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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

Not this time.

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

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

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

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

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

Which pretty much confirms that Trump did know about it.

On My Continuing Obsession with Paul Manafort’s iPod Habit

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Peter Strzok’s Out of Scope Polygraph

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

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

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

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

[snip]

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

Paul Manafort’s Four Oligarch Search Warrant

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

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

4 [Entirely redacted footnote]

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

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

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

This redacted reference to Dmitri Firtash.

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

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

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

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

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

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

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

Hmm.

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Devin Nunes Confirms Classified Information that “Henry Greenberg” Wasn’t Working for the FBI, and Other Tales of the Half-Wit Running our Intelligence Oversight

As I’ve been chronicling, Devin Nunes continues his effort to invent some reason to fire Rod Rosenstein. As part of his last extortion attempt, Nunes demanded information he thought would reveal that “Henry Greenberg,” a Russian offering dirt on Hillary Clinton, was secretly working for the FBI.

How did you use our nation’s counterintelligence capabilities. These are capabilities used to track terrorists and other bad guys around the globe. How did you weaponize that against a political campaign, against the Trump campaign, where ultimately it ended up in Carter Page having a FISA warrant put against him which allowed the government to go in and grab all of his emails and phone calls. So that’s primarily what we’ve been investigating for many many months. I will tell you that Chairman Gowdy was very very clear with the Department of Justice and FBI and said that if there was any vectoring of any informants or spies or whatever you want to call them into the Trump campaign before the investigation began, we better know about it by Sunday, meaning today. He was very very clear about that. And as you probably know there’s breaking news this morning that now you have a couple Trump campaign people who are saying that they were, that they’ve amended their testimony before the House Intelligence Committee, they sent in both Friday night and this morning, amendments to their testimony saying that in fact they feel like somebody, they’re not claiming that it was the FBI, but someone ran informants or spies into them to try to get information and offer up Russian dirt to the Trump campaign. Now this would have been in May of 2016. Which is obviously months before this counterintelligence investigation was opened by the FBI into the Trump campaign.

[snip]

If I were them I would pick up the phone and let us know what this is about, this story that broke in the Washington Post, this morning, just hours ago. They probably ought to tell us whether or not they were involved in that or else they have a major major problem on their hands.

Last Friday, DOJ and FBI had provided most of the documents requested, pending a few technical issues and a review by Dan Coats of some intelligence equities. Included among those was a classified letter telling Nunes whether FBI used informants against the Trump campaign.

On June 22, 2018, the FBI submitted a classified letter to the Committee responding to the Chairman’s question regarding whether, in connection with the investigation into Russian activities surrounding the 2016 Presidential election, the FBI utilized confidential human sources prior to the issuance of the Electronic Communication (EC) initiating that investigation.

That answer clearly didn’t feed Nunes’ Witch Hunt conspiracies, so he’s reformulating his request, apparently certain that if he keeps trying he’ll discover the vast (yet totally ineffective) Deep State plot to undermine the Trump campaign. He’s asking for contacts not just between informants, but also undercover agents or confidential human sources who interacted with any of 14 Trump campaign associates.

The new request seeks information not only on “FBI informants,” but also on “undercover agents, and/or confidential human sources” who interacted with former Trump associates before July 31, 2016 — the start of the FBI’s counterintelligence investigation into connections between the Trump campaign and Russia.

The list of Trump associates Nunes indicated he’s interested in includes: Michael Caputo, Sam Clovis, Michael Cohen, Michael Flynn, Corey Lewandowski, Stephen Miller, Peter Navarro, Sam Nunberg, George Papadopoulos, Carter Page, Walid Phares, Joseph Schmitz, Roger Stone and Donald Trump Jr.

It’s a really awesome request. Aside from confirming the content of that classified letter (among other things, that “Henry Greenberg” wasn’t our intelligence asset when Roger Stone entertained offers of Hillary dirt), Nunes has given us a list of campaign associates who should be criminally investigated:

  • Michael Caputo
  • Sam Clovis
  • Michael Cohen
  • Michael Flynn
  • Corey Lewandowski
  • Stephen Miller
  • Peter Navarro
  • Sam Nunberg
  • George Papadopoulos
  • Carter Page
  • Walid Phares
  • Joseph Schmitz
  • Roger Stone
  • Donald Trump Jr.

Notably, a number of these people — Caputo, Cohen, Lewandowski, Miller, Stone, and Navarro — aren’t on the list of document requests Mueller had submitted to the White House by January. Perhaps for the first three plus Stone, that’s because they never worked in the White House (and in the case of Caputo and Stone, pretended not to work for the campaign so as to give the campaign plausible deniability from the rat-fucking).

Nevertheless, their inclusion here seems to confirm that Nunes believes they are targets or at least subjects of Mueller’s investigation. Of those not on Mueller’s January list, we know that Stone and Cohen are in deep shit, so maybe the others are too!

Thanks Devin! Let’s hope leaking that classified information doesn’t get you in trouble with your colleagues, though.

A pity for the guy running our intelligence oversight that he can’t figure out that a number of these targets came from Rick Gates flipping, and not informants planted way back in May 2016.

Ike Kaveladze’s Missing Suit

I’ve been puzzling through something from the June 9 materials for some time: what happened with Ike Kaveladze’s missing suit? Or rather, what does the exchange about his missing suit with his daughter suggest?

I’ll get to the suit in a bit, but first some background. Back in January, I suggested the well-orchestrated public narrative about the June 9, 2016 Trump Tower meeting was a limited hangout. The public narrative fed by defense attorneys (above all, Agalarov lawyer Scott Balber, representing Ike Kaveladze and with him the Agalarovs) never explained why Crocus Group Vice President Kaveladze jumped on a plane from LA to NY — with just two days advance warning — for the meeting. Additionally, the public narrative at least hinted that there was a later part of the meeting not covered by the public narrative.

The materials released by the Senate Judiciary Committee are crystal clear on the first point: Kaveladze, not Rob Goldstone, was actually in charge. Kaveladze describes meeting with Natalia Veselnitskaya before the meeting, and vetting her presentation for his boss, Aras Agalarov.

My purpose [in attending the meeting] was to read that longer synopsis, whatever she had over there, and my understanding was that longer synopsis contained something which I could alarm Mr. Agalarov about — you know, I would alarm him, and he would call off the meeting. That synopsis was about same thing [Magnitsky], so there was no alarm or nothing.

Kaveladze would again be managing Vesenitskaya later in the year, in a bid to get the second meeting Don Jr had tacitly offered, until he finally handed her off to Balber in January 2017. And a year later, when things started to blow up, Emin Agalarov described that “the meeting happened through Ike and my dad,” something Rob Goldstone — who has always gotten public credit for arranging the meeting — happily agreed with.

It was always clear (indeed, Vesenitskaya said so explicitly) that Aras was really the one behind the meeting. Kaveladze’s role in the meeting only reinforces the point. Yet that’s a point that the public narratives — the narratives fed by those who set up the meeting — have all obscured.

As for the second question, whether there was a second part of the meeting, the materials allow for the possibility of either Goldstone staying behind or Kaveladze returning upstairs for a follow-up.

In his testimony, Kaveladze provides a clear description of Goldstone staying behind, and even suggests that’s the only possible time VKontakte, which Goldstone described discussing with Don Jr and Trump in a June 29 follow-up (PDF 20), could have come up. In any case, by Kaveladze’s account, Goldstone did not accompany the rest of the group when they went to the lobby bar for a drink afterwards.

Q: To the best of your recollection, did Mr. Goldstone discuss this VK proposal during the June 9, 2016, meeting?

A: No, unless he stayed after the meeting.

Q: Did you not leave the building with him? Did he remain behind?

A: No, I left the building with Natalia Veselnitskaya, Anatoli Akhmetshin — Anatoli Samochornov and Rinat Akhmetshin.

Q: To the best

A: Correction, correction. We didn’t leave the building. We walked into a Trump bar which was located inside of the building, and after a round o f drinks, I left the building myself. They stayed in the bar .

Goldstone claims he proposed the VK pitch just as the meeting broke up, then took the elevator down with the others, but didn’t stop for a drink because he hopped into an Uber and headed home (a detail that, because of Uber’s data retention, Mueller would easily be able to check). Veselnitskaya’s translator, Anatoli Samochornov isn’t sure, sometimes saying Goldstone went down, sometimes saying he was there, but ultimately saying he didn’t join for drinks. “[T]here were four people. I do not remember Mr . Goldstone being there. So he left at some point, either upstairs or downstairs.” Akhmetshin agrees with Kaveladze that Goldstone wasn’t there. “I don’t think Mr. Goldstone with us — was with us.”

Goldstone’s account deviates from the others’ in another way: he doesn’t mention Ivanka’s presence in the upstairs lobby as the group was leaving, even though his December 15 interview took place after all the others’, which were in November (this is a topic that Mueller brought some witnesses back in for second interviews about). Kavleadze lays this all out very clearly, thanks to the intervention of Balber, who scripted so much of this story.

MR . BALBER : One more question before you leave this topic. Was there anybody you met in the kind of reception area as you were leaving the meeting?

MR . KAVELADZE : Yeah. We were greeted by Ivanka Trump .

BY MR . PRIVOR :
Q. Was she ever present in the meeting?

A: No . She was at the reception. She said hello to us, and we said hello, how are you, and we had, like, polite conversation for maybe 1 minute. And then she told us to have a good day, and we left.

Akhmetshin reports that they spoke “for like 3 seconds.” Samochornov describes only seeing her pass through the lobby without stopping.

That says that if someone stayed behind, it’d have been Goldstone, by himself.

All that said, given that the meeting after the event took place at the bar in the Trump Tower lobby, it’s possible Kaveladze went back upstairs after speaking to Aras by phone. Kaveladze’s narrative has him going to the lobby bar with Veselnitskaya, Samochornov, and Akhmetshin for 15 minutes, receiving a call from Aras, and then leaving.

MR . FOSTER: Okay. So after the June 9th meeting, you talked about how you went downstairs to the bar on the lobby  level of the Trump Tower, and you were there with three other people — Ms. Veselnitskaya, Rinat Akhmetshin, and Mr. Samochornov.

A . Yeah, uh-huh.

Q. Do I have that right?

A . I think Samochornov left slightly earlier, like – – but I’m not sure about Samochornov because — or maybe he stayed, but,  yeah , those — we walked all together and then some of them — and I left in 15 minutes.

Q. And you had a round of drinks with them, we saw. Do you recall what conversation you had during that round of drinks?

A. Mostly about meeting, and out of that 15 minutes, probably 5 minutes I spoke with Mr. Agalarov, and for 10 minutes it was I think they were satisfied with the fact that Mr. Junior has suggested that it might be a second meeting if they win. And so they were talking about that, you know, to prepare for that second meeting.

[snip]

Q. What did you discuss with Mr. Agalarov?

A. In general , the meeting went well. Oh good. Then Natalia asked for the phone, and I passed the phone to her, and she kind of thanked him for helping to organize that meeting.

Q. Did you say anything to Mr. Agalarov about the matter that had given you some concern earlier, the potential information about Hillary Clinton?

A . No, I didn’t discuss it over the phone.

[snip]

Q. Is there anything else you can remember from the conversation other than the two topics that you noted — the theater coming up as well as some happiness about a potential second–

A. I stayed there for, like I said, 15 minutes. No, I don’t think we discussed anything else.

Q. Did you all leave simultaneously?

A. No. I left first.

This would have been around 5:20, given that Agalarov somehow knew the meeting would be done and called to check in at 5:14.

BY MR . PRIVOR:

Q. You stated that when you went to the bar after the June 9th meeting and you were downstairs, that you called Mr. Agalarov

A. No. He called me.

Q. He called you? Okay. I’m sorry. He called you. How did he know — do you know how he knew to call you after the meeting? How would he have known the meeting ended?

A. He gave it a try.

So Kaveladze leaves around 5:20 PM. That means Kaveladze’s estimate that he stayed only for 15 minutes is inaccurate, which is not surprising given that he paid the bill for the drinks, and service in Manhattan is never quick enough to order, get served, and pay in 15 minutes, much less at a Trump facility. Kaveladze’s narrative about general satisfaction with the meeting also matches no one else’s story, which given the claimed content of his call to Agalarov is important

What he does for the next 24 hours is of interest for several reasons. Most of all, it’s interesting because in his first appearance before SJC, Kaveladze neglected to tell the committee that he went from his trip to NYC (for which he got 2 days warning, remember) directly to Moscow to meet with Agalarov, with whom he discusses matters of import face-to-face because, “Agalarov is based in Russia, and I’m pretty sure, you know, his phone is being, you know, monitored.” So his original story is he flew to NY for the meeting, then returned to his home in LA the next day. 

Q. What was your itinerary while in New York during this trip?

A. I stayed for one day, and I returned back home on June 10. My itinerary included only one item as a meeting actually, two items. There was lunch with Natalia Veselnitskaya prior to the meeting and then meeting itself .

[snip]

Q. And so you left the next day on June 10th?

A. Yeah, June 10.

Q. Where did you fly to?

A. Los Angeles.

After some questions about both his phone records and email traffic from SJC questioners, Kaveladze admits that he might have traveled elsewhere in June, but would need to check his records for travel reservations (he claims he doesn’t keep a calendar). In February, as part of submitting errata to the transcript, Balber would alert the committee that Kaveladze had actually traveled to Moscow for over a month-long trip on June 10 (though even after consulting travel records, couldn’t reveal when he had returned).

Before he did that, though, this was this explanation (save his phone traffic, which I’ll get to) from his first appearance that Kaveladze offered for the balance of his time in NYC.

Q. So I believe you said you left on the morning of the 10th; is that correct?

A. Correct.

Q. After leaving the Trump Bar, what did you do with the rest of the day?

A. I do not recall. I might have some meetings with my friends, but nothing business related.

Q. Did you discuss the Trump Tower meeting with any of those friends, to the best of your recollection?

A. I don’t even remember if I had a meeting with friends, so I definitely don’t remember discussing it with them. I think I was kind of tired because of a jet lag, because it was a red eye flight I arrived on, and I went to bed really early.

Given that Kaveladze flew through Frankfurt, and flights from NYC to Frankfurt start after 4PM, he probably remained in NYC through the afternoon of June 10, a full 24 hours after the Trump Tower meeting.

Is it correct that you departed New York City for Russia on June 10th, 2016, the day after the Trump Tower meeting?

A. To be more specific, I departed — on June 10, I have left New York City for Frankfurt, Germany, and I believe I arrive to Moscow on June 11.

One thing we know he did in that 24 hour period was talk to Goldstone. After some dodging, he admits that a call placed to him at around 6:51PM on June 9 must have come from Goldstone, but he doesn’t recall what was said.

Q. Okay. Do you recall whether you did speak to Mr . Goldstone after the June 9th meeting by telephone?

A. I don’t have a recollection, but

MR . BALBER: If you don’t have a recollection —

MR . KAVELADZE: I don’t have a recollection of that phone call.

Goldstone, however, remembers calling him in an angered state.

Q. Did you have any other conversation with him after the meeting, in the immediate time after the meeting that day?

A. I — I believe I would’ve spoken to him by phone later that day, in a sort of angered state.

So Kaveladze spoke to Agalarov right after the meeting, and then sometime two hours later, spoke with Goldstone, who was probably working on the letter he’d send Rhona Graff the next day at 3:41 (PDF 30), a follow-up on the exchange he had with Keith Schiller at Trump Tower about how to send Trump a gift the next week. According to the version presented at his first appearance, Kaveladze then spoke to Agalarov again.

Curiously, even within that first appearance, he offers conflicting evidence about whether he spoke with Agalarov by phone once or twice on June 9.

Q. Okay. So you didn’t do any sort of report after the meeting back to your boss, “Here’s what I did”? You didn’t write a memo?

A. No.

Q. Send an email?

A. No. Just a phone conversation. Two of them, to be specific.

Q. And do you recall when those were?

A. One was within 30 minutes after the meeting ended, and the other one was within 2 to 3 hours after the meeting ended.

Q. Can you describe them to the best of your recollection?

A. As I mentioned before, the first one was basically me reporting that the meeting went well, and the reason I said that because Natalia Veselnitskaya was right next to me. And the next one I said it was complete loss of time.

MR . FOSTER: Okay.

This comes up again later in the interview and Balber carefully coaches Kaveladze to distinguish the first conversation, for which there would have been witnesses, at which he said the meeting went great, and the second, when he said it was a “loss of time,” using the same exact phrase both times.

Q. Did you report back to Aras Agalarov about the meeting?

A. Yes, I did.

Q. How did you describe it to him?

A. That it was complete loss of time and it was useless meeting. But —

MR. BALBER : Was there a prior conversation, though?

MR. KAVELADZE: Yeah.

MR. BALBER: Why don’t you run through both the conversations.

MR . KAVELADZE: Okay. Well, when we walked out of the meeting room and went down to the bar, he called me , and Natalia was present there, and I said, oh, well, everything is fine, we had a great meeting and stuff, because I didn’t want to upset her. But then I believe 2 hours later we had another conversation where I gave details of the meeting, and at that conversation I explained that it was loss of time

The thing is, I don’t believe the second phone call shows up in Kaveladze’s phone log (they’re totally redacted, starting at PDF 50, but there’s no discussion of a second call while he’s in NY as they review his call logs). Though if a call or other communication occurred two hours after the meeting, it may have shortly followed the call from Goldstone. Goldstone, incidentally, also says they exchanged a WhatsApp or other text during the meeting which remained, as of his testimony, undiscovered.

In Kaveladze’s second appearance, he changes his testimony and says no recollection of “that” phone call (which given his imperfect English could mean either the phone call he had described previously, or the notion of an additional phone call).

Q. When you were before the committee a couple months ago and testified previously, we had asked you about a telephone conversation with Aras Agalarov, and we had shown you a telephone bill that showed the time of the call was 5:14 p.m. on June 9th after the meeting . In between that telephone call and your arrival in Moscow, did you have any other conversations that you can recall with Mr. Agalarov?

A. I have no recollection of that, conversations.

But Kaveladze does admit a face-to-face meeting in Moscow.

Q. Was anyone else present for that meeting?

A. Not for that topic. I mean, I had met we had like a private meeting, but you know how there is like — there is like a big room, and there is like people getting in for different issues, and I had like — I had 2 minutes o f his privacy and had this quick conversation.

Q. And with respect to that conversation, as it pertained to the June 9th meeting, was anyone else participating by telephone? Or was it just you and Mr. Agalarov?

A. Just me and Mr. Agalarov.

Q. Do you recall anything else from that conversation, other than having reiterated your belief that it would’ve been better to have Ms. Veselnitskaya meet with lawyers?

A. No, I do not.

So that’s the story: he oversees a meeting, has a short round of drinks, gets a call from his boss, whom he tells everything went swimmingly in spite of the disappointment around the table. Goldstone calls him later that night, he may have another chat with his boss. And then the next day — a day he originally didn’t admit to — he hops on an initially undisclosed flight to Moscow, where he can explain what went on in the meeting to Agalarov face-to-face.

Before he leaves, though, he makes three more phone calls, one to (we learn later) somewhere in NY, and two more, at least one to a Russian mobile phone.

Q. So let’s take a look now at Bates page 282, and you’ll see that this is showing call details for your telephone number. Do you see that?

A. Yes.

Q. At the top of the page, it your telephone number. So I want to point you to June 10th, and you can see the first call on June 10th is at 10:34 in the morning.

A. Uh-huh. Yes.

Q. 10:34. Two numbers down below that, 12:36 and 12:48, do you recognize either of those telephone numbers?

A. No, I do not.

Q. You can see that the destination for the first one, the one that ends in [redacted], says “Russia MOB.” Do you know what that means?

A. Mobile number.

Q. Mobile. And the number immediately below it, the [redacted] number, do you recognize that number?

A. I do not.

Kaveladze dodges a bit until Balber weighs in and asks if he knows the numbers.

MR. BALBER: Okay . The only question is: Do you know the numbers?

MR. KAVELADZE: No.

MR. BALBER: Okay. Then that’s it.

MR. KAVELADZE: I don’t recognize the numbers.

BY MR. PRIVOR:

Q. Would you be able to match the numbers to names in your phone book or your electronic directory?

A. I could try. It’s in my phone book.

When Kaveladze testifies again in March, however, he has not yet checked any of those numbers. He also remains unsure about who he called from Russia, on June 15 and 16, at least one of which was back to New York (apparently a four character name).

That, by itself, isn’t all that interesting. I probably wouldn’t be able to ID the phone numbers I called 15 months ago, cold. Though it does seem that Balber is less than excited about doing the quick check to ID these numbers given that, in spite of a request from the committee, he hadn’t done so for the second appearance.

Anyway, did I say that this post was about Kaveladze’s missing suit?

With all this as background I want to look at what happens overnight on June 14 and 15, when Kaveladze is in Russia, making those calls to people whose identity he won’t ID. As has gotten some press, on June 14, at around 1:08 PM, Goldstone sent Kaveladze this article, citing Trump’s relationship with Putin,  in an email, calling it “eerily weird based on our Trump meeting last with with the Russian lawyers.” Kaveladze replies from Russia at 1:22 ET, 10:22AM PT, or 8:22PM in Moscow.

Nine hours (overnight) later, Kaveladze has a curious email exchange with this daughter, starting at PDF 15.

First some background. Recall that after Agalarov told Kaveladze to hop a plane to NY, and after Kaveladze learned that Paul Manafort, Don Jr, and Jared Kushner would be at the meeting, Kaveladze called Roman Beniaminov, Emin Agalarov’s business assistant in NJ. He asked, “Do you know anything about that meeting? Do you know anything about the fact that we’re going to be meeting with three top political electoral campaign representatives to discuss Magnitsky Act?” To which Beniaminov responded that, as far as he had heard, “attorney had some negative information on Hillary Clinton.” That’s a story, incidentally, telegraphed to the press by Balber after Kaveladze had testified, and after Goldstone had published his rough draft of what he’d testify to, but before he actually testified.

Anyway, later that day, Kaveladze had a conversation with his daughter and probably also his son and told them, with reported concern, that the meeting was going to be about negative information on Hillary.”

Which is how this exchange between Kaveladze and his teenage daughter, taking place 6 days after he left, came about:

June 14, 10:48PM ET IK to daughter: How are you? Could you imagine, I have  left iPad on the plain to New York, and then left my suit in the hotel. Crazy (7:48PM Los Angeles time, June 15, 5:48AM Moscow time)

10:49PM daughter to IK: 1. It’s plane 2. AHAHAHHAHAHAHAHAH 3. Did u get the iPad and suite back?

11:19PM IK to daughter: They have sent iPad to my New Jersey office. Suite is gone.

11:20PM daughter to IK: What about the suite

11:23PM IK to daughter: hotel can’t find it

11:23PM daughter to IK: That seems weird, tomorrow I’m going with [redacted] to six flags

11:23PM IK to daughter: Nice. who is driving u?

11:24PM daughter to IK: [redacted] is getting a big van for me [redacted] and friends

11:25PM IK to daughter: are u gonna do all crazy rides?

11:27PM daughter to IK: Yup how was meeting with Trump people what happened

11:29PM IK to daughter: meeting was boring. The Russians did not have any bad info in Hillary

At a minimum, what this exchange did was sustain a conversation long enough such that Kaveladze could leave a record of telling the one family member he was sure (given his other testimony) he had told he was dealing dirt that in fact no dirt got dealt. While Kaveladze may have been swamped once he got to Moscow, I find it interesting that the exchange didn’t happen until six days after he left, and only after Goldstone had raised concerns that just after their meeting, the press reported that dirt on Hillary got stolen by Russia. That is, I think it likely that after Goldstone alerted him, Kaveladze (who is smart enough to know he shouldn’t say anything sensitive to his boss on the phone because it’s probably surveilled) to create a contemporaneous record saying no dirt got dealt — whether it did or not.

Which brings us to the missing suit.

As best as I can tell, Kaveladze is admitting to his daughter that first he forgot his iPad on the red-eye to NYC on June 8-9, and then admitting he left his “suite” in the hotel room when he left — in no rush at all, because he was in NYC at least until 1PM — June 10. The airline would be able to verify  to Mueller that they did, in fact, find Kaveladze’s iPad forgotten in the seat back of his airplane seat and sent it on to the NJ office. That claim is further corroborated (sort of) by the fact that Kaveladze went to a Staples for something on June 9.

But the suit?

The reason I find the missing suit as suspicious as his daughter does is because he wasn’t actually, as he originally claimed, flying to NYC for an overnight. I mean, that by itself is sketchy, because if you’re flying an overnight, you bring a change of shirt and underwear and wear the same suit home.

But Kaveladze was in fact traveling on to Moscow for a month, with presumably a number of suits. Making it likely you had a hanging bag in the closet right there next to the suit you wore on June 9. If Kaveladze really did have an early morning flight on June 10, I can get how you’d overlook that suit hanging by itself (perhaps you had no reason to don a suit on the 10th, and so wore comfys for the second red eye in three days and left the spare suit in the hotel room?). But he was still on his phone at 12:48, which (even given NYC’s abysmal airport transport options) would allow a quite leisurely trip to the airport. And all that’s assuming that a hotel of the caliber Kaveladze would stay at (with his last minute trips to NYC and then Moscow) wouldn’t make a point of putting the suit aside for safe delivery.

So yeah, I’m with Kaveladze’s daughter. The missing suit is weird.

John Solomon’s Baby Assange

There are two telling details that John Solomon left out of this story, suggesting Jim Comey blew an opportunity to prevent the damage done by WikiLeaks’ Vault 7 leak (and, purportedly, to learn the “real” source of the DNC emails), based on a “trove” of documents but posting only fragments of 5. First, Solomon doesn’t include this text, showing Adam Waldman issuing an extortion threat stating Assange “is going to do something catastrophic for the dems, Obama, CIA and national security.”

Solomon is also silent about the recent indictment of anti-Obama former CIA hacker Joshua Schulte for stealing all these CIA files. Notably, Solomon doesn’t note that as this was going on, the FBI had obtained probable cause search warrants against Schulte. Having left out those key details (and surely, a bunch of other once included in his “trove” that don’t help the latest right wing narrative), Solomon produces the convenient narrative that Jim Comey personally hurt the government.

“He told me he had just talked with Comey and that, while the government was appreciative of my efforts, my instructions were to stand down, to end the discussions with Assange,” Waldman told me. Waldman offered contemporaneous documents to show he memorialized Warner’s exact words.

Waldman couldn’t believe a U.S. senator and the FBI chief were sending a different signal, so he went back to Laufman, who assured him the negotiations were still on. “What Laufman said to me after he heard I was told to ‘stand down’ by Warner and Comey was, ‘That’s bullshit. You are not standing down and neither am I,’” Waldman recalled.

Solomon pays no consideration to the ongoing investigation, no consideration to the fact that if Comey stood down, he did so in the face of threats to the Democrats (though it’s not clear why they’d be at fault), which as always is contrary to the hoaxes against Comey. More importantly, Solomon doesn’t answer the question posed, but not answered, here: whether Assange was seeking to meet at a cafe in London, or whether he wanted to come to the US and get a pardon once he got here.

The real punchline — the one we may see come back — is the claim that Jim Comey, on top of refusing an extortion attempt directed at the Democrats, also prevented — or maybe this isn’t about the FBI at all — from learning the real story behind the DNC hack.

Not included in the written proffer was an additional offer from Assange: He was willing to discuss technical evidence ruling out certain parties in the controversial leak of Democratic Party emails to WikiLeaks during the 2016 election. The U.S. government believes those emails were hacked by Russia; Assange insists they did not come from Moscow.

[snip]

Soon, the rare opportunity to engage Assange in a dialogue over redactions, a more responsible way to release information, and how the infamous DNC hacks occurred was lost — likely forever.

In honesty, this looks like an effort to set up the next campaign to suggest that Comey prevented the “truth” about the DNC hack from coming out because it would undermine the alleged Witch Hunt into Trump. It also looks like the first of three efforts to tee up the alternate explanation for the DNC hack in exchange for a Trump pardon, which resumed by August (and therefore which wasn’t a forever thing).

It also makes it clear that Vault 7 was entirely about extortion.

Timeline

January 12: Bruce Ohr considers Waldman’s offer

February 3: Laufman reaches out to Waldman

February 4: Wikileaks first pitches Vault 7

February 15: Waldman reaches out to Warner

February 16: Waldman issues extortion threat against Democrats

February 17: Warner says he’s got important call (with Comey), relays stand down order

March 7: Wikileaks releases first Vault 7 documents

March 13, 2017: Google search warrant on Schulte

Mid-March: Waldman contacts Laufman, suggests Assange is interested

March 20, 2017: Search on Schulte (including of cell phone, from which passwords to his desktop obtained)

March 23: Second Vault 7 release

March 28: Safe passage offer not including details about hack

March 31: Third Vault 7 release

April 5: Laufman asks whether Assange wants safe passage into London or to the US

April 7: Wikileaks posts third dump, which Solomon suggests was the precipitating leak for Mike Pompeo’s declaration of Wikileaks as non-state intelligence service (these are weekly dumps by this point)

Yevgeniy Prigozhin Doubles Down on Lawfare as Intelligence Collection

I realize that the Concord Management defense in the Mueller indictment is intended to be nuisance lawfare. As noted, Mueller even moved four DOJ attorneys onto the team to manage with an onslaught of such nuisance filings.

But I am rather fascinated by the fight over the protective order.

As I noted, back on June 13, Mueller’s team objected to Concord’s demands that they get to share information with Yevgeniy Prigozhin without first requiring him to come to the US to get the intelligence. In a typically snotty response, Concord not only demanded that they get to share the information, but specifically requested they not receive all the personal identifying information in discovery; they just want the more substantive stuff showing informants and networks of communication. I took it as a concession that Prigozhin didn’t need the PII, because he already stole it, so the only thing new he would need is the stuff with intelligence value.

The two sides have just submitted a draft protective order with a brief laying out their disagreements. As this passage makes clear, the key dispute is whether Reed Smith can share sensitive information with nationals of the US and individual officers of Concord, and whether Reed Smith can share sensitive information with a co-defendant who refuses to show up before the court.

As Reed Smith has already made clear, there are only two people at Concord they want to share information with. One is Prigozhin, a co-defendant.

Finally, during the June 15, 2018 hearing, the Court asked defense counsel for information regarding the number of officers and employees of Defendant Concord. Concord has two statutory officers as required under Russian law, a General Manager and a Chief Accountant. The General Manager is co-defendant Yevgeniy Prigozhin, who has decision making authority. The Chief Accountant is not responsible for the day-to-day activities of the company and does not have decision-making authority. Undersigned defense counsel has represented to the Special Counsel’s Office, at present defense counsel needs to disclose discovery materials to only two individuals at Concord, Mr. Prigozhin, and the Head of the Legal Department (who is not a co-defendant and does not have decision making authority).

It’s the two other details that give up the game though. First, the defense not only wants to share information with someone who won’t show up to face his charges, but they also want to explicitly avoid being bound by the jurisdiction of the court.

That is, Reed Smith is saying they want to share information with the Head of Concord’s Legal Department and Prigozhin without either having to be bound by the jurisdiction of the court, which would make the order virtually unenforceable.

And then Reed Smith wants to dodge jurisdiction of the court themselves, by refusing to babysit those who won’t be bound by jurisdiction of the court when they review sensitive material. They deem that “onerous.”

Reed Smith has made a show of agreeing that none of this stuff will leave the country. They’re just refusing to sign a document that will prevent, say, the unnamed Head of the Legal Department from sticking stuff in his socks and taking it back to Prigozhin (who’s not going to show up to the US to read any of this), and with him, Putin.

Honestly, I think the question of whether Prigozhin can be prohibited from helping to defend his corporation without showing up to the US to be arrested will be an interesting legal fight.

Here’s the thing: First, I don’t think Dabney Friedrich is dumb enough to fall for the two little moves at the end, and I assume she’ll guard her own authority enough not to invite some Russian lawyer to abuse her authority.

Moreover, given that her interim protective order limited all review of sensitive materials to the defense counsel, see seems inclined to side with Mueller’s team.

 

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