March 30, 2020 / by 

 

Rural Roulette: The Three-Day Church Event

CNBC posted a list of the highest COVID rates per 10,000. In general, it includes two kinds of places: metro areas (NYC and environs, New Orleans, and Detroit), and ski resorts (the counties where Sun Valley, Crested Butte, Park City, Vail and Beaver Creek, and Aspen are).

There are two exceptions to that rule (though I expect Otsego County, MI may soon be on the list, based on a cluster I don’t yet understand): Dougherty County, GA, which I noted in this thread. That’s an outbreak tied to two funerals, especially that of Andrew Mitchell.

The service was for 64-year-old Andrew J. Mitchell, an Albany native who worked in custodial services and who died from what his family believes was heart failure. Mitchell came from a large family, and on Feb. 28 as many as 100 people came by the funeral home for visitation. The next day, seven of his siblings attended the funeral, along with dozens of his nieces, nephews, cousins and their own families. Some guests traveled in from as far away as Louisiana, Washington, D.C., and Hawaii. They greeted each other with tight handshakes, long embraces and kisses.

“The minister, he was shaking pretty much everybody’s hand, just giving the family comfort and condolences,” Mitchell’s niece Chiquita Coleman said. “The funeral home officiants, they were kind of doing the same thing. That’s kind of their job, to give comfort. So there was a lot of touching and hugging and hand-shaking.”

Afterward, chapel workers at the exit handed out memory cards. Later, there was a repast at Mitchell’s house and a gathering at the home of a sister.

In the days and weeks following, at least two dozen Mitchell family members fell sick with flu-like symptoms.

The other is Cleburne County, Arkansas, a county of just 25,000 people. That cluster is tied to a 3-day event at a local church.

Nearly three dozen cases of covid-19 have been diagnosed in people who share a connection to a church in Cleburne County, while others at the approximately 80-member congregation have been tested and are awaiting results.

[snip]

“It appears, from what I know at this time, most of the cases that we have in our county” are related to the Greers Ferry church, said Jerry Holmes, county judge of Cleburne County, who restricted public access to county offices last week and shut off access completely as of Monday.

Cleburne County, population 25,000, had 28 positive tests and 35 negative tests as of 7:35 p.m. Monday, according to the Arkansas Department of Health. Only Pulaski County, population 393,000, had a higher number of positive tests at that time, 62. All five counties bordering Cleburne had at least one positive test, including Faulkner County, which had 10.

Shipp’s count of 34 people is an updated count after reaching out to church members Sunday evening to check on them. Before then, Mark Palenske, the church’s pastor, had said in a Facebook post on the church’s official website Sunday that 26 people linked to the church had tested positive, including himself and his wife, Dena. The Palenskes could not be reached for this article.

Shipp said all but three of the people at the Kids Crusade were members or staff at the church. The three nonmembers who later tested positive for the virus were Thomas and Angela Carpenter, missionaries who had brought the three-day program to the church, and a child.

The Carpenters are listed as missionaries for Word of Grace Assembly of God Church in Hope on its website, and could not be reached at the church Monday.

The county has just one hospital and it has no ICU beds. And Arkansas is one of the states that has done least in response to this crisis, which makes it likely the disease will continue to spread from this one cluster.

Tourists, visiting missionaries, grieving friends and relatives of a long-standing community member. These are the ties that link rural communities across the country to a global network of virus. While many people in these rural towns believe they’re a world away from the outbreak in NYC, and therefore have to take none of the drastic measures to stop the spread, these same rural communities are even less prepared with the aftermath. Not only don’t their local healthcare facilities have the resources to treat this disease, but residents are more likely to be older, in ill health, and lack health insurance.

Update: The same kind of event — a church event — seems to behind a cluster of cases on the Navajo Nation.

A church gathering here earlier this month may be linked to a dozen confirmed cases of coronavirus and at least two deaths.

The participants in the large gathering that congregated March 7 at the Chilchinbeto Church of the Nazarene Zone Rally — a meeting in which pastors deliver messages to their members — may have all been exposed to coronavirus by at least one person who later tested positive for the disease.

Several people who attended the rally or who had family members who did later tested positive for the virus.

Before they could be tested, two people — one in LeChee, Arizona, and one in Chilchinbeto — died of respiratory symptoms, according to local sources.

[snip]

Confirmed cases of COVID-19, the disease caused by the coronavirus, in the Navajo Nation on Tuesday evening rose to 49 from 26 late Saturday. Cases include 30 from Navajo County, seven in Apache County, six in Coconino County, four in McKinley County, and two in New Mexico’s San Juan County.

Most of the 30 coronavirus cases from Navajo County are tied to the zone rally, where one pastor was coughing as he gave a sermon, according to sources.

The rally ran concurrently with a “Day of Prayer” event at the Chilchinbeto Chapter House where chapter officials and some members of the church had a prayer service in response to the coronavirus outbreak. Everyone — pastors and members of all churches — were invited to the prayer service.

The LAT has an article about how poor communication and limited resources (including no running water in some cases) add to the challenges of a poor population with little access to medical care.


Trump Can’t Turn the Economy Back on Without Overriding Executive Orders of 28 Governors

Update: I’ve updated this and reposted. At least six states have added stay at home orders since Trump said he wanted to reopen the economy by Easter. This post was originally published on March 24, just before mid-day.

As noted, yesterday Trump signaled that he wants to turn the economy back on, perhaps 15 days after his original Emergency declaration on March 13 (which would mean the emergency would end on Saturday, March 28). As Ron Klain just noted, though, Trump doesn’t have that ability: Governors, not the President, have been the ones to shut things down (along with a number of mayors and corporate executives).

It will be governors, not Trump, who decide when to reopen the economy.

Over the last week, a set of governors (currently 28) have issued stay-at-home orders; another (MA) imposed a suggested stay at home declaration, and a number of cities and counties have similarly shut down. This NYT story has a great map and numbers showing how many people are affected (though without durations or governor party affiliation).

As the list below makes clear, Trump can’t turn the economy back on without finding a way to rescind the executive orders of a bunch of governors, including those of Republicans Eric Holcomb (whose order goes until April 6), Mike DeWine (whose order goes until April 6), and Jim Justice (whose order doesn’t have a termination date).

Update: Trump just said, “I would love to have the country opened up and raring to go by Easter.”

Update: This has been updated through March 27. This is the most comprehensive list of orders I’ve seen, including those closing businesses as opposed to ordering people to stay at home (though as of today it is missing a business closure from AL’s Kay Ivey).

Update, March 30: Maryland’s Larry Hogan and Virginia’s Ralph Northam, whose initial non-essential business shutdowns had stopped short of a stay-at-home order, have both now issued the latter.


Full stay-at-home orders

  1. Alaska (Republican Governor Mike Dunleavy): Imposed March 27, effective March 28, in effect until April 11.
  2. Arizona (Republican Governor Doug Ducey): Imposed March 30, effective March 31, in effect until April 30. Some city flexibility on order.
  3. California (Democratic Governor Gavin Newsom): Imposed and effective March 19, in effect “until further notice.”
  4. Colorado (Democratic Governor Jared Polis): Imposed March 25, effective March 26, in effect until April 11.
  5. Connecticut (Democratic Governor Ned Lamont): Imposed March 20, effective March 23, effective through April 22. (Order)
  6. Delaware (Democratic Governor John Carney): Imposed March 22, effective March 24, in place until May 15 or public health threat eliminated. (Most recent order)
  7. District of Columbia (Democratic Mayor Muriel Bowser): Imposed March 30, effective April 1.
  8. Hawaii (Democratic Governor David Ige): Imposed March 23, effective March 25, effective through April 30.
  9. Idaho (Republican Governor Brad Little): Imposed and effective March 25, effective 21 days (though April 15).
  10. Illinois (Democratic Governor JB Pritzker): Imposed March 20, effective March 21, effective until April 7. (Order)
  11. Indiana (Republican Governor Eric Holcomb): Imposed March 23, effective March 24, effective until April 6. (Most recent orders)
  12. Kansas (Democratic Governor Laura Kelly): Imposed March 28, effective March 30, effective until April 19.
  13. Louisiana (Democratic Governor John Bel Edwards): Imposed March 22, effective March 23, in place until April 13.
  14. Maryland (Republican Governor Larry Hogan): Imposed and effective March 30.
  15. Michigan (Democratic Governor Gretchen Whitmer): Imposed March 23, effective March 24, in place until April 13. (The state announcement, but not the order itself, states the order will be in place “at least” three weeks.)
  16. Minnesota (Democratic Governor Tim Walz): Imposed March 25, effective March 27, effective until April 10.
  17. Montana (Democratic Governor Steve Bullock): Imposed March 27, effective March 28, effective until April 10.
  18. New Hampshire (Republican Governor Chris Sununu): Imposed March 26, effective March 27, effective until May 4.
  19. New Jersey (Democratic Governor Phil Murphy): Imposed and effective March 21, effective until further notice.
  20. New Mexico (Democratic Governor Michelle Lujan Grisham): Imposed March 23, effective March 24, in place until April 10.
  21. New York (Democratic Governor Andrew Cuomo): Imposed March 20, effective March 22, in place until April 19. (Most recent orders available here.)
  22. North Carolina (Democratic Governor Roy Cooper): Imposed March 27, effective March 30, effective for 30 days (until April 29).
  23. Ohio (Republican Governor Mike DeWine): Imposed March 22, effective March 23 in place until April 6.
  24. Oregon (Democratic Governor Kate Brown): Imposed and effective March 23, effective until terminated. (Order)
  25. Rhode Island (Democratic Governor Gina Raimondo): Imposed and effective March 28, effective until April 13.
  26. Vermont (Republican Governor Phil Scott): Imposed March 24, effective March 25, effective until April 15.
  27. Virginia (Democratic Governor Northam): Imposed and effective March 30, effective until June 10.
  28. Washington (Democratic Governor Jay Inslee): Imposed March 23, effective March 26, effective until April 8.
  29. West Virginia (Republican Governor Jim Justice): Imposed March 23, effective March 24, effective until terminated. (Order)
  30. Wisconsin (Democratic Governor Tony Evers): Imposed March 23, effective March 25, effective until April 24.

Non-essential business closures

  1. Kentucky (Democratic Governor Andy Beshear)
  2. Maine (Democratic Governor Janet Mills)
  3. Nevada (Democratic Governor Steve Sisolak)


Trump Threatens to Withhold Disaster Declaration for Michigan because Gretchen Whitmer Was Mean to Him

Update: According to NBC’s Geoff Bennett, Trump has now approved the request.

Last night, Donald Trump suggested that he might withhold a disaster declaration for Michigan requested by Governor Whitmer on March 26 because he doesn’t like Governor Whitmer’s public comments about the Federal government’s failures.

“We’ve had a big problem with the young — a woman governor. You know who I’m talking about — from Michigan. We don’t like to see the complaints,” President Trump told Sean Hannity during a FOX News interview on Thursday.

Gov. Whitmer has been openly critical of the federal response to the coronavirus outbreak, voicing her frustration with not having enough COVID-19 test kits and a lack of “clear and concise guidance from the federal government.”

The comments from President Trump come on the same day Gov. Whitmer requested a major disaster declaration for Michigan over the coronavirus outbreak.

“She doesn’t get it done, and we send her a lot. Now, she wants a declaration of emergency, and, you know, we’ll have to make a decision on that,” President Trump continued. “I don’t know if she knows what’s going on, but all she does is sit there and blame the federal government.”

Here are the states for which Trump has declared an emergency with the number of positive cases on the date Trump made that declaration and the party of their governor.

As of yesterday, Michigan has had 2,856 people test positive for COVID-19. Dr. Deborah Birx pointed to SE Michigan’s Wayne County (which includes Detroit and the mostly working class suburbs), along with Cook County, IL, as the alarming hotspots in the country.

And yet Trump doesn’t want to approve a disaster declaration because a girl was mean to him.


Trump Fighting for Floating Petri Dishes but Not Life-Saving Ventilators

Trump’s response to learning that the cruise industry — which is almost entirely flagged overseas, in part to avoid US taxes — would not be eligible to tap the $500 billion slush fund for large businesses was to work to find a “legislative fix” so these floating petri dishes could survive a pandemic exacerbated by their industry.

Sr. admin official says bipartisan Senate grp working to ensure they can access one of the facilities–or else will seek a legislative fix in the next package.

He proposed adopting Josh Hawley’s offer, which is that if they registered here they could qualify for this loan package.

Meanwhile, on the same day Trump went out of his way to think creatively about how to fund an industry that has almost no societal value that isn’t already being addressed with extended unemployment benefits, outlets reported that the Trump Administration was balking on a plan — which both Trump and Mike Pence had already celebrated — to back a joint venture between General Motors and ventilator manufacturer Ventec Life Systems to produce up to 80,000 ventilators in Kokomo, IN. The problem: $1 billion was too much to spend to address the acute shortage of ventilators in the country.

The decision to cancel the announcement, government officials say, came after the Federal Emergency Management Agency said it needed more time to assess whether the estimated cost was prohibitive. That price tag was more than $1 billion, with several hundred million dollars to be paid upfront to General Motors to retool a car parts plant in Kokomo, Ind., where the ventilators would be made with Ventec’s technology.

By the end of the day, both Trump and Dr. Deborah Birx questioned the number of ventilators New York Governor Andrew Cuomo has consistently said his state will need.

“I have a feeling that a lot of the numbers that are being said in some areas are just bigger than they’re going to be,” he said. “I don’t believe you need 40,000 or 30,000 ventilators. You go into major hospitals sometimes, and they’ll have two ventilators. And now all of a sudden they’re saying, ‘Can we order 30,000 ventilators?’”

New York has become the new epicenter of the coronavirus outbreak in the United States, with hospitals struggling to keep up with larger patient numbers and limited supplies, including masks, gowns and ventilators. In severe cases of Covid-19, the illness caused by coronavirus, ventilators can allow patients to breathe with incapacitated lungs — a common outcome of the disease.

Dr. Deborah Birx, the White House coronavirus response coordinator, said earlier on Thursday she was told that New York had enough ventilators to meet current needs. While there may be shortages in urban areas like New York City, Birx said, there are other parts of the state “that have lots of ventilators and other parts of New York state that don‘t have any infections right now.“

“There is still significant — over a thousand or two thousand ventilators that have not been utilized yet,” Birx said. “Please, for the reassurance of people around the world, to wake up this morning and look at people talking about creating DNR situations — do not resuscitate situations for patients — there is no situation in the United States right now that warrants that kind of discussion.“

Trump’s interest in thinking creatively to fund the cruise industry as compared with his stinginess regarding crucial medical needs is not just malpractice during a pandemic.

But it doesn’t even serve his own stated priorities.

Trump has said he wants the economy to resume as soon as possible — he has been pushing for an Easter restart. Both WA (where Ventec is headquartered), MI, and IN are under state-wide stay-at-home orders, permitting only essential workers in the state to leave their homes to go to work. With some exceptions, the stay-at-home orders in the Midwest have shut down much of the auto industry.

Redeploying a parts plant in IN to produce ventilators would be a way to shift a facility and its workers from the non-essential category to the essential category, potentially getting them working before the stay-at-home orders are lifted.

Indeed, pushing manufacturers to shift production to items deemed essential, via whatever means (in this case, the venture would be supported only by a purchase agreement, but the Defense Production Act could be used to do even more of this). And even if Cuomo is overestimating how many ventilators he’ll need (there’s no reason to believe he is), if there’s a surge in COVID cases in the southern hemisphere as it shifts into fall, there’ll be plenty demand worldwide to pick up the slack.

Even if it led to a glut, one of the best employment policies right now would be to shift as much short- to medium-term production from goods deemed non-essential to goods deemed essential. Even if the US government overpays for those products, it’d be a better jobs program than restarting the cruise industry.

Trump continues to fool himself about where capitalism ends and state support begins. But he’s also adopting a policy that undermines his own hopes to get as many people back to work as he can.


Trump’s Blame the Governors Strategy and Rural Roulette

The other day, I laid out how, even if Trump wants to open the country back up by Easter, at least fifteen governors may prevent him, including OH’s Republican governor Mike DeWine, who in the wake of Trump’s comments tweeted out defending his approach again. The WaPo did a similar piece this morning, confirming that the governors aren’t on board with Trump’s hopes.

That said, it’s clear that Trump plans to pressure governors, not just to do his bidding, but also to demand fealty before he heeds their pleas for help. Ultimately, it may be a bid to blame the upcoming crisis on the governors — disproportionately Democrats — struggling most directly with the crisis.

And that could work.

Though I doubt it, for a number of reasons. As US numbers continue to spike, it’s likely the governors who’ve taken more aggressive stances (with the possible but very notable exception of Andrew Cuomo, largely because of NYC’s density) will be able to show significantly better outcomes than those states that have adopted a hybrid approach, shutting down affected cities but not the entire state, to say nothing of those who were doing nothing (this Politico piece shows what each state has done or, in the case of OK and MS, not done at all).

Right now, almost all the identifiable clusters are in big cities, with both the international travel and density that would lead to early exposure. But some (not all — Detroit is an exception) of those cities actually have relatively low levels of the preexisting conditions that make the population more susceptible to the virus and more likely to have an extreme case if they get it. By contrast, much of America’s more rural areas have a higher instance of those pre-existing conditions. And those rural areas don’t have the hospital beds, much less ICU rooms, to treat seriously ill patients. This map, from an MIT project, shows where current outbreaks are and where particularly vulnerable populations are for the country as a whole.

That means in states where governors have not imposed state-wide stay at home orders, there’s a significant risk that clusters will arise in areas that are less prepared to deal with an outbreak. Effectively, the governors who’ve adopted such an approach are playing “rural roulette,” assuming that a focus on the cities will mitigate the biggest risks, even though the rural areas would be easily overwhelmed even with a smaller number of infections.

And that may have an important dynamic given the election. A number of the key swing states — MN, WI, MI, OH — have instituted full state stay-at-home orders. But many of the rest — PA, FL, NC, CO, GA, TX — have not. And in some of the states where that decision is riskiest — GA, FL, and AZ — there’s a Republican governor adopting those strategies in part to adhere to Trump’s views.

Take Georgia. It has had an outbreak in the more rural southwest part of the state, and municipalities are trying to force Governor Brian Kemp to impose a state-wide shutdown.

But the rest of the state has high incidences of some of the preconditions that make the population particularly susceptible to infection. In other words, while Atlanta has the medical resources (including CDC) to respond to the medical crisis, Georgia is already exhibiting an atypical pattern of rural spread in ways that might make Kemp’s refusal to do a state-wide order particularly costly. (As I was writing this, Kemp announced that schools will remain closed through April 24, which suggests he may be budging on a state-wide approach.)

Then there’s Florida.

Jim here.

As the New York Times notes, the municipalities of Miami and Miami Beach have stay home or shelter in place orders that went into effect this week. Also, Alachua, Leon, Orange and Pinellas Counties have stay home orders. Note that while Orange County holds most of the Orlando metro area, Pinellas is only the St. Petersburg portion of the Tampa Bay region. Tampa is in Hillsborough and the population stays fairly high going north into Pasco and south into Manatee and Sarasota Counties.

A very interesting aspect of the Alachua County stay home order, which went into effect here at 12:01 am Tuesday, is that, as noted in the Gainesville Sun, “Non-medical businesses may only allow one customer inside per 1,000 covered square feet, per an Alachua County emergency order.” Here is the line outside a grocery store Tuesday morning in the Sun’s photo accompanying the article:

As the Tampa Bay Times notes, despite multiple public health authorities pleading for a statewide shutdown, DeSantis has instead been listening almost exclusively to business interests, and their message to him has been exactly the one Fox News and Trump have been flogging:

The Florida Chamber of Commerce have spoken frequently with the governor and his staff, urging him not to take drastic measures that might shut down the state’s economy. The Florida Restaurant and Lodging Association has been asking for ways to help their industries stay afloat.

Their message: don’t let the cure be worse than the disease.

But this is ignored:

Public health experts say that a three-week limit on public movement is required to stop the spread of the virus, and they point to a statistical model that shows that Florida may have only one week to act before hospitals become overwhelmed.

Instead, he hears a Republican telling him just how responsible he is to ignore the public health requests:

Sen. Tom Lee, R-Thonotosassa, said DeSantis was under “a tremendous amount of pressure,” but the idea he’s making decisions based on politics — and not public health — was “irresponsible.”

“He’s hearing from a lot of self-interested actors right now who are acting out of self-preservation,” Lee said. “With every executive order, there’s another industry being impacted. Those people are pretty aggressive and pretty vocal, and I think he’s done a pretty good job of ignoring all that.”

What could go wrong?

/Jim

In Florida, on top of the vacation traffic that DeSantis only belatedly shut down, it has significant numbers of seniors and its rural, more vulnerable communities do not have the beds to treat patients in if an outbreak happens (the gray circles here are senior facilities).

To make things worse, DeSantis is not sharing information about which senior facilities have had positive cases, which is likely to lead to clusters outside of locked down areas that lead to community infection. So on top of the rural/urban mix, DeSantis has the likelihood of a breakout at senior facilities.

It’s not just Republican governors who’ve adopted a hybrid strategy though: Pennsylvania Governor Tom Wolf  locked down PA’s major counties without imposing stay at home in their more rural areas. PA is going to experience the community spread of the Eastern Seaboard; it’s a real question what happens as the virus spreads west from the Philadelphia metro area. Plus, it also has a concentration of senior facilities (the family member I’m most worried about now is stuck in one until April 1 fighting several other preexisting conditions).

In bmaz’s Arizona, something that has the possibility of being worse is happening: Republican Governor Doug Ducey is using his authority to prevent cities from imposing more stringent stay at home orders. Thus far, this order strives only to impose a state-wide standard for what amounts to essential businesses (something that has led to confusion even in states with full state-wide orders). Most of his businesses match those adopted by state-wide orders. His order specifically includes golf courses (but not their restaurant facilities) as essential businesses, which I this is reasonable, in AZ, in the name of exercise; bmaz says that the crowds on urban hiking trails, which are also exempted, are far worse. Ducey’s order could override school closures.

Or, the order as a whole could suggest he’s being pushed closer to where other states are, full stay at home orders.

Arizona faces a particular rural challenge, but one Ducey can’t manage: the Native American reservations, which already have cases and which have a real dearth of health resources. But they’re sovereign.

North Carolina’s Democratic Governor Roy Cooper is another person who is having to be pressured to impose a more stringent state-wide stay at home order.

If states can access adequate testing, it’s still unproven whether state-wide or city-by-city orders will be most effective (though the testing is clearly not there yet).

What is clear, however, is that there will be at least as much political pressure on the states that have incomplete stay at home orders as those with statewide orders. And that just happens to include many of the states where November’s election will be decided.

Update: Trump has just sent a letter to governors suggesting the Feds are going to roll out new standards for identifying high and low risk counties, suggesting he wants to adopt the piecemeal shutdowns of the states discussed here. Such a regime will make orders like Doug Ducey and Mississippi Governor Tate Reeves’ orders standardizing shut-downs at the state level dangerous in a way they aren’t now, because both cite Trump’s guidelines for protective measures.


Air Traffic: A Lesson on Pandemic Economics from the Airlines

As yesterday’s presser and tweets make clear, Donald Trump is jonesing to reopen the economy in the United States. He’s doing that even as the airline industry is weighing whether to voluntarily shut down.

Thus far, according to NBC, Trump has opposed such a shutdown because he fears how the optics will affect his own political fortunes.

One point of tension as Trump tries to balance public and economic health has been air travel. He has repeatedly raised concerns in meetings about the optics of grounded planes and empty airports, according to two people familiar with the meetings. He’s argued that those images would look bad for him and could further drag down the economy, they said, while others have made the case for sharply curtailing air travel.

But according to the WSJ, airlines are considering shutting down voluntarily anyway. There are several reasons the airlines want to shut down (and would prefer to be ordered to do so).

The first and most obvious is that what flights are flying now are so empty they’re losing revenue.

On Monday, thousands of  flights were canceled, in some cases because planes weren’t full enough to justify the trip, with passengers numbering in the single digits. Some planes that did take off have been emptier than ever before. For example, a flight between New York’s LaGuardia Airport and Washington DC had just three passengers. American Airlines Group Inc. and United Airlines Holdings Inc. canceled over 40% of scheduled flights Monday, according to Flightaware.com, a flight tracking site. Some airline officials expect planes to be even emptier as the week goes on.

[snip]

But in the past few days, according to some of these officials, the prospect of an eventual halt has increased for various reasons, including mounting red ink from flying nearly empty planes.

There’s a bit in the story about concerns on the part of flight crews and onerous efforts to adjust schedules to minimize the possibility that crews can infect each other.

But by far, the biggest reason the nation’s airlines may shut down, voluntarily or not, is that infections at a number of air-traffic control facilities have shut down “nearly a dozen” facilities, including towers at Chicago’s Midway and Las Vegas’ McCarran Airports.

Airlines are preparing for the possibility that contagion-driven staffing emergencies at air-traffic control facilities could force the issue, making it impossible to continue operating in parts of the country.

Airport towers at Chicago’s Midway International Airport and McCarran International Airport in Las Vegas remain closed after nearly a week of cleaning.

[snip]

A separate important factor is that Federal Aviation Administration officials fear that additional positive tests for Covid-19, the disease caused by the novel coronavirus, among agency controllers and technicians who maintain their equipment could unravel the nation’s air-traffic control system. Nearly a dozen traffic-control facilities from New York to Chicago to Las Vegas have been temporarily closed to disinfect and clean them, with many more employees at home on self-quarantine while others are being investigated for potential contacts with infected workers.

So far, longstanding FAA contingency plans have managed to deal with the closures by imposing temporary flight restrictions, rerouting planes and shifting responsibilities among backup facilities and employees. Inside the agency, though, concern is growing that new employee infections, especially at key locations, could upend existing contingency options. In some cases, replacing controllers removed from their radar screens would be extremely difficult because it typically takes months of training to get them up to speed to do specific jobs.

Three days ago, traffic for the entire NYC area shut down briefly after a trainee who had been working at a Long Island air traffic control facility tested positive.

Flights into major New York City-area airports were briefly halted on Saturday, as the coronavirus continues to cause staffing issues at air-traffic control facilities around the country,  the Federal Aviation Administration said.

An air traffic controller-trainee based at a control center on Long Island tested positive for the virus, COVID-19, the FAA said. The trainee hadn’t been in the facility since March 17 but the agency is working with local health authorities to sanitize and clean affected areas. The center is operational, it said.

The FAA map of disruptions show the NYC area remains a problem.

This seems to offer an illustration that advisors can use to explain to Trump and his Fox News enablers why he may not be able to reopen the economy next week, and he seems headed to do. Aside from the fact that states and (unless Trump actually does use the Defense Production Act, which FEMA will only start using today) corporations can simply ignore him, there are critical functions of our economy that are proving unmanageable given the way infections can shut down key cogs of national and global systems. Until there’s testing and disinfecting regime that can ensure a single sick person doesn’t bring that network down, it’s not clear Trump has the ability to reopen the economy.

We would be better off, in my opinion, if Trump’s advisors had given him a list of things that had to happen — testing, medical equipment, and a screening regime like the ones used in Asia — before he could reopen the economy. Thus far, Trump’s efforts to meet those needs have been inadequate.

For now, however, he might look to the airlines’ inability to manage a relatively small number of infections among air traffic controllers, even during a time of sharply curtailed flights, to understand why it’s not as simple as saying we’ll just have to tolerate some illnesses.


Trump Considers Getting Hospitals Ventilators Nationalization But a Bailout for Him and His Rich Buddies Necessity

Yesterday, Trump sent remarkably mixed signals in his press conference. He was asked whether he was going to use the Defense Production Act to address the shortage in key medical supplies. He replied by suggesting that using DPA to push manufacturers to prioritize urgently needed supplies amounts to nationalization.

We’re a country not based on nationalizing our business. Call a person over in Venezuela, ask them how did nationalization of their businesses work out? Not too well. The concept of nationalizing our business is not a good concept.

He went on to suggest his Administration doesn’t know who could fill urgent needs, which sounds like a confession that he shouldn’t have fired the pandemic experts.

Later however, Trump treated the socialization of big business losses — of his big business losses — as an acceptable step to save great businesses. After Seung Min Kim asked whether Trump would commit that none of the funds from a $500 billion bailout of big businesses would go to his company, he complained that he hasn’t been thanked for things like taking no salary. He ultimately said he would see, the kind of deferral he often uses to avoid saying yes.

He returned to his complaints later in the presser. In response to a question about whether he had sold stock, he first lied, and claimed that he didn’t own any. He rambled for minutes complaining about being booed. Ultimately, however, he complained about how much it cost rich people to run for office.

A big part of the reason the economy had to be shut down is because Trump did not respond in January when he was warned of the pandemic. And now he’s treating taking steps to provide medical workers the equipment they need as some kind of socialism but bailing himself out as a necessity.


How the Concord Management Prosecution Fell Apart

The frothy right and anti-Trump left both politicized DOJ’s decision to dismiss the single count of conspiracy charged against Concord Management and Concord Catering in the Russian troll indictment that Mueller’s team obtained on February 16, 2018. The right — including the President — and the alt-Left are falsely claiming the prosecution against all the trolls fell apart and suggesting this undermines the claims Russia tampered in the 2016 election.

The mainstream left speculated, without any apparent basis, that Bill Barr deliberately undermined the prosecution by classifying some of the evidence needed to prove the case.

The politicization of the outcome is unfortunate, because the outcome raises important policy questions about DOJ’s recent efforts to name-and-shame nation-state activities in cyberspace.

The IRA indictment intersects with a number of important policy discussions

The decision to indict the Internet Research Agency, its owner Yevgeniy Prigozhin, two of the shell companies he used to fund Internet Research Agency (Concord Management and Concord Catering, the defendants against which charges were dropped), and twelve of the employees involved in his troll operations intersects with three policy approaches adopted in bipartisan fashion in recent years:

  • The use of indictments and criminal complaints to publicly attribute and expose the methods of nation-state hackers and the vehicles (including shell companies) they use.
  • A recent focus on Foreign Agents Registration Act compliance and prosecutions in an attempt to crack down on undisclosed foreign influence peddling.
  • An expansive view of US jurisdiction, facilitated but not limited to the role of the US banking system in global commerce.

There is — or should be — more debate about all of these policies. Some of the prosecutions the US has pursued (one that particularly rankles Russia is of their Erik Prince equivalent, Viktor Bout, who was caught in a DEA sting selling weapons to FARC) would instill outrage if other countries tried them with US citizens. Given the way Trump has squandered soft power, that is increasingly likely. While DOJ has obtained some guilty pleas in FARA cases (most notably from Paul Manafort, but Mike Flynn also included his FARA violations with Turkey in his Statement of the Offense), the FARA prosecutions of Greg Craig (which ended in acquittal) and Flynn’s partner Bijan Kian (which ended in a guilty verdict that Judge Anthony Trenga overturned) have thus far faced difficulties. Perhaps most problematic of all, the US has indicted official members of foreign state intelligence services for activities (hacking), though arguably not targets (private sector technology), that official members of our own military and intelligence services also hack. That’s what indictments (in 2014 for hacks targeting a bunch of victims, most of them in Pittsburgh and this year for hacking Equifax) against members of China’s People’s Liberation Army and Russia’s military intelligence GRU (both the July 2018 indictment for the hack-and-leak targeting the 2016 election and an October 2018 one for targeting anti-doping organizations) amount to. Those indictments have raised real concerns about our intelligence officers being similarly targeted or arrested without notice when they travel overseas.

The IRA indictment is different because, while Prigozhin runs numerous mercenary activities (including his Wagner paramilitary operation) that coordinate closely with the Russian state, his employees work for him, not the Russian state. But the Yahoo indictment from 2017 included both FSB officers and criminal hackers and a number of the hackers DOJ has otherwise indicted at times work for the Russian government. So even that is not unprecedented.

The indictment did serve an important messaging function. It laid out the stakes of the larger Russian investigation in ways that should have been nonpartisan (and largely were, until Concord made an appearance in the courts and started trolling the legal system). It asserted that IRA’s efforts to thwart our electoral and campaign finance functions amounted to a fraud against the United States. And it explained how the IRA effort succeeded in getting Americans to unwittingly assist the Russian effort. The latter two issues, however, may be central to the issues that undid the prosecution.

Make no mistake: the IRA indictment pushed new boundaries on FARA in ways that may raise concerns and are probably significant to the decision to drop charges against Concord. It did so at a time when DOJ’s newfound focus on FARA was not yet well-established, meaning DOJ might have done it differently with the benefit of the lessons learned since early 2018. Here’s a shorter and a longer version of an argument from Joshua Fattal on this interpretation of FARA. Though I think he misses something about DOJ’s argument that became clear (or, arguably, changed) last fall, that DOJ is not just arguing that the trolls themselves are unregistered foreign agents, but that they tricked innocent Americans into being agents. And DOJ surely assumed it would likely never prosecute any of those charged, unless one of the human targets foolishly decided to vacation in Prague or Spain or any other country with extradition treaties with the US. So the indictment was a calculated risk, a risk that may not have paid off.

But that’s why it’s worth understanding the decision to drop the prosecution based off the record, rather than presumptions about DOJ and the Russia investigation.

Just the funding side of the conspiracy to defraud indictment got dropped

The first step to understanding why DOJ dropped the charges is to understand what the two Concord entities were charged with. The indictment as a whole charged eight counts:

  • Conspiracy to defraud the United States for preventing DOJ and FEC from policing our campaign finance and election system (and State for issuing visas)
  • Conspiracy to commit wire fraud and bank fraud by using stolen identities to open financial accounts with which to evade PayPal’s security
  • Six counts of aggravated identity theft for stealing the identities of Americans used in the wire and bank fraud

The wire and bank fraud charges remain untouched by DOJ’s decision. If any of those defendants shows up in court, DOJ remains fully prepared to hold them accountable for stealing Americans’ identities to thwart PayPal’s security protocols so as to fool Americans into doing Russia’s work. Such an identity theft prosecution would not rely on the aggressive FARA theory the Concord charge does.

Even still, most of the conspiracy to defraud (ConFraudUS) charge remains.

The two Concord entities were only named in the ConFraudUS charge. The overt acts involving Concord entail funding the entire operation and hiding those payments by laundering them through fourteen different affiliates and calling the payments “software support.”

3. Beginning as early as 2014, Defendant ORGANIZATION began operations to interfere with the U.S. political system, including the 2016 U.S. presidential election. Defendant ORGANIZATION received funding for its operations from Defendant YEVGENIY VIKTOROVICH PRIGOZHIN and companies he controlled, including Defendants CONCORD MANAGEMENT AND CONSULTING LLC and CONCORD CATERING (collectively “CONCORD”). Defendants CONCORD and PRIGOZHIN spent significant funds to further the ORGANIZATION’s operations and to pay the remaining Defendants, along with other uncharged ORGANIZATION employees, salaries and bonuses for their work at the ORGANIZATION.

[snip]

11. Defendants CONCORD MANAGEMENT AND CONSULTING LLC (Конкорд Менеджмент и Консалтинг) and CONCORD CATERING are related Russian entities with various Russian government contracts. CONCORD was the ORGANIZATION’s primary source of funding for its interference operations. CONCORD controlled funding, recommended personnel, and oversaw ORGANIZATION activities through reporting and interaction with ORGANIZATION management.

a. CONCORD funded the ORGANIZATION as part of a larger CONCORD-funded interference operation that it referred to as “Project Lakhta.” Project Lakhta had multiple components, some involving domestic audiences within the Russian Federation and others targeting foreign audiences in various countries, including the United States.

b. By in or around September 2016, the ORGANIZATION’s monthly budget for Project Lakhta submitted to CONCORD exceeded 73 million Russian rubles (over 1,250,000 U.S. dollars), including approximately one million rubles in bonus payments.

c. To conceal its involvement, CONCORD labeled the monies paid to the ORGANIZATION for Project Lakhta as payments related to software support and development. To further conceal the source of funds, CONCORD distributed monies to the ORGANIZATION through approximately fourteen bank accounts held in the names of CONCORD affiliates, including Glavnaya Liniya LLC, Merkuriy LLC, Obshchepit LLC, Potentsial LLC, RSP LLC, ASP LLC, MTTs LLC, Kompleksservis LLC, SPb Kulinariya LLC, Almira LLC, Pishchevik LLC, Galant LLC, Rayteks LLC, and Standart LLC.

Concord was likely included because it tied Prigozhin into the conspiracy, and through him, Vladimir Putin. That tie has been cause for confusion and outright disinformation during the course of the prosecution, as during pretrial motions there were two legal fights over whether DOJ could or needed to say that the Russian state had a role in the operation. Since doing so was never necessary to legally prove the charges, DOJ didn’t fight that issue, which led certain useful idiots to declare, falsely, that DOJ had disclaimed any tie, which is either absurd misunderstanding of how trials work and/or an outright bad faith representation of the abundant public evidence about the ties between Prigozhin and Putin.

By including Concord, the government asserted that it had proof not just that IRA’s use of fake identities had prevented DOJ and the FEC from policing electoral transparency, but also that Putin’s go-to guy in the private sector had used a series of shell companies to fund that effort.

By dropping the charges against the shell companies, that link is partly broken, but the overall ConFraudUS charge (and the charge against Prigozhin) remains, and all but one of the defendants are now biological persons who, if they mounted a defense, would also face criminal penalties that might make prosecution worth it. (I believe the Internet Research Agency has folded as a legal institution, so it would not be able to replay this farce.)

Going to legal war with a shell company

As noted, the indictment included two shell companies — Concord Management and Concord Catering — among the defendants in a period when Russia has increasingly pursued lawfare to try to discredit our judicial system. That’s precisely what happened: Prigozhin hired lawyers who relished trolling the courts to try to make DOJ regret it had charged the case.

As ceded above, DOJ surely didn’t expect that anyone would affirmatively show up to defend against this prosecution. That doesn’t mean they didn’t have the evidence to prove the crimes — both the first level one that bots hid their identities to evade electoral protections, and the second level conspiracy that Prigozhin funded all that through some shell companies. But it likely means DOJ didn’t account for the difficulties of going to legal war against a shell company.

One of the two explanations the government offered for dropping the prosecution admits that the costs of  trying a shell company have come to outweigh any judicial benefits.

When defense counsel first appeared on behalf of Concord, counsel stated that they were “authorized” to appear and “to make representations on behalf” of Concord, and that Concord was fully subjecting itself to the Court’s jurisdiction. 5/9/18 Tr. 5 (ECF No. 9). Though skeptical of Concord’s (but not counsel’s) asserted commitments at the initial appearance, the government has proceeded in good faith—expending the resources of the Department of Justice and other government agencies; incurring the costs of disclosing sensitive non-public information in discovery that has gone to Russia; and, importantly, causing the Court to expend significant resources in resolving dozens of often-complex motions and otherwise ensuring that the litigation has proceeded fairly and efficiently. Throughout, the government’s intent has been to prosecute this matter consistent with the interests of justice. As this case has proceeded, however, it has become increasingly apparent to the government that Concord seeks to selectively enjoy the benefits of the American criminal process without subjecting itself to the concomitant obligations.

From the start, there were ongoing disputes about whether the shell company Concord Management was really showing up to defend against this conspiracy charge. On May 5, 2018, DOJ filed a motion aiming to make sure that — given the uncertainty that Concord had been properly served with a summons, since, “Acceptance of service is ordinarily an indispensable precondition providing assurance that a defendant will submit to the jurisdiction of the court, obey its orders, and comply with any judgment.” Concord’s lawyers responded by complaining that DOJ was stalling on extensive discovery requests Concord made immediately.

Next, an extended and recurrent fight over a protective order for discovery broke out. Prigozhin was personally charged in the indictment along with his shell company. The government tried to prevent defense attorneys from sharing discovery deemed “sensitive” with officers of Concord (Prighozhin formally made himself an officer just before this effort started) who were also defendants without prior approval or at least a requirement such access to take place in the United States, accompanied by a defense attorney lawyer. That fight evolved to include a dispute about whether “sensitive” discovery was limited to just Personally Identifiable Information or included law enforcement sensitive information, too (unsurprisingly, Concord said it only wanted the latter and even demanded that DOJ sift out the former). The two sides established a protective order at start. But in December, after the government had delivered 4 million documents, of which it deemed 3.2 million “sensitive,” Concord renewed their demand that Prighozhin have access to discovery. They trollishly argued that only Prigozhin could determine whether the proper translation of the phrase “Putin’s chef” meant he was the guy who cooked for Putin or actually Putin’s boss. At this point, the US started filing sealed motions opposing the discovery effort, but did not yet resort to the Classified Information Procedures Act, meaning they still seemed to believe they could prove this case with unclassified, albeit sensitive, evidence.

Shortly thereafter, DOJ revealed that nothing had changed to alter the terms of the original protective order, and in the interim, some of the non-sensitive discovery (that is, the stuff that could be shared with Prigozhn) had been altered and used in a disinformation campaign.

The subsequent investigation has revealed that certain non-sensitive discovery materials in the defense’s possession appear to have been altered and disseminated as part of a disinformation campaign aimed (apparently) at discrediting ongoing investigations into Russian interference in the U.S. political system. These facts establish a use of the non-sensitive discovery in this case in a manner inconsistent with the terms of the protective order and demonstrate the risks of permitting sensitive discovery to reside outside the confines of the United States.

With a biological defendant, such a stunt might have gotten the defendant thrown in jail (and arguably, this is one of two moments when Judge Dabney Friedrich should have considered a more forceful response to defiance of her authority). Here, though, the prosecution just chugged along.

Perhaps the best proof that Prigozhin was using Concord’s defense as an intelligence-collecting effort came when, late last year, Concord demanded all the underlying materials behind Treasury’s Office of Foreign Assets Control decision to sanction Prigozhin and his companies. As Friedrich noted in her short notation denying the request, OFAC’s decision to sanction Prigozhin had nothing to do with the criminal charges against Concord. Nevertheless, Prigozhin used the indictment of his shell companies in an attempt to obtain classified information on the decision leading to sanctions being imposed on him.

Prigozhin’s goal of using his defense as a means of learning the US government’s sources and methods was clear from the first discovery request. That — and his unwavering efforts to continue the trolling operations — likely significantly influenced the later classification determination that contributed to DOJ dropping the case.

The government intended to try this case with unclassified information

That’s the other cited reason the government dismissed this case: because a classification determination made some of the evidence collected during the investigation unavailable as unclassified information.

[A]s described in greater detail in the classified addendum to this motion, a classification determination bearing on the evidence the government properly gathered during the investigation, limits the unclassified proof now available to the government at trial. That forces the prosecutors to choose between a materially weaker case and the compromise of classified material.

At the beginning of this case, the government said that all its evidence was unclassified, but that much of it was sensitive, either for law enforcement reasons or the privacy of victims in the case.

As described further in the government’s ex parte affidavit, the discovery in this case contains unclassified but sensitive information that remains relevant to ongoing national security investigations and efforts to protect the integrity of future U.S. elections. At a high level, the sensitive-but-unclassified discovery in this case includes information describing the government’s investigative steps taken to identify foreign parties responsible for interfering in U.S. elections; the techniques used by foreign parties to mask their true identities while conducting operations online; the relationships of charged and uncharged parties to other uncharged foreign entities and governments; the government’s evidence-collection capabilities related to online conduct; and the identities of cooperating individuals and, or companies. Discovery in this case contains sensitive information about investigative techniques and cooperating witnesses that goes well beyond the information that will be disclosed at trial.

Nevertheless, after the very long and serial dispute about how information could be shared with the defendant noted above (especially Prigozhin, as an officer of Concord), later in the process, something either became classified or the government decided they needed to present evidence they hadn’t originally planned on needing.

This is one way, Barr critics suggest, that the Attorney General may have sabotaged the prosecution: by deeming information prosecutors had planned to rely on classified, and therefore making key evidence inaccessible for use at trial.

That’s certainly possible! I don’t rule out any kind of maliciousness on Barr’s part. But I think the available record suggests that the government made a good faith classification decision, possibly in December 2019 or January 2020, that ended up posing new difficulties for proving the case at trial. One possibility is that, in the process of applying a very novel interpretation of FARA to this prosecution, the types of evidence the government needed to rely on may have changed. It’s also possible that Prigozhin’s continued trolling efforts — and maybe even evidence that his trolling operations had integrated lessons learned from discovery to evade detection — made sharing heretofore sensitive unclassified information far more damaging to US national security (raising its classification level).

As discussed below, the record also suggests that the government tried to access some evidence via other means, by subpoenaing it from Concord. But Concord’s ability to defy subpoenas without punishment (which gets back to trying to prosecute a shell company) prevented that approach.

The fight over what criminalizes a troll conspiring to fool DOJ (and FEC)

Over the course of the prosecution, the theory of the ConFraudUS conspiracy either got more detailed (and thereby required more specific kinds of evidence to prove) or changed. That may have contributed to changing evidentiary requirements.

Even as the dispute about whether Concord was really present in the court fighting these charges, Concord’s lawyers challenged the very novel application of FARA by attacking the conspiracy charge against it. This is precisely what you’d expect any good defense attorney to do, and our judicial system guarantees any defendant, even obnoxious Russian trolls who refuse to actually show up in court, a vigorous defense, which is one of the risks of indicting foreign corporate persons.

To be clear: the way Concord challenged the conspiracy charge was often frivolous (particularly in the way that Concord’s Reed Smith lawyers, led by Eric Dubelier, argued it). The government can charge a conspiracy under 18 USC § 371 without proving that the defendant violated the underlying crimes the implementation of which the conspiracy thwarted (as Friedrich agreed in one of the rulings on Concord’s efforts). And on one of the charged overt acts — the conspiracy to hide the real purpose of two reconnaissance trips to the US on visa applications — Concord offered only a half-hearted defense; at trial DOJ would likely have easily proven that when IRA employees came to the US in advance of the operation, they lied about the purpose of their travel to get a visa.

That said, while Concord never succeeded in getting the charges against it dismissed, it forced DOJ to clarify (and possibly even alter) its theory of the crime.

That started as part of a motion to dismiss the indictment based on a variety of claims about the application of FARA to conspiracy, arguing in part that DOJ had to allege that Concord willfully failed to comply with FECA and FARA. The government argued that that’s not how a ConFraudUS charge works — that the defendants don’t have to be shown to be guilty of the underlying crimes. Concord replied by claiming that its poor trolls had no knowledge of the government functions that their secrecy thwarted. Friedrich posed two questions about how this worked.

Should the Court assume for purposes of this motion that neither Concord nor its coconspirators had any legal duty to report expenditures or to register as a foreign agent?

Specifically, should the Court assume for purposes of this motion that neither Concord nor its co-conspirators knowingly or unknowingly violated any provision, civil or criminal, of FECA or FARA by failing to report expenditures or by failing to register as a foreign agent?

The government responded by arguing that whether or not the Russian trolls had a legal duty to register, their deception meant that regulatory agencies were still thwarted.

As the government argued in its opposition and at the motions hearing, the Court need not decide whether the defendants had a legal duty to file reports with the FEC or to register under FARA because “the impairment or obstruction of a governmental function contemplated by section 371’s ban on conspiracies to defraud need not involve the violation of a separate statute.” United States v. Rosengarten, 857 F.2d 76, 78 (2d Cir. 1988); Dkt. No. 56, at 9-13. Moreover, the indictment alleges numerous coordinated, structured, and organized acts of deception in addition to the failure to report under FECA or to register under FARA, including the use of false social media accounts, Dkt. No. 1 ¶¶ 32-34, 36, the creation and use of U.S.- based virtual computer infrastructure to “mask[] the Russian origin and control” of those false online identities, id. ¶¶ 5, 39, and the use of email accounts under false names, id. ¶ 40. The indictment alleges that a purpose of these manifold acts of deception was to frustrate the lawful government functions of the United States. Id. ¶ 9; see also id. ¶ 5 (alleging that U.S.-based computer infrastructure was used “to avoid detection by U.S. regulators and law enforcement”); id. ¶ 58 (alleging later obstructive acts that reflect knowledge of U.S. regulation of conspirators’ conduct). Those allegations are sufficient to support the charge of conspiracy to defraud the United States regardless of whether the defendants agreed to engage in conduct that violated FECA or FARA because the “defraud clause does not depend on allegations of other offenses.”

Friedrich ruled against the trolls, except in doing so stated strongly that the government had conceded that they had to have been acting to impair lawful government functions, though not which specific relevant laws were at issue.

Although the § 371 conspiracy alleged does not require willfulness, the parties’ disagreement may be narrower than it first appears. The government concedes that § 371 requires the specific intent to carry out the unlawful object of the agreement—in this case, the obstruction of lawful government functions. Gov’t’s Opp’n at 16 (“Because Concord is charged with conspiring to defraud the United States, . . . the requisite mental state is the intent of impairing, obstructing, or defeating the lawful function of any department of government through deception.” (internal quotation marks omitted)). Further, the government agrees that to form the intent to impair or obstruct a government function, one must first be aware of that function. See Hr’g Tr. at 40 (“[Y]ou can’t act with an intent to impair a lawful government function if you don’t know about the lawful government function.”). Thus, Concord is correct—and the government does not dispute—that the government “must, at a minimum, show that Concord knew what ‘lawful governmental functions’ it was allegedly impeding or obstructing.” Def.’s Mot. to Dismiss at 22; Def.’s Reply at 5. Here, as alleged in the indictment, the government must show that Concord knew that it was impairing the “lawful functions” of the FEC, DOJ, or DOS “in administering federal requirements for disclosure of foreign involvement in certain domestic activities.” Indictment ¶ 9. But Concord goes too far in asserting that the Special Counsel must also show that Concord knew with specificity “how the relevant laws described those functions.” Def.’s Mot. to Dismiss at 22; Def.’s Reply at 5. A general knowledge that U.S. agencies are tasked with collecting the kinds of information the defendants agreed to withhold and conceal would suffice.

Then Concord shifted its efforts with a demand for a Bill of Particulars. The demand itself — and the government’s opposition — included a demand for information about co-conspirators and VPNs, yet another attempt to get intelligence rather than discovery. But Friedrich granted the motion with respect to the application of FECA and FARA.

In other words, it will be difficult for the government to establish that the defendants intended to use deceptive tactics to conceal their Russian identities and affiliations from the United States if the defendants had no duty to disclose that information to the United States in the first place. For that reason, the specific laws—and underlying conduct—that triggered such a duty are critical for Concord to know well in advance of trial so it can prepare its defense.

The indictment alleges that the defendants agreed to a course of conduct that would violate FECA’s and FARA’s disclosure requirements, see Indictment ¶¶ 7, 25–26, 48, 51, and provides specific examples of the kinds of expenditures and activities that required disclosure, see id. ¶¶ 48– 57. Concord, 347 F. Supp. 3d at 50. But the indictment does not cite the specific statutory and regulatory disclosure requirements that the defendants violated. Nor does it clearly identify which expenditures and activities violated which disclosure requirements. Accordingly, the Court will order the government to:

  • Identify any statutory or regulatory disclosure requirements whose administration the defendants allegedly conspired to impair, along with supporting citations to the U.S. Code, Code of Federal Regulations, or comparable authority.
  • With respect to FECA, identify each category of expenditures that the government intends to establish required disclosure to the FEC. See, e.g., Indictment ¶ 48 (alleging that the defendants or their co-conspirators “produce[d], purchase[d], and post[ed] advertisements on U.S. social media and other online sites expressly advocating for the election of then-candidate Trump or expressly opposing Clinton”) (emphasis added)). The government must also identify for each category of expenditures which disclosure provisions the defendants or their co-conspirators allegedly violated.
  • With respect to FARA, identify each category of activities that the government intends to establish triggered a duty to register as a foreign agent under FARA. See, e.g., id. ¶ 48 (same); id. ¶ 51 (alleging that the defendants or their coconspirators “organized and coordinated political rallies in the United States” (emphasis added)). The government must also identify for each category of activities which disclosure provisions the defendants or their co-conspirators allegedly violated.

In a supplemental motion for a bill of particulars, Concord asked which defendants were obliged to file with DOJ and FEC.

That came to a head last fall. In a September 16, 2019 hearing, both sides and Friedrich discussed at length precisely what the legal theory behind the conspiracy was. On Friedrich’s order, the government provided Concord a list of people (whose names were redacted) that,

the defendants conspired to cause some or all of the following individuals or organizations to act as agents of a foreign principal while concealing from those individuals that they were acting as agents of a foreign principal [who should register under FARA].

That is, whether or not this was the original theory of the case, by last fall the government made it clear that it wasn’t (just) Prigozhin or his trolls who needed to register; rather, it was (also) the Americans who were duped into acting and spending money on their behalf. But because they didn’t know they were working on behalf of a foreign principal, they did not register.

Meanwhile, in a motion for clarification, the government argued that it had always intended to include foreigners spending money in the indictment. Friedrich held that that had not actually been included in the original indictment.

These two issues — the claim that duped Americans would have had to register if they knew they were working with a foreign agent, and the need to strengthen the assertion about foreign campaign expenditures — forced the government to go back and supersede the original indictment.

DOJ obtains a superseding indictment with more specific (and potentially new) theories of the case

On November 8, 2019, the government obtained a superseding indictment to include language about foreign donations that Friedrich had ruled was not in the original indictment and language covering the duped Americans who had unknowingly acted as agents of Russian trolls.

New language in the superseding indictment provided more detail of reporting requirements.

¶1 U.S. law also requires reporting of certain election-related expenditures to the Federal Election Commission.

[snip]

U.S. also imposes an ongoing requirement for such foreign agents to register with the Attorney General.

The paragraph explaining the means of the ConFraudUS added detail about what FEC, DOJ, and State functions the trolls’ deceit had thwarted.

¶7 In order to carry out their activities to interfere in the U.S. political and electoral processes without detection of their Russian affiliation, Defendants conspired to obstruct through fraud and deceit lawful functions of the United States government in monitoring, regulating, and enforcing laws concerning foreign influence on and involvement in U.S. elections and the U.S. political system. These functions include (a) the enforcement of the statutory prohibition on certain election-related expenditures by foreign nationals; (b) the enforcement of the statutory requirements for filing reports in connection with certain election-related expenditures; (c) the enforcement of the statutory ban on acting as an unregistered agent of a foreign principal in the United States; (d) the enforcement of the statutory requirements for registration as an agent of a foreign principal (e) the enforcement of the requirement that foreign national seeking entry into the United States provide truthful and accurate information to the government. The defendants conspired to do so by obtaining visas through false and fraudulent statements, camouflaging their activities by foreign nationals as being conducted by U.S. persons, making unlawful expenditures and failing to report expenditures in connection with the 2016 U.S. presidential election, and failing to register as foreign agents carrying out political activities within the United States, and by causing others to take these actions.

These allegations were repeated in ¶9 in the section laying out the ConFraudUs count.

The superseding indictment added a section describing what FEC and DOJ do.

¶25 One of the lawful functions of the Federal Election Commission is to monitor and enforce this prohibition. FECA also requires that individuals or entities who make certain independent expenditures in federal elections report those expenditures to the Federal Election Commission. Another lawful government function of the Federal Election Commission is to monitor and enforce this reporting requirement.

[snip]

¶26 The U.S. Department of Justice enforces the Foreign Agent Registration Act (“FARA”), which makes it illegal to act in the United States as an “agent of a foreign principal,” as defined at Title 22, United States Code, Section 661(c), without following certain registration, reporting, and disclosure requirements established by the Act. Under FARA, the term “foreign principal” includes foreign non-government individuals and entities. FARA requires, among other things, that persons subject to its requirements submit periodic registration statements containing truthful information about their activities and income earned from them. One of the lawful government functions of the Department of Justice is to monitor and enforce this registration, reporting, and disclosure regime.

In perhaps the most interesting addition, the superseding indictment also added language to include the actions of unwitting Americans.

¶48 …and caused unwitting persons to produce, purchase, and post advertisements on U.S. social media and other online sites expressly advocating for the election of then-candidate Trump or expressly opposing Clinton. Defendants and their co-conspirators did not report these expenditures to the Federal Election Commission, or register as foreign agents with the U.S. Department of Justice, nor did any of the unwitting persons they caused to engage in such activities.

The superseding indictment repeated this “unwitting” language in ¶51.

This superseding indictment is significant for two reasons, given the dismissal of the count against the two Concord defendants. First, the possibly changed theory of the conspiracy may have changed what evidence the government needed to prove the crime. For example, it may be that DOJ has evidence of IRA employees acknowledging, for the period of this indictment, that spending money on these activities was illegal, whether or not they knew they had to report such expenditures. It may be that DOJ has evidence of communications between the trolls and actual Americans they otherwise wouldn’t have had to rely on. It may be that DOJ has evidence about the regulatory knowledge of those same Americans about their own reporting obligations. Some of this evidence might well be classified.

Just as importantly, if Bill Barr wanted to jettison this prosecution, he could have done so last November by refusing to permit the superseding indictment. That likely would have undermined the case just as surely (and might have led Friedrich to dismiss it herself), and would have been far better for Trump’s messaging. Moreover, from that point in time, it would have been clear that trial might introduce evidence of how three Trump campaign officials coordinated (unknowingly) with the Russian trolls, something bound to embarrass Trump even if it posed no legal hazard. If Barr had wanted to undermine the prosecution to benefit Trump, November would have been the optimal time to do that, not February and March.

While it’s not clear whether this superseding indictment changed certain evidentiary challenges or not, three key strands of activity that seem to have resulted in the dismissal started only after the superseding: an effort to authenticate digital evidence on social media activity, an effort to subpoena some of that same evidence, and the CIPA process to try to substitute for classified information.

The government goes to some lengths to try to pre-approve normally routine evidence

The last of those efforts, chronologically, may hint at some of the evidentiary issues that led DOJ to drop the case.

In a motion submitted on February 17, the government sought to admit a great deal of the social media and related forensic data in the case. In many trials, this kind of evidence is stipulated into evidence, but here, Concord had been making it clear it would challenge the evidence at trial. So the government submitted a motion in limine to try to make sure it could get that evidence admitted in advance.

Among the issues raised in the motion was how the government planned to authenticate the IP addresses that tied the IRA trolls to specific Facebook and Twitter accounts and other members of the conspiracy (Prigozhin, Concord, and the interim shell companies) to each other. The government redacted significant sections of the filing describing how it intended to authenticate these ties (see, for example, the redaction on page 8, which by reference must discuss subscriber information and IP addresses, and footnote 7 on page 9, the redaction pertaining to how they were going to authenticate emails on page 16, the very long redaction on how they would authenticate emails between IRA and Concord starting on page 17, and the very long redaction on how they were going to authenticate Prigozhin to the IRA starting on page 21).

Concord got special permission to write an overly long 56-page response. Some of it makes it clear they’re undermining the government’s efforts to assert just that, for example on IP addresses.

IP addresses, subscriber information, and cookie data are not self-authenticating. The first link in the government’s authentication argument is that IP addresses,6 subscriber information, and cookie data are self-authenticating business records under Rules 803(6) and 902(11). But the cases the government cites are easily distinguishable and undercut its argument.

6 The IP addresses do not link an account to a specific location or fixed address. For example, for the Russian IP addresses the government indicates that they were somewhere within the city of St. Petersburg, Russia.

[snip]

It should come as no surprise then, given the lack of reliability and untrustworthiness in social media evidence such as that the government seeks to introduce, that the case law forecloses the government’s facile effort at authentication of content here. Unlike Browne, Lewisbey, and the other cases cited above, the government has offered no social media accounts bearing the name of any alleged conspirator and no pictures appearing to be a conspirator adorning such page.7 Nor has the government pointed to a single witness who can testify that she saw a conspirator sign up for the various social media accounts or send an email, or who can describe patterns of consistency across the various digital communications to indicate they come from the same source.

7 The government has indicated to Concord that it intends to introduce at trial Fed. R. Evid. 1006 summaries of IP address records, apparently to create the link between the social media accounts and IRA that is not addressed in the motion. See Ex. B, Jan. 6, 2020 letter. Despite repeated requests from undersigned counsel, the government has identified the 40 social media accounts for it intends to summarize but has not provided the summaries or indicated when it will do so.

Some of this is obviously bullshit, particularly given the government’s contention, elsewhere, that Concord (or IRA, if it was a typo) had dedicated IP addresses. Mostly, though, it appears to have been an attempt to put sand in the wheels of normal criminal prosecution by challenging stuff that is normally routine. That doesn’t mean it’s improper, from a defense standpoint. But given how often DOJ’s nation-state indictments rely on such forensic evidence, it’s a warning about potential pitfalls to them.

The government resorts to CIPA

Even while the government had originally set out to prove this case using only unclassified information, late in the process, it decided it needed to use the Classified Information Procedures Act. That process is where one would look for any evidence that Barr sabotaged the prosecution by classifying necessary evidence (though normally the approval for CIPA could come from Assistant Attorney General for National Security Division John Demers, who is not the hack that Barr is).

In October 2019, Friedrich had imposed a deadline for CIPA if the government were going to use it, of January 20, 2020.

On December 17, the government asked for a two week delay, “to ensure appropriate coordination within the Executive Branch that must occur prior to the filing of the motion,” a request Friedrich denied (even though Concord did not oppose it). This was likely when the classification determination referenced in the motion to withdraw was debated, given that such determinations would dictate what prosecutors had to do via CIPA.

On January 10, 2020, the government filed its first motion under CIPA Section 4, asking to substitute classified information for discovery and use at trial. According to the docket, Friedrich discussed CIPA issues at a hearing on January 24. Then on January 29 and February 10, she posted classified orders to the court security officer, presumably as part of the CIPA discussion.

On February 13, the government asked for and obtained a one-day extension to file a follow-up CIPA filing, from February 17 to February 18, “to complete necessary consultation within the Executive Branch regarding the filing and to ensure proper supervisory review.” If Barr intervened on classification issues, that’s almost certainly when he did, because this happened days after Barr intervened on February 11 in Roger Stone’s sentencing and after Jonathan Kravis, who had been one of the lead prosecutors in this case as well, quit in protest over Barr’s Stone intervention. At the very least, in the wake of that fiasco, Timothy Shea made damn sure he ran his decision by Barr. But the phrase, “consultation within the Executive Branch,” certainly entertains consultation with whatever agency owned the classified information prosecutors were deciding whether they could declassify (and parallels the language used in the earlier request for a filing extension). And Adam Jed, who had been part of the Mueller team, was added to the team not long before this and remained on it through the dismissal, suggesting nothing akin to what happened with Stone happened here.

The government submitted its CIPA filing on the new deadline of February 18, Friedrich issued an order the next day, the government filed another CIPA filing on February 20, Friedrich issued another order on February 28.

Under CIPA, if a judge rules that evidence cannot be substituted, the government can either choose not to use that evidence in trial or drop the prosecution. It’s likely that Friedrich ruled that, if the government wanted to use the evidence in question, they had to disclose it to Concord, including Prigozhin, and at trial. In other words, that decision — and the two earlier consultations (from December to early January, and then again in mid-February) within the Executive Branch — are likely where classification issues helped sink the prosecution.

It’s certainly possible Bill Barr had a key role in that. But there’s no explicit evidence of it. And there’s abundant reason to believe that Prigozhin’s extensive efforts to use the prosecution as an intelligence-gathering exercise both for ongoing disinformation efforts and to optimize ongoing trolling efforts was a more important consideration. Barr may be an asshole, but there’s no evidence in the public record to think that in this case, Prigozhin wasn’t the key asshole behind a decision.

DOJ attempts to treat Concord as a legit party to the court’s authority

Even before that CIPA process started playing out, beginning on December 3, the government pursued an ultimately unsuccessful effort to subpoena Concord. This may have been an attempt to obtain via other means evidence that either had been obtained using means that DOJ had since decided to classify or the routine authentication of which Concord planned to challenge.

DOJ asked to subpoena a number of things that would provide details of how Concord and Prigozhin personally interacted with the trolls. Among other requests, the government asked to subpoena Concord for the IP addresses it used during the period of the indictment (precisely the kind of evidence that Concord would later challenge).

3. Documents sufficient to identify any Internet Protocol address used by Concord Management and Consulting LLC from January 1, 2014 to February 1, 2018.

Concord responded with a load of absolute bullshit about why, under Russian law, Concord could not comply with a subpoena. Judge Friedrich granted the some of the government’s request (including for IP addresses), but directed the government to more narrowly tailor its other subpoena requests.

On December 20, the government renewed its request for other materials, providing some evidence of why it was sure Concord had responsive materials. Concord quickly objected again, again wailing mightily. In its reply, the government reminded Friedrich that she had the ability to order Concord to comply with the subpoena — and indeed, had gotten Concord’s assurances it would comply with orders of the court when it first decided to defend against the charges. It even included a declaration from an expert on Russian law, Paul Stephan, debunking many of the claims Concord had made about Russian law. Concord wailed, again. On January 24, Friedrich approved the 3 categories of the subpoena she had already approved. On January 29, the government tried again, narrowing the request even to — in one example — specific days.

Calendar entries reflecting meetings between Prigozhin and “Misha Lakhta” on or about January 27, 2016, February 1, 2016, February 2, 2016, February 14, 2016, February 23, 2016, February 29, 2016, May 22, 2016, May 23, 2016, May 28, 2016, May 29, 2016, June 7, 2016, June 27, 2016, July 1, 2016, September 22, 2016, October 5, 2016, October 23, 2016, October 30, 2016, November 6, 2016, November 13, 2016, November 26, 2016, December 3, 2016, December 5, 2016, December 29, 2016, January 19, 2017, and February 1, 2017.

Vast swaths of the motion (and five exhibits) explaining why the government was sure that Concord had the requested records are sealed. Concord responded, wailing less, but providing a helpful geography lesson to offer some alternative explanation for the moniker “Lakhta,” which the government has long claimed was the global term for Prigozhin’s information war against the US and other countries.

But the government fails to inform the Court that “Lakhta” actually means a multitude of other things, including: Lake Lakhta, a lake in the St. Petersburg area, and Lakhta Center, the tallest building in Europe, which is located in an area within St. Petersburg called the Lakhta-Olgino Municipal Okrug.

On February 7, Friedrich largely granted the government’s subpoena request, approving subpoenas to get communications involving Prigozhin and alleged co-conspirators, as well as records of payments and emails discussing them.  That same day and again on February 21, Concord claimed that it had communicated with the government with regards to the subpoenas, but what would soon be clear was non-responsive.

On February 27, the government moved to show cause for why Concord should not be held in contempt for blowing off the subpoenas, including the request for IP addresses and the entirety of the second subpoena (for meetings involving Prigozhin and records of payments to IRA). Concord wailed in response. The government responded by summarizing Concord’s response:

Concord’s 18-page pleading can be distilled to three material points: Concord’s attorneys will not make any representations about compliance; Concord will not otherwise make any representations about compliance; and Concord will not comply with a court order to send a representative to answer for its production. The Court should therefore enter a contempt order and impose an appropriate sanction to compel compliance.

Friedrich issued an order that subpoena really does mean subpoena, demanding some kind of representation from Concord explaining its compliance.  In response, Prigozhin sent a declaration partly stating that his businesses had deleted all available records, partly disclaiming an ability to comply because he had played games with corporate structure.

With respect to category one in the February 10, 2020 trial subpoena, Concord never had any calendar entries for me during the period before I became General Director, and I became General Director after February 1, 2018, so no searches were able to be performed in Concord’s documents. Concord did not and does not have access to the previous General Director’s telephone from which the prosecution claims to have obtained photographs of calendars and other documents, so Concord is unable to confirm the origin of such photographs.

He claimed to be unable to comply with the request for IP addresses because his contractors “cannot” provide them.

In order to comply with category three in the trial subpoena dated January 24, 2020, in Concord’s records I found contracts between Concord and Severen-Telecom JSC and Unitel LLC, the two internet service providers with which Concord contracted between January 1, 2014 and February 1, 2018. Because these contracts do not identify the internet protocol (“IP”) addresses used by Concord during that period, on January 7, 2020 I sent letters on behalf of Concord to Severen-Telecom JSC and Unitel LLC transmitting copies of these contracts and requesting that the companies advise as to which IP addresses were provided to or used by Concord during that period. Copies of these letters and English translations, as well as the attached contracts, are attached as Exhibits 2 and 3. Severen-Telecom JSC responded in writing that the requested information cannot be provided. A copy of Severen-Telecom JSC’s letter and an English translation are attached as Exhibit 2. Unitel LLC responded that information regarding IP addresses cannot be provided. A copy of Unitel LLC’s letter and an English translation of is attached as Exhibit 3. Accordingly, Concord does not have any documents that could be provided in response to category three (3) of the January 24, 2020 subpoena.

The government responded by pointing out how bogus Prigozhin’s declaration was, not least his insistence that any oligarch like him would really be the person in charge of his companies’ record-keeping. It also described evidence — which is redacted — that Concord had an in-house IT provider at the time (though notes that “as the Court knows, it appears that Concord [sic; this is probably IRA] registered and maintained multiple dedicated IP addresses during the relevant time period”). It further noted that the date that Prigozhin claimed his company started destroying records after 3 months perfectly coincided to cover the start date of this subpoena. In short, it provided fairly compelling evidence that Prigozhin, after agreeing that his company would be subject to the authority of the court when it first filed an appearance in the case, was trolling the court from the safety of Russia.

On March 5, Judge Friedrich nevertheless allowed that bullshit response in her court and declined to hold Concord in contempt. Eleven days later, the government moved to dismiss the case.

The government files the motion to dismiss before the evidentiary dispute finishes but after the subpoena and CIPA fail

On March 16 — 17 days after what appears to be the final CIPA order and 11 days after Friedrich declined to hold Concord or Prigozhin in contempt, and one day before the government was due to file a follow-up to its motion in limine to authenticate normally routine evidence in the case — the government moved to dismiss the case.

While it’s unclear what evidence was deemed to be classified late in the prosecution (likely in December), it seems fairly clear that it affected (and possibly was a source or method used to collect) key forensic proof in the case. It’s also unclear whether an honest response to the government’s trial subpoenas would have replaced that evidence.

What is clear, however, is that there is sufficient explanation in the public record to support the government’s explanation — that Prigozhin was using the prosecution to reap benefits of obtaining information about US government efforts to thwart his activities without risking anything himself. And whether or not the government would be able to prove its case with the classification and CIPA decisions reflected in the docket, the trial itself would shift more evidence into the category of information that would get shared with Prigozhin.

None of that disproves that Barr sabotaged the case. But it does provide sufficient evidence to explain why DOJ dismissed the case, without assuming that Barr sabotaged it.

Other cases of interest

As noted above, not only do the identity theft related charges remain, but so does the ConFraudUS case for all the biological defendants, including Prigozhin. It may be that, given the opportunity to imprison Prigozhin in the highly unlikely event that he ever showed up in the US for trial, the classification trade-offs would be very different.

But there are three other legal issues of interest, given this outcome.

First, there’s one more unsurprising detail about the superseding indictment: It also included an end-date, January 2018. That’s not surprising because adding later activities probably would presented all sorts of problems given how advanced the trial was last November. But it’s also significant because it means double jeopardy would not attach for later activities. So the government could, if the calculus on classification ever changed, simply charge all the things Prigozhin and his trolls have been doing since January 2018 in an indictment charged under its revised theory.

That’s particularly significant given that, in September 2018, prosecutors in EDVA charged Prigozhin’s accountant, Elena Alekseevna Khusyaynova. Even at the time, I imagined it might be a vehicle to move the IRA prosecution if anything happened to it in DC. Unsurprisingly, given that she’s the accountant at the center of all this, the Khusyaynova complaint focused more closely on the money laundering part of the prosecution. Plus, that complaint incorporated evidence of Prigozhin’s trolls reveling in their own indictment, providing easy proof of knowledge of the legal claims DOJ made that didn’t exist for the earlier indictment. None of that would change the calculus around classified evidence (indeed, some of the overt acts described in the Khusyaynova complaint seem like the kind of evidence that Prigozhin would have turned over had he complied with the Concord subpoena. So there is another vehicle for such a prosecution, if DOJ wanted to pursue it.

Finally, Prigozhin has not succeeded with all his attempts to wage lawfare in support of his disinformation efforts. In January, he lost his bid to force Facebook to reinstate his fake news site, Federal Agency of News, based off an argument that because Facebook worked so closely with the government, it cannot exercise its own discretion on its private site. As I laid out here, the suit intersected with both the IRA indictment and Khusyaynova complaint, and engaged in similar kinds of corporate laundry and trollish bullshit. The decision was a no-brainer decision based on Section 230 grounds, giving providers immunity when they boot entities from their services. But the decision also confirms what is already evident: when it comes to shell companies in the business of trolling, thus far whack-a-mole removals have worked more consistently than seemingly symbolic prosecution.

DOJ may well revisit how it charged this to try to attach a FARA liability onto online disinformation. But ultimately the biological humans, not the corporation shells or the bots, need to be targeted.


The Costs of Letting Trump Believe His Authoritarian Buddies Instead of His Intelligence Community

WaPo has a story confirming something that has long been implicit (based on Trump’s treatment, for a period, of COVID-19 briefings as classified). The intelligence community was tracking and briefing on the COVID-19 outbreak long before it rose to public attention.

U.S. intelligence agencies were issuing ominous, classified warnings in January and February about the global danger posed by the coronavirus while President Trump and lawmakers played down the threat and failed to take action that might have slowed the spread of the pathogen, according to U.S. officials familiar with spy agency reporting.

[snip]

Intelligence agencies “have been warning on this since January,” said a U.S. official who had access to intelligence reporting that was disseminated to members of Congress and their staffs as well as to officials in the Trump administration, and who, along with others, spoke on the condition of anonymity to describe sensitive information.

[snip]

The warnings from U.S. intelligence agencies increased in volume toward the end of January and into early February, said officials familiar with the reports. By then, a majority of the intelligence reporting included in daily briefing papers and digests from the Office of the Director of National Intelligence and the CIA was about covid-19, said officials who have read the reports.

The money line repeats one the CIA used to describe how George Bush ignored warnings about 9/11: the system was blinking red.

“Donald Trump may not have been expecting this, but a lot of other people in the government were — they just couldn’t get him to do anything about it,” this official said. “The system was blinking red.”

What’s key though (and, because of editing decisions, doesn’t get a lot of focus in the story) is one reason why Trump didn’t heed the warnings of his briefers: because he believed Xi Jingpeng more than he believed the US intelligence community.

The intelligence reports didn’t predict when the virus might land on U.S. shores or recommend particular steps that public health officials should take, issues outside the purview of the intelligence agencies. But they did track the spread of the virus in China, and later in other countries, and warned that Chinese officials appeared to be minimizing the severity of the outbreak.

[snip]

Robert Kadlec, the assistant secretary for preparedness and response — who was joined by intelligence officials, including from the CIA — told committee members that the virus posed a “serious” threat, one of those officials said.

Kadlec didn’t provide specific recommendations, but he said that to get ahead of the virus and blunt its effects, Americans would need to take actions that could disrupt their daily lives, the official said. “It was very alarming.”

Trump’s insistence on the contrary seemed to rest in his relationship with China’s President Xi Jingping, whom Trump believed was providing him with reliable information about how the virus was spreading in China, despite reports from intelligence agencies that Chinese officials were not being candid about the true scale of the crisis.

We all pay for Robert Kadlec to make sure policymakers get warnings about such things. And yet, Trump refused to believe those warnings because someone he trusted more — Xi — told him differently.

Trump has been permitted to believe his authoritarian buddies over the intelligence community on all manner of things. It derives from two things: first, his own innate fondness for authoritarians. But also, his need to believe Vladimir Putin’s assurances that Russia didn’t help him get elected.

The enabling of Trump’s fondness for dictators will end up being very costly for the United States.


At First, KT McFarland Told a Similarly Misleading Version of the Story Mike Flynn Will Be Pardoned For

In his abundant free time, the President tweeted about pardoning Mike Flynn on Sunday.

According to Matt Gertz, this was a response to a Lou Dobbs segment with John Solomon where Dobbs said there are 302s that “can’t be found.” Per transcripts Gertz shared, this is a reference to Sidney Powell’s claim — repeated with Dobbs the day before — that the first draft of Flynn’s 302 is missing (she also complained that Flynn never received a January 2017 memo stating that DOJ did not believe Flynn was an agent of Russia, which is unrelated to whether he was an agent of Turkey or lied to the FBI about his interactions with Russia).

Emmet Sullivan has already judged Trump’s complaint to be baseless

In December, Emmet Sullivan already judged this complaint to be baseless because the notes written before any “original 302” and all the 302s already provided Flynn track each other and the 302s consistently capture Flynn’s lies.

Mr. Flynn speculates that the government is suppressing the “original 302” of the January 24, 2017 interview, Def.’s Reply, ECF No. 133 at 28; he claims that the lead prosecutor “made it sound like there was only one 302,” id. at 29; and he makes a separate request for the FBI to search for the “original 302” in one of the FBI’s databases, id. at 28-30. In Mr. Flynn’s view, the “original 302”—if it exists—may reveal that the interviewing FBI agents wrote in the report “their impressions that [Mr.] Flynn was being truthful.” Id. at 28. Mr. Flynn claims that the FBI destroyed the “original 302” to the extent that it was stored in the FBI’s files. Id. at 30. Comparing draft FD-302s of Mr. Flynn’s January 24, 2017 interview to the final version, Mr. Flynn claims that the FBI manipulated the FD-302 because “substantive changes” were made after reports that Mr. Flynn discussed sanctions with the Russian Ambassador “contrary to what Vice President Pence had said on television previously.” Id. at 14-15. Mr. Flynn points to the Strzok-Page text messages the night of February 10, 2017 and Ms. Page’s edits to certain portions of the draft FD-302 that were “material.” Def.’s SurSurreply, ECF No. 135 at 8-9.

To the extent Mr. Flynn has not already been provided with the requested information and to the extent the information exists, the Court is not persuaded that Mr. Flynn’s arguments demonstrate that he is entitled to the requested information. For starters, the Court agrees with the government that there were no material changes in the interview reports, and that those reports track the interviewing FBI agents’ notes.

[snip]

Having carefully reviewed the interviewing FBI agents’ notes, the draft interview reports, the final version of the FD302, and the statements contained therein, the Court agrees with the government that those documents are “consistent and clear that [Mr. Flynn] made multiple false statements to the [FBI] agents about his communications with the Russian Ambassador on January 24, 2017.” Gov’t’s Surreply, ECF No. 132 at 4-5. The Court rejects Mr. Flynn’s request for additional information regarding the drafting process for the FD-302s and a search for the “original 302,” see Def.’s Sur-Surreply, ECF No. 135 at 8- 10, because the interviewing FBI agents’ notes, the draft interview reports, the final version of the FD-302, and Mr. Flynn’s own admissions of his false statements make clear that Mr. Flynn made those false statements.

Even though a judge has already ruled that this complaint is baseless, Trump took a break from mismanaging a pandemic to inch closer to a Flynn pardon based on it.

Given the increasing likelihood Trump will use the cover of the epidemic to pardon Flynn, it’s worth pointing to another set of evidence that Flynn’s prosecution for lying was sound: he’s not the only one who tried to cover up the Trump Transition’s efforts to undercut President Obama’s sanctions on Russia.

Like Flynn, KT McFarland hid Trump Transition efforts to undercut sanctions at first

In FBI interview reports (302s) released in the BuzzFeed/CNN FOIAs, some details of KT McFarland’s interviews prior to his guilty plea have been released. McFarland was interviewed four times before Flynn’s plea deal became public: August 29 (this 302 has not yet been released), September 14, October 17, and October 19, 2017.  Those 302s show that, at first, KT McFarland downplayed the Trump Transition efforts to undermine Obama’s sanctions on Russia that Mike Flynn got fired and prosecuted for (as well as tried to protect Jared Kushner in his role trying to undercut Obama policies on Israeli settlements).

McFarland’s first interview, on August 29, came in the wake of Mueller’s team acquiring Transition emails from the General Services Administration without notice to the campaign, followed by a warrant to read them. It’s likely her (still unreleased) initial interview and the beginning of her second one were based off a presumption that some emails making it clear the Transition had discussed sanctions would not get shared with Mueller’s team. When she got showed them, she claimed not to remember all details about them.

Her initial interview, as noted, has not been released. The unredacted passages from her second one (she did all pre-Flynn interviews without a lawyer, but in the presence of her spouse, who is a lawyer) show she shaded the truth about things she should have known the FBI had counter-evidence to. (In what follows, I’m bolding things she said in early interviews that her later testimony contradicts.)

For example, in that second interview, McFarland professed to not recall who attended a Presidential Daily Brief on December 28, 2016 where sanctions were discussed.

McFarland was shown a calendar entry for December 28, 2016 and confirmed the entry would have represented a PDB. She sat in the briefing, but did not recall who was there besides [Deputy Director of National Intelligence Edward] Gistaro. It was a small number of people and it took place in a basement studio apartment in the hotel.

Note: Gistaro had already testified at least once before this interview, on June 14, but that was likely focused on Trump’s demand that Dan Coats “help with the [Russian] investigation.” But it’s certainly possible his is one of the interviews in the interim that remain undisclosed.

In addition to her vague memories about meetings at Mar-a-Lago, McFarland also claimed she “did not recall any conversations she may have had with Flynn the day sanctions were announced.” While her description of what Flynn told her about his call with Sergey Kislyak is largely redacted, it’s clear she told the FBI it pertained to “Russian President Putin’s desire for a contemporary video conference after the inauguration.” This is the cover story Flynn asked her to tell the press in January 2017, and it’s part of what Flynn got fired for. Yet she was still relying on it in an interview with the FBI seven months later.

In her third interview, McFarland admitted that sanctions may have come up, but claimed again not to have specific knowledge of it.

News that the Obama Administration planned to impose sanctions on Russia started to come out on December 28, 2016, but they had not been officially announced and specifics were unknown. Sanctions were just one of “several and many things” going on at that time. McFarland, who was in Mar-a-Lago with the President-elect, did not recall what specific conversations she had at which times or to whom she spoke, but sanctions were in the news so it would make sense to her they were among the topics discussed.

In this interview report, McFarland’s explanation for an email involving Tom Bossert discussing sanctions is redacted, but the unredacted parts claim,

McFarland never discussed the specific terms of the sanctions with anyone. She would have told Michael Flynn about how the session with the President-elect went during one of their phone calls.

This claim would have been especially sketchy to the FBI since Flynn had already told the FBI, in January, that he only learned about sanctions from those at Mar-a-Lago.

McFarland also claimed not to remember what she discussed with Flynn when.

She did not have specific recollections about the times of the calls with Flynn or what was discussed in which call. Flynn mentioned several times several issues he intended to discuss with the Russians, and McFarland believed she would have given her theories about the sanctions.

McFarland’s memory started to grow clearer after outlines of Flynn’s testimony were released when he pled guilty on December 1, 2017.

McFarland’s post-Flynn plea memories grow significantly clearer

As the Mike Flynn cooperation addendum laid out, one reason Flynn’s reluctant cooperation was useful is it led others — including, but not limited to, McFarland — to unforget the truth.

[T]he defendant’s decision to plead guilty and cooperate likely affected the decisions of related firsthand witnesses to be forthcoming with the SCO and cooperate. In some instances, individuals whom the SCO interviewed before the defendant’s guilty plea provided additional, relevant details about their knowledge of key events after his cooperation became publicly.

Days after Flynn’s guilty plea, on December 5, she must have realized that he had given testimony that contradicted hers and informed FBI agents she was in the process of lawyering up. McFarland asked one of the FBI Agents she had been interacting with for the Tom Bossert and Mike Flynn emails she had already testified about, which were included in a December 2 NYT story on Flynn’s plea.

McFarland asked whether SSA [redacted] could provide two emails which he and SA [redacted] had shown to her in her interviews. She did not have the emails, but they were now apparently widely held, including by the New York Times, which published, but grossly misrepresented them. The emails were one from her dated December 29, 2016 in which she discussed President Obama’s three political objectives in imposing sanctions and mentioned Flynn’s scheduled call with the Russian ambassador that evening; and an email from Flynn to her the next day, December 30, 2017, in which Flynn reported on his conversation with the ambassador. McFarland felt she was at a a disadvantage since “everyone in the world” had copies of the emails except for her.

McFarland’s fourth 302 — which the Mueller Report heavily relies on — is heavily redacted. But what’s not redacted shows McFarland remembering details about conversations she had had about sanctions that she had professed not to remember in her earlier interviews.

McFarland and Bannon met on December 29. [redacted] but they also talked about sanctions. [redacted] Bannon told McFarland the sanctions would hurt their ability to have good relations with Russia. [redacted] Bannon thought a Russian escalation would make things more difficult. McFarland thought she told him Flynn was scheduled to talk to the Russian ambassador later that night. [redacted]

McFarland stated that she may have run into Priebus and given him a short version of her conversation with Bannon about the sanctions. [redacted] She may have told Priebus that Flynn was scheduled to talk to the Russian ambassador that night, but was not sure.

[redacted]

McFarland and Flynn spoke on the telephone at around 4:00 pm on December 29.

[redactions and snip]

McFarland knew before the [sic] Flynn’s call that Flynn was going to feel out the Russian ambassador on the overall relationship, knowing that the sanctions would influence it.

There’s a heavily redacted section that nevertheless shows that McFarland provided significant details about the meeting with Trump on December 29 (including that Trump “said he had reason to doubt it was the Russians” who had hacked the DNC). Even with the redactions, it’s clear she discussed what might happen with the sanctions at that meeting. And she admitted that “someone may have mentioned Flynn’s scheduled call with Kislyak as they were ending the meeting.”

Additionally, McFarland laid out all the details of conversations with Flynn she had previously claimed not to remember, both before and after his calls with Kislyak.

[Flynn] told McFarland the Russian response was not going to be escalatory because they wanted a good relationship with the Trump administration.

[snip]

When Flynn and McFarland spoke on December 31, Flynn told McFarland he talked to the Russian ambassador again. He said something to the effect of “Well, they want a better relationship. The relationship is back on track.” Flynn said it was a good call and he thought his own call had made a difference but not the only difference. [redacted] McFarland congratulated Flynn for his work.

In short, contrary to what she claimed in her earlier interviews, McFarland proved she had memories of:

  • Discussions she had with at least Steve Bannon about sanctions before Flynn’s call with Sergey Kislyak, and possibly Reince Priebus
  • The specific times of at least some of her calls with Flynn
  • Details of the meeting at which sanctions were discussed with Trump
  • Specific details of calls between her and Flynn, both before and after his calls with Kislyak

McFarland is not the only one whose memory grew clearer after it became clear Mueller had heard at least one truthful version of what had transpired in late December 2017; the story Bannon initially told, even after Flynn’s plea, almost certainly evolved as well (his later interviews have been withheld thus far, but we know his memories about the WikiLeaks releases got clearer over time). Reince Priebus’ first interview, on October 13, 2017, has not yet been released. The tiny unredacted bits of Priebus’ Janaury 18, 2018 interview, conducted in the wake of Flynn’s plea, showed that he hedged but did admit they may have discussed Flynn’s call in advance.

The consistency with which those who were present at Mar-a-Lago on December 29, 2017 tried not to remember discussing sanctions in advance of General Flynn’s calls, much less what might have gone down with Trump, suggests this is not a matter of Flynn being a rogue liar. Rather, it suggests a concerted effort to downplay what happened and to minimize any involvement Trump had in it, one that was undercut by Flynn’s plea deal.

One story downplaying efforts to undermine sanctions is a lie; multiple stories is a cover-up

That’s why no one should credit Trump’s claims to believe that Flynn was mistreated in his prosecution. Not only has Judge Sullivan ruled that it’s not true, but the available evidence — even with proof that Bill Barr’s DOJ is abusing the FOIA response process to hide the true extent of all this — shows that multiple people with consistent memories of what happened at Mar-a-Lago on December 29, 2017 initially professed not to remember what happened that day.

That’s not Flynn being ambushed and improperly prosecuted. That’s Flynn — who up until he decided to plead guilty was part of the Joint Defense Agreement with the President and others — being the first break in an effort to cover-up what really went down.

And the public record has one more highly damning detail that shows Flynn knew from the start that this was a cover-up.

In the section of the Mueller Report incorporating details Flynn and McFarland unforgot in November and December 2017, it reveals that Flynn intentionally excluded the details about the Kislyak follow-up call about sanctions when he sent McFarland a text message reporting on the call.

The next day, December 30, 2016, Russian Foreign Minister Sergey Lavrov remarked that Russia would respond in kind to the sanctions. 1262 Putin superseded that comment two hours later, releasing a statement that Russia would not take retaliatory measures in response to the sanctions at that time. 1263 Hours later President-Elect Trump tweeted, “Great move on delay (by V. Putin).” 1264 Shortly thereafter, Flynn sent a text message to McFarland summarizing his call with Kislyak from the day before, which she emailed to Kushner, Bannon, Priebus, and other Transition Team members. 1265 The text message and email did not include sanctions as one of the topics discussed with Kislyak. 1266 Flynn told the Office that he did not document his discussion of sanctions because it could be perceived as getting in the way of the Obama Administration’s foreign policy.1267

[snip]

According to McFarland, Flynn remarked that the Russians wanted a better relationship and that the relationship was back on track. 1270 Flynn also told McFarland that he believed his phone call had made a difference. 1271 McFarland recalled congratulating Flynn in response. 1272 [my emphasis]

In her second interview, months before she unforgot that they had had a self-congratulatory conversation about Flynn’s success in undermining Obama’s efforts to punish Russian for interfering in the election, McFarland also claimed not to be concerned that Flynn hadn’t mentioned sanctions in a text he sent her after the call. “She did not recall being concerned that Flynn did not mention sanctions in this email.”

Except that it would not be a matter of concern. It would be a matter of knowing that Flynn had created a false record of what happened. And months later, she would admit that she did know that was a false record. This appears to be the text (which she forwarded as an email) that she tried to obtain from the FBI once she realized that Flynn had flipped.

None of this will prevent Trump from pardoning Flynn. But it does provide reason why Judge Reggie Walton should review the 302s of those involved in the December 2017 events even as he reviews the full Mueller Report, which almost certainly includes an explanation of why Mueller did not charge McFarland for her initial misleading comments. The public deserves to have all the evidence that, in pardoning Flynn, Trump won’t be pardoning someone he believes to have been ambushed and who as a result told a misleading story. He’ll be pardoning the one person who paid a price for covering up the Trump Transition’s efforts to undercut sanctions imposed to punish Russia for tampering in the 2016 election.

Copyright © 2018 emptywheel. All rights reserved.
Originally Posted @ https://www.emptywheel.net/author/emptywheel/