The First Time Trump “Colluded” with Russia Was To Help Bibi Netanyahu

The first time Donald Trump worked via back channel with Russia to undermine Barack Obama’s foreign policy, it was to help Bibi Netanyahu dodge repercussions for illegal settlements in the West Bank.

And yet that effort — and the way that Jared Kushner mobilized a group of countries to undermine the sitting President’s foreign policy decision — has gone unmentioned in recent months, even as Bibi blows off Joe Biden’s requests for moderation in advance of the November election, even as Vladimir Putin holds overt meetings with Hamas, even as Kushner — effectively an employee of Mohammed bin Salman at this point — meets with Qatar and tours Kfar Aza.

The Mueller Report actually soft-pedaled what happened in December 2016.

On December 21, 2016, Egypt submitted a resolution to the United Nations Security Council calling on Israel to cease settlement activities in Palestinian territory.1208 The Security Council, which includes Russia, was scheduled to vote on the resolution the following day.1209 There was speculation in the media that the Obama Administration would not oppose the resolution.1210

According to Flynn, the Transition Team regarded the vote as a significant issue and wanted to support Israel by opposing the resolution.1211 On December 22, 2016, multiple members of the Transition Team, as well as President-Elect Trump, communicated with foreign government officials to determine their views on the resolution and to rally support to delay the vote or defeat the resolution.1212 Kushner led the effort for the Transition Team; Flynn was responsible for the Russian government.1213 Minutes after an early morning phone call with Kushner on December 22, Flynn called Kislyak.1214 According to Flynn, he informed Kislyak about the vote and the Transition Team’s opposition to the resolution, and requested that Russia vote against or delay the resolution.1215 Later that day, President-Elect Trump spoke with Egyptian President Abdel Fattah al-Sisi about the vote.1216 Ultimately, Egypt postponed the vote.1217

On December 23, 2016, Malaysia, New Zealand, Senegal, and Venezuela resubmitted the resolution.1218 Throughout the day, members of the Transition Team continued to talk with foreign leaders about the resolution, with Flynn continuing to lead the outreach with the Russian government through Kislyak.1219 When Flynn again spoke with Kislyak, Kislyak informed Flynn that if the resolution came to a vote, Russia would not vote against it.1220 The resolution later passed 14-0, with the United States abstaining.1221 [my emphasis]

1208 Karen DeYoung, How the U.S. Came to Abstain on a U.N. Resolution Condemning Israeli Settlements, Washington Post (Dec. 28, 2016).

1209 Karen DeYoung, How the U.S. Came to Abstain on a U.N. Resolution Condemning Israeli Settlements, Washington Post (Dec. 28, 2016).

1210 Michelle Nichols & Lesley Wroughton, U.S. Intended to Allow Passage of U.N. Draft Critical of Israel, Reuters (Dec. 21, 2016).

1211 Flynn 11/16/17 302, at 12; Flynn 11/17/17 302, at 2.

1212 Flynn 11/16/17 302, at 12-14; Flynn 11/17/17 302, at 2.

1213 Flynn 11/16/17 302, at 12-14; Flynn 11/17/17 302, at 2; Kushner 11/1/17 302, at 3; 12/22/16 Email, Kushner to Flynn; 12/22/16 Email, McFarland to et al.

1214 Flynn 11/16/17 302, at 13; Call Records of Michael T. Flynn

1215 Statement of Offense ¶ 3(d), United States v. Michael T. Flynn, No. 1:17-cr-232 (D.D.C. Dec. 1, 2017), Doc. 4 (“Flynn Statement of Offense”); Flynn 11/16/17 302, at 12-13.

1216 Flynn 11/17/17 302, at 2; Flynn 11/16/17 302, at 13.

1217 U.N. Vote on Israeli Settlement Postponed, “Potentially Indefinitely”, Reuters (Dec. 22, 2016).

1218 Somini Sengupta & Rick Gladstone, Rebuffing Israel, U.S. Allows Censure Over Settlements, New York Times (Dec. 23, 2016).

1219 Flynn 11/16/17 302, at 12-14; Kushner 11/1/17 302, at 3; 12/23/16 Email, Flynn to Kushner et al.

1220 Flynn Statement of Offense ¶ 3(g).

1221 Israel’s Settlements Have No Legal Validity, Constitute Flagrant Violation of International Law, Security Council Reaffirms, 7853rd Meeting (PM), United Nations Security Council (Dec. 23, 2016).

This account separates the description of the December 1, 2016 meeting including Sergey Kislyak and Flynn at which Jared suggested setting up a back channel via secure Russian channels, as well as the December 13, 2016 meeting with sanctioned banker Sergey Gorkov at Tom Barrack’s office, a meeting Jared claimed was diplomatic but Gorkov claimed pertained to business.

The Report doesn’t reveal which Senator’s office alerted Flynn to the risk that Obama would allow Israel be sanctioned.

The Report doesn’t describe all the calls that took place on December 22. In a warrant affidavit targeting Flynn, multiple calls are described as taking place on Flynn’s phone — suggesting the possibility that Trump used Flynn’s phone to call al-Sisi. McFarland later noted that Flynn, “worked it all day with trump from Mara lago.”

The Report did not mention that Jared asked toand did — release a false report claiming that Egypt had initiated this effort.

Can we make it clear that Al Sisi reached out to DJT so it doesn’t look like we reached out to intercede? This happens to be the true fact patter and better for this to be out there.

Because it remained under investigation, the Report doesn’t mention the suspected $10 million payment an Egyptian bank had given Trump in September 2016, important background to Trump’s call to al-Sisi.

It doesn’t describe that KT McFarland had likened the effort to undercut Obama’s foreign policy to Richard Nixon’s effort to forestall peace in Vietnam and Ronald Reagan’s effort to delay the release of hostages from Iran.

Based on her study of prior presidential transitions, McFarland believed the sorts of things Flynn did were not unusual. She cited Richard Nixon’s involvement in Vietnam War peace talks and Ronald Reagan’s purported dealings with Iran to free American hostages during an incoming administration. Most incoming administrations did similar things. No “red light” or “alarm bells” went off in her head when she heard what Flynn was doing. The President-elect made his support for Israel very clear during the campaign and contrasted his position with President Obama, who he believed had not treated Israel fairly.

And Mueller — likely working under the normally safe assumption that the call intercepts with Sergey Kislyak would never be released — left out several damning details revealed when John Ratcliffe did release the transcripts in May 2020.

First, Mueller implies that Egypt, by itself, decided to delay the vote, but on their second call, Sergey Kislyak told Flynn that they would push for a delay too.

Kislyak: Uh, I just wanted as a follow up to share with you several points. One, that, uh, your previous, uh, uh, telephone call, I reported to Moscow and it was considered at the highest level in Russia. Secondly, uh, uh, here we are pointing [PH], uh, taking into account, uh, entirely your, uh, arguments.

Flynn: Yes.

Kislyak: To raise a proposal or an idea of continued consultations in New York. We will do it.

Flynn: Okay.

Kislyak: Uh, to give time for working out something, uh, that would be, would be, uh, less controversial.

Flynn: Okay. That. .. That’s good news.


Kislyak: But, uh, responding to your, uh, telephone call and our conversations, we will try to help, uh, to~ uh~ postpone the vote and to allow for consultations.

Flynn: Okay. That’s .. that’s good.

In Kislyak’s call with Flynn (in which he had to cut off the blubbering General to make his carefully scripted points), he made it clear that he had discussed the topic with “the highest level in Russia,” which can only mean Putin.

When Flynn called Kislyak back on December 29, the Russian Ambassador told him that they were not going to support Obama’s other framework for the Middle East at the time.

KISLYAK: Oh, General, thank you very much for calling me back. I was trying to reach you for quite a while because I have several, uh, issues to raise with you —

FLYNN: Uh huh.

KISLYAK: – rather to inform you. If you’ll allow me, one by one.

FLYNN: Please.

KISLYAK: One, uh, since you were interested in the issue of the Middle East and you called me on that issue

FLYNN: Uh huh.

KISLYAK: We wanted to convey to you and through you to the President Elect that we had uh significant reservations about the idea of adopting now the principles for the Middle East, uh, that our American colleagues are pushing for. So we are not going to support it to — in the quartet, or in the Security Council. And we have conveyed to our American colleagues. So in the spirit of full transparency I was asked to inform you as well.

FLYNN: Okay.

KfSLYAK: So it’s not something that we – Russia – are going to support.

FLYNN: Okay that’s good.

Kislyak tied that, implicitly, to a demand to reverse Obama’s sanctions; he used Flynn’s discussion about cooperating on counterterrorism to note that GRU and FSB would need to be part of the cooperation.

FLYNN: We have to eliminate the common threat.

KISLYAK: We agree. One fo the problems among the measures that have been announced today is that now FSB and GRU are sanctions, are sanctioned, and I ask myself, uh, does it mean that the United States isn’t willing to work on terrorist threats?

FLYNN: Yeah, yeah.

KISLYAK: Because that’s the people who are exactly, uh, fighting the terrorists.

Most importantly, a point utterly inconsistent with the conclusion in the Mueller Report that it was never clear if Trump knew of this back channel, on their December 31 call, Flynn told Kislyak that “boss is aware” of an invite that Kislyak had extended.

Remember that a pro-Trump FBI agent was pushing the conclusion that all this was a big misunderstanding, a conclusion that largely held the day.

And that’s just what is included. Ratcliffe didn’t release the December 22 transcript, the one that started this discussion.

Flynn was in Mar-a-Lago on December 22 — and the December 29 transcript suggests that Flynn may have been on speaker phone (he made the call from his hotel phone, and so could have had his own phone connected back to MAL). So it’s not impossible that Trump was actually involved in the calls placed on December 22. As bolded above, in the Report, Mueller didn’t describe what he knew from the transcripts; instead, he attributed his version of the December 22 calls to Flynn.

At a time when Trump was advised — at least partly — by adults, he didn’t hesitate to intervene back channel to undercut his Democratic predecessor in order to help Bibi Netanyahu. Per KT McFarland, it was all in the tradition of Nixon and Reagan intervening in foreign policy to help win an election.

This post is part of a Ball of Thread I’m putting together before I attempt to explain how Trump trained Republicans to hate rule of law. See this post for an explanation of my Ball of Thread.

Ball of Thread: Trump’s Narcissism Makes Him Easy to Trigger

This post is part of a Ball of Thread I’m putting together before I attempt to explain how Trump trained Republicans to hate rule of law. See this post for an explanation of my Ball of Thread.

Discussions of Trump’s cultivation by Russia (and other authoritarian countries) always founder on discussions of his formal recruitment.

There is abundant evidence that Russia, like other countries, did at least attempt to recruit Trump. Craig Unger has written two good books on the subject.

But many attempts to describe why and whether that happened, particularly in the hands of pundits, are easily discredited. That’s true, in significant part, because people imagine recruitment is an either/or thing: that people come fully recruited spies one day and from that point forward they are puppets of their handlers. The reality, as I understand it, is a gradual process of creating the preconditions via which people can be persuaded to act in ways that benefit another country.

On top of being an all around annoyance, for example, Jonathan Chait’s consideration of whether Trump had long been recruited was sloppy and made the entire Russian investigation easier to discredit.

And the thing is, such efforts are unnecessary.

All you need to explain Trump’s actions (and all I’ll rely on for this series) is Trump’s narcissism. Trump is such an epic narcissist, and narcissists’ reactiveness and paranoia and pathological need to feed their own ego are so predictable, that the only explanation you need for how Trump could be manipulated is that narcissism. So long as you could reliably trigger Trump’s narcissism, you could fairly reliably trigger a predictable narcissistic response to a given trigger.

Trump’s habit of releasing highly classified documents is a great example. Trump almost blew the Vault 7 investigation by revealing details that made it clear FBI considered Josh Schulte as the prime suspect to Tucker Carlson the day of his first search; Trump did so to try to blame Obama for the compromise. Trump burned an Israeli counterterrorism program by giving it to Russia, which he did to show off. Trump burned the satellite imagery targeting Iran, which he did so to dickwag Iran. Trump attempted to release all the backup materials to the Russian investigation because some dopey advisor convinced him that it would help to disprove his critics. Trump shared details of DOD’s plans to attack Iran with Mark Meadows’ ghost writer because he thought it would help him discredit Mark Milley. A master spy might have asked Trump to release all this intelligence for him. Maybe one day we’ll learn the documents that went missing from Mar-a-Lago were specifically requested. But you don’t even need that master spy request (and if there were a master spy, he might not ask for documents in the form of a request): because all it takes to get Trump to release highly classified documents is to suggest that in some way doing so will harm his detractors.

The Trump Tower Moscow deal — or really, any deal — is another example. It is not important whether the Trump Tower Moscow deal pitched to Michael Cohen (or any of the several other Russian Trump Tower deals) to be real, or plausible. Russia could, with great certainty, dangle offers for free money and the biggest tower in Russia, and Trump was bound to act irresponsibly, as he did.

There certainly could be more: but there doesn’t have to be. All you need to manipulate Donald Trump is to trigger his narcissism.

Ball of Thread: Introduction

In my post on Elise Stefanik’s decline into fascism, I described that I’ve been meaning to lay out how Trump used his legal cases to train Republicans to hate rule of law, which has been a key part of how the Republican party has come to embrace fascism. I’ve been dreading and therefore putting off writing that, in large part because it’ll involve rehashing the Russian investigation, and the counter-propaganda to the Russian investigation has been so effective that even addressing the reality of the Russian investigation at this point is always a real chore.

One other reason I’ve been putting it off is because there are a lot of things I want to have in the background — what I’ll call a Ball of Thread. These are not so much related points. Rather, they’re just things that I want to have in the background so I can pull on one or another thread without distracting from the main argument.

So I’m going to first try to write those up fairly quickly, so they’re out there, my Ball of Thread. Some of these posts will be more observation than detailed collection of facts. Others will not show my proof to the extent I normally do. Some will update things I’ve already said. Still others would not normally merit their own post, but I want to have it out there, as part of my Ball of Thread.

Plus, I’m going to try to do this while continuing to cover two Trump prosecutions, multiple Hunter Biden dick pic sniffing campaigns, 1,200 January 6 cases, and some other things that will come up. You know? My day job. All while learning to walk again, after foot surgery.

Happy New Year!

As of now, I anticipate that my Ball of Thread will include:

These will hopefully be quick; they may be sloppy; they likely will not be in this order. But hopefully I can spin my Ball of Thread then move onto the larger task.

On the image: The featured image for this post comes from the Library of Congress’ Farm Services Administration set. 

Rebuttals to Eric Trump’s Talking Points about His Daddy’s Corruption

Yesterday, the Oversight Democrats released a report showing the fraction of foreign payments Donald Trump accepted from foreign governments while President that they were able to document before James Comer helped Trump cover it all up. The topline result is that while President, Trump was known to have received over $7 million from foreign entities, of which $5.5 came from China.

As I’ll show below, that’s a very partial number, but by itself it says that Trump made as much from foreign governments while President as the entirety of the funds that James Comer has spent a year lying about with respect to private citizen Hunter Biden over a longer period of time.

It’s not Hunter Biden who has been on the foreign take. It’s Donald Trump. And while this report mentions that Trump is basically an employee of Mohammed bin Salman through his LIV Golf relationship, that funding, and a number of other foreign payments Trump and his Oval Office employee family members received is not reflected in the topline of this report.

Thanks to some of my best trolls, I’ve had a flood of stupid MAGAts repeating the talking points fed them to make them comfortable with the fact that Donny was effectively for sale to a slew of foreign governments. So I wanted to talk about how silly those excuses for selling access are.

Start with Eric Trump’s supposed rebuttal, a claim that Trump Organization donated their foreign profits to the US Treasury.

First, Trump Org only did this for a subset of their properties.

[T]he policy substantially limited the scope of “profits” it covered to those (1) “generated from foreign governments’ patronage from wholly-owned Properties,” and (2) “generated from management fees earned from managed hotels and condominium-hotels attributed to foreign governments’ patronage.”71 By excluding non-wholly owned and non-hotel Trump properties, the policy omitted potentially significant sums from the already truncated category of emoluments that it covered. For example, this report identifies more than $1 million in foreign emoluments paid to Trump World Tower in New York which fall outside the scope of The Trump Organization’s policy.

But even ignoring Trump Organization’s famously dodgy accounting, it’s not enough to donate profits. That’s because the revenues permitted Trump to have a DC-based influence peddling shop.

Revenues paid to Trump International DC (which most trolls appear not to understand Trump leased the Old Post Office only from 2016 until 2022; it was not a pre-existing hotel that just happened to become inconvenient when Trump became President) effectively provided Trump a way to have foreign governments pay lease to the US government for a private influence peddling location for him during his Administration, which he then sold for a tidy profit.

A review of financial documents regarding the Trump International Hotel in Washington, D.C., provided by the General Services Administration (GSA) revealed that while President Trump claimed on required financial disclosures that he made $156 million in employment income from the hotel between 2016 and 2020, the hotel in fact lost more than $73 million during this period.74 Reflecting the serious financial problems at the Trump International Hotel in Washington, D.C., annual financial statements obtained by the Committee also reveal that one of President Trump’s holding companies, DJT Holdings LLC, injected tens of millions of dollars into the Trump International Hotel as loans, the vast majority of which were never repaid and were later converted to capital contributions. The hotel’s significant losses were due in part to the hotel’s fixed costs, including general and administrative expenses, sales and marketing expenses, and property operations and maintenance.75 Given that the hotel was operating at a significant loss, foreign government revenue would have helped to cover a portion of these fixed costs, even if alleged “profits” were donated.

Plus, there’s no transparency to how Trump Org decided something was a foreign payment. The report notes that Mazars had no accounting for what qualified as foreign payments — meaning, however Trump Org made this calculation, they didn’t share it with their accountants.

Mazars also indicated that it had no specific accounting of foreign government spending at Trump-owned properties. This is stunning in light of former President Trump’s pledge that Trump hotel properties would donate “all profits from foreign government payments” to the U.S. Treasury and the policy announced by The Trump Organization purportedly intended to effectuate that pledge.

And for the things that Oversight did get paperwork for, there were clear discrepancies. The Mazars documentation doesn’t cover all the known foreign spending at Trump International, for example.

Last Congress, based on records provided by GSA, former Committee Chairwoman Maloney estimated that total foreign government payments to just the Trump International Hotel in Washington, D.C., from 2017 through 2019 would have been $3,787,485.117 This estimate was based on the hotel’s representations that, for these three years, it had identified $355,687 in foreign government profits (which it had remitted to DJT Holdings LLC, another Trump-owned entity; which DJT Holdings LLC had remitted to the Trump Corporation; and which the Trump Corporation in turn had “donated” to the U.S. Treasury on behalf of The Trump Organization).118 However, only a fraction of this foreign government spending at the Trump International Hotel in Washington, D.C., is reflected in the documents provided by Mazars and discussed in this report.

Of particular concern, Mazars didn’t turn over guest ledgers for Trump’s Inauguration, a period when the hotel was wildly inflating prices and hosting any number of foreign visitors.

Also, James Comer intervened in Mazars’ compliance before they had provided “any documents relating to Russia, South Korea, South Africa, and Brazil.”

There are other big gaps. For example, Mazars didn’t turn over any documentation of other properties that hosted significant numbers of foreign visitors.

Mazars also did not provide any ledgers before the subpoena was terminated for properties which reportedly received a large number of foreign government visitors, including: Trump Turnberry Hotel and Resort in Scotland; Trump International Hotel and Tower in Chicago, Illinois; and Trump International Hotel in New York, New York.

And Mazars didn’t provide any documentation pertaining to 80% of Trump’s properties.

The Committee did not receive from Mazars any documents regarding at least 80% of Donald Trump’s business entities. For many other entities, Mazars produced only a single document.

Finally there were two specific expenses that Mazars claimed to have no record of. Mazars claimed to have no do documentation of ICBC’s nearly two-million dollar a year lease in Trump Tower.

Counsel for Mazars informed the Committee that following a comprehensive search of its records, the firm identified no responsive documents in its database relating to the “Industrial and Commercial Bank of China” or “ICBC.” The absence of these records from Mazars’s files raises troubling concerns about The Trump Organization’s candor with its accounting firm.179

As noted above, this was included in the report, based on other publicly available sources.

Mazars similarly claimed to have no documentation of a $20 million loan from Daewoo.

Spreadsheets prepared by Jeffrey McConney, The Trump Organization’s former controller, reflect that former President Trump’s “LOANS PAYABLE” included a loan for $19,760,000 owed to “L/P Daewoo” as of June 30, 2015.113 This loan remained outstanding until Daewoo was “bought out of its position on July 5, 2017.”114 Critically, as Forbes reported: “Although the debt appeared on The Trump Organization’s internal paperwork, it did not show up on Trump’s public financial disclosure reports, documents he was required to submit to federal officials while running for president and after taking office.”115 Yet Mazars informed the Committee’s Democratic staff it had no records to produce regarding the Daewoo loan.

I believe this payment was not included in this report. But its an instance where Trump’s disclosures covered up a key financial tie.

Finally, there are a number of things that this report did not include in its top line conclusion. Along with the LIV partnership mentioned above, Jared Kushner’s financial entanglements, and Ivanka’s trademarks, this report didn’t include Huwaei or CEFC in its emoluments accounting.

Finally, the documents provided by Mazars also record expenditures at Trump-owned properties by two Chinese companies that are closely aligned with the P.R.C.: Huawei; and Hongkong Huaxin Petroleum Unlimited, a subsidiary of CEFC China Energy (CEFC). While the government of the P.R.C. has been linked with both Huawei and CEFC, given the opacity and convoluted ownership and financing arrangements of these companies, this report does not classify their expenditures among the emoluments paid by the P.R.C. to Trump-owned businesses. However, the receipt by former President Trump’s businesses of expenditures from these entities while Mr. Trump was in office created conflicts of interest.

The Huawei payment (for a conference in Las Vegas) was minor, but CEFC maintained a property in Trump Tower for the entirety of Trump’s term.

In 2012, Hong Kong Huaxin Petroleum Company Limited—a wholly owned subsidiary of CEFC—bought an apartment in Trump World Tower for $5.25 million dollars.235 Hong Kong Huaxin Petroleum Company Limited maintained this property throughout the Trump presidency.236 Records provided to the Committee by Mazars and court documents indicate that Hong Kong Huaxin Petroleum Limited paid a standard common charge of $3,177.20 every month in 2018.237 CEFC listed its apartment at Trump World Tower for sale on October 20, 2020.238 On January 26, 2022, CEFC sold the unit to an anonymous LLC named “845UN 78B LLC” for $4.625 million.239

Assuming that the base charges did not change during the four years of the Trump presidency, Hong Kong Huaxin Petroleum Limited paid Trump World Tower at least $152,505 during the four years of the Trump presidency.240

James Comer has falsely claimed that because Joe Biden’s brother and son paid back personal loans to the then ex-VP with money they were paid by CEFC-associated businesses, it amounts to being paid by CEFC directly (again, during a period when Biden was a private citizen). But meanwhile, by halting Mazars’ compliance with a Congressional subpoena before it was done, Comer may, himself, be covering up details of Trump’s own payments from CEFC-related funds.

“Whether Others … Said Untrue Things on the Internet Does Not Exonerate” Trump

Obstinately adhering to the pre-existing pre-trial schedule even though Trump’s immunity appeal has stayed all deadlines, Jack Smith just submitted a motion in limine asking to exclude a bunch of things from any eventual January 6 trial.

Altogether, the filing asks Judge Chutkan to exclude the following:

  1. Claims of selective and vindictive prosecution that will be settled when Chutkan rules on Trump’s motion to dismiss on the same topic
  2. Claims of investigative misconduct based on Carol Leonnig’s misleading article about the investigation
  3. Topics — such as claims that the First Amendment covers his alleged fraud — that are matters of law
  4. The consequences Trump might face, including electoral, if the jury convicts
  5. Claims that law enforcement did not adequately prepare for January 6
  6. Claims that January 6 was a FedSurrection incited by undercover feds
  7. Claims that the disinformation of foreigners, and not Trump’s own lies, mobilized January 6
  8. Discussions of revisions to the Electoral College Act passed to prevent Trump from criming (in this particular way) again
  9. Opinions from others about Trump’s state of mind
  10. Attempts to elicit witnesses to invoke privileges — such as attorney-client or Speech and Debate

The most important of these is what I’ve listed as number 9: an attempt to get witnesses to expound about what Trump’s state of mind was.

The defendant’s state of mind during the charged conspiracies will be a key issue at trial. Both parties will introduce circumstantial evidence of the defendant’s state of mind, and the defendant may choose to testify himself. But the defendant should be precluded from eliciting speculative testimony from any witnesses other than himself about the defendant’s state of mind or beliefs about the election or his claims of election fraud. In the particular circumstances here, such testimony—which would go to an ultimate issue for the jury’s consideration—would be speculative, unhelpful to the jury, and unfairly prejudicial, and should thus be excluded.

Eliciting such speculation from witnesses about what the defendant knew or believed would violate Rule 602’s precept that all non-expert witnesses must testify based only on “personal knowledge,” and Rule 701’s requirement that non-expert witnesses can provide opinion testimony only if it is based on personal knowledge and is helpful to the jury.


Allowing witnesses to share their personal views about the defendant’s state of mind likely will only distract the jury from its duty to assess and weigh the facts, as opposed to the speculation of fact witnesses. Because a witness’s personal opinion about the defendant’s beliefs or knowledge has little or no probative value, any weight the jury gives to it is likely to be undue and based on improper considerations.

This is the kind of testimony that Trump-friendly witnesses — even Mike Pence!! — have often offered in the press. And Trump could call a long list of people who’d be happy to claim that Trump believed and still believes that the election was stolen.

But as the filing notes, that would be inadmissible testimony for several reasons. It would also be a ploy to help Trump avoid taking the stand himself.

That said, there are several quips in the filing, which was submitted by Molly Gaston (who has had a role in earlier Trump-related prosecutions), that are more salient observations about Trump.

For example, in one place, the government argues that Trump should not be able to argue (as he has in pretrial motions) that it’s not his fault if his rubes fell for his lies.

A bank robber cannot defend himself by blaming the bank’s security guard for failing to stop him. A fraud defendant cannot claim to the jury that his victims should have known better than to fall for his scheme. And the defendant cannot argue that law enforcement should have prevented the violence he caused and obstruction he intended.

Relatedly, the government notes that it doesn’t matter if (as he has also argued) foreign actors also spread disinformation.

Next, any argument that foreign actors—rather than the defendant, and his ceaseless, knowingly false claims of election fraud—were responsible for inflaming his followers and causing the Capitol riot is nothing more than an infirm third-party guilt defense.


[I]n any event, whether others—be they civilians or foreign actors—said untrue things on the internet does not exonerate the defendant for the lies he told to his followers or the criminal steps he took to illegally retain power.

In 2016, Russians got too much credit for the lies they told on the Internet, absolving the more effective right wing trolls (some of whom themselves had ties to Russia) with which Trump had direct ties. In advance of his trial, Trump has tried to repeat that error, blaming Russia (and China) for his far more systematic and powerful lies.

While Judge Chutkan won’t have opportunity to rule on this motion for months yet, Molly Gaston is trying to lay a marker that, this time, Trump will be credited for the power and effect of his own lies.

In Lev Parnas Investigation, SDNY Decided that Ivana Trump Is Not Political

I really should be writing a responsible article describing, in detail, the three phases of the Lev Parnas investigation. But instead, I need to obsess about Ivana Trump.

There were, roughly speaking, three phases of the investigation into Parnas:

January through August 2019: Campaign Finance crimes

The first — which I laid out here — focused primarily on the campaign finance crimes. SDNY obtained two warrants in this period:

  • January 18, 2019, 19 MJ 1729: For Yahoo and Google content
  • May 16, 2019, 19 MJ 4784: For iCloud content

When DOJ did a search of Parnas and Fruman’s residences the day they were arrested, the only crime listed on the warrants were the campaign finance crimes; they did this to hide the scope of the ongoing investigation. SDNY only unsealed the Fruman warrant, not the Parnas one (nor warrants in other districts targeting their co-defendants).

August through December 2019: Foreign Agent suspicions

After the firing of Marie Yovanovitch, SDNY investigated whether all Lev Parnas and Igor Fruman’s influence-peddling served the interests of foreign principals — chiefly Ukrainian prosecutor Yuriy Lutsenko, but also other Ukrainians and maybe some Russians too.

SDNY obtained at least 8 warrants in this period (there are at least two, 19 MJ 7594 and 19 MJ 9830, which must be related — perhaps targeting their Russian backer, Andrey Muraviev? — but which SDNY withheld). And SDNY also withheld the November 2019 warrants targeting Rudy Giuliani.

  • August 14, 2019, 19 MJ 7593: Yahoo and Google content since January, with expanded focus
  • August 14, 2019, 19 MJ 7595: Existing Yahoo and Google content, with expanded focus
  • October 17, 2019, 19 MJ 7595: Actual authorization of the warrant approved in August
  • October 21, 2019, 19 MJ 9829: iCloud content since May
  • October 21, 2019, 19 MJ 9831: Devices from Dulles
  • October 21, 2019, 19 MJ 9832: Existing iCloud content for expanded focus
  • November 4, 2019: Warrants targeting Rudy
  • December 10, 2019, 19 MJ 11500: Stuff seized from residences for foreign agent focus
  • December 10, 2019, 19 MJ 11501: Instagram

As I’ll return to, it looks like Bill Barr intervened to halt SDNY’s expanding investigation even earlier than previously disclosed, in December 2019 rather than January 2020.

The only additional warrants SDNY served after December 10, 2019 in the foreign agent investigation was a warrant obtained in March 2020 because Fruman had not synced his iCloud with his phone until after SDNY obtained the May 2019 warrants, meaning some of the texts and chats he had already sent were not in the earlier warrant return.

  • March 20, 2020, 20 MJ 3074: iCloud content obtained with October 21, 2019 to cover earlier periods

Effectively, SDNY discovered that they had obtained content in October 2019 pertaining to events in 2018 and earlier in 2019 that hadn’t been available when they first got Fruman’s iCloud in May 2019, so they asked to use the October 2019 warrant for the earlier periods.

This may mean that Fruman, like Parnas, deleted some of his content on his phones.

December 2019 through March 2020: Fraud Guarantee fraud

Starting on December 12, 2019 — two days after the foreign agent investigation halted — SDNY spent several months trying to figure out what Fraud Guarantee actually was.

  • December 12, 2019, 19 MJ 11651: Google for longer period and expanded focus
  • January 21, 2020, 20 MJ 740: Existing email content for expanded focus
  • February 28, 2020, 20 MJ 2240: Google from creation date for Fraud Guarantee
  • February 28, 2020, 20 MJ 2241: Parnas iCloud for expanded focus

SDNY originally had believed, in 2018, that Fraud Guarantee was a recent creation, one serving as another means to launder political donations. But they had to keep digging further and further back, to 2012, to try to figure out what Fraud Guarantee really was.

The Instagram pivot

I’m still triple checking my own work, but SDNY appears not to have complied with SDNY’s order to release all this backup. In addition to withholding the warrant for the search of Lev Parnas’ residence on October 9, 2019 (though that’s likely to be nearly indistinguishable from the one used to search Fruman’s residence, which was obtained in the same docket), I don’t think they released the affidavit for the December 10, 2019 search of the devices seized at the residences for foreign agent crimes.

That’s the one that should have the most expansive description of the foreign agent investigation (and, I suspect, of the financing behind the effort to fire Marie Yovanovitch and obtain dirt on Hunter Biden, which I’ll return to). I suspect the affidavit is closer in content to the one used to seize Rudy’s email in November 2019 than what was unsealed the other day.

The Instagram warrant obtained that same day necessarily used a different affidavit, partly because it included all the crimes under investigation (broadly, the campaign finance crimes and the suspected foreign agent crimes), but also because it was looking for a different kind of information: mostly, but not entirely, photos that Parnas had posted.

But there’s something really weird about it, which has made me obsess about Ivana Trump.

The warrant suggests SDNY learned about the Instagram account from this WSJ video.

As you’ll note, WSJ describes that the oldest thing on the account was an April 2015 photo of a dog, then this photo, showing Parnas and co-defendant David Correia with Ivana Trump, at what he billed as a “Fraud Guarantee pow wow.”

As WSJ notes, the next things in Parnas’ Instagram account are photos showing him getting access to Trump from very early on in Trump’s campaign, in 2015 (as I’ll return to, Parnas’ 2016 access peddling is something that the warrants focus on more than the coverage of Parnas ever did). Then there’s a break in the Instagram account until summer 2018, when it returns to its focus on political access. The Instagram shows Parnas’ work with Rudy to dig up dirt on Hunter Biden and the 2016 election. It ends (again, per WSJ), with their trip days after the Perfect Phone Call to Madrid, to continue that effort.

SDNY obtained this warrant just two days before the investigation shifted focus to Fraud Guarantee. When they obtained the warrant, they undoubtedly had all the questions they spent the next two months pursuing.

Yet SDNY limited the temporal scope of this warrant to postings starting on October 1, 2015 — effectively excluding only the photo of the dog and some event with Ivana trump six months before Parnas started insinuating himself into Trump’s political orbit, one pertaining to Fraud Guarantee.

To the extent materials are dated, this warrant is limited to materials created between October 1, 2015, which is the month in which it appears Parnas first posted a photo related to a political event, to the present.

Did Ivana have some pre-existing relationship with Lev Parnas, one that dates to months before Lev started serially insinuating himself into Donald Trump’s orbit?

And if she did, why didn’t SDNY want that photo?

Don Jr Confesses He and Douglass Mackey Were “Put on Lists” Together

In an interview of far right troll and now convicted felon Douglass Mackey yesterday, Don Jr confessed that he and Mackey had frequented the same lists back in the day.

DONALD TRUMP JR. (HOST): And with that, guys, joining us now is Doug Mackey. Again, if you guys were in the meme wars, like, early adapters like me back in 2015 and ’16, you’ll know him as Ricky Vaughn. But Doug, for the people watching — and it’s great to have you. You know, I know — we’ve probably gone back and forth on Twitter back in the old days and DMs, and I’m sure we were put on lists way back then. But for the people watching, can you explain what happened here? I mean, you literally ran a Twitter account named Ricky Vaughn. And you got charged for posting a meme. What’s going on?

Later in the interview, Trump Jr. told Mackey that his Ricky Vaughn account was “awesome” and “may be my favorite Twitter account of all time” and “maybe the best of all time.” [my emphasis]

I find that particularly interesting, because there’s a troll in the troll rooms released as part of Mackey’s trial named P0TUS Trump. I’ve always wondered whether it could be Don Jr.

I had that suspicion not just because of the name, but also because P0TUS Trump always seemed even more focused on the WikiLeaks releases than the others. The others were busy conducting far more sophisticated campaigns.

On October 12, 2016, as everyone else was excited that Mackey had been added back to their group after being banned, P0TUS Trump was instead pushing #PodestaEmails3.

An hour later, in a conversation with Mackey co-conspirator MicroChip, he pushed #PodestaEmails4.

The next day, as MicroChip and unindicted co-conspirator HalleyBorderCol were casting doubt on claims that Trump was a rapist, P0TUS Trump again was focused on WikiLeaks.

That monomaniacal focus on WikiLeaks while everyone else was focused on other things came in the days after — according to the SSCI Report — WikiLeaks had DMed Don Jr at his normal Twitter account (for which Mueller obtained.a warrant in October 2017) directly to get him to push hashtags, including pertaining to PodestaEmails4.

(U) WikiLeaks also sought to coordinate its distribution of stolen documents with the Campaign. After Trump proclaimed at an October 10 rally, “I love WikiLeaks” and then posted about it on Twitter,1730 WikiLeaks resumed messaging with Trump Jr. On October 12, it said: “Strongly suggest your dad tweets this link if he mentions us … there’s many great stories the press are missing and we’re sure some of your follows [sic] will find it. btw we just released Podesta Emails Part 4.”1731 Shortly afterward, Trump tweeted: “Very little pick-up by the dishonest media of incredible information provided by WikiLeaks. So dishonest! Rigged System!”1732 Two days later, Donald Trump Jr. tweeted the link himself: “For those who have the time to read about all the corruption and hypocrisy all the @wikileaks emails are right here:”1733 Trump Jr. admitted that this may have been in response to the request from WikiLeaks, but also suggested that it could have been part of a general practice of retweeting the WikiLeaks releases when they came out. 1734 [my emphasis]

WikiLeaks remained focused on cultivating Don Jr for at least another year, trying to get him rather than Roger Stone to take the lead on a pardon for Julian Assange, and when that didn’t happen, posting ominous warnings about dropping the source code Josh Schulte had stolen under the Vault 8 label.

And that’s just what’s public.

Imagine if the former President’s failson had a private identity, one playing right along with two men who have been convicted of conspiring to harm the civil rights of Hillary Clinton supporters, the same crime, 18 USC 241, for which Trump now stands accused.

Former WikiLeaks Task Force Member Charles McGonigal Didn’t Take Credit for the Josh Schulte Investigation

There’s something about the second Josh Schulte trial I’ve always meant to go back and lay out. It pertains to what I think of as Schulte’s “Guccifer Gotcha.”

Throughout the trial, Schulte, who was representing himself, often got caught up in proving — right there in the courtroom — that he was the smartest guy in the room. That often (particularly with prosecutors’ technical expert and a former supervisor) led Schulte to get entirely distracted from proving his innocence. He focused on proving he was smart, rather than not guilty.

A particularly revealing instance came with Richard Evanchec who, as a member of New York Field Office’s Counterintelligence Squad 6 that focused on insider threats, was one of the lead FBI agents on the Schulte investigation.

On direct, Evanchec had described how before, August 2016, Schulte had only done three searches — ever — on WikiLeaks, but he did 39 searches between August 2016 and January 2017, when WikiLeaks announced Vault 7. (This exhibit is from Schulte’s first, 2020 trial; because the exchange below describes the August 16 search as the first one, I believe the one from his 2020 trial may not have included the Snowden search.)

Schulte started his cross on this topic by asserting that Evanchec had “made [a] grave mistake” in calculating Schulte’s Google searches.

[Reminder: these transcripts were paid for by Wau Holland foundation, which has close ties to WikiLeaks.]

Q. Additionally, sir, did you realize that you made the grave mistake in calculating the Google searches during this time period?

A. I don’t.

Q. You don’t recall that.

A. No.


Q. Did you not realize, sir, that 80 percent of the searches you claim that I conducted for WikiLeaks were not actually searches at all?

A. I don’t know that, sir, again.

Q. Sir, are you familiar with the service Google offers called Google News?

A. I am not. I don’t use Google regularly or gmail regularly so I don’t know what that is.

Schulte then walked Evanchec through how a Google News search and a related page visit search show up differently in the logs, demonstrating the concept with some activity from early morning UTC time on August 17, 2016 on Schulte’s Google account.

Q. Did you know that Google makes a special log in its search history when you are using Google News?

A. I don’t. I am not aware of that.


Q. OK. Entry no. 12954.

A. Your question, sir?

Q. Can you read just the date that this search is conducted?

A. Appears to be August 17 of 2016 at 2:45:07 UTC.

Q. Can you read what the search is?

A. Searched for pgoapi.exceptions.notloggedinexception. Then there is: (

Q. OK. And then the search after it, Google has it, produces it in the opposite direction so the one after that. Can you read that?

A. You are referring to line 12953?

Q. Yes. I’m sorry. Thank you.

A. Tease [sic] OK. Again August 17, 2016, 2:35:27

Schulte then got Evanchec to admit that the FBI agent didn’t consult with any FBI experts on Google before he did his chart of Google searches.

Q. So you basically, just as a novice, opened up this document and just based on no experience, you just picked out lines; correct?

A. No.

Q. No. You did more?

A. Yes. I queried for every time this history set searched for and then included the search terms. That’s what I culminated in my summary.

Q. OK, but you didn’t run that by any of the technical experts at the FBI, did you?

A. Not that I recall.

Q. And you said you didn’t reach out to Google or anyone with expertise, correct?

In his close, Schulte claimed that the exchange showed that all the Google searches he did between August 2016 and January 2017 were based off a Google news alert, and what drove the number of searches was the degree to which WikiLeaks was in the news because of the DNC hack-and-leak.

Mr. Lockard then brings up the Google searches for WikiLeaks, but of course, as Agent Evanchec testified, there were multiple news events that occurred in the summer of 2016. WikiLeaks dumped the Clinton emails. Really? Come on. Everyone was reading that news — Guccifer 2.0. The Shadow brokers released data, and even WikiLeaks claimed to have that code.

No doubt Schulte did demonstrate clearly to Evanchec that he didn’t did look closely at the logs of these searches and that he — Schulte — knew more about Google searches than one of the agents who had led the investigation into him did.

He was the smartest guy in the room.

But in the particular search in question — one that would have been before midnight on August 16, 2016 on the East Coast — what Schulte appears to have shown is that among all the Google news alerts reporting on a flood of news about WikiLeaks, one of the only alerts that he clicked through was one reporting WikiLeaks’ claim to have a tie to ShadowBrokers.

WikiLeaks on Monday announced plans to release a collection of “cyber weapons” purportedly used by the National Security Agency following claims that hackers have breached a division of the NSA said to deal in electronic espionage.

“We had already obtained the archive of NSA cyber weapons released earlier today and will release our own pristine copy in due course,” WikiLeaks said through its official Twitter account Monday.

Individuals calling themselves the “Shadow Broker” claimed earlier in the week to have successfully compromised Equation Group — allegedly a hacking arm of the NSA — and offered to publicly release the pilfered contents in exchange for millions of dollars in bitcoins.

At a threshold level, Schulte’s gotcha doesn’t show what he claimed it did. It showed that among the flood of news about WikiLeaks — almost all focused on the DNC hack-and-leak — he clicked through on stories about an upcoming code release. “Everyone was reading that news — Guccifer 2.0,” Schulte said. But he wasn’t. He clicked on one Guccifer story. He was sifting past the Guccifer news and reading other stuff. Schulte caught Evanchec misreading the Google logs, but then went on to misrepresent the significance of what they showed, which is that amid a flood of news about the DNC hack-and-leak, he was mostly interested in other stuff.

More importantly, once you realize that Evanchec hadn’t looked closely at the logs of these Google searches, something about his first demonstrative — showing just these three searches before August 2016 — becomes evident.

July 29, 2010: Searched for “WikiLeaks”

  • Visited webiste [sic]

July 30, 2010: Searched for “WikiLeaks ‘Bastards’”

  • Visited website titled “WikiLeaks Plans to Post CIA Chiefs Hacked Emails” on The Hill

July 6, 2016: Searched for “WikiLeaks Clinton Emails”

  • Visited website titled “WikiLeaks Dismantling of DNC Is Clear Attack By Putin on Clinton” on The Observer

For at least two of these searches, the date in Evanchec’s demonstrative cannot reflect the actual date of the search.

The story, “WikiLeaks Dismantling of DNC Is Clear Attack By Putin on Clinton” — one of the first ones concluding from the DNC hack that Putin was involved — was not posted until July 25, 2016, yet Evanchec’s demonstrative says the search happened weeks earlier.

The story, “WikiLeaks Plans to Post CIA Chiefs Hacked Emails,” describing the Crackas With Attitude hacks of top intelligence community figures in advance of the 2016 operation, dates to October 21, 2015. Evanchec described Google records that say the search happened five years before the article was posted.

Neither of those searches could possibly have been done on the date in Evanchec’s demonstrative, which Schulte — in spite of his obsession with being the smartest guy in the room — undoubtedly knew but didn’t point out at trial.

Schulte got his gotcha. It didn’t help him secure acquittal (or even another hung jury). And it got me, at least, to look more closely at what it proves, which is that at least two of the manual searches Schulte did, searches that sought out very select stories, seemed to obscure the date of the search.

As I said, I’ve been meaning to post this ever since it happened at trial.

I’m revisiting it, though, because of something remarkable about Charles McGonigal’s sentencing memo. Unsurprisingly,  his attorney, former Bill Barr flunkie Seth DuCharme, lays out a bunch of the important FBI investigations that McGonigal was a part of over his 22-year FBI career to describe what service he has done for US security: TWA Flight 800, the 1997 investigation into attempted subway bombers Gazi Ibrahim Abu Mezer and Lafi Khalil, the investigation into the 1998 bombings of US embassies in Africa, the 9/11 attack, the 2002 abduction of a Wooster County, OH girl, the Sandy Berger investigation, the RICO investigation of Huawei Technologies Co.

The government, in their own sentencing memo, includes a footnote suggesting that McGonigal is fluffing his role in at least one of these investigations.

The law enforcement and counterintelligence agents who reviewed McGonigal’s cited exploits noted that he often claims credit for operations in which his personal involvement was less significant than the operation itself. For example, in both his classified and unclassified submissions, McGonigal may describe a significant investigation where he—along with many other officials—was simply somewhere in a lengthy chain of command. (See PSR ¶ 82). Thus, to the extent this Court is inclined to parse McGonigal’s career achievements, the Government respectfully submits that it should limit its analysis to the specific actions that McGonigal personally took. See United States v. Canova, 412 F.3d 331, 358-59 (2d Cir. 2005) (Guidelines departure for exceptional public service warranted where defendant served as volunteer firefighter “sustaining injuries in the line of duty three times,” “entering a burning building to rescue a threeyear old,” “participated in the successful delivery of three babies,” and administered CPR to persons in distress both while volunteering as a firefighter and as a civilian).

One example where McGonigal claimed credit for being in a lengthy chain of commend must be the Huawei investigation, one that Seth DuCharme would also have worked on in the period when he and McGonigal overlapped in NY, from 2016 until 2018. The 2020 press release that DuCharme links to about that investigation, from over a year after McGonigal retired, includes two paragraphs of recognition, including units far afield from counterintelligence.

But one investigation included in McGonigal’s sentencing memo where he did have more involvement is the original WikiLeaks Task Force.

Mr. McGonigal later led the FBI’s WikiLeaks Task Force investigating the release of over 200,000 classified documents to the WikiLeaks website—the largest in U.S. history—ultimately resulting in the 20-count conviction of Chelsea Manning for espionage and related charges.

Charles McGonigal did have a significant role in the first criminal investigation of WikiLeaks, one conducted five years before his retirement.

And that’s why it’s weird that McGonigal doesn’t describe that, in the 18 months before he retired, including in the period between May 2017, when he received a report describing Oleg Deripaska’s ties to GRU, and the period, starting in March 2018, when McGonigal first started interacting with Deripaska’s deputy, Yevgeny Fokin, whom McGonigal allegedly identified as a Russian intelligence officer and claimed to want to recruit, a unit McGonigal supervised solved a WikiLeaks compromise even more damaging and complex than Chelsea Manning’s had been four years before.

Charles McGonigal doesn’t claim credit for the arrest of Josh Schulte and charges filed, over two years after the compromise, for the Vault 7 attack, something in which his team had a more central role than in the Huawei case, something that was every bit as important to national security.

By that point, WikiLeaks had ties to Russia not just through Israel Shamir but also — at least through a shared lawyer — with Oleg Deripaska. That shared lawyer almost negotiated immunity for Assange in exchange for holding off on the Vault 7 leaks.

Now, I’m not at all suggesting that McGonigal was responsible for that fucked up Google analysis, which Schulte would mock five years later. There would have been several levels of management between McGonigal and that analysis. Evanchec simply didn’t look closely enough at the Google metadata, and so didn’t see that those searches were even more interesting than he understood.

But what McGonigal would have known, when he was meeting Deripaska personally in 2019, was that the FBI hadn’t discovered that Schulte had somehow obscured when he did his search on WikiLeaks’ role in embarrassing CIA Director John Brennan and National Security Director James Clapper in 2015, in advance of the 2016 election attack, that he had likewise obscured the date when he searched on Putin’s role in the DNC hack-and-leak. The FBI didn’t even know that in 2022, by the second trial.

McGonigal may also have known what someone associated with WikiLeaks told me, in 2019, that the FBI had learned about Schulte: that he had somehow attempted to reach out to Russia.

To be clear: None of this is charged. There’s no evidence that McGonigal shared details he learned as NYFO’s counterintelligence head, about the WikiLeaks investigation, to say nothing about NYFO’s investigation of oligarchs like Deripaska. McGonigal’s case has been treated as a public corruption case, not an espionage case. So it may be that SDNY has confidence that McGonigal didn’t do anything like that.

But this risk — the possibility that McGonigal could have shared investigative information with Deripaska — doesn’t show up in SDNY’s sentencing memo. SDNY makes no mention of how obscene it is that DuCharme wants his client to get probation when any witnesses implicated in the investigations McGonigal oversaw would never know whether he had shared that information with Deripaska.

That includes me: As I have written, in August 2018, the month before McGonigal retired, someone using one of the ProtonMail accounts Schulte and his cellmate used reached out to me. I have no idea why they did that. But I’d love to know. I’d also love to know whether McGonigal learned of it and shared it.

It makes sense that McGonigal doesn’t emphasize what SDNY did on their own sentencing memo: That McGonigal went from supervising investigations into Deripaska to working for him, allegedly knowing full well he had ties to Russian intelligence. But the tie between WikiLeaks and Deripaska is more obscure, and so he could have bragged that twice in his career he led substantial investigations into WikiLeaks. Schulte’s third trial, for Child Sexual Abuse Material, even happened after Judge Jennifer Rearden became a judge in October 2022.

McGonigal could have bragged that twice in his career, in 2014 and in 2018, teams he oversaw solved critical WikiLeaks compromises. He only claimed credit for the first of those.

Update: Corrected Fokin’s first name.

The May 2017 Report Tying Oleg Deripaska to Russian Intelligence

I’m working on a longer post about the sentencing submissions (McGonigal; SDNY) for Charles McGonigal’s SDNY case — the former head of counterintelligence for FBI’s New York Field Office. He will be sentenced in that case on Friday; he will be sentenced in his DC case in February.

The submission for McGonigal submitted by former Bill Barr flunkie Seth DuCharme argued that McGonigal’s crime, researching a rival oligarch for Oleg Deripaska after he retired in 2018, is no big deal because DOJ has sanctioned Deripaska’s rival, Vladimir Potanin, since that time.

[W]hen compared to other conduct for which the government has brought criminal charges, it bears repeating that here the crime was clearly malum prohibitum rather than malum in se—in other words, the defendant’s intent in agreeing to provide an SDN with information to be used for business competition purposes is far less serious than the criminal conduct in other IEEPA-related cases. [links added]

DuCharme asks for a probation sentence.

As you can imagine, SDNY has a lot to say about that in response. DuCharme, whom PACER does not show as having taken many, if any defendant, through sentencing since he left DOJ in 2021, really invited SDNY to throw a lot of damaging information at McGonigal.

One thing SDNY did was explain why McGonigal knew working for Deripaska was more damaging than that. One thing they note is that in January 2018, before he left the FBI, McGonigal reviewed a list of oligarchs, including Deripaska, under consideration for sanctions.

McGonigal knew full well that Deripaska was sanctioned. As SAC, McGonigal supervised and participated in investigations of Russian oligarchs, including Deripaska. (PSR ¶ 19).


And in January 2018, McGonigal received and reviewed a then-classified list of Russian oligarchs with close ties to the Kremlin who would be considered for sanctions to be imposed as a result of Russia’s 2014 attack on Ukraine. (PSR ¶ 19).

That detail was in the indictment.

As SAC, McGonigal supervised and participated in investigations of Russian oligarchs, incl uding Deripaska . Among other things, in 2018, McGONIGAL , while acting as SAC, received and reviewed a then-classified list of Russian oligarchs with close ties to the Kremlin who would be considered for sanctions to be imposed as a result of Russia ‘ s 2014 conflict with Ukraine .

But there’s a detail DOJ has since gotten declassified, one of those “other things” only alluded to in the indictment: before McGonigal started pursuing ties with Albania while still at FBI, he received a report “stating that Deripaska was associated with a Russian intelligence agency.”

Among other things, in May 2017, McGonigal received a then-classified email stating that Deripaska was associated with a Russian intelligence agency, and possibly involved in that agency’s coup attempt in another country. (PSR ¶ 19).

By context, the agency must be GRU and the attempted coup must be Montenegro, a country implicated in McGonigal’s other prosecution — one where Paul Manafort had an extensive history with Deripaska and one mentioned in Andrew Weissmann’s Team M report. See also this post Rayne wrote on related topics.

In other words, this strongly suggests that in the same month when Rod Rosenstein appointed Robert Mueller to investigate how GRU tampered in the 2016 election, McGonigal received a report tying Deripaska to the GRU.

Then he went on to agree to work for Deripaska anyway, hoping to make millions from a guy with a key role in the 2016 attack on American democracy.

And Bill Barr’s flunkie, Seth DuCharme — the guy who helped set up a way for Rudy Giuliani to share information from Russian-backed Ukrainians to be funneled to the Hunter Biden investigation — thinks that McGonigal should be sentenced to probation as a result.

NYT Covers Up the Still-Ongoing Trump-Russian Effort to Frame Joe Biden

The reason I have so little patience for NYT’s decision to dedicate the resources of three senior reporters to warn about the dangers of a second Trump term is not that I disagree about the second term. They’re right that it would be far worse.

It’s that the same reporters continue to downplay Trump’s past corruption — some of which Maggie Haberman specifically enabled — and outright ignore the ongoing effects of it.

Imagine how much healthier American democracy would be if the NYT dedicated just half of the time and space that went into the eight, often repetitive stories on this topic to instead lay out how the ongoing effort to impeach Biden is a continuation of Trump’s efforts, made with the assistance of men now deemed to be Russian spies by both the US and Ukraine, to frame Joe Biden?

  1. December 4: Why a Second Trump Presidency May Be More Radical Than His First
  2. November 15/December 2: How Trump and His Allies Plan to Wield Power in 2025
  3. November 11: Sweeping Raids, Giant Camps and Mass Deportations: Inside Trump’s 2025 Immigration Plans
  4. November 1: Some of the Lawyers Who May Fill a Second Trump Administration
  5. October 31: If Trump Wins, His Allies Want Lawyers Who Will Bless a More Radical Agenda
  6. July 17: Trump and Allies Forge Plans to Increase Presidential Power in 2025
  7. June 21: Few of Trump’s G.O.P. Rivals Defend Justice Dept. Independence
  8. June 15: The Radical Strategy Behind Trump’s Promise to ‘Go After’ Biden

NYT appears not to have assigned a single reporter to chase down the following allegations that have come out of the GOP impeachment effort:

  • Bill Barr’s DOJ shut down a corruption investigation into Mykola Zlochevsky — which had been opened in January 2016, while Biden was VP and Hunter was on the board of Burisma — in December 2019, right in the middle of an impeachment defense claiming to prioritize the investigation of Burisma’s corruption.
  • Days later, Barr set up a rickety effort to ingest the dirt Rudy Giuliani had obtained, including from known Russian agent Andrii Derkach and possibly from Burisma itself, without being forced to prosecute Rudy for soliciting dirt from known Russian agents. One of several details we’ve learned since NYT’s superb past reporting on this effort (besides that Scott Brady’s testimony completely conflicts with that past NYT report), is that Brady mined information from the newly closed Zlochevsky investigation to obtain an FD-1023 recording Zlochevksy making new claims about Joe Biden around the same time in 2019 as Barr shut down the investigation into Zlochevsky, claims that were utterly inconsistent with what he had said months earlier.
  • Hunter Biden’s lawyer claims, backed by newly disclosed communications, that Tony Bobulinski falsely told the FBI on October 23, 2020 that he had personally attended a February 2017 meeting at which he saw CEFC’s Chair hand Hunter Biden an enormous diamond. That meeting with the FBI took place one day after attending the October 22, 2020 debate with Donald Trump. Weeks later, according to Cassidy Hutchinson, Bobulinski and Mark Meadows had a covert meeting at a campaign stop; she claims she saw Trump’s chief of staff hand Bobulinski, “what appeared to be a folded sheet of paper or a small envelope.”
  • Separately, Hunter Biden partner Rob Walker described the concerns he and Hunter had about Bobulinski’s business ties to Russians, possibly including Viktor Vekselberg.
  • In addition to the informant report on Zlochevsky’s changed claims about Biden, there were three other dodgy informant reports shared with the Hunter Biden team: from two Ukrainians that seem tied to the Rudy effort, from Gal Luft at meetings where — he has since been accused — he lied about his ties to CEFC, and from Bannon associate Peter Schweizer (the latter of which this important NYT story on Tim Thibault did address).
  • Throughout this period, the IRS supervisor on the investigation documented repeated examples of improper influence on the investigation. In a recent subpoena request, Hunter’s attorney noted that Trump’s improper effort to influence the investigation continues to this day.

In short, basic reporting on Republican efforts to impeach Biden show that it, along with key parts (though not necessarily all) of the investigation into Hunter Biden, are simply a continuation of an effort Trump started in 2018 to frame Joe Biden. That is an effort that involved people that both the US and Ukraine have labeled as Russian spies.

Aside from some key articles (linked above), NYT has covered none of this.

Instead, NYT claims the exact opposite. It claims that the effort to gin up a criminal investigation into Joe Biden didn’t succeed.

And neither effort for which he was impeached succeeded. Mr. Trump tried to coerce Ukraine into opening a criminal investigation into Mr. Biden by withholding military aid, but it did not cooperate.

It’s right there, the full-time pursuit of three different House committees, ongoing, with an FD-1023 about Zlochevsky’s changed claims about Biden and Bobulinksi’s FBI report that seems to have close ties to Trump (in which Bobulinski was represented by a known Maggie Haberman source).

NYT tells you the first term wasn’t that bad, because Trump’s efforts failed. Yet what failed was NYT’s reporting on ongoing events.

NYT tells this fairy tale even as they continue to whitewash Bill Barr’s efforts. In a recent 4,000-word story, in which they claimed that the commutation of Jonathan Braun’s sentence “stood out” more than the pre-trial pardon of Steve Bannon issued the same day, NYT gives Barr two paragraphs to claim he tried to clean up pardons.

William P. Barr, a Trump attorney general who had left by the time of the Braun commutation, said when he took over the Justice Department he discovered that “there were pardons being given without any vetting by the department.”

Mr. Barr added that he told Trump aides they should at least send over names of those being considered so the department could thoroughly examine their records. While the White House Counsel’s Office tried to do so, the effort fell apart under the crush of pardon requests that poured in during the final weeks before Mr. Trump left office, according to people with direct knowledge of the process.

It is true that of the eight pardons given before he arrived, there were some doozies, including Joe Arpaio, Dinesh D’Souza, Scooter Libby, and the ranchers whose arson cases sparked the Malheur occupation.

But Barr was utterly complicit in the most abusive pardons Trump gave. Less than two months after he was confirmed based off repeated assurances that giving a pardon in exchange for false testimony was obstruction, Bill Barr wrote a memo declining to prosecute a crime in process, the effort to use pardons to ensure that Paul Manafort, Roger Stone, Mike Flynn, and others continued to lie to cover up Trump’s ties to Russia in the 2016 campaign. The Barr memo did not once mention pardons, even though that was a key thrust of the second volume of the Mueller Report (something Charlie Savage has also noted).

Of course, NYT joins Barr in that complicity. This story finally mentions one of those pardons in its discussion of Trump’s abuse.

His lawyers floated a pardon at his campaign chairman, whom Mr. Trump praised for not “flipping” as prosecutors tried unsuccessfully to get him to cooperate as a witness in the Russia inquiry; Mr. Trump later did pardon him.

But it does not mention that Manafort specifically lied about why he briefed Konstantin Kilimnik campaign information, an act that the Intelligence Community later stated as fact resulted in the sharing of campaign information with Russian intelligence. This is a topic about which NYT has a still uncorrected story, hiding the tie to Oleg Deripaska.

It’s not that Trump pardoned Manafort for “not flipping.” It’s that he pardoned Manafort after he lied about why the campaign manager shared information that Russian spies could use in their attack on US democracy.

And the very link NYT relies on here mentions the Stone pardon, a commutation and then pardon that halted a still ongoing CFAA conspiracy investigation between Trump’s rat-fucker and the Russians (another detail NYT has never reported).

Yes, I absolutely agree. A second Trump term would be worse.

But repeating that, over and over, even while misinforming readers about the ongoing five year effort to frame Joe Biden is not the best way to prevent a second term.