2016 Presidential Election Archives - Page 145 of 179

It’s Not Hannity’s Pee Tape that Matters

April 17, 2018/114 Comments/in 2016 Presidential Election, Mueller Probe, WikiLeaks /by emptywheel

Late afternoon on Sunday, Margaret Sullivan wrote a column arguing that Donald Trump might survive his own Saturday Night Massacre of firing Rod Rosenstein or Robert Mueller. The reason Trump might survive where Nixon didn’t, she argues, is Sean Hannity.

Nixon didn’t have Fox News in his corner.

President Trump does — and that might make all the difference if he were to fire Deputy Attorney General Rod J. Rosenstein or even special counsel Robert S. Mueller III.

The pro-Trump media, led by Fox, would give cover, and huge swaths of Americans would be encouraged to believe that the action was not only justified but absolutely necessary.

You can see it coming.

Night after night — for many months — Trump’s sycophant-in-chief, Sean Hannity, has been softening the ground. And his message is sinking in.

In a recent Reuters/Ipsos poll, three of four Republicans said they believed the Justice Department and the FBI are actively working to undermine Trump.

“Hannity has been poisoning the well for Mueller’s ‘deeply corrupt’ investigation and laying the groundwork to support the president if he seeks an authoritarian recourse,” wrote Matthew Gertz, of the progressive watchdog group Media Matters for America. That was back in October.

Six months, five convictions and more than a dozen indictments later, that poison has done its job.

Less than 24 hours later, Michael Cohen’s lawyer revealed the name of the third client to whom Cohen claimed to have provided legal advice he wanted to protect under attorney-client privilege, a person who — Cohen had claimed in a brief Sunday, hadn’t wanted his name disclosed. “The client’s name that is involved is Sean Hannity.

In response to the ensuing uproar over learning he was the hidden Client 3, Hannity offered a series of contradictory statements, presumably designed to tamp down any speculation that Cohen had negotiated a hush payment for the star, but which only served to make Cohen’s legal claims more specious.

Michael Cohen has never represented me in any matter. I never retained him, received an invoice, or paid legal fees. I have occasionally had brief discussions with him about legal questions about which I wanted his input and perspective.

I assumed those conversations were confidential, but to be absolutely clear they never involved any matter between me and a third-party.

In response to some wild speculation, let me make clear that I did not ask Michael Cohen to bring this proceeding on my behalf, I have no personal interest in this proceeding, and, in fact, asked that my de minimis discussions with Michael Cohen, which dealt almost exclusively about real estate, not be made a part of this proceeding.

As I joked, Hannity said he had eight lawyers. I wonder which three different lawyers wrote these statements, and whether one of them was the other lawyer he shares with Donald Trump, Jay Sekulow.

So Cohen advised Hannity “almost exclusively about real estate,” which in this crowd sometimes means money laundering, and not about buying off Playboy bunnies.

But what are the other conversations about?

Hannity has played even more of a role in protecting Trump than Sullivan makes out. It’s not just that he fed the uproar over Trump’s lawyer being raided. But he did an interview with Julian Assange in January 2017 that helped seed the narrative that Russia didn’t hand the DNC files to Wikileaks. More grotesquely, Hannity fed the conspiracy theories about Seth Rich (I hope the multiple entities that are suing Hannity over that will demand discovery on any claimed privileged conversations about the topic with Trump’s lawyer).

Sure, the matters on which Cohen purportedly gave legal advice to Hannity might be about buying a condo.

But given the effort Cohen made to protect those conversations from the eyes of the FBI, they also might involve coordination on some of the more insidious pushback on the Russian story.

SDNY Will Be Forced to Talk about Crimes Involving the President Today

April 16, 2018/147 Comments/in 2016 Presidential Election, emptywheel, Financial Fraud, Mueller Probe /by emptywheel

At 2PM today, in a court room in southern Manhattan, a lawyer someone hired last Wednesday to represent Donald Trump, Joanna Hendon, will push prosecutors from the Southern District of New York to explain that they have probable cause to believe crimes involving the president have been committed. Here’s why.

Last Monday, the FBI served Michael Cohen warrants listing crimes known to pertain to his taxi medallion businesses and his efforts to suppress information about Trump’s embarrassing sexual behavior, though the warrants themselves probably listed bank fraud, wire fraud, and campaign finance violations as the crimes. “[T]he riders to the search warrants – copies of which have been provided to Cohen – identify the federal criminal statutes under which Cohen is being investigated,” the government emphasized in its memo.

The taxi medallion stuff has no known tie to Trump. The hush arrangements clearly do, but at least in the case of Stormy Daniels, Trump and Cohen have both publicly denied an attorney-client role, which the government pointed out. “President Trump has publicly denied knowing that Cohen paid Clifford, and suggested to reporters that they had to ‘ask Michael’ about the payment.” It’s certainly possible Cohen has claimed to have firewalled Trump in other hush payments in the same effort to avoid campaign finance violations; to the extent that Trump has not been a formal party in those agreements, he may have likewise waived privilege.

And then there’s the crime-fraud exception to privilege, which the government invokes four times in its response to Cohen, describing how an investigative team can legally access such materials without approval from Cohen or his client if a judge okays it.

[T]he Filter Team will review them to determine whether the material is: (1) not privileged, (2) potentially privileged, (3) requires redaction, and/or (4) potentially meets an applicable exception (for example, the crime-fraud exception). To be clear, under no circumstances will a potentially privileged document or a document potentially subject to the crime-fraud exception be provided to or described to the Investigative Team without the consent of the privilege holder or his/her counsel, or the court’s approval. If the Filter Team is unable to clarify a document’s category, or if there is an exception to the privilege that applies to particular material, such as the crime-fraud exception, or any waiver of the privilege – the Filter Team will (1) confer with counsel for the privilege holder at the appropriate time and before any such material is shared with the Investigative Team and, if no agreement can be reached, submit the material under seal to an appropriate court for a determination as to whether the material is privileged;

[snip]

In the face of inaccurate and/or overbroad claims of privilege, the USAO-SDNY would be seriously prejudiced if it were not able, through a Filter Team, to evaluate the validity of such claims. As Judge Barbara Jones explained in permitting review by a filter team, “[w]ithout the benefit of such a review, the privilege team would likely be unable to argue, for example, that no attorney-client privilege attached to the communication because of the crime-fraud exception, or that a document should be available for use at trial, regardless of work-product contents, because of necessity and unavailability by other means.” [my emphasis]

Even though the FBI informed Cohen he was raided as the subject of an investigation pertaining to his own business, he fought the memo by invoking the part of the US Attorney’s Manual pertaining to witnesses, not subjects, which SDNY corrected.

Cohen’s reliance on the USAM misplaced, but he invokes the wrong section. Cohen cites to section 9-19.220 of the USAM, which, as Cohen points out, applies to “attorneys who are not suspects” of a criminal investigations. See Br. at 22; USAM § 9-19.220 (noting the procedure to be followed when privileged materials are sought from a “disinterested third party”). Cohen, however, is not the disinterested third party contemplated by the USAM. The applicable provision is that which applies when the attorney is a “suspect, subject or target” of the investigation.

And even though he was told he was being investigated for crimes unrelated to it, his lawyers nevertheless treated the raid as part of the Mueller investigation. Their description of communications with SDNY, for example, begins this way, followed by several redacted lines.

On April 9, 2018, Mr. Cohen’s legal counsel was advised in a telephone call by an Assistant United States Attorney from the Southern District of New York, that the Office of Special Counsel (Robert Mueller) had “referred a portion of” the subject matter of the warrants to the U.S. Attorney’s Office for the Southern District of New York. Id. ¶ 31. Each page of the attachments to the search warrants contains a footer with the date “2017.08.02” (August 2, 2017)—that happens to be the same date that the Office of Special Counsel’s jurisdiction was amended by the Deputy Attorney General. One obvious and credible explanation is that the attachments listing the subject matter of the warrant used by the U.S. Attorney’s Office were drafted by the Office of Special Counsel as earlier as that date. [three lines redacted]

The government, in addition to mocking Cohen’s assumption based off the footer metadata, reveals what that redaction hides: Cohen speculated, “see Br. at 10, that the SCO drafted the search warrants.”

Nevertheless, both sides treat Cohen’s attempt to treat this as a question of the Russia investigation seriously. The government provides three pieces of evidence to describe why Cohen couldn’t be trusted to turn these materials over pursuant to a subpoena — because the crimes themselves involve fraud and deception, because he had, by Friday, already invoked the Fifth in the Stormy Daniels civil suit suggesting he’d withhold documents here as well, and because a tantalizingly redacted passage that suggests Cohen or someone else has already started destroying evidence…

In addition, however, the government does contest Cohen’s claim that he fully cooperated with any of the three Russia investigation his lawyer addresses at length in his declaration, which (having treated this raid as part of the Mueller investigation rather than pertaining to separate crimes) he uses to argue that Cohen could be trusted to turn over documents willingly. For example, the government notes that Cohen himself has said he didn’t cooperate with the Congressional investigations (and wasn’t treated as a target).

It appears that Cohen was not a target of those investigations. Additionally, while Cohen claims in his motion to have been cooperative, he offers no support for this assertion. Publicly, Cohen suggested the opposite, telling Time Magazine that he declined a voluntary request from Congress because it was “too broad.”

Even better, and critically important to the Trump filing submitted last night, is where SDNY fact checks the Cohen claim, backed by his lawyer’s sworn declaration, that he hadn’t fully cooperated with Mueller’s investigation because Mueller asked for everything.

Cohen also states that the SCO “had requested that the Trump Organization produce all of Mr. Cohen’s communications that were within the Trump Organization’s custody, possession, or control,” and that Cohen objected “on the grounds that [the request] called for production of privileged communications, among other things.” (Br. 8-9). Although in the ordinary course, the USAO-SDNY would not comment on investigative requests or demands made to third parties, particularly those from a separate office undertaking its own, independent investigation, in light of the representations made by Cohen’s counsel, USAO-SDNY contacted the SCO about these representations and understands they are not accurate. In particular, the SCO did not request that the Trump Organization produce “all communications” by Cohen in the Trump Organization’s possession or control irrespective of subject matter or privilege. Indeed, the request made by the SCO was considerably narrower, and specifically omitted, among other things, any documents that were protected by privilege or of a purely personal nature. Cohen nonetheless objected to that request for documents and, after discussions between Cohen’s counsel and the SCO, the SCO decided not to seek production at that time. That Cohen sought to preclude the Trump Organization from producing these third party communications belies both (i) his general assertion of cooperation, and (ii) his stated principal interest in protecting attorney-client communications. Indeed, a careful review of Cohen’s motion papers reveals that he does not purport to have personally produced any documents to the SCO.

The intransigence pertaining to Cohen’s documents involving the Trump Organization continued over to last week’s response. While the Trump Organization (which I suspect is really who hired Hendon) did not request to be party to this fight, they did send SDNY a letter last week demanding that it return every document involving Cohen and the Trump Organization.

USAO-SDNY has already received correspondence from counsel for the Trump Organization (Cohen’s former employer), which referenced the searches conducted of Cohen’s premises and claimed:

We consider each and every communication by, between or amongst Mr. Cohen and the Trump Organization and each of its officers, directors and employees, to be subject to and protected by the attorney-client privilege and/or the work-product privilege.

As a reminder: in March, Mueller subpoenaed the Trump Organization for documents, including but not limited to Russia. That’s one reason, I suspect, that Cohen believes this raid is partly about supporting Mueller’s investigation (I wonder whether Trump Org is the entity that has started destroyed documents?). And that’s one reason, I suspect, that Cohen’s team made a bid to review the seized documents for responsiveness (they use the word 13 times in their filing) before SDNY’s taint team gets the documents.

That is, in addition to whatever other crimes Cohen has facilitated for the Trump Organization, he wants to make sure that the government can’t use materials seized in this raid to investigate other crimes, such as those Cohen might be suspected of in relation to the Mueller investigation.

Having failed to cooperate with both the congressional and Mueller investigations, which is one reason SDNY cites for having used a warrant rather than a subpoena, Cohen now wants to reset the clock so he can treat this raid as a subpoena rather than a warrant so he gets to decide what is responsive to the crimes he is being investigated for or even to the demands of the Russia investigation.

Frankly, to the extent that Mueller might use Cohen’s own crimes as an excuse to search his documents (which the FBI seems to have sorted, even to the level of describe specific checks on the search warrant returns) and his devices (which they seized) to find materials relating to the Russian investigation, I’m sympathetic to Cohen’s case. Sure, Mueller can and may already be working on obtaining warrants to search for materials he might use now that the devices are in the government’s possession. But given how advanced the Mueller investigation is, it seems the government should be expected to obtain separate probable cause warrants rather than rely on plain view doctrine to search for materials on Cohen’s devices relating to Russia.

All of which brings us to the letter Hendon submitted last night on behalf of Trump personally. Herndon actually goes several steps further than Cohen’s team did (while he asked to do the first review, he made a concerted case to appoint a Special Master to do it), asking that Cohen get copies of the seized materials, after which Cohen will decide what pertains to Trump, which Trump will then get to review to decide whether he will assert privilege, only after which SDNY will be permitted to object.

1. Enjoining the government from using a taint team to conduct an initial privilege review;

2. Directing the government to provide Mr. Cohen and his counsel with a copy of the materials seized from Mr. Cohen by the government on April 9, 2018;

3. Directing Mr. Cohen and his counsel, after the government provides Mr. Cohen and his counsel with a copy of the seized materials, to identify to the President all seized materials that relate to him in any way and to provide a copy of those materials to him and his counsel;

4. Directing the President and his counsel, after they review the materials provided by Mr. Cohen, to identify for the government’s taint team all materials over which the President asserts privilege;

5. Authorizing the government’s taint team to raise any objections to the President’s assertions of privilege with the Court; and

6. Prohibiting the government’s taint team from providing the Investigation Team with (a) any materials over which the President asserts a privilege without objection from the taint team, and (b) any materials that the Court rules are privileged over the taint team’s objection.

This effectively flips the process on its head, turning the seizure back into a subpoena situation. And while Herndon doesn’t make this as obvious as Cohen’s team did, they intend the Cohen and Trump reviews to include a review of responsiveness as well as privilege.

The level of protection provided to the privilege-holder in the familiar context of a grand jury subpoena duces tecum should be accorded to the President here. When a grand jury subpoena for documents is served, the recipient, with the advice of his counsel, reviews the documents in his possession and produces the responsive documents, with one critical exception: with notice to the government, the recipient withholds all responsive documents that he and his counsel conclude are subject to a privilege, identifying such documents in some fashion without disclosing the privileged contents, often by means of a privilege log. [my emphasis]

Curiously, Herndon doesn’t contest that the government has good reason to believe materials have gotten destroyed, but says that now that the government has obtained the documents, any risk of destruction is gone. Here’s the entirety of the section where Herndon addresses the government’s need to seize these documents.

Of course, here, the government chose not to serve a grand jury subpoena, but instead to execute search warrants on an attorney’s office, residences, and effects. The government asserts that this truly extraordinary measure was necessary to prevent the destruction of evidence. (Gov’t Opp. at 14.) But even if that is true, the exigency has dissipated entirely, as the seized materials are now in the government’s control, beyond any of the potential misuses of the materials that motivated the seizure in the first place. Therefore, the fact that the government seized privileged documents rather than subpoenaing them is now irrelevant – except for the profoundly important privilege issues that the government’s unilateral and peremptory action has raised.

The government insists that it is “entitled” to the seized materials. (Id. at 2, 19.) However, to the extent the government seized privileged information, it is not entitled to have that information, much less review it. See, e.g., von Bulow, 828 F.2d at 99 (recognizing the “urgent” “need for timely protection [from disclosure] … where the discovery sought is … blanketed by the absolute attorney-client privilege”). It simply cannot be the case that by acting in such an aggressive, intrusive, and unorthodox manner, the government has somehow created an entitlement on its own part to eliminate the President’s right to a full assertion of every privilege argument available to him. Indeed, if the Court were to endorse the use of a taint team under these circumstances, raids of law offices would likely become more commonplace, as they would permit the government to wrest from the privilege-holder the ability, in the first instance, to assert privilege over documents and rightfully withhold them.

The government has done what it has done, and it has thereby protected against every notional evil it could have articulated in favor of its action. It no longer has any cognizable interest in proceeding by any procedure other than that which is typically employed to ensure that the attorney-client privilege is fully protected.

Note what has fallen out of the discussion of exigency? The crime-fraud exception, which SDNY had made clear it expected to find ample evidence of.

Elsewhere, Herndon does mention SDNY’s expectations of finding materials that fall under the crime-fraud exception, but she suggests that a taint team cannot be trusted to access the documents first because it might provide the investigative team documents that are clearly not privileged, a non sequitur to the point of crime-fraud exception documents.

The government has assured the Court that “under no circumstances will a potentially privileged document or a document potentially subject to the crime-fraud exception be provided to or described to the Investigative Team without the consent of the privilege-holder or his/her counsel, or the court’s approval.” (Gov’t Opp. at 6.) Presumably the government intends by those words to comfort the Court, but the government simply cannot make that guarantee. See, e.g., Lek, 2018 WL 417596, at *1-3. As discussed above, under the government’s proposal, the taint team will turn over to the Investigative Team all materials that the taint team itself deems not privileged. If such materials contain any privileged information that the taint team failed to identify, the President’s privilege will be irremediably violated. The President, the public, and the government have a vital interest in ensuring the integrity of the privilege review process, and the taint team procedure is plainly inadequate to the task. [my emphasis]

Remarkably, Herndon suggests that the public (!!!) has an interest in letting criminal suspect Michael Cohen, who has already proven uncooperative with valid investigations, sort through his materials to decide whether the government should have documents that prove he abused his position as a lawyer to commit fraud on behalf of a client.

As the government has said, it’s not clear Cohen has any clients besides Donald Trump.

Which is why I suspect SDNY is going to provide details in court today of the crimes that it has probable cause to believe were committed. Because, in the face of an otherwise compelling claim that this is an exceptional case, what SDNY is investigating is still that Cohen served not to provide legal advice to Donald Trump, but to provide legal cover for fraud.

I have no idea what Kimba Wood will do in response (and I suspect SDNY will challenge the legal precedents Herndon has invoked).

But I suspect we’re going to hear a lot more about how SDNY has reason to believe that Michael Cohen hasn’t been serving as a lawyer for Trump, he has been serving as a fixer for him.

And Stormy Daniels will be looking on as evidence of that fact.

Update: In their filing laying out the scope of what Michael Cohen considers privileged this morning, his lawyers make their concerns about plain view doctrine even more explicit.

The choice here is between allowing the Government to make an end run around the Fourth Amendment by scooping up and viewing all of the communications seized in the search of a lawyer’s office (in this case, all of the documents and data of the President’s personal attorney) regardless of whether the documents seized were the subject of the judge’s original probable cause determination, or appointing a neutral third party to conduct that review. If the government can obtain a search warrant for particular items but then seize and review everything in an attorney’s office, the protections of the Fourth Amendment are meaningless.

[snip]

In addition, a Special Master should be appointed in the interest of the administration of justice to ensure that the Government does not have access to materials for which they have not yet shown would be obtained through a valid search warrant through a showing of probable cause. In obtaining the search warrant, the Government had to make a showing of probable cause that Mr. Cohen is in possession of evidence of a crime. The search warrant is designed to allow the Government to obtain that material – and that material only.

And they again invite SDNY to lay out evidence that this stuff isn’t covered under the crime-fraud exception.

Moreover, without proffering any evidence of its applicability, the government referred to the “crime-fraud” exception in its opposition brief, (Gov’t Opp. Br. at 6, 10), and during oral argument. 4/13/18 Tr. at 28. The government also referred to its search warrant application – which we have never seen – as including “evidence for the crimes that were set forth in [a] detailed affidavit.” 4/13/18 Tr. at 60. Since there is, according to the government, an “ongoing grand jury investigation” (which is required to remain secret), it would most certainly be embarrassing and “detrimental” to Mr. Cohen’s clients if he were to reveal their identities publicly.

SDNY Doesn’t Think Michael Cohen Is Much of a Lawyer

April 15, 2018/84 Comments/in 2016 Presidential Election, emptywheel, Financial Fraud, Mueller Probe /by emptywheel

In this post, I noted that a bunch of what got seized in a raid of Michael Cohen’s home and office on Monday wouldn’t be privileged.

But boy oh boy was I being nice compared to the way the prosecutors from Southern District of New York dismissed the notion that Cohen was much of a lawyer in this filing opposing Cohen (and Trump’s) efforts to prevent FBI from going through Cohen’s seized documents.

Housekeeping

Before I get into that, a few clarifications on questions we’ve had. First, the filing makes it clear that the referral from Mueller’s office came months ago. SDNY has their own taint team.

The FBI agents who seized materials pursuant to the search warrants were filter agents who are not part of the investigative team and have been walled off from those AUSAs or FBI personnel assigned to the investigation (the “Investigative Team”).

The venue in SDNY is primary. Indeed, they mock Cohen’s representation that Mueller’s team wrote this warrant application by pointing out his misunderstood the metadata of it.

Although Cohen accurately states that the Special Counsel’s Office (“SCO”) referred this investigation to the USAO-SDNY, the investigation has proceeded independent from the SCO’s investigation. Cohen’s speculation, see Br. at 10, that the SCO drafted the search warrants is unfounded. The date in the bottom corner of the attachments is the date that the USAO-SDNY’s standard form search warrant rider was most recently updated for use by the office.

Given that Mueller handed off this part of the investigation entirely, then, it’s highly unlikely Mueller thinks there’s evidence of coordination between Wikileaks and the Access Hollywood video, as I laid out here (which is not to say Mueller isn’t happy that SDNY has raided Cohen).

In addition, the filing makes it clear that Geoffrey Berman has recused, with Robert Khuzami acting as US Attorney for this investigation.

The filing also reveals the scope of the search: “Michael Cohen’s residence, hotel room, office, safety deposit box, and electronic devices,” even while noting that they limited their search to certain categories of documents.

Not much of a lawyer

The lawyers from the famously self-important SDNY spend much of their brief not just demonstrating that Cohen was not serving as an attorney in the seized materials, but that he’s not much of a lawyer in any case.

The repeatedly note he has few if any clients besides Trump.

Based on information gathered in the investigation to date, the USAO-SDNY and FBI have reason to believe that Cohen has exceedingly few clients and a low volume of potentially privileged communications.

In a long passage arguing — as I did — that much of what was seized would not be protected by privilege, they sniff about how Cohen differs from a “traditional law office,” mocking the idea that he “holds himself out as a practicing attorney.”

Although Cohen is an attorney, he also has several other business interests and sources of income. The searches are the result of a months-long investigation into Cohen, and seek evidence of crimes, many of which have nothing to do with his work as an attorney, but rather relate to Cohen’s own business dealings. As set forth below, unlike a search of a traditional law office, the information gathered thus far in the investigation suggests that the overwhelming majority of evidence seized during the searches will not be privileged material, but rather will relate to Cohen’s business dealings.

Nevertheless, because Cohen holds himself out as a practicing attorney, each of the search warrants contains the following provision: Additionally, review of the items described in this Attachment shall be conducted pursuant to established procedures designed to collect evidence in a manner reasonably designed to protect any attorney-client or other applicable privilege.

When appropriate, the procedures shall include use of a designated “filter team,” separate and apart from the investigative team, in order to address potential privileges.

In one redaction, they suggest something about Cohen’s recent behavior suggests he couldn’t be practicing much law.

Cohen’s discussion in his own memo of the Strategic Partnership between him and Patton Boggs is entirely redacted (it may be included in the significant redaction on page 3), but in the government’s memo much of it remains unredacted. Which means this redaction might state, in more damning terms, what is described elsewhere — that they cut him off on March 2, in part because he had brought in only 5 clients for the $500,000 a year he got paid.

SDNY goes on at more length about how weak Cohen’s claim that his marketing relationship with Patton Boggs creates a great risk of privilege in the materials that got seized.

Second, Cohen’s claim to have privileged communicatons through a law firm that he describes as “Law Firm-1” omits facts about his relationship with Law Firm-1 that render it unlikely that a significant volume of attorney-client privileged material – if any – was seized in connection with Cohen’s relationship with that law firm. Specifically, on or about March 1, 2017, Cohen—through his wholly-owned entity, Michael D. Cohen & Associates P.C.—entered into a “Strategic Alliance Agreement” with the law firm (the “Agreement”).6 Among other things, the Agreement provided that Cohen would receive a $500,000 annual “strategic alliance fee” from the law firm. Under certain circumstances, Cohen would also receive a percentage of the fees charged by the law firm for clients introduced to the law firm by Cohen. The Agreement also spelled out other aspects of the relationship between Cohen and the law firm, including: (1) Cohen would be given an office at the law firm; (2) Cohen would maintain his own computer server system not connected to the law firm’s computer server system; and (3) the law firm would not have a key to Cohen’s office. In addition, based upon conversations with a representative of the law firm, the USAO-SDNY understands as follows, in substance and in part: (1) Cohen did not have an email address associated with the firm; (2) Cohen did not have access to the firm’s shared drives or document systems—and vice versa; (3) Cohen’s documents were to be kept in a locked filing cabinet; and (4) Cohen did not have access to any of the firm’s client files.

What is left (and what I’ll deal with in a follow-up) is the way Cohen wields his relationship with the President to try to shield his files.

Earlier in the Week, Trump May Have Looked Presidential; on Friday, He Looked Like a Criminal Suspect

April 15, 2018/48 Comments/in 2016 Presidential Election, Financial Fraud, Mueller Probe /by emptywheel

Sarah Huckabee Sanders tweeted out this image last night, stating,

Last night the President put our adversaries on notice: when he draws a red line he enforces it. (Inside the Situation Room as President is briefed on Syria – Official WH photos by Shealah Craighead)

While she didn’t actually make the claim but implied it, the photo couldn’t have been taken “last night” (that is, Friday, just before the decision to bomb Syria), because Mike Pence was in Peru on Friday. My guess, given that Mike Pompeo is not in the frame, is it may have been taken on Thursday during the CIA Director’s confirmation hearing before the Senate Foreign Relations Committee.

In any case, the significance of Sanders using this dated photo to show Trump looking presidential has little to do with Pence. Rather, it has to do with Trump.

The White House, presumably, doesn’t have a picture of Trump looking presidential on Friday to offer (Sanders would have been better tweeting out Trump’s Friday speech).

And there’s a likely reason for that. Rather than acting presidential on Friday, Trump was acting like a criminal suspect, calling his consigliere, Michael Cohen, while he was blowing off a court hearing to hang out with mobbed up friends, to try to understand the full impact of a FBI raid on the two of them.

As his lawyers went to court in New York on Friday to try to block prosecutors from reading files that were seized from the personal lawyer, Michael D. Cohen, this week, Mr. Trump found himself increasingly isolated in mounting a response. He continued to struggle to hire a new criminal lawyer, and some of his own aides were reluctant to advise him about a response for fear of being dragged into a criminal investigation themselves.

The raids on Mr. Cohen came as part of a monthslong federal investigation based in New York, court records show, and were sweeping in their breadth. In addition to searching his home, office and hotel room, F.B.I. agents seized material from Mr. Cohen’s cellphones, tablet, laptop and safe deposit box, according to people briefed on the warrants. Prosecutors revealed in court documents that they had already secretly obtained many of Mr. Cohen’s emails.

Mr. Trump called Mr. Cohen on Friday to “check in,” according to two people briefed on the call. Depending on what else was discussed, the call could be problematic, as lawyers typically advise their clients against discussing investigations.

Reports are that Trump sees more risk from this investigation than he does from the Mueller one (I’ll post later why I think that’s not quite right, but a lot depends on what happens tomorrow in court). Whichever investigation will end up getting Trump, I agree with Adam Davidson (though he, like virtually all journalists, gets NYT’s self-appointed red line wrong) that if the FBI is able to go through Cohen’s files thoroughly, it will bring Trump’s presidency to an end.

There are lots of details and surprises to come, but the endgame of this Presidency seems as clear now as those of Iraq and the financial crisis did months before they unfolded. Last week, federal investigators raided the offices of Michael Cohen, the man who has been closer than anybody to Trump’s most problematic business and personal relationships. This week, we learned that Cohen has been under criminal investigation for months—his e-mails have been read, presumably his phones have been tapped, and his meetings have been monitored. Trump has long declared a red line: Robert Mueller must not investigate his businesses, and must only look at any possible collusion with Russia. That red line is now crossed and, for Trump, in the most troubling of ways. Even if he were to fire Deputy Attorney General Rod Rosenstein and then had Mueller and his investigation put on ice, and even if—as is disturbingly possible—Congress did nothing, the Cohen prosecution would continue. Even if Trump pardons Cohen, the information the Feds have on him can become the basis for charges against others in the Trump Organization.

This is the week we know, with increasing certainty, that we are entering the last phase of the Trump Presidency. This doesn’t feel like a prophecy; it feels like a simple statement of the apparent truth. I know dozens of reporters and other investigators who have studied Donald Trump and his business and political ties. Some have been skeptical of the idea that President Trump himself knowingly colluded with Russian officials. It seems not at all Trumpian to participate in a complex plan with a long-term, uncertain payoff. Collusion is an imprecise word, but it does seem close to certain that his son Donald, Jr., and several people who worked for him colluded with people close to the Kremlin; it is up to prosecutors and then the courts to figure out if this was illegal or merely deceitful. We may have a hard time finding out what President Trump himself knew and approved.

However, I am unaware of anybody who has taken a serious look at Trump’s business who doesn’t believe that there is a high likelihood of rampant criminality.

As well as Davidson describes this moment, I think the photo does so even better. A White House concerned first and foremost about the president’s image has no photo of him looking presidential before “he” made the decision to make an illegal military strike. And the reason for that may well be that he was far more occupied with his legal jeopardy than with doing his job.

Michael Cohen’s Claim the Steele Dossier Is False Is Not Affirmed in His Lawyer’s Declaration

April 14, 2018/41 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

As you know, I’ve long asserted that the Steele dossier has not been proven — and I extend that caution to the recent report about investigators having found evidence that Michael Cohen traveled from Germany to Czech Republic sometime in 2016.

But as I was writing about something else I couldn’t help but notice something about this paragraph from his lawyers’ motion to show cause (basically, his request to put someone other than the government — preferably his own lawyers — in charge of determining which of the materials they’ve seized are subject to attorney-client privilege).

This arduous journey began for Mr. Cohen over 16 months ago with the publication of his name in the so-called Steele dossier. The references to Mr. Cohen in the Steele dossier are false and have been completely debunked. Nevertheless, because of those false allegations, Mr. Cohen has had to spend the last 16 months defending himself in front of numerous government investigatory agencies.

It appears in the statement of fact section, meaning it is supposed to be backed by a statement in the declaration submitted by his attorney, Todd Harrison, as almost every other sentence in that section is. For comparison, note how the paragraph just before the Steele dossier one cites each assertion to a paragraph of Harrison’s declaration.

On November 8, 2016, Mr. Trump was elected President of the United States. Id. ¶ 9. Mr. Cohen resigned from the Trump Organization on January 20, 2017. Id. ¶ 10. Following Mr. Cohen’s resignation from the Trump Organization, President Trump allowed Mr. Cohen to continue using the title, “Personal Attorney to President Donald J. Trump,” in his email signature block. Id. ¶ 10. Mr. Cohen has served as Mr. Trump’s personal legal counsel from at least 2006 to the present. Id. ¶ 11.

As it is, the government called out Cohen for playing fast and loose with one of his claims — that the government seized his family’s health records.

Cohen also suggests that the USAO-SDNY seized personal communications with Cohen’s family and medical records.Notably, this assertion does not appear in the sworn affidavit of Cohen’s counsel, Todd Harrison, and to the extent the unsworn claim is true, it is likely because such records exist on Cohen’s electronic devices, which were expressly covered by the search warrants.

And the government calls out at more length the way he makes a carefully couched claim that he cooperated with ongoing investigations. (Cohen’s attorneys play fast and loose with their claims in one other area I’ll return to.)

But the entire paragraph claiming that the investigation into him derives from the Steele dossier — aside from being false both in this investigation into his taxi business and hush payments, and false in the larger Russia investigation that also pertains to his attempts to set up a Trump Tower in Moscow — is not backed by a sworn declaration at all. Indeed, Harrison is silent on the issue of the Steele dossier.

Cohen would like Judge Kimba Wood to believe that the dossier has been debunked. But his lawyer is unwilling to stake his own legal reputation on the claim.

This is a more subtle version of what Cohen tried in his declaration to the House Intelligence Committee. That declaration stopped short of outright denying the dossier’s allegations (aside that he went to Prague) then, and this one falls even further short.

So whether or not Cohen went to Prague, it seems that his lawyer is unwilling to claim the other things in the dossier are false.

Update: I’ve come up with something that may be a plausible explanation of the new Cohen in Prague news: Buzzfeed hired Anthony Ferrante to conduct an investigation into the dossier claims, in hopes of corroborating enough of it to defeat the several lawsuits — including Cohen’s — against it. His team is precisely the kind of investigator that might be able to scan border crossings with sufficient attention to see Cohen traveling across one. Certainly, if they found anything they would also share with Mueller’s team.

How Yevgeniy Nikulin Might Play into the Mueller Investigation

April 14, 2018/57 Comments/in 2016 Presidential Election, Cybersecurity, emptywheel, Mueller Probe /by emptywheel

For three reasons, Yevgeniy Nikulin, the Russian hacker alleged to be behind massive breaches of the LinkedIn and MySpace hacks, is in the news of late.

The report that Michael Cohen was tracked traveling from Germany to Czech Republic in 2016 has raised questions about whether both Cohen and Nikulin were in Prague at the same time, Mohammed Atta-like
Nikulin was suddenly extradited from Prague some weeks ago
His (Russian-provided) lawyer says he’ll entertain a plea deal

All of which provides a good opportunity to lay out what role he may have (or may be said to have) played in the DNC hack-and-leak.

The Michael Cohen in Prague story

The McClatchy report describing Robert Mueller receiving evidence of Cohen traveling from Germany to Czech Republic and some unknown date in 2016 seems to derive from outside investigators who have shared information with Mueller, not from Mueller’s team itself (which is consistent with his locked down shop). As such, it falls far short of being a confirmation of a meeting, or even validation that Mueller has confirmed any intelligence shared with his investigators. Moreover, the report has little detail as to timing, either of the visit or when Mueller actually got this intelligence.

And while it took a bit of time (Cohen can be forgiven for the delay because he apparently has very urgent business hanging with his homies smoking cigars), he did deny this report, offering the same partial story he offered last year.

That said, given the claimed timing, any coincidental presence in Prague by both Cohen and Nikulin is unlikely. Cohen’s presence in Prague is said to have roughly aligned with that reported in the dossier, so August or September. According to the FBI’s arrest affidavit for Nikulin he passed from Belarus into Poland on October 1, 2016, and probably was still there when posting from Warsaw on October 3; Nikulin was arrested in Prague on October 5. So unless Cohen went to Prague during his known October 2016 trip to England (definitely a possibility, but inconsistent with the dossier reporting), then they would no more have met in Prague (or planned to) than Mohammed Atta and Iraq’s Ahmad Samir al-Ani did.

The sudden Nikulin extradition

That said, I do think the sudden Nikulin extradition, even as pro-Russian Czech President Milos Zeman fought with Czech Justice Minister Robert Pelikan over it — even to the point of threatening to replace him — is worth noting. That’s true, first of all, because it appears Paul Ryan — purportedly on vacation with his family, but making appearances with everyone but Zeman — had a hand in it.

During a visit to the Czech Republic, U.S. House Speaker Paul Ryan said on March 27 that “we have every reason to believe and expect that Mr. Nikulin will be extradited to America.”

“The United States has the case to prevail on having him extradited, whether it’s the severity of the crime, which is clearly on the side of U.S., or the timing of the request for the extradition,” he told reporters.

In an interview with RFE/RL in Prague on March 26, Ryan said that the “case for extraditing [Nikulin] to America versus Russia is extremely clear.”

Ryan, who met with Prime Minister Andrej Babis and other Czech officials during his visit, told RFE/RL that he would raise the issue in those talks.

“He did violate our laws, he did hack these companies…. So the extradition claim is very legitimate,” he said. “And I just expect that the Czech system will go through its process, and at the end of that process, I am hopeful and expecting that he’ll be extradited.”

Nikulin was extradited just days later, even as the decision looked like it would be reviewed.

Zeman has since made very bizarre comments criticizing Ryan for his involvement.

Zeman said he had a different view of the Nikulin case than Justice Minister Robert Pelikan (ANO), who had given consent to the extradition of this Russian citizen to the USA, but that he fully respected the minister’s right to decide on this matter.

Apart from the United States, Russia was seeking Nikulin’s extradition, too, based on a suspected online theft.

“When Donald Trump was elected American president, (U.S. House of Representatives Speaker Paul) Ryan wore a black tie. The same Mr Ryan arrived in the Czech Republic (last week). He publicly stated that he had arrived basically in order to get Mr Nikulin to the United States, in which he succeeded. Well, one of the versions is that Mr Nikulin may in some way serve as a tool of the internal American political fight – to which the black tie served as well,” Zeman said.

“I do not consider this a very good solution if Czechs were to meddle in the American political situation,” Zeman added.

Ryan, who appreciated the Czech government for the extradition of Nikulin, did not meet Zeman during his recent visit to Prague without citing the reasons.

It may be that Ryan was doing the bidding of Trump. Or, more likely, Ryan may have made the move in what appears to be fairly unified NATO response to the attempted Sergei Skripal assassination.

Nikulin’s Russian-provided lawyer makes it clear they will negotiate

That said, I find it very interesting that Nikulin’s lawyer, whom the Russians asked to get involved, is explicitly already talking about a plea deal.

The legal team for Yevgeniy Nikulin, the Russian hacker accused of stealing data from LinkedIn and other American tech firms, will explore a plea deal with the U.S. government, according to Nikulin’s lawyer, Arkady Bukh.

“The likelihood of a trial is not very high,” Bukh said. The U.S. District Court for the Northern District of California, where Nikulin’s trial would occur, “has over a 99 percent conviction rate. We are not throwing clients under the bus,” Bukh said.

[snip]

Bukh was first contacted by the Russian consulate and asked to help on the case. He was approved on Wednesday to act as a lawyer for Nikulin by the court. Although Bukh has been in regular and sustained contact with both Nikulin’s family and the Russian consulate, he had yet to speak with his client as of Wednesday night.

The Russian consulate has expressed concerns about Nikulin’s mental condition, and Bukh said he “appears to be depressed.”

Perhaps Bukh is taking this route because the Feds have Nikulin dead to rights and a plea is the most logical approach. Perhaps Russia has learned its lesson from Roman Seleznev, the son of a prominent Duma member, who has been shipped around to different jurisdictions to have additional onerous sentences added to his prison term; I’m fairly certain there are other sealed indictments against Nikulin besides the one he was charged under that DOJ could use similarly.

Or perhaps Russia has reason to want to bury any public airing of evidence regarding what Nikulin has done or could be said to have done.

How Nikulin might be involved in the 2016 operation

I’ve long suggested that Nikulin may have had a facilitating role in the 2016 operation. That’s because credentials from his LinkedIn hack were publicly sold for a ridiculously small amount just before May 18, 2016, rather inexplicably making them available outside the tight-knit group of Russians who had been using the stolen credentials up to that point.

Almost all of the people whose email boxes were sent to Wikileaks were affected by the LinkedIn (and/or MySpace) breach, meaning passwords and emails they had used became publicly available in the middle of the Russian operation. And those emails were exfiltrated in the days immediately following, probably May 19-25, the public release of those credentials.

In other words, it is possible that stolen credentials, and not GRU hacks, obtained the emails that were shared with WikiLeaks.

None of that is to say that Russia didn’t steal the emails shared with Wikileaks or arrange that handoff.

Rather, it’s to say that there is a counter-narrative that would provide convenient plausible deniability to both the Russians and Wikileaks that may or may not actually be how those emails were obtained, but also may be all wrapped up ready to offer as a narrative to undercut the claim that GRU itself handed off the emails.

Note, too, how that timing coincides with the public claims Konstantin Kozlovsky made last year, which I laid out here.

April 28, 2015: FSB accesses Lurk servers with Kaspersky’s help.

May 18, 2016: LinkedIn credentials allegedly stolen by Yevgeniy Nikulin made widely available.

May 18, 2016: Kozlovsky arrest.

May 19-25, 2016: DNC emails shared with WikiLeaks likely exfiltrated.

October 5, 2016: Yevgeniy Nikulin arrest in Prague.

October 20, 2016: Nikulin indictment.

November 1, 2016: Date of Kozlovsky confession.

December 5, 2016: Arrest, for treason, of FSB officers Dmitry Dokuchaev and Sergey Mikhailov.

February 28, 2017: Indictment (under seal) of FSB officers, including Dmitry Dokuchaev, Alexey Belan, and Karim Bartov for Yahoo hack.

March 15, 2017: Yahoo indictment unsealed.

August 14, 2017: Kozlovsky posts November 1 confession of hacking DNC on Facebook.

November 28, 2017: Karim Baratov (co-defendant of FSB handlers) plea agreement.

December 2, 2017: Kozlovsky’s claims posted on his Facebook page.

March 30, 2018: Extradition of Nikulin.

April 2, 2018: Report that Dokuchaev accepted a plea deal.

April 17, 2018: Scheduled court appearance for Nikulin.

With each new hacker delivered into US custody, something happens in Russia that may provide an alternate narrative.

And consider that in the wake of Nikulin’s extradition, Dmitry Dokuchaev and another of the people accused of treason in Russia have made a partial confession that will, like any Nikulin plea, serve to bury much of the claimed evidence against them.

Two of the four suspects in a Russian treason case, including a former agent in the FSB’s Information Security Center, have reportedly signed plea bargains where they confess to transferring data to foreign intelligence agencies. Three sources have confirmed to the magazine RBC that former FSB agent Dmitry Dokuchaev and entrepreneur Georgy Fomchenkov reached deals with prosecutors.

One of RBC’s sources says the two suspects claim to have shared information with foreign intelligence agencies “informally,” denying that there was anything criminal about the exchange. Dokuchaev and Fomchenkov say they were only trying to help punish cyber-criminals operating outside Russia and therefore outside their jurisdiction. Lawyers for the two suspects refused to comment on the story.

As a result of the plea bargains, the two men’s trials will be fast-tracked in a special procedure where the evidence collected against them isn’t reviewed. Dokuchaev and Fomchenkov will also face lighter sentences — no more than two-thirds of Russia’s maximum 20-year sentence for treason, says one of RBC’s sources.

The other two suspects in the treason case, former FSB Information Security Center agent Sergey Mikhailov and former Kaspersky Lab computer incidents investigations head Ruslan Stoyanov, have reportedly turned down plea bargains, insisting on their innocence.

All of which is to say that Nikulin offers at least a plausible counter-explanation for the DNC hack-and-leak, one that might shift blame for the operation to non-state actors rather than GRU, which is something Vladimir Putin has been doing since Nikulin’s extradition first became likely, even if he has changed his mind about whether such non-state Russians will be celebrated or demonized upon their roll-out.

Rolling out plea deals here and in Russia may be an effort to try to sell that counter-narrative, before Robert Mueller rolls out whatever he will about the hack-and-leak in coming days.

Update: A reader notes correctly that all the dossier’s reporting on Cohen, especially that describing a meeting in Prague, post-dates the Nikulin arrest. See this post for more on the timing of the Cohen reporting, piggy-backing off of PiNC’s analysis.

The Libby Pardon: Trump’s Object Lesson in Presidential Firewalls

April 12, 2018/184 Comments/in 2016 Presidential Election, CIA Leak Case, Mueller Probe /by emptywheel

There are two reports out tonight:

Rod Rosenstein will be fired in an attempt to quash any further investigation of Trump’s crimes.
Scooter Libby will be pardoned in an obvious attempt to present an object lesson in presidential firewalls.

This post will be an initial attempt to explain the Libby pardon.

Side note: For those who claim Richard Armitage outed Plame, let’s just agree that you have no familiarity with the actual record and leave it there for now. Trust me on this: Bush and Cheney were very concerned that the written record showed Cheney ordering Libby to out Plame (whom, some evidence not introduced at trial suggests, he knew was covert). We can fight about that later, but I’ve got a library of records on this and you don’t.

First: Libby has already had his right to vote and his bar license restored. This pardon is purely symbolic. I’m sure Libby’s happy to have it, but the audience here is Paul Manafort, Michael Cohen, and a slew of other people who can incriminate Trump.

This appears to be a stunt inspired by Joe DiGenova and Victoria Toensing (whom I’ll call DiG & T henceforth), who are great table pounders but not great lawyers. Also, remember that VT is representing Mark Corallo, Erik Prince, and Sam Clovis, all in some legal jeopardy, so this ploy may help them too.

Libby was Bush’s firewall because he was ordered–by either PapaDick Cheney and/or Bush–to out Valerie Plame as an object lesson to CIA people pushing back on their shitty Iraq case. By refusing to flip, he prevented Patrick Fitzgerald from determining whether Bush had really ordered that outing or whether Cheney and Libby freelanced on it.

Libby risked prison, but didn’t flip on Cheney or Bush. He avoided prison time with a commutation, not a pardon. While PapaDick pushed hard for pardon, it didn’t happen, in large part because Bush had far better lawyers than Trump has.

Here’s some of the differences between Libby and Trump’s many firewalls:

Manafort, Kushner, and Cohen are exposed to state charges, in addition to federal (even ignoring how the Russian mob may treat them).
Libby was the bottleneck witness. You needed him to move further, or you got nowhere. Not so with Trump, because so many people know what a crook he is.
Bush commuted but did not pardon Libby, then refused, against PapaDick’s plaints, because (smarter lawyer) his lawyer counseled that’d be obstruction [update, or counseled that Libby could still incriminate Bush]. Trump can’t fully pardon his firewall, for the same reason: bc these witnesses will lose Fifth Amendment privileges against self-incrimination (which, as it happens, Cohen is invoking as we speak in a civil suit, which also can’t be dismissed by pardon).
Di Genova and Toensing (who are not good lawyers but pound tables well) haven’t figured out that this won’t be a one-off: This won’t be one (Manafort) or two (Cohen) people Trump has to pardon. And THEY DON’T KNOW the full scope of who Trump would have to pardon here. There are too many moving parts to pull this off.
And finally, because Trump is in a race. As I noted before, Mueller has already signaled he will label dangling pardons — as Trump has already done — as obstruction of justice. That presents far more risk for Trump, even assuming Mike Pence wants to go do the route of half-term infamy that Gerald Ford did by pardoning his boss.

All that’s before the fact that the crimes that Trump and his are facing are far, far uglier even than deliberately exposing the identity of a CIA officer to warn others off of exposing your war lies.

Maybe this will work? But I doubt it. There are just too many moving parts. And there is too little understanding among Trump’s closest advisors what they’re really facing.

So, congratulations to Scooter Libby at being a free man again. Condolences to Rod Rosenstein at being a free man again, if the firing does happen as predicted tomorrow.

But this is just a gambit, and there’s no reason to believe it will work.

Mueller Will Label Dangling Pardons as Obstruction of Justice Just as He Drops More Conspiracy Charges

April 12, 2018/51 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

NBC has a refreshingly sober and detailed report, explaining that Mueller and the President’s lawyers are giving up, at least for now, on the idea that Trump will be interviewed by the special counsel team.

Far more interesting than that news are the details about Mueller’s plans for his report on obstruction of justice. The report, originally slated for May to July, may come even sooner.

Prior to Monday’s raid, Mueller’s team had been aiming to finalize a report on its findings on whether the president has tried to obstruct justice in the Russia investigation in the coming months, as early as May or as late as July, three sources said. That timeline hinged in part on reaching a decision on a presidential interview, these people said. One person familiar with the investigation described a decision on an interview as one of the last steps Mueller was seeking to take before closing his investigation into obstruction.

Now, according to two sources, Mueller’s team may be able to close the obstruction probe more quickly as they will not need to prepare for the interview or follow up on what the president says.

And it appears that Mueller will accuse the President of obstructing justice in four ways:

Three sources familiar with the investigation said the findings Mueller has collected on Trump’s attempts to obstruct justice include: His intent for firing former FBI Director James Comey; his role in the crafting of a misleading public statement on the nature of a June 2016 Trump Tower meeting between his son and Russians; Trump’s dangling of pardons before grand jury witnesses who might testify against him; and pressuring Attorney General Jeff Sessions not to recuse himself from the Russia investigation.

All of these are predictable (though some other details of obstruction, such as the role he asked Rod Rosenstein and Jeff Sessions to play to provide cover for Comey’s firing, are not in there).

But the most interesting is the no-nonsense claim that offering pardons to people who might incriminate him personally amounts to obstruction of justice.

That makes a lot of sense — but it is constitutionally aggressive, because it’s unclear whether there can be any limit to the president’s pardon power. And it will go to Congress in a report inviting impeachment around the same time as Mueller will be rolling out the far more serious charges against Trump’s spawn, probably with Trump himself named as a co-conspirator.

I’m not sure whether that report will affect Trump’s calculation on whether he should pardon people like Don Jr and Jared — or if Congress will act to impeach to limit the political damage of what’s coming to themselves.

But it may change the legal status of any pardons offered after that date.

The Access Hollywood Search Doesn’t Mean Trump Coordinated with Assange

April 12, 2018/84 Comments/in 2016 Presidential Election, emptywheel, Mueller Probe /by emptywheel

As I noted, yesterday several outlets reported that among the things included in the FBI warrant for Michael Cohen’s premises was communications between Trump, Cohen, and others (whom I suspect to include Steve Bannon and Marc Kasowitz) “regarding the infamous ‘Access Hollywood'” video.

FBI agents who raided the home, office and hotel of Donald Trump’s personal lawyer sought communications that Trump had with attorney Michael Cohen and others regarding the infamous “Access Hollywood” tape that captured Trump making lewd remarks about women a month before the election, according to sources familiar with the matter.

[snip]

The search warrant also sought communications between then-candidate Trump and his associates regarding efforts to prevent disclosure of the tape, according to one of the sources. In addition, investigators wanted records and communications concerning other potential negative information about the candidate that the campaign would have wanted to contain ahead of the election. The source said the warrant was not specific about what this additional information would be.

From that, people on both the right and the left have assumed, without presenting hard evidence, that this means there must be a tie to Russia. Most often, people assume this must mean Trump somehow managed the events of October 7, when the Intelligence Committee report blaming Russia for the DNC hack, the Access Hollywood video, and the first Podesta emails all came out in quick succession.

That’s certainly possible, but thus far there’s no reason to believe that’s the case.

Mueller and Rosenstein referred this

That’s true, first of all, because after consulting with Rod Rosenstein, Robert Mueller referred this to the Southern District of New York for execution and prosecution, rather than dealing with it himself. He did that surely knowing what a sieve for leaks SDNY is, and therefore knowing that doing so would undercut his remarkably silent teamwork thus far.

In spite of a lot of reporting on this raid this week, we don’t yet have a clear understanding of why the two chose to refer it (or, tangentially, why interim SDNY US Attorney Geoffrey Berman recused himself from this matter).

There are two options. The first is that Rosenstein believed hush payments and taxi medallion money laundering sufficiently attenuated to the Russian investigation that it should properly be referred. In which case, the fact that it was referred is itself reason to believe that Mueller — even while he had abundant evidence supporting the search warrant — has no reason to believe those releases were orchestrated with Wikileaks, and therefore have no direct interest to his investigation (though they may cough up one to three witnesses who will be more willing to cooperate when faced with their own fraud indictments). In which case, the Access Hollywood video would be just another example, like the Stormy Daniels and the Karen McDougal payoffs, of Trump’s efforts to bury embarrassing news, using whatever means necessary.

The other option is that Mueller does have evidence that Trump in some way managed the October 7 events, which would be one of the most inflammatory pieces of evidence we would have heard of so far, but that there was some other reason to refer the matter.

Michael Cohen wasn’t serving as an attorney for much of the reported documents

The really good reason to refer the warrant would be so that SDNY would serve as a natural clean team, sorting through seized items for privileged communications, only to hand them back to Mueller’s team in DC once they’ve sorted through them. It’s an idea Preet Bharara and Matt Miller, among others, have floated.

Before we conclude that SDNY is only serving as a clean team for Mueller’s team here, consider that coverage has vastly overstated the degree to which the items being searched will fall under attorney-client privilege.

The search also sought information on Cohen’s taxi medallions, a business in which he has had really corrupt partners, some Russian, with their own legal problems, and one that has reportedly left Cohen with some debt problems that make his purported personal payment to Stormy Daniels all the more sketchy.

In addition, as soon as Trump claimed to know nothing of the hush payment to Daniels last Friday, the government could credibly claim that either Cohen was not representing Trump when paying off Daniels, or involved in fraud.

The NYT has reported that the raid also sought all communications between Cohen and National Enquirer’s top brass, communications that would in no way be privileged.

Even the reported communications about the Access Hollywood video may not be privileged. If they involved four people, then the only way they’d be covered by privilege is if they counted as campaign emails and Marc Kasowitz, not Cohen, was the attorney providing privileged advice in question. In that case, Cohen would have been playing the press contact role he often did during the campaign.

Still, just because Cohen was not playing the role of an attorney during most of the activities the FBI is interested in doesn’t mean the FBI won’t be really careful to make sure they don’t violate privilege, and I’m sure they’ll still use a taint team.

Mueller has already dealt with (at least) two sensitive attorney-client relationships in his investigation

Even on top of the eight members of the White House Counsel’s office who have spoken with the Special Counsel, Mueller’s team has dealt with (at least) two other sensitive attorney-client relationships.

The first was Melissa Laurenza, a lawyer for Paul Manafort whom he had write false declarations for FARA registry. Judge Amy Berman Jackson permitted Mueller’s team to ask her seven of eight proposed question after proving Manafort had used her services to engage in fraud.

More recently, we’ve gotten hints — but only hints — of what must be extensive cooperation from Skadden Arps and its partner Greg Craig, describing how Manafort and Gates laundered money to pay the firm loads of money to write a report they hoped would exonerate Ukraine’s persecution of Yulia Tymoshenko. While the cooperation of Skadden itself was probably effusive in its voluntary nature (the firm seems determined to avoid the taint that Tony Podesta’s firm has acquired in this process), Mueller did subpoena Alex Van der Zwaan and it’s unclear what methods the FBI used to obtain some of the materials he tried to hide from prosecutors.

Neither of those exchanges involves a search warrant. But they do show that Mueller is willing to take on the tricky issue of attorney testimony first-hand. Using SDNY as a clean team still may be the easiest option in the Cohen case, but Mueller clearly isn’t shying away from managing all such issues in-house in other cases.

The other possible explanations for the Access Hollywood search and the October 7 timing

Which brings us finally to the other possibilities behind the Access Hollywood search.

It’s certainly possible that the coincidental release of all these things was coordination, entirely orchestrated by the Trump campaign. But there are a number of reasons — on top of the fact that Mueller isn’t keeping this search far tighter under his own control — I think that’s not the most likely explanation.

Consider this story, arguing that the real story of Access Hollywood isn’t that it leaked on October 7 — the piece notes that David Farenthold had only received it that day — but that it didn’t leak earlier in the process, when it might have led Trump to lose the primary.

t is just impossible to believe that the tape not coming out at the start of Trump’s campaign, when logic dictates that it would have blown Trump instantly out of the water (before he was in a position where Republicans had no choice other than to keep backing him against the evil Hillary Clinton), was anything but a highly unethical political decision by someone at NBC. The fact that no one has ever even gotten an answer from NBC about how this could have happened is equally unfathomable and yet, given the news media’s overall incompetence, kind of expected.

[snip]

It has always struck me as EXTREMELY odd that it was the Washington Post, not NBC, who first released the tape on Friday Oct. 7, 2016, barely beating NBC which, it should be noted, was clearly ready to go with it immediately after the Post did. I presumed that perhaps NBC wanted this to be the case because it might take some of the focus off why they had not released it during the primaries (and thus chose not to prematurely kill off the media’s Golden Goose which was Trump’s ratings-friendly campaign).

However, there is another aspect of the Post being the outlet which got the big scoop that has always struck me as potentially very significant. The Post’s reporter, David Fahrenthold, has said that he was only made aware of the tape, via an unnamed source, THAT day — which is a clear indication that whomever was trying to get the Post to release it had decided to do so in tremendous haste. After all, if the source had planned it sooner they would have made contact with Fahrenthold well before then because he might have been out of pocket that day.

[snip]

For instance, what if it was actually someone from the TRUMP team who leaked the tape. At first glance, this seems ludicrous because no one thought that Trump would be anything but greatly harmed by the tape (though he clearly was not). But what if someone in Trump World got wind that the tape was about to be released and decided that stepping all over the Russia news (which would normally have dominated the narrative for the remainder of the campaign) would at least create the least bad outcome for them?

I don’t agree that the release was released when it was to distract from the Russia announcement that day. As I’ve long noted, in reality, the Access Hollywood distracted from the Podesta emails, effectively burying the most damning release in the bunch, the excerpts of Hillary’s speeches that even Democrats had been demanding she release since the primary. And while the Trump team might claim they didn’t control the release of the Podesta emails directly — and Roger Stone’s predictions that Wikileaks would release Clinton Foundation rather than Podesta emails were dead wrong — the Trump team at least knew something was coming (indeed, Wikileaks had made that clear themselves). So there’s little reason they would stomp on what they had long welcomed with the Access Hollywood tape. As this post alludes, I also think the Trump team and Russians or Wikileaks may have been squabbling over whether Wikileaks would release possibly faked Clinton Foundation emails that week, only to scramble when Wikileaks refused to release whatever the Peter Smith effort had gotten dealt to them.

Like the Mediate piece, I’m interested in the way that Steve Bannon had Clinton accusers all lined up to go that weekend (indeed, I noted how quickly Stone moved to that after having raised expectations for a Clinton Foundation release). But I also think there are some reasons to believe that attack was in the works for other reasons (though I agree it might reflect advance knowledge that the video might come out, or even that Stormy Daniels might come forward). Finally, I don’t think the release came from Trump because of all the reports of Republicans trying to convince Trump to step down (though it’s possible the GOP dropped the video in one last bid to get him to do so).

One alternative narrative, then, is that the real story about the Access Hollywood suppression goes back months or years earlier, as one of the things Trump managed to suppress throughout the campaign, but something happened internally to breach that agreement. And, separately, that either Assange by himself, with Russian help, or with Trump assistance, timed the Podesta emails to come out as the Russian attribution was coming out. That is, it could be that the real story remains that whoever orchestrated the Wikileaks release did so in an attempt to bury the Russian attribution, but that the coincidental release of the Access Hollywood video in turn buried the Podesta emails.

Finally, it’s possible that Democrats got ahold of the Access Hollywood video and they released it to (successfully) drown out the Podesta emails, which they (and the intelligence community) also would have known were coming, but by doing so, they also drowned out the all-important Russian attribution in the process.

The point is, we don’t know. And nothing we know thus far about the process leading to this warrant or about the suppression and release of either the video or the women’s stories suggest it all took place that week of October. Trump’s usual m.o. is about suppression, not timing.

That said, I’m curious if this raid will reveal details about one other item Trump probably tried to suppress: the nude Melania photos that NYPost released on July 31, 2016, just as campaign season got going in earnest.

Open Thread: Oddments Olio

April 12, 2018/58 Comments/in 2016 Presidential Election, Culture, Mueller Probe /by Rayne

A dog’s breakfast, hodgepodge, pastiche, olio — this is a catch-all post with an open thread. I have a bunch of tidbits and loose ends with no place to go, not enough on which to center posts. Make of them what you will and bring your own potpourri in comments.

Loews — No, not Lowe’s as in the big box hardware store chain. Loews Regency, as in pricey hotel in NYC where Trump’s personal attorney and likely cut-out has been staying, ostensibly because of construction at his home. Yeah, the same home which was searched this past week along with this hotel room and office.

One detail folks may have forgotten: Loews Regency is the same hotel where Felix Sater arranged a 27-JAN-2017 meeting between Michael Cohen and Ukrainian lawmaker Andrey Artemenko to discuss a plan to lift the sanctions on Russia. Totally legal one week after the inauguration, right? But why meet with the president’s personal lawyer instead of State Department employees, or wait until Rex Tillerson was confirmed on February 1?

And when was the meeting set up — did Sater take a phone call from Artemenko before the inauguration?

It wasn’t clear back in early 2017 when exactly this back-channel was first established and it’s still not clear now.

Searching Cohen’s room at the Loews seems more reasonable considering the Artemenko meeting. Has Cohen had a room or rooms in Loews Regency since inauguration day or earlier?

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Hacka cracka lacka — Hey, remember how former CIA director John Brennan was hacked in 2015 and 2016 by a couple of “Cracka” hackers? Two dudes from North Carolina were arrested and prosecuted, sent to prison for two years for hacking senior U.S. officials.

One detail sticking in my craw has been the third party characterized as a group leader; only a teenager at the time, they were located in the U.K.

Why have so many issues related to politics and information security had links to the U.K. — like Cambridge Analytica/SCL and Brexit? Did somebody manipulate an autistic U.K. teenager into work assisting larger aims?

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Facebook’s Chancellor — Prof. David Carroll asked a very good question: why didn’t any member of Congress on either the Senate Judiciary Committee or the House Energy & Commerce Committee ask about Facebook employee Joseph Chancellor, a psychologist who had been hired away from Cambridge Analytica. Well?

Speaking of Facebook, there are several folks who’ve been all over the this scandal, some of whom have been responsible for the public’s awareness that Facebook data had been acquired without users’ consent. Give them a follow:

Carole Cadwalladr — reporter-writer for Guardian-UK and Observer who has doggedly covered Cambridge Analytica/SCL links to Facebook user data and their impact on the Brexit referendum in June 2016. Her Guardian content here (consider throwing them a few bucks for her great work.)

Chris Wylie — Cambridge Analytica’s former director of research now whistleblower who revealed much of the workings between CA/SCL and Facebook’s ill-gotten data.

David Carroll — Associate professor of media design at the School of Art, Media, and Technology at The New School’s Parsons School of Design; he’s been chasing his personal data located in the U.K and is now suing Cambridge Analytica’s parent, SCL, for U.S. data it obtained without consent. (Read about the case and chip into the legal fund at this link.)

Also note that Verge senior writer Sarah Jeong generously tweeted all the members of Congress who’d received donations from Facebook as they questioned CEO Mark Zuckerberg. Check it out.

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Content bias — During this week’s committee hearings with Facebook CEO, GOP members of Congress tried repeatedly to make a case that Facebook was biased against conservative content. Too bad Facebook helped get a GOP POTUS elected, shooting that narrative in the ass.

But one related thing has stuck in my craw for quite some time, and I can’t help wonder if it was yet another way in which Facebook was manipulated by a disinformation operation.

Remember back in 2016 stories reporting Facebook’s contract content editors complained that Facebook was biased against conservatives? The story first appeared in Gizmodo on May 9, then got picked up by other outlets. A political story during the campaign season usually happens the other way around — covered first in a big national outlet then picked up in lesser outlets. Why did this story happen via Gizmodo first? This would be the perfect manner in which to launder information; the point of origin is obscured by the second and third outlets to pick it up as they typically go to the biggest source to confirm their story. In this case, an outlet like NYT or WaPo would go to Facebook and put them on the spot. They wouldn’t bug Gizmodo or the leakers who went to Gizmodo.

Another important factor: Gizmodo was part of beleaguered Gawker Media, which was about to implode and bought out months later by Univision. Anybody remaining at the time this story hit was uncertain about the security of their job. Journalists would have been ripe for manipulation because they needed an attention-getting story to improve their odds for a next gig.

In fact, Gawker Media filed for Chapter 11 bankruptcy one month after the Facebook bias story was published — on June 10, 2016. Think of this 30-day time frame as two very stressful paydays for beleaguered Gawker employees who were trying hard to keep on keeping on but probably frantically wallpapering prospective media employers with resumes.

One more important factor: the reporter who covered this story was a technology editor whose beat wasn’t politics or free speech issues. This changed the way the story was covered and rolled out; if a reporter with more savvy and experience covering politics had been approached with this particular tip, they might have known there was something more to this than poor-conservatives-being-suppressed-by-liberal-bias. A political contributor might have questioned the insistance that outlets like Breitbart and Newsmax weren’t being included alongside NYT and WaPo.

Watching GOP congresspersons repeatedly bash Zuckerberg about media bias, I could see the same deer-in-the-headlights reaction Facebook had back in 2016 when these contract editors complained about bias. There was no bias; the hearings this week and the story in 2016 were naked attempts to screw with Facebook’s algorithms so that POS outlets like Mercer-funded, Bannon-operated Breitbart and Alex Jones’ InfoWars could get the same attention as legitimate outlets like NYT and WaPo.

We’re still going to have to press Facebook and other social media outlets to address this problem. It’s just not a problem of bias but identifying legitimate reported journalism. And we all have a problem with being easily played for our lack of sufficient skepticism.

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Go for it. What detritus have you been carrying around that doesn’t fit anywhere else? Share in comments.

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