlin insider was unsure of the identities of the PA officials with whom COHEN met secretly in August, or the exact date/s and locations of the meeting/s. There were significant internal security barriers being erected in the PA as the TRUMP issue became more controversial and damaging. However s/he continued to try to obtain these.

20 October

1. Speaking to a compatriot and friend on 19 October 2016, a Kremlin insider provided further details of reported clandestine meeting/s between Republican presidential candidate, Donald lawyer Michael COHEN and Kremlin representatives in August 2016. Although the communication between them had to be cryptic for security reasons, the Kremlin insider clearly indicated to his/her friend that the reported contact/s took place in Prague, Czech Republic.

2. Continuing on this theme, the Kremlin insider highlighted the importance of the Russian parastatal organisation, Rossotrudnichestvo, in this contact between TRUMP campaign representative/3 and Kremlin officials. Rossotrudnichestvo was being used as cover for this relationship and its office in Prague may well have been used to host the COHEN Russian Presidential Administration (PA) meeting/s. It was considered a “plausibly deniable” vehicle for this, whilst remaining entirely under Kremlin control.

3. The Kremlin insider went on to identify leading pro-PUTIN Duma figure, Konstantin KOSACHEV (Head of the Foreign Relations Committee) as an important figure in the TRUMP campaign-Kremlin liaison operation. KOSACHEV, also “plausibly deniable” being part of the Russian legislature rather than executive, had facilitated the contact in Prague and by implication, may have attended the meeting/s with COHEN there in August.

Company Comment

We reported previously, in our Company Intelligence Report 2016/135 of 19 October 2016 from the same source, that COHEN met officials from the PA Legal Department clandestinely in an EU country in August 2016. This was in order to clean up the mess left behind by western media revelations of TRUMP ex-campaign manager corrupt relationship with the former pro-Russian YANUKOVYCH regime in Ukraine and TRUMP foreign policy advisor, Carter secret meetings in Moscow with senior regime figures in July 2016. According to the Kremlin advisor, these meeting/s were originally scheduled for COHEN in Moscow but shifted to what was considered an operationally “soft” EU country when it was judged too compromising for him to travel to the Russian capital.

13 December

1. We reported previously (2016/135 and /136) on secret meeting/s held in Prague, Czech Republic in August 2016 between then Republican presidential candidate Donald TRUMP’s representative, Michael COHEN and his interlocutors from the Kremlin working under cover of Russian ‘NGO’ Rossotrudnichestvo.

2. [two lines redacted] provided further details of these meeting/s and associated anti- CLINTON/Democratic Party operations. COHEN had been accompanied to Prague by 3 colleagues and the timing of the visit was either in the last week of August or the first week of September. One of their main Russian interlocutors was Oleg SOLODUKHIN operating under Rossotrudnichestvo cover. According to [redacted] the agenda comprised questions on how deniable cash payments were to be made to hackers who had worked in Europe under Kremlin direction against the CLINTON campaign and various contingencies for covering up these operations and Moscow’s secret liaison with the TRUMP team more generally.

3. [redacted] reported that over the period March-September 2016 a company called XBT/Webzilla and its affiliates had been using botnets and porn traffic to transmit viruses, plant bugs, steal data and conduct “altering operations” against the Democratic Party leadership. Entities linked to one Aleksei GUBAROV were involved and he and another hacking expert, both recruited under duress by the FSB, Seva KAPSUGOVICH, were significant players in this operation. In Prague, COHEN agreed contingency plans for various scenarios to protect the Operation, but in particular what was to be done in the event that Hillary CLINTON won the presidency. It was important in this event that all cash payments owed were made quickly and discreetly and that cyber and other operators were stood down/able to go effectively to ground to cover their traces. (We reported earlier that the involvement of political operatives Paul MANAFORT and Carter PAGE in the secret TRUMP-Kremlin liaison had been exposed in the media in the run-up to Prague and that damage limitation of these also was discussed by COHEN with the Kremlin representatives).

In terms of practical measures to be taken, it was agreed by the two sides in Prague to stand down various “Romanian hackers” (presumably based in their homeland or neighboring eastern Europe) and that other operatives should head for a bolt-hole in Plovdiv, Bulgaria where they should “lay low”. On payments, IVANOV’s associate said that the operatives involved had been paid by both TRUMP’s team and the Kremlin, though their orders and ultimately loyalty lay with IVANOV, as Head of the PA and thus ultimately responsible for the operation, and his designator successor/s after he was dismissed by president PUTIN in connection with the anti-CLINTON operation in mid August.

The same McClatchy team that has long been chasing the Steele dossier allegation that Michael Cohen was in Prague in (the first two reports said) August or maybe (the last report said) September has a new story reporting two new details about the allegation, sourced to four people reporting anonymously and secondhand about what “foreign intelligence connections” told them.

I’ll get to the substance of the report in a second, but first I want to point to a claim they make.

If the foreign intelligence intercepts are accurate, the big questions now are whether Cohen has acknowledged to investigators that a meeting in Prague occurred, informed them what transpired and revealed what, if anything, he told Trump about it.

It’s a remarkable claim from reporters trying to cover a part of the Russian investigation (but who have covered very little aside from the Cohen in Prague allegation). Because no, the big questions are not and have not been for some time whether Cohen told investigators of this.

That’s true, in part, because if one of these claims — that Cohen’s phone showed up near Prague in August or maybe September — is true, then Mueller would have had this since April at the latest, and probably significantly earlier. Here’s the allegation:

A mobile phone traced to President Donald Trump’s former lawyer and “fixer” Michael Cohen briefly sent signals ricocheting off cell towers in the Prague area in late summer 2016, at the height of the presidential campaign, leaving an electronic record to support claims that Cohen met secretly there with Russian officials, four people with knowledge of the matter say.

Weirdly, the reporters writing up this story show no awareness of whether Mueller has obtained Cohen’s records.

Mueller’s investigators, some of whom have met with Steele, likely also pursued Cohen’s cell phone records. It would be a common early step in such an investigation for a prosecutor to obtain a court warrant for all U.S. and foreign phone company records of key subjects, even those dating back more than 18 months.

Cohen is likely to be one of the five people who had the information from their AT&T phones (or a likely comparable number who probably had information their Verizon phones) obtained back on March 9 in the wake of the Rick Gates plea. In any case, we know that the FBI seized a whole slew of Cohen’s phones on April 9 and were able to fully exploit all of them save an old Blackberry.

So we don’t have to rely on extrapolating from what are often common first steps, because we know that Mueller has already obtained Cohen’s actual phones (to say nothing of his phone records).

If any of Cohen’s phones were in the vicinity of Prague in 2016 — whether August or maybe September — Mueller knew about it when he told Judge William Pauley that,

Cohen provided the SCO with useful information concerning certain discrete Russia-related matters core to its investigation that he obtained by virtue of his regular contact with Company executives during the campaign.

That’s the one description of Cohen’s cooperation that might incorporate covering up for Manafort in August or maybe September 2016. Perhaps a Prague meeting is included in that bullet — as I noted in April, Cohen’s then lawyer avoided addressing the issue (though Lanny Davis, working as a flack yet being employed as a lawyer, claimed repeatedly after April that Cohen had not been in Prague).

If it was, however, Mueller nevertheless chose to focus on Cohen’s lies about a Trump Tower deal in Cohen’s allocution.

The defendant lied to Congress about a business project (the “Moscow Project”) that he worked on during the 2016 presidential campaign, while he served as Executive Vice President at a Manhattan-based real estate company (the “Company”) and as Special Counsel to the owner of the Company (“Individual 1”).

Nor was a Prague meeting described to be among the things that Cohen lied about at his first proffer session so as to avoid conflicting with lies he told Congress (and if Cohen did go to Prague, he would have lied to Congress about that).

This initial meeting with the SCO, on August 7, 2018, was set up at Cohen’s request. In that meeting, Cohen voluntarily provided information relevant to other aspects of the SCO’s ongoing investigation, but when asked questions about the Moscow Project, Cohen provided false answers in what he later explained was an effort not to contradict his congressional testimony.

And Mueller didn’t include Cohen’s claims about Prague in a footnote describing Cohen’s other lies about contacts with Russians.

The defendant, without prompting by the SCO, also corrected other false and misleading statements that he had made concerning his outreach to and contacts with Russian officials during the course of the campaign. For example, in a radio interview in September 2015, the defendant suggested that Individual 1 meet with the President of Russia in New York City during his visit for the United Nations General Assembly. When asked previously about these events, the defendant claimed his public comments had been spontaneous and had not been discussed within the campaign or the Company. During his proffer sessions, the defendant admitted that this account was false and that he had in fact conferred with Individual 1 about contacting the Russian government before reaching out to gauge Russia’s interest in such a meeting. The meeting ultimately did not take place.

None of that rules out the McClatchy report that Cohen was in Prague. If Cohen was in Prague, Mueller might well want to keep that secret.

But thus far, Mueller seems to think that Cohen’s role in brokering a Trump Tower deal (including, per BuzzFeed’s reporting, with a banker tied to GRU, the intelligence agency that carried out the election year operation) was a more important lie than anything that got reported in the Steele dossier.

All of which is to say that I still stand by this post, in which I argue that it’s high time for reporters to stop focusing primarily on whether details of the Steele dossier have proven true (particularly if that’s all you do on the Russian investigation, as it substantially is with these reporters), and instead look to laying out the implications of the conspiracy that Mueller has already provided corroboration of.

There is growing evidence that Trump conspired with Russians in 2016. That evidence, however, comes increasingly from Mueller, not from Christopher Steele.

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

Last week, I wrote this post arguing that Mike Flynn’s 302 (FBI interview report) shows what Flynn was hiding when he lied to the FBI: In addition to his most fundamental lie — that he and Sergei Kislyak had talked about Russia moderating its response to new Obama sanctions, Flynn lied about his coordination with KT McFarland, who was with Trump at Mar-a-Lago.

Since people are still wondering why Flynn lied, I thought I’d write it up to make it even more plain. This post relies on these sources:

• Flynn’s 302
• Flynn’s Statement of the Offense
• The Addendum describing Flynn’s cooperation
• Peter Strzok’s 302
• NYT story describing McFarland’s email
• WaPo story on KT McFarland’s walkback

As Flynn’s Statement of the Offense lays out, Obama signed the Executive Order imposing new sanctions on December 28, 2016.

On or about December 28, 2016, then-President Barack Obama signed Executive Order 13757, which was to take effect the following day. The executive order announced sanctions against Russia in response to that government’s actions intended to interfere with the 2016 presidential election (“U.S. Sanctions”).

Flynn admitted that Kislyak contacted him the day Obama imposed the sanctions.

On or about December 28, 2016, the Russian Ambassador contacted FLYNN.

Flynn told the FBI that was a text that, because of poor connectivity in Dominican Republic, he didn’t see for a day. (I suspect this is also a lie, but it is possible.)

Shortly after Christmas, 2016, FLYNN took a vacation to the Dominican Republic with his wife. On December 28th, KISLYAK sent FLYNN a text stating, “Can you call me?”

Sometime in the day after Obama imposed the sanctions, Lisa Monaco gave her successor, Tom Bossert, a heads up about how angry the Russians were, making it clear the Obama Administration had formally contacted them.

Obama administration officials were expecting a “bellicose” response to the expulsions and sanctions, according to the email exchange between Ms. McFarland and Mr. Bossert. Lisa Monaco, Mr. Obama’s homeland security adviser, had told Mr. Bossert that “the Russians have already responded with strong threats, promising to retaliate,” according to the emails.

That suggests that the Obama Administration formally alerted the Russians before Kislyak’s text and alerted the Trump Transition not long after. That is, the Flynn-Kislyak contacts occurred after Obama had informed both sides, if not Flynn directly.

In spite of that formal notification, Flynn attributed any delay in responding to Kislyak to Dominican Republic’s poor cell phone reception. He claims (probably assuming the only communications the FBI would ever review would be Kislyak’s communications) that he saw the text on the 29th, took a bit of time, then called the Russian Ambassador.

FLYNN noted cellular reception was poor and he was not checking his phone regularly, and consequently did not see the text until approximately 24 hours later. Upon seeing the text, FLYNN responded that he would call in 15-20 minutes, and he and KISLYAK subsequently spoke.

What Flynn didn’t tell the FBI is that, per his allocution, he spoke with KT McFarland immediately before his call with Kislyak (importantly, this is true whether he really didn’t find out until the 29th or if there was a longer conversation with McFarland).

On or about December 29, 2016, FLYNN called a senior official of the Presidential Transition Team (“PTT official”), who was with other senior ·members of the Presidential Transition Team at the Mar-a-Lago resort in Palm Beach, Florida, to discuss what, if anything, to communicate to the Russian Ambassador about the U.S. Sanctions. On that call, FLYNN and the PTT official discussed the U.S. Sanctions, including the potential impact of those sanctions on the incoming administration’s foreign policy goals. The PTT official and FLYNN also discussed that the members of the Presidential Transition Team at Mar-a-Lago did not want Russia to escalate the situation.

Immediately after his phone call with the PTT official, FLYNN called the Russian Ambassador and requested that Russia not escalate the situation and only respond to the U.S. Sanctions in a reciprocal manner.

The account of the timing of discussions both at Mar-a-Lago and with advisors who were dispersed across the globe in the NYT story is vague. Though NYT makes it clear that one email, at least, described the Flynn call with Kislyak prospectively.

As part of the outreach, Ms. McFarland wrote, Mr. Flynn would be speaking with the Russian ambassador, Mr. Kislyak, hours after Mr. Obama’s sanctions were announced.

One of those emails, importantly, included the following talking points.

Obama is doing three things politically:

• discrediting Trump’s victory by saying it was due to Russian interference
• lure trump into trap of saying something today that casts doubt on report on Russia’s culpability and then next week release report that catches Russia red handed
• box trump in diplomatically with Russia. If there is a tit-for-tat escalation trump will have difficulty improving relations with Russia which has just thrown USA election to him. [my emphasis]

Per the NYT, that email appears to have been forwarded to — among others — Flynn.

Mr. Bossert forwarded Ms. McFarland’s Dec. 29 email exchange about the sanctions to six other Trump advisers, including Mr. Flynn; Reince Priebus, who had been named as chief of staff; Stephen K. Bannon, the senior strategist; and Sean Spicer, who would become the press secretary.

One thing makes it more likely that Flynn received McFarland’s email (or at least equivalent talking points via phone), and received it before he returned the call to Kislyak. When the Agents moved to the stage of the interview where — per Peter Strzok’s later description — “if Flynn said he did not remember something they knew he said, they would use the exact words Flynn used,” they quoted that “tit-for-tat” language.

The interviewing agents asked FLYNN if he recalled any conversation with KISLYAK in which the expulsions were discussed, where FLYNN might have encouraged KISLYAK not to escalate the situation, to keep the Russian response reciprocal, or not to engage in a “tit-for-tat.” FLYNN responded, “Not really. I don’t remember. It wasn’t, “Don’t do anything.” [my emphasis]

So whether Flynn saw this language in an email first, it seems clear he spoke to McFarland — who was coordinating all this from Mar-a-Lago, where Trump was — before he spoke with Kislyak. And that’s important, because Flynn claimed he had no idea that the US had expelled a bunch of Russian diplomats “until it was in the media.”

The U.S. Government’s response was a total surprise to FLYNN. FLYNN did not know about the Persona-Non-Grata (PNG) action until it was in the media.  KISLYAK and FLYNN were starting off on a good footing and FLYNN was looking forward to the relationship. With regard to the scope of the Russians who were expelled, FLYNN said he did not understand it. FLYNN stated he could understand one PNG, but not thirty-five.

It’s possible that Flynn didn’t learn about the expulsions until Obama’s press releases on the 29th, if he didn’t check with McFarland before that. Except he also claimed the FBI that he didn’t have access to TV news in DR.

FLYNN noted he was not aware of the then-upcoming actions as he did not have access to television news in the Dominican Republic and his government BlackBerry was not working.

In context in his 302, though, that seems to be offered as a substantiating detail to support his claim that he didn’t know about the expulsions before he spoke with Kislyak — or, indeed, the even crazier claim that Kislyak didn’t raise it on that call, regardless of what Flynn knew going into the call.

The interviewing agents asked FLYNN is he recalled any conversation with KISLYAK surrounding the expulsion of Russian diplomats or closing of Russian properties in response to Russian hacking activities surrounding the election. FLYNN stated that he did not. FLYNN reiterated his conversation was about [Astana peace conference] described earlier.

Consider how ridiculous this lie is: Flynn wanted the FBI to believe that, having asked Flynn to contact him after Russia was informed of Obama’s sanctions, Kislyak didn’t even mention the sanctions to him.

That’s obvious nonsense. But it was a necessary to hide two things. First, that he had spoken with Kislyak about sanctions — which is what the focus has been on until now.

But claiming that he hadn’t heard about the expulsions before he called Kislyak also served to hide an equally critical detail: Flynn had not only heard of the sanctions (if he hadn’t already heard) from his deputy, KT McFarland, who was at Mar-a-Lago with Trump, but she and he and a number of other people had coordinated what he would say to Kislyak before the call. And they did do based off the belief that Obama’s actions against Russia were all a political set-up and not a sound response to Russia’s involvement in the election.

Flynn not only coordinated his messaging with McFarland, but he used language she offered, writing from Mar-a-Lago: “tit-for-tat.”

After Flynn pled guilty, McFarland spent some time cleaning up what she had told the FBI the previous summer (at a time when everyone seemed to believe their emails recording all this would never be reviewed by the FBI). According to WaPo’s coverage, McFarland,

walked back her previous denial that sanctions were discussed, saying a general statement Flynn had made to her that things were going to be okay could have been a reference to sanctions, these people said.

Flynn’s statement of the offense actually reflects two conversations that McFarland may have initially lied about — one on December 29, when Flynn reported back on his call with Kislyak, and another after his December 31 call with Kislyak, when Flynn reported back to “senior members of the Presidential Transition Team.”

Shortly after his phone call with the Russian Ambassador, FLYNN spoke with the PTT official to report on the substance of his call with the Russian Ambassador, including their discussion of the U.S. Sanctions.

On or about December 30, 2016, Russian President Vladimir Putin released a statement indicating that Russia would not take retaliatory measures in response to the U.S. Sanctions at that time.

On or about December 31, 2016, the Russian Ambassador called FLYNN and informed him that Russia had chosen not to retaliate in response to FL YNN’s request.

After his phone call with the Russian Ambassador, FLYNN spoke with senior members of the Presidential Transition Team about FL YNN’s conversations with the Russian Ambassador regarding the U.S. Sanctions and Russia’s decision not to escalate the situation.

It appears that Flynn tried to hide the entire existence of the call on December 31 (unless that’s why he claimed he had to keep calling back to Kislyak because of connectivity issues).

The interviewing agents asked FLYNN if he recalled any conversation with KISLYAK in which KISLYAK told him the Government of Russia had taken into account the incoming administration’s position about the expulsions, or where KISLYAK said the Government of Russia had responded, or chosen to modulate their response, in any way to the U.S.’s actions as a result of a request by the incoming administration. FLYNN stated it was possible that he talked to KISLYAK on the issue, but if he did, he did not remember doing so. FLYNN stated he was attempting to start a good relationship with KISLYAK and move forward. FLYNN remembered making four to five calls that day about this issue, but that the Dominican Republic was a difficult place to make a call as he kept having connectivity issues. FLYNN reflected and stated that he did not think he would have had a conversation with KISLYAK about the matter.

The point, however, is multiple people in the Transition lied about this back-and-forth involving people at Mar-a-Lago with Trump.

Their correction of those stories is probably one thing described in this redaction in Flynn’s sentencing addendum.

The fact that Flynn’s lies attempted to hide coordination with Mar-a-Lago and the Transition team generally is significant for several reasons.

First, it appears that at least KT McFarland and probably Sean Spicer were in on at least part of Flynn’s cover story. If that’s right, it would require more coordination than we’ve seen reported based on emails. It’s still unclear how much those who lied about Flynn’s conversations early in January 2017 — including Spicer but especially Mike Pence, who has not been named as receiving the emails among the Transition team — knew about Flynn’s conversations.

A perhaps more important detail, legally, is one that Ty Cobb — at the time, still working for Trump — tried to deny: at least one person in the Trump camp had assured the Obama Administration that they would not undercut Obama’s efforts to retaliate against Russia.

The Trump transition team ignored a pointed request from the Obama administration to avoid sending conflicting signals to foreign officials before the inauguration and to include State Department personnel when contacting them. Besides the Russian ambassador, Mr. Flynn, at the request of the president’s son-in-law, Jared Kushner, contacted several other foreign officials to urge them to delay or block a United Nations resolution condemning Israel over its building of settlements.

Mr. Cobb said the Trump team had never agreed to avoid such interactions. But one former White House official has disputed that, telling Mr. Mueller’s investigators that Trump transition officials had agreed to honor the Obama administration’s request.

This puts a totally different spin on Susan Rice’s role in unmasking intercepts involving Trump transition officials exhorting the Russian Ambassador to blow off Obama’s sanctions and working with Mohammed bin Zayed al-Nahyan to keep a face-to-face meeting in NY secret (and probably also other intercepts assuring Bibi Netanyahu the Trump Transition would do all they could to undercut an Obama effort to punish Israeli settlements).

Rice would have unmasked those conversations having some reason to believe that the people involved in those discussions (Flynn and Kushner) were blowing off a Trump Transition commitment not to undercut Obama policy.

Such actions, then, would appear to go beyond a mere Logan Act violation. That is, Flynn and Kushner would have appeared to be pursuing their own foreign policy agenda, not just undercutting Obama’s policy, but also undercutting Trump’s (contested) agreement not to undercut Obama’s policies at least through the transition. And they would be doing so, by appearances, in pursuit of their own personal profit.

And those seeming instances of free-lancing would have accompanied Flynn’s request (in the days before it would be exposed that his Transition calls had been intercepted) to Rice to delay arming the Kurds, at a time when he was still legally hiding this relationship with Turkey.

Ultimately, we’re almost certainly going to learn all this was done with Trump’s explicit approval.

But because Flynn made such an effort to hide that his efforts to placate the Russians (and help the Turks and carry out undisclosed conversations with the Emirates and Israel) were done on the specific direction of Trump and Kushner, it would have looked like he was undermining both the Trump Administration and the interests of the United States.

It turns out he was only doing the latter.

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

Among the more trollish arguments in Yevgeniy Prigozhin’s latest troll argument in defense of his troll attack on the 2016 election is that Prigozhin has to get all the discovery turned over to Concord’s lawyers because only he can tell whether he’s Putin’s boss, or his chef.

[T]he documents that the government appears to contend are statements of Concord under Fed. R. Civ. P. 16(C)(i) and (ii) are primarily in Russian. While defense counsel has engaged translators to begin its review of the discovery materials, the only way to get fully accurate translations and prepare for trial is to speak to the individuals who allegedly wrote the documents. See United States v. Archbold-Manner, 577 F. Supp. 2d 291, 292-93 (D.D.C. 2008) (noting the need for translations of voluminous foreign language discovery in ruling relating to Speedy Trial Act). This is particularly true with respect to Russian, which is highly dissimilar to English and literal translations of words often result in lost meaning or context. See, e.g., https://www.state.gov/m/fsi/sls/c78549.htm (Department of State’s Foreign Service Institute School of Language Studies identifying Russian as a Category III Language “with significant linguistic and/or cultural differences from English”). Again, by way of example, certain allegedly sensitive documents contain the Russian word “шеф.” This word can be translated into the English words “chief,” “boss” or “chef”—a distinction that is critically important since international media often refers to Mr. Prigozhin as “Putin’s Chef.”

Each logical step in this paragraph is nonsense, because it’s clear the documents in question are getting translated by people who do not suffer from the “significant linguistic and cultural differences” cited by the State Department in an off-point citation. Ultimately, this argument amounts to Prigozhin claiming that only he knows whether — all this time! — has has actually been Putin’s boss, not his chef, as usually claimed.

That said, the argument is telling, because it suggests that Prigozhin has to get discovery because documents turned over in discovery directly implicate his relationship with Putin.

“The Russian national who controls the Defendant but has not personally appeared”

The main gist of this filing, however, is an attempt to revisit an earlier order in this case and force the government (the troll lawyers pretend this case is being exclusively prosecuted by Mueller and not also by lawyers from two other DOJ components) to turn over 3 million pages in discovery to Prigozhin, even though he hasn’t appeared before the court personally.

Since the entry of the Protective Order, the Special Counsel has produced nearly 4 million documents, 3.2 million of which it has designated as “sensitive.” The Special Counsel has not explained to defense counsel the reason for the designation of any particular document or category of documents, nor has he explained why—with non-classified material—defense counsel should not have access to his secret communications with the Court.

Remember, Prigozhin made himself General Manager of Concord Management after it got indicted in the same indictment in which he got indicted so he could insist that he get this discovery in his corporate form, even while dodging prosecution in his natural form (it’s sort of the reverse effect of the Trump Organization consubstantiation that is going to get Trump in trouble). As a result, Concord argues (for the second time) that Prigozhin must get discovery because he is the defendant, and not a co-defendant currently avoiding any court appearance.

Undersigned counsel has been unable to identify a single reported case where a corporate defendant was prohibited from viewing discovery,

[snip]

Second, co-defendant Mr. Prigozhin is the only person directly affiliated with Concord identified in the Indictment. As such, Concord cannot be expected to make informed decisions regarding its defense or meaningfully confer with its counsel unless it—and specifically Mr. Prigozhin—understands the evidence the Special Counsel intends to use against it at trial. Maury, 695 F.3d at 248 (recognizing that “[a]n organization has no self-knowledge of its own Undersigned counsel has been unable to identify a single reported case where a corporate defendant was prohibited from viewing discovery,

Yet the troll lawyers don’t address the issue that proved key the last time: that this an attempt for Prigozhin, who because he has not made an appearance is not bound by the protective order, to obtain discovery as a defendant without risking his neck. Indeed, it turns that scenario on its head, searching for instances where corporations have been denied discovery as opposed to where indicted co-conspirators obtain discovery without showing up in court first.

In a related filing, the government calls Prigozhin “the Russian national who controls the Defendant but has not personally appeared” and cite national security concerns about “certain facts regarding Prigozhin and other Russian nationals associated with him.” Perhaps the government needs to present details to Friedrich about just what Putin’s chef has cooked up for him.

The troll lawyers also don’t address the terms of the discovery order. Prigozhin has a means of getting the discovery he wants: he only needs to come to the United States and enter into the protective order to do that. Indeed, two of the cases Concord cites seem to support the existing protective order, which requires those who access this information to be bound by the court before they do so and prohibits discovery from being removed from the US.

United States v. Carriles, 654 F. Supp. 2d 557, 562, 570 (W.D. Tex. 2009) (rejecting the government’s proposed protective order related to sensitive but unclassified discovery which would have prevented defendant from disseminating any sensitive discovery material to prospective witnesses without first obtaining court approval, and instead allowing defendant to disclose materials necessary for trial preparation after obtaining a memorandum of understanding related to the protective order); Darden, 2017 WL 3700340, at *3 (rejecting the government’s proposed protective order that prohibited the defendants from reviewing discovery materials unless in the presence of counsel and adopting a less restrictive protective order which specified precisely which discovery materials defense counsel could review with the defendants but could not provide or leave with the defendants).

Admittedly, Judge Dabney Friedrich invited Concord to return to these issues (albeit at a slightly later stage than where we’re at). But Concord doesn’t even address that there are means for Prigozhin to access materials under the existing protective order.

There are two more interesting sub-arguments here.

Concord argues that because the US government has charged accountant Elena Khusyaynova — but not in this case — the ongoing investigation is done

First, Concord uses the fact that Eastern District of VA charged Concord accountant in a parallel case, the “ongoing investigation” the government cited to justify its secrecy has ended.

Nevertheless, the Special Counsel has publicly invoked—in the Protective Order itself and its briefing—both an “ongoing investigation” and “sensitive investigatory techniques” as grounds for preventing disclosure, neither of which should apply here.

Undersigned counsel must assume for now that the “ongoing investigation” referred to in the Protective Order is related to the criminal complaint recently unsealed in the Eastern District of Virginia. Ex. A. Because this complaint is now unsealed, and the ongoing investigation has been publicly revealed, there is no further need to protect this investigation from disclosure.

It later says that some of the documents cited in the affidavit submitted in Elena Khusyaynova’s case are “the very same documents” turned over in discovery here.

Relatedly, the government itself has described some of the “sensitive” discovery in great detail in public filings, yet has made no effort to subsequently re-categorize those very same documents as no longer sensitive. For example, in an affidavit in support of a criminal complaint filed under seal on September 28, 2018 in the Eastern District of Virginia and unsealed on October 19, 2018, an FBI Special Agent described “detailed financial documents that tracked itemized Project Lakhta expenses” allegedly transmitted between an employee of Concord and an employee of its co-defendant, Internet Research Agency. See Ex. A, Criminal Compl., United States v. Elena Khusyaynova, 1:18-mj-464 (E.D. Va.) (filed Sept. 28, 2018; unsealed Oct. 19, 2018) (“the Holt Affidavit”). The Holt Affidavit goes on to state that “[b]etween at least January 2016 and July 2018, these documents were updated and provided to Concord on approximately a monthly basis,” and provides “illustrative examples” of these documents, including identifying the individual who sent the document (the defendant identified in the complaint); describing the date on which the documents were allegedly sent and the approximate dollar value contained in the document; and even quoting from the documents. Id. ¶ 21. To the extent that these very same documents are among those designated by the Special Counsel as “sensitive,” it is impossible to understand why they cannot be shared with Concord in order to defend itself against criminal charges in this case. [my emphasis]

The argument that any investigation into Concord is complete is undermined by the other motion Concord submitted the same day they submitted this motion. It complains that Mueller prosecutor Rush Atkinson somehow took investigative action on information a week after Concord provided  the same information to the Firewall Counsel, on August 30.

On August 23, 2018, in connection with a request (“Concord’s Request”) made pursuant to the Protective Order entered by the Court, Dkt. No. 42-1, Concord provided confidential information to Firewall Counsel. The Court was made aware of the nature of this information in the sealed portion of Concord’s Motion for Leave to Respond to the Government’s Supplemental Briefing Relating to Defendant’s Motion to Dismiss the Indictment, filed on October 22, 2018. Dkt. No. 70-4 (Concord’s “Motion for Leave”). Seven days after Concord’s Request, on August 30, 2018, Assistant Special Counsel L. Rush Atkinson took investigative action on the exact same information Concord provided to Firewall Counsel. Undersigned counsel learned about this on October 4, 2018, based on discovery provided by the Special Counsel’s Office. Immediately upon identifying this remarkable coincidence, on October 5, 2018, undersigned counsel requested an explanation from the Special Counsel’s Office, copying Firewall Counsel on the e-mail. The Special Counsel’s Office responded to the email on October 7, 2018, but did not explain how it obtained the confidential information, stating instead that the trial team was unaware that undersigned counsel was in communication with Firewall Counsel and that “[n]o criminal process that has been turned over in discovery is derived from [those] communications.”

Having received no further explanation or information from the government, undersigned counsel raised this issue with the Court in a filing made on October 22, 2018 in connection with the then-pending Motion to Dismiss. In response to questions from the Court, Firewall Counsel denied having any communication with the Special Counsel’s Office.

In a footnote, Concord makes the kind of vague claim I expect to be corrected by Mueller, suggesting that its one request to Firewall Counsel hasn’t gotten a response.

Concord initially requested authorization from the Court pursuant to the Protective Order to disclose a small number of specifically identified allegedly sensitive documents to particular Russian individuals, but to date the Court had not required the Firewall Counsel to respond to that request in writing.

While it’s certainly possible Atkinson’s investigative action fed into the September 28 charges against Khusyaynova, one way or another, it suggests the parts of the Concord investigation under Mueller also remain ongoing.

Interestingly, Atkinson wasn’t on October 23 and  November 27 filings in this case, though he was on yesterday’s brief; during October and November, however, Atkinson was dealing with red-blooded American trolls like Jerome Corsi.

In any case, the complaint about Atkinson feels like a parallel construction issue to me. After all, Concord surely remains under close surveillance by the US government, and so long as Progozhin does not have a lawyer who files an appearance for him personally in this matter, he likely remains a legitimate surveillance target. So Atkinson might have means to obtain such information independent of the Firewall Counsel.

Reverse engineering the parallel construction on 3 million documents

Indeed, that’s what this entire thing feels like: an attempt to obtain the non-classified discovery from US providers to reverse engineer it to understand what surveillance the underlying investigation is conducting. As Concord describes, its lawyers are seeing millions of documents obtained via subpoena.

The Special Counsel has explicitly acknowledged that none of the discovery is classified. Moreover, the allegedly “sensitive” discovery appears to have been collected exclusively through the use of criminal subpoenas, search warrants, and orders issued pursuant to 18 U.S.C. § 2703, as opposed to any classified collection method.

It then goes on to suggest that what US tech companies turn over in response to legal process is all laid out in public. It also helpfully names a bunch of providers from which discovery has been provided: Google, Facebook, Twitter, Apple, Microsoft, Yahoo!, Instagram, WhatsApp, Paypal, and Verizon.

With respect to “sensitive investigatory techniques,” the discovery produced to date comes from legal process issued to various companies, including email providers, internet service providers, financial institutions, and other sources. See Government’s Mot. For a Protective Order Under Federal Rule of Criminal Procedure 16(d)(1) at 2, Dkt. 24. But any person anywhere in the world connected to the Internet already knows that law enforcement agencies can and do gather evidence from these types of companies through legal process in criminal matters, and specifically what can be gathered through those various processes is widely known and is not in need of protection. For example, Google explains in detail on its website precisely what information it will disclose in response to legal process in the form of a subpoena, court order, or search warrant. See https://support.google.com/transparencyreport/answer/ 7381738?hl=en. Google specifically publicizes that in response to a subpoena for Gmail data, it can be compelled to disclose subscriber registration information (e.g., name, account creation information, associated email addresses, phone number), and sign-in IP addresses and associated time stamps. Id. In response to a court order for Gmail data, Google may provide “non-content information (such as non-content email header information)” and in response to a search warrant Google can be compelled to produce email content, in addition to the data produced in response to a subpoena or court order. Id. Facebook publishes similar information, explaining that in response to a subpoena, it may disclose “basic subscriber records,” which may include name, length of service, credit card information, email addresses, and recent login/logout IP addresses. See https://www.facebook.com/safety/groups/law/guidelines/. In response to a court order, Facebook may disclose message headers and IP addresses, as well as basic subscriber records. Id. In response to a search warrant, Facebook may disclose stored contents of the account, including messages, photos, videos, timeline posts, and location information. Id.

Twitter, Apple, Microsoft, Yahoo!, Instagram, and WhatsApp, all publish similarly detailed information about the types of data available to law enforcement through subpoenas, court orders, and search warrants. See https://help.twitter.com/en/rules-and-policies/twitter-lawenforcement-support (explanation from Twitter that obtaining non-public information requires valid legal process like a subpoena, court order, or other legal process and that requests for the contents of communications require a valid search warrant or equivalent); https:// www.apple.com/privacy/government-information-requests/ (explanation from Apple, Inc. of what government and law enforcement agencies can obtain through legal process); https:// www.microsoft.com/en-us/corporate-responsibility/lerr (explanation from Microsoft that a subpoena is required for non-content data, and a warrant or court order is required for content data); https://r.search.yahoo.com/_ylt=A0geK.OJvA5cPPUAkCJXNyoA;_ylu= X3oDMTEyaDM4Z2dkBGNvbG8DYmYxBHBvcwMxBHZ0aWQDQjQ4NTNfMQRzZWMDc3I-/RV=2/ RE=1544498442/RO=10/RU=https%3a%2f%2fwww.eff.org%2ffiles%2ffilenode%2fsocial_net work%2fyahoo_sn_leg-doj.pdf/RK=2/RS=sXU4pB1SMj3WwjZBx3ltlU4S6v w- (explanation from Yahoo of precisely what data may be disclosed in response to a subpoena, 2703(d) order, or Search Warrant); https://faq.whatsapp.com/en/android/26000050/?category=5245250 (explanation from WhatsApp detailing what information is available through various forms of legal process); https://help.instagram.com/494561080557017 (explanation from Instagram describing the information it will disclose in response to subpoenas, search warrants, and court orders). Financial institutions and internet service providers also openly describe what information is available to law enforcement through various legal process. See, e.g., https://www.paypal.com/us/webapps/mpp/law-enforcement (explanation from PayPal describing the type of data it collects and when that data is made available to law enforcement as required by law); https://www.verizon.com/about/portal/transparency-report/faqs/ (explanation from Verizon of the types of information it is required to disclose when properly requested by law enforcement or court order).

Thus, if it is the so-called “manner of collection” of the discovery that the Special Counsel seeks to protect—that is, the fact that law enforcement agencies can collect a certain type of data—that fact is widely known and does not justify the burdens the Protective Order imposes on Concord’s right to present a defense.3

Concord goes on to dismiss the concerns of exposing “witnesses.”

3 To the extent that the government argues that limiting access to discovery will ensure the safety of witnesses, there is no valid basis for such argument. Specifically, even in cases where there is such a risk (and undersigned counsel knows of no such risk here), there must be more than “broad allegations of harm, unsubstantiated by specific examples or articulated reasoning.” Johnson, 314 F. Supp. 3d at 251. In those instances, courts are still willing to allow a defendant to review the evidence, subject to certain parameters. See, e.g., id., at 254 (requiring government redaction of discovery materials); Darden, 2017 WL 3700340, at *3 (adopting less-restrictive measure to ensure witness safety). If the government has a legitimate concern about witness safety, the burden is on it to specifically articulate the concern, identify precisely the documents that would lead to the identification of a witness, and redact that information or propose an alternative means of restricting disclosure.

The FBI hides a great deal of detail about precisely what it can obtain from providers by deeming service providers witnesses, and this feels like the same.

Still, even the public record in past dockets reveals that discovery from providers can be vastly more extensive than the public imagines.

Which is, I imagine, what Concord is trying to provide Putin’s chef.

The troll lawyers implicitly troll Judge Freidrich’s past rulings

Don’t get me wrong. What kind of protective order Friedrich sustains against Concord so long as it insists co-defendant Prigozhin is the only one at Concord who can handle that discovery is an interesting legal question.

That said, Concord’s signature style might start wearing on Friedrich’s patience given claims that seemingly defy her decision on the last major challenge to the Mueller prosecution.

In this first-of-its-kind prosecution of a make-believe crime, the Office of Special Counsel maintains that it can unilaterally—and for secret reasons disclosed only to the Court— categorize millions of pages of non-classified documents as “sensitive,” and prohibit defense counsel from sharing this information with Defendant Concord for purposes of preparing for trial. This, apparently only because the Defendant and its officers and employees are Russian as opposed to American. The Special Counsel’s unique argument appears rooted in the maxim, “Happy the short-sighted who see no further than what they can touch.”1

Maillart, Ella K., The Cruel Way (1947).

Friedrich has already ruled that this is not a made-up crime.

In Concord’s view, that omission is dispositive: the indictment cannot accuse Concord of conspiring to obstruct lawful government functions “without any identified or recognized statutory offense” because a conspiracy conviction cannot be “based strictly on lawful conduct” even if that conduct is “concealed from the government.” Id. (emphasis omitted).

Concord is correct that the indictment must identify the lawful government functions at issue with some specificity. And it does. See Indictment ¶¶ 9, 25–27. A defraud-clause conspiracy need not, however, allege an agreement to violate some statutory or regulatory provision independent of § 371. 3

[Citations of 5 cases demonstrating the point]

Put simply, conspiracies to defraud the government by interfering with its agencies’ lawful functions are illegal because § 371 makes them illegal, not because they happen to overlap with substantive prohibitions found in other statutes.

Similarly, as part of a complaint that the prosecutors haven’t had to bear any burden of this protective order, Concord says they should have to redact Personally Identifiable Information rather than deeming materials including it “sensitive.”

But rather than impose on the government the burden of identifying the materials that actually contain PII, so that the specific documents or information can be redacted or restricted, the Special Counsel has used the Protective Order to designate the entirety of various data productions to completely restrict Concord’s ability to view the vast majority of discovery regardless of whether specific documents contain PII.

This is another issue that Friedrich has already ruled against the defense on, ruling against their request to make Mueller strip the PII.

Friedrich already seemed predisposed to honor the government’s security concerns, which they just teed up again. If she feels like she’s the one being trolled, as opposed to Democratic voters or Special Counsel lawyers, she may not look too kindly on this request.

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