Lev Parnas’ Own Delays Ensured His Evidence Couldn’t Be Considered in the House Investigation

In an update on discovery for Judge Paul Oetken, the government fairly predictably debunked Lev Parnas’ claim to have cooperated fully with prosecutors. They describe how Parnas delayed receiving that discovery, both by refusing to turn over the passwords for the devices seized by the government, and by waiting 16 days before providing the government a hard drive on which to obtain the evidence.

In a letter filed on January 20, 2020, counsel for defendant Parnas suggested that the Government has purposefully delayed the production of discovery to Parnas in order to frustrate his ability to comply with a subpoena or document request from the House Permanent Select Committee on Intelligence (“HPSCI”). Such a suggestion is baseless and completely belied by the facts. The two largest sources of delay with respect to the Government’s ability to produce the contents of Parnas’s devices to him—including an iPhone 11 that he produced (without objection from the Government) to HPSCI on January 12, 2020—are directly attributable to Parnas himself. First, Parnas declined to provide the password to his devices, which is of course his right, but which required the FBI to spend nearly two months unlocking the iPhone 11. The Government has yet to access many of the other password-protected devices seized from Parnas, although the FBI’s efforts to unlock them are ongoing. Second, when the Government did unlock several of Parnas’s devices in early December 2019, the Government asked Parnas’s counsel on December 3, 2019 to provide a hard drive on which to produce discovery, as the Government does in every case and with every defendant. However, Parnas’s counsel did not produce such a hard drive until December 19, 2019, shortly before the Christmas holiday, and more than two weeks after the Government had requested the drive. The Government produced the iPhone 11 to Parnas on December 31, 2019. However, Parnas’s counsel was unable to figure out how to open the device extraction on his own computer, so the Government made available a paralegal and technical expert—during the holidays—to sit with Parnas’s counsel to troubleshoot his technical issues. The Government has and will continue to work with defense counsel to facilitate each defendant’s access to discovery and to make discovery available as expeditiously as possible.

The type, source, and timing of the delay significantly debunks Parnas’ claims to want to be totally forthcoming in impeachment.

Consider the timing. Parnas was arrested on October 9 of last year. It took him some days to get a lawyer who wasn’t ordering him to take the fall for the President, but he did so by October 18. That was five days before Matt Gaetz — still in Trump’s good graces — stormed the HPSCI SCIF to try to delay ongoing depositions. On October 31, the House authorized an impeachment proceeding. On November 21, HPSCI voted to adopt the Democratic report on its investigation.

In a letter submitted to the court today, Parnas claims he first started asking for his discovery so he could respond to the House subpoena on November 6.

Between November 21 and 23, days after HPSCI wrapped up impeachment, Lev Parnas first started talking about cooperating. But even then, Parnas was offering deliberately erroneous stories about Devin Nunes’ interactions with him, reversing the relationship between himself, John Solomon, and Nunes, thereby hiding (as his most recently press blitz has downplayed) the extent to which he is orchestrating this echo chamber, not responding to it.

Even as Parnas was claiming, publicly and privately, he wanted to cooperate with HPSCI, he was delaying any such cooperation by withholding the passwords to his devices.

And all the while, FBI was working on breaking into his iPhone 11 — a phone that Parnas must have gotten just weeks before he was arrested, as it was only released on September 20 — for which he had refused to provide the password. (Note, nothing we have seen nothing that necessarily came off a phone purchased on September 20 or later, though we have seen a calendar entry for September 26. Though he presumably copied everything over.) Though, significantly, we now know the FBI is taking more time cracking Parnas’ other devices (thus far he has turned over the iPhone, an iPad, and a Samsung phone) than with the latest model iPhone, which the government has confirmed it cracked on December 3, meaning it took about 55 days to open.

That day, December 3, SDNY told Parnas’ lawyer that the content of some of the devices they had seized was available and he should come get it. Parnas provided the government with a thumb drive to get the contents of the phone, but not a hard drive.

The House voted out articles of impeachment on December 18.

It was the very next day when Parnas’ lawyers provided DOJ with a hard drive to obtain the first batch of discovery.

Parnas claims that because of technical problems, they ultimately used a thumb drive to get the phone contents, on December 31. Given other reports, that came after SDNY refused to have Parnas cooperate if he wasn’t willing to plead guilty to the main existing charge against him. Thereafter, his attorney moved quickly to ask to amend the protective order to share with HPSCI. That was on January 3, and they’ve made several deliveries since then.

Given competing complaints about the technical details for obtaining the phone, it seems both sides were to blame. The government may have also refused to provide the phone on a thumb drive to try to push him to cooperate.

Parnas’ delay may have stemmed from defense strategy. For example, a desire to try to plead out the case before going public like this. Parnas’ priority absolutely should be on minimizing his prison time.

There was a real delay that Parnas appears to have chosen, for whatever reason. Notably, Parnas happened to ensure, by taking 16 days to give the government a hard drive on which to obtain evidence, that he could not have received discovery to respond to his House subpoena until literally the day after the House voted out articles of impeachment. Parnas’ evidence may well be very useful — though in November and in his recent press blitz, he downplayed the degree to which he started this whole campaign in 2018, well before Rudy got involved, so it’s clear we’re not getting the full truth, and the delay may well have given him a way to cherry-pick what he provides to Congress.

Whatever he’s up to, Parnas has been stalling for time.

Update: In a new letter, Parnas makes clear that they tried to obtain just the iPhone on a thumb drive, right on December 3. Accordingly, I have updated this post to reflect that both sides blame each other.

  • At 5:39pm, Defense Counsel contacted the Government to confirm that our proposed request for the Court to order the Government to disclose when it had first cracked Mr. Parnas’s iPhone did not breach the protective order between the parties.
  • The Defense had made this request regarding the date of extraction in writing on January 1, 2, 4, 6, 10, 13, 2020, and by phone on a number of other occasions. Notwithstanding these multiple requests, the Government consistently refused to answer.
  • At 5:45, after speaking with AUSAs Donaleski and Roos by phone, per their request, we e-mailed them the parts of our letter that were potentially at issue. • At 6:15pm, AUSAs Zolkind and Roos returned our call, indicating they had no objection to the letter, and would be filing a discovery update letter addressing this issue in part. The call ended at 6:23pm.
  • At 6:19pm, while on the phone with AUSAs Zolkind and Roos, AUSA Donaleski filed the Government’s discovery update letter by ECF, including a self-serving footnote regarding the production of Mr. Parnas’ iPhone 11. In its letter, the Government still failed to identify with specificity when the phone had first been extracted.
  • At 6:41 pm, we filed the letter we had been discussing with the Government.
  • At 8:23pm, AUSA Donaleski filed another letter with the Court, complaining about our filing, and for the first time informing that the iPhone had been extracted on December 3, 2019.


11 replies
  1. P J Evans says:

    I wonder how much of the delay was by his lawyers’ advice? (It’s certainly not hard to get a hard drive. You can walk into an office supply store or just about any place that sells computers.)

    • J says:

      But with boomer-level computer savvy, it can take a lot longer (though I would argue not two whole weeks if it was a priority) to figure out how to copy everything over without help?

      • P J Evans says:

        It’s mostly a matter of whether you have to do every thing one at a time, or whether you can do folder copying.
        I have three external hard drives, totaling 5GB. When I was using Ancestry, it was about three days, sometimes four, to download my entire database with images, because there were about 30GB of images.

      • cavenewt says:

        Ordinarily the legalese you guys traffic in is over my head. But I’m a computer tech so this is something I understand. You could walk into any Staples and pick up a flash drive that would probably have held the contents of his phone. I suppose there’s a legal reason why the government couldn’t just pop it on a flash drive and hand it over to his lawyer? That would’ve saved about 16 days right there, correct?

        As for boomers, all they need is a 12-year-old to tell’em how to do it. Although I am a boomer (just turned 66) and I have software that can copy it en masse, never mind folders or individual files. Less than 30 minutes, I bet. Surely Bondy has access to IT or a 12-year-old.

  2. drouse says:

    You would think that Bondy would have handled discovery like this for other clients in the past. If he has, this bumbling act starts to look fishy. Being told to drag his heels could account for it. I don’t know if I buy the low level con man swept up by events. Far more likely in my opinion that he is still pursuing the disinformation campaign while awaiting trial and the DOJ is letting him do it for whatever reasons. If I may speculate(it’s what we do after all), he may have received assurances that things will be taken care of while he’s gone. Wasn’t his wife the recipient of a million dollar ‘loan’?

    If I can make a WAG, it makes sense for the medium has to be a hard drive because hard drives have serial numbers. Hopefully, someone with actual experience will clue us in on what format the data is in and how it’s organized.

    • cavenewt says:

      “If I can make a WAG, it makes sense for the medium has to be a hard drive because hard drives have serial numbers. Hopefully, someone with actual experience will clue us in on what format the data is in and how it’s organized.”

      From careful reading of the blog post and the linked letter, I deduced that if an accusee see wants a copy of their seized data, they have to provide a hard drive on which the government can put it. If that is indeed the case, I don’t really see that a serial number makes much difference (unless chain of custody…? And some flash drives are serialized too). Although it still seems weird to me – sort of like, “We’ll give you a copy of your documents that we seized as soon as you give us a ream of paper to xerox them onto.”

      As for the format, yes, I’m curious about that too. Bondy needing help opening the file/s is not a surprise – I’ve had clients who could not figure out how to open a PDF. But again, he should have access to his own IT or 12-year-old. Seems like willful ignorance.

  3. TXphysicist says:

    If SDNY’s decision to jail Parnas and Fruman was dictated by Barr (likely, I agree), the timing may have been dictated by some calculus regarding their available liquid funds, and setting the bail above that level, at $200k each. But it sounds like they were wrong, in Parnas’s case, and SDNY then attempted to revoke his bail, arguing that he’d hid assets from them. The judge said nope, so Parnas goes on his media tour. I’m this was covered here, sorry.

    OK, so if there’s information overlap between Firtash and Barr (very likely, regardless of the channel), it sounds like someone deceived someone else on Parnas’s assets, and a secret $1 million from Firtash got him out of prison. This is relatively far-fetched, but it could indicate that Parnas and Firtash have planned for Parnas to get caught, make bail, and leak a strategic amount of data on a pre-determined release schedule. If you’re Putin, imagine how much more leverage that gives you over Trump. Certainly agree that Parnas is most likely putting pressure on Barr for lenience in his eventual trial(s), but it could be Putin straight flexin’. Major weakness of this theory: it all hinges on Parnas’s loyalty to Firtash, Russia, Putin, him being blackmailed, or something else, and I agree that Parnas just seems like a morally-unbound American who was all too eager to ascend the ranks of power. Unfortunately common.

    Also, there’s a new forensicnews dump on Deutsche Bank, Trump, and Russia, but USE AT YOUR OWN RISK. It was DOD’d earlier today, and I think it was even compromised; the page asked me to download some janky PHP script. I’m not even going to link it, sorry, but at least one member of congress (a democrat, duh) has taken notice of the report.

    As always, thanks for the updates!

    • TXphysicist says:

      It was “DOD’d”, lol.

      Obviously, I mean “DDOS’d”, sorry for the confusions and other minor typos.

    • TXphysicist says:

      Oh, and one more thing. The new “A Very Stable Genius” book includes a claim that Trump inquired about abolishing the Foreign Corrupt Practices Act, as reported by Tillerson (presumably). This was revealed about a week ago, and it inspired a journalist to ask Larry Kudlow last Friday if there was any truth to it. Kudlow confirmed that, indeed, the Trump admin. is currently looking at changes to the FCPA.

      At first, you might think that Trump’s interest is rooted in advancing his own businesses overseas, and you’re definitely not entirely wrong. Still, I think it’s interesting that FCPA is what the United States used, at least in part, to bring charges against Firtash, and Donald Trump is still working towards undermining FCPA. It’d help their joint defense agreement, right?

  4. Anvil Leucippus says:

    He wanted to be in the spotlight during the Senate trial. The asshole is using the same play from Malaysia Flight 17: he’s just here to spread manure around, add some noise. The DOJ may not have coordinated with that, but they sure knew he would do it in the first place.

  5. I Never Lie and am Always Right says:

    This is a very useful discussion. Thank you! The delays could be explained in part by the fact that it takes time for criminal defendants to talk to their attorneys (communicate with their Russian handlers???) and decide what to do. There is a lot at stake for Parnas (and others), so allowing some time for ideas to “percolate,” i.e., strategizing and deliberating, should be expected. Unless, of course, much of this was scripted out in advance.

    Why file a pleading that provokes the reaction set forth in the government’s recent pleading when you are attempting to “sell” the idea to others that you want to cooperate with Congress, etc.? Foolishness and ineptitude? An intentional course of conduct, along with the hope that someone like Marcy would not notice this discrepancy?

    I have a hard time believing it is anything other than a deliberate and intentional course of conduct. But I’m not quite paranoid enough to conclude that this all was scripted out in advance.

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