SDNY Obtained Warrant(s) for Foreign Agent Charges before John Demers Reviewed the Perfect Transcript

Had DOJ followed its own rules in 2019, Donald Trump’s “perfect phone call” with Volodymyr Zelenskyy should have been linked to the ongoing criminal investigation into Lev Parnas. Instead, DOJ limited the review of the criminal referral of the whisteblower complaint in such a way that prevented investigators from making that link. The Parnas warrants recently liberated by NYT reveal that failure was even more damning than previously known.

On August 14, 2019, CIA General Counsel Courtney Elwood told National Security Division head John Demers that someone in the CIA had expressed concerns about the July 25 call. The next day, on August 15, 2019, Demers went to the White House to review the transcript of it.

Mr. Eisenberg and Ms. Elwood both spoke on Aug. 14 to John Demers, the head of the Justice Department’s national security division, according to three people familiar with the discussion. Ms. Elwood did not pass on the name of the C.I.A. officer, which she did not know because his concerns were submitted anonymously.

The next day, Mr. Demers went to the White House to read the transcript of the call and assess whether to alert other senior law enforcement officials. The deputy attorney general, Jeffrey A. Rosen, and Brian A. Benczkowski, the head of the department’s criminal division, were soon looped in, according to two administration officials.

Department officials began to discuss the accusations and whether and how to follow up, and Attorney General William P. Barr learned of the allegations around that time, according to a person familiar with the matter. Although Mr. Barr was briefed, he did not oversee the discussions about how to proceed, the person said.

While DOJ was dawdling over what to do, on August 12, the whistleblower went to Intelligence Community Inspector General Michael Atkinson and filed a formal complaint. ODNI made a criminal referral at the end of August. And then DOJ declined, almost right away, to investigate.

Ms. Elwood and Mr. Eisenberg learned only later about the complaint, filed on Aug. 12, and did not know it was sent by the same officer who had sent the information anonymously to her.

At the end of August, the office of the director of national intelligence referred the allegations to the Justice Department as a possible criminal matter. Law enforcement officials ultimately declined to open an investigation.

I have always pointed out the problem with this tale. Since 9/11, DOJ’s expectation is that when investigators obtain a tip about anything that might pertain to national security, they run it against FBI holdings to see if there’s a known link to any existing investigation.

Had DOJ’s investigators scrutinized the OCCRP story about Lev Parnas and Igor Fruman cited three times in the complaint, had they done searches on all the identifiers implicated by reference in the complaint, they should have found the ongoing investigation into Parnas and Fruman at SDNY. (On review, even the unclassified part of the complaint mentioned people, like Andriy Telizhenko, who were likely the focus of intelligence scrutiny already, though perhaps not yet at FBI.)

But investigators didn’t get the complaint. According to a public confession Kerri Kupec made in September 2019, they got only the call transcript.

“In August, the Department of Justice was referred a matter relating to a letter the director national intelligence had received from the inspector general for the intelligence community regarding a purported whistleblower complaint. The inspector general’s letter cited a conversation between the president and Ukrainian President Zelensky as a potential violation of federal campaign finance law, while acknowledging that neither the inspector general nor the complainant had firsthand knowledge of the conversation,” Kupec said.

Relying on established procedures set forth in the justice manual, the department’s criminal division reviewed the official record of the call and determined based on the facts and applicable law that there was no campaign finance violence [sic] and that no further action was warranted. All relevant components of the department agreed with this legal conclusion, and the department has concluded this matter,” Kupec concluded. [my emphasis]

They didn’t assess the complaint. They assessed the transcript.

That was always a self-evidently corrupt decision — a decision that, if Bill Barr (who definitely knew of the Parnas and Fruman investigation) and Jeffrey Rosen (who likely did) were involved would be provably an effort to prevent investigators from tying the President to Parnas and Fruman.

But the timeline looks worse given something revealed in the warrants from the investigation liberated by the NYT last week.

The indictment used to arrest Parnas and Fruman on October 9, 2019 only charged them for campaign finance crimes: Conspiracy to violate campaign finance law by donating — including to Trump’s PAC and Pete Sessions — in the name of their front company Global Energy Partners, false statements to the FEC about the donation to Trump’s PAC, filing a materially false document to the FEC about the same, and conspiracy to make cannabis-related political donations using foreign money. The Russian source of those funds, Andrey Muraviev was not yet public. And while the donation to Pete Sessions was intimately connected to the firing of Marie Yovanovitch, that wasn’t mentioned in the first indictment.

What appeared in that indictment was consistent with the first two warrants obtained against Parnas and Fruman. The first, served on Google and Yahoo on January 18, 2019, sought evidence of those foreign and straw donor crimes, along with money laundering and fraud. It cited contacts with Sessions’ office, with Ron DeSantis, and even (regarding what the investigation would ultimately show pertained to Fraud Guarantee), Rudy Giuliani. But even in the discussions of Sessions, there was no mention yet of Yovanovitch.

That began to change in the second warrant, served on Apple for iCloud content on May 16, 2019, the first one after Bill Barr would have started getting briefings. That warrant remained focused on those foreign and straw donor crimes, though added false statements for Parnas and Fruman’s claims to the FEC about what they were up to. It added Muraviev to the inquiry. It took out a request to look for communications with individuals who work at “[redacted].”

That second warrant affidavit included a three page section focused on Parnas and Fruman’s recruitment of Pete Sessions to help get Marie Yovanovitch fired. The most striking thing about that second warrant is that SDNY obtained it the day after public notice of her removal, which development it noted in the warrnt. The warrant affidavit appears to have removed a reference to an email sent to Rudy the day after the Campaign Legal Center first disclosed the Parnas and Fruman grift (perhaps upon discovering that it pertained to Parnas’ effort to recruit Rudy into Fraud Guarantee). Still, there was no mention in that second warrant — the one obtained the day after Yovanovitch’s ouster was confirmed — of any foreign agent ties.

On August 14, presumably blissfully unaware of all the efforts to cover up Trump’s extortion attempt in DC, SDNY attempted to get at least two warrants, one requiring Yahoo and Google to provide new email content, everything generated since the January 18 warrant, and another asking for permission to examine the previously obtained content for new crimes. I phrase it that way for two reasons: First, because those warrants were docket number 19 MJ 7593 and 7595; there’s undoubtedly at least one more, 19 MJ 7594, targeting something or someone else (possibly either Muraviev or Pete Sessions). And while Magistrate Judge Henry Pitman approved the warrant permitting SDNY to examine already collected content for new crimes, they bolloxed it somehow. As SDNY explained in an October 17 letter to Judge Oetken,

[T]he Government is not presently able to locate a copy of the August 14 warrant itself, which may be the result of a clerical error, although it is possible a warrant was not submitted in connection with the August 14 application. As such, the Government respectfully requests that the Court review the attached agent affidavit, which was sworn before Judge Pitman on August 14, and issue the attached warrant which would authorize the Government to seize the materials sought in the August 14 application.

But they did get that warrant, 19 MJ 7593, which required Yahoo and Google to provide new content, content that would be scrutinized under SDNY’s expanded focus.

For the first time, SDNY asked for permission to review Parnas and Fruman’s communications for evidence that they or others were unregistered agents of a foreign power under either FARA or 18 USC 951. Those warrants also asked to look for evidence of bribery (a prong of the investigation that appears to have been dropped after interviewing Sessions in the wake of the Parnas and Fruman arrest).

Normally, by the time a US Attorney’s office contemplates such charges, they involve NSD. According to Geoffrey Berman’s book, before SDNY charged Parnas and Fruman, they got Public Integrity’s approval, at 4AM in the middle of the night! It’s certainly possible the “Sovereign District of New York,” as people jokingly describe SDNY’s notorious independence, did not. But it certainly raised the stakes on the tie between Parnas and Fruman and the President.

By the time John Demers reviewed the transcript of Trump’s call with Volodymyr Zelenskyy, the topic of his call had already been made a national security investigation.

36 replies
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  2. earlofhuntingdon says:

    Just to state the obvious, not “overseeing discussions” about what to do about the “perfect phone call” and not making a decision to ignore it are not the same thing.

  3. FL Resister says:

    Will Donald’s (aka, “The Boss”) former attorney general William “Bill” Barr ever be held accountable for all of the Trump-and-friends’-related crimes he stifled, interfered with, and covered up?
    And what about the pardon power of a president to absolve his friends and cronies from just judgements?

    • earlofhuntingdon says:

      Regarding Barr’s liability while AG, the answer is obvious: No. The pardon power remains absolute, too. Or were you just asking?

      • John A Gurley says:

        The Constitution would appear to give Congress the “Power” to write laws regulating the Presidential pardon “Power”, as with other Constitutional “Powers”. Have the Courts nullified this ability? If not, it might behoove both political parties for Congress to put some limits on pardons.

        Article 1 Section 8, last clause, Congress writes all laws governing “Powers”:
        “The Congress shall have Power… To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

        In Article 2, Section 2, 1st clause, granting Presidential pardons is listed as a “Power”:
        ” ..he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”

        • bmaz says:

          Eh, no, it is an explicit plenary power in the Constitution, so Congress can not supersede that willy nilly. And let’s not propagate the thought that they can.

          • John A Gurley says:

            How is it that, in your mind, Congress writing conflict of interest regulations on who the President can pardon a violation of “Pardon plenary power” if Congress writing regulations for the military isn’t a conflict with the President’s plenary powers as Commander in Chief?

            Sounds like judicial overreach. Like how some folks claim Congress can’t write conflict of interest regulations for the Supreme Court.

            • bmaz says:

              What? Without a Constitutional amendment, how does Congress change the plenary pardon power inherent in the Constitution? Are you sure you are in the right place? Did you even know what “plenary” meant before trying to send this blog down your rabbit hole?

                • Lucie Zuiderwijk says:

                  On there’s an introduction to the Office of the Pardon Attorney, where it states:
                  “The Office of the Pardon Attorney is entrusted with the responsibility of administering the executive clemency process, in accordance with longstanding federal regulations codified at 28 C.F.R. §§ 0.35, 0.36, and 1.1 – 1.11.”
                  So there are regulations, which can be adapted I guess, as well as they have been made. There’s many issues where the main principles in the Constitution have been specified in other laws/regulations, e.g. voting law, criminal law, tax laws, etc.

                  • bmaz says:

                    This is complete nonsense. Those provisions have long been there, and Trump never paid heed to a one of them, including the pardon office you note, yet his pardons held. If you want to change the pardon power you will need to amend the Constitution itself, which is not going to happen.

                    Via The Constitution Annotated:

                    “The Supreme Court has recognized that Congress cannot substantively limit the effect of a pardon through legislation. In Ex parte Garland, the Court held that the power of the President to pardon is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions.1 In United States v. Klein, the Court voided a law that sought to bar the use of a pardon or amnesty as a substitute for proof of loyalty necessary to recover property abandoned and sold by the government during the Civil War.2 The Klein Court held that the provision was an impermissible attempt to change the effect of pardons by requiring courts to treat them as null and void, i.e., to disregard pardons . . . and to deny them their legal effect.3 Over a century after Klein, in rejecting the proposition that a condition attached to clemency must be authorized by statute, the Court in Schick v. Reed reaffirmed that the power [of clemency] flows from the Constitution alone, not from any legislative enactments, and . . . it cannot be modified, abridged, or diminished by the Congress.”

                  • Rayne says:

                    Noting first you’re in the Netherlands and may not understand the primacy of the Constitution, as bmaz said the president’s power to pardon is plenary. There’s no getting around the absolute nature specified in Article II, Section 2.

                    You may wish to read this report prepared by the Congressional Research Service for Congress which may have requested this analysis when examining the limits of the Executive’s pardon power (note the date this report was published, a week before Biden was inaugurated, eight days after January 6, 2020).

                    • John A Gurley says:

                      Thanks, Rayne, that’s the kind of answer I was looking for.

                      Of course, there is no plenary power restriction mentioned in the Constitution on Congresses powers to write laws. Entirely the creation of the Supreme Court.

                      The Constitution itself says:
                      The Congress shall have Power… To make all Laws which shall be necessary and proper for carrying into Execution all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

                      Without restriction, at all.

                    • bmaz says:

                      Oh, hi there, you mean the very thing I had already answered twice for you? That answer? Don’t troll me, or this blog. Oh, and, by the way, your position has been refuted consistently by every analysis.

                • bmaz says:

                  I have answered it. If you don’t like the answer, that’s on you. Frankly, I had already answered “the question”, you just decided to heckle me. Don’t do that, find a better use of your energy, perhaps by starting your effort to amend the Constitution.

  4. Desidero says:

    Rather amazing the difference in persistence & curiosity between this case and all things Hunter. Similarly we found out in the last Durham trial that the FBI took only 1 hour to decline looking into Alfa Bank ping/DNS oddities.
    Has DoJ always been this conflicted & seemingly incompetent/subject to external manipulation (e g. screwups under Obama…)?

    • bmaz says:

      It is that different? The point of the post was that DOJ kind of dawdled, if not botched, the subject of the post. But, yes, there is a difference in that Durham was a long known GOP fixer who was made a special counsel to do exactly what he did. By the way, Courtney Elwood is pretty respected and married to John Elwood, a very stand up guy. I doubt she is anybody’s toadie.

      • emptywheel says:

        You misread the comment, which was about the Alfa Bank investigation in 2016, which was disclosed by Durham to be a hackup.

        • Desidero says:

          I think my point was from this post DoJ didn’t just “dawdle” but a few players actively neutered the damage with no one else catching their connivance, & they were too “disinterested” to search for Parnas & Fruman in investigation files.
          In the Alfa case, it was simpler to let “disinterest” kill any serious evaluation within an hour of looking at something that intrigued (if not convinced) numerous experts.
          Whereas several characters in the Hunter saga are the proverbial “dog with a bone” following every unlikely opportunity..

  5. Konny_2022 says:

    The link to the file named “21676503-190725-zelenskyy-transcript” leads only to a memorandum on that now infamous phone call. It includes the following paragraph:

    CAUTION: A Memorandum of a Telephone Conversation (TELCON) is not a verbatim transcript of a discussion. The text in this document records the notes and recollections of Situation Room Duty “Officers and-NSC policy staff assigned to listen and memorialize the conversation in written form as the conversation takes place. A number of factors can affect ‘the accuracy of the record, including poor telecommunications connections and variations in accent and/or interpretation. The word “inaudible” is used to indifate portions of a conversation that the notetaker was unable to hear.

    As to the real transcript WaPo reported under the heading “White House lawyer moved transcript of Trump call to classified server after Ukraine adviser raised alarms” on October 30, 2019:

    [Alexander] Vindman told Eisenberg, the White House’s legal adviser on national security issues, that what the president did was wrong, said the people, who spoke on the condition of anonymity because of the ongoing investigation.

    Scribbling notes on a yellow legal pad, Eisenberg proposed a step that other officials have said is at odds with long-standing White House protocol: moving a transcript of the call to a highly classified server and restricting access to it, according to two people familiar with Vindman’s account.

    I may be mistaken, but as far as I remember the full transcript has never surfaced to the public, or has it?

    • emptywheel says:

      This is as close as we got. During impeachment, Alexander Vindman and a Pence staffer claimed that the word “Burisma” had not been included in the transcript. And there were a few other exclusions.

      I do wonder whether the backup to this finished transcript was among the things that Trump took home from the White House.

      • Konny_2022 says:

        “I do wonder whether the backup to this finished transcript was among the things that Trump took home from the White House.”

        I do too.

        I think it would help if the 5-page memo would not be called “transcript.” That was what Trump and did over and over again in 2019, claiming that he had released the transcript when he hadn’t.

        30 minutes talk verbatim make more than just 5 pages in writing.

    • bmaz says:

      No, he likely won’t be. Team Trump has already floated names, and Turley was not one of them. Not impossible, but quite unlikely.

    • Bay State Lurker 23 says:

      Considering how badly TFG compromised our intelligence capabilities, probably a number of foreign countries have it as well.

  6. morganism says:

    I keep wondering why that “transcript” was never released. TFG directed that it should be, and numerous times he said it would be. I now its not like the Kennedy papers, but it alarmed so many folks, and was not a private conversation, but a office of the presidency communication. It should be released.

    I think Turley will be named Chief Archivest. I always wondered why TFG made the archivest his first posting. Seems like Rove may have made the case to him on how important the position was.

    Curious if this was in the actual call transcript too…did he offer her up, or for exchange? That would be Nat Sec and alarming enough to make everyone consider legal action.

    “That second warrant affidavit included a three page section focused on Parnas and Fruman’s recruitment of Pete Sessions to help get Marie Yovanovitch fired”

    • bmaz says:

      “I think Turley will be named Chief Archivest”

      Lol, why would you think that? He would give up a tenured and dedicated chair for that? Is even Turley that stupid?

  7. Rugger_9 says:

    Yet another series of oopsies that just happen to block valid lines of investigation into Defendant-1. Some of it will likely point to Rudy’s pals at the SDNY field office trying to protect him and frankly a housecleaning of that office is long overdue.

    As for ex-AG Barr, it would be nice if the courtier press stopped booking him or at least roasted him on a fact-checking spit when they do put him on air. However, the press editors (let’s remember that most are old rich guys) would rather rehab his image like they did for Kissinger.

    • P J Evans says:

      It sounds like SDNY needs a thorough restaffing – everyone who’s been there for more than three years needs to be rotated out of the region.

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