The Government’s Coy Dance on FISA and Rudy’s Grifters

As I noted last month, one of the guys indicted along with Rudy’s grifters, Andrey Kukushkin, asked the government for notice of any of several kinds of surveillance, including FISA. The government responded today with the kind of non-denial that all-but confirms that one of the grifters, Lev Parnas and Igor Fruman, their co-conspirators, or their funders were implicated in a FISA order.

It starts by stating, “the Government has repeatedly informed the defendants, it does not intend to use any information that was obtained or derived from FISA or other forms of surveillance identified by Kukushkin,” meaning under FISA they have no obligation to notify defendants of its use. It then reviews the requirements of statute, which state that the government only has to provide notice if it plans to use evidence obtained via FISA. It asserts it has met the requirements of FISA.

The Government has complied with its discovery and disclosure obligations, and Kukushkin’s motion fails to set forth any legal basis to require anything more.

With respect to FISA, the Government has complied with its obligations under Section 1806 in this case. On December 1, 2019, the Government notified defense counsel that it did not intend to use any FISA-obtained or FISA-derived information against the defendants at trial.

It’s basically a legalistic way of saying, “yes, yes, yes, but no.” All the more so given that the government corrects a Kukushkin claim that the government had stated they had not obtained FISA collection.

Kukushkin incorrectly states that the Government has “denied procuring evidence pursuant to Title III or FISA warrants.” Dkt. 45 at n.1. The Government has told the defense that it did not obtain or use Title III intercepts in this investigation. The Government has not made any representations about the use of FISA warrants.

And the government  provided Judge Oetken an ex parte filing, which is the kind of thing you’d do to be very transparent to the judge when asked about FISA.

The Government is separately submitting a supplemental letter to the Court ex parte and under seal.

Again, all this is legally uninteresting but factually intriguing given how open the government is about the likelihood they did use FISA in this case.

Especially given how they note that the representations the government makes in this letter apply to all the defendants, including Fruman and Parnas.

The Government writes in response to defendant Andrey Kukushkin’s December 12, 2019 letter motion, which is made “on behalf of all defendants,” seeking the Court to direct the Government to affirm or deny, under 18 U.S.C. § 3504, whether the defendants were the subject of any Government surveillance, including under Executive Order 12333 or the Foreign Intelligence Surveillance Act (“FISA”). [my emphasis]

If Kukushkin were targeted with a FISA order, it would mostly implicate some Nevada Republicans — that’s the side of the grift Kukushkin got charged under.

But if Parnas or Fruman were targeted, it might implicate Pete Sessions, Ron DeSantis, Devin Nunes, the other members of Congress Adam Schiff intimated were also included in the Parnas call records obtained by HPSCI, the President’s lawyer, and possibly even the President himself.

And if any of the grifters were personally targeted, it would probably mean that Bill Barr (who has been personally involved in the case since early last year) had agreed that someone in direct communication with all these Republicans was or is probably an Agent of a Foreign power.

8 replies
  1. Rugger9 says:

    The trouble with facts is that they are stubborn things, and the trouble with slime is that it oozes out from under the rocks. It might be easier to just presume that everything is tainted in the GOP and make them start over.

    When Faux breaks away from their cheerleading (except for Geraldo) it will be interesting to see how they spin the latest tranche of revelations including this one.

  2. sproggit says:

    Is there another possibility here?

    I suspect that there is a legal term of art for this (I rather want to use the term “construction”, but I’m honestly not sure if that would be correct)… but what about a scenario like this:-

    1. Government obtains evidence of wrong-doing on behalf of one or more of the defendants, but does so using either a FISA warrant, or through actions that are not strictly legal (for example, stepping beyond the bounds of a search warrant, a warrant-less wiretap, etc). In other words, the government has evidence but would not want to disclose to the Defendant the means by which they came to possess that evidence.

    2. Government then sets about “finding” evidence of the wrong-doing through other means. For example, they might elect to conduct “random” searches and “get lucky”. Or they may be able to construct a line of inquiry that they know would lead to their evidence and then get a Court to sign off on legitimate, legal warrants that provide a paper trail to the evidence.

    3. Government “discovers” the evidence…

    4. Government presents the evidence to the Defendant ahead of the trial, complete with the re-fabricated means by which it was collected, thus hiding the true source.

    To be fair, that would be pretty underhand stuff and I’m not for one moment suggesting that this or any administration would do such a thing.

    There are a couple of sides to this. On the one hand, it could be that the government is holding back details about either evidence, or the means by which they came in to possession of that evidence, perhaps because that would disclose operational methods or practices, or it would disclose an ongoing operation.

    On the other hand, isn’t there a still on-going case between the United States and some Russian Oligarch (or, more accurately, a company belonging to a Russian Oligarch) in which the Defendants have asked for absolutely amazing levels of discovery pertaining to the Mueller investigation? I recall seeing something about this and concluding that in that case the defendants were attempting to use the legal system to pry loose details of Mueller’s intelligence in a way that would benefit the Russian government.

    Difficult to know where the truth lies in this instance, but as the article points out, if the government is filing an ex parte motion under seal – to explain their reasoning to the Court – it may suggest they are pretty confident of their position.

  3. Savage Librarian says:

    I’m about 95% sure that my brain is broken and has been operating in Plan B mode for the past several years. I’m fending off Plan C, but I know it is lurking beyond the veil. So, the following remarks should be taken with a grain of salt. But, nevertheless, I persist in sharing these observations which occurred to me after reading this post (which I found intriguing.)

    1. Millian sent Papadopoulos a Facebook message in August 2016 promising to “share with you a disruptive technology that might be instrumental in your political work for the campaign.”

    What I find interesting about this is that we know that Millian is in a photo with Deripaska at the June 2016 SPIEF in St. Petersburg, Russia (also home to the troll factory.) But, also at this SPIEF was Joel Zamel. Hmm. Was Millian offering to share Zamel’s work with Papadopoulos? Remember, Nader paid Zamel $2M after their meeting with Don Jr. at TT in August 2016.

    2. Butina, who was a graduate student at American University, began traveling to the United States in 2014.

    The IRA/Concord indictment names Russian operatives, including some who came to the US in the summer of 2014 to canvas for information to use in their targeted social media campaign. But there was a Russian operative who visited Atlanta in November 2014 on a similar mission, but the indictment does not name him/her.

    So, I wonder if we’ll ever hear anything more about Millian and/or Butina.

    • sproggit says:

      Butina has been deported. She was put on a flight back to Moscow and was received like a hero when she landed. I’ve also seen it reported that she has been offered her pick of roles.

      Now, that could have been good PR on behalf of the Kremlin, wanting to publicly praise someone who was arrested and kept in prison by the United States. Or it could be a “thank you” by the Kremlin, in appreciation of a mission [at least partially] successfully completed.

      But if you’re wondering if we’ll hear more about the case against them, then short of FOIA requests, I doubt it.

  4. Mitch Neher says:

    Ms. Wheeler wrote, “. . . [S]omeone in direct communication with all these Republicans [i.e. Pete Sessions, Ron DeSantis, Devin Nunes, the other members of Congress] was or is probably an Agent of a Foreign power.”

    May we presume that the agent of a foreign power at issue would be someone whom P. G. FUBarr would be willing to sacrifice for the sake of his beloved POTUS, Trump???

    If so, then would Giuliani be the sacrificial lamb at issue??? Or . . . Is Rudy fully insured??? (I have no idea.)

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