Spy versus Spy: The Two Alleged Agents of Foreign Powers Sitting in the Alexandria Jail, Part Two (Mariia)

In this post, I laid out the difference between two laws criminalizing foreign agents of influence, 22 USC 611 et seq. (FARA) and 18 USC 951. Paul Manafort is charged with the former; Rick Gates, Mike Flynn, and Sam Patten have also all pled guilty to FARA related crimes; Mariia Butina is accused of the latter.

I think, particularly as Mueller’s investigation begins to put real teeth in FARA (and as nation-state spying hides under new kinds of cover and funding arrangements), the border between the two crimes will become increasingly tenuous. A comparison of Butina and Manafort shows some of the ways that’s clear.

Butina’s lawyer pitches her actions as lobbying

In response to her charges, her attorney Robert Driscoll has repeatedly denied she’s an agent of Russia, not by denying she did what Aleksandr Torshin instructed her to, but by claiming that hers is just a regulatory filing case.

“This is not an espionage case, this is not a spy case, this is a regulatory filing case,” in which Butina didn’t file the correct paperwork with the Justice Department, Driscoll told Robnson in arguing why she should be freed pending trial.

“She’s not an agent of the Russian Federation,” Driscoll told reporters after the hearing.

In a bid to overturn Magistrate Deborah Robinson’s decision to deny Butina bail, Driscoll minimizes the Russian’s activities as “going to dinners among intellectuals and foreign policy wonks to discuss U.S.-Russia relations, attending two National Prayer Breakfasts, and booking hotel rooms at the Washington Hilton, if true, is anything but an ‘obvious’ danger to the public.” He argues, “the allegations do not involve spying, tradecraft, classified information, or any other hallmarks of an espionage case.” To rebut any claim of covert operation, Driscoll points to the fact that one of the actions in her indictment — a dinner hosted by her unindicted co-conspirator, George O’Neill, just after the National Prayer Breakfast — was hosted by O’Neill and written up in the press (one of two stories he cited was written by O’Neill).

She is accused of arranging dinners to promote better relations between Russia and the United States although the very dinner that is listed as a predicate act for her alleged crimes was written about in Time Magazine and the American Conservative—hardly covert activity—and, in actuality, was initiated, organized, and directed by an American citizen, not the Russian government.3

He argues that the government charged Butina with section 951 as a tactical move, to make it easier to prosecute political activity (I’m not a lawyer, but I’m virtually certain he mis-states what the materials say about exempting political activity, not least because, per other materials, section 611 can be a subset of a section 951 violation).

To distract from the frailty of its charges, the government reprises that Ms. Butina is charged under section 951 and not FARA. However, that charging decision alone contradicts the Justice Department’s own policies, and perhaps was made as an attempt to aggrandize her conduct and mischaracterize her innocent political interest as nefarious.

That is, the Department of Justice (“DOJ”) Criminal Resource Manual makes a distinction between section 951 and a FARA violation. It describes FARA under section 611 et seq. as requiring an agent of a foreign principal engaged in political activities to register. See U.S. Dep’t of Justice, United States Attorneys’ Manual 9-90.700 and 9-90.701; and see Criminal Resource Manual at 2062. It also discusses other federal statutes like section 951, which is “aimed at persons loosely called foreign agents” but specifically exempts section 951 from applying to “foreign agents engaged in political activities.” Id. In plain English, DOJ further notes among frequently asked questions that section 951 is only “aimed at foreign government controlled agents engaged in non-political activities.”5

The government’s April, 2018 search warrant sought evidence of a potential violation under FARA.


[A]lthough such allegations are unfounded and untrue, and although the government’s searches revealed no hidden transmitters, wads of cash, counterfeit passports, and plane tickets back to Moscow, the government still decided to paper a case against Ms. Butina under section 951. This decision shows that the government desired to overcharge and inflate her conduct for tactical advantages versus act with restraint or, at a minimum, be consistent with the DOJ and National Security Division’s own publicized understanding of appropriate charges.

And Driscoll doesn’t even concede she violated FARA.

[F]or reasons only it is aware, the government has charged Ms. Butina under 18 U.S.C. § 951 rather than the Foreign Agent Registration Act (“FARA”), 22 U.S.C. § 611 et seq., which generally carries civil penalties and much less severe criminal penalties (for circumstances far more egregious than the facts alleged here). Much like a FARA case, the government does not allege that Ms. Butina undertook any independently illegal activities in the United States. The only thing that made her alleged conduct illegal, if true, is that she did not notify the Attorney General prior to undertaking it.


At bottom, the government’s case appears to be a novel attempt to stretch 18 U.S.C. § 951 to cover the activities of a foreign national student under the theory that her communications (about non-classified public source material) with contacts in her home country made her an “agent” of that country. The serious charges against her should be viewed in that context, which makes this case distinctly different from a typical section 951, “espionage-like or clandestine behavior” case.4

The lobbying included in Butina’s alleged crimes

To some extent, Driscoll is right: the government’s description of the allegations against Butina does focus closely on activity that might fall under FARA’s political activities (though, as noted, he cites a DOJ statement that suggests sections 611 and 951 are mutually exclusive, when by my understanding sections 611 can be a part of 951).

Many of the activities Butina is alleged to have done involve things that might be classified as lobbying. In her arrest affidavit, DOJ describes how Butina, with help from Paul Erickson, identified a network of influential Americans, including the NRA, to whom she could pitch closer relations with Russia. George O’Neill helped Butina set up a series of “friendship and dialogue” dinners. A number of her activities, such a publishing an article in The National Interest, are precisely the kinds of things FARA attempts to provide transparency on. This is where Driscoll gets his claim that Butina only “arrang[ed] dinners to promote better relations between Russia and the United States.”

Butina was directed by Aleksandr Torshin

A number of the allegations would support either a FARA or 951 violation.

The affidavit makes it clear she was following the directions of Aleksandr Torshin, the Deputy Governor of Russia’s Central Bank and as such an official representative of the government.

On the night of the election, for example, she asked for orders from Torshin, “I’m going to sleep. It’s 3 am here. I am ready for further orders.” The two moved to WhatsApp out of Torshin’s concern “all our phones are being listened to.” It’s clear, too, she and Torshin were hiding the role of the Russian government behind her actions. When she sent a report on a conference to establish a dialogue with US politicians, she said it “must be presented as a private initiative, not a government undertaking.”

The government even presented proof that Butina’s actions were approved by people close to Putin himself.

On March 14, 2016, Butina wrote O’Neill that what DOJ calls a  “representative of the Russian Presidential administration” had expressed approval “for building this communication channel,” suggesting she and Torshin had direct approval from Putin. “All we needed is <<yes>> from Putin’s side,” Butina explained to O’Neill.

With one exception, Driscoll largely offers bullshit in response to the government’s evidence she operated as a Russian government agent (indeed, his recognition that Butin advertised being Torshin’s special assistant on one of her business cards confirms that she continued to work for Torshin). He includes a letter of grad school recommendation for Butina for Columbia as proof of … it’s not clear what, particularly since Torshin includes his government affiliation on the letter.

Still: Paul Manafort was operating on behalf of a foreign government while Viktor Yanukovych remained in power, yet DOJ charged him with FARA, not section 951. The bar to meet foreignness under FARA is broader than it is under section 951, but lobbying for a foreign government can be sufficient to it. Yet Butina got charged under section 951, not FARA.

Paid by an oligarch

The exception to my claim that Driscoll offers little to rebut (in court filings — his statements to the press are another issue) that Butina was directed by the Russian government is the issue of her funding, which the government notes comes from an oligarch that Butina identified to the Senate Intelligence Committee as Konstantin Nikolaev.

Her Twitter messages, chat logs, and emails refer to a known Russian businessman with deep ties to the Russian Presidential Administration. This person often travels to the United States and has also been referred to as her “funder” throughout her correspondence; he was listed in Forbes as having a real-time net worth of $1.2 billion as of 2018. Immediately prior to her first trip to the United States in late 2014, Butina engaged in a series of text messages with a different wealthy Russian businessman regarding budgets for her trip to the United States and meetings with the aforementioned “funder.”

Driscoll points to this to disclaim a tie between her and the Russian state.

[T]he Russian Federation did not pay for her travel to the United States, her tuition, her living expenses, or make any payments to her at all.

This is actually an interesting point, because while FARA requires only that a person be working as an agent of a foreign principal (which might include, for example, an oligarch), section 951 requires that the agent be working on behalf of a foreign government. Butina no doubt still qualifies, given her tie to Torshin.

But particularly when comparing Manafort and Butina, both of whom worked at the border between laundered oligarch cash and government officials, the detail is of particular interest. If Russia outsources its intelligence operations to oligarchs (the Internet Research Agency’s Yevgeniy Prigozhin is another example), will that intelligence still qualify as spying under section 951?

In any case, thus far, the allegations against Butina and Manafort are fairly similar: both were hiding the fact that their political activities were backed by, and done in the interest of, Russian or Russian-backed entities.

The evidence for covert action

One area where Butina may go further than Manafort (at least for his pre-election work) is in the means by which she was trying to hide her work.

In spite of the great deal of publicity Butina made of her own actions — with all the pictures of her and powerful Republican men — the government affidavit also described Butina trying to set up (in her words) a “back channel” of communication with influential Americans.  On October 4, 2016, Erickson emailed a friend admitting he had “been involved in security a VERY private line of communication between the Kremlin and key [Republican] leaders through, of all conduits, the [NRA]. The affidavit describes Butina telling Torshin that her Russia-USA friendship society” is “currently ‘underground’ both here and there.” When discussing the list of delegates to the 2017 National Prayer Breakfast with Erickson in late November, she said the attendees were seeking to establish a “back channel of communication.”

Manafort was trying to hide that the lobbying he paid for was done for Yanukovych’s benefit, but there’s no allegation his pre-election work aimed to set up a secret channel of communication between Yanukovych and Congress.

Of particular interest, given the parallel efforts on voter suppression from Roger Stone and the Russians, Butina floated serving as an election observer. Torshin argued that “the risk of provocation is too high and the ‘media hype’ which comes after it.” But Butina argued she’d only do it incognito.

The honey pot claim

Then there’s the specific government insinuation that Butina was engaged in a honey pot operation. It substantiates this two ways — first, by suggesting she’s not that into Erickson.

Further, in papers seized by the FBI, Butina complained about living with U.S. Person 1 and expressed disdain for continuing to cohabitate with U.S. Person 1.

It also alleges she offered sex for favors.

For example, on at least one occasion, Butina offered an individual other than U.S. Person 1 sex in exchange for a position within a special interest organization.

Driscoll pretty convincingly argues the government misinterpreted this last bit.

The only evidence the government relied on for its explosive claim was an excerpt from an innocuous three-year-old text exchange (attached as Exhibit 3) sent in Russia between Ms. Butina and DK, her longtime friend, assistant, and public relations man for The Right to Bear Arms gun rights group that she founded.

DK, who often drove Ms. Butina’s car and thus was listed on the insurance, took the car for its annual government-required inspection and insurance renewal, and upon completion, texted (according to government translators), “I don’t know what you owe me for this insurance they put me through the wringer.” Ms. Butina jokingly replied, “Sex. Thank you so much. I have nothing else at all. Not a nickel to my name.” DK responded: “Ugh . . . ( ”—that is, with a sad face emoticon.

Aside from the fact that Maria is friends with DK’s wife and child and treats DK like a brother, the reference to sex is clearly a joke.

We still haven’t seen the government response to this, but what Driscoll presents does support his claim this is a “sexist smear.”

But Driscoll’s dismissal of the other claim — that Butina disdained living with Erickson — is far less convincing.

[I]n response to her girlfriend’s own complaints about her boyfriend’s failure to call in three weeks (accompanied by an angry face emoji) that Maria responds that her own boyfriend (Mr. Erickson) has been “bugging the sh*t out of me with his mom” and that she has “a feeling that I am residing in a nursing home.” “Send a link to the dating app[,]”

Driscoll spins this as an attack on Erickson’s now late mother, but doesn’t address the central allegation that she likened living with her much older boyfriend to living in a nursing home. Nor that she started the exchange by saying “let’s go have some fun with guys!!!” because she was “Bored. So there.” Furthermore, Butina seemed concerned that her use of Tinder would become public because she logged in using Facebook.

Though he has been sharing schmaltzy videos of Butina and Erickson with ABC, Driscoll also doesn’t address the fact that as early as May, Butina was proffering to flip on Erickson in fraud charges in South Dakota, which would have the effect of putting her in a position to negotiate permanent visa status independent of him, while limiting her own legal exposure.

A student visa or tourist one?

One key distinction between Manafort and Butina stems from the fact that she’s not a citizen.

The government’s detention motion also notes that Butina “use[d] deceit in a visa application.” They describe her attendance at American University as her cover, one she chose after rejecting carrying out the operation on tourist visas.

Butina chose a student visa from a range of options for her ultimate application, but not before a lengthy discussion of the risks associated with traveling to the United States repeatedly on a tourist visa. The FBI has discovered text messages and emails between U.S. Person 1 and Butina in which Butina would routinely ask U.S. Person 1 to help complete her academic assignments, by editing papers and answering exam questions. In other words, although she attended classes and completed coursework with outside help, attending American University was Butina’s cover while she continued to work on behalf of the Russian Official.

The government also notes that Butina claimed she was no longer employed by Torshin on her visa application. It points to her visa fraud as additional support that she did not intend to register as required by the law.

Butina entered the United States with the express purpose of working as part of a covert Russian influence campaign and did not disclose that fact—not on her visa application and not to the Attorney General.

Driscoll offers a narrow (and to my mind, unconvincing) defense, arguing the government hasn’t shown proof she lied on her form, when the claim is, instead, that intercepts show she applied for a student visa over a tourist visa because of the immigration advantages it offers.

[T]he government has also failed to provide any evidence to support its claim that Maria affirmatively lied on her application for a student visa should give this Court pause.

To be clear: this doesn’t mean Americans can’t be charged under section 951. In June, for example, DOJ charged Ron Rockwell Hansen under section 951 for spying for China.

But because Butina had to find a way to get and stay in the US, she had to game out the best way to do so, and that adds to the evidence that her entire purpose for being in the US is to push Russian policies. That is, it may be easier to charge a foreigner under section 951 because it often involves lying on visa forms.

Ongoing ties with Russian intelligence

Finally, there are ties with spooks.

The government alleges that Butina had ongoing ties with the Russian intelligence agencies, including a private meal with a suspected Russian intelligence operator, Oleg Zhiganov (whom Driscoll identified, to the government’s displeasure, to Politico).

FBI surveillance observed Butina in the company of a Russian diplomat in the weeks leading up to that official’s departure from the United States in March 2018. That Russian diplomat, with whom Butina was sharing a private meal, was suspected by the United States Government of being a Russian intelligence officer.

The government also cites from pointed to a conversation where Torshin likened Butina to Anna Chapman (see below) and argued that showed that Torshin treated her a covert spy. The government further points to a document suggesting she considered a job with FSB (though remains murky about other evidence that supports the claim).

Another document uncovered during the execution of a search warrant contained a hand-written note, entitled “Maria’s ‘Russian Patriots In-Waiting’ Organization,” and asking “How to respond to FSB offer of employment?” Based on this and other evidence, the FBI believes that the defendant was likely in contact with the FSB throughout her stay in the United States.

That said, the government also alleges that Manafort has had ongoing ties with Russian intelligence, in the form of Konstantin Kiliminik. So it’s not like ties to intelligence officers by itself merits a section 951 charge.

Recruiting assets

I suspect a key feature that may distinguish Butina from Manafort is that she had two Americans, Erickson and O’Neill, working with her. There’s even the allegation that she was seeking out time with JD Gordon in the lead-up to the election, suggesting she may have been recruiting assets within the new administration, an action akin to a formal spook. That is, she seems to have been recruiting agents.

That’s different from Manafort, employing a bunch of lobbyists (even while hiding some aspects of those engagements), because Manafort was hiring established professionals (or former European government officials).

I guess one question I have is whether the awareness of the recruitment targets is different.

Flight risk

While it matters little for the distinction between FARA and section 951, Driscoll suggests the fact that Butina hasn’t fled yet — notably did not in response to a report on her work — is proof she’s not an agent.

First, in February, 2017, the Daily Beast published an article about Maria, her connection to Aleksandr Torshin, her love of guns, and her activities in the United States, essentially alleging that her purpose in the United States might be to “infiltrate” American conservative political groups.13 If the government’s fanciful theory were correct, almost 18 month ago, Maria Butina was exposed, her handler identified, and her purpose in the United States published on the internet. She did not flee, visit the Russian Embassy, or make any effort to change her status as a student.

Curiously, he doesn’t address an intercept excerpted in the government’s detention motion, suggesting that in March 2017 there was an order against arresting her.

Specifically, in March 2017, after a series of media articles were published about Butina, the following conversation ensued:

Russian Official: Good morning! How are you faring there in the rays of the new fame?[] Are your admirers asking for your autographs yet? You have upstaged Anna Chapman. She poses with toy pistols, while you are being published with real ones. There are a hell of a lot of rumors circulating here about me too! Very funny!


Butina: It’s the other thing that is important: evidently, there is an Order not to touch us. I believe it is a good sign.

Russian Official: For now – yes, but should things shift, then we are guaranteed a spot on the list of ‘agents of influence.” . . .

But as I noted, Butina’s flight risk would remain the same regardless of whether she had been charged with FARA or section 951.

Why Maria and not Manafort (yet)?

All of which raises a series of questions about what might distinguish Butina from Manafort:

  • How important is citizenship in this? And would dual citizenship — dual Russian Federation and US — change that? The government’s reliance on Butina’s alleged visa fraud would (and in other 951 cases has) have important repercussions for any subjects of the investigation who lied but have since obtained US citizenship.
  • Does who is paying for a person’s defense matter? Driscoll won’t say who is paying his bills, but neither do we know who is funding Manafort’s (thus far) much more expensive defense. In similar cases (such as Evgeny Buryakov, one of the spies who recruited Carter Page), the government filed for a Curcio hearing to make sure a person’s lawyer wasn’t representing the interests of the people paying his bills rather than the defendant, but in so doing proved that Buryakov was not a government agent. If a close Putin ally is paying for Manafort’s defense, does that change the calculus of who he’s working for?
  • At what point would obtaining useful information on political process in the US count as collecting intelligence? Manafort knows US politics better than almost anyone — he doesn’t need to recruit a source to learn that. Butina did. Does recruiting Erickson to learn about US politics amount to collecting intelligence?
  • Is beefed up FARA enforcement the proper tool to combat foreign influence operations, or is section 951, absent more covert operations, the way to go after foreign nationals engaging in influence operations?
  • Given how these two crimes might bleed into each other, are prosecutors threatening charges under section 951 to get pleas under FARA?
  • All this analysis is based off stuff Manafort did years ago, going back over a decade. It doesn’t address the stuff he is suspected of doing in during the 2016. For example, if Manafort was reporting back on an active Presidential campaign to Oleg Deripaska via suspected Russian intelligence agent Konstantin Kilimnik, is that a FARA violation, or a section 951 one? He got charged under FARA for his historic work. But I’m not sure his election-related work doesn’t pass the bar for a section 951 charge.

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

48 replies
  1. pseudonymous in nc says:

    “If Russia outsources its intelligence operations to oligarchs (the Internet Research Agency’s Yevgeniy Prigozhin is another example), will that intelligence still qualify as spying under section 951?”

    That’s a genuinely interesting question that touches on how a lot of US law related to acts on behalf of a foreign power reflects the attitudes of the 1930s and Cold War and the presumption of a unitary state (whether democratic or authoritarian) even if the reality was messier. FARA dates from 1938; the origin of 951 is a broader set of “false personation” statutes from 1948, which includes, I shit ye not, impersonating a member of a 4-H club:


    Russian and ex-Soviet oligarchs act more like feudal lords, allowed to freelance with their billions in order to obtain the favour of the liege lord. That requires a more expansive definition of “government” than either FARA or 951 originally envisaged. Would, for instance, an independent militant group aligned with the Assad government and seeking assistance in DC fall under 951 or FARA?

    My wild-arse guess at why Manafort (and originally Gates) got FARA charges is that it’s the path of least resistance. Same with Butina, except the concern there would be that an ankle bracelet won’t stop her if she wants to make a dash to the Russian embassy.

    Anyway, Paul Erickson is still nowhere to be seen, even as stories are written about the Erickson-Butina relationship that seem fairly dependent upon him (via Driscoll) as a source. It’s deeply weird that the big press outlets seem to act like this is no big deal.

    • emptywheel says:

      Erickson has visited her in jail. I wouldn’t be surprised if they had gotten him to plead out.

      And yes–that feudal lord analogy is why I raised the oligarch question. Using Buryakov as a parallel, he ultimately was shown to be an employee of the state bc he was reporting in to SVR regularly. But when he claimed applying for a work visa for a job at state-aligned VEB amounted to registration, the government pulled his Curcio hearing in which he emphasized the distance between the bank and the state.

      So any distance between who was paying her bills and the state would seem to put Butina closer to a FARA charge than a 951 one, because she was working “for” a principal, Nikolaev, and not the state. But any ongoing ties with FSB would alter that.

      Meanwhile, I believe the government has only provided unclassified discovery, and they haven’t given her a FISA notice. So they’re probably not revealing all the details they have.

      • Avattoir says:

        The impression left is that Team Mueller has an overall master plan they’re working off, one which covers parties already indicted, named, identified or acronym’d, and others not, at least not yet. And that charging choices – of the kind and nature reviewed in this post – might actually not be fully amenable to facial or superficial rationalization, when considered APART from reference to such plan. But rather only make sense, fully or otherwise, if considered with reference to the OSC’s overall plan and various strategems for steering this little armada of charges, pleas, indictments and trials, if not in close formation then at least in ways that are complementary, given all the foreseeable tricky tacks & perilous passages thru especially hazardous straits that, unlike in nature, also have a certain amount of malicious consciousness (even should a lot of that prove unsophisticated, erratic or less than optimally coordinated in defense).

        It may also be the case that, in the end, the basis for Mueller et al making the sorts of sometimes pretty fine distinctions considerered here, doesn’t get proved out: doesn’t bear particularly bountiful fruit, or even become revealed. Indeed, such might be so ephemeral, they get lost en route.

    • Bob Conyers says:

      Kavanaugh has signalled in an earlier ruling he would open up the opportunities of foreigners to engage in US politics, and I think you can read some of Butina’s defense as appealing to that line of nouveau conservative thought. Not that this case is a good one to use to blow up current law, but it might benefit at an appeal when another case serves the conservative cause.

      I’m sure it’s not just Russian oligarchs they want to enable, and they would love to see a flood of money from all over. At least until it bites them back.

      • pseudonymous in nc says:

        I bloody well hope that someone asks Kavanaugh if it’s okay for foreigners to fund, say, the Judicial Crisis Network.

  2. Rayne says:

    How important is citizenship in this?

    Very — if a non-US citizen isn’t here on a work visa, not visiting family, not a tourist nor a legitimate student, what are they? It’s not a crime for a U.S. citizen to be itinerant vagabond inside U.S. borders but an alien must have a valid disclosed reason for being here. She didn’t appear to be an asylum seeker, hmm? /s

    …If a close Putin ally is paying for Manafort’s defense, does that change the calculus of who he’s working for?

    This will be problematic for anyone who is working for/paid by a Russian oligarch. Unless the accused and/or the payor and/or Russian government agency will admit the work is overtly for the Russian government, it’s covert and therefore 951. Hiding behind oligarchs offers both plausible deniability and opportunity to manipulate perception about the acts (ex: “Mean Americans treating patriotic hard-working Russian businessmen badly”); I expect we’ll see a lot of 951 for this reason.

    Does recruiting Erickson to learn about US politics amount to collecting intelligence?

    IMO, yes — Erickson had a very broad range of contacts outside of DC, from local elected officials to church groups to local media outlets. He could validate what NRA contacts told Butina and Torshin. Manafort was much more DC-centric — more federal level, less state level. This would matter greatly when seeking access to voting infrastructure.

    Is beefed up FARA enforcement the proper tool to combat foreign influence operations, or is section 951…?

    I think we still go back to overt (FARA) versus covert (951) status here. How different is sentencing?  I think anticipated sentencing is the answer to your next question. I’d hope FARA would be lighter than 951 as an incentive for unregistered overt agents to register.

    …if Manafort was reporting back on an active Presidential campaign to Oleg Deripaska via suspected Russian intelligence agent Konstantin Kilimnik, is that a FARA violation, or a section 951 one?

    I think he’s looking at a 951 because of the covert nature of his reporting to non-official entities like Deripaska. Could have gone through a U.S. third-party like a lobbyist-law firm but nope, this was covert and no additional entities could be included in the chain at risk of discovery and disclosure. Unfortunately Manafort is already looking at life in prison; adding another 951 on top may not matter. Ditto if Trump pardons him — additional charges won’t matter. Do either FARA or 951 allow leeway on asset forfeiture?

    • emptywheel says:

      FARA is a 5 year max, 951 a 10 year.

      I’m not as convinced by the oligarch point as you. Or at least think Driscoll will make a good deal of hay out of it, before Butina pleas.

      As to covert/overt: I think one needs to be more careful about that definition. Manafort was using shell companies to hide some of what he was doing, for example. I was trying to distinguish a covert comms channel from covert support for politics.

      • Rayne says:

        WRT oligarchs: we’re playing a game of Six Degrees of Kevan Baconov — the closer the Kremlin is to the payee, the more likely a 951 versus FARA. Factors increasing the degrees of separation are citizenship, location, payor identity, tasks performed. Oligarchs add varying degrees.

        I think the overt/covert status was apparent in the Oct 2017 indictment which said Manafort and Gates had solicited lobbying firms while rather openly indicating the nature of the representation:

        “…GATES wrote to Company A that it would be “representing the Government of Ukraine in [Washington] DC.””

        That’s a pretty shit job of covert operations and looks more like FARA. Subsequent handling of payment through shell companies for their work must have appeared to SCO like simple tax evasion via money laundering. Had the handling of the monies appeared to be a means to completely obscure their source AND these two conspirators made a serious effort to operate covertly, Manafort might have been slapped with 951.

        I wonder how much Manafort’s and Gates’ ineptitude also earned them a FARA and not 951. Not that SCO felt sorry for them but they were incapable of being 951 material; couldn’t even manage PDFs or pull off lying about assets. Their handlers, however…

    • emptywheel says:

      On forfeiture, I addressed that here, and I think it’s an aspect of Mueller’s push that hasn’t gotten enough attention. Manafort’s already lost a forfeiture ruling before ABJ (indeed, if there really was a big hold up in a plea on these charges, that may have been the hold up). So he loses his life’s ill-gotten goods with a guilty verdict.

      No one has commented on whether Sam Patten loses the million dollars he earned with Kilimnik. It would seem he could, not least because he’s being sentenced by ABJ, who has already ruled that forfeiture is valid.

      • Avattoir says:

        “So [Manafort] loses his life’s ill-gotten goods with a guilty verdict.”

        Isn’t it more, he relinquishes a greater degree of control over them? He COULD still have ‘something’, if only expressed as bargaining power, arguably even past the outcome of a forfeiture hearing.

        That’s what I took from his defending attorneys speaking with particular care, about the 10 hung jury charges and the coming trial,  in the period since the first jury returned verdicts. That at the very least, his legal team has to work out all the implications of where Manafort now sits at the gaming table, and not merely the size of the stacks but the very nature of his arguable interest in the chips.

        In the end, it may make no difference – Paulie Rugs may just say to them, I’m all in here on the calling a friend option. But that doesn’t relieve his legal advisers of their obligation to provide their best advice as to the available options, nor matter WHO is footing the bill for that advice.

        This is actually not at all unexplored territory for (especially for) white collar crime defense specialists. It’s why many of us, once we got into the area, started in on developing highly tailored formal letters attorney-to-client that detail the advice & options, & make as clear as possible that the choice is that of the client. Even when they don’t want it, or don’t read so well, or need independent assistance getting thru it, or like with Manafort are themselves highly sophisticated and have an education or work experience that’s law related – ESPECIALLY with that last type.

        I mean, others here, bmaz I’m sure, can attest to how acting for a particularly astute and sophisticated client on major white collar crime charges is something of a multi-bladed sword. They get stuff quicker, they understand urgency and the value of, if not necessarily being fully truthful then at least not actively misleading their own counsel; but there’s always an implied threat: I’m watching you as you work for me, folks, every step of the way; and I’ll show no hesitation or mercy in tossing you at a bus if I feel I have to and can.

        So, there’s quite a lot involved in doing all that, and it takes time and caution. But I wouldn’t assume that there’s necessarily one bright line that confronts Manafort, beyond which there’s no choices left – certainly not yet.

        • bmaz says:

          This is a complicated issue, and depends on the convictions, other included conduct, sentencing by Ellis and Jackson, and a host of other things. As to the EDVA case, with at least one count out of each major tranche of charges, I already think Manafort has problems as to the initially (in DC) filed notice of forfeiture. Likely to get much worse with any guilty verdicts in DC.

          But, what not subject to that still has civil problems as to forfeiture including, potentially, in state court proceedings too.

        • Avattoir says:

          All that I agree with. But my point here – apart from empathizing to some extent with his attorneys in all the work it takes to lay it all out fully & concisely as possible (as you say, Not. Easy. to do), is that, assuming whatever Paulie still has left as a potential cooperating witness has material value to Team Mueller, it’s not like he ‘must’ get extruded out the other end with nothing at all for his family & maybe himself (tho proly there’d be no more rare imported rugs or cee-ment swimmin’ holes in that future).

          I mean, I’ve been in on those sorts of accommodations (both sides), as I’ve no  doubt you’ve been too – where getting it done required smoothing over not just inter-agency (relatively easier) but inter-authority (a lot dicier) cooperation.

          E.g. revenoors, man: mostly all they seem to want is enough of a cut to justify closing the file (sometimes right after opening one).

        • bmaz says:

          Also agree with all of your response. Including the inconsistent nature of the Revenooers. Also brings me back to my old hobby horse of “Where Art Thou Kathleen Manafort”?

  3. jf-fl says:

    Interesting points, citizen status and the type of shingle each hung out (lobbyist vs ‘student + energy broker + consultant + former furniture entrepreneur + whatever’s clever’) are the biggest differences. Lots of subtleties you mention tho I never thought about.

    I don’t see espionage specifically defined in 951 text i read… perhaps even though she wasn’t extracting intel, if she was instead placing intelligence or misinformation, that’s still espionage. Most of the famous cases I think are about stealing information, but if placing information is becoming more of a counter-intel threat perhaps this is a good case to highlight it in the courts?

    Shingles… Manafort was always here, and always a lobbyist and everyone knew that was his bag. He lobbied for other governments besides Ukraine Russia in 80s and 90s. He was at direction of all of these governments in client capacity, but he was a us citizen and not under the control of any particular government. He didn’t have national loyalty to them (as far as we know) and his family was not under jurisdiction of his client’s governments.

    Whereas Butina is a russian citizen with an extremely nebulous and varied professional status.
    and so has more complex motivations. 951 being more about espionage seems to require deception. It does seems like her attorney’s are trying to argue this means you can’t 951 in plain sight, and she’s some sort of Russian national Felix Sater.

    • emptywheel says:

      Right: And by trying to be an energy broker in the US, she’s already in violation of her visa, which they can charge in a superseding, if she doesn’t plea.

      One reason I raised the visa stuff is bc if either Ike Kaveladze or Rinat Akhmetshin lied on their visa applications about ties with RU intelligence, then they will also lose their citizenship, and it would be a factor in what they might get charged.

  4. @Undetermined_US says:

    Butina’s case is a charge of conspiracy with co-conspirators. She is described as an employee of a foreign governmental official. The criminal complaint describes an objective of the conspiracy “To infiltrate organizations”. These all would tend to differentiate the case from a simple lobbying for a foreign entity case. There is an element of deception implied by all of these that simple lobbying would not necessarily involve, making a case for it being a covert operation.

    • emptywheel says:

      I agree the infiltration seems to be a key. I’m curious what NRA’s official posture on all this is, and if being at risk for having given so much money influences it.

      But remember that Manafort has co-conspirators, too, including Kilimnik, who has been more publicly tied to RU intelligence than Torshin has.

  5. Jeff Stewart says:

    What do you believe is meant by this? “[e]vidently, there is an Order not to touch us. I believe it is a good sign.”

      • Doctor My Eyes says:

        Or intentional setup–hopefully more than enough rope for these cocky bastards. I hope to hell they devalue the power of a more free, more creative populace.  God please let our guys be smart enough, disciplined enough, and clear-headed enough.

        • Doctor My Eyes says:

          Strange point.  If the only reason they felt they wouldn’t “be touched” is that the investigators wanted them to think that, then that is not a leak, that is intentionally misleading. Perhaps you are suggesting there was a leak that the DOJ knew about and exploited for this purpose (ala Steele).  Well, okay.  It’s a possibility but no reason to even think that.  If you are suggesting there was a leak but also as fate would have it, the investigators happened to want that particular fact to leak out, then that’s just weird.

          In my mind, yes, they are pretty much mutually exclusive theories of what may have happened.

        • SpaceLifeForm says:

          Think about different ops, investigations. Thnk about leakers, leaking ‘stuff’ about about an ongoing investigation.

          If Butina was not to be touched (due to ongoing investigation), then how did she find out?

          Different investigations (one internal) could explain.

          Especially if the leak came from the internal investigation.

          Who is watching the watchers?

  6. SteveB says:

    Re discussion about Russian Government outsourcing to oligarchs

    S951(a) provides for regulations re notofication requirements and they are found 28 CFR 73.

    28 CFR 73.1 (b) defines

    The term foreign government includes any person or group of persons exercising sovereign de facto or de jure political jurisdiction over any country, other than the United States, or over any part of such country, and includes any subdivision of any such group or agency to which such sovereign de facto or de jure authority or functions are directly or indirectly delegated. Such term shall include any faction or body of insurgents within a country assuming to exercise governmental authority whether such faction or body of insurgents has or has not been regarded by the United States as a governing authority.


    For the present discussion  certain terms are noteworthy:

    group of persons  de facto ; any subdivision of such group or agency; de facto authority or functions are directly or indirectly delegated.

    All of these terms are apt to the intermingling and diffusion of state and oligarchic power.

        • greengiant says:

          Russian mob, other criminals, wall street, apple, google etc offshored north of 10 trillion since 2008. Small potatoes are Mercer’s RT rolling forward 7 billion dollar tax bill, 9/10ths of which is owed by big time Democratic donors as in covering all the bases.

    • SpaceLifeForm says:

      Citizens United is the ‘Get Out Of Jail Free’ card.

      The conspirators hide inside shell companies.

      They cause damage, and when things get rough, the shell gets abandoned.

  7. Rusharuse says:

    Congrats to EW’s picture editor, great Mariia shot. Seems Trump is right, Mueller IS on a witch Hunt and with Butina he’s jagged one. Expect a Bell, Book and Candle to be admitted into evidence.

      • Rusharuse says:

        I like to be in America . .

        Mariia, I just met a girl named Mariia – Take a letter Mariia – I did what I did for Mariia – Ave Mariia – They call the wind Mariia – Mariia Mariia, Ik hau van Jou(??)

        The Google like cocaine – “She don’t lie, she don’t lie”.

    • Frank Probst says:

      Chiming in just to remind folks that technically this is not a Team Mueller indictment.  I think that’s important to keep in mind.  It was the NY office that was handling the Michael Cohen charges, and that led to a plea that probably includes a 3-5 year prison sentence.  Part of that was because he has so much exposure to charges, but I also think that the non-Team Mueller offices are far rougher on targets than Team Mueller.  I suspect that IF Manafort will be re-indicted on the 10 charges that he got a mistrial for, Team Mueller will try to kick it to EDVA if it’s possible to do so.

  8. SpaceLifeForm says:

    National security concerns

    Woodward’s book takes readers inside top-secret meetings. On July 27, 2017, Trump’s national security leaders convened a gathering at “The Tank” in the Pentagon. The goal: an intervention to try to educate the President on the importance of allies and diplomacy.

    After Trump left the Tank, Secretary of State Rex Tillerson declared: “He’s a fucking moron.”


  9. Frank Probst says:

    Off topic:  The WaPo has gotten a copy of Woodward’s new book about the Trump White House.  SPOILER:  Nobody thinks he’s particularly bright.  And various people were more or less defying orders by hiding documents from him and, in Mattis’ case, refusing to kill the entire Syrian government.

    The WaPo also has audio of a recent conversation between Trump and Woodward that makes it clear that Woodward made multiple requests to interview the President himself, and nobody got around to asking Trump or to in any way trying to facilitate an interview.

    I’m expecting a lot of tweeting this week.

    • Avattoir says:

      Expect Late Night comix and SNL to excavate further on that phone call. Particularly looking forward to the Brits’ takes, John Oliver yanking on one leg and a Shakespearean theater portrayal drawing on the other.

  10. Rusharuse says:

    Re Woodward book – you must listen to his phone call with Trump (link on WaPo front page). Kellyanne gets on the line . . Holy Fuck!

  11. Kansas Watcher says:

    My biggest question is this.

    why wouldn’t a person register under FARA?

    ”I represent government X”



    if what you are doing IS representing government X. What’s the harm?

    dont get me wrong I have my own ideas as to why but would love to hear others input

  12. Fran of the North says:

    IANAL. Thus the nuances of applying FARA vs 951 are a bit over my pay grade.

    Neither am I a spy.

    But I do have considerably more real world experience in that murky world. 50 years ago my father Light Bird of the North and family were posted to a certain capital city in a galaxy far far away. And while provenance and details are too lengthy to detail here, suffice it to say that mon pere’s primary function was to be out and among the populace observing.

    In his position as Military Attache to the ambassador, he was engaged in sanctioned intelligence gathering. And I’m proud to say that in the best traditions of Shake N’ Bake TV commercials, “I helped.”

    Every day, he got into our POS Volga and drove around the country, meeting with people, seeing the sites; recording same with various technologies. Intelligence gathering is like detective work. Lots of hours gathering minutiae and assembling puzzles. Sometimes the pieces fit, other times it is wasted effort.

    In our world, the difference between espionage and sanctioned intelligence work was a VERY bright line. If you were in uniform and caught doing something you shouldn’t have been doing, they could read you the riot act, report you to your embassy, or throw you out of the country. What they could not do was arrest nor hold embassy staff.

    If you were in plain clothes, or not officially liaised to the embassy, all those restrictions were off. Thus he went out and about in his uniform 100% of the time.

    @Michael Schmitt: I believe that if you tried a Mariia Butina in Russia and got caught, odds are good you would join the ranks of the disappeared.

  13. pseudonymous in nc says:

    FARA was originally a “foreign propagandist” statute from 1938 to regulated those promulgating communist or fascism via foreign governments that were run according to those ideologies. 951 is a Cold War “personation” statute which is more about ensuring that military/cultural attachés were registered, and that you couldn’t just show up in DC claiming to be the representative of Government X.

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