The [Thus Far] Missing Seth DuCharme Emails Pertaining to Rudy Giuliani’s Russian Disinformation

As I’ve been harping of late, Billy Barr and Jeffrey Rosen went to great lengths to protect Rudy Giuliani’s efforts to obtain and disseminate what the Intelligence Community already knew was Russian-backed disinformation laundered through Andrii Derkach. That effort included the following:

  • For whatever reason, not warning Rudy that the Intelligence Community knew Russia was targeting him for an information operation before he traveled to his December 2019 meeting with Derkach
  • Prohibiting SDNY from expanding its existing investigation into Rudy’s foreign influence peddling to include his efforts with Derkach by making EDNY a gate-keeper for any such decisions
  • Asking Pittsburgh USA Attorney Scott Brady to accept the information that the IC already knew was Russian disinformation from Rudy
  • Doing nothing while Rudy continued to share information the IC already knew was Russian disinformation during an election
  • After belatedly opening an investigation into the Derkach effort that the IC had known was Russian disinformation for a year, opening it at EDNY and scoping it to ensure that Rudy’s own actions would not be a subject of the investigation

As a result of this remarkable effort, led by the Attorney General and Deputy Attorney General, to protect Russian disinformation, DOJ willingly ingested a bunch of Russian disinformation and used it to conduct an investigation into the son of the President’s opponent.

Last year, when it was disclosed that Barr had directed Brady to willingly accept this Russian disinformation, American Oversight FOIAed and then sued for the paper trail of the effort, submitted as four separate FOIAs:

  1. [To OIP and USAPAW] “Brady Order and Written Approval” — which specifically asked for “two readily-identifiable, specific documents” — described as:
    • The written approval of the Attorney General or Deputy Attorney General authorizing U.S. Attorney for the Western District of Pennsylvania (USAPAW) to create and/or administer a process for receiving purported investigatory information from Rudy Giuliani concerning matters that relate to former Vice President Biden
    • A copy of the Attorney General’s order directing USAPAW to conduct an evaluation, review, probe, assessment, “intake process,” preliminary investigation
  2. [To OIP and USAPAW] “Giuliani Directives, Guidance, & Communications,” described as:
    • All directives or guidance provided to USAPAW regarding an evaluation, review, probe, assessment, “intake process,” preliminary investigation, or other investigation of any information received from Rudy Giuliani, including information that may concern former Vice President Biden
    • All records reflecting communications between (1) the Office of the Attorney General or the Office of the Deputy Attorney General and (2) USAPAW regarding an evaluation, review, probe, assessment, preliminary investigation, or other investigation of any information received from Rudy Giuliani
    • All records reflecting communications within the OAG or the ODAG regarding any evaluation, review, probe, assessment, “intake process,” preliminary investigation, or other investigation of any information received from Rudy Giuliani, including information which may concern former Vice President Biden
  3. [To USAPAW] “Brady-Giuliani Communications,”described as all records reflecting communications between (1) USAPAW in the course of any evaluation, review, probe, assessment, “intake process,” preliminary investigation, or other investigation of any information received from Rudy Giuliani and (2) Rudy Giuliani, or any of Mr. Giuliani’s personal assistants or others communicating on his behalf, including but not limited to Jo Ann Zafonte, Christianne Allen, or Beau Wagner
  4.  [To USAPAW] “Brady-White House Communications,” described as any communications between (1) USAPAW in the course of any evaluation, review, probe, assessment, “intake process,” preliminary investigation, or other investigation of any information received from Rudy Giuliani and (2) anyone at the White House Office

Before American Oversight filed the lawsuit, the Trump Admin did two things that will have an effect on what we’re seeing. First, DOJ combined requests one and two above; as we’ll see, that had the effect of hiding that Barr didn’t put anything in writing. In addition, USAPAW told American Oversight that they were going to refer the request for such an order to Main Justice for referral.

While the lawsuit was filed under the Trump Administration, the substantive response to it started in February. The FOIA is a way to understand more about this effort — both how willing Barr’s DOJ was to put this scheme in writing, as well as the volume of paper trail that it generated.

The first status report, submitted on February 22, revealed the following based on an initial search:

  1. “Brady Order and Written Approval” and “Giuliani Directives, Guidance, & Communications” (aggregated) at Main DOJ: 8,851 items
  2. “Giuliani Directives, Guidance, & Communications” and “Brady-Giuliani Communications” at USAPAW: 1,400 pages
  3. “Brady-White House Communications:” none

The second status report, submitted on April 1, reported that of the initial search, the following was deemed potentially responsive:

  1. “Brady Order and Written Approval” and “Giuliani Directives, Guidance, & Communications” (aggregated) at Main DOJ: 30 pages referred
  2. “Giuliani Directives, Guidance, & Communications” and “Brady-Giuliani Communications” at USAPAW, of 272 pages reviewed so far:
    • 3 pages released in full
    • 189 pages referred to other agencies for consultation
    • 83 duplicates or non-responsive

Here is the USAPAW production.

The third status report, submitted on May 3, reported the following:

  1. “Brady Order and Written Approval” and “Giuliani Directives, Guidance, & Communications” (aggregated) at Main DOJ:
    • 18 pages released in partly redacted form
    • 4 pages withheld entirely under b5 deliberative exemption
    • 6 pages awaiting a response from some other component
  2. “Giuliani Directives, Guidance, & Communications” and “Brady-Giuliani Communications” at USAPAW, of 263 pages reviewed this month:
    • 5 pages released, 3 of which include b6, b7A and b7C redactions
    • 14 pages referred to another component
    • 244 pages non-responsive or duplicates

Here is the USAPAW production and here is the Main DOJ production.

Here’s what has currently been provided to American Oversight (go here for live links).

Note, this may be clarified in upcoming dumps, but for now, there appears to be something very irregular with the OIP response. At first, DOJ said there were up to 8,851 items that were responsive to American Oversight’s request. But with the next status report, DOJ said there were just 30 pages. The most recent release claimed to account for 28 of those 30 pages.

In the second joint status report, OIP stated that it had completed its search and its initial responsiveness and deduplication review of potentially responsive documents and identified approximately 30 pages of material likely responsive to Plaintiff’s request. See ECF No.7, ¶ 2. OIP further stated that it had sent these records out for consultation pursuant to the Department’s regulations, 28 C.F.R. § 16.4(d), and expected to be able to provide its first response to Plaintiff on or around April 29, 2021. Id. On April 29, 2021, OIP made its first interim response. It released 18 pages in part with portions redacted pursuant to Exemptions 5 and/or 6 and withheld four pages in full pursuant to Exemption 5. OIP is awaiting responses from other components on the remaining six pages.

The math looks like this:

18 pages released

4 pages withheld under b5 exemption*

6 pages referred to another component

Total: 28 pages

Remaining: 2 pages

That’s a problem because there are at least two pages of emails that were part of the USAPAW response that must have had a counterpart at DOJ, as well as one missing from both (though USAPAW has 1000 pages to release):

  • A January 3, 2020 email from Seth DuCharme to Scott Brady asking, “Scott do you have time for a quick call today in re a possible discreet assignment from OAG and ODAG?” (Brady’s response, which includes DuCharme’s original, is included in both, but the copy released by OIP was printed out from Brady’s account, not DuCharme’s).
  • A February 11, 2020 email from Brady to DuCharme, asking “Seth, do you have a few minutes to catch up today?” The email should exist in both accounts, and should be included in both OIP and USAPAW’s response.
  • A March 5, 2020 email from Brady to DuCharme, asking “Seth: do you have 5 minutes to talk today?”

Brady resigned effective February 26 and DuCharme resigned effective March 19. At the time he resigned, DuCharme was supervising an investigation into this Derkach stuff, one that excluded Rudy as a subject.

I assume this will become more clear with further releases (indeed, American Oversight may have the next installment already). Perhaps there’s a sound explanation. But thus far, it looks like only the Brady side of exchanges between him and DuCharme have been provided in response.

* The response letter to Jerry Nadler was two pages long, and the draft was sent twice (or there were two drafts), so those probably account for the 4 pages withheld on b5 exemptions.

24 replies
  1. Silly but True says:

    Ascribing some of these email omissions to regular government institutional service behavior and not nefarious acts, it’s pretty reasonable that an email “ Seth: do you have 5 minutes to talk today?” — and similar permutations of generalized talk — would be classified as nonresponsive to any specific detailed subject by some nonpartisan FOIA reviewer and omitted.

    • emptywheel says:

      A reasonable suggestion, sure.

      Except they also don’t include DuCharme’s original email, even though they include the response, and the response was printed out from Brady’s account.

      • timbo says:

        Does the response have a time stamp for the original DuCharme’s email in it? Was DuCharme’s communicating on a non-government email account in the original email?

      • Silly but True says:

        Fair point.

        Could it be that Barr was divvying out so many discrete assignments that the original email was in regards to a different discrete assignment that no one yet knows about?

  2. Tony el Tigre says:

    if Trump or his crew is involved, the fix is in

    if the DOJ acted criminally, they will be loathe to admit it, so the fix remains

    I am not willing to trust anything at this point

    • Rugger9 says:

      Biden and (more importantly) Garland realize they have nothing to gain by protecting these Trumpkins. However, it does appear they are trying to be careful and thorough before dropping the hammer, perhaps there are “sources and methods” concerns beyond Rudy and Derkach.

      If DOJ acted criminally, then the individuals that did it are on the hook for violating policies on investigations. After all, McCabe, Strzok, Page, etc. were all hammered and left out in the cold by DJT for policy violations.

      I do think there is much more digging to be had, but the courts have to pry it out. What will be interesting to see is whether the Trump-appoint judges will direct release to hit Biden’s DOJ or whether these judges get the memo about what’s really in these documents and keep them hidden.

    • subtropolis says:

      Trump and his crew do not appear to be involved. Rather, this all looks to me as though Barr wanted to silo off the crazy shit that Giuliani — the president’s ostensible attorney, no less — had been dumping on DoJ. I’m keen to see this clarified for us, of course, because so much from that so-called administration stinks. But this specific chapter in that nightmare just does not seem all that hinky to me. Other than Giuliani’s part in it, that is.

      Really, this looks to me like it could be one of the better decisions that Barr made. It seems that he genuinely wanted to ensure that Giuliani did not go shopping around his garbage. Or, if he did, this would ensure that whatever he’d brought along would be passed up to Brady, rather than wasting others’ time.

      I don’t follow this, for example:

      “Doing nothing while Rudy continued to share information the IC already knew was Russian disinformation during an election”

      What else could he do? Have Giuliani locked up? Serious question. What else could Barr have done to ensure that he — the president’s damned lawyer, let’s not forget — wasn’t spamming the DoJ with his Russian disinformation? It seems to me that having it all funnelled to Brady (the designated silo) was the best decision.

      Do we know, after all, that Brady was using it to ratfuck Biden? I don’t mean, “did Brady look at it?” I’m sure he was obliged to. But, was he eagerly incorporating it into some bullshit case against Hunter? Until we know the answer to that question, I think it’s too soon to assume that Barr’s decision on this was in any way nefarious. Quite the opposite, imho. From what we know, it rather appears that Barr was resigned to having to accept that dumbass’s nonsense and took action to ensure that it was as little disruptive as possible.

      Far be it for me to defend William fucking Barr, mind. That’s why they call it Devil’s advocacy, eh?

      • emptywheel says:

        He was, per the NYT article on the investigation, indeed using it to pursue a bullshit case against Hunter.

        I originally agreed with you about all this. But it is utterly inconsistent with a great deal of info that has become public since: the gate-keeping in EDNY, the efforts to fire Berman, the secrecy around this, the parallel investigation to the one in DE, run by a non-partisan USA.

        This is, effectively, Barr doing exactly what Trump said he would in the call to Zelensky: selective treatment of Russian disinformation. It is breathtaking in its implications.

        • subtropolis says:

          None of those points is inconsistent with what I’d suggested, though. The gatekeeping and secrecy absolutely is consistent with a scenario where he is funnelling Giuliani’s bullshit into a silo that he can keep in check.

          And getting rid of Berman makes sense if Barr was motivated to keep Giuliani from being indicted. Don’t get any ideas that I’m suggesting that Barr was out to get him. I think he despises Giuliani but nonetheless worked to protect him (for the time being) solely to keep shit from blowing up. When both Barr and Rosenstein spoke of “land[ing] the plane” they were not concerned about Trump; that was entirely about saving a republican presidency — just like McConnell. All three of them couldn’t give a damn about either Donald Trump or Rudy Giuliani. It was all about keeping a republican presidency intact.

          “This is, effectively, Barr doing exactly what Trump said he would in the call to Zelensky: selective treatment of Russian disinformation.”

          And I’m suggesting that he then buried it. I don’t recall any great scandal erupting just before the election.

          There is one scenario which could bridge both of our views on this, though. Barr, having come to terms with Trump losing (not a great stretch), may have seen to it that Giuliani’s garbage was taken out of play, but with the confidence that it would later emerge to damage Biden post-election. I think that’s entirely possible, and is consistent with all of the other rear-guard actions that the republicans have taken in the face of defeat.

        • BobCon says:

          “What else could Barr have done to ensure that he — the president’s damned lawyer, let’s not forget — wasn’t spamming the DoJ with his Russian disinformation?”

          One more possibility could be the FBI briefing of Giuliani that was prepared but then wasn’t delivered. Deliberately not putting Giuliani on notice that the feds were on to his Russian source and obviously watching what he was doing may have been a way to keep the disinformation flowing.

          “I don’t recall any great scandal erupting just before the election.”

          Did Trump need a “great” scandal or just a mediocre one with legs, like the Clinton email fodder that swallowed up the NY Times and CNN?

          Ken Vogel appears to have been primed to mainline Giuliani’s junk into the NY Times in the late summer/early fall of 2019, and even after the whistleblower made it clear that there was a hit job in the works, Vogel was crowing about an impending Biden scandal which turned out to be vapor.

          They may well have been focused at this point at knocking Biden out of a crowded primary field as well, which may not have needed a great scandal, just a five point swing in a few states. And then of course Covid hit in March at the end of this timeline and threw a giant wrench into all plans.

        • Troutwaxer says:

          Reading this whole thread, why not all four? Have something against Hunter, have something against Rudy, just keep a lid on the whole thing, or drop a hint to the current DOJ and bring Trump crashing down. There’s nothing better than keeping the options open, and this is is how the pro’s play!

      • earlofhuntingdon says:

        Bill Barr is Mr. Obstruction, but he needs to put himself in service to a higher power. His entire career – political and religious – demonstrates that. Like Cheney, he wants to be the guy whispering in the ear, not the guy out front taking heat.

        Donald Trump spent years advertising for another Roy Cohn, who would enable his crimes, not shield him from the crimes of others. (Any number of top-flight DC lawyers – and the bottom-of-the-barrel ones he actually hired – could have done the latter.)

        Bill Barr’s actions would have been knowingly done in concert with Trump, not done independently to isolate him from the crimes of others. (That Barr’s “knowing” is broader than Trump’s is beside the point.) Being hip deep in criminality is, after all, one of Donald’s defining characteristics.

        • subtropolis says:

          How does Trump’s nostalgia for Cohn pertain? Do you believe that Barr is Trump’s golem, whose agency was breathed into it flecked with greasy chicken and Diet Coke sputtering?

          Bill Barr’s higher power is the republican party and the federalist society. He did not apply for that job for Trump’s personal sake. If he seemed to be protecting Trump it was only due to the position that he held. I’m sure that Barr would be fine with seeing him marched to prison now that he’s no longer in office.

          In fact, it wouldn’t surprise me in the least were it to turn out that Barr had left behind evidence to be discovered later.

        • earlofhuntingdon says:

          Trump thinks a Golem is what has to be lanced when he’s chafed and sweated too long in the same golf shirt.

          You argue as if protecting the president and protecting Trump-while-president makes a difference to Trump – or to Barr’s behavior while Trump is president. I don’t think it does.

          Trump has no nostalgia for Roy Cohn or anyone else: his time frame is always the present. He has only derision for Cohn’s sexuality and that he died without money and power. He does want a guy with Cohn’s powerful corrupt friends, and the ability and willingness to enable his crimes and keep him immune from prosecution for them. I’m surprised the distinctions pass you by.

  3. WilliamOckham says:

    That release from OIP is very weird. OIP is supposed to be the FOIA arm for Main Justice, right? On the OIP website, it says:
    OIP processes FOIA requests for records of the:

    Office of the Attorney General
    Office of the Deputy Attorney General
    Office of the Associate Attorney General
    Office of Legal Policy
    Office of Legislative Affairs
    Office Public Affairs
    Office of Information Policy

    So, the question I have is, why couldn’t (or didn’t) they actually process this FOIA request? That document from OIP was produced by the Justice Management Division (JMD). It’s got a custom property set that identifies it as such (Company : JMD) and there are other indicators that it was NOT produced the same way as other recent OIP FOIA releases.

    I suspect that is the reason that it has Brady’s reply with DuCharme’s original email embedded in it. If I’m remembering my Microsoft Exchange admin details correctly (and it’s been a long, long time since I did that stuff), if you pull emails from a centralized rights management server (instead pulling them from individual email boxes, which is what I think happened with the USAO’s production), that’s how the email chains are stored.

    Anyway, that pdf has got embedded Photoshop documents and a bunch of other stuff. Nothing nefarious (unlike the last time Dr. Wheeler got me looking at DoJ documents…).

    Also, I’m pretty sure that original 8,000+ documents was caused by difficult search terms. Think about how times DoJ emails refer to “Brady materials”.

    • emptywheel says:

      Are you talking about the one email passing on Kraju?

      i can’t tell whether they simply didn’t search via relevant email box (imagine the headache of going thru Barr’s pseudo account), or whether some of these files no longer exist where they’re supposed to. If the latter it would be particularly damning given the timing of the FOIA and the timing of the departures of these people.

      • WilliamOckham says:

        I took a little closer look at the metadata for the Photoshop image and I’m pretty sure it’s just the American Oversight logo. It occurs on every page and it was created in 2017.

  4. WilliamOckham says:

    Also, who the hell schedules a 15 minute meeting in Outlook for a bunch of lawyers? I’ve never been in a meeting with more than 2 lawyers that lasted less than an hour.

    • subtropolis says:

      Were these meetings of yours at DoJ? I can well imagine them meeting for just a few minutes to coordinate something. This wasn’t about litigation or contract settlement, or whatever. Just two busy people going about their busy day at the office.

      • emptywheel says:

        This would have involved Brady getting on a plane for that 15 minute meeting.

        And this is around the time that, per NYT, FBI was balking as some of the demands he was making.

    • Rayne says:

      Somebody looking for a Y/N answer, or giving a head’s up, or calling to schedule another longer meeting. At least that’s what happened when I handled the bookings for an attorney.

  5. mospeck says:

    OT, and I apologize to the lawyers
    vlad, val says torture the man with no sleep (says that even Navalny will break). rust never sleeps, and you don’t either. Sleepy Joe got a summit coming right up with you, you big dog dick guy. And all the papers say that you are an alchemist who can make wood out of iron, steel into smoke, Russian rocket science into ransomware. So swooningly fucking powerful, you’re the man who can finally stop the train (maybe just bad luck you been dealt a bad deck). hey hey, my my

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