On Rod Rosenstein’s Professed Unfamiliarity with the Mueller Report

Something happened in a Senate Judiciary Committee hearing earlier this month that is interesting background to some of the details about the Mueller Investigation that have come out of late.

The guy who oversaw the Mueller Report appears unfamiliar with the Mueller Report

In the hearing, Dick Durbin tried to get Rod Rosenstein to defend the investigation he had overseen. Early on in the exchange, Rosenstein claimed that,

I do not consider the investigation to be corrupt, Senator, but I certainly understand, I understand the President’s frustration given the outcome, which was in fact that there was no evidence of conspiracy between Trump campaign advisors and Russians.

That’s of course not what the Report said at all. Rather, it said that,

[T]he investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.


A statement that the investigation did not establish particular facts does not mean there was no evidence of those facts.

Had Durbin been prepared for this answer, he might have invited Rosenstein to quote where the Report says that there was no evidence of conspiracy, which he would have been unable to do. Instead, Durbin asked Rosenstein whether he agreed with several other things that (he claimed) the report said:

  • The Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome
  • There were more than 120 contacts between the Trump campaign and individuals linked to Russia
  • The Trump campaign “knew about, welcomed, and expected to benefit electorally from Russia’s interference”
  • The Trump campaign planned a messaging strategy around the WikiLeaks releases

In response to the first, Rosenstein claimed he didn’t know what the government (of Russia, apparently) was thinking, but could only say what their conduct was. To the second, Rosenstein said he had no reason to dispute the finding, though did not acknowledge directly that that’s what the report said.

In response to the third, Rosenstein asked Durbin what page he was referring to. Durbin claimed, incorrectly, it appeared on pages 1 to 2. Rosenstein made a great show of paging through the report, seemingly reading the passage in question, and said, “I’m not sure whether you were quoting from the Report or not Senator, but I have it in front of me … I apologize sir, I’m not seeing those words in the report if you could direct me to where it is in the report.”

In response to the fourth assertion, Rosenstein noted that that specific point says, “according to Mr. Gates, that’s attributed to Mr. Gates, I don’t think that’s a finding of the, Mueller, it’s what one of the … witnesses said.”

To be fair to Rosenstein, the exact words Durbin read do not appear in the report, just as “there was no evidence of conspiracy” does not appear in the report. Just the phrase, “the Campaign expected it would benefit electorally from information stolen and released through Russian efforts,” appears on pages 1 and 2 — though even that, Rosenstein was too cowardly to acknowledge. But unlike Rosenstein’s claim that the report showed no evidence of conspiracy, the rest of Durbin’s statement is backed by the report. On page 5, for example, the report explains that Trump showed interest in and welcomed the releases.

The presidential campaign of Donald J. Trump (“Trump Campaign” or “Campaign”) showed interest in WikiLeaks’s releases of documents and welcomed their potential to damage candidate Clinton.

And as for only Rick Gates describing a focused campaign effort to prepare for the WikiLeaks release, other witnesses, including campaign manager Paul Manafort, described similar obsession with the emails. At least five different witnesses gave testimony consistent with Gates’, and not all the people involved in such discussions were quoted in the Mueller Report.

Given Mueller’s own need to refer to the report and strict adherence to the specific language in the report when he testified before Congress, I can’t complain that Rosenstein seemed even less familiar with the contents of the report than Mueller (and elsewhere Rosenstein confessed he was uncertain about other key details). But my big takeaway from his testimony — aside from the fact that he seems intent on saying what Bill Barr, Donald Trump, and Lindsey Graham want him to say, whether or not it accords with reality — is that he exhibited none of the familiarity with the report I expected he would have.

It seems an important lesson. Rod Rosenstein, with no apparent familiarity with the report’s actual content, instead adopted the false lines that Trump and Barr have about the investigation, incorporating the ones on Barr’s four-page memo misrepresenting the findings, including where the memo neglected to provide the lead-up to the quotation that, “the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.”

Ed O’Callaghan (and Steve Engel) wrote Barr’s declination, not Rosenstein

That’s one reason I think the memo that Steven Engel and Ed O’Callaghan wrote Billy Barr on March 24, 2019 recommending he decline to prosecute the President is probably the most interesting Mueller-related release from Friday. In actuality, DOJ released just the first and last page of the memo, and redacted all the justifications. But the first page shows that Engel — who as OLC head should have absolutely zero input into the specifics of a criminal declination, particularly regarding a report that presumed OLC had ruled out such prosecutions categorically — and O’Callaghan wrote the actual declination of Trump. The memo only went “through” Rosenstein (though Rosenstein definitely initialed it).

About half that first page is redacted, but not a footnote that says,

Given the length and detail of the Special Counsel’s Report, we do not recount the relevant facts here. Our discussion and analysis assumes familiarity with the Report as well as much of the background surrounding the Special Counsel’s investigation.

I have every reason to believe that O’Callaghan, unlike Rosenstein, is reasonably familiar with the workings of the Mueller Report (but Rosenstein must have gotten his misunderstandings of what it showed from O’Callaghan).

But whatever logic is laid out in that memo, the discussion apparently does not tie closely to the actual facts.

That means both Barr and Rosenstein could well have approved it without any familiarity with the actual facts.

In spite of Rosenstein’s ignorance, DOJ had to read about Roger Stone’s cover-up closely to redact it

Rosenstein’s professed lack of familiarity with Trump’s enthusiasm to exploit the WikiLeaks release is interesting given how important it had to have been in March 2019, when Mueller was publishing his conclusions. That’s because it was the one ongoing proceeding treated as such in the report release. So a great deal of the report got redacted — properly — in the interest of protecting Roger Stone’s right to a fair trial. Someone at DOJ — and the process may have been overseen by O’Callaghan — had to have read the Stone details closely if only to make sure none of the rest of us could.

That said, even before DOJ released the report, it was immediately clear how inconsistent the Stone findings were with Billy Barr’s public statements. Barr’s categorical comments about conspiracy pertained only to conspiring directly with Russia, which allowed him to make assertions that completely ignored Stone’s attempts — via means that have not yet been made public — to optimize the WikiLeaks releases.

On Friday, all the things that Barr was covering up became public in one narrative.

There was very little that had not been previously published in Friday’s release of the report. The details in the report showed up in Stone’s prosecution, the trial, and the warrants released in April. But the description of how many witnesses knew of Trump and Stone’s focus on the releases — including those like Paul Manafort and Steve Bannon who always tried to protect Trump in their testimony — sure does make Rosenstein’s denials look deliberate.

In debriefings with the Office, former deputy campaign chairman Rick Gates said that, before Assange’s June 12 announcement, Gates and Stone had a phone conversation in which Stone said something “big” was coming and had to do with a leak of information.195 Stone also said to Gates that he thought Assange had Clinton emails. Gates asked Stone when the information was going to be released. Stone said the release would happen very soon. According to Gates, between June 12, 2016 and July 22, 2016, Stone repeated that information was coming. Manafort and Gates both called to ask Stone when the release would happen, and Gates recalled candidate Trump being generally frustrated that the Clinton emails had not been found.196

Paul Manafort, who would later become campaign chairman, provided similar information about the timing of Stone’s statements about WikiLeaks.197 According to Manafort, sometime in June 2016, Stone told Manafort that he was dealing with someone who was in contact with WikiLeaks and believed that there would be an imminent release of emails by WikiLeaks.19

Michael Cohen, former executive vice president of the Trump Organization and special counsel to Donald J. Trump,199 told the Office that he recalled an incident in which he was in candidate Trump’s office in Trump Tower when Stone called. Cohen believed the call occurred before July 22, 2016, when WikiLeaks released its first tranche of Russian-stolen DNC emails.200 Stone was patched through to the office and placed on speakerphone. Stone then told the candidate that he had just gotten off the phone with Julian Assange and in a couple of days WikiLeaks would release information. According to Cohen, Stone claimed that he did not know what the content of the materials was and that Trump responded, “oh good, alright” but did not display any further reaction.201 Cohen further told the Office that, after WikiLeaks’s subsequent release of stolen DNC emails in July 2016, candidate Trump said to Cohen something to the effect of, “I guess Roger was right.”202

After WikiLeaks’s July 22, 2016 release of documents, Stone participated in a conference call with Manafort and Gates. According to Gates, Manafort expressed excitement about the release and congratulated Stone.203 Manafort, for his part, told the Office that, shortly after WikiLeaks’s July 22 release, Manafort also spoke with candidate Trump and mentioned that Stone had predicted the release and claimed to have access to WikiLeaks. Candidate Trump responded that Manafort should stay in touch with Stone.204 Manafort relayed the message to Stone, likely on July 25, 2016.205 Manafort also told Stone that he wanted to be kept apprised of any developments with WikiLeaks and separately told Gates to keep in touch with Stone about future WikiLeaks releases.206

According to Gates, by the late summer of 2016, the Trump Campaign was planning a press strategy, a communications campaign, and messaging based on the possible release of Clinton emails by WikiLeaks.207 Gates also stated that Stone called candidate Trump multiple times during the campaign.208 Gates recalled one lengthy telephone conversation between Stone and candidate Trump that took place while Trump and Gates were driving to LaGuardia Airport. Although Gates could not hear what Stone was saying on the telephone, shortly after the call candidate Trump told Gates that more releases of damaging information would be coming.209

Stone also had conversations about WikiLeaks with Steve Bannon, both before and after Bannon took over as the chairman of the Trump Campaign. Bannon recalled that, before joining the Campaign on August 13, 2016, Stone told him that he had a connection to Assange. Stone implied that he had inside information about WikiLeaks. After Bannon took over as campaign chairman, Stone repeated to Bannon that he had a relationship with Assange and said that WikiLeaks was going to dump additional materials that would be bad for the Clinton Campaign.210

Rosenstein asserted there was no conspiracy in spite of ongoing investigations into a conspiracy

All of which leads me to something I’ve been pondering.

In this post, I analyzed what the Stone warrants suggest about the investigation into him. The investigation appeared to start as an effort to determine whether Stone’s efforts to optimize the hack-and-leak; the Mueller Report seems to explain that nothing Stone was known to have done was criminal. In August 2018, as Stone’s efforts to tamper with witnesses became clear from his press campaign, Mueller’s team obtained the warrants that would lead to his obstruction charges. On August 20, 2018, Mueller obtained warrants for Stone’s cell site location during the election and Guccifer 2.0’s second email account; while different FBI agents obtained those warrants, they got them within minutes of each other.

Then, on September 26 and 27, an FBI agent stationed in Pittsburgh obtained a bunch of warrants, most with gags citing 18 USC 951 and conspiracy, the descriptions of which were withheld in April, apparently because those investigations are ongoing.

*September 24, 2018: Warrant for Stone’s Liquid Web server

*September 26, 2018: Mystery Twitter Account

*September 27, 2018: Mystery Facebook and Instagram Accounts

*September 27, 2018: Mystery Microsoft include Skype

*September 27, 2018: Mystery Google

*September 27, 2018: Mystery Twitter Accounts 2

*September 27, 2018: Mystery Apple ends in R

The warrant targeting several Twitter accounts is sealed in part because, “It does not appear that Stone is fully aware of the full scope of the ongoing FBI investigation.”

In September 2018, Mueller’s team seems to have pursued a new line of investigation, one that the obstruction investigation into Stone may have provided cover for, one that may be ongoing. Mueller was specifically trying to hide that investigation from Stone.

But I’m struck by the date: September 26 and 27

In the wake of a September 21 NYT story, Trump almost fired Rosenstein when people close to Andrew McCabe leaked details of Rosenstein’s musing about wearing a wire to a meeting with Trump. Given Rosenstein’s apparent ignorance of even the public Stone related content — and O’Callaghan’s apparent misrepresentation of those details — I wonder whether Stone wasn’t the only person Mueller was hiding this from.

Rosenstein asserted, as fact, that the Mueller Report showed no evidence of a conspiracy between Trump and Russia (which is inaccurate by itself). He said that in spite of warrants in a still-pending investigation into conspiracy and Agent of a Foreign power involving Stone.

32 replies
  1. OldTulsaDude says:

    To me it seems more likely Manafort, not Stone, could have had the “in” with Assange. How that would fit in, I don’t have a clue, unless he put Stone in contact with someone.

  2. earlofhuntingdon says:

    Hope you had a nice drive. The fifty miles of roadway east of Chicago are a zoo at the best of times.

    It is seriously disappointing that Rosenstein follows the Barr line that Mueller’s Report showed no evidence of conspiracy with “Russians,” when the report makes clear he limited his review to Russian government officials, not all Russians or Russian-linked operatives. For one thing, in this line of work, cut-outs would be the order of the day.

    Rod also seems to ignore the limits on Mueller’s evidence gathering, which included no interviews with the president and other probable conspirators, and apparently little review of the president’s tax and financial information. That is where one would look for questionable receipts, counter-parties, and movements of money, which are often linked with conspiracies of this alleged magnitude. That’s especially so for Trump, for whom all things boil down to money.

    • Matthew Harris says:

      At the time of the investigation, he had been the US Attorney in Maryland for 10 years, and had worked in a variety of high level positions before that. He wasn’t involved in national security, per se, but he had probably been working on enough high level cases that he understood how cut-outs work. I mean, that is not esoteric superspy stuff— if you are detective investigating a pawn shop that sells stolen goods, you know how fences and plausible deniability work.

      But apparently, after several decades working at justice, Rod Rosenstein was a babe in the woods who could not understand that a conspiracy involved…well, conspiring. I mean,a key part of conspiracy is that people perform legal acts to support people who are performing illegal acts.

      If Rosenstein was supervisiing a case back in Maryland, where he was investigating, say, people distributing drugs, of course he would try to get a guy who drove a car of drugs, without fulling knowing what he was doing, arrested, and he would pull out all the stops to do it. He understands these things perfectly, and he is pretending not to.

  3. PeterS says:

    Sorry, is the suggestion at the end that Mueller was hiding that Stone investigation from Rosenstein because he thought Rosenstein was about to be fired? I may have misunderstood…

    • emptywheel says:

      I think Mueller definitely knew he was going to be shut down once Barr got hired. But certainly events (that near-firing of Rosenstein, the firing of Sessions and appointment of Matt Whitaker) in fall 2018 would have led him to believe he could be fired at any time.

  4. Rugger9 says:

    I for one do not agree with the premise that Rosenstein is unfamiliar with the Mueller Report contents. He appointed Mueller and until AG Barr came on the scene would have been kept in the loop about progress and about the findings. So, it’s not “apparently” but more like “allegedly” or “conveniently” unfamiliar. Mueller for his part would not have been expected to clue into Rosenstein’s duplicity until after AG Barr took over and made that the price to remain in office.

    We’ll see if Berman testifies Wednesday, and what he says. Nadler and Pelosi will have to decide whether to impeach, but as noted will use the “too close to the election” excuse to not do their duty.

    Of course, the GOP in the Senate will be doing Biden investigations without any shame at all, and doubtless AG Barr has an indictment ready to go for Joe B in October. The time for being genteel is past.

    OT, I liked Al Franken’s comparison about who did better in Tulsa than DJT, including John Tesh (hehehehe). That, or the OK governor yawning during the speech would be the highlights. Let’s see if Kayleigh can do better than Spicer on the attendance and what Jarvanka will do to Parscale for the fiasco. Popcorn, everyone!

    • Rugger9 says:

      Sorry, I forgot about the “walk of shame” picture from Marine One to the WH yesterday.


    • jdmckay says:

      Of course, the GOP in the Senate will be doing Biden investigations without any shame at all, and doubtless AG Barr has an indictment ready to go for Joe B in October.

      Barr on Fox News this morning:

      Barr told Fox News’ “Sunday Morning Futures” that Durham is “pressing ahead as hard as he can” with the investigation, but he was surprised about the lack of public interest in his probe.


      “In terms of the future of Durham’s investigation, you know, he’s pressing ahead as hard as he can,” he added. “And I expect that, you know, we will have some developments hopefully before the end of the summer.”


      Barr also slammed the “mainstream media” for its “bovine silence in the face of the complete collapse of the so-called Russiagate scandal.”

      Right in time for the election.

      The time for being genteel is past.

      I agree wholeheartedly. Time for Dems to shed their meekness and come out swinging!!!

      • P J Evans says:

        Barr hasn’t bothered to look at *why* the Durham “investigation” has no traction.
        The rest of us can follow the news that Fox doesn’t cover, and we know there’s no there, there.

        • jdmckay says:

          Barr hasn’t bothered to look at *why* the Durham “investigation” has no traction.

          Maybe because its not completed yet? And… maybe given everything seems to be collapsing around Trump and it is accellerating, I think Barr is just hitting the airwaves as much as he can to deflect and (try to) stop the bleeding. As we have seen over and over, they will make stuff up and lie through their teeth to do this. I expect Durham’s “findings” will be twisted into whatever Barr wants them to say, among them constant Dem trashing as their main campaign slogan.

          The rest of us can follow the news that Fox doesn’t cover, and we know there’s no there, there.

          Yah, I’ve been reading Marcy for 20 years. And too many times, over and over see her lay out the facts indisputably. Then, another Barr comes along and the *really* bad guys walk free and whistle Dixie. Pablo has got it right, Dems have only “documented the atrocities” while R’s are already executing the next one.

          I have little hope of meaningful change unless Dems finally, for once, take the gloves off and fight like our lives depend on it.

        • ducktree says:

          And the projection in his “bovine” silence comment is rich: with a face like that? Besides, it’s more like the MSM is the Hound of the Baskervilles in the case of Trump/Russiagate – “why won’t that dog bark?”

        • OldTulsaDude says:

          Yahoo reported today that Barr was quoted by Breitbart saying that foreign governments are printing bogus ballots and therefore mail-in ballots are a method for dispensing fake votes.

          Seriously, and this guy can’t be impeached? WTF, Jerry Nadler?

        • Terry Mroczek says:

          Barr’s statement about foreign governments printing bogus ballots echoes Trump’s tweet yesterday:


          Call me suspicious, but this sounded a lot like, “Russia, if you’re listening…” that we all disregarded at the time as a “bizarre moment”. What sounded like encouragement turned out to be an order he issued, with full knowledge of what he was communicating. Yesterday’s tweet – possibly an attempt at fear-based voter suppression. And more worrisome, possibly a request for foreign election interference.

      • pablo says:

        Dems will never shed their weakness, and that’s the problems.
        Rethugs own the steamroller concession, and Dems protest by lying down in front of it.

      • Spencer Dawkins says:

        Perhaps off topic, or perhaps on topic but snark, but is Barr now part of the Trump 2020 campaign, if he’s concerned about media coverage of an in-process investigation? I guess he figures Parscale’s job will be open soon, and Barr could focus on spinning for the media 100 percent of the time.

        He hasn’t been working for the American people for a while, and getting Trump reelected might be more valuable to Trump than anything Barr can do for the next five months as AG …

        • John K says:

          “…is Barr now part of the Trump 2020 campaign, if he’s concerned about media coverage of an in-process investigation?”
          This is really significant because Barr gives himself away by saying it. Does he really want the MSM speculating about an ongoing investigation?
          No self-respecting Attorney General would want that, unless the investigation itself, worth nothing on its own merits, diverts attention from more important matters, like that AG’s obfuscation of the subject of that investigation.

    • Spencer Dawkins says:

      I too often think happy thoughts, but would the dynamics of impeaching Barr for ordering an attack on peaceful protesters to “protect” Trump be different from impeaching Trump?

      Barr’s not on the ballot, except indirectly, and it seems that getting former military leadership to testify about his abuse of power might be easier now than ever before …

      He really is a minor league Beria, and at the end, Beria had no friends.

  5. x174 says:

    thanks for following up on the grossly under-reported duplicity of rosenstein. i watched rod make his “no evidence” statement, and it seemed quite awful at the time–though i think durbin did a pretty decent job of shaking him down. then again, there appears to be an awful lot of duplicity in this case, including comey and especially mueller, that needs to be factored back into the overall analysis to suss out rod’s role in the ever-evolving mueller affair.

    • PeterS says:

      Duplicity by Mueller? I thought he did his job somewhat tediously by the book, without regard to the times we were living through.

  6. Savage Librarian says:

    Here are some names that end in R. These people have played a role in the DT campaign or administration. There probably are other relevant names that have not come to mind. So, the mystery name may not even be in this list. You may have other, better ideas. One thing I have been wondering, though, is if there is any connection between Nader and Schulte.

    Mystery name ending in R (potential possibilities): Minused out names are eliminated. Those with asterisks are improbable, in my opinion.

    *William Barr
    – William Browder
    Diazer(ph)(Glenn Simpson’s interview)
    Charles Faulkner
    – Guccifer
    *Duncan Hunter
    *Margaret Kunstler
    *Ivanka Kushner
    Jared Kushner
    – Rebekah Mercer
    *Andrew Miller
    *Stephen Miller
    George Nader
    *Dana Rohrabacher
    Felix Sater
    *Keith Schiller
    ‪*Peter Schweizer ‬
    – ‪Kurt Volker‬

  7. Mitch Neher says:

    Durbin’s paraphrase: The Trump campaign “knew about, welcomed, and expected to benefit electorally from Russia’s interference . . .”

    The original statement from the Mueller report: “the Campaign expected it would benefit electorally from information stolen and released through Russian efforts . . .”

    Picky, picky, persnickety sticklerism.

    Is it possible to expect a benefit that one does not also welcome? Technically, yes.

    Is it possible to expect a benefit about which one possesses no knowledge? Hyper-technically, yes, again.

    But, but . . . What about that email from Rob Goldstone to Trump Jr. pledging [paraphrased, again] the Russian government’s support for your father [what’s-his-name]??

    But, but . . . What about the June 9th, 2016, Trump Tower meeting, itself??

    Did the Trump campaign not welcome the representatives of the Russian government to that meeting??

    Did those representatives of the Russian government at that meeting not bring information to benefit the Trump campaign electorally??

    If this is the way the lawyers do it, then Thank Gawd Almighty I am not a lawyer.

  8. Matthew Harris says:

    The weird thing, for me, is that all of these people should have known to fold, but they kept on putting money in the pot, and now they are going to lose everything—or at least a lot more than they would have if they had just washed their hands of this from the beginning.

    The biggest question or me is…where did Rod Rosenstein come from? He went to the University of Pennsylvania, went to Harvard, was editor of the Harvard Law Review, worked at Department of Justice…and when it comes down to it, his entire system of ethics is basically “Do what a white guy in a suit tells me”. Normally, I would think calling institutions hollow and corrupt was a trite thing to do, but this has shown, to a large extent, what those institutions are really about.

    Trump isn’t even subtle about it. His entire persona is an obvious con. He insulted Rosenstein publically. But when it comes down to it, Rosenstein knows no other principle than “white guy in a suit”.

    And so after this is all over, we are going to be taking, I hope, a long hard look at the culture of the Ivy Leagues, the culture of law schools, and the culture of the Department of Justice. Because while a few people squawked, the institutions themselves weren’t able to enforce any other code of ethics than that white people from the east coast are in charge of everything.

    • Silly but True says:

      Re: Ivy Leagues
      The Ivy Leagues produce sufficient critical mass of monsters that the typical “bad apple” excuse just cannot cut it.

      We already faced this with Enron and Jeff Skiling being Harvard MBA darling. How many times do they get a pass?

    • Savage Librarian says:

      If the research is accurate and there already are means to measure these traits, why don’t hiring practices filter out the candidates who exhibit them?

      Is it something that is lost in our educational system? Or in our systemic structural socialization process? Or in our political systems and structures? Or in all of these?

      Surely we are smart enough to address this and find ways to prevent or, at least, reduce the overwhelming kind of havoc that we have all seen in the past few years.

      “Dark triad” – Wikipedia
      “Research on the dark triad is used in applied psychology, especially within the fields of law enforcement, clinical psychology, and business management. People scoring high on these traits are more likely to commit crimes, cause social distress and create severe problems for an organization, especially if they are in leadership positions…”


    • Jenny says:

      “Everybody in the Department takes an oath, and if they violate it, they are going to be held accountable.”
      – Rod Rosenstein (Reuters, 2 years ago)

      “Our nation is grounded on the rule of law, and the public must be assured that government officials administer the law fairly.”
      Rod Rosenstein

      “DOJ investigations must not be tainted by individuals imposing their own political prejudices.”
      – Rod Rosenstein (Fox News, 2 years ago)

  9. Vinnie Gambone says:

    If Barr’s saying foreign governments are printing fake ballots look for Trump’s team to “find” them.
    Russia, if you’re listening; send us fake ballots in the mail.
    This is the shit they’re going to do. They just need Manafort #2 to give them the polling of where to deliver them. Watch. They often telegraph their punches.

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