A Newfound Obsession with Paul Manafort’s iCloud Account
There was an interesting filing last week in the case of Stephen Calk, the banker charged with giving Paul Manafort a loan in exchange for a position in the Trump Administration. It is probably totally innocent, but it reveals certain things about referrals from the Mueller investigation. And given my past obsession with Manafort’s OpSec (or, more commonly, lack thereof) dealing with Apple products, I’m intrigued that the contents of one imaging of Manafort’s iCloud account remained outside normal evidentiary filing systems.
Calk’s lawyers have long pushed prosecutors in SDNY for more expansive discovery relating to Manafort and his son-in-law. In a filing in April, they described that the investigations of Manafort and Calk proceeded in close parallel, and so there might be Mueller files that were pertinent to Calk.
Beginning in or about March 2017, the U.S. Attorney’s Office for the Southern District of New York and the Special Counsel’s Office (“SCO”), commenced a joint investigation that ultimately led to the indictment of Mr. Calk in this case. The SCO, which was investigating former Trump Campaign Chairman Paul Manafort, and Southern District (including the prosecutors on this case) worked closely together, conducted joint proffer sessions with employees of Mr. Calk’s bank (The Federal Savings Bank (“TFSB”)), and from early on shared evidence and information. Indeed, the investigation of Mr. Calk was totally intertwined with the SCO’s investigation of Manafort; the two investigations even shared the same FBI case agent. Manafort was charged in February 2018 with defrauding TFSB (among other banks) by providing the bank with false information about his finances in connection with the two loans at the heart of the case against Mr. Calk (loans that, in this case, the government now claims were obtained through bribery rather than deception). At Manafort’s trial in August 2018, two TFSB employees testified for the government pursuant to immunity orders regarding those loans. Those same witnesses, as well as potentially others from the Manafort trial, are expected to testify at Mr. Calk’s trial. There will also be substantial overlap of documentary evidence.
From the outset of this case, the government was thus well aware that it would need to review the files of the Special Counsel’s Office for relevant Rule 16 materials.
On July 29, 2019, the defense sent a discovery letter to the government seeking discovery pursuant to Rule 16 and Brady/Giglio, and specifically reminding the government of its obligation to review the files of the SCO for responsive material. Prior to the August 26 deadline, the government made six productions to the defense totaling approximately 90,000 documents (approximately 1,265,000 pages). 1 Yet, according to the government’s index accompanying the discovery, none of the six sets appears to have included materials from the files of the Special Counsel’s Office.
On August 26, 2019, the government sought permission of the Court to extend the discovery deadline to October 15, 2019. (ECF No. 28). The government explained that it had “completed its production of discoverable materials from [its own] investigative files,” but that it had “been obtaining materials from the files of investigations conducted by the Central District of California and the Special Counsel’s Office . . . , and ha[d] begun reviewing and producing such materials.” (Id.). The government noted that, while it believed “its production of core Rule 16 discovery material [was] substantially complete, . . . there [was] a significant volume of additional material from the files of the Special Counsel’s Office—some of which [was] not yet in [the U.S. Attorney’s Office for the Southern District of New York’s] possession—that the Government intend[ed] to review for production to the defense” and therefore required an “extension of the discovery deadline by several weeks.”
In response to that filing the government described what sounded like a kind of graymail on the part of Calk’s lawyers, discovery requests that had nothing to do with the case against Calk, but which might elicit sensitive files about the Mueller investigation, including details of anything the government ever considered charging Manafort with.
For example, notwithstanding the fact that Manafort is not a named defendant in this case and is not a likely trial witness for the Government, the defense has asked broadly for the entire contents of all email accounts used by Manafort (without any restrictions based on, for example, time period or who Manafort used these accounts to correspond with), Ex. B at 5; all documents and communications “concerning any entities controlled directly or indirectly by, or associated with, Mr. Manafort or Mr. Yohai or their family members,” Ex. B at 4 (which would appear on its face to call broadly for every record concerning any of Manafort’s lobbying or consulting businesses throughout his entire career and concerning every activity he conducted as part of any such business during his career—as well as the same for, among others, Manafort’s adult children); and all documents concerning any offense by Manafort “investigated or considered” by the Government (which would would seem to encompass virtually any document in the SCO’s file if not narrowed, as Calk’s counsel never agreed to do), Ex. A. at 2, even though that material was not gathered by this Office as part of this investigation and virtually none of that material has anything to do with (or was ever known to or sought by) Calk or the Federal Savings Bank. [my emphasis]
The government’s filing actually makes it clear that the two investigations proceeded with totally separate sets of evidence, with the Mueller evidence inaccessible to the Calk team.
Last Friday, the government informed the court that they were still finding Mueller-related files and providing them to Calk.
Last week, in the process for searching for additional material requested by the defendant, the Government discovered that it had inadvertently failed to previously identify and produce a limited universe of additional materials from SCO’s Manafort files. Although a very limited number of these materials may be of some relevance to this case, the vast majority of these materials appear upon the Government’s limited initial inspection to be either duplicative of prior productions or of minimal relevance. Nonetheless, the Government is producing these materials immediately out of an abundance of caution and undertaking efforts to minimize delay and disruption to the defense by (i) identifying the documents within the new production that are most likely to be relevant; and (ii) undertaking a substantial technical effort, at the Government’s expense, to de-duplicate the new materials against prior productions so as to help defense counsel quickly identify any documents that are truly new. As also described below, in light of our discovery of this new material, the Government is also undertaking a broader re-review of the Manafort Materials to ensure that nothing else in the Manafort Materials has been overlooked. As also detailed herein, we expect that process to be completed well in advance of the current December 2020 trial date.
The files include documents from Calk’s bank that the bank did not turn over in response to subpoenas from SDNY (but did turn over to Mueller’s team).
Specifically, in its review of this subset of the material thus far, the Government has identified fewer than 100 documents that appear to be potentially relevant and non-duplicative, including certain files that were apparently produced by The Federal Savings Bank (“TFSB”) to the USAO CDCA and the Money Laundering and Asset Recovery Section (“MLARS”) as part of their investigations3 but not to the Government in this case. 4
3 MLARS had been conducting an investigation of Manafort prior to the formation of SCO.
4 Certain of these files, which would have already been available to the defendant due to his control and majority ownership of TFSB, appear responsive to the Government’s subpoenas to TFSB, and it is not clear why they were not produced to the Government as part of this investigation.
The more interesting detail is that some of the Manafort files — including recordings of his jail conversations and the contents of his iCloud account — were not uploaded to the FBI system.
The discovery of the 30,000 uncategorized Manafort-related files described above also led the Government to further review SCO’s discovery productions to Manafort to ensure that no additional materials had been inadvertently overlooked. The Government had previously understood, based on extensive communications with members of the SCO team and its own review of the SCO’s file storage system, that, with several immaterial exceptions, the SCO discovery productions to Manafort were drawn from the sources that the Government had independently searched, including the FBI’s files as described above. However, after further reviewing the SCO’s discovery transmittal letters and copies of certain of the SCO’s productions, the Government has realized that certain discovery that had been produced to Manafort was apparently not contained within the sources the Government had searched in this case.7 Included within this set of additional material is certain material that appears to be potentially relevant (in particular, a small set of TFSB documents that, again, would already be available to the defendant but that were not produced to the Government in this case) and a much more substantial universe of material that appears unlikely to be relevant (such as Manafort’s recorded jail calls, and documents associated with depositions, including of Manafort, in a 2015 civil lawsuit). Again, as with the 30,000 documents described above, the Government will be producing virtually all of these materials to the defense consistent with the broad approach it has taken to the Manafort Materials to date. We currently expect to transmit these materials to the defense within the next week.8
7 The Government is very grateful to the former SCO personnel for their extensive assistance in the Government’s efforts to locate and produce the Manafort Materials in this case, and while noting these communications to put the Government’s efforts to date in context, the Government certainly does not intend to suggest fault or blame for what may well have been the Government’s misunderstanding or mistake.
8 The volume of these materials is under 20 gigabytes, consisting of 53 recorded jail calls, one iCloud account extraction that the Government believes contains negligible information related to Calk, three video depositions, and several thousand pages of documents. The Government believes they are likely largely non-duplicative of its previous productions, but will attempt to deduplicate these documents as described herein and inform the defense of the results of this process. [my emphasis]
We know from his plea breach proceedings that Manafort continued to be investigated long after he was jailed, and we know from filings about his conduct in jail that he attempted to communicate in ways that evaded monitoring systems.
Yet some of that information, it appears, remained (and remains) segregated from generally accessible filing systems at DOJ.
That has implications for any FOIA responses — but it also has implications for any effort by Billy Barr to assess what the universe of evidence against Manafort is. For over a year after the end of the Mueller investigation, this material has been somewhere else, inaccessible to normal searches on DOJ systems.
Could be human error, but any perturbation in the swamp surrounding Manafort carries a stench. So much of what he was involved with remains opaque. An earnest USAG could explore much further, with a Ukrainian government no longer terrorized by Trump. Lots of scary still lurking.
Appreciate your sharp-eyed diligence. Learn something every time. There are devils in the details.
I’m doubtful that this was human error, especially given the major attention given to anything involving Manafort at DOJ, the WH, Mueller, Congress, and the media. A typo wouldn’t put this out of reach of DOJ searches. Someone proactively decided not to upload this evidence into the regular DOJ system.
Hard to know for certain, eh?
In my research career I too often was forced into dumpster diving for retrieval or correction of missing or misrecorded data.
While some disappearances or misentries were deliberate, the vast majority were the result of human error.
Need a few more feathers before this one passes the maliciousness duck test, IMHO.
Not for certain, but Occam’s Razor says this was deliberate.
This isn’t an ordinary database where someone typed the wrong key – “Hit ‘1’ for regular storage or ‘2’ for irregular storage” and the info went to the wrong place. In a system like this, wouldn’t the default be that everything goes into the general storage, and if you are going to do something other than that, you have to make various choices and decisions (and get certain permissions) to make that happen?
In theory, DOJ treats evidence like banks treat money, documents, and other valuables – it gets recorded as it comes in, and general procedures tell you where to put it. Any time it moves, you document where it came from, where it goes, who moved it from here to there, and why they moved it. Really special stuff that meets certain special criteria may get handled differently, with only certain people allowed to even know that it exists, records kept somewhere more secure, and very special handling procedures put in place. To get it that special handling, however, someone has to *decide* to give it that special handling.
There’s also the demonstrated record of using classification systems to hide inconvenient materials. See the handling of Trump’s Perfect Call with the president of Ukraine.
There should be a record of everything somewhere if it has to do with POTUS and national security.
And everything from the State Department and Treasury, too.
That’s what Trump’s henchmen are trying to hide. Not to mention, Trump violates the PRA every time he picks up an unsecure phone and talks gubmint business on it, every time he destroys a translator’s notes, every time something else that’s gubmint business goes missing.
One would have thought that after the wholesale PRA violations during BushCheney, Congress would have fixed more loopholes and imposed consequences with teeth, Plus, there’s Trump’s longstanding. He thinks he’s Capone: he loves to get caught and laugh when no consequences follow. Rules aren’t normally designed for such outright lawless behavior. Something else the Dems will have to fix.
I think the implied speculation may be on target here that Mueller had recognized early on how AG Barr would interfere and obstruct (AG Barr may also have said as much in person) and so left “insurance” with bread crumbs to lead the way back to it. After Barr mischaracterized the Mueller report and almost every other document he’s released, Mueller knew he made the right call. The fact these all appear to be SCO materials point to such a conclusion. Then they become responsive to defense filings.
Like the Men in Black II plot, I would expect a series of reminders to point to recovering the information.
How much is out there, and how quickly these materials can be released before Barr buries them is the key question now. As an example, Politico claims to have gotten an unredacted copy of the report detailing SoS Pompeo’s lying about the emergency declaration to sell arms to the Saudis, bypassing Congress who already said no. Shades of Iran-Contra are present here, and not just because AG Barr is back in the saddle.
Speaking of inconvenient witnesses, it appears Ms Maxwell doesn’t like her quarters but she has to realize that the DC Madam and Epstein are why she has them as they are. She needs to stay alive and sing.
I would be concerned that the latter two things are inherently in conflict. Thankfully for her, Donald Trump is probably a former client, and he’s not shy about throwing pardons to probable or actual felons who can help him. She also has the means to survive her silence in style, whereas much of her support would dry up if she were to tell all.
Everything published about Mueller indicates he wouldn’t deviate from the standards of how evidence is supposed to be handled. He left a whole loaf of bread in the final report, it is just being hoarded by a bread troll.
In my mind, it would be an expression of future preservation by the young buck prosecutors, not old man Mueller.
OT but I suspect it will be used as leverage: PM Jacinda Ardern of New Zealand is floating the idea of delaying the parliamentary general election from its current 19 SEP date due to the COVID-19 tracing of the family that was infected this week. There aren’t many parallels to the US system [where the date (first Tuesday after the first Sunday) was fixed by law in ~1845] and FWIW the main opposition party is fine with it, doubtlessly calculating that more time means more trouble reported in the press to cut into Ardern’s currently very high popularity. Parliamentary elections can be called almost any time with ~six weeks lead time up to five years after the prior one (known as the “silly season”). In our case, the date is fixed by law, DJT’s poll numbers are dreadful and the Ds will not agree to any delay
While I expect DJT to gloat a bit about the flareup, I suspect that the more evil minds (AG Barr) will refer to it as an excuse to justify delaying our elections.
Different politicians, political systems, and political cultures. New Zealand is not threatening to become the next Hungary or America.
I’m not saying NZ would change into Hungary, but that the WH would use the announcement as justification to delay our election.
The White House does NOT have the power to delay the election. They simply do not. Only Congress does.
They’re doing everything they can to keep people from voting, though.
The WH doesn’t have the power to do a lot of things they have tried, but the point here is that I expect them to try it and use this NZ proposal as their justification.
Baloney. It is just not going to happen, and New Zealand is beyond irrelevant. This is just garbage fear mongering.
No, NZ would not turn into those things. But Trump and real strongmen in Hungary, the Philippines and elsewhere are singing from the same hymnal, even Boris Johnson. (Rather, Dominic Cummings; Boris is along for the ride.) What I am saying is that analogizing the situations would be false. Trump might try it, but that analogy wouldn’t go far.
When Trump attempts voting delays, he won’t make arguments. Someone else will for him, after the fact. Trump will just throw monkey shit at the wall, in hopes that some of it sticks, people get tired cleaning it up, or he gets away unnoticed.
New Zealand has a three year election cycle.Many, including most politicians would like to extend it to four years…This can be done by an act of parliament.We do not have a constitution.
The election must be held by the second Saturday in November but can be bought forward by the ruling party by a few months.
This is a tactic used by popular leaders to get the election over while things are going well.
The opposition will try anything to extend it until the deadline,however with Jacinda’s current 20 point lead in the polls it will not make any difference.
I’m not saying NZ would change their parliamentary democracy, but that the WH would use the announcement as justification to delay our election.
Can the Postmaster be charged with interfering with the mail ?
The postmaster general is messing with our ballots.
I can practically hear Gilbert & Sullivan writing the lyrics.
Looking forward to a Trump Era farce at the Shubert.
30,000 missing Manafort files found, 30,000 supposed Hillary emails bandied about endlessly.
Nice congruity. Petard, meet hoist?
I don’t know about that, I’ll believe there is an equivalency there when the media begins talking endlessly about it. Given that Manafort isn’t on the ticket, I’m willing to bet the media maintains it’s ignorance of reality. Besides, this would be difficult for many in the media to explain. Having said all of that, in principle I agree with you, I just don’t see the media caring much about it.
Not congruous at all. IIRC, HRC’s lawyers printed out all of her email, gave the government hard-to-search paper copies of “work-related” emails, burned those they evaluated as “personal” and bleached the email server they had been stored on. The FBI obtained some of those “personal” emails from correspondents and evaluated some of the destroyed email as being “work-related”. Unfortunately, some of HRC’s most intimate correspondents had email accounts on her personal server that weren’t subpoenaed by Congress.
In the case of Manafort, to the best of my knowledge, there is no suggestion so far that documents were destroyed.
Lol, Manafort’s a convicted felon whereas Clinton is free to tweet and troll to her heart’s delight
This is wholly propagandistic bullshit.
Paper printouts of emails and other documents aren’t hard to search. They’re fed through a scanner, OCR’d and assigned a Bates number for indexing.
Bleach? You have no fucking idea what you are talking about. None.
Don’t come back here with this crap.
JHC. Thank you Rayne.
I think I said something very similar out loud. More like JFHC. ~smh~
FYI, State Dept record retention rules from the era when Clinton was SecState required paper copies. They had no provision for archiving electronic emails. The rules for what to keep/toss were very similar to ones I operated under at NASA at that time (as a contractor) and the focus was not just on excluding anything personal or trivial (“meet you downstairs at 12 for lunch” or “What are we going to do about Juan’s birthday” or “the whiteboard markers are dead in conference room C”), but also anything duplicative. A typical case might actually result in 19 email messages being deleted about a meeting, and only the one after the fact email with the meeting notes and information on invitee/attendees, locations, dates/times, agenda Items was treated as a record. Ditto with any email chain—keep the last one and delete the rest. The result is something less than 5% of emails were considered records. Misunderstanding these rules has led to a lot of alarmist reactions.
Thank you for this valuable clarification. I think that the GOP has gotten away with catastrophizing a lot of things to their advantage which are obscure and seemingly unimportant just such as this.