Charles McGonigal and the Unclassified Oligarch Info

There’s a mildly interesting discovery dispute in the SDNY case of Charles McGonigal, the former FBI Special Agent in Charge indicted last month for sanctions violations connected to Oleg Deripaska.

His co-defendant, former Russian diplomat and approved translator Sergey Shestakov, wants to amend the protective order governing discovery in this case. As I said, this is only mildly of interest. Such challenges are not unusual, and his attorney, former Andrew Cuomo attorney, Rita Glavin, has agreed to be bound by the existing protective order while the dispute is settled, so the dispute is not holding things up (anymore).

The dispute pertains to two issues about which Glavin wants reciprocity with the government. One is whether witnesses must be bound by the discovery order.

The paragraph states: “The defense shall provide a copy of this Order to prospective witnesses and persons retained by counsel to whom the defense has disclosed Disclosure Material. All such persons shall be subject to the terms of this Order. Defense counsel shall maintain a record of what information has been disclosed to which such persons.”


Shestakov’s counsel has claimed that the integrity of the proceedings requires that the Government, like the defense, maintain records about the persons to whom discovery materials are provided, and provide copies of the protective order to all such persons. But the Government is aware of no legal authority—nor any good cause under Rule 16(d)—supporting that request. And because the Government has long possessed much of this information, and appropriately used it for a variety of lawful purposes, such a log would be impractical at this stage.

The government’s point — that it has already interviewed so many people a log of those interviews would be meaningless (as well as its earlier point that the government is subject to grand jury secrecy rules but the witnesses before it are not) — is a perfectly reasonable point. Just as one example, McGonigal’s former mistress, Allison Guerriero, has already discussed issues that would be covered by the protective order with the press; SDNY has no way to oblige her to keep those details secret.

SDNY doesn’t say it, but it also likely wants to avoid keeping a list of all the witnesses it spoke with that might otherwise be discoverable by Shestakov; usually the government only has to provide details about witnesses who will testify.

The other dispute pertains to how discovery material must be treated — language that is, on its face, meant to prevent defendants from tweeting about confidential discovery information.

That sentence provides: “The defense shall not post any Disclosure Material on any Internet site or network site, including any social media site such as Facebook or Twitter, to which persons other than the parties hereto have access, and shall not disclose any Disclosure Material to the media or the public other than when such material becomes part of the public record in connection with court filings and court proceedings or as otherwise set forth herein.”

The government’s response is not as direct to this point. To Shestakov’s complaint that the government might leak (a complaint Glavin made repeatedly during the Cuomo case), the government responded only that he doesn’t have authority to complain in public.

More to the point, to the extent Shestakov has explained his objections to the challenged terms in the proposed order, those objections are not valid. In objecting to paragraph 3, for instance, counsel has told us that she will not agree to unilateral restrictions because she believes there is a risk that the Government will leak discovery material publicly. Courts have squarely rejected that argument. A defendant has no right to use discovery materials to influence public opinion about, or media coverage of, his case; as a result, the desire to publicly respond to perceived wrongs by the Government is no basis to oppose or modify a protective order. See, e.g., Smith, 985 F. Supp. 2d at 540; United States v. Lindh, 198 F. Supp. 2d 739, 743 (E.D. Va. 2002). If Shestakov takes issue with public statements made by the Government, the remedy is supplied by Local Criminal Rule 23.1—which binds the Government and the defense alike—and there is no need to modify the proposed protective order.

Still, SDNY’s response that the Local Rules on extrajudicial statements would cover this does address why reciprocity here is sort of meaningless: SDNY is not going to comment outside of court proceedings unless they make a press statement at one of the milestones of a case, like the indictment, trial verdict, or sentencing. It violates not just local rules, but also DOJ rules.

That said, SDNY (or DOJ generally) might have cause to issue press releases on topics covered by the discovery in the case in other matters, such as the milestone of someone else charged in matters pertaining to Oleg Deripaska, or even new charges pertaining to him. That may be one unspoken reason why SDNY is balking at Shestakov’s complaint, though the main one is the likely the way in which the language might prohibit information sharing within the US government.

The government provides three reasons for the protective order in this case: two are to protect the identities of witnesses and the privacy interests of those whose materials are included in the discovery, which are, again, quite routine.

SDNY also cites the need to protect unclassified information about sanctions on oligarchs, Russia’s influence efforts, and documents relating to efforts to surveil them.

First, the materials include, among other things, information pertaining to the imposition of sanctions on Russian oligarchs, information from various sources about potential Russian influence in the United States, and documents relating to law enforcement’s surveillance efforts. None of the materials that will be subject to this protective order are classified—the Government has determined that they can appropriately be produced to the defendants in order to comply with the Government’s discovery obligations—but there would still be law enforcement consequences to their public disclosure.

This is the kind of stuff that SDNY — or other parts of the government — might have cause to include in other press releases, unrelated to this case.

It’s all unclassified, SDNY says.

It’s not surprising that SDNY would build a FARA and sanctions case around unclassified information. On its face, the indictment relies on emails between Shestakov and McGonigal, Evgeny Fokin, the NYPD, and the law firm involved in trying to reverse sanctions, Kobre & Kim, records pertaining to the payments alleged to have been laundered from a bank in Cyprus through a New Jersey company, as well as records pertaining to subcontractors McGonigal employed (in a repeat of Christopher Steele) to investigate a Deripaska rival.

But the indictment is tailored to avoid other, more interesting and potentially classified discovery. The indictment doesn’t charge Fokin, for example, which would implicate any communications he had directly with Deripaska and others.

FARA and sanctions violations provide crimes that are readily chargeable when other crimes — which may or may not be implicated here — would impose onerous discovery requirements on the government. The fact that SDNY maintains all the discovery in this case is unclassified is important background to questions about what more the government knows about McGonigal’s actions: by design, they’re not going to tell as part of this prosecution.

All that’s important background for the other reason I’m intrigued by an entirely unexceptional protective order dispute. As SDNY’s letter describes, between January 24 and February 6, SDNY and McGonigal’s legal team, which includes former Bill Barr aide Seth DuCharme, resolved their own “modifications” to the protective order.

The defendants were each arrested on January 21, 2023, and were presented before Magistrate Judge Sarah L. Cave on January 23, 2023. The next day, the Government proposed a standard protective order, based on those routinely used in this District, to counsel for both defendants. Over the ensuing days, the Government repeatedly discussed the proposed protective order with McGonigal’s counsel, and agreed to make certain modifications based on those discussions. The Government and McGonigal’s counsel reached agreement on a protective order with the terms contained in Exhibit A, and on February 6, 2023, McGonigal’s counsel returned a signed copy of the order.

Two days after the government and McGonigal’s team resolved their own protective order issues (which also happens to be two days after Shestakov’s legal team filed their notice of appearance, so before substantive discussions would have begun between SDNY and Glavin), SDNY triggered the CIPA process. Among other things, the CIPA process will give SDNY a chance to argue that other classified discovery can be withheld from the defendants if it is not relevant and helpful to their defense.

Some such classified material McGonigal would know about personally. As the indictment itself notes, while still at the FBI, McGonigal had access to information on investigations of Russian oligarchs.

As SAC, McGONIGAL served as the Special Agent in Charge (“SAC”) of the Counterintelligence Division of the FBI’s New York Field Office. As SAC, McGONIGAL supervised and participated in investigations of Russian oligarchs, including Deripaska. Among other things, in 2018, McGONIGAL, while acting as SAC, received and reviewed a then-classified list of Russian oligarchs with close ties to the Kremlin who would be considered for sanctions to be imposed as a result of Russia’s 2014 conflict with Ukraine.

This list is no longer classified. But other materials McGonigal had access to while still at FBI undoubtedly are, including materials pertaining to the investigation of Deripaska’s role in the 2016 election interference operation.

And it’s not just these issues that McGonigal might know exist and might want to demand. According to Mattathias Schwartz, the investigation into McGonigal didn’t stem from the tip that his disgruntled mistress, Guerriero, gave to the head of NY’s FBI in 2019. Starting in 2018, the Brits were aware that McGonigal had suspect meetings with an unidentified Russian in London.

In 2018, Charles McGonigal, the FBI’s former New York spy chief, traveled to London where he met with a Russian contact who was under surveillance by British authorities, two US intelligence sources told Insider.

The British were alarmed enough by the meeting to alert the FBI’s legal attaché, who was stationed at the US Embassy. The FBI then used the surreptitious meeting as part of their basis to open an investigation into McGonigal, one of the two sources said.

Whenever the Brits picked this up (and subsequent meetings that Schwartz notes were referenced in the indictment), they would have happened before or during the time that DuCharme played a key role at DOJ, first as Barr’s counsel and then as PADAG. As I keep noting, DuCharme was centrally involved in Barr’s extensive efforts to prevent Rudy Giuliani — a close friend of McGonigal’s ex-mistress — from being prosecuted for his own dalliances with Russian agents. It is inconceivable that a senior FBI agent was under suspicion for suspect meetings with Deripaska or his associates and the matter wouldn’t arise to Barr and Jeffrey Rosen’s level. And DuCharme was personally involved in exceptional interference in investigations of Russia agents.

Even just based on his own knowledge of sensitive information pertaining to Russian investigations, McGonigal had the means to make this prosecution difficult, by demanding classified information he accessed while still at FBI, perhaps to argue that he had reason to believe that Deripaska was really just a nice guy who didn’t deserved to be sanctioned.

But DuCharme’s knowledge of such information would surely be even fresher than McGonigal’s. Indeed, given the reported tip from the Brits in 2018, DuCharme is likely to have firsthand knowledge pertaining to issues relating to McGonigal that might not otherwise be included among discovery (for example, of discussions among Russians about McGonigal that McGonigal himself would not be privy to). DuCharme likely knows what DOJ knew about McGonigal’s ties to Deripaska at least through the time he moved back to EDNY in July 2020, and at EDNY DuCharme would have presided over other sensitive Russian investigations, including the one into Andrii Derkach.

DOJ has not, at least not yet, triggered CIPA in the DC case. But it likely doesn’t have as much sensitive information about — and as much sensitivity surrounding — information on the Albanians involved in that case.

Given their shared knowledge of matters relating to Deripaska, McGonigal and DuCharme may make the prosecution plenty difficult as it is in SDNY.

Earlier posts

[From Rayne] The Other Albanian Stuff

A Close Rudy Giuliani Associate Alerted FBI’s Assistant Director to Charles McGonigal’s Alleged Albanian Graft

No, Charles McGonigal Likely Isn’t Responsible for that Part of the Russian Investigation You Hate

Former FBI SAC Charles McGonigal Indicted for Crimes Spanning from 2017 to 2021

50 replies
  1. Allison Guerriero says:

    Charlie doesn’t know Mr. Giuliani and he didn’t like President Trump, often making fun of that “drain the swamp” mantra. I was only a GJ witness in the DC case, not SDNY. And the AUSA in the DC case dismissed me so I’m no longer a witness at all. I suppose the FBI agents who served my subpoena and interviewed me may have filed a 3500 but I don’t know that for sure. But please be sure to emphasize in future posts that this investigation didn’t begin with me turning him in. It apparently began in January or February of 2018 when the Brits alerted FBI to Charlie’s activities in the UK with the Russians. I was harassed, intimidated and so traumatized by the FBI NYO and Charlie it actually drove me to binge drink for several months and I made some very bad choices. It’s in the rear view now and I’m glad because drinking escalates quickly and I’m glad it never became full blown alcoholism but I will always be available to speak to anyone openly and honestly about my relationship with Charlie and the ensuing drama which includes the drinking. My advice to all, don’t use alcohol as a coping mechanism and if you are in that position I am happy to offer my own personal experience and support to anyone who is struggling with that.

  2. freebird says:

    If you are the true Allison Guerriero, the question is that did McGonigal confide in you or was he reckless?

    • Allison Guerriero says:

      He was reckless. He didn’t confide in me at all. He lied to me. There’s one US TV interview I did which will probably be the only one I do unless someone comes to me with money because I’m SO BROKE from legal and medical bills!

      Standby I’ll try to find it…

      • Frank Probst says:

        As someone who’s been on both sides of this (as a doctor and as a patient), I would strongly advise you to consult an expert on the medical bills. I’ve been going through a long-running medical/legal saga, so I know exactly what’s covered and what’s not, and I know when there’s been what I would charitably call an “error” that should be appealed before I pay it. I’d suggest that you be sure you have someone who can competently review your bills to ensure that you are being billed correctly for the services you have received.

        • Allison Guerriero says:

          Thanks for that advice and the kind words but I’m on top of it and my insurance agent is handling. I’ll paid off the double mastectomy and all the related hospital stays, sepsis twice, visiting nurses, various complications and surgeries) once before so I’ll pay off the third degree burn injury too all the related expenses. I don’t qualify for “charity care” but I’m slowly getting there. Thanks!

          • bmaz says:

            Let me reiterate what Marcy said. This is not a site for your personal absolution, make your comments restricted to the case and/or post specific.

            • Frank Probst says:

              This one is my bad. I should have refrained from giving advice, and I’m glad that it wasn’t needed. I didn’t think it would be, tbh, but it sounded like medical insurance might have been an issue here, albeit an unlikely one, and I shot from the hip. Mea culpa.

    • Allison Guerriero says:

      https: //www. oann. com/video/oan-contribution/exclusive-fbi-mcgonigal-who-is-he/

      [FYI – URL ‘broken’ with blank spaces to prevent accidental clickthrough by community members. OANN is not a credible site. /~Rayne]

      • Allison Guerriero says:

        I knew they were going to report about the binge drinking so I agreed to the interview to get ahead of it. I don’t get that channel and I don’t watch it. But my comments are all true. I didn’t realize the link was broken but it’s on my Twitter page and also you can just Google “OANN Allison Guerriero”. The Empty Wheel is on the opposite side of the political stratum but I’m a Free Speech Purist and I watch the full gamut of news from all the media outlets on this.

      • viget says:

        100% agree with bmaz. Sorry, OANN is not a reputable source. Please don’t bring that in here, Ms. Guerriero.

        Part of me wonders if this post’s comment section shouldn’t just be shut down.

        I’ll also note that Dr. Wheeler made it abundantly clear from media reports, the SDNY investigation started with the British CI tip, not our esteemed interlocutor here. Not sure why that had to be re-emphasized by a commentator.

        Good faith is the currency of the realm here. I hope everyone remembers that.

        • emptywheel says:

          Unless someone from the inside is or was leaking to her — totally plausible given her ties to Rudy — Guerriero cannot know what the view towards her in this investigation is, or the role that her tip had in the process.

          What it does do, and should do, is focus on the nexus between Rudy and DuCharme, both of whom are implicated in related issues, which was the point of this post.

          • Viget says:

            Thank you Dr. Wheeler. The commentator most definitely obscures the point your post, which I should have explicitly mentioned. That was the sort of the gist of my “good faith” comment.

          • Allison Guerriero says:

            There is no nexus between Seth and Mr. Giuliani. Seth merely works for the same law firm Mr. Giuliani once worked for is all. But it’s New York and all of us are connected to each other somehow at that level in law enforcement as we are. As far as OANN I didn’t want gossip or speculation about my drinking so I agreed to do the interview. But like I said, I’m a free speech purist so it doesn’t bother me whether or not somebody on the other side of the political stratum believes that Netwerk is not credible just as I don’t care when people on the right don’t believe the left-wing media is credible. We should all be able to enjoy our first amendment rights without fear of infringement.

            • emptywheel says:

              Thanks for coming onto this site and running propaganda for Rudy, but the record–linked above and in multiple other public records–makes it clear that there was an institutional effort under Bill Barr to prevent Rudy from accountability for his own dalliance with Russian assets. By dint of his position at Main, DuCharme was in the thick of all this.

              We’re not going to turn this site into a platform for your repeated claims this is about your drinking (and not actions which by chronology precedes it) or your views about propaganda outlets. Thanks!

                • RyanEvans says:

                  I can understand your personal loyalty to Mr. Giuliani, if the public reports are true of his assistance at a time when you were experiencing difficulty. People are complex. Most are more conscientious and less so in different parts of their lives.

                  I would just encourage you to read the Dominion documents EW posted in a different thread. They may give you a different impression of whether election fraud was ever a realistic possibility, and the degree to which most of those peddling it knew it was fake right from the start.

        • Fraud Guy says:

          OANN is not credible, but it is the only interview Ms. Guerriero did, so she wanted her public statements on the record. One does not have to click through to the rest of that site.

          • Rayne says:

            Look, this site does not exist to allow persons involved directly or indirectly with federal investigations to remediate their personal image and credibility.

            You do not have to enable them by offering your take on what is patently obvious to the rest of the community.

            • gmoke says:

              “…this site does not exist to allow persons involved directly or indirectly with federal investigations to remediate their personal image and credibility.”

              Dr Wheeler has been directly involved with at least one federal investigation and explained the circumstances but, I suspect, you would not accuse her of remediating her reputation and credibility. Besides, it’s her site and she can do whatever she wants with it.

              Both rayne and bmaz moderate, in my opinion, with very heavy hands but, perhaps, it is needed from time to time, although maybe not nearly as often as they like to imitate a ton of bricks.

              • bmaz says:

                Hi there. We know, and FAR better than you, what Dr. Wheeler has done. And, yeah. it is her site, and also our site. Rayne and I are far more than “moderators”, so stick that where there is no sunshine. I was here from before day one of the Emptywheel blog, i.e. the day it started, have written probably over a thousand posts, and do this as a labor of love. Rayne has been here forever too, also as a labor of love, and we knew her long before formally starting this blog. You are very much barking up the wrong trees.

                We do not get paid, but we do have a measure of pride in what we do. We do NOT need your help. Take your “ton of bricks” and shove them, again, where there is no sunshine. Do yourself a favor and stay out of how we run this show.

              • Rayne says:

                You have no idea what kind of crap we’re up against. None. You have no idea what we do to keep this place running. Zero. You seem to think we heavy-handed moderators never compare notes and make decisions about what’s going to clear for publication in comments.

                You’ve now displayed an immense amount of naïveté about the entities who read and comment here, in spite of referring to Marcy’s disclosure which should have been a warning that commenters may not be who/what they appear to be on the surface.

                While I continue to focus on keeping EW community members from getting sucked into a national security vortex, you can take that self-righteous and uninformed bullshit attitude of yours and fuck yourself with it.

                • bmaz says:

                  You need to stop this BS immediately or we will readdress your ability to comment freely. How we do our business is our concern NOT yours. You did not used to be a squeaky wheel problem commenter, and there is no reason you should prove to be one now. Stop.

                • Ginevra diBenci says:

                  This post and the ensuing discussion have actually made it vividly clear what you and bmaz have to contend with. The problems posed by a verified insider commenting with such prominence defy any easy resolution. I don’t know how I would handle it (editing literary magazines, I had to make such judgment calls and generally wound up displeasing vocal folks on every side), but I greatly appreciate how the EW people have threaded this needle.

                  • Rayne says:

                    It could get worse before it gets better, too. Only need to see what’s happening with AI these days to predict what happens next.

                • Allison Guerriero says:

                  I understand the point of you from Bmazz and Rayne and earlier today Emptywheel requested I no longer make statements that are about me personally and not germane to the content of the post which I’ll respect. That said, the. People should start commenting on the contents of the post itself and I was wrong to harp on my personal issues so please forgive me. It won’t happen again. There is a lot in this post to comment on regarding the case so let’s start doing that and respect their wishes.

          • earlofhuntingdon says:

            Perhaps there were reasons she interviewed only with such a questionable medium, just as would be true for someone who chose to interview only with Faux Noise, rather than a legitimate news organization.

            Even more questionable reasons must underlie the execrable Speaker McCarthy giving supposedly exclusive rights to troll through publicly owned House video archives of Jan 6 to the more execrable Tucker Carlson, employed by a for profit only, private sector propaganda outlet bent on destroying American democracy.

            • earlofhuntingdon says:

              McCarthy didn’t give Carlson and Fox a purported exclusive to view (and generate false, exaggerated, discriminatory excerpts) as a favor. He expects things in return. I wonder what they are.

  3. Zinsky123 says:

    Wow! A first-hand observer of the McGonigal debacle appears in the Comments section of emptywheel! Astonishing.

    • Allison Guerriero says:

      Why not? I’m happy to contribute to anyone reporting on this. Especially because I am embarrassed and ashamed of the things I did when I was going through my drinking phase which is what led to the TRO. But it was more than just Charlie, it was years of harassment and intimidation by FBI themselves too. Regardless I gain nothing by contributing my comments but it is my sincere desire that ANYONE who’s thinking of turning to booze to cope won’t and if some is now I’d like to be of help and share my experiences and how I stopped before it became full blown alcoholism. That drinking phase was years ago and short lived but it was BAD when it was going on.

      • FL Resister says:

        Second that. My emptywheel brain is spinning.
        Thank goodness for bmaz, Rayne, emptywheel, and Earl… for assurance we are still existing in a somewhat rational world.

  4. Savage Librarian says:

    Getting back to the post at hand, I’d like to mention something related to Deripaska:

    Mercury Public Relations, until recently, represented EN+. It seems both Deripaska and Manafort employed Mercury. Bryan Lanza has an interesting work history with them, including in China and Ukraine. Lanza once worked for the Trump campaign. His name popped up during the time when EN+ was initially being sanctioned and then a hinky deal was made. And now Susie Wiles works for Mercury, after she left Ballard. But EN+ is no longer a client of Mercury. I wonder what is next…

    “Tory peer gave contract to firm linked to Paul Manafort” – 2/27/19

    • Rayne says:

      Whew. Why does Mercury Public Relations ring a bell to me? Like way back, decades ago. I need to think on this one. Thanks for bringing it up!

      ADDER: I can’t open the FT piece because of the firewall. Can you tell me if Mercury Public Relations = Mercury Public Affairs? Thanks!

        • Rayne says:

          Thank you, very helpful. There are a lot of firms which try to use similar names, and others which are subsidiaries doing compartmentalized stuff. Wanted to make sure where MPA fell.

      • viget says:

        MPA is one of the lobbying outfits that Manafort and Gates were paying to rehabilitate Yanukovych and impugn Tymoshenko. He laundered the money from Skadden through a Belgian astroturf group to MPA and the Podesta Group.

        The net effect is that Mercury was spared having to register FARA.

        Not surprised Deripaska was using them too. He probably was financing the whole operation.

    • Ginevra diBenci says:

      Thank you for this, SL. The underlying/under-reported ties between Putin, Deripaska, Yanukovich and Manafort have always been critical. This is the tie that binds the desire for the 2016 Russia investigation to be a “Hoax” to those clamoring now to shut off aid to Ukraine.

      If only Mueller had followed the money…

      If only someone would do it now.

  5. Doctor My Eyes says:

    Every time someone tries to mess with EW to influence the arc of a story, that gives me hope that this place is having an effect back in Crazyville.

Comments are closed.