The State of Trump’s Anti-Mueller Strategy

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As I laid out last week, 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. 

I thought it’d be useful to summarize Trump’s many-fronted attack on the Mueller investigation today.

Forthcoming Peter Strzok testimony

As part of the GOP obstruction efforts, the House Judiciary Committee will have Peter Strzok for a public hearing Thursday, without (at least thus far) providing him with a transcript of his 11-hour testimony before the committee two weeks ago.

In his increasingly frequent rants about the Witch Hunt, Trump continues to focus on Strzok’s role.

Incidentally, I made some initial outreach to do an informal briefing with some Republican members of Congress about what I know about the election year tampering, but learned the committees were too busy with Strzok and related issues to hear from me.

Leak of two anti-Comey letters

Yesterday, a Saturday, the AP published two anti-Comey letters sent by the Trump team:

  • A June 27, 2017 screed from Marc Kasowitz delivered by hand to Robert Mueller, spinning Jim Comey’s descriptions of his own actions as inaccurate and Machiavellian
  • A September 1, 2017 letter from John Dowd to Rod Rosenstein complaining that there was no grand jury investigation into Comey’s behavior, the closure of the Hillary email investigation, and (vaguely) the Clinton Foundation

The AP claims that,

The 13-page document provides a window into the formation of a legal strategy that remains in use today by Trump’s lawyers — to discredit Comey’s value as a witness. It could have new relevance in the aftermath of a Justice Department inspector general report that criticized Comey for departing from protocol in the Clinton investigation.

The AP did not include Rudy Giuliani (among others, including Trump himself) in the list of those it reached out to for comment.

Lawyers for Comey declined to comment Saturday, as did Peter Carr, a spokesman for Mueller. Kasowitz and Trump lawyer Jay Sekulow did not return messages, and former Trump attorney John Dowd declined to comment.

The NYT’s continued parroting of Trump’s shitty legal team’s understanding of the case

Meanwhile, the Mike and Maggie team at NYT continues its practice of writing stories that claim to track a grand new Trump legal strategy, but along the way mostly maps out either Trump spin emphasizing obstruction or just outright misunderstanding of the case against the President. In the most recent installment, Mike and Maggie claim the obviously consistent half year strategy of inventing excuses not to do an interview is a new one.

President Trump’s lawyers set new conditions on Friday on an interview with the special counsel and said that the chances that the president would be voluntarily questioned were growing increasingly unlikely.

The special counsel, Robert S. Mueller III, needs to prove before Mr. Trump would agree to an interview that he has evidence that Mr. Trump committed a crime and that his testimony is essential to completing the investigation, said Rudolph W. Giuliani, the president’s lead lawyer in the case.

At one point, they even claim that the raid against Michael Cohen — as opposed to the mounting evidence that Mueller was examining Trump’s role in “collusion,” not just obstruction — that led Trump to take a more aggressive stance.

But in April, Mr. Trump concluded that Mr. Mueller and Justice Department officials were determined to find wrongdoing after federal investigators in New York, acting on a referral from the special counsel, raided the office, hotel room and home of Mr. Trump’s longtime personal lawyer Michael D. Cohen.

The most curious aspect of the story is Rudy’s claim that if Mueller — who as early as March was asking around 13 questions about “collusion” — could show real evidence, then Trump would be willing to sit for an interview.

“If they can come to us and show us the basis and that it’s legitimate and that they have uncovered something, we can go from there and assess their objectivity,” Mr. Giuliani said in an interview. He urged the special counsel to wrap up his inquiry and write an investigative report. He said Mr. Trump’s lawyers planned to write their own summary of the case.

This is an area where NYT could have laid out the evidence that implicates Trump personally, to show how silly this line is.

After that article, Schmidt weighed in twice more on Twitter, asserting that because Mueller told Trump’s team he needed to question the President for obstruction earlier this year, that remains true.

Mueller told Trump’s lawyers earlier this year that he needed to question the president to know whether he had criminal intent on obstruction issues. Hard to believe Mueller doesn’t try and do everything in his power to get Trump to answer those questions.

Schmidt also posted Dowd’s self-congratulation for his own strategy cooperating long enough to support the defense team’s current position that Mueller would have to show strong evidence of a crime to be able to subpoena the president to testify.

Giuliani’s hat trick of Sunday shows

In what must be the result of aggressive White House outreach, Rudy Giuliani appeared on several outlets this morning, following up on the NYT piece. On ABC, he nuanced his claim about whether Trump would sit for an interview, saying not that Mueller would have to show evidence of a crime, but that he’d have to show “a factual basis” for an investigation into Trump.

STEPHANOPOULOS: Let’s talk about Robert Mueller. The New York Times reported that President Trump won’t agree to an interview with Robert Mueller unless Mueller first proves he has evidence that President Trump committed a crime.

That was based on an interview with you. Is that the current condition?

GIULIANI: Yes, but I have to modify that a bit, look at my quote. My quote is not evidence of a crime, it’s a factual basis for the investigation. We’ve been through everything on collusion and obstruction.

We can’t find an incriminating anything, and we need a basis for this investigation, particularly since we now know it was started from (ph) biased — by biased —

STEPHANOPOULOS: We have James Comey’s testimony.

GIULIANI: Well Comey’s testimony is hardly worth anything. And — nor — nor did he ever — James Comey had — never found any evidence of collusion. And rules out obstruction by saying the president had a right to fire me. So all the rest of it is just politics. I mean, the — the — the reality is Comey, in some ways, ends up being a good witness for us.

Unless you assume they’re trying to get him into a perjury trap by (ph) he tells his version, somebody else has a different version.

Rudy went a bit further on CNN, claiming to be certain there’s no reason for the investigation because his team has debriefed all of Mueller’s witnesses (who, according to Rudy, are all part of the joint defense agreement).

BASH: Thank you.

And these new terms, particularly that Robert Mueller must show proof of Trump wrongdoing to agree to an interview, you actually have said that you don’t think that Mueller would even agree to it. So why do this dance? Why not just tell the special counsel, sorry, no interview?

GIULIANI: Well, we’d like to know if there is any factual basis for the investigation originally or they have developed one, because we can’t find one, nor can anyone else, nor have they, with all the leaking they have done, even leaked one, which I think would have happened immediately, because they want to justify themselves.

The fact is, I should correct it. I didn’t say they have to prove a crime.

BASH: Right.

GIULIANI: What I said was, they have to give us a factual basis, meaning some suspicion of a crime.

For example, I can’t initiate an investigation of my neighbor just because I don’t like him or just he’s politically different from me.

[snip]

BASH: … that there is no evidence — you say that the special counsel hasn’t produced evidence.

But they haven’t said that they have no evidence. They have — you say that there have been leaks. They have been remarkably tight- lipped, aside from what they have had to do with indictments and such.

GIULIANI: No, they haven’t. They leaked reports. They leaked reports. They leaked meetings. They’re leaking on Manafort right now. They leaked Cohen before it happened.

BASH: But this is an ongoing investigation. We don’t really know what they have and what they don’t have. That’s fair, right?

GIULIANI: Well, I have a pretty good idea because I have seen all the documents that they have. We have debriefed all their witnesses. And we have pressed them numerous times.

BASH: You have debriefed all of their witnesses?

GIULIANI: Well, I think so, I mean, the ones that were — the ones that were involved in the joint defense agreement, which constitutes all the critical ones.

Rudy said much the same on NBC — the most interesting part of that interview is Chuck Todd’s questions about why Trump would meet with Putin while being under investigation for colluding with him.

Central to all three of these interviews is the notion that because Michael Horowitz found that Jim Comey acted improperly in the Hillary investigation, Trump can’t be investigated for anything to do with him — the same story told implausibly in those two leaked letters.

The Trump team went to great lengths to spend their limited Sunday Morning political capital on rolling this out as a purportedly new Mueller strategy.

Some Issues of Timing Revealed by Manafort’s Filings

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

On Tuesday, Mueller’s team gave Paul Manafort the contents of Rick Gates’ electronic devices for the first time. Yesterday, after receiving another large dump of evidence, Manafort moved to delay his July 25 trial, a motion the Mueller team objected to.

Those are just a few of the details revealed by a slew of filings submitted in Manafort’s EDVA case yesterday. Those filings include:

  1. The government’s opposition to a motion Manafort submitted in June trying to keep all mention of the Trump campaign, the DC case against him, and the fact he got thrown in jail in the DC case from being introduced in his EDVA trial
  2. A motion to move his trial from Alexandria to Roanoke based on some crazy claims but ultimately boiling down to Manafort’s belief that if he is tried by a jury of his sleazy political influence peddling peers, he’s more likely to go to prison
  3. A supplement to Manafort’s bid to get a hearing on leaks, which includes January and February discovery request letters and two electronic communications describing a meeting between the FBI and the AP from April 2017; all of those exhibits are worth reading but I won’t deal with them here
  4. A motion to delay his trial until sometime after the DC one

It’s the first and the fourth items that I’m interested in here.

emptywheel’s Continuing Obsession with Paul Manafort’s 404(b) Notice

Folks seem to pretty much understand my continuing obsession with Paul Manafort’s iPod habit (or rather, his efforts to deem the seizure of his eight iPods improper). Perhaps less obviously interesting is my continuing obsession with the 404(b) notices in his two cases, which are the way lawyers fight over whether evidence of related crimes can be admitted in trial. In Manafort’s case, I think this fight may reveal something about how Mueller sees the various pieces of the puzzle fitting together.

As I previously noted, the government fought to delay disclosure of 404(b) in the DC case until June 15. When they did submit the 404(b) notice in that case, the government said they want to include evidence of three other crimes, two of which happen to be New York State crimes (the apartment in question is a Trump Tower one) that might be charged in the state.

Here’s the 404(b) motion. Mueller wants to introduce three things:

  • Evidence that one reason that Manafort and others arranged for [Skadden Arps] to be retained for the de minimis sum of approximately $12,000—even though they knew at the time that Law Firm A proposed a budget of at least $4 million—was to avoid certain limitations imposed by Ukrainian public procurement law.
  • Evidence that Manafort was treating a NYC apartment as a business property with the IRS but as a personal dwelling with a lender.
  • Evidence that Manafort structured intra-Cypriot funds to hide income.

The first of those two, of course, involve crimes in NY state.

In the EDVA case, I had suspected that the government asked TS Ellis to issue a discovery order to make it clear they wouldn’t provide 404(b) notice in this case until a week before trial — I got the date wrong but I think it’d be July 18 — but can move to avoid any pretrial notice.

So maybe that’s what Mueller’s trying to get Manafort to agree to. The EDVA standard order he’s trying to get him to use would require 404(b) notice by July 17, but permits the government to request avoiding such pretrial notice.

It is further ORDERED that, no later than seven calendar days before trial, the government shall provide notice to the defendant, in accordance with FED. R. EVID. 404(b), of the general nature of any evidence of other crimes, wrongs, or acts of defendant which it intends to introduce at trial, except that, upon motion of the government and for good cause shown, the court may excuse such pretrial notice.

Yesterday’s opposition to Manafort’s bid to limit what it can say about the Trump campaign and the DC case confirms I was (at least partly) correct — the government wanted a discovery order so they can avoid telling Manafort what they want to raise at trial.

The defendant’s request to preclude evidence relating to the District of Columbia case is a premature effort to preclude evidence under Rule 404(b). See Doc. 93 at 5 n.1 (“[T]his motion is being filed in the event that the Special Counsel seeks at trial to introduce evidence or advance arguments concerning ‘other act’ evidence.”). The standard practice in the Eastern District of Virginia, as referenced in the Government’s proposed discovery order (Doc. 83 at 7), is that the government provide notice of Rule 404(b) evidence it intends to introduce at trial seven days before trial. Although the defendant has not responded to the Government’s Motion for Entry of Discovery Order, the government intends to follow the District’s standard practice with respect to Rule 404(b) notice. It nevertheless bears noting that contrary to the defendant’s characterization, there is substantial overlap between the evidence in District of Columbia case and the one before this Court. The Superseding Indictment in the District of Columbia alleges tax fraud that overlaps with the substantive tax charges in the Eastern District of Virginia.

In other words, in a filing arguing that the government should be able to bring in details about both the Trump campaign (because some of the loans he’s being tried for he only obtained by getting the banker a position on the Trump campaign) and about Gates’ guilty plea in DC (but not about the crimes that Manafort allegedly committed while on bail that got him thrown in prison), Mueller’s team makes it clear they intend to wait to tell Manafort what other crimes they might mention at the EDVA trial until July 18.

In any case, this opposition motion would seem to limit how much Mueller can mention about the collusion case in chief to a description of that loan. So it’s probably just that Mueller has some other activity, akin to the NY based crime they plan to introduce in the DC case, perhaps some criminal activity that can be charged in VA, that they plan to introduce at trial. In any case, they’re not going to release it for another 10 days or so.

The big discovery dump

Sometime after 6:28 yesterday, Manafort submitted his motion to delay his trial to sometime after his other one. Now, as Josh Gerstein noted in response to my pestering him to review Manafort’s “rocket docket” strategy of splitting this trial from his DC one, Manafort lawyer Kevin Downing always wanted to do the DC one first.

Manafort attorney Kevin Downing requested the Virginia case be set for sometime in November, after the Washington trial. Downing told Ellis the defense needs time to assemble legal motions in both cases and to prepare for the back-to-back trials.

“This is a massive indictment,” the defense attorney said. “We were envisioning a trial in this case in November, following the case in D.C.”

So effectively, what Manafort did was wait until the very last minute, and then ask for what they wanted in the first place, this trial to go second. To justify the delay, his lawyers are citing the difficulties posed by him being in jail (which is a fair reason, but one most similarly situated defendants don’t get concessions for).

But I’m interested in the depiction of the latest discovery received that they also use to make the request.

Indeed, in terms of discovery, defense counsel has continued to receive voluminous amounts from the Special Counsel up-to-the-moment. Thus far, there have been twenty-three (23) discovery productions, the most recent of which was produced to the defense at 6:28 p.m. today, July 6, 2018 (i.e., the same date that this motion for a continuance is being filed)—a mere 19 days before the scheduled trial in this case. The Special Counsel’s production today appears to contain approximately 50,000 pages of new documents. Indeed, this is despite the Special Counsel’s representations earlier this year that discovery was complete, or nearly complete.4 In fact, since May the defense has received seven discovery productions which include at least 140,000 pages of material. The Special Counsel’s next most-recent disclosure—coming on July 3, 2018 (a mere 22 days prior to the scheduled trial)—includes data obtained from the primary cooperating witness’s personal electronic devices and will require extensive review and analysis. (This is the same witness who resolved his case in the District of Columbia in February of this year.) Moreover, defense counsel’s review of the discovery produced to date has been unusually timeconsuming because discovery relevant to this case has often been co-mingled with discovery that appears relevant solely to the D.C. Case. As the Court observed at the recent motions hearing, this is primarily a documents case, and defense counsel require additional time to thoroughly review and analyze with their client the voluminous documents produced by the Special Counsel. It is critically important for the defense to have sufficient time to review the discovery with Mr. Manafort because he understands many of the relevant documents (and their context) better than anyone else.

4 See, e.g., Doc. 20 (filed Feb. 28, 2018) at 7 (“[W]e believe that almost all of the relevant discovery in this matter in our possession has already been produced in the course of the District of Columbia prosecution.”); see also D.C. Case, Doc. 146 (filed Jan. 12, 2018) at 1 (“As of the date of this filing, the government has completed a substantial portion of the discovery in this case.”).

Now, I await Mueller’s response to this, as I suspect Manafort is obscuring that, to the extent it pertains to this trial, this recent discovery has more to do with Mueller’s obligations to give Manafort discovery on incriminating evidence against people who will be witnesses at the trial. He’s also obscuring how discovery happened in this case, which started coming 20 days after he was indicted in DC in October and for which the most pertinent materials were identified as “hot.” The full context of the document he cites in that footnote reads,

In addition, we believe that almost all of the relevant discovery in this matter in our possession has already been produced in the course of the District of Columbia prosecution. The government made its first production on November 17, 2017, which included: (1) foreign bank account records for the accounts in Cyprus and Saint Vincent & the Grenadines; (2) domestic financial records; and (3) documents from Manafort’s tax preparer that were identified by the government as particularly relevant. In ensuing ten productions, the government has produced a range of emails, financial documents and other records, as well as materials obtained from a number of different devices and media. 4 As of February 28, 2018, the government had made eleven separate discovery productions to the defendant. In addition, the government also has produced for the defendant documents that it identified as “hot.”

So Manafort had 7 months to review the most important discovery in this case working from home confinement. Manafort is also, surely, obscuring how much of this discovery pertains to the DC case (which is still two months away), not this EDVA one.

These motions were due on Friday in any case, and as Gerstein pointed out, Downing always wanted to do this trial after the DC one, so it’s unlikely this request for a continuance is a response to the discovery he got last week. And the late filing might be best explained by a late edit to incorporate yesterday’s production in the motion. The motion for a continuance is far, far better drafted than the goofy venue change one.

But I do find it interesting that Mueller is just now showing Manafort what he found in Rick Gates’ electronic devices. I wonder if, in doing so, he expected Manafort to rethink his willingness to run interference for Donald Trump? If so, then the request for a continuance would be rather interesting.

The Tea Leaves on Mueller’s Hand Off

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As part of writing this post, I confirmed for the first time that the prosecutor I spoke with regarding the Russian attack is not and never has been part of the Mueller team (among other things, I think that means Peter Strzok never got within a mile of my testimony, which is why I asked). But a prosecutor who was involved in discussions setting up my interview is, and the Special Counsel’s Office certainly seemed to recognize my interview as part of the investigation when I alerted them I was going to publish that text. Given that the FBI agents I spoke with didn’t know what topics I cover for a living (and seemed to get wiser about the person we were discussing over two breaks), my guess is that DOJ assigned a team segmented off from the investigation to ensure that no one accidentally dropped hints about the investigation. That’s all just a wildarseguess, though. DOJ has gone to great lengths to ensure I don’t learn anything from the process, as is proper.

Having that tiny glimpse into how DOJ used a prosecutor uninvolved in the case in chief to talk to me about what may have become part of the case in chief is background to explain why I doubt some of the conclusions made in this piece, reporting that Mueller has divvied up tasks to career prosecutors from elsewhere in DOJ.

As Mueller pursues his probe, he’s making more use of career prosecutors from the offices of U.S. attorneys and from Justice Department headquarters, as well as FBI agents — a sign that he may be laying the groundwork to hand off parts of his investigation eventually, several current and former U.S. officials said.

Mueller and his team of 17 federal prosecutors are coping with a higher-then-expected volume of court challenges that has added complexity in recent months, but there’s no political appetite at this time to increase the size of his staff, the officials said.

[snip]

Investigators in New York; Alexandria, Virginia; Pittsburgh and elsewhere have been tapped to supplement the work of Mueller’s team, the officials said. Mueller has already handed off one major investigation — into Trump’s personal lawyer, Michael Cohen — to the Southern District of New York.

The only thing that is clearly new in this paragraph is that Mueller has involved prosecutors in Pittsburgh. As the paragraph itself notes, [part of] the investigation into Michael Cohen got handed off to SDNY. But that’s because it involves conduct — a hush money payment that Cohen arranged from Manhattan and taxi medallion fraud — that don’t clearly relate to Russian election interference. Other reports suggest that conduct more closely tied to the election, such as Cohen’s involvement in inauguration graft, remains in Mueller’s hands.

Similarly, we know of at least one EDVA prosecutor involved in Mueller’s investigation. Uzo Asonye got moved onto the team to placate TS Ellis. He will presumably present a good part of the trial that starts later this month, freeing up another member of that team to focus on the DC side of Manafort’s corruption. But that move was driven, in significant part, from Ellis’ direction.

With Michael Cohen and Paul Manafort, there’s plenty of corruption to spread across multiple districts! Heck, Manafort’s former son-in-law is cooperating against him based off a case in LA, and Dmitri Firtash, who is under indictment in Chicago, is one of four oligarchs explicitly named in Manafort’s search warrant.

And, frankly, I’m offended by this passage.

Mueller indicted 13 Russian individuals and three entities in February on charges of violating criminal laws with the intent to interfere with the U.S. election through the manipulation of social media.

None of the targets are in the U.S., but one of them, the Internet Research Agency, has forced Mueller into another legal fight in federal court. The two sides have been sparring most recently over how to protect sensitive investigative materials from disclosure. Mueller has enlisted prosecutors with the U.S. Attorney’s office in Washington to handle the case.

I’m offended not just because the passage is factually false: the entity mounting a defense is Concord Management, not Internet Research Agency. But because one should never label a defendant mounting a defense as “forc[ing the prosecutor] into another legal fight.” Yes, Concord’s defense is trollish lawfare aiming to discover intelligence. But that is the risk of using indictments to lay out nation-state information operations.

Also, as I suggested in this post and this post, commentators have made far too much of the technical requirements of the Concord case. The government will use no classified data in the trial, if the trial ever really happens. Which suggests the case will be a glorified call records case, showing that the people running certain accounts were operating from certain IP addresses. That’s not to minimize the import of call records in proving crimes. But it’s just not the most technically difficult case to prove.

Which brings us back to Pittsburgh. In fact, Pittsburgh has already been involved in this case — back when the investigation of the hack of the DNC lived there, as many nation-state hacking cases do. Now, it is definitely true that the hack investigation had, at some point, been moved under Mueller; I know of a witness to the hack who was interviewed at Mueller’s office. But if Mueller’s team of 17 were focused more closely on the “collusion” case, I could imagine them moving the hack case back to where it started.

If that’s actually what happened, it would amount to a hand off, of sorts. But it may not be all that momentous a development. Rather, it might reflect Mueller’s (and Rod Rosenstein’s) continued efforts to keep the matters he will prosecute (as distinct from investigate) closely related to the “collusion” case. That seems like a sound decision both form a resourcing perspective, but it’s a good way to rebut claims that he’s a runaway prosecutor.

There Are No Heroes in This Story

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I want to thank those who said kind things and even donated money to this post laying out how I ended up going to the FBI on the Russian election attack. I expected far more criticism, so I’m profoundly grateful for the support. The support has really validated my decision to come forward.

All that said, I want to emphasize that I’m no hero.

I say that for two reasons. First, leading up to the time I went to the FBI, I’m certain I did stupid things (one thing, well before my understanding of what was going on had changed, has long weighed on my mind). Further, while I still think I made the decisions that made sense at the time, had I made different choices, I might have prevented a whole lot of damage. So I want to be clear that when the full story is told I may take some hits.

The other reason is that when you decide to go the FBI, you don’t decide just for yourself. You decide for everyone downstream and upstream of you who will also undergo scrutiny by the FBI, people who may not share your beliefs or knowledge about the matter and who — more importantly — didn’t have the opportunity to plan to deal with authorities. I tried to limit such impact as much as I could while still providing the FBI the information they couldn’t get elsewhere, without doing their job for them. But ultimately the FBI is still the FBI. I absolutely stand by my decision, but I’m also acutely aware that my decision had real consequences for other people who did not have the luxury of knowing what and why I had decided and likely didn’t and still don’t agree with it. I get that some people question my decision and I absolutely respect that.

Also remember: I’m surely not the only or even first witness involved. Others were probably far more important than I was. Others might not have some privileges I do or the deference granted a journalist (to a vanishing degree). Others did something far more risky by coming forward. Just because I went public doesn’t mean I’m some great key to the Mueller investigation, so please don’t look to me as such!

The stories of Jim Comey and Andrew McCabe should warn us against investing too much hope in anyone as a hero. We’re all just humans, some of us trying to do the right thing and making very human mistakes along the way. In any case, we do far better looking to local organizers these days (to the extent I’ve got real heroes these days, they’re women of color really invigorating organizing), or talking (as I thankfully spent part of the afternoon yesterday doing) to someone with whom we disagree but also share common values, than to anyone within the immediate vicinity of the Mueller investigation.

Happy Fourth of July. We’re all in this together.

Putting a Face (Mine) to the Risks Posed by GOP Games on Mueller Investigation

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I’d like to put a human face — my own — to the risk posed by GOP gamesmanship on the Mueller investigation.

Sometime last year, I went to the FBI and provided information on a person whom I had come to believe had played a significant role in the Russian election attack on the US. Since that time, a number of public events have made it clear I was correct.

I never in my life imagined I would share information with the FBI, especially not on someone I had a journalistic relationship with. I did so for many reasons. Some, but not all, of the reasons are:

  • I believed he was doing serious harm to innocent people
  • I believed (others agreed) that reporting the story at that time would risk doing far more harm than good
  • I had concrete evidence he was lying to me and others, including but not limited to other journalists
  • I had reason to believe he was testing ways to tamper with my website
  • I believed that if the FBI otherwise came to understand what kind of information I had, their likely investigative steps would pose a risk to the privacy of my readers

To protect the investigation, I will not disclose this person’s true identity or the identity and/or role I believe he played in the attack. Nor will I disclose when I went to the FBI. I did so on my own, without subpoena; I did that in an effort to protect people who have spoken to me in confidence and other journalists. Largely because this effort involved a number of last minute trips to other cities, I spent around $6K of my own money traveling to meet with lawyers and for the meeting with the FBI.

I always planned to disclose this when this person’s role was publicly revealed. But I’m doing so now for two reasons. First, I think the public deserves to see the text he sent me at 3:15 PM on November 9, 2016.

The substance of the text — that the Trump team started focusing on Syria right after the election — has been corroborated and tied to their discussions with Russia at least twice since then. Most importantly, in his statement to Congress, Jared Kushner explained his request for a back channel with the Russians by describing an effort to cooperate on Syria.

The Ambassador [Sergei Kislyak] expressed similar sentiments about relations, and then said he especially wanted to address U.S. policy in Syria, and that he wanted to convey information from what he called his “generals.” He said he wanted to provide information that would help inform the new administration. He said the generals could not easily come to the U.S. to convey this information and he asked if there was a secure line in the transition office to conduct a conversation. General Flynn or I explained that there were no such lines. I believed developing a thoughtful approach on Syria was a very high priority given the ongoing humanitarian crisis, and I asked if they had an existing communications channel at his embassy we could use where they would be comfortable transmitting the information they wanted to relay to General Flynn.

Less credibly, in the days after Mike Flynn pled guilty, an inflammatory Brian Ross report was corrected to reveal that “shortly after the election” Trump asked Flynn personally to work with Russia on Syria (Ross left ABC yesterday but as far as I understand the corrected story stands).

Retired Lt. Gen Michael Flynn has promised “full cooperation” in the special counsel’s Russia investigation and, according to a confidant, is prepared to testify that Donald Trump directed him to make contact with the Russians, initially as a way to work together to fight ISIS in Syria.

[snip]

The source said Trump phoned Flynn shortly after the election to explicitly ask him to “serve as point person on Russia,” and to reach out personally to Russian officials to develop strategies to jointly combat ISIS.

The text sent to me matches both those reports — indeed, it makes it clear that “shortly after the election” means just over 14 hours after polls closed. But the text doesn’t come from anyone, like Kushner or Flynn, inside the Trump team. It comes from someone who, I believe, had already done real damage to the United States as part of the Russian attack. That person understood the cooperation with Syria in terms of the US backing Bashar al-Assad, not in terms of fighting ISIS.

I’m making this public now because a David Ignatius report Thursday maps out an imminent deal with Russia and Israel that sounds like what was described to me within hours of the election. This deal appears to be the culmination of an effort that those involved in the Russian attack worked to implement within hours after the election.

The other reason I’m disclosing this now is to put a human face to the danger in which the House Republicans are putting other people who, like me, provided information about the Russian attack on the US to the government.

Several times since I first considered sharing information with the FBI, I’ve asked my attorney to contact the FBI to tell them of what I perceived to be a real threat that arose from sharing that information. One of those times, I let law enforcement officers enter my house without a warrant, without me being present.

My risk isn’t going to go away — indeed, going public like this will surely exacerbate it. That’s to be expected, given the players involved.

But I’m a public figure. If something happens to me — if someone releases stolen information about me or knocks me off tomorrow — everyone will now know why and who likely did it. That affords me a small bit of protection. There are undoubtedly numerous other witnesses who have taken similar risks to share information with the government who aren’t public figures. The Republicans’ ceaseless effort to find out more details about people who’ve shared information with the government puts those people in serious jeopardy.

I’m speaking out because they can’t — and shouldn’t have to.

It infuriates me to observe (and cover) a months-long charade by the House GOP to demand more and more details about those who have shared information with the government, at least some of whom were only trying to prevent real damage to innocent people, all in an attempt to discredit the Mueller investigation. As someone who has worked to rein in dragnets for over a decade, I’m all the more disgusted to see so many lifelong cheerleaders of surveillance pretend to care now.

I only came to be convinced slowly about Russia’s role in the attack and I have been skeptical of the Steele dossier from the day it was published. That said, I obviously do not like Donald Trump — though I’m no Hillary fan, either. But my decision to share information with the FBI had nothing to do with my dislike for Donald Trump. It had to do with the serious damage that someone else I believed to be involved in the Russian attack — someone I had been friendly with — was doing to innocent people, almost all of those people totally uninvolved in American politics.

This investigation is not, primarily, an investigation into Donald Trump. It’s an investigation into people who attacked the United States. It’s time Republicans started acting like that matters.

On Thursday night, I reached out to the Special Counsel’s Office to inquire whether I could post this without damaging the investigation. After sharing the specific language from the passages I felt might pose the biggest concern, last night at 10:15, I was informed they, “take no position” on my posting it.

For Family and Country: The Questions Michael Cohen Won’t (Yet) Answer

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Yesterday, Michael Cohen continued his public campaign to get an invitation from Robert Mueller to flip on Donald Trump with a(nother) interview with George Stephanopoulos. This interview clearly reflects the coaching of his new attorney, Guy Petrillo.

“Once I understand what charges might be filed against me, if any at all, I will defer to my new counsel, Guy Petrillo, for guidance.”

And while Cohen has actually always been complimentary of the FBI agents who raided his home, he has gotten downright effusive about the fact-finding wonders of federal prosecutors, and even condemned the Russian attack.

“I respect the prosecutors. I respect the process,” Cohen said. “I would not do or say anything that might be perceived as interfering with their professional review of the evidence and the facts.”

[snip]

“I don’t like the term witch hunt,” he said, adding that he condemned Russia for interfering in the 2016 election.

“As an American, I repudiate Russia’s or any other foreign government’s attempt to interfere or meddle in our democratic process, and I would call on all Americans to do the same,” he said.

The big headline quote comes where he vows to put his family and country ahead of Donald Trump’s interests (the latter, in my mind, is the more interesting).

“To be crystal clear, my wife, my daughter and my son, and this country have my first loyalty.”

I’m most interested, though, in the questions that Petrillo has coached Cohen to remain silent on. Cohen does answer a few questions, asserting Mueller will find he had no improper dealings with Russia and that those who attended the June 9 meetings were idiots for doing so.

Cohen believes Mueller will not find any evidence that he had any illegal or improper dealings with the Russians.

But Cohen did criticize those members of the Trump campaign who participated in that now infamous Trump Tower meeting in June of 2016 with several Russians after being promised dirt on Hillary Clinton.

“I believe it was a mistake by those from the Trump campaign who did participate,” he said. “It was simply an example of poor judgment.”

But Cohen smartly got quiet when asked about crimes he himself might be accused of.

Prosecutors in New York’s Southern District are investigating Cohen for alleged violations of election law and possible financial crimes associated with his personal business dealings.

He has not been charged with any crime. But on the advice of his attorney, Cohen declined to address specific questions about matters currently under investigation.

He won’t repeat his earlier answers as to whether he or Trump decided to pay off Stormy Daniels.

I asked Cohen if the president directed him to make that payment or promised to reimburse him. In the past, Cohen has said that he acted on his own initiative.

Not this time.

“I want to answer. One day I will answer,” he said. “But for now, I can’t comment further on advice of my counsel.”

The big one, though, pertains to whether Cohen knew whether Trump knew about the June 9 Trump Tower meeting before it happened.

When I asked Cohen if President Trump knew about that meeting before it happened, he declined to answer.

“I can’t comment under advice of my counsel due to the ongoing investigation by the U.S. Attorney’s Office in the Southern District of New York,” Cohen said.

That information — what Trump knew about the June 9 meeting before it happened — is what Cohen is publicly offering up to Mueller’s team in an effort to minimize his own criminal penalties.

Which pretty much confirms that Trump did know about it.

On My Continuing Obsession with Paul Manafort’s iPod Habit

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There are two interesting details in Zoe Tillman’s coverage of yesterday’s Paul Manafort hearing. First, she noted that Uzo Asonye — the local AUSA Mueller added to the team to placate TS Ellis — asked for an extra week for the trial, which Ellis pushed back against.

Ellis said he expected to keep the trial date in place, barring a personal need to reschedule. When Uzo Asonye, a federal prosecutor in Virginia who is working with Mueller’s office, told the judge that the government expected to need three weeks, instead of the two weeks they originally estimated, to put on their case, Ellis told them to reconsider.

Remember that Mueller originally asked for 70 blank subpoenas (35 sets) to call witnesses for the trial. But after the trial got moved, they asked for 150 subpoenas (75 sets). Now we learn they would like 50% more time for the trial. This shouldn’t be a difficult case, given how much paperwork there is. I wonder why the scope of it has expanded. We know, however, that Mueller neither wants nor will be permitted to raise issues related to Trump.

Because of my continuing obsession with Manafort’s iPod habit, I’m also really interested in this passage in Tillman’s report.

On the home search issue, Manafort is arguing that the search warrant was too broad and that investigators had failed to explain at the outset why they reason to believe there would be evidence on various electronic media devices that they seized.

As I’ve laid out, Manafort’s lawyers focused on his iPods from their first suppression motion, claiming, falsely, that the iPods might only be used for music.

For example, the search warrant inventory of electronic devices seized or imaged includes things such as an Apple iPod music device and some Apple iPod Touch music and video devices. No agent could have reasonably believed that he was seizing electronic devices used in the commission of the subject offenses.

We now know that most of the iPods seized would be suitable for secure texting, to say nothing of recording meetings.

In any case, Manafort’s focus on the iPods led to an exchange of filings where the government noted he could only suppress them if the government attempted to introduce evidence from them, which they didn’t plan to do in the cases in question (this argument started in DC and as noted got repurposed in EDVA). Manafort tried to use that language, however, to claim the government said they’d never use evidence from the iPods.

The government goes on to note that even if they shouldn’t have taken the iPods, the only recourse Manafort has is to suppression of evidence submitted at trial. And the government won’t be using evidence from the iPods at trial in this case.

In any event, Manafort would not be entitled to suppression even if he were correct. Absent evidence that the government flagrantly disregarded the terms of the warrant (which Manafort does not allege), the remedy for the seizure of materials outside the scope of a warrant is suppression of the improperly seized materials. See Maxwell, 920 F.2d at 1034 n.7. Here, Manafort identifies only the two iPod devices as supposedly falling outside the warrant’s terms, but the government will not be introducing any evidence obtained from those devices at the trial in this case. There is, in short, nothing to suppress. [my emphasis]

I’m a bit confused by the government reference to “two iPod devices,” because Manafort’s new list identifies eight. The discrepancy may arise from iPods that were taken versus those that were simply imaged. [ed: My supposition was correct. Manafort was focused on the two iPods that were physically seized more than the 6 that were imaged, though I only see one–a more recent model 64G one–mentioned in the list of seized devices (PDF 5).]

In any case, Manafort cites the government in his EDVA motion, again focusing on a handful — whether a big or small handful — of iPods as proof that the search was improper. But he doesn’t cite the government motion directly.

In his opposition to Mr. Manafort’s motion to suppress evidence seized from his residence filed in the related matter pending in the U.S. District Court for the District of Columbia, the Special Counsel stated that he would not seek to introduce evidence from the iPods seized from the residence, see United States v. Manafort, Dkt. No. 17-cr-201 (D.D.C.) Doc. No. 284 at p. 18, further underscoring the unreasonableness of their seizure in the first place.

Rather than stating that “the government will not be introducing any evidence obtained from those devices at the trial in this case,” Manafort instead claims that “the Special Counsel stated that he would not seek to introduce evidence from the iPods seized from the residence.”

Mueller’s team only said they wouldn’t be introducing evidence from the iPods “in this case,” not that they wouldn’t introduce evidence from them “in some future case.”

Here’s why I’m so obsessed with Manafort’s iPod habit, aside from mocking the way he stockpiles them the same way he stockpiles antique rugs.

As a number of people have recalled in the wake of the news from the same hearing that the FBI learned of Manafort’s storage facility from AP journalists, Mueller also reportedly learned of the June 9 meeting from the NYT. That’s because, at that early phase of his alleged witch hunt investigation, he was piggy backing on Congressional document requests. The Senate Judiciary Committee received its production from Manafort on the June 9 meeting on July 25, the day Manafort testified to the Senate Intelligence Committee. So Mueller probably received his version around the same time (in any case, no more than a few weeks earlier). That would mean they would have received it close to the same time they obtained the search warrant, also on July 25. Presumably as soon as they saw this, Manafort’s notes on the June 9 meeting taken on some kind of (surely Apple) device, especially the aborted description of something illicit, they would have wanted to obtain the device it was written on (especially if there was reason to believe his lawyers altered the files on the phone in producing it for the committees).

Perhaps, too, Mueller’s team has reason to believe that Manafort recorded the meeting, which would make the interest in iPods even more pressing.

The part of the warrant affidavit that pertains to probable cause to search for materials on the June 9 meeting remains entirely redacted — it’d be in the section starting on PDF 27. So we don’t know whether it mentions Manafort’s notes in that meeting, but if so, then the devices would clearly fall under the warrant’s inclusion of “communications, records, documents, and other files involving any of the attendees of the June 9, 2016 meeting at Trump tower.” All that said, Manafort knows what’s in the redacted passage; he received a completely unredacted copy on April 23 in the DC case, in response to his first motion to suppress where he initially complained about the iPods. So he would know if Mueller’s team mentioned his notes, taken on an Apple device, in the affidavit.

In reality, both of Manafort’s search suppression motions are garden variety, in no way very interesting and unlikely to succeed (indeed, the equivalent motion with respect to his storage unit already failed in DC). That’s why I find Tillman’s observation so interesing; she even told me that Ellis didn’t want to hear any more on the search of the residence, but Manafort’s lawyer nevertheless presented it anyway, effectively laying groundwork for appeal on the damned iPods.

There’s been a lot of talk about why Manafort doesn’t flip now, and I realized when I read Tillman’s piece that this is likely one reason why. Fourth Amendment protection is not associative: Manafort is the only person who can bitch endlessly that the FBI took his iPods. So if there’s anything on there that implicates other people as well as himself, the serial bids to undermine the condo search (which would be followed by another if Mueller ever charges the June 9 meeting) would be the only thing to keep that evidence out of any trial.

I sure do get the feeling there’s something damned incriminating on those iPods.

Peter Strzok’s Out of Scope Polygraph

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I watch shit-show hearings so you don’t need to.

And yesterday’s HJC hearing with Rod Rosenstein and Chris Wray was one of the shitshowiest I’ve sat through. I hope to do a post mapping out the cynical theater the Republicans put on yesterday, and how they succeeded in manipulating the press. But first, I want to point to the one really good point Doug Collins sort of made at the hearing.

In January 2016, Peter Strzok had an out of scope polygraph. And yet, by all appearances, he remained working on a sensitive leak investigation, then moved onto an investigation into one of the most damaging spying operations targeting the United States since the Cold War.

Let’s go back to something I asked, you and I had a conversation about a few months ago. Mr. Strzok’s issue I asked at the time did he have a security clearance. You said you would check. Now it appears that security clearance has been revoked. The concern I have again is again, process, inside the Department of Justice on what happens when you have someone of his caliber, counterintelligence level, this is not a new recruit, this is somebody who’s been around has had sensitive information. And on January 13, 2016, an individual from FBI’s Washington Field Office emailed Mr. Strzok and other employees that their polygraphs were, I think it was, “out of scope.” I asked you about that. And asked you if he had been polygraphed. You didn’t know at the time. It said the polygraph raised flags. Now, my question about this would be you didn’t know about the polygraph at the time. We just assume now that it’s out there, you do. Would the topic of extramarital affair have come up in that polygraph or possibility of extramarital affair come up to to put it out of scope?

[snip]

Do you think it’s interesting you would continue to have someone in an investigation of such magnitude and sensitivity who basically had a failed polygraph or an out of scope polygraph test in which they had to then go back and re-answer or complete sensitive [sic] compartmentalized information request on this. Would they stay in that investigation? And if so were they treated differently because of his position or who he was?

[snip]

Does it not strike you as strange, Mr. Wray, and I was not going here but now you’ve led me here. Does it not strike you as strange  that someone who has had an issue with a polygraph, during the investigation in which you have, in which sensitive information were coming about, in which we’ve now seen the text and other things, what would be–could they just flunk a polygraph and you just keep them on, if they could flunk questions, you keep them on sensitive information simply because that — not speaking of Mr. Strzok here, I’m talking overall policy. Is your policy just to keep people around that lie?

I get that polygraphs come close to junk science and don’t measure what they claim to measure. I get that Collins is just trying to discredit the Mueller investigation.

But if you’re going to require that cleared employees — throughout the federal government — take and pass polygraphs, shouldn’t you act when someone has an adverse polygraph? Especially if you’re the FBI, the agency that investigates everyone else’s clearance?

It turns out, FBI already knows it had a problem on this front. In March of this year, DOJ’s Inspector General completed an investigation into how the FBI responded to adverse polygraphs. Based on a review of what happened with problematic polygraph results from 2014 to 2016 — so covering the period in which Strzok’s took place — DOJ IG found that the FBI was not following protocols. Two of its findings pertain directly to what appears to have happened with Strzok. First, the FBI wasn’t always pulling people off SCI information after someone had failed a poly.

Second, we found that the FBI did not always comply with its own policy governing employee access to Sensitive Compartmented Information, classified national intelligence information concerning or derived from sensitive intelligence sources, methods, or analytical processes, which is to be handled exclusively within formal access control systems established by the Director of National Intelligence. The FBI’s policy generally prohibits access to Sensitive Compartmented Information for FBI employees who have not passed a polygraph examination within a specified period. We identified instances in which employees unable to pass multiple polygraph examinations were allowed to retain access to sensitive information, systems, and spaces for extended periods of time without required risk assessments — potentially posing a security risk to the FBI.

While it appears Strzok had just one problematic polygraph, not multiple ones, this appears to be what Collins is talking about: someone not being pulled off sensitive cases when a polygraph triggers a warning, presumably because the FBI considered them too valuable to deal with according to protocol.

In addition, when the FBI investigated failed polygraph, the IG found, the FBI’s investigators weren’t always accessing all materials available to them.

Third, we found that investigations of unresolved polygraph results did not always draw on all sources of FBI information. We identified communication issues between the FBI’s Analysis and Investigations Unit (AIU), which investigates and makes adjudicative recommendations on employee polygraph results, and other FBI personnel security stakeholders. We also had concerns about the AIU’s thoroughness in leveraging all relevant FBI information during its investigations. These issues prevent the AIU from consistently producing thorough and efficient investigations.

I’m not sure whether this would include reviewing an employee’s FBI communications or not, but it might (and probably should). If FBI had reviewed Strzok’s FBI texts in January 2016, they would have discovered he was conducting an undisclosed extramarital affair, the probable explanation of any finding of deception on his polygraph. They’d also have discovered that Strzok agreed with most of the country about what a buffoon Donald Trump was — which in his case would be problematic given that he was carrying out an investigation into Hillary Clinton.

In September, Michael Horowitz informed Christopher Wray of the problem, as he had immediately informed Wray of Strzok’s problematic texts.

Now, that Strzok had a bad polygraph may create problems for any affidavits that Strzok was an affiant for. If he was specifically asked about extramarital affairs in his interview, and lied about it, that lie will be used to challenge any investigative steps that he swore to. While Strzok’s not known to have been the affiant for key steps (such as the Paul Manafort warrants or the Carter Page FISA order), this could create problems for Mueller elsewhere (a point that Wray and Rosenstein admitted elsewhere).

But there’s the counterpart of this. Pulling Strzok off the Hillary investigation in January 2016 would have identified the source of his apparent deception, and led to minor disciplinary action, after which he would have been back on the beat hunting out foreign spies. Instead, his involvement in these two cases has unnecessarily discredited both of them, even though his investigative actions appear to have been defensible in both cases.

Paul Manafort’s Four Oligarch Search Warrant

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In advance of a suppression hearing before the mercurial TS Ellis on Friday, Mueller’s team further unsealed the materials surrounding the two warrants at issue — of Manafort’s storage container, and of his Condo. In the unsealing of the latter, they disclosed this language from a July 2017 affidavit.

However, in the Manafort Interview conducted that same year [2014], Manafort told the FBI that he did significant work for Deripaska, a Russian oligarch. And in March 2017, in response to press reports concerning a written annual contract between Manafort and Deripaska, Manafort publicly confirmed that he had provided investment consulting services to Deripaska interests. [Redacted] also told the FBI that Deripaska helped fund Manafort’s Ukrainian work when it began in 2005-06.4 And the 2010 tax returns for a company jointly owned by Manafort and his wife — John Hannah, LLC® — reveals a $10,000,000 loan to the company from a “Russian lender.” A court-authorized search in May 2017 of a storage locker in Virginia used by Manafort revealed documents that show that the identity of the Russian lender was *Derapaska.”

4 [Entirely redacted footnote]

The news of a $10M loan from Deripaska — which the FBI obtained via the other search warrant Manafort is challenging — is certainly newsworthy.

But I’m interested in what goals — whether legal, PR, or other — Mueller’s team has in unsealing this information for the Friday hearing, especially when it would have been so damn useful in the challenge to Mueller’s authority that Ellis just rejected, given how it makes the tie between the Party of Regions work and the willingness to “collude” with Russians to help Trump win much more directly.

But it’s not just Deripaska. The July affidavit names four Russian or Ukrainian oligarchs. In addition to Deripaska, there’s this reference to Rinat Akhmetov.

This redacted reference to Dmitri Firtash.

And this likely accidental newly unredacted reference to Aras Agalarov, the guy behind the June 9 meeting.

We knew of all these ties. Now we know they’re all part of what the Mueller team is looking at as they continue to investigate Manafort.

Yet only the detail that it took the May 2017 search on Manafort’s storage unit to confirm that Deripaska had bankrolled the Party of Regions work(and therefore to demonstrate the import of Konstantin Kilimnik being named a co-conspirator in Manafort’s efforts to tamper with witnesses), as well as that that detail came from a cooperating witness, would help the government demonstrate that the two searches were valid.

The materials also include the warrant returns, which probably will be discussed. In addition to proof that only a fraction of the boxes from the storage facility were seized, which has been clear for some time, the July return provides far more detail on the slew of devices the government seized. They show that all but possibly one of the iPods seized are recent enough to be used for secure texting.

The imaging or seizure of all these iPods (there are more!) had been one complaint of Manafort’s. Coupling these technical details with the reaffirmation that Mueller was searching for evidence on the June 9 meeting, where Manafort is known to have taken notes on a device, would justify seizing such things.

The warrant return also reveals that one of Manafort’s iPhones doesn’t have an Apple ID.

This, however, may be my favorite detail from the search warrant return.

Hmm.

Also, the latter search return makes it clear that FBI carefully segregated any materials that might be privileged.

In any case, while the search warrant return, coupled with the unsealed parts of the affidavit, will certainly be useful Friday. Six pages of the affidavit, including all discussion of what the government knew about the June 9 meeting on July 26, 2017, remain redacted. Remember, this search happened after Manafort turned over materials to SSCI and was interviewed, but before the SJC appearance he ended up canceling.

All that said, I wonder whether this unsealing has as much to do with signaling others — maybe even people who know about any Hyatt Regency Kyiv meetings that might be of interest — what the government seized in its search of Manafort’s home.

In Trumpian Fashion, Paul Manafort Wins by Losing on Challenge to Mueller

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Remember how Republicans were gleeful over the ass-kicking T.S. Ellis gave Mueller’s team arguing over the scope of the Special Counsel’s authority back in May? As predicted by close EDVA watchers, Ellis ruled yesterday against Paul Manafort, finding that the tax fraud investigation into Manafort was a logical part of understanding whether Trump’s campaign colluded with Russia to win the election.

The opinion is actually a political shitshow, though, which guarantees both a Manafort appeal (if he continues his valiant effort to win a future Trump pardon using stall tactics, anyway) and Congressional gamesmanship using it.

Ultimately, Ellis rules (as Amy Berman Jackson already had) that Mueller was authorized to investigate Manafort, in this case for tax fraud, based on his primary authority to investigate the ties between Trump’s campaign and Russia. Ellis makes the case that this investigation falls under Mueller’s primary grant perhaps even more plainly than ABJ did.

Given that the Special Counsel was authorized to investigate and to prosecute this matter pursuant to ¶ (b)(i) of the May 17 Appointment Order and the August 2 Scope Memorandum, that conclusion is dispositive and defendant’s arguments with respect to ¶ (b)(ii) of the May 17 Appointment Order need not be addressed.

[snip]

To begin with, defendant concedes that ¶ (b)(i) is a valid grant of jurisdiction. Specifically, defendant acknowledges that the Acting Attorney General acted consistently with the Special Counsel regulations when the Acting Attorney General authorized the Special Counsel to investigate the matters included in ¶ (b)(i) of the May 17 Appointment Order, namely “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.” May 17 Appointment Order ¶ (b)(i). Thus, the only issue is whether the Special Counsel’s investigation and prosecution of the matters contained in the Superseding Indictment falls within the valid grant of jurisdiction contained in ¶ b(i) of the May 17 Appointment Order.

It does; the Special Counsel’s investigation of defendant falls squarely within the jurisdiction outlined in ¶ b(i) of the May 17 Appointment Order, and because ¶ b(i) was an appropriate grant of authority, there is no basis for dismissal of the Superseding Indictment on this ground. Specifically, in the May 17 Appointment Order, the Acting Attorney General authorized the Special Counsel to investigate, among other things, “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump … .” May 17 Appointment Order ¶ (b)(i). It is undisputed that defendant is an “individual[] associated with the campaign of President Donald Trump[;]” indeed, defendant served as the chairman of President Donald Trump’s campaign from March 2016 until August 2016. Moreover, the Special Counsel’s investigation focused on potential links between defendant and the Russian government. In particular, the Special Counsel investigated defendant’s political consulting work on behalf of, and receipt of substantial payments from, then-President Victor Yanukovych of the Ukraine and the Party of Regions, Yanukovych’s proRussian political party in the Ukraine. See Superseding Indictment ¶¶ 10-11. To be sure, history is replete with evidence of the existing and longstanding antagonism between the Ukraine and Russia. Indeed, armed conflict in the eastern Ukraine is still underway.19 Nonetheless, the fact that the Yanukovych was a strongly pro-Russian President warranted the investigation here. The fact that the Russian government did not make payments to defendant directly is not determinative because the text of the May 17 Appointment Order authorizes investigation of “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.”

This language is all Ellis needed to rule against Manafort’s challenge. His discussion of the alternate issues is welcome, but superfluous.

But along the way, Ellis engages in a bunch of often inaccurate blather which serves mostly to foment the kind of politicization he claims to despise.

About the only neutral thing he does in his long discussion of special counsels is to give Steven Calabresi the ass-kicking he deserved for an op-ed that Kellyanne Conway’s spouse George condemned for its “lack of rigor.”

Yet, even the current Special Counsel regulations are not entirely free from constitutional attack. Indeed, Professor Steven Calabresi has argued that the appointment of the Special Counsel may run afoul of the Appointments Clause of the Constitution because the Special Counsel is a principal, not an inferior officer, and therefore must be appointed by the President with the advice and consent of the Senate. See Steven G. Calabresi, Mueller’s Investigation Crosses the Legal Line, Wall Street J. (May 13, 2018) https://www.wsj.com/articles/muellersinvestigation-crosses-the-legal-line-1526233750; see also Steven G. Calabresi, Opinion on the Constitutionality of Robert Mueller’s Appointment (May 22, 2018) https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3183324. Defendant does not argue that the appointment of the Special Counsel violates the Appointments Clause of the Constitution, so that particular objection need not be addressed in detail here, but it is worth noting that such an objection would likely fail. The Special Counsel appears quite plainly to be an inferior officer. He is required to report to and is directed by the Deputy Attorney General.

But the rest of his long history of special counsels plays to the partisan assault on prosecutorial independence led by Republicans. For example, Ellis gets key distinctions about the current Special Counsel from past ones wrong, and even argues that this one, which meets bi-weekly with top DOJ officials and has provided a shit-ton of documents to Congress to review, is “in some ways less accountable than the independent counsel of the past,” in part because it gave annual progress reports to Congress.

He suggests that a Special Counsel’s hiring choices might inject bias into the investigation, echoing Trump’s inaccurate 13 Angry Democrats line.

The Special Counsel must also hire others to assist in the investigative process, and those applying to join the investigation may have their own biases and incentives to prosecute the target of the investigation, or their self-selection into the investigation may create an appearance of bias. See Akhil Amar, On Impeaching Presidents, 28 Hofstra L. Rev. 291, 296 (1999) (“An ad hoc independent counsel must build an organization from scratch, and those who volunteer may have an ax to grind, since the target is known in advance.”). In this case, many of the individuals working for the Special Counsel have donated to or worked for Democrats in the past, creating a public appearance of possible bias. See Alex Hosenball et al., Meet special counsel Robert Mueller’s prosecution team, ABC News (Mar. 17, 2018) https://abcnews.go.com/Politics/meet-special-counsel-robert-muellers-prosecutionteam/story?id=55219043. Similar accusations of bias were made against Kenneth Starr during the Whitewater investigation, with a number of Democrats criticizing the appointment of Kenneth Starr because of his connections to the Republican Party. See David Johnston, Appointment in Whitewater Turns into a Partisan Battle, N.Y. Times (Aug. 13, 1994) https://www.nytimes.com/1994/08/13/us/appointment-in-whitewater-turns-into-a-partisan-battle. html. Both cases highlight the fact that even the selection of the Special Counsel and his or her subordinates can provide grist for the media mill, heightening partisan tension and increasing the likelihood that substantial portions of the public will perceive work of the Special Counsel as partisan warfare.

He argues that it would be better to investigate election interference with a bipartisan commission than a Department of Justice made up of experienced professionals bound by certain guidelines and precedents, something that would look a lot like the Intelligence Committee reviews which exhibit varying degrees of dysfunction.

The Constitution’s system of checks and balances, reflected to some extent in the regulations at issue, are designed to ensure that no single individual or branch of government has plenary or absolute power. The appointment of special prosecutors has the potential to disrupt these checks and balances, and to inject a level of toxic partisanship into investigation of matters of public importance.27

27 A better mechanism for addressing concerns about election interference would be the creation of a bipartisan commission with subpoena power and the authority to investigate all issues related to alleged interference in the 2016 Presidential election. If crimes were uncovered during the course of the commission’s investigation, those crimes could be referred to appropriate existing authorities within the DOJ.

All that’s ridiculous enough. But perhaps the most alarming thing Ellis does is use the ex parte review he did of an unredacted copy of Rod Rosenstein’s August 2, 2017 memo to telegraphically confirm that Trump is named as a subject of investigation. He does that, I argue, by putting footnotes 14 and 15 right next to each other.

With respect to the defendant, the August 2 Scope Memorandum identified several allegations, including allegations that the defendant:

[c]ommitted a crime or crimes by colluding with Russian government officials with respect to the Russian government’s efforts to interfere with the 2016 election for President of the United States, in violation of United States law;

[c]ommitted a crime or crimes arising out of payments he received from the Ukrainian government before and during the tenure of President Viktor Yanukovych[.] Id. at 2.

The August 2 Scope Memorandum noted that these allegations against the defendant “were within the scope of [the Special Counsel’s] investigation at the time of [his] appointment and are within the scope of the [Appointment] Order.” Id. at 1. Several months later, on February 22, 2018, the Special Counsel charged defendant15 with, and a grand jury indicted defendant on (i) five counts of subscribing to false income tax returns, in violation of 26 U.S.C. § 7206(1) (Counts 1-5); (ii) four counts of failing to file reports of foreign bank accounts, in violation of 31 U.S.C. §§ 5314, 5322(a) (Counts 11-14); and (iii) nine counts bank fraud and conspiracy to commit bank fraud, in violation of 18 U.S.C. §§ 1344, 1349 (Counts 24-32).

14 Prior to the hearing, the Special Counsel submitted the August 2 Scope Memorandum in this record, albeit with significant redactions. In the course of the hearing on defendant’s motion to dismiss the Superseding Indictment, the Special Counsel was ordered to produce an un-redacted copy of the August 2 Scope Memorandum. The Special Counsel complied with this directive, and a review of the un-redacted memorandum confirms that the only portions pertinent to the issues in this case are those already available in this public record and excerpted above.

15 Given the investigation’s focus on President Trump’s campaign, even a blind person can see that the true target of the Special Counsel’s investigation is President Trump, not defendant, and that defendant’s prosecution is part of that larger plan. Specifically, the charges against defendant are intended to induce defendant to cooperate with the Special Counsel by providing evidence against the President or other members of the campaign. Although these kinds of high-pressure prosecutorial tactics are neither uncommon nor illegal, they are distasteful.

This passage states that everything pertinent to “the issues in this case” are public, which actually falls short of stating that none of the rest of them pertain to Manafort. Then, visually, the next line after describing the memo, Ellis states that “even a blind person can see that the true target of the Special Counsel’s investigation is President Trump.”

We are all blind to what’s behind those redactions, he is not, but even we can see, Ellis suggests, that Trump is the target. From that Ellis goes on to suggest that pressuring someone to flip is “distasteful,” which I hope gets quoted back at him liberally by people are are not the President’s former campaign manager.

I mean, it is true that we all knew that Trump’s obstruction was, by August 2, 2017, part of the investigation (and that since then his “collusion” has likely been added to Rosenstein’s memos). It is by no means a given that proof of “collusion” will go beyond the people, including Manafort, who may have orchestrated it. But Ellis puts the suggestion, visually at least, into the record for those of us who otherwise can’t see it, that “collusion” itself is about Trump.

All of which makes this legal opinion more about further embroiling political strife Ellis claims to dislike than about the law.

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