October 21, 2019 / by 

 

BREAKING! George Papadopoulos Says FBI Should Have Surveilled Him MORE Than They Did

As I noted, on Tuesday, Mike Flynn’s Fox News lawyer demanded that Mike Flynn receive the contents of two phones reportedly used by Joseph Mifusd — one dating to May 2011 and another dating to December 2014 — so she can contest the guilty plea Flynn entered into regarding conversations and letters written in 2017 that did not involve Mifsud.

Now George Papadopoulos is getting into the act, complaining that “Comey or Mueller” never went to obtain these phones from Italy.

It’s a remarkable complaint, coming as it does from Papadopoulos. After bitching for over a year that the FBI surveilled him too much (all the while repeating hoaxes and ignoring the record that shows the opposite), notably that he was picked up in what were probably conversations with targeted Israelis, Papadopoulos is effectively arguing that the FBI didn’t surveil him enough.

That’s all the more remarkable given that the government is on the record stating that one reason they couldn’t do with Mifsud what they did with other foreigners who entered the US during the Russian investigation — seize their phones — is because Papadopoulos lied to the FBI.

The defendant’s lies to the FBI in January 2017 impeded the FBI’s investigation into Russian interference in the 2016 presidential election. Most immediately, those statements substantially hindered investigators’ ability to effectively question the Professor when the FBI located him in Washington, D.C. approximately two weeks after the defendant’s January 27, 2017 interview. The defendant’s lies undermined investigators’ ability to challenge the Professor or potentially detain or arrest him while he was still in the United States. The government understands that the Professor left the United States on February 11, 2017 and he has not returned to the United States since then.

Indeed, had the FBI been able to seize Mifsud’s phones while he was in the US during a period he was in contact with Papadopoulos, they would have a better chance of obtaining the phones Mifsud actually used to communicate with Papadopoulos, which it’s not at all clear are either of these dated phones. But because Papadopoulos lied, he prevented them from establishing the probable cause that would have permitted them to get the phones.

There’s one more curious aspect of Papadopoulos’ complaint.

Another of the details the government revealed to substantiate that Papadopoulos did not cooperate in the investigation is that he hid the existence of the phone he actually used to communicate with Mifsud through three proffer sessions, on August 10, August 11, and September 19, 2017 before finally revealing it on September 20.

The defendant also did not notify the government about a cellular phone he used in London during the course of the campaign – that had on it substantial communications between the defendant and the Professor – until his fourth and final proffer session. This cell phone was not among the devices seized at the airport because it was already in the defendant’s family home in Chicago.

The detail that Papadopoulos withheld the phone he actually used with Mifsud suggests he really didn’t want the true nature of his communications with Mifsud to be revealed. It may also suggest that FBI had, by September 2017, done enough surveillance of Mifsud to know what was on whatever phones he had actually been using with Papadopoulos.

And Conspiracy George has not — as far as I’m aware — talked about the metadata showing Mifsud’s ties with someone who appeared to be at the nexus of the two Russian operations, metadata that the FBI considered an ongoing investigation in April, when the Mueller Report was redacted.

That is, there’s a decent chance the FBI obtained anything interesting from 2016 from these phones via other means, means that also remain protected.

Whatever the reason for Papadopoulos’ change in heart, I do hope he’ll inform Bill Barr that, on reconsideration, he actually thinks the FBI didn’t surveil him enough in 2017, so Barr can stop his global wild goose chase and return to DC and start doing the work of an Attorney General.


Will Fox News Ask Its Commentators to Disclose Their Mobbed Up Clients?

Yesterday, I asked Fox Media Critic Howard Kurtz if he could dedicate a show to why Fox News commentators Joe DiGenova (who recently took to the air to accuse Democrats of “regicide”) and Victoria Toensing don’t disclose their representation of Dmitry Fitash, whom Rudy Giuliani has publicly asserted has close ties to mobster Semion Mogilevich. It would also be nice if they disclosed that in recent months they were being paid by corrupt Ukrainian oligarch Firtash $250,000 a month to to complain that Hunter Biden was paid $50,000 a month by a different corrupt Ukrainian oligarch.

To be sure, I’m not arguing that there’s a problem with DiGenova and Toensing representing a mobbed up oligarch. Everyone deserves good legal representation and if Firtash wants to spend his money paying for disinformation rather than sound legal advice, that’s his choice.

Mind you, Fox News might feel differently. After all, the network aggressively backed a smear campaign during the Obama Administration to tar any DOJ appointee who had ever represented a terrorism defendant. Among the Fox personalities who, in 2010, believed that lawyers’ past representation of certain kinds of defendants suggested a current ideological affinity for the underlying crime were:

According to Sean Hannity’s logic — “logic” I’m not adopting — DiGenova and Toensing’s representation of a guy with ties to organized crime suggests they, themselves, must support organized crime (and bribery, which is the charge Firtash is trying to beat in the US).

Still, particularly given this precedent, so long as Fox News pretends to be a news organization, it would seem advisable for the network to require DiGenova and Toensing to disclose their ties to someone that the President’s own personal lawyer says has ties to the mob.

Update: Laura Rozen notes that Chris Wallace was among the first to report that Di Genova and Toensing were part of Rudy’s plot.

FOX News has learned the president’s private attorney, Rudy Giuliani, was not acting alone in trying to get dirt from Ukrainian officials on 2020 rival Joe Biden. Two high-profile Washington lawyers, Joe diGenova, who’s been a fierce critic of the Democratic investigation, and his wife Victoria Toensing, were working with Giuliani to get oppo research on Biden.

According to a top U.S. official, all three were working off the books apart from the administration. The only person in government who knows what they were doing is President Trump.


Surveillance Reform Can No Longer Ignore EO 12333

Yesterday, a bunch of civil liberties groups issued a letter calling for FISA 702 reform as part of the Section 215 reauthorization this year. I agree that the reauthorization this year should address the problems with 702 that weren’t addressed last year, though even on FISA, the letter doesn’t go far enough. DOJ IG will soon issue a report partly addressing the Carter Page FISA application, and that will provide an opportunity to push to make reforms to traditional (individual) FISA, such as making it clear that some defendants must get to review the underlying affidavit. Similarly, it doesn’t make sense reforming Section 215’s subpoena function without, at the same time, reforming the subpoena authority that DEA uses for a similar dragnet that undergoes far less oversight, particularly given that Bill Barr is the guy who first authorized that DEA dragnet in his first go-around as authoritarian Attorney General.

But it’s also the case that the surveillance community could — and arguably has an opportunity to — address EO 12333 as well.

The Executive branch has been exploiting the tension between EO 12333 (foreign surveillance that, because it is “foreign,” is conducted under the exclusive authority of Article II) and FISA (“domestic” surveillance overseen by the FISA court) since Dick Cheney launched Stellar Wind on bogus claims the collection on foreign targets in the US amounted to “foreign” surveillance. From 2004 to 2008, Congress moved parts of that under FISA. But at several points since, the government has reacted to FISA restrictions by moving their surveillance under EO 12333, most notably when it moved much of its collection of Internet metadata under EO 12333 in 2012.

Unfortunately, most of the surveillance community and reporters covering such issues have been woefully unaware of even the limited public disclosures on EO 12333 surveillance (which for a time was branded as SPCMA). That made activism around Section 215 far less effective, as few people understood that Section 215 data was and remains just a small part of a larger, duplicative dragnet, and a lot of the claims made about the need for USA Freedom Act didn’t account for precisely what role the Section 215 dragnet played in the larger whole.

As one of its last acts, the Obama Administration institutionalized EO 12333 sharing across intelligence agencies, formalizing what Dick Cheney had been aiming for all along, just before Donald Trump took over.  At least as soon as that happened, the FBI (and other agencies, including but not limited to CIA) obtained a source of content that paralleled (and like the metadata dragnet, surely is significantly duplicative with) Section 702 collection.

That means the Section 702 opinion released last week discusses querying methods that may also be applied, in the same systems, to EO 12333 data. Indeed, one aspect of the querying procedures FBI finally adopted — that queries limited “such that it cannot retrieve unminimized section 702-acquired information” — is the kind of setting that NSA used to re-run queries that returned FISA information so as to return, instead, only EO 12333 data that could be shared under different rules with less oversight. Furthermore, the regime set up under EO 12333, which already includes squishy language about queries “for the purpose of targeting” a US person (suggesting other purposes are permissible), has the same kind of internal approval process that the government wanted to adopt with 702.

If FBI is querying both 702 and EO 12333 raw content in the same queries, it means the standards laid out by James Boasberg in his opinion should apply. Notably, Boasberg wrote at some length about what constituted “reasonable” procedures to govern querying, and under a balancing analysis, found that the procedures in place did not comply with the Fourth Amendment.

Whether the balance of interests ultimately tips in favor of finding the procedures to be inconsistent with the Fourth Amendment is a close question. Reasonableness under the Fourth Amendment does not require perfection. See In Re Directives, 551 F.3d at J 015 (“the fact that there is some potential for error is not a sufficient reason to invalidate” surveillances as unreasonable under the Fourth Amendment). Nonetheless, if “the protections that are in place for individual privacy interests are … insufficient to alleviate the risks of government error and abuse, the scales will tip toward a finding of unconstitutionality.” kl at 1012. Here, there are demonstrated risks of serious error and abuse, and the Court has found the government’s procedures do not sufficiently guard against that risk, for reasons explained above in the discussion of statutory minimization requirements.

By contrast, under the EO 12333 procedures, the only reasonableness review takes place when NSA decides whether to share its SIGINT, which doesn’t include risk of error and abuse.

Reasonableness. Whether approving the request is reasonable in light of all the circumstances known at the time of the evaluation of the request, including but not limited to:

[snip]

e. (U) The likelihood that sensitive U.S. person information (USPI) will be found in the information and, if known, the amount of such information;

f. (U) The potential for substantial harm, embarrassment, inconvenience, or unfairness to U.S. persons if the USPI is improperly used or disclosed;

And that’s with the additional minimization procedures under 702 that are stronger than the dissemination rules under the EO 12333 rules.

There are limits to this. Boasberg based his Fourth Amendment review in statutory considerations, statute that doesn’t yet exist with 12333. He did not determine that the act of querying, by itself, warranted Fourth Amendment protection (though the amici pushed him to do so).

But that shouldn’t stop Congress from requiring that FBI adhere to the same practices of querying with EO 12333 collected data as it does with Section 702 collected data, which would in turn limit the value, to FBI, of engaging in surveillance arbitrage by doing things under EO 12333 that it couldn’t do under 702.


Mick Mulvaney Confesses OMB and DOD Are Withholding Evidence of a Crime from Congress

Amid the tsunami of alarming news Mick Mulvaney made at today’s press conference (Trump is holding the G-7 at Doral next year, he likely will invite Putin, Trump did engage in a quid pro quo with Volodymyr Zelensky on his July 25 call), one of the more important admissions got missed.

Mick Mulvaney admitted that the White House would have been breaking the law by withholding Ukrainian security funds because it did not have a “really really good reason not to do it.”

By the way, there was a report that we were worried that the money, that if we didn’t pay out the money it would be illegal. It would be unlawful. That is one of those things that has a little shred of truth in it, that makes it look a lot worse than it really is. We were concerned about — over at OMB, about an impoundment. And I know I’ve just put half you folks to bed, but there’s a, the Budget Control Act, Impound — the Budget Control Impoundment Act of 1974 says that if Congress appropriates money you have to spend it. At least, that’s how it’s interpreted by some folks. And we knew that that money either had to go out the door by the end of September, or we had to have a really really good reason not to do it. And that was the legality of the issue.

He’s referring, presumably, to a WSJ report that OMB — the agency Mulvaney is still officially in charge of — put a political appointee in charge of withholding duly appropriated security funds for Ukraine so that President Trump could extort concessions from Ukraine.

The White House gave a politically appointed official the authority to keep aid to Ukraine on hold after career budget staff members questioned the legality of delaying the funds, according to people familiar with the matter, a shift that House Democrats are probing in their impeachment inquiry.

President Trump’s order to freeze nearly $400 million in aid to Ukraine in mid-July is at the center of House Democratic efforts to investigate allegations that Mr. Trump used U.S. foreign policy powers to benefit himself politically.

[snip]

The president has the authority to delay the release of money in certain instances, according to the Congressional Research Service, a nonpartisan research agency, including if there has been an unexpected change in circumstances for the program. But without being provided explanation or justification about why the administration was delaying the aid, some career officials at the Office of Management and Budget became worried they didn’t have the legal authority to hold up the funds, according to the people familiar.

While career civil servants put an initial hold on the aid, Michael Duffey, associate director of national security programs in OMB, was given the authority for continuing to keep the aid on hold after the career staff began raising their concerns to political officials at OMB, according to the people familiar with the matter. Mr. Duffey also began overseeing the process for approving and releasing funds, called apportionment, for other foreign aid and defense accounts, according to a public document indicating the change.

As noted by Mulvaney today, a law passed in the wake of Richard Nixon playing games with appropriations requires that if you withhold duly appropriated funds, you explain to Congress why you’re doing so, a decision that Congress then gets to veto simply by refusing to approve of the decision. The law makes it clear that the President can’t simply ignore the will of Congress on appropriations.

And yet, that’s what Trump did for the entirety of the summer.

Worse, in his press conference today, Mulvaney admitted that Trump didn’t have a “really really good reason not to” release the funds. Rather, he had a really bad reason: he was trying to extort a quid pro quo.

And that’s why the decision — reported in ho hum fashion on Tuesday as if it were just another case of the Administration refusing Congressional subpoenas — that OMB and DOD would not respond to subpoenas is actually really important.

The subpoena to those agencies lays out some of the evidence that Trump withheld the funds after DOD cleared them. Then it lays out the evidence that Trump was defying bipartisan Congressional will in doing so.

As you are aware, the Impoundment Control Act of 1974 authorizes the President to withhold the obligation of funds only “(1) to provide for contingencies; (2) to achieve savings made possible by or through changes in requirements or greater efficiency of operations; or (3) as specifically provided by law.” The President is required to submit a special message to Congress with information about the proposed deferral of funds.

On August 30, 2019, Chairman Adam Smith and Ranking Member Mac Thornberry of the House Committee on Armed Services wrote a letter to Mr. Mulvaney requesting information why military assistance to Ukraine was being withheld and when it would be released. They wrote: “This funding is critical to the accomplishment of U.S. national security objectives in Europe.”

On September 3, 2019, a bipartisan group of Senators–including Rob Portman, Jeanne Shaheen, Dick Durbin, Richard Blumenthal, and Ron Johnson–wore a letter requesting that OMB release the military assistance to Ukraine that the Trump Administration was withholding:

The funds designated for the Ukraine Security Assistance Initiative are vital to the viability of the Ukrainian military. It has helped Ukraine develop the independent military capabilities and skills necessary to fend off the Kremlin’s continued onslaughts within its territory. In fact, Ukraine continues to fight daily on its eastern border against Russia-backed separatists in the provinces of Donetsk and Luhansk, and over 10,000 Ukrainian soldiers and civilians have lost their lives in this war. U.S.-funded security assistance has already helped turn the tide in this conflict, and it is necessary to ensure the protection of the sovereign territory of this young country, going forward.

On September 5, 2019, Chairman Eliot L. Engel and Ranking Member Michael McCaul of the House Committee on Foreign Affairs wrote a letter to OMB urging the Trump Administration to lift its hold on security funds to support Ukraine, writing: “These funds, which were appropriated by Congress as Foreign Military Financing and as part of the Ukraine Security Assistance Initiative and signed into law by the President, are essential to advancing U.S. national security interests.”

On September 9, 2019, the Committees on Intelligence, Foreign Affairs, and Oversight wrote to the White House requesting documents related to “the actual or potential suspension of security assistance to Ukraine.” The White House never responded to this request. However, two days later, on September 11, 2019, the White House released its hold on the military assistance to Ukraine.

On September 24, 2019, Senate Majority Leader Mitch McConnell stated that, although he was “very actively involved in advocating the aid,” he “was not given an explanation” about why it was being withheld, even though he talked to the Secretary of Defense and the Secretary of State. He stated: “I have no idea what precipitated the delay.”

The enclosed subpoena demands documents that are necessary for the Committees to examine the sequences of these events and the reasons behind the White House’s decision to withhold critical military assistance to Ukraine that was appropriated by Congress to counter Russian aggression.

That’s the subpoena that Mulvaney’s agency and DOD (the latter, after initially saying it would cooperate) are defying. It’s a subpoena that goes to the zenith of Congress’ authority, whether it is issued within or outside of an impeachment inquiry. But within an impeachment inquiry, it illustrates that on one issue of fact at the core of the investigation, there is bipartisan agreement that the White House was in the wrong.

And today, Mulvaney admitted that the White House did not have a very very good reason to withhold those funds, even while confirming that Trump was withholding the funds, in part, to extort a quid pro quo.

Even if the White House had a very very good reason, the law obliges the White House to explain to Congress why it blew off Congress’ power of the purse. The White House didn’t do it in real time — not even to Mitch McConnell. And the White House is refusing to do it now.

Update: Jack Goldsmith did a review of this issue in Lawfare today, but before the Mulvaney comments.

Update: Lisa Murkowski complained about this issue to Tim Mak today.


Gordon Sondland’s Statement Protects, Does Not Break with, Trump

Gordon Sondland is behind closed doors right now, trying to talk his way out of implication in crimes (he is represented, it should be noted, by the same lawyer who helped Karl Rove talk his way out of crimes in Valerie Plame’s outing, Robert Luskin).

But if Congressional staffers are doing their job, he’s going to have a hard job to spin what he did as anything but criminal. That’s true, in part, because his statement is full of obvious contradictions and evasions. But contrary to what many in the press (fed in advance with deceptive claims about his testimony) have claimed, the statement does not break with Trump, it protects him.

Who’s the boss?

Sondland’s first inconsistency pertains to one of the most important issues: why he was in charge of Ukrainian policy when Ukraine isn’t even in the EU. His general explanation for it is bullshit — and also should raise questions about what he has been doing in Georgia, Venezuela, and Iran. He studiously avoids explaining who ordered him to focus on Ukraine (as other testimony has made clear, the answer is because Trump ordered him to).

From my very first days as Ambassador, Ukraine has been a part of my broader work pursuing U.S. national interests. Ukraine’s political and economic development are critical to the long-lasting stability of Europe. Moreover, the conflict in Eastern Ukraine and Crimea, which began nearly five years ago, continues as one of the most significant security crises for Europe and the United States. As the U.S. Ambassador to the EU, I have always viewed my Ukraine work as central to advancing U.S.-EU foreign policy. Indeed, for decades, under both Republican and Democrat Administrations, the United States has viewed Ukraine with strategic importance, in part to counter Russian aggression in Europe and to support Ukraine energy independence. My involvement in issues concerning Ukraine, while a small part of my overall portfolio, was nevertheless central to my ambassadorial responsibilities. In this sense, Ukraine is similar to other non-EU countries, such as Venezuela, Iran, and Georgia, with respect to which my Mission and I coordinate closely with our EU partners to promote policies that reflect our common values and interests. I always endeavoured [sic] to keep my State Department and National Security Council colleagues informed of my actions and to seek their input.

But the logistics of it are more interesting, particularly as it pertains to coordinating with Rudy Giuliani.

At times (at both the very beginning, after his description of the July 10 meeting, and again to explain away the July 10 meeting), he emphasizes that Mike Pompeo has approved of all this.

I understand that all my actions involving Ukraine had the blessing of Secretary Pompeo as my work was consistent with long-standing U.S. foreign policy objectives. Indeed, very recently, Secretary Pompeo sent me a congratulatory note that I was doing great work, and he encouraged me to keep banging away.

[snip]

We had regular communications with the NSC about Ukraine, both before and after the July meeting; and neither Ambassador Bolton, Dr. Hill, nor anyone else on the NSC staff ever expressed any concerns to me about our efforts, any complaints about coordination between State and the NSC, or, most importantly, any concerns that we were acting improperly.

Furthermore, my boss Secretary Pompeo was very supportive of our Ukraine strategy.

[snip]

While I have not seen Dr. Hill’s testimony, I am surprised and disappointed by the media reports of her critical comments. To put it clearly: Neither she nor Ambassador Bolton shared any critical comments with me, even after our July 10, 2019 White House meeting. And so, I have to view her testimony — if the media reports are accurate — as the product of hindsight and in the context of the widely known tensions between the NSC, on the one hand, and the State Department, on the other hand, which had ultimate responsibility for executing U.S. policy overseas. Again, I took my direction from Secretary Pompeo and have had his consistent support in dealing with our nation’s most sensitive secrets to this very day.

Again, the public record makes it clear he was put in this role by Trump, not Pompeo. And while I’m sure Pompeo knew of what he was doing (his suggestion that Pompeo was “supportive of it” seems most clearly on point), he was reporting directly, via a third channel of authority, directly to Trump.

That said, his suggestion that Pompeo — a former CIA Director but now in charge of diplomacy, which is not supposed to be the realm of utmost secrecy — trusts him “with our nation’s most sensitive secrets,” suggests there’s something else going on here, something about which he’s reassuring Pompeo he’ll remain silent.

The claim that he took his direction from Pompeo, bolded above, is contradicted on the matter of Rudy Giuliani’s involvement.  His description of why Rudy was involved varies slightly over time. Initially, he says he coordinated with Rudy because the Three Amigos, collectively, decided they had to involve Rudy to achieve other diplomatic objectives.

Secretary Perry, Ambassador Volker, and I were disappointed by our May 23, 2019 White House debriefing. We strongly believed that a call and White House meeting between Presidents Trump and Zelensky was important and that these should be scheduled promptly and without any pre-conditions. We were also disappointed by the President’s direction that we involve Mr. Giuliani. Our view was that the men and women of the State Department, not the President’s personal lawyer, should take responsibility for all aspects of U.S. foreign policy towards Ukraine. However, based on the President’s direction, we were faced with a choice: We could abandon the goal of a White House meeting for President Zelensky, which we all believed was crucial to strengthening U.S.-Ukrainian ties and furthering long-held U.S. foreign policy goals in the region; or we could do as President Trump directed and talk to Mr. Giuliani to address the President’s concerns.

We chose the latter path, which seemed to all of us – Secretary Perry, Ambassador Volker, and myself – to be the better alternative.

Later, he claims that “his understanding” is that Trump ordered Rudy’s involvement, as if he didn’t get that order directly.

Mr. Giuliani does not work for me or my Mission and I do not know what official or unofficial role, if any, he has with the State Department. To my knowledge, he is one of the President’s personal lawyers. However, my understanding was that the President directed Mr. Giuliani’s participation, that Mr. Giuliani was expressing the concerns of the President, and that Mr. Giuliani had already spoken with Secretary Perry and Ambassador Volker.

Still later, he strengthens that, suggesting he was “taking direction from the President” directly.

As I stated earlier, I understood from President Trump, at the May 23, 2019 White House debriefing, that he wanted the Inaugural Delegation to talk with Mr. Giuliani concerning our efforts to arrange a White House meeting for President Zelensky. Taking direction from the President, as I must, I spoke with Mr. Giuliani for that limited purpose.

If he was taking orders from Trump on involving Rudy (which is almost certainly the case), then the claims of Pompeo’s role are just cover.

Sondland is obfuscating on both these issues: why the EU Ambassador was put in charge of Ukraine policy, and why Rudy was allowed to dictate Ukraine policy. While the press thinks Sondland has taken a big break from Trump, he has not on the key issue: that Sondland was taking orders from Trump and doing precisely what the President ordered him to.

The royal we

There are really telling passages in this statement where Sondland slips into the first person plural. Generally, he does so when describing something that he, Rick Perry, and Kurt Volker jointly believe. As noted, he does so is to explain why he and Rick Perry and Kurt Volker coordinated with Rudy.

It was apparent to all of us that the key to changing the President’s mind on Ukraine was Mr. Giuliani. It is my understanding that Energy Secretary Perry and Special Envoy Volker took the lead on reaching out to Mr. Giuliani, as the President had directed.

Indeed, Secretary Perry, Ambassador Volker, and I were disappointed by our May 23, 2019 White House debriefing. We strongly believed that a call and White House meeting between Presidents Trump and Zelensky was important and that these should be scheduled promptly and without any pre-conditions. We were also disappointed by the President’s direction that we involve Mr. Giuliani. Our view was that the men and women of the State Department, not the President’s personal lawyer, should take responsibility for all aspects of U.S. foreign policy towards Ukraine. However, based on the President’s direction, we were faced with a choice: We could abandon the goal of a White House meeting for President Zelensky, which we all believed was crucial to strengthening U.S.-Ukrainian ties and furthering long-held U.S. foreign policy goals in the region; or we could do as President Trump directed and talk to Mr. Giuliani to address the President’s concerns.

We chose the latter path, which seemed to all of us – Secretary Perry, Ambassador Volker, and myself – to be the better alternative.

Another place he does so is to explain why the Three Amigos moved forward on scheduling the July 25 call when John Bolton and Fiona Hill were opposed (he’s utterly silent about the second half of his July 10 meeting with the Ukrainians).

We three favored promptly scheduling a call and meeting between Presidents Trump and Zelensky; the NSC did not.

He also uses it to describe his meeting with Zelensky on July 26, after Zelensky had delivered on the quid pro quo, where he set up the White House meeting.

During this July 26, 2019 meeting in Kiev, we were able to promote further engagement, including discussions about a future Zelensky visit to the White House.

This is Gordon Sondland’s testimony, remember, not the Three Amigos’ testimony. But in these key passages, he claims — without explaining how he can do so — to speak for all three. He doesn’t explain if they had conversations (or WhatsApp threads) agreeing on all these issues, he just suggests he can speak for all three.

And his denials that he shared this statement with State or White House would not extend to these other people he invokes as “we.”

Perhaps a more interesting invocation of the third person plural comes where he claims that Bill Taylor, along with him and Volker, had no concerns about the push to get to Ukraine to publicly commit to an investigation that would deliver part of a quid pro quo.

First, I knew that a public embrace of anti-corruption reforms by Ukraine was one of the pre-conditions for securing a White House meeting with President Zelensky. My view was, and has always been, that such Western reforms are consistent with U.S. support for rule of law in Ukraine going back decades, under both Republican and Democrat administrations. Nothing about that request raised any red flags for me, Ambassador Volker, or Ambassador Taylor.

Taylor is still with State, so if Sondland is being honest when he says he hasn’t shared his statement, then Taylor has not bought off on this claim. I look forward to seeing whether he backs it when he testifies.

Schrodinger’s quid pro quo

The press has been most excited about the fact that Sondland claims Trump may have had a quid pro quo, but he was ignorant of it.

But in fact, Sondland does not deny a quid pro quo. In fact, his carefully written statement admitting he knew the quid pro quo involved Burisma (which he claims he had no idea meant Biden) admits that the 2016 ask was part of it.

Mr. Giuliani emphasized that the President wanted a public statement from President Zelensky committing Ukraine to look into anticorruption issues. Mr. Giuliani specifically mentioned the 2016 election (including the DNC server) and Burisma as two anticorruption investigatory topics of importance for the President.

And his denials about knowing that the quid pro quo involved the 2020 elections are laughable. His first such denial claims he only learned later about the specific nature of (part of) Rudy’s quid pro quo, but he doesn’t describe when he learned of it, either there or later.

I did not understand, until much later, that Mr. Giuliani’s agenda might have also included an effort to prompt the Ukrainians to investigate Vice President Biden or his son or to involve Ukrainians, directly or indirectly, in the President’s 2020 reelection campaign.

Later, he denies recalling having any conversations about these aspects of the quid pro quo with 1) Rudy, 2) State, and 3) any “White House official” (does that description include the President?).

Third, given many inaccurate press reports, let me be clear about the following: I do not recall that Mr. Giuliani discussed Former Vice President Biden or his son Hunter Biden with me. Like many of you, I read the transcript of the Trump-Zelensky call for the first time when it was released publicly by the White House on September 25, 2019.

[snip]

Again, I recall no discussions with any State Department or White House official about Former Vice President Biden or his son, nor do I recall taking part in any effort to encourage an investigation into the Bidens.

But he doesn’t deny talking about the nature of the quid pro quo with Volker (who’s not technically a State Department employee), Rick Perry (ditto), or the Ukrainian officials that Fiona Hill saw him discussing Burisma with on July 10.

When he denies Trump’s extortion of Ukraine, he denies only that the quid pro quo involved the 2020 election (and not Naftogaz considerations or claims about what happened in 2016 or, perhaps even more tellingly, Russian help in 2020).

Sixth, to the best of my recollection, I do not recall any discussions with the White House on withholding U.S. security assistance from Ukraine in return for assistance with the President’s 2020 re-election campaign.

In denying Bill Taylor’s concern about a quid pro quo, he dismisses it as a concern about the appearance of a quid pro quo, rather than the actuality of one.

On September 9, 2019, Acting Charge de Affairs/Ambassador William Taylor raised concerns about the possibility that Ukrainians could perceive a linkage between U.S. security assistance and the President’s 2020 reelection campaign.

Taking the issue seriously, and given the many versions of speculation that had been circulating about the security aid, I called President Trump directly. I asked the President: “What do you want from Ukraine?” The President responded, “Nothing. There is no quid pro quo.” The President repeated: “no quid pro quo” multiple times. This was a very short call. And I recall the President was in a bad mood.

Sondland here credits Trump’s statements, as if any Trump statement ever had any veracity, as true, even though they came at a time when the White House already knew about the whistleblower complaint, which makes what would already be unreliable outright laughable, if indeed Trump actually said that at all.

But the bigger point is this: Sondland doesn’t deny a quid pro quo. Just that he knew it was the quid pro quo that the House is currently most closely focused on early on in the process.

Gaps in the timeline

Given the way he is protecting Trump in all this, there are notable key gaps in his timeline.

Sondland doesn’t answer two obvious questions: why the Ambassador to the EU was part of the delegation to Volodymyr Zelensky’s inauguration, and why the inauguration delegation flew back to DC, almost immediately, to brief the President on it.

On May 20, 2019, given the significance of this election, I attended the inauguration of President Zelensky as part of the U.S. delegation led by U.S. Energy Secretary Rick Perry, along with Senator Ron Johnson, Special Envoy Volker, and Alex Vindman from the NSC. During this visit, we developed positive views of the new Ukraine President and his desire to promote a stronger relationship between Kiev and Washington, to make reforms necessary to attract Western economic investment, and to address Ukraine’s well-known and longstanding corruption issues.

On May 23, 2019, three days after the Zelensky inauguration, we in the U.S. delegation debriefed President Trump and key aides at the White House. We emphasized the strategic importance of Ukraine and the strengthening relationship with President Zelensky, a reformer who received a strong mandate from the Ukrainian people to fight corruption and pursue greater economic prosperity. We asked the White House to arrange a working phone call from President Trump and a working Oval Office visit. However, President Trump was skeptical that Ukraine was serious about reforms and anti-corruption, and he directed those of us present at the meeting to talk to Mr. Giuliani, his personal attorney, about his concerns.

One reason those players would have flown to DC to debrief Trump is because of the scheme to take over Naftogaz led by Perry, something Sondland doesn’t mention at all.

He also plays games with his antecedent in trying to claim that a June 4 meeting involving Zelensky, Rick Perry, and Ulrich Brechbuhl (where they discussed natural gas, among other things) had been long planned.

Following my return to Brussels and continuing my focus on stronger U.S.-EU ties, my Mission hosted a U.S. Independence Day event on June 4, 2019. Despite press reports, this event was planned months in advance and involved approximately 700 guests from government, the diplomatic corps, the media, business, and civil society. The night featured remarks by the Ambassador and High Representative of the European Union for Foreign Affairs. Following the main event, we hosted a smaller, separate dinner for about 30 people. President Zelensky and several other leaders of EU and non-EU member states attended the dinner, along with Secretary Perry, U.S. State Department Counselor Ulrich Brechbuhl on behalf of Secretary Pompeo, and numerous other key U.S. and EU officials. Though planned long in advance with the focus on improving transatlantic relations, we also viewed this event as an opportunity to present President Zelensky to various EU and U.S. officials and to build upon the enhanced government ties.

He uses “this event” to refer both to the larger 700 person event and the smaller 30 person meeting, effectively making a claim — that the larger event had been long-planned — that he tries to apply to the smaller one. He also is curiously silent about Jared Kushner’s involvement.

In addition to being silent about the second part of his July 10 meeting — the part that got John Bolton worried about what drug deals he was doing — Sondland is also silent about his pre-call briefing to Trump on July 25, after Bolton’s prep.

I was not on that July 25, 2019 call and I did not see a transcript of that call until September 25, 2019, when the White House publicly released it. None of the brief and general call summaries I received contained any mention of Burisma or former Vice President Biden, nor even suggested that President Trump had made any kind of request of President Zelensky.

And his denials about the post-call summaries mentioning Burisma or Biden do not amount to a denial that his prep did. Nor does that denial address his July 26 conversation with Trump (which he addresses in a different section), which he describes as nonsubstantive without addressing whether Trump mentioned the quid pro quo.

I do recall a brief discussion with President Trump before my visit to Kiev. That call was very short, nonsubstantive, and did not encompass any of the substance of the July 25, 2019 White House call with President Zelensky.

In other words, even where denies talking about the quid pro quo, the denials don’t amount to denials in the most important conversations.

Sondland’s silence about WhatsApp

Finally, Sondland is playing games regarding what communications he has had. With the exception of his July 26 and September 9 calls, doesn’t describe what direct communications with Trump he has had.

Just as key, he is mostly silent about his conduct of diplomacy on WhatsApp, precisely the crime (doing official business on private accounts) Trump accused Hillary of to get elected (though his lawyers wrote a letter claiming that they’re helpless in the face of State’s refusal to share his comms). That’s all the more telling given the structure of Sondland’s denials of extensive comms with Rudy. His statement deals with three different kind of comms. He focuses on in-person meetings and phone calls.

To the best of my recollection, I met Mr. Giuliani in person only once at a reception when I briefly shook his hand in 2016. This was before I became Ambassador to the EU. In contrast, during my time as Ambassador, I do not recall having ever met with Mr. Giuliani in person, and I only spoke with him a few times.

[snip]

My best recollection is that I spoke with Mr. Giuliani for the first time in early August 2019, after the congratulatory phone call from President Trump on July 25, 2019 and after the bilateral meeting with President Zelensky on July 26, 2019 in Kiev. My recollection is that Mr. Giuliani and I actually spoke no more than two or three times by phone, for about a few minutes each time.

[snip]

As I stated earlier, I understood from President Trump, at the May 23, 2019 White House debriefing, that he wanted the Inaugural Delegation to talk with Mr. Giuliani concerning our efforts to arrange a White House meeting for President Zelensky. Taking direction from the President, as I must, I spoke with Mr. Giuliani for that limited purpose. In these short conversations, Mr. Giuliani emphasized that the President wanted a public statement from President Zelensky committing Ukraine to look into anticorruption issues.

[snip]

Ten weeks after the President on May 23, 2019 directed the Inaugural Delegation to talk with Mr. Giuliani, I had my first phone conversation with him in early August 2019. I listened to Mr. Giuliani’s concerns

But he acknowledges that Volker introduced him to Rudy “electronically.”

Ambassador Volker introduced me to Mr. Giuliani electronically.

Nowhere in his statement does he explain what form of electronic communication this introduction took place over, and nowhere does he deny having WhatsApp (or any other kind of texting) communications with Rudy.

That’s all the more curious given that he claims — ridiculously — that his statements to Bill Taylor to avoid talking about a quid pro quo on WhatsApp were not an attempt to avoid leaving a record.

Fifth, certain media outlets have misinterpreted my text messages where I say “stop texting” or “call me.” Any implication that I was trying to avoid making a record of our conversation is completely false. In my view, diplomacy is best handled through back-and-forth conversation. The complexity of international relations cannot be adequately expressed in cryptic text messages. I simply prefer to talk rather than to text. I do this all the time with family, friends, and former business associates. That is how I most effectively get things done. My text message comments were an invitation to talk more, not to conceal the substance of our communications.

Immediately after saying those WhatsApp texts no not really record the truth, he points to some emails that, he says, show that he truthfully did not want a quid pro quo.

I recall that, in late July 2019, Ambassadors Volker and Taylor and I exchanged emails in which we all agreed that President Zelensky should have no involvement in 2020 U.S. Presidential election politics.

Remember: State is withholding all of Sondland’s electronic comms from the impeachment inquiry (even assuming he turned them all over to State). So his games with phone calls and texts should be assumed to be just that, claims made from the temporary security of believing the comms to check his claims will never be turned over.

Which is to say that Sondland says quite a bit in this statement. But the most important things are his silences.


The Frothy Right Gets More Excited about an Eight Year Old Phone than Contemporaneous Metadata

As is her wont, Mike Flynn lawyer Sidney Powell engaged in another little bit of theater yesterday.

She demanded that prosecutors turn over two BlackBerry phones, reportedly used by Joseph Mifsud, that “has only recently come into [the government’s] possession,” (which presumably means the Attorney General fed her these details after he returned from Italy). Powell demanded the phones as Brady evidence, even though she didn’t make any effort to claim the phones had anything to do with the crimes her client pled guilty to, crimes he committed in 2017.

Rather, she claims these phones show something that went down in 2014, presumably relating to his termination from DIA.

This information is material, exculpatory, and relevant to the defense of Mr. Flynn, and specifically to the “OCONUS LURES” and agents that western intelligence tasked against him likely as early as 2014 to arrange—unbeknownst to him—“connections” with certain Russians that they would then use against him in their false claims.

She helpfully provides the SIM and IMEI data for the phones, which would enable skilled InfoSec experts with a tolerance for working in gray areas of the law to pull up any metadata still available.

But she also describes that these phones are a 9900 Bold — a phone that dates to May 2011 — and a Classic SQC100-1 that dates to December 2014. In other words, these are old phones, ancient in terms of modern smart phones. They date to before the only known alleged interaction between Mifsud and Flynn, at the RT dinner where he got paid to sit with Vladimir Putin. And while it’s possible they have comms involving George Papadopoulos, it is virtually certain they have nothing pertaining to the lies Mike Flynn told in 2017.

Which means it is virtually certain they contain no Brady evidence pertaining to this case.

But the filing worked as, I’m sure, she (and the Attorney General?) planned, to work the conspiracist right into a frenzy based on a claim that has no basis in the law.

In addition to being insufficiently curious about Mifsud’s presence at that RT gala, the frothy right still have never shown any awareness of this passage, which shows that Mifsud was in touch with someone who seems to have had ties to both the IRA part of the 2016 Russian operation and the GRU side.

Even if Mifsud has had ties to Western intelligence in 2011, it doesn’t say anything about whether he had closer ties to Russia in 2016, when it matters (even for the Papadopoulos story, much less the Flynn one). That’s what spies do. They recruit people with access to people they want information about.

In short, Sidney Powell and Bill Barr have gotten the frothy right more worked up about an 8 year old phone than they have ever been about metadata contemporaneous to Russia’s efforts to sway the 2016 elections.

Update: A pro-conspiracy Italian asserts that these are Mifsud’s British phones, not his Italian ones, which would show his network in Italy. Of course, neither are his Russian ones, if he has separate phone for each country he frequents, and those would be the ones of interest, allegedly, to Powell.


On the Potential Viability of Foreign Agent Charges for Rudy Giuliani

Since the NYT revealed that SDNY is investigating Rudy Giuliani for what they call “lobbying” laws,

Mr. Lutsenko initially asked Mr. Giuliani to represent him, according to the former mayor, who said he declined because it would have posed a conflict with his work for the president. Instead, Mr. Giuliani said, he interviewed Mr. Lutsenko for hours, then had one of his employees — a “professional investigator who works for my company” — write memos detailing the Ukrainian prosecutors’ claims about Ms. Yovanovitch, Mr. Biden and others.

Mr. Giuliani said he provided those memos to Secretary of State Mike Pompeo this year and was told that the State Department passed the memos to the F.B.I. He did not say who told him.

Mr. Giuliani said he also gave the memos to the columnist, John Solomon, who worked at the time for The Hill newspaper and published articles and videos critical of Ms. Yovanovitch, the Bidens and other Trump targets. It was unclear to what degree Mr. Giuliani’s memos served as fodder for Mr. Solomon, who independently interviewed Mr. Lutsenko and other sources.

Mr. Solomon did not immediately respond to a request for comment.

The lobbying disclosure law contains an exemption for legal work, and Mr. Giuliani said his efforts to unearth information and push both for investigations in Ukraine and for news coverage of his findings originated with his defense of Mr. Trump in the special counsel’s investigation.

He acknowledged that his work morphed into a more general dragnet for dirt on Mr. Trump’s targets but said that it was difficult to separate those lines of inquiry from his original mission of discrediting the origins of the special counsel’s investigation.

Mr. Giuliani said Mr. Lutsenko never specifically asked him to try to force Ms. Yovanovitch’s recall, saying he concluded himself that Mr. Lutsenko probably wanted her fired because he had complained that she was stifling his investigations.

“He didn’t say to me, ‘I came here to get Yovanovitch fired.’ He came here because he said he had been trying to transmit this information to your government for the past year, and had been unable to do it,” Mr. Giuliani said of his meeting in New York with Mr. Lutsenko. “I transmitted the information to the right people.”

And since the WSJ reported that Pete Sessions — named as Congressman 1 in the Lev Parnas/Igor Fruman indictment — was cooperating with a grand jury subpoena targeting Rudy,

A grand jury has issued a subpoena related to Manhattan federal prosecutors’ investigation into Rudy Giuliani, seeking documents from former Rep. Pete Sessions about his dealings with President Trump’s personal lawyer and associates, according to people familiar with the matter.

The subpoena seeks documents related to Mr. Giuliani’s business dealings with Ukraine and his involvement in efforts to oust the U.S. ambassador in Kyiv, as well as any interactions between Mr. Sessions, Mr. Giuliani and four men who were indicted last week on campaign-finance and conspiracy accounts, the people said.

Mr. Sessions’ knowledge of Mr. Giuliani’s dealings is a primary focus of the subpoena, the people said.

There has been a closer review of whether it would be possible to indict the President’s personal lawyer under foreign agent laws, with broad consensus that what Rudy is doing is actually covered by FARA — and not just his work for Ukraine, but also (among other places) for Turkey.

But there have been a number of claims that, I think, have been too pat about how easy or hard this is going to be.

Greg Craig, Tony Podesta, Vin Weber, and Bijan Kian are not apt precedents

First, a number of people have looked at how SDNY considered — but did not charge — Greg Craig, Tony Podesta, and Vin Weber under FARA, suggesting the same considerations would hold true with Rudy. Others have looked at Greg Craig (who was prosecuted but acquitted in DC for FARA after SDNY decided not to charge it) and Bijan Kian (who was convicted but then had his conviction thrown out by Judge Anthony Trenga based on the legal theory DOJ used) to suggest these cases are too difficult to charge to get Rudy.

It is absolutely the case that when powerful men with skilled lawyers have been pursued under FARA in recent years, DOJ has succeeded not in trial, but instead has gotten either plea deals or failed at trial (and that may have been one of the facts behind Mueller’s decision to strike a plea deal with Paul Manafort). That is sound evidence that SDNY is no doubt aware of.

But several things distinguish Rudy.

Most notably, all of those earlier cases came before DOJ’s newfound commitment to prosecuting FARA, with Mike Flynn prosecutor Brandon Van Grack taking over where a woman named Heather Hunt had been in charge before. At a minimum, that means a process that originally took place with Craig, Podesta, Weber, and Kian under an assumption that FARA would be treated solely as a registration issue may now be taking place under an assumption that violations of FARA — presumably to include both a failure to register and (what most charges have been so far) false statements under registration — can be prosecuted. That assumption would dramatically change the attention with which DOJ would document their communications, so prosecutors would not now be stuck going to trial (as Craig’s prosecutors were) without having DOJ’s documentation of a key meeting.

Notably, the same thing that triggered the FARA prosecution of Mike Flynn — concerns raised by Congress — happened last year when seven Democratic Senators wrote National Security Division head John Demers asking for a review. So there may well be documentation of Rudy’s claims about whether he does or does not need to register that SDNY is building a prosecution around.

Plus, one thing clearly distinguishes Rudy from all these other men. Rudy is not taking this investigation seriously, and does not have a lawyer reviewing his exposure. From reports, he may not have the ready cash to pay the likes of Rob Kelner (Flynn’s original, very competent, lawyer) or Robert Trout (Kian’s excellent lawyer). So he may be doing things now (not least, running his mouth on TV and making public statements about who he works for and how it gets paid) that put him at greater exposure.

Rudy G’s efforts to implicate State and DOJ (and the President) in his work

That said, another thing distinguishes Rudy from these past cases. Since the whistleblower complaint got made public, he has spent most of his time insisting that everything he did, he did with the awareness and involvement of — at least — the State Department. And in Trump’s July 25 call to Volodymyr Zelensky, he invoked Bill Barr’s name right alongside his nominal defense attorney.

Both foreign agent statutes (FARA — the one being discussed for Rudy, and 18 USC 951 — another one, with more flexibility, that Kian was charged under) require registration with the Attorney General. And while telling foreigners you’re negotiating with that the Attorney General will be by soon to pick up the disinformation demanded does not fulfill the requirements for registry (in part, the point of registering is to provide a paper trail so the public can track who is paying for what), it does change things that Rudy is suggesting that his work has the imprimatur of official policy to it.

That said, the assumption that implicating powerful government figures will keep you safe is a dangerous proposition. If the easiest way to end the Ukraine inquiry is to blame Rudy for it all (and if that’s still possible after several weeks of damning testimony), that may well come to pass.

And if Bill Barr needs to greenlight a FARA prosecution of Rudy as a way to minimize the damage to the Administration, and to himself, he may well do that (yet another reason why he should have recused long ago).

That’s all the more true given that most of Trump’s aides seem to recognize how damaging Rudy is for Trump’s exposure. If Trump won’t separate himself from Rudy, his lackeys might one day decide, then separate Rudy from Trump by prosecuting him, the same way they separated Michael Cohen from Trump.

That said, with Trump, loyalty is always transactional. And if he believes Rudy has dirt that can bring him down — and given the likelihood some of what Rudy is doing is the continuation of what Paul Manafort had been doing since August 2, 2016, that may be true — then Trump will defend Rudy’s work even if it means claiming everything he did operated under Article II authority.

The additional factor: ConFraudUs

The discussions about Rudy’s exposure under FARA, however, seem not to have considered another factor: that Lev Parnas and Igor Fruman have already been charged with conspiracy in conjunction with actions Rudy had a key role in. The Ukrainian grifter indictment charges them with two counts of Conspiracy to Defraud the US for hiding what money was behind their influence campaign on Ukraine (count 1) and Nevada marijuana (count 4), as well as False Statements to the FEC (count 2) and falsification of records (count 3) tied to the Ukraine influence operation. Counts 1-3 all pertain to the Ukrainian grifters laundering of campaign funds through Global Energy Producers, a front that (SDNY alleges) they falsely claimed was “a real business enterprise funded with substantial bona fide capital investment,” the major purpose of which “is energy trading, not political activity.” Those funds went, among other places, to the Trump related Super PAC America First Action and to Congressman Sessions.

Rudy has equivocated about his relationship to the Ukrainian grifters (and claims it goes through Fraud Guarantee, not GEP). But John Dowd, writing as the grifters’ lawyer, already stated for the record that he does have ties and those ties relate to his representation of the President. That is, the grifters are working for him, even while he works for them.

That’s important because Sessions’ statements have denied any official action in response to meetings with the grifters, but he also had meetings with Rudy in the time period, official action in response to which he has not denied. In addition, Rudy (whom Sessions says he has been friends with for three decades) also headlined a fundraiser for Sessions. And on top of the straw donations the grifters gave Sessions directly, America First Action gave Sessions far more to him, $3 million, the indictment notes twice.

In other words, while Sessions has denied doing anything in response to the grifters’ meetings, he has not denied doing anything in response to Rudy’s communications with him. If he sent his letter calling for the ouster of Marie Yovanovitch in response to a request from Rudy — whose finances are inextricably tied to the grifters — then it may be fairly easy to add him to the conspiracy the (successful) object of which was to get Yovanovitch fired. The propaganda Rudy sent (as laid out by NYT, and which the State IG already sent to the FBI earlier this year) would then simply be part of the conspiracy.

A few more points. There’s a passage of the indictment included to substantiate the allegation that the grifters were affirmatively trying to hide their purpose.

Indeed, when media reports about the GEP contributions first surfaced, an individual working with PARNAS remarked, “[t]his is what happens when you become visible … the buzzards descend,” to which PARNAS responded, “[t]hat’s why we need to stay under the radar…”

The indictment doesn’t disclose a number of details about this communication: who the interlocutor is, how it was collected, and whether it involved a mere warrant (for stored communications such as email or texts) or a wiretap. But particularly given the seeming overlap between these activities and those of people we know were surveilled during the period in question, it’s a pregnant inclusion in the indictment. It suggests the Feds may already be privy to far more about this scheme and the reasons the grifters might want it suppressed. Add that to the fact that, as WSJ reported, the Feds already have Rudy’s bank records, which will show whether he really worked for Fraud Guarantee or whether that, like GEP, is just a front.

Cui bono

Finally, consider this. The indictment says that the grifters were pushing to oust Yovanovitch to benefit  particular unnamed Ukrainians’ interests.

[T]hese contributions were made for the purpose of gaining influence with politicians so as to advance their own personal financial interests and the political interests of Ukrainian government officials, including at least one Ukrainian government official with whom they were working.

[snip]

At and around the time PARNAS and FRUMAN committed to raising those funds for [Sessions], PARNAS met with [SESSIONS] and sought [his] assistance in causing the U.S. Government to remove or recall [Yovanovitch]. PARNAS’s efforts to remove the Ambassador were conducted, at least in part, at the request of one or more Ukrainian government officials.

According to NBC, the Ukrainian in question was Yurii Lutsenko. But Lutsenko has since been ousted, and he has reneged on statements elicited by Rudy implicating the Bidens. More importantly, one of the promises Zelensky made in his July 25 call to Trump was to put in his own prosecutor who would pursue the two investigations — to trump up a claim Ukraine was behind the election tampering in 2016, and to invent evidence against Hunter Biden — that Trump wanted.

The President: Good because I heard you had a prosecutor who was very good and he was shut down and that’s really unfair. A lot of people are talking about that, the way they shut your very good prosecutor down and you had some very bad people involved. Mr. Giuliani is a highly respected man. He was the mayor bf New York Ci:ty, a great mayor, and I would like him to call you. I will ask him to call you along with the Attorney General. Rudy very much knows what’s happening and he is a very capable guy. If you could speak to him that would be great. The former ambassador from the United States, the woman, was bad news and the people she was dealing with in the Ukraine were bad news so I just want to let you know that. The oteer thing, There’s a lot of talk about Biden’s son. that Biden stopped the prosecution and a lot of people want to find out about that so whatever you can do with the Attorney General would be great. Biden went around bragging that he stopped the prosecution so if you can look into it … It sounds horrible to me.

President Zelenskyy: I wanted to tell ·you about the prosecutor. First of all I understand arid I’m knowledgeable about the situation. Since we have won the absolute majority in our Parliament; the next prosecutor general will be 100% my person, my candidate, who will be approved, by the parliament and will start as a new prosecutor in September. He or she will look. into the situation, specifically to the company that you mentioned in this issue.

Which is what led to Lutsenko’s ouster.

Moreover, the prosecutor Biden shut down was not Lutsenko, but Viktor Shokin, who has written affidavits which then got fed to John Solomon on behalf of Dmitry Firtash, who is trying hard to avoid extradition (on bribery charges) to the US.

That — plus the financial and legal ties between Firtash and the grifters — suggests there may be other Ukrainians on whose behalf the grifters were working to get Yovanovitch withdrawn. Firtash is certainly one. A corrupt prosecutor with ties to Russian intelligence, Kostiantyn Kulyk, who had worked for all these guys — and who is behind a dossier on accusing Hunter Biden of corruption — may be another. That is, Yovanovitch may have been the impediment not to inventing dirt on the Bidens, which is a fairly easy ask, but instead on creating the pre-conditions for people like Firtash to go free (which would also explain the natural gas angle).

All of which is to say that it would be a fairly trivial matter to establish the evidence to charge Rudy in ConFraudUs along with the Ukrainian grifters, as SDNY already has a lot of the evidence it would need.

Yes, Rudy Giuliani is, by all appearances, in blatant violation of FARA. Yes, he may get away with that, in part because DOJ hasn’t yet figured out hard to charge it consistently (though knows what not to do given recent history), and in part because he has made sure to implicate Trump and his cabinet officials.

But there’s a larger question about whether those same financial ties expose Rudy for much uglier conspiracy charges.


The Significance of Fiona Hill’s Testimony: “Whatever Drug Deal Sondland and Mulvaney Are Cooking Up”

A number of people on Twitter have asked me to elaborate on some comments I’ve made about the significance of Fiona Hill’s testimony before the Ukraine impeachment team yesterday.

It’s unclear whether she shared details of her testimony or whether most of the reporting comes from Jamie Raskin (who notably got the import of the State IG’s urgent briefing utterly wrong). But NYT has thus far offered the key description (citing at least two other people beyond Raskin).

Force Bolton to shit or get off the pot

First, the NYT describes Hill citing the abrasive John Bolton saying two fairly stunning things which were bound to make headlines. First, she described Bolton saying Rudy was a “hand grenade” who would blow everyone up (a quote Rudy has already responded to).

Mr. Bolton expressed grave concerns to Ms. Hill about the campaign being run by Mr. Giuliani. “Giuliani’s a hand grenade who’s going to blow everybody up,” Ms. Hill quoted Mr. Bolton as saying during an earlier conversation.

Then, after a July 10 meeting where it became clear Trump was withholding security assistance for campaign propaganda, according to reports of Hill’s testimony, Bolton asked her to tell Deputy White House Counsel John Eisenberg that he was not part of “whatever drug deal” Trump’s flunkies were pursuing.

“I am not part of whatever drug deal Sondland and Mulvaney are cooking up,” Mr. Bolton, a Yale-trained lawyer, told Ms. Hill to tell White House lawyers, according to two people at the deposition.

It was clear even before the July 25 call that kicked off this whole scandal that Bolton was on the outs. Tellingly, Bolton was specifically excluded from the call.

But since then, Bolton has (like James Mattis) been talking about writing a book, telling his story for history, rather than for the present and the sake of the Constitution.

By including these two quotes in her testimony, Hill not only ensured that Bolton will be the target of Trump’s ire (after all, Hill didn’t say these things, Bolton reportedly did). But it will force Bolton to either deny them (if he’s certain Hill didn’t take contemporaneous notes), or take a stand against activities he clearly recognized were wrong.

And if Bolton testifies in the impeachment inquiry about his concerns, it will represent someone about whom there can be no doubts as to Republican partisan loyalty. If Hill’s inclusion of Bolton’s comments leads Trump’s former National Security Advisor to provide damning testimony to the impeachment inquiry, it will change both the profile of the inquiry and the possible response attacks.

Force Sondland to rewrite his ever-evolving testimony

Hill’s testimony about that July 10 meeting also provided damning testimony about Gordon Sondland, who is scheduled to testify on Thursday.

One of the most dramatic moments she described came in the July 10 meeting in Mr. Bolton’s office that included Mr. Sondland; Kurt D. Volker, then the special envoy for Ukraine; Rick Perry, the energy secretary; and two Ukrainian officials.

The purpose of the meeting was to talk about technical assistance to Ukraine’s national security council. The Ukrainians were eager to set up a meeting between Mr. Trump and Mr. Zelensky, who was elected on a promise to clean up corruption and resolve the country’s five-year war with Russian-armed separatists.

Mr. Bolton was trying to not commit to a meeting, according to Ms. Hill’s testimony. Mr. Sondland got agitated, Ms. Hill testified, and let out that there was an agreement with Mr. Mulvaney that there would be a meeting if Ukraine opened up the investigations the White House was seeking.

Mr. Bolton immediately ended the meeting abruptly. As the group moved toward the door, Mr. Sondland said he wanted them to come down to the ward room next to the White House mess to discuss next steps. Mr. Bolton pulled Ms. Hill aside to instruct her to go to the ward room and report to him what they talked about.

When she got downstairs, Mr. Sondland was talking with the Ukrainians and specifically mentioned Burisma, the Ukrainian energy firm that had Hunter Biden, the former vice president’s son, on its board.

Sondland has already test driven two drafts of his intended testimony, much as Michael Cohen did two years ago before he gave false testimony to Congress. Even the most recent of those drafts appears to be rendered inoperative by Hill’s testimony.

I’m sure Adam Schiff would have preferred that Sondland not get another chance to craft his testimony (and I suspect Sondland’s lawyer is trying to convince him that the possibility of being named Secretary of State is not worth perjuring himself for, which is why he’s probably not yet planning on invoking the Fifth).

But thus far, Sondland doesn’t seem to have discovered a story that he can tell that coheres with the other known testimony.

Hill ties Sondland’s actions to Trump

Hill also provided testimony — testimony we know that is backed by other witnesses — that Sondland was playing the role he was playing because the President wanted him to be.

At one point, she confronted Mr. Sondland, who had inserted himself into dealings with Ukraine even though it was not part of his official portfolio, according to the people informed about Ms. Hill’s testimony.

He told her that he was in charge of Ukraine, a moment she compared to Secretary of State Alexander M. Haig Jr.’s declaration that he was in charge after the Ronald Reagan assassination attempt, according to those who heard the testimony.

According to whom, she asked.

The president, he answered.

This will tie Trump directly to this scheme and make Sondland’s later denials about whether he knew Trump to be lying about a quid pro quo even more obviously false than they already are. This is not Rudy freelancing, or State ordering him to, but Trump ordering everyone to.

Hill implicates John Eisenberg

I noted the central role of John Eisenberg in attempts to cover this quid pro quo up weeks ago (and noted that he succeeded in preventing any record of an early quid pro quo from being being made).

Eisenberg is the guy who decided to put the transcript of the July 25 call on the Top Secret server. Eisenberg had a role in framing the crimes, as described to DOJ, such that they could shunt them to Public Integrity and dismiss them, rather than open up another Special Counsel investigation into the President’s extortion.

But Hill’s testimony makes it clear Eisenberg was told of what Bolton analogized to crimes well before the call.

Ms. Hill went back upstairs and reported the encounter to Mr. Bolton, who promptly instructed her to report the issue to John A. Eisenberg, a deputy White House counsel and the chief legal adviser for the National Security Council, along with his line about the drug deal, which he meant metaphorically.

Mr. Eisenberg told Ms. Hill he would report it up his chain of command, which would typically mean Pat Cipollone, the White House counsel.

Eisenberg (whose FBI 302 from the last Trump criminal investigation DOJ is trying to withhold) would have been on the hook anyway for a clear attempt to cover up Trump’s crime. But the revelation that he had advance warning that a crime was in process — and apparently did nothing to prevent it — changes his exposure significantly.

It was the OMB Director, misappropriating funds, in the National Security Advisor’s office

Finally, Hill puts Mick Mulvaney at the scene of the crime.

As I’ve said before, one part of this scandal that has gotten far too little attention is that, to extort Ukraine, Trump withheld funds appropriated by Congress, funds about which there was bipartisan agreement.

Last week, CNN and WSJ reported that to do this, OMB changed the way the funds were distributed, putting a political flunkie in charge, also a detail that has gotten far too little attention.

Not only does that raise the Constitutional stakes of the Executive’s refusal to spend the funds Congress had duly appropriated, but it shows consciousness of guilt.

And per Hill’s testimony Mick Mulvaney, serving in the dual role of OMB chief and Chief of Staff, knew that those funds were being withheld for a quid pro quo or (as John Bolton described it) a drug deal.

Senate Republicans might not ever convict Trump for demanding foreign countries invent propaganda on his political allies. They might feel differently once it becomes clear that the crime involves refusing to do what Congress, with its power of the purse, told him to, without even telling Congress he was doing so (or why). They may not care about Trump pressing for any political advantage for their party, but they may care about Trump neutering their most important authority.


The Criminal Investigation into Paul Manafort Was (and May Still be) Ongoing–and Likely Pertains to Trump’s Ukraine Extortion

Robert Mueller was never able to determine whether Paul Manafort entered into a quid pro quo on August 2, 2016, trading — either on his own or with the approval of Trump — promises to help carve up Ukraine to Russia’s liking in exchange for help winning the election.

Mueller never made that determination, in part, because Manafort lied during the period he was purportedly cooperating with the investigation.

Here’s what Mueller did determine was reliable:

First, Manafort and Kilimnik discussed a plan to resolve the ongoing political problems in Ukraine by creating an autonomous republic in its more industrialized eastern region of Donbas,922 and having Yanukovych, the Ukrainian President ousted in 2014, elected to head that republic.923 That plan, Manafort later acknowledged, constituted a “backdoor” means for Russia to control eastern Ukraine.924 Manafort initially said that, if he had not cut off the discussion, Kilimnik would have asked Manafort in the August 2 meeting to convince Trump to come out in favor of the peace plan, and Yanukovych would have expected Manafort to use his connections in Europe and Ukraine to support the plan.925 Manafort also initially told the Office that he had said to Kilimnik that the plan was crazy, that the discussion ended, and that he did not recall Kilimnik asking Manafort to reconsider the plan after their August 2 meeting.926 Manafort said [redacted] that he reacted negatively to Yanukovych sending-years later-an “urgent” request when Yanukovych needed him.927 When confronted with an email written by Kilimnik on or about December 8, 2016, however, Manafort acknowledged Kilimnik raised the peace plan again in that email.928 Manafort ultimately acknowledged Kilimnik also raised the peace plan in January 2017 meetings with Manafort [redacted — pertains to him admitting continuation of the plan into 2018] 929

Second, Manafort briefed Kilimnik on the state of the Trump Campaign and Manafort’s plan to win the election.930 That briefing encompassed the Campaign’s messaging and its internal polling data. According to Gates, it also included discussion of “battleground” states, which Manafort identified as Michigan, Wisconsin, Pennsylvania, and Minnesota.931 Manafort did not refer explicitly to “battleground” states in his telling of the August 2 discussion, [redacted]

Third, according to Gates and what Kilimnik told Patten, Manafort and Kilimnik discussed two sets of financial disputes related to Mana fort’s previous work in the region. Those consisted of the unresolved Deripaska lawsuit and the funds that the Opposition Bloc owed to Manafort for his political consulting work and how Manafort might be able to obtain payment.933

922 The Luhansk and Donetsk People’s Republics, which are located in the Donbas region of Ukraine, declared themselves independent in response to the popular unrest in 2014 that removed President Yanukovych from power. Pro-Russian Ukrainian militia forces, with backing from the Russian military, have occupied the region since 2014. Under the Yanukovych-backed plan, Russia would assist in withdrawing the military, and Donbas would become an autonomous region within Ukraine with its own

Although Mueller included this significant summary of the issue in his Report (and a description of how Rick Gates kept sending polling data to Konstantin Kilimnik, to be shared with Ukrainian oligarchs and Oleg Deripaska’s GRU-linked aide, Viktor Boyarkin), the government nevertheless refused to release the details regarding this dispute that were laid out in court filings and exhibits regarding his breach of his plea deal when WaPo tried to liberate them starting in March. The government explained that, “a number of matters [related to his lies that were referred] to other offices in the Department of Justice … remain ongoing,” and asked for any further matters in WaPo’s challenge be deferred until six months later, which happens to be Tuesday. Judge Amy Berman Jackson never ruled differently, so that’s where things have stood, at least on the public docket, since April, shortly after the Mueller Report was released.

That’s interesting because the government accused Manafort of lying about five different topics. Some are definitely related to each other, and some (as well as his underlying guilty verdicts) are also definitely related to recent events relating to Ukraine and Russia. Which is why it’s worth looking back to learn what Manafort worked hardest to obscure in September and October 2018. Doing so suggests that Trump’s Ukraine call — including the demand for election help and Volodymyr Zelensky implementation of the Steinmeier Formula since — may simply be one step in paying off his campaign debts from 2016. As such, Rudy Giuliani’s involvement with Lev Parnas and Igor Fruman may just be the continuation of what Manafort was pursuing — also being paid by a cut-out system — even after he got sent to jail.

In this post, I’ll look specifically at how the lies Manafort told do and may relate to current events. In a follow-up, I hope to show how the issues for which he was prosecuted also relate to current events, well beyond Trump’s efforts to undermine Manafort’s prosecution to make a pardon easier. Taken together, such analysis will show that the Ukraine scandal is completely inseparable from the Russia one.

Manafort told five lies

Altogether, the government tried to hold Manafort accountable for five lies. Those were:

  1. How he got paid using a kick-back system involving a SuperPAC, Rebuilding America Now, which (on top of violating prohibitions on coordination with the campaign) may have accepted funds from foreigners. Mueller’s team never seemed to figure out how that scheme worked, in part because Manafort never settled on an explanation for the kickbacks. ABJ ruled that Manafort lied about this.
  2. Whether he tried to dissociate Konstantin Kilimnik from his own witness tampering to hide the true role of the Hapsburg Group, some former European leaders Manafort used to lobby for Viktor Yanukovych’s party. Effectively, the government accused Manafort of trying to suggest that Kilimnik wasn’t willfully part of what he was doing during a period that spanned from February (when the actual witness tampering happened) through April 2018 (when Manafort tried to tamper again). ABJ agreed in principle that Manafort had lied about this, but ruled the government did not present a preponderance of the evidence, so didn’t count this against him in sentencing.
  3. Whether he lied to adapt his story to a more exonerating one being told by a Trump flunkie — it’s not clear who — involved in doing something — it’s not clear what — to save Trump’s campaign in the last days during which Manafort managed the campaign. ABJ agreed he had.
  4. What the fuck he was doing on August 2, 2016, and (though this is always unstated) whether his lies to hide repeated discussions to support a Ukrainian “peace” plan between then and April 2018 were an attempt to hide an effort to pay off a quid pro quo tied to assistance winning the election.
  5. Whether Manafort spoke to the Administration after inauguration, either directly or indirectly. ABJ ruled that the government had not provided evidence that Manafort lied about his ongoing communications with the Administration.

Of these lies, the lies about another investigation (lie 3 above) seem to be unrelated to the rest. That’s because they involved, well before the Mueller investigation finished, another part of DOJ, and so almost certainly have nothing to do with Russia or Ukraine. Unsurprisingly, the Trump campaign may have been willing to cheat multiple ways to win the 2016 electionm.

The kickback system (lie 1 above) may or many not relate to the Russian and Ukraine questions. Mueller was never able to sort it out, so it’s not clear what to make of it. For my purposes, however, it’s relevant that Manafort’s claims of working for “free” may turn out to be false. Instead, Paul Manafort — who pled guilty a year ago to laundering money and refusing to register to hide how his influence campaigns in the US were being paid for by Ukrainian oligarchs — may have been paid to run Trump’s campaign by foreigners laundering those payments via various means. That’s significant because, last week, DOJ accused Lev Parnas and Igor Fruman of laundering money (from sources Russian, Ukrainian, and unknown) through various front companies, including one called Global Energy Production apparently created for the function, to engage in influence campaigns relating to Ukraine, effectively the same kind of scheme that Manafort engaged in for years. Particularly given that Rudy claims to be both working for and employing Lev Parnas and Igor Fruman, it raises questions about whether his claims to be working for “free” are also bogus, just a lie to hide how the cut through works.

Kilimnik and Manafort’s efforts to push a Ukraine “peace” plan overlap with their witness tampering

Lies 2 and 4 are obviously related, because Konstantin Kilimnik — as Manafort’s tie to several Ukrainian oligarchs and Oleg Deripaska — is at the center of both of them. Manafort’s efforts to deny that Kiliminik was his co-conspirator may have been motivated by nothing more than a need to permit Kevin Downing to claim, falsely, that Manafort’s guilty plea affirmed no “collusion” between the President’s campaign manager and any Russians had occurred. Not only did ABJ affirmatively state that, whatever Kilimnik’s ties to GRU, his role did amount to a link to Russia.

So Manafort was both trying to lie that he had pled guilty to entering a conspiracy with a Russian suspected of ties to GRU, but he was lying to hide precisely what the nature of any conspiracy that may have tied assistance with the 2016 election to help implementing a Ukraine “peace” plan favored by Russia and Russian-aligned Ukrainian oligarchs.

Still, even within that context, there are details of the two Kilimnik lies that deserve more attention. Consider how the timeline of the two sets of lies intersect in 2018, months after Manafort was first charged, in the weeks and months after Trump had reportedly told allies that he was sure he would survive the Mueller investigation because Manafort would not flip on him.

In the weeks after that claim was published, from February 5 through 10, 2018, Manafort was still trying to deliver on his “New initiative for Peace” (PDF 82).

Later in February, after Mueller unveiled Rick Gates’ cooperation and made it clear he was pursuing another of the vehicles Manafort used to hide his influence operations, the Hapsburg Group, he and Kilimnik reached out to key players in that influence operation (who, unbeknownst to Manafort, had already been cooperating for some time) in an attempt to get them to lie about the influence operation. Those contacts, over Telegram and WhatsApp, took place between February 24 and 28.

But knowing that another part of his past influence operation was under scrutiny still didn’t dissuade Manafort from pursuing that “peace” plan Kilimnik first pitched him on August 2, 2016, amid a discussion of how to get Trump elected. On March 9, he was sending some unnamed person related documents from Kilimnik. (PDF 92ff) The breach hearing and other documents make it clear this was an effort to test the viability of a Ukrainian candidate, including his willingness to implement the “peace” plan.

He was doing it again on March 26. (PDF 97)

Manafort would try to dissociate this polling from the people who were really implementing, including, apparently, trying to pretend that Kilimnik didn’t know about it.

Then — included in the contacts that (the government says) were part of Manafort’s conspiracy to obstruct with Kilimnik, though it’s not clear how — there were more contacts with the Hapsburg Group flacks on April 4.

In fact, Manafort’s efforts to pursue this “peace” plan continued even further, with him hoping that some unnamed person would find documents valuable on May 4. (PDF 95)

There’s a lot more sealed evidence about how relentlessly Manafort pursued a Ukrainian “peace” plan between August 2, 2016 and at least the time he was jailed for bail violations in June 2018 (though remember, the government alleges he continued to communicate in incriminating ways even from jail, via laptops carried by his attorneys). Altogether, there are 38 exhibits documenting Manafort’s false denials of his actions on that front. Because the government says it has (or had) an ongoing investigation into such matters, we don’t get to see what the exhibits are. But Manafort’s lawyer, Kevin Downing (who filled in at Parnas and Fruman’s bail hearing the other day) has seen them. And Downing, reportedly, was sharing details of Manafort’s cooperation with other lawyers in Manafort’s Joint Defense Agreement with the President, including Rudy Giuliani.

Trump “hired” his “free” defense attorney Rudy Giuliani on April 19, 2018, after current Parnas and Fruman attorney John Dowd quit. And once Manafort could no longer pursue  his Ukraine “peace” plan, Rudy got involved in efforts to press for certain concessions in Ukraine.

Manafort’s attempts to communicate with the Administration (excepting via counsel)

Finally, there’s the last alleged lie, the one ABJ said prosecutors did not prove.

It’s not really clear what prosecutors believed Manafort was communicating about, beyond hires (like Steve Calk) in the Administration, because the topic of interest (which in some redactions appears to be too short to refer to Ukraine or Russia) is redacted in the documents released. They only submitted six exhibits to substantiate their claim. But the two unredacted exhibits presented in support of their case are notable.

On May 15, Manafort drew up a document that (the government’s declaration makes clear) included a section titled “Targets,” along with notes indicating Manafort would reach out to people about those targets. (PDF 152)

It might be a coincidence, but Manafort draws up this document right at the beginning of Parnas and Fruman’s efforts to donate big money to key Republicans through their shell company.

And on May 25, someone asked Manafort via WhatsApp whether it was cool to invoke his name if he or she met with Trump the following week, one-on-one. (PDF 156)

In the breach hearing, ABJ summarizes this:

You say that what he said was false because he did in fact agree to have messages sent to the administration on his behalf. And you point to evidence in which he offered to have other people contact the [redacted] on behalf of Mr. [redacted], for example, or to press buttons. But that outreach appears to have been two people outside the administration who themselves would have contacts within. There is some evidence that Mr. Gates said that Mr. Manafort said he still had connections, and that another individual asked Mr. Manafort if he, that individual, could tell [redacted (the President)] he was still close to Manafort.

And you have his involvement in lobbing with respect to [redacted], and Exhibit 404 is this memo summarizing the group’s plan that say, somewhat ambiguously, [redacted] will find out if [redacted] did her bit and get her to call [redacted] And it’s not even crystal clear that he was supposed do that by calling her.

In explaining the lie, Greg Andres makes it clear that Manafort was also representing in March that he had the ability to send messages to someone (probably Trump) in the Administration.

Significantly, Manafort lawyer Richard Westling dismisses that anyone would value Manafort’s advice or support at a time when he was already under indictment.

he was already under indictment at this point and, you know, the idea that he was going to pass a message and it would have some value, frankly, no offense to Mr. Manafort, but I can’t see that.

It’s notable that Downing did not make that claim because — as recent reports make clear — Rudy continued to consult Manafort on these Ukraine issues even after he went to prison, through Downing.

Especially since, in all its representations about these ongoing communications, the government makes clear,

for the purposes of proving the falsity of Manafort’s assertions in this section, the government is not relying on communications that may have taken place, with Manafort’s consent, through his legal counsel. We previously so advised the defense.

It’s clear the government knew Manafort continued to communicate with Trump via Downing and Rudy; they just weren’t going to reveal that they had pierced privilege or what they had learned.

The Ukrainian grifters timeline

Now consider how the timelines of Manafort’s relentless pursuit of a “peace” deal, his witness tampering with Kilimnik, and his efforts to communicate with Trump overlap with the known timeline of the Ukrainian grifters (I’ll continue to update this). It suggests that Parnas and Fruman kicked in their influence operations just as Manafort’s legal problems made him unable to do so.

February 5-10, 2018: Manafort working on “a new Peace initiative”

February 19, 2018: Manafort email pertaining to “peace” plan

February 21, 2018: Manfort emails document pertaining to “peace” plan to undisclosed recipients

February 23, 2018: Mueller reveals Rick Gates’ plea deal

February 24-28, 2018: Kilimnik and Manafort attempt to script testimony of Hapsburg Group flacks

March 2, 2018: Pentagon issues final approval to send Javelin missiles to Ukraine

March 3, 2018: Fruman participates in high donor meeting at Mar-a-Lago

March 9, 2018: Manafort working on polling regarding Ukraine “peace” plan for potential client

March 26, 2018: Manafort working on Ukraine “peace” plan

April 4, 2018: Kilimnik again attempts to witness tamper with Hapsburg Group flacks

Early April, 2018: Reported halt to Ukraine’s cooperation with Mueller

April 11, 2018: Parnas and Fruman form Global Energy Producers

April 19, 2018: Trump “hires” “free” defense attorney Rudy Giuliani

April 29, 2018: Someone first solicits help creating a website for GEP

May 2, 2018: NYT reports that Ukraine has stopped cooperating with Mueller probe

May 4, 2018: Manafort sends unnamed person information on Ukraine plan

May 8, 2018: Parnas and Fruman meet with Trump and seven other people “about preparations for victory in the midterm elections;” Fruman raises “America’s support for Israel and Ukraine,” topics about which “Trump … was absolutely positive”

May 15, 2018: Real estate lawyer Russell Jacobs deposits $1.26 million pass through funds into Aaron Investments LLC

May 15, 2018: Manafort document lists “Targets” and reflects commitment on his part to reach out about them.

May 17, 2018: Parnas LLC Aaron Investments donates $325,000 to Trump PAC, America First Action in the name of GEP

May 21, 2018: Parnas has breakfast with Don Jr and Tommy Hicks Jr, head of America First

May 24, 2018: Someone again solicits help creating a website for GEP

June 8, 2018: Manafort charged with witness tampering; prosecutors move to revoke bail

June 21, 2018: GEP donates $50K to Ron DeSantis

September 14, 2018: Manafort enters into what would be a failed plea agreement, admitting he laundered money and influence on behalf of Ukrainian oligarchs, but entering into a five week process of learning what prosecutors know

Mid-to-late 2018: Rudy referred to Parnas and Fruman for work with “Fraud Guarantee”

Around November 2018: Rudy starts working for Parnas and Fruman

Late 2018: While Parnas and Rudy were eating together, “someone” approached Rudy and gave him information about Ukraine

January 8, 2019: Manafort lawyer’s redaction fail reveals that Manafort was asked about the Ukraine “peace” plan and that Manafort was lying about whether it got raised while working on the campaign and also that he was being asked about ongoing contacts with the Administration

Background

I have laid out the structure of Manafort’s lies in these posts:

The primary sources for them are these documents:


How Twelve Years of Warning and Six Years of Plodding Reform Finally Forced FBI to Do Minimal FISA Oversight

Earlier this week, the government released the reauthorization package for the 2018 Section 702 certificates of FISA. With the release, they disclosed significant legal fights about the way FBI was doing queries on raw data, what we often call “back door searches.” Those fights are, rightly, being portrayed as Fourth Amendment abuses. But they are, also, the result of the FISA Court finally discovering in 2018, after 11 years, that back door searches work like some of us have been saying they do all along, a discovery that came about because of procedural changes in the interim.

As such, I think this is wrong to consider “FISA abuse” (and I say that as someone who was very likely personally affected by the practices in question). It was, instead, a case where the court discovered that FBI using 702 as it had been permitted to use it by FISC was a violation of the Fourth Amendment.

As such, this package reflects a number of things:

  • A condemnation of how the government has been using 702 (and its predecessor PAA) for 12 years
  • A (partial — but thus far by far the most significant one) success of the new oversight mechanisms put in place post-Snowden
  • An opportunity to reform FISA — and FBI — more systematically

This post will explain what happened from a FISA standpoint. A follow-up post will explain why this should lead to questions about FBI practices more generally.

The background

This opinion came about because every year the government must obtain new certificates for its 702 collection, the collection “targeted” at foreigners overseas that is, nevertheless, designed to collect content on how those foreigners are interacting with Americans. Last we had public data, there were three certificates: counterterrorism, counterproliferation, and “foreign government,” which is a too-broadly scoped counterintelligence function. As part of that yearly process, the government must get FISC approval to any changes to its certificates, which are a package of rules on how they will use Section 702. In addition, the court conducts a general review of all the violations reported over the previous year.

Originally, those certificates included proposed targeting (governing who you can target) and minimization (governing what you can do once you start collecting) procedures; last year was the first year the agencies were required to submit querying procedures governing the way agencies (to include NSA, CIA, National Counterterrorism Center, and FBI) access raw data using US person identifiers. The submission of those new querying procedures are what led to the court’s discovery that FBI’s practices violated the Fourth Amendment.

In the years leading up to the 2018 certification, the following happened:

  • In 2013, Edward Snowden’s leaks made it clear that those of us raising concerns about Section 702 minimization since 2007 were correct
  • In 2014, the Privacy and Civil Liberties Oversight Board (which had become operational for the first time in its existence almost simultaneously with Snowden’s leaks) recommended that CIA and FBI have to explain why they were querying US person content in raw data
  • In 2015, Congress passed the USA Freedom Act, the most successful reform of which reflected Congress’ intent that the FISA Court start consulting amicus curiae when considering novel legal questions
  • In 2015, amicus Amy Jeffress (who admitted she didn’t know much about 702 when first consulted) raised questions about how queries were conducted, only to have the court make minimal changes to current practice — in part, by not considering what an FBI assessment was
  • In the 2017 opinion authorizing that year’s 702 package, Rosemary Collyer approved an expansion of back door searches without — as Congress intended — appointing an amicus to help her understand the ways the legal solution the government implemented didn’t do what she believed it did; that brought some (though not nearly enough) attention to whether FISC was fulfilling the intent of Congress on amici
  • In the 2017 Reauthorization (which was actually approved in early 2018), Congress newly required agencies accessing raw data to submit querying procedures along with their targeting and minimization procedures in the annual certification process, effectively codifying the record-keeping suggestion PCLOB had made over two years earlier

When reviewing the reauthorization application submitted in March 2018, Judge James Boasberg considered that new 2017 requirement a novel legal question, so appointed Jonathan Cederbaum and Amy Jeffress, the latter of whom also added John Cella, to the amicus team. By appointing those amici to review the querying procedures, Boasberg operationalized five years of reforms, which led him to discover that practices that had been in place for over a decade violated the Fourth Amendment.

When the agencies submitted their querying procedures in March 2018, all of them except FBI complied with the demand to track and explain the foreign intelligence purpose for US person queries separately. FBI, by contrast, said they already kept records of all their queries, covering both US persons and non-US persons, so they didn’t have to make a change. One justification it offered for not keeping US person-specific records as required by the law is that Congress exempted it from the reporting requirements it imposed on other agencies in 2015, even though FBI admitted that it was supposed to keep queries not just for the public reports from which they argued they were exempted, but also for the periodical reviews that DOJ and ODNI make of its queries for oversight purposes. FBI Director Christopher Wray then submitted a supplemental declaration, offering not to fix the technical limitations they built into their repositories, but arguing that complying with the law via other means would have adverse consequences, such as diverting investigative resources. Amici Cedarbaum and Amy Jeffress challenged that interpretation, and Judge James Boasberg agreed.

The FBI’s querying violations

It didn’t help FBI that in the months leading up to this dispute, FBI had reported six major violations to FISC involving US person queries. While the description of those are heavily redacted, they appear to be:

  • March 24-27, 2017: The querying of 70K facilities “associated with” persons who had access to the FBI’s facilities and systems. FBI General Counsel (then run by Jim Baker, who had had these fights in the past) warned against the query, but FBI did it anyway, though did not access the communications. This was likely either a leak or a counterintelligence investigation and appears to have been discovered in a review of existing Insider Threat queries.
  • December 1, 2017: FBI conducted queries on 6,800 social security numbers.
  • December 7-11, 2017, the same entity at FBI also queried 1,600 queries on certain identifiers, though claimed they didn’t mean to access raw data.
  • February 5 and 23, 2018: FBI did approximately 30 queries of potential sources.
  • February 21, 2018: FBI did 45 queries on people being vetted as sources.
  • Before April 13, 2018: an unspecified FBI unit queried FISA acquired metadata using 57,000 identifiers of people who work in some place.

Note, these queries all took place under Trump, and most of them took place under Trump’s hand-picked FBI Director. Contrary to what some Trump apologists have said about this opinion, it is not about Obama abuse (though it reflects practices that likely occurred under him and George Bush, as well).

These violations made it clear that Congress’ mandate for better record-keeping was merited. Boasberg also used them to prove that existing procedures did not prevent minimization procedure violations because they had not in these instances.

As he was reviewing the violations, Boasberg discovered problems in the oversight of 702 that I had noted before, based off my review of heavily redacted Semiannual Reports (which means they should have been readily apparent to everyone who had direct access to the unredacted reports). For example, Judge Boasberg noted how few of FBI’s queries actually get reviewed during oversight reviews (something I’ve pointed out repeatedly, and which 702 boosters have never acknowledged the public proof of).

As noted above, in 2017 the FBI conducted over three million queries of FISA-acquired information on just one system, [redacted]. See Supplemental FBI Declaration at 6. In contrast, during 2017 NSD conducted oversight of approximately 63,000 queries in [redacted] and 274,000 queries in an FBI system [redacted]. See Gov’t Response at 36.

Personnel from the Office of Intelligence (OI) within the Department of Justice’s National Security Division (NSD) visit about half of the FBI’s field offices for oversight purposes in a given year. Id at 35 & n 42. Moreover OI understandably devotes more resources to offices that use FISA authorities more frequently, so those offices [redacted] are visited annually, id at 35 n. 42, which necessitates that some other offices go for periods of two years or more between oversight visits. The intervals of time between oversight visits at a given location may contribute to lengthy delays in detecting querying violations and reporting them to the FISC. See, e.g., Jan. 18, 2019, Notice [redacted] had been conducting improper queries in a training context since 2011, but the practice was not discovered until 2017).

He also noted that the records on such queries don’t require contemporaneous explanation from the Agent making the query, meaning any review of them will not find problems.

The FBI does not even record whether a query is intended to return foreign-intelligence information or evidence of crime. See July 13, 2018, Proposed Tr. at 14 (DOJ personnel “try to figure out” from FBI query records which queries were run for evidence of crime purposes). DOJ personnel ask the relevant FBI personnel to recall and articulate the bases for selected queries. Sometimes the FBI personnel report they cannot remember. See July 9, 2018, Notice.

Again, I noted this in the past.

In short, as Boasberg was considering Wray’s claim that the FBI didn’t need the record-keeping mandated by Congress, he was discovering that, in fact, FBI needs better oversight of 702 (something that should have been clear to everyone involved, but no one ever listens to my warnings).

FISC rules the querying procedures do not comply with the law or Fourth Amendment

In response to Boasberg’s demand, FBI made several efforts to provide solutions that were not really solutions.

The FBI’s first response to FISC’s objections was to require General Counsel approval before accessing the result of any “bulk” queries like the query that affected 70K people — what it calls “categorical batch queries.”

Queries that are in fact reasonably likely to return foreign-intelligence information are responsive the government’s need to obtain and produce foreign-intelligence information, and ultimately to disseminate such information when warranted. For that reason, queries that comply with the querying standard comport with § 1801 (h), even insofar as they result in the examination of the contents of private communications to or from U.S. persons. On the other hand, queries that lack a sufficient basis are not reasonably related to foreign intelligence needs and any resulting intrusion on U.S. persons’ privacy lacks any justification recognized by§ 1801 (h)(l). Because the FBI procedures, as implemented, have involved a large number of unjustified queries conducted to retrieve information about U.S. persons, they are not reasonably designed, in light of the purpose and technique of Section 702 acquisitions, to minimize the retention and prohibit the dissemination of private U.S. person information.

But Boasberg was unimpressed with that because the people who’d need to consult with counsel would be the most likely not to know they did need to do so.

He also objected to FBI’s attempt to give itself permission to use such queries at the preliminary investigation phase (before then, FBI was doing queries at the assessment stage).

The FBI may open a preliminary investigation with even less of a factual predicate: “on the basis of information or an allegation indicating the existence of a circumstance” described in paragraph a. orb. above. Id. § II.B.4.a.i at 21 (emphasis added). A query using identifiers for persons known to have had contact with any subject of a full or preliminary investigation would not require attorney approval under § IV.A.3, regardless of the factual basis for opening the investigation or how it has progressed since then.

Boasberg’s Fourth Amendment analysis was fairly cautious. Whereas amici pushed for him to treat the queries as separate Fourth Amendment events, on top of the acquisition (which would have had broad ramifications both within FISA practice and outside of it), he instead interpreted the new language in 702 to expand the statutory protection under queries, without finding queries of already collected data a separate Fourth Amendment event.

Similarly, both Boasberg and the amici ultimately didn’t push for a written national security justification in advance of an actual FISA search. Rather, they argued FBI had to formulate such a justification before accessing the query returns (in reality, many of these queries are automated, so it’d be practically impossible to do justifications before the fact).

Boasberg nevertheless required the FBI to at least require foreign intelligence justifications for queries before an FBI employee accessed the results of queries.

The FBI was not happy. Having been told they have to comply with the clear letter of the law, they appealed to the FISA Court of Review, adding apparently new arguments that fulfilling the requirement would not help oversight and that the criminal search requirements were proof that Congress didn’t intend them to comply with the other requirements of the law. Like Boasberg before them, FISCR (in a per curium opinion from the three FISCR judges, José Cabranes, Richard Tallman, and David Sentelle) found that FBI really did need to comply with the clear letter of the law.

The FBI chose not to appeal from there (for reasons that go beyond this dispute, I suspect, as I’ll show in a follow-up). So by sometime in December, they will start tracking their backdoor searches.

FBI tried, but failed, to avoid implementing a tool that will help us learn what we’ve been asking

Here’s the remarkable thing about this. Something like this has been coming for two years, and FBI is only now beginning to comply with the requirement. That’s probably not surprising. Neither the Director of National Intelligence (which treated its intelligence oversight of FBI differently than it did CIA or NSA) nor Congress had demanded that FBI, which can have the most direct impact on someone’s life, adhere to the same standards of oversight that CIA and NSA (and an increasing number of other agencies) do.

Nevertheless, 12 years after this system was first moved under FISA (notably, two key Trump players, White House Associate Counsel John Eisenberg and National Security Division AAG John Demers were involved in the original passage), we’re only now going to start getting real information about the impact on Americans, both in qualitative and quantitative terms. For the first time,

  • We will learn how many queries are done (the FISC opinion revealed that just one FBI system handles 3.1 million queries a year, though that covers both US and non US person queries)
  • We will learn that there are more hits on US persons than previously portrayed, which leads to those US persons to being investigated for national security or — worse — coerced to become national security informants
  • We will learn (even more than we already learned from the two reported queries that this pertained to vetting informants) the degree to which back door searches serve not to find people who are implicated in national security crimes, but instead, people who might be coerced to help the FBI find people who are involved in national security crimes
  • We will learn that the oversight has been inadequate
  • We will finally be able to measure disproportionate impact on Chinese-American, Arab, Iranian, South Asian, and Muslim communities
  • DOJ will be forced to give far more defendants 702 notice

Irrespective of whether back door searches are themselves a Fourth Amendment violation (which we will only now obtain the data to discuss), the other thing this opinion shows is that for twelve years, FISA boosters have been dismissing the concerns those of us who follow closely have raised (and there are multiple other topics not addressed here). And now, after more than a decade, after a big fight from FBI, we’re finally beginning to put the measures in place to show that those concerns were merited all along.

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Originally Posted @ https://www.emptywheel.net/author/emptywheel/