The Guy Who Defended Roger Stone’s Campaign Finance Shenanigans Did Not Testify to the Grand Jury

In response to an order from DC Chief Judge Beryl Howell, the government has revealed the two witnesses of interest to Congress who did not testify to the grand jury. The first, Don Jr, should not surprise anyone who has been following closely, as that was clear as soon as the Mueller Report came out.

The other–Don McGahn–is far more interesting, especially since he was interviewed on five different occasions: November 30, December 12, December 14, 2017; March 8, 2018; and February 28, 2019.

Most likely, the reason has to do with privilege, as McGahn’s testimony, more than almost anyone else’s, implicated privilege (in part because many witnesses’ testimony cut off at the transition). McGahn ended up testifying far more than Trump knew, and it’s possible he did that by avoiding a subpoena, but had he been subpoenaed, it would provide the White House opportunity to object.

Elizabeth De la Vega said on Twitter it likely had to do with how valuable McGahn was in his five interviews. By not making him testify to the grand jury, she argued, you avoid creating a transcript that might undermine his credibility in the future. That’s certainly consistent with the Mueller Report statement finding McGahn to be “a credible witness with no motive to lie or exaggerate given the position he held in the White House.” But that reference is footnoted to say, “When this Office first interviewed McGahn about this topic, he was reluctant to share detailed information about what had occurred and only did so after continued questioning.” Plus, while McGahn testified more than any other witness not under a cooperation agreement, Steve Bannon and Hope Hicks testified a bunch of times, too (four and three times respectively), but were almost certainly put before the grand jury.

But there is a different, far more intriguing possibility.

First, remember that Roger Stone was investigated for more than lying to Congress (indeed, just the last four warrants against him, all dating to this year, mentioned just false statements and obstruction). Which crimes got named in which warrants is not entirely clear (this government filing and this Amy Berman Jackson opinion seem to conflict somewhat). Computer Fraud and Abuse Act, 18 U.S.C. § 1030(a)(2)(C), was named in all Stone’s warrants before this year. But at least by August 3, 2018, the warrants against Stone listed a slew of other crimes:

  • 18 U.S.C. § 3 (accessory after the fact)
  • 18 U.S.C. § 4 (misprision of a felony)
  • 18 U.S.C. § 371 (conspiracy)
  • 18 U.S.C. §§ 1505 and 1512 (obstruction of justice)
  • 18 U.S.C. § 1513 (witness tampering)
  • 18 U.S.C. § 1343 (wire fraud)
  • 18 U.S.C. § 1349 (attempt and conspiracy to commit wire fraud)
  • 52 U.S.C. § 30121 (foreign contribution ban)

For whatever reason, the government seems to have decided not to charge CFAA (if, indeed, Stone was the actual target of that investigation). They may have given up trying to charge him for encouraging or acting as an accessory after the fact.

The Mueller Report explains — albeit in mostly redacted form — what happened with the 52 U.S.C. § 30121 investigation. First Amendment and valuation concerns about a prosecution led Mueller not to charge it, even though he clearly seemed to think the stolen emails amounted to an illegal foreign campaign donation.

But that leaves wire fraud and conspiracy to commit wire fraud. During the month of August 2018, DOJ obtained at least 8 warrants relating to Stone including wire fraud. Beryl Howell — who in her order requiring the government unseal McGahn’s name, expressed puzzlement about why Don McGahn didn’t testify before the grand jury — approved at least five of those warrants. Rudolph Contreras approved one and James Boasberg approved two. So apparently, very late in the Stone investigation, three different judges thought there was probable cause Stone and others engaged in wire fraud (or tried to!).

And it’s not just those judges. Roger Stone’s aide, Andrew Miller, was happy to testify about WikiLeaks and Guccifer 2.0. But at least when his subpoena first became public, he wanted immunity to testify about the campaign finance stuff he had done for Stone.

Miller had asked for “some grant of immunity” regarding financial transactions involving political action committees for which he assisted Stone, according to Alicia Dearn, an attorney for Miller.

On that issue, Miller “would be asserting” his Fifth Amendment right to refuse to answer questions, Dearn said.

I’d like to consider the possibility that McGahn, Donald Trump’s campaign finance lawyer before he became White House counsel, was happy to testify about Trump’s attempt to obstruct justice, but less happy to testify about campaign finance issues.

Mind you, McGahn is not one of the personal injury lawyer types that Stone runs his campaign finance shenanigans with. Whatever else he is, McGahn is a professional, albeit an incredibly aggressive one.

That said, there are reasons it’s possible McGahn limited what he was willing to testify about with regards to work with Stone.

At Roger Stone’s trial the government plans (and has gotten permission) to introduce evidence that Stone lied about one additional thing in his HPSCI testimony, one that wasn’t charged but that like one of the charged lies, involves hiding that Stone kept the campaign in the loop on something.

At the pretrial conference held on September 25, 2019, the Court deferred ruling on that portion of the Government’s Notice of Intention to Introduce Rule 404(b) evidence [Dkt. # 140] that sought the introduction of evidence related to another alleged false statement to the HPSCI, which, like the statement charged in Count Six, relates to the defendant’s communications with the Trump campaign. After further review of the arguments made by the parties and the relevant authorities, and considering both the fact that the defendant has stated publicly that his alleged false statements were merely accidental, and that he is charged not only with making individual false statements, but also with corruptly endeavoring to obstruct the proceedings in general, the evidence will be admitted, with an appropriate limiting instruction. See Lavelle v. United States, 751 F.2d 1266, 1276 (D.C. Cir. 1985), citing United States v. DeLoach, 654 F.2d 763 (D.C. Cir. 1980) (given the defendant’s claim that she was simply confused and did not intend to deceive Congress, evidence of false testimony in other instances was relevant to her intent and passed the threshold under Rule 404(b)). The Court further finds that the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.

A September hearing about this topic made clear that it pertains to what Stone’s PACs were doing.

Assistant U.S. Attorney Michael J. Marando argued that Stone falsely denied communicating with Trump’s campaign about his political-action-committee-related activities, and that the lie revealed his calculated plan to cover up his ties to the campaign and obstruct the committee’s work.

It sounds like Stone cleared up this testimony (Stone sent two letters to HPSCI in 2018, and one of those would have come after Steve Bannon testified about emails that included a Stone demand that Rebekah Mercer provide him funding), which may be why he didn’t get charged on that front.

As I’ve suggested, if Stone was actively trying to deny that the work of his PACs had any interaction with the Trump campaign, it might explain why he threatened to sue me when I laid out how McGahn’s continued work for Trump related to Stone’s voter suppression efforts in 2016.

And remember: when Stone aide Andrew Miller did finally testify — after agreeing to at virtually the moment Mueller announced he was closing up shop — he did so before a new grand jury, after Beryl Howell agreed with prosecutors that they were in search of evidence for charges beyond what Stone had already been indicted on or against different defendants.

McGahn’s campaign finance work for Stone and Trump is one of the things he’d have no Executive Privilege claims to protect (though barring a showing of crime-fraud exception, he would have attorney-client privilege), since it all happened before inauguration.

Again, there are lot of more obvious explanations for why he didn’t testify before the grand jury. But we know that Mueller investigated these campaign finance issues, and we know McGahn was right in the thick of them.

28 replies
  1. BobCon says:

    I’m not clear on why an interview doesn’t create a transcript that a defense attorney can use. Are the results of a prosecution interview only released to the defense for discovery reasons while grand jury testimony is automatically available? I was under the impression that grand jury evidence wasn’t automatically released to a defendant either, especially if a grand jury is looking into multiple people.

    • bmaz says:

      Thumb nail version: If the person with an interview transcript is going to be a witness, the transcript gets released (different deadlines for this in different courts). If not going to be a witness, it still gets released if the witness’s transcribed interview is exculpatory, or otherwise materially helpful to the defendant, whether under Brady or Giglio. But other than that, nope.

        • ducktree says:

          I’m still confuzzled x2. . . (1) is a transcript created during Mueller’s team’s interviews and is it discoverable only as to those charged; and (2) how long is a GJ transcript sealed?

          • bmaz says:

            1) Yes, of course. May or may not even be discoverable by those charged, depending on whether they are called as witnesses for trial and/or whether it is exculpatory under Brady/Giglio. This was explained literally right above. 2) GJ transcripts are sealed until they are not by order of the court.

  2. OldTulsaDude says:

    Concerning McGahn, perhaps he would have sung to the GJ with this::

    And if you’re called
    Don’t take the fifth at all
    Just be truthful
    And should his threats
    give you a little pause
    Just be truthful

    Hold your hand up, oh
    and hold your hand up, oh
    and hold your hand up, oh
    and swear not to lie
    Hold your hand up, oh
    and hold you hand up, oh
    and hold your hand up, oh
    and swear not to lie

    And if the prez
    says better change your mind
    don’t be a stoolie
    Just tell him, Man, I’m lawyer and
    I can’t believe
    crap you are spewing

    Hold your hand up, oh
    and hold your hand up, oh
    and hold your hand up, oh
    and swear not to lie
    Hold your hand up, oh
    and hold you hand up, oh
    and hold your hand up, oh
    and swear not to lie

  3. viget says:

    I could also see it this way, Mueller and co. knew they couldn’t indict for obstruction, so why bother with a GJ? Interviews allowed them to preserve the evidence for the record, and also release in the report without having to worry about GJ secrecy. True, it meant that they would be more limited with document production.

    I do wonder what was the carrot (stick?) they used to entice McGahn to testify? Could they have had an informal agreement for him to answer all questions on obstruction as long as Mueller didn’t ask anything about campaign finance? Is that ethical and/or legal?

    • earlofhuntingdon says:

      I wouldn’t bother with that argument. If a witness is willing to talk with a prosecutor, she doesn’t need to compel them to talk by way of a grand jury subpoena.

      Why would a witness be willing to talk? For starters, there is life before and after the crime family that is Donald Trump.

      • viget says:

        I think we’re saying the same thing here. No need for GJ if McGahn was willing to talk. Plus, it allowed Mueller to make McGahn’s interview public.

        • earlofhuntingdon says:

          Maybe. I was responding to your “why bother” with the grand jury because he couldn’t indict for obstruction.

        • timbo says:

          McGahn appears to have been willing to talk about the things that were going to be talked about. That’s the gist. The things he wasn’t forced to talk about he was happy not to talk about.

  4. Matthew Harris says:

    Roger Stone’s trial begins in two weeks and a day. After his initial shenanigans, there has been not much news from the Stone camp. And as is usual with the 24 hour news cycle, things have moved on from Stone, even though (like so many things) it would be defining news in any other presidential administration.

    What is going to happen at that trial? Once we actually got to Paul Manafort’s trial, it was pretty anti-climactic, until the jury deliberation and the lone hold-out deciding to get all epistemological. But as far as I can remember, there was no new testimony or evidence in Manafort’s trial that came as a surprise.

    For the charges that they are trying Roger Stone on, they have a pretty cut-and-dried case. As far as I know, Roger Stone’s lawyers are not planning to debate the factuality of the records, just their relevancy. So will Roger Stone’s trial be predictable? Will any other things relating to ongoing investigations leak out? Will there be a Perry Mason breakdown moment in the courtroom? Well, this is Roger Stone we are talking about, so…”predictable” isn’t usually an adjective that goes with Roger Stone. Despite his lawyers attempts, I imagine there is going to be some surprises in or around the trial, which might relate to other crimes or conspiracies.

    But I guess we will find out in two weeks.

    • OldTulsaDude says:

      I wonder if Trump’s impeachment panic has distracted him enough to forget about the impending trial and Stone pardon?

  5. earlofhuntingdon says:

    Trump: I cut a deal with Erdogan. He can do what he wants with the Kurds, as long as he keeps his hands off their oil. I promised that to Vlad.

    Reporter: What about the Kurds? They were essential to America’s mission in Syria. The way you are withdrawing troops puts them in harms way.

    Trump: That’s part of the deal; Erddy needs to clean house. Besides, we never said we’d protect them forever. Only as long as they paid the vig – and nobody else paid us more. That’s how everybody does it.

  6. earlofhuntingdon says:

    I think Pete Buttigieg made an own goal when he hired two former Facebook employees for his campaign. The two were recommended by Mark Zuckerberg and his wife, Priscilla Chan, apparently after Mayor Pete’s campaign requested recommendations from them.

    A spokesperson for Mayor Pete said his campaign receives “recs from hundreds of people” as well as “thousands of resumes”. Just routine. Except that these two Mayor Pete hired.

    One would think that a Harvard magna and Rhodes Scholar would know what a patronage network is. Membership is normally intentional. Now it seems membership can be a bit like being a patsy: if you look round the poker table and don’t know who the patsy is, it’s you.

    • bmaz says:

      Hilarious. And awesome. Note one of those three consistent progressives is Ed Markey, who has been a fine Senator, but is being primaries anyway by Joe Kennedy because young Kennedy just thinks he is fucking entitled to a Senate seat. He also believes (don’t listen to his dissembling nonsense in the last couple of weeks) that marijuana is properly a scheduled feeling drug. What has Markey done wrong? Nothing, young Kennedy just thinks it is now magically his time because he is a fucking Kennedy.

    • earlofhuntingdon says:

      Good move. It would be a better one if McConnell’s Senate were ever to take it up and pass it. It’s also a closed loop: no legislation could anticipate all the inventive crimes of someone like Donald Trump.

      The solution is to remove Trump and prevent his clones from winning office. That’s a lot more work.

      Progressive politicians and judges need to reduce gerrymandering and other voter manipulations. Progressive media needs to make facts and their context clearer and more available. Those are aspirations more than solutions; they’re also a direction of travel.

  7. Paul Lukasiak says:

    I’m not so sure that Bannon and Hicks went before the grand jury either.

    What we know is this. Months ago, the Judiciary Committee and the DoJ reached a “deal” that resulted in the Cmte requesting the 302s mentioned in Part II of the Mueller report. This included 302s for 33 people. Based on the 10/8/19 DoJ memo filed in the Grand Jury materials case, 302s have been provided to the Cmte for 17 of those people. Among the people whose 302s have not been provided are McGahn, Hicks, and Bannon (and a bunch of others).

    Meanwhile, on the 20th of this month, responding to a judge’s order, the DoJ released a partially unredacted version of a previously filed declaration. What was unredacted included the line “Indeed, none of the witnesses for whom the Committee requested {302s] …testified before the grand jury, with the exceptions of [REDACTED]. The redacted part is slightly over 3 lines — and that is approximately the space that would be required to list the names of the people whose 302s have not been released to the committee.

    The DoJ has no reason to release 302s of people who did not testify to the Grand Jury — the only reason the DoJ agreed to release any 302s was to show that the DoJ was “accomodating” the Cmte — and show that the Cmte could get the Grand Jury information from other sources.

Comments are closed.