Ken Vogel Covers Up Rudy Giuliani and His Alleged Russian Spies

Amid rising criticism that it is burying the Alexander Smirnov scandal while continuing to flood the market with yet more transphobia and complaints that Biden’s age might be worse than Trump’s promise to let Russia attack NATO states, NYT has added Ken Vogel to the Hunter Biden beat.

Congratulations, Devlin Barrett. You are no longer the most inappropriate mouthpiece to work the dick pic sniffing beat.

Vogel wrote a story with Glenn Thrush that really struggled with basic details about the Hunter Biden investigation. For example, like Devlin in his own story, the men claimed to be unable to understand how David Weiss’ renewed focus on Smirnov’s FD-1023 might explain why Leo Wise said that FARA charges were still on the table on July 26, 2023 when Weiss’ First AUSA had told Chris Clark a month earlier on June 19, “there was not another open or pending investigation.”

In a court filing, they contended that Mr. Smirnov’s false claims “infected” the cases, and suggested, without providing evidence, that prosecutors reneged on a plea deal last summer because they had followed “Mr. Smirnov down his rabbit hole of lies.”

There was no ongoing investigation on June 19. And then, facing pressure from Congress and Bill Barr, David Weiss twice said (the second time in his House Judiciary Committee testimony) that the FD-1023 was part of the newly ongoing investigation. The September 27 interview of Smirnov could not, yet, have been an investigation of Smirnov, because Weiss treats his indictment as a “matter[] that arose” in his investigation of Hunter Biden. Weiss had to have been chasing Smirnov’s manufactured bribery claim, not Smirnov himself, yet.

It’s not the struggle with basic facts about the Hunter Biden investigation that I find so remarkable, though. That’s pretty typical from people on the dick pic sniffing beat.

It’s the shamelessness by longtime Rudy Giuliani mouthpiece Ken Vogel of his cover-up of Rudy’s role in all this.

The men claim, for example, that it was the sheer volume of tips about Hunter Biden that led Bill Barr to set up a secret special intake process starting on January 3, 2020, at a time when there was already an investigation into Hunter Biden that could have … just taken those tips.

For instance, he appears to have told the F.B.I. that a business associate who introduced him to Burisma executives had ties to Russian organized crime, according to notes of this conversation, which do not indicate whether there is proof of the claim.

It is the sort of raw intelligence that law enforcement routinely collects and vets behind closed doors before determining whether to act on it, the investigation into Hunter Biden’s foreign business dealings attracted so much of it that the Justice Department created a special intake process.

They make that claim while linking to this NYT story (still one of the best on the Scott Brady side channel), which mentions Rudy Giuliani two dozen times, including in the headline.

They claim Smirnov’s tip was simply shared with Scott Brady’s side channel, when the testimony they link describes Brady asking the FBI to search for Hunter Biden and Burisma (still an unconvincing claim, particularly given Chuck Grassley’s claim that the tip came from an investigation into Mykola Zlochevsky that had been shut down days earlier).

A federal prosecutor involved in screening claims about Mr. Biden’s foreign work testified last year that Mr. Smirnov was an “important confidential human source” who “had been used in other investigations.”

They don’t mention that the Brady transcript they link mentions Rudy 126 times, including descriptions of the interview Brady conducted with Rudy, an interview with someone under active criminal investigation that was not shared with the people conducting that criminal investigation, an interview in which Seth DuCharme had requested Brady participate personally, “so we get a sense of what’s coming out of it,” an interview in which Rudy was less than forthcoming about Rudy’s indirect interview of Zlochevsky the previous year.

But the most astonishing aspect of Ken Vogel’s claim that “the investigation into Hunter Biden’s foreign business dealings attracted so much [raw intelligence] that the Justice Department created a special intake process” — again, NYT is making this claim about a side channel to an existing investigation that even Brady says is where such intelligence could actually be vetted, with subpoena power — is that Ken Vogel broke the story of Rudy’s December 2019 trip to meet with, among others, a bunch of people who have since been sanctioned as participants in Russian influence operations.

Vogel described, in real time, Rudy meeting with Kostiantyn Kulyk and Andrii Telizhenko, who both would be sanctioned by Steve Mnuchen’s Treasury on January 11, 2021. Vogel’s story about Andrii Derkach’s sanctioning on September 10, 2020 — again, by Mnuchen’s Treasury — describes that Giuliani met with Derkach on that same trip.

Vogel knows that the leads that Bill Barr set up a special side channel to claim to vet (Brady’s transcript reveals how shoddy his vetting was, including his claim that Smirnov’s travel records were consistent with Smirnov’s bribery allegation when the indictment alleges that the travel records prove his claims to be false) didn’t just appear out of nowhere. It wasn’t the volume of the leads that required some intake process before the leads got shared with the preexisting investigation of Hunter Biden.

It was the fact that the President’s lawyer had solicited help from people US spooks were pretty sure were Russian agents, and rather than warning Rudy off that effort, DOJ instead set up a special accommodation via which DOJ might share information from Russian spies with those investigating Trump’s rival’s son, a special accommodation that could, and did, protect Rudy from any legal consequences for soliciting campaign help from Russian spies.

And then by some remarkable coincidence, while purportedly vetting all this dirt solicited by Rudy Giuliani, Scott Brady went out and through still unexplained means found the guy who happened to be willing to fabricate a claim about Burisma bribing Joe Biden.

Only, it probably wasn’t a wild coincidence. The Smirnov indictment ties Smirnov’s dangles of claims against Biden to this article about Rudy soliciting help from Andrii Derkach.

Ken Vogel knows Rudy’s role in the side channel that led to the Smirnov claim as well as anybody. But his story about the side channel covered up Rudy’s role — two dozen mentions at one of his links and over a hundred at the other — and in the process covered up the Russian spies that necessitated the side channel.

Update: In a really good timeline of the back history of the FD-1023, Glenn Kessler describes that Bill Barr doesn’t want to talk about it.

Barr spoke briefly to The Fact Checker, off the record, before hanging up the phone.

Update: Jerry Nadler has asked Michael Horowitz to investigate Scott Brady for, among other things, his misleading testimony.

Update: Fixed year on Rudy’s trip to visit the Russian spies.

Denaturalization And Asylum In Interwar Europe

Migrations during and after WWI

In Chapter 9 of The Origins of Totalitarianism, Hannah Arendt describes the vast migrations set off by WWI, and the further migrations driven by the  successor states. These were the new national boundaries set by the victors in WWI, primarily England, France, and the US. They’re located along the eastern side of Europe, extending past Turkey into the Levant The victors put a single national/cultural group in power, even though there were large numbers of people of other nationalities and cultures in those states. Most had significant numbers of Germans and Jews.

As the migrating minority populations in the successor states grouped together, the new states increasingly considered them a threat. This became a greater problem as Germany recovered from defeat and particularly with the rise of the Nazis. Anti-Semitism was rife across Eastern Europe, adding to the distrust of their Jewish population. Other large minority groups, such as Poles, Ukrainians, and Armenians, were also distrusted. In all cases the concern was that these populations would take the side of countries controlled by their nationality against the successor states.

Arendt says the victor nations saw themselves as having evolved legal regimes to replace arbitrary rule of kings and other despots, and that this was done so long ago that the presence of subgroups and migrants was not an existential threat. I think Arendt accepts their view that Internal rivalries in these countries were sufficiently tamped down that they would accept the legal institutions, and even the language and culture, of the dominant group. Creating new nation-states from scratch lacked the evolution that would legitimize the new governments.

So that when the precarious balance between nation and state, between national interest and legal institutions broke down, the disintegration of this form of government and of organization of peoples came about with terrifying swiftness. P. 275.

Denationalization

After WWI, there were revolutions in a number of countries. The winners then promptly denaturalized all the losers and evicted them, adding to the vast migrations. Some of these people were able to return to their home nations, but most weren’t. Many had assimilated to the extent that they no longer identified with their native nation. Others had fled from oppression in their home country. In many cases, the home countries didn’t exist, or their homelands had been under so many regimes they couldn’t claim any single home country. This was the fate of millions of Russians and Armenians, Hungarians and countless others.

Arendt seems to accept the right of a sovereign nation to denaturalize its own citizens:

Theoretically, in the sphere of international law, it had always been true that sovereignty is nowhere more absolute than in matters of “emigration, naturalization, nationality, and expulsion”…. Fn. omitted, p. 278.

Obviously large-scale denaturalization would be disruptive to other nations, and could easily lead to retaliation. For this reason it was not used on a mass basis. Arendt associates large-scale denaturalization primarily with totalitarian states, Italy, Germany and Russia. But almost all European countries adopted and used some form of this tool.

Denaturalization led to terrible problems after World War II. The term stateless people gave way to a new term, displaced persons. This term carries the implication that as soon as things calm down, these people will be returned to their home countries. In other words, it simply ignores the reality of their status.

Asylum

Arendt says that asylum has a long history.

Since ancient times it has protected both the refugee and the land of refuge from situations in which people were forced to become outlaws through circumstances beyond their control. P. 280.

The concept of asylum as a human right, or a Right of Man, dates back to Medieval times, when people were held to be subject to the laws of whichever state they might find themselves in, and were entitled to the protection of that state. In our terminology, simply being in another country entitled you to be treated as a citizens of that country, and your home nation had no duty towards you. As the nation-state developed, asylum came to be seen as a derogation of the duty of the state of citizenship to protect its own citizens when they were beyond its borders, and thus was somewhat anachronistic.

When Arendt was writing (the mid-1940s) the right of asylum was a remnant of the Rights of Man, but was not part of international law, and was not written into national laws either, That has been remedied. Here’s the Wikipedia discussion of the legal situation. https://en.wikipedia.org/wiki/Right_of_asylum

In any event, the right of asylum wasn’t much help to stateless people who didn’t get to England or the US.

Arendt’s personal experience

Arendt hereself was one of these stateless people. Wikipedia tells us that while still in Germany in the early 1930s she was arrested on account of working for a Zionist organization. She was released pending a hearing and fled the country over the mountains into Czechoslovakia, then on to Prague before settling in Geneva. She found work there, and eventually found her way to Paris. In 1937 she was stripped of German citizenship.

In 1940 she and all German ex-pat Jews were interned in the South of France. She managed to obtain papers of liberation. She was now a stateless person. Eventually with the aid of Varian Fry and others she was able to escape France and move to the US.

Discussion

1. Arendt politely doesn’t mention that her new country, the US, turned away Jews seeking asylum during and after WWII.

2. The US had no definition of citizenship until the 14th Amendment set a baseline. We’ve had a number of laws on immigration, and we have naturalization laws. We have laws governing asylum seekers. We have the Emma Lazarus inscription on the Statue of Liberty as an aspiration. And for all the shrieking from right-wing scaremongers and their fear-junky followers, immigrants built this country.

Even the flow of immigrants and asylum-seekers into the US over the last few years doesn’t compare to the tsunami of people on the move in Europe during and after WWI. Migrants continue to enter Europe today.r I took the picture associated with this post at the Vienna train station in mid-September 2015. It shows a large crowd of Syrians, I think, fleeing the war there. In 2015, about 1.3 million people migrated into Europe.  The latest wave is Ukrainians and others fleeing the Russian invasion.

And it’s going to get worse as climate breakdown continues. Side note: Lake Michigan didn’t ice over once in Chicago so far this year, despite several days of polar vortex. It’s 61 as I write this.

3. In a fortunate synchronicity, Heather Cox Richardson just wrote about the ugly history of US anti-Asian immigration laws. For a fascinating look at immigration, watch Celine Song’s directorial debut film Past Lives. People move for many reasons besides climate breakdown, war, and famine. In another book, Eve, by Cat Bohannon, there’s the suggestion that migrating played a large role in our evolution as a species.

4. Right wing provacateurs are riling up the rubes with pro-denaturalization andi-asylum rants. Corporate media respond with mindless drool like Pavlov’s dogs. For a sane look at the problem, try this.

Robert Hur Snooped Through Joe Biden’s Diaries after White House Warned It Would Be Unprecedented

Much of the press focus (Politico, NYT, WaPo) on the correspondence between Joe Biden’s lawyers and DOJ has focused on Biden’s complaints about Robert Hur’s old geezer comments.

But a September 2023 letter (published by WaPo) regarding the way Robert Hur snooped through Biden’s diaries, which Hur called notebooks to excuse his own prurience, is actually far more troubling.

The letter asserts, then substantiates, a claim that, “at no time in the last thirty years has the Government, including the Department, viewed as actionable the possibility of classified information in the individual writings of a former President or Vice President.”

It describes what happened with Biden’s diaries:

  • January 20, 2023: Hur seizes Biden’s personal diaries and notebooks
  • February 27, 2023: Stuart Delery writes letter noting that DOJ, courts, and Congress have recognized the unique status of presidential and vice-presidential writings
  • Hur reviews diaries in their entirety without prior review by the White House Counsel’s Office
  • Hur sends selections for “classification review” by the Intelligence Community
  • October 8-9, 2023: Hur questions President Biden in the context of a criminal investigation about these materials

It then goes through the record, showing how the government found classified information in not just Reagan’s, but also Poppy Bush’s diaries, as part of Iran-Contra, but didn’t do anything about the diaries themselves outside the context of the focus on Iran-Contra.

It then goes through the publication history of Jimmy Carter’s diaries and memoirs from George W. Bush, Dick Cheney, Barack Obama, and Mike Pence to suggest they had used memorializations to write books that had classified information in them when first submitted to National Security Council for discretionary review.

The description of what happened with Pence’s memoir is most telling. In the very same weeks when Hur was blowing off a letter from Stuart Delery telling him no one had done this before, DOJ’s investigation of Mike Pence made no apparent move to do the same with any notes he used to write his memoir.

Former Vice President Mike Pence published his own memoir on November 15, 2022. Mike Pence, SO HELP ME GOD (2022). Even though Mr. Pence, as a Vice President, had not signed any agreement requiring pre-clearance review, he voluntarily submitted his manuscript to the NSC prior to publication for review for classified information.

Emmet Flood of Williams & Connolly submitted the manuscript to the NSC in June 2022. Ryan Cole, an Indiana writer, was copied on correspondence. We are unaware of whether these two individuals possessed security clearances at the time, or whether draft manuscripts were handled in accordance with security protocols for classified information, but the manuscript was not sent to the NSC under the requirements for transmitting classified materials.

The NSC review resulted in a number of proposed redactions of presumably classified information, which Vice President Pence and his team accepted to the manuscript before it was published.

Two months after the publication date, Vice President Pence’s attorneys discovered classified government documents in his home in Indiana, and the National Archives was notified two days later. Katherine Faulders et al., FBI finds Another Classified Document in Search of Former Vice President Mike Pence’s Indiana home, ABC NEWS (Feb. 10, 2023). A consent search of the home was conducted by Federal Bureau of Investigation agents on February 10, 2023, during which an additional classified document was found and “six additional pages” were also seized. Id. It is unclear the nature of the additional pages. We do not know whether the agents searched for drafts of the manuscript that the NSC had determined contained material that needed to be redacted.

But one thing is clear: the manuscript prepared by Mr. Pence with the help of Mr. Cole and Mr. Flood, which presumably also was reviewed by the publishers at Simon & Schuster, contained material that the NSC required to be redacted. Yet, even including the later search for classified documents, we know of no law enforcement inquiry into this writing.

Hur might retort that Trump’s notes got seized in 2022, along with marked classified documents and a whole shit-ton of other documents that belong to the archives under the Presidential Records Act.

But there’s no public hint that Jack Smith assessed those for criminal exposure. There’s just one document charged against Trump, in any case, that has neither date nor classified markings, such that it might be a note.

There’s an unstated reason why Hur’s obstinance about treating Biden’s diaries differently than other prosecutors before him: because when he was making the decision to snoop through all of Biden’s diaries, Biden was under investigation for a crime that was never going to get charged, but his son was under investigation for crimes that — under Hur’s former colleagues and subordinates in the Maryland US Attorney’s Office — did end up getting charged, probably only because one of them reneged on a diversion and plea deal because an FBI informant empowered by Bill Barr attempted to frame Biden and his son. Hur’s descriptions of Biden’s diaries, which he describes to “include[] gut-wrenching passages about his son’s death and other highly personal material,” make it pretty clear they include information that could be detrimental to Hunter. In fact, it’s not yet clear whether DOJ has returned Biden’s diaries, or whether they’re still treating him differently, even as Hur’s former subordinates use pictures of sawdust to try to convict Hunter Biden.

It’s really hard to treat Hur’s decision to treat Biden differently as anything else but an attempt to snoop through Biden’s diaries in search of other dirt.

And he did that in spite of fairly compelling arguments that he was doing something unprecedented.

Update: Bob Bauer wrote a Lawfare piece debunking some claims made by Ben Wittes that gets at the diaries distinction.

How Merrick Garland Mistook a Trump Hitman for a Career Prosecutor

When Merrick Garland appointed Robert Hur to spend a year reading through Joe Biden’s diaries, he emphasized that Hur was a career prosecutor, even while describing the role his appointee had played as Rod Rosenstein’s Principal Associate Deputy Attorney General (PADAG) and then as a Trump-nominated, Senate-confirmed, US Attorney.

Mr. Hur has a long and distinguished career as a prosecutor. In 2003, he joined the Department’s Criminal Division, where he worked on counterterrorism, corporate fraud, and appellate matters. From 2007 until 2014, Mr. Hur served as an Assistant U.S. Attorney for the District of Maryland, where he prosecuted matters ranging from violent crime to financial fraud. In 2017, Mr. Hur rejoined the Department as the Principal Associate Deputy Attorney General. In 2018, he was nominated and confirmed to serve as the U.S. Attorney for the District of Maryland. As U.S. Attorney, he supervised some of the Department’s more important national security, public corruption, and other high-profile matters. [my emphasis]

In my opinion, the vast majority of Merrick Garland’s critics mistake this — Garland’s naive belief in the good faith of people who have been DOJ employees — for a kind of caution or partisanship. Garland simply believes, I think, that something about working for DOJ rubs off on people and stays there, even the people who did scandalous things during Trump’s term. This is not the only time that faith has or could result in really grave consequences for DOJ’s ability to hold people accountable.

The problem is, with Hur, Garland should have known better, and not just because Hur was obviously a senior member of Trump’s DOJ.

At the end of last week’s Jack podcast (YouTube; Simplecast), Allison Gill and Andrew McCabe discussed the role Hur played in Trump’s DOJ. Gill replayed McCabe’s warnings, a year ago when Hur was appointed, about the former PADAG’s willingness to engage in politics. McCabe pointed to Hur’s role in imposing limits on the Mueller investigation (to which, I’ve noted, Hur didn’t adhere in this review) and participation in a gang arrest press conference staged at the White House, breaching the separation between the White House and DOJ.

But Hur had a more specific role in carrying out a partisan hit job for Trump.

Just after 1:02 on the podcast, in the stuff recorded last week, McCabe described that Hur played a key role in, “overriding the process that I was entitled to and basically accelerating the decision to fire me in an effort to get it done before I could retire.” McCabe claimed that Hur violated his due process to fulfill Trump’s demands to fire the former FBI Deputy Director rather than let him retire on schedule.

As laid out in McCabe’s 2019 lawsuit against DOJ, for months leading up to McCabe’s firing, Trump had been complaining that DOJ hadn’t fired him yet. Against that background, on March 5, 2018, FBI and DOJ started the process of using DOJ IG’s problematic report finding that McCabe lacked candor about serving as a source for one of Devlin Barrett’s biennial right wing hit jobs as an excuse to fire him. Time was short. They had less than two weeks to do that before McCabe’s designated retirement date (depending on how you calculate it, any of the days from March 16 and 19, inclusive).

The process started with Candice Will, the head of FBI’s Office of Professional Responsibility, preparing a recommendation to fire him.

After some discussion on March 5 about whether, in response to McCabe attorney Michael Bromwich’s request, McCabe’s team should get a copy of the IG Report in advance so as to have more time to respond, Will laid out, in a handwritten note sent March 7, that she would send just the letter reporting DOJ IG’s referral, but not the report, to Bromwich. Without saying it directly, Will was signaling she was not going to give Bromwich any extra time to respond.

That same note made it clear that without intervention from DAG — Rod Rosenstein’s office — “it seems unlikely that this will reach final resolution before Mr. McCabe’s March 18 retirement date.” Those rushing to fire McCabe before his retirement recognized on March 7 that the only way they could fire McCabe before he retired was via Rosenstein’s involvement.

The same morning Will explained that they couldn’t manage to fire McCabe before he retired without intervention from Rosenstein’s office, she sent Hur an email asking to speak to him on the phone, “about a matter being forwarded to the DAG?” Remember: at this point, Hur was Rosenstein’s top deputy.

Hur and Will spoke that evening.

Will’s notes from that conversation were, when released via FOIA, almost entirely redacted under a deliberative privilege. They appear to memorialize what happened at a meeting between Hur, Rosenstein, and Scott Schools that day. Schools, the senior career Associate Deputy Attorney General at the time, played a role in DOJ that was always supposed to ensure ethics; in that role, he oversaw the review process leading up to McCabe’s termination.

An email thread documenting how OLC head Steven Engel interpreted the SES guidelines on firing, which Hur then forwarded to Schools, who forwarded it to Will, likewise remains heavily redacted under b5 deliberative exemptions.

Those documents — what Robert Hur told Will on March 7, 2018 and how Steven Engel spun guidelines mapping out what kind of due process senior employees get before you can fire them — are among the records that McCabe would have gotten in discovery if DOJ hadn’t settled the lawsuit.

DOJ redacted less of the emails showing that Will kept Schools and, at times, Hur, informed of how Michael Bromwich frantically tried to review the entire case file in time to mount a legal challenge, but even there, there are deliberative discussions withheld from release.

One thing is clear: with each request Bromwich made, DOJ took days to respond.

In the lawsuit, McCabe’s lawyers noted that Bromwich wasn’t given emails and statements involving FBI’s press person, Michael Korten, that the DOJ IG had ignored — emails that were exculpatory — until the day before Bromwich had to present McCabe’s case to Schools.

Certainly, Andrew McCabe has reason to be biased against Robert Hur, because Hur was part of a team that forced McCabe to fight for years just to get a pension earned over decades.

But you don’t have to take McCabe’s word that Hur played a part in, “overriding the process that I was entitled to and basically accelerating the decision to fire me in an effort to get it done before I could retire.”

Take Merrick Garland’s word on what happened. In response to a question from Chuck Grassley shortly after the settlement, Garland explained why career lawyers at DOJ said they should settle: because they were going to lose the case.

The case … involved a claim that he was not given amount of time necessary to respond to allegations and the litigators concluded that they needed to settle the case because of the likelihood of loss on the merits of that claim.

Garland delivered this heavily rehearsed (and inaccurate — that’s not the only thing included in the suit) statement, explaining that the team that rushed to fire McCabe so they could take his pension had not given McCabe the amount of time required to respond to the allegations against him, on October 27, 2021, over a year before he named one member of that team that deprived McCabe of his due process to lead an investigation into Joe Biden.

Garland was clearly just repeating a well-rehearsed answer in this response to Grassley. It’s unlikely he reviewed the matter closely enough to know that Hur was one of the people, according to the career attorneys who said DOJ would lose the suit, who deprived Andrew McCabe of due process. Though Garland knows how DOJ works. He should have known the universe of people who might be involved.

Given how politically contentious the decision to settle was, however, it is also virtually certain that people in Lisa Monaco’s office did review the details closely. In fact, traditionally, the person who would review matters that — like this one — involve weighing ethical considerations and the potential of a big black eye for DOJ is the career Associate Deputy Attorney General, the successor to Scott Schools, who was involved in the firing.

In July 2018, Jeff Sessions appointed Bradley Weinsheimer as Schools’ successor.

It would be shocking if Weinsheimer didn’t review the decision to settle the McCabe lawsuit.

But if he did, that would be cause for further concern. That’s because Weinsheimer is the guy who rejected complaints from Biden’s attorneys about Hur’s politicized attacks on Biden.

By settling Andrew McCabe’s lawsuit, DOJ conceded that Robert Hur and others had deprived the former FBI Deputy Director of due process. They violated DOJ’s rules to do Trump’s bidding. Then, DOJ put Hur in charge of an investigation of Joe Biden.

But Her Emails: How Trump Trained the GOP to Hate Rule of Law 1

Note: I haven’t quite finished spinning my Ball of Thread out of which I will explain how Trump trained the GOP to hate rule of law. But for a number of reasons — this great Heather Cox Richardson piece marking the Maidan anniversary and Paul Manafort’s role in it, the arrest of Alexander Smirnov in conjunction with a 2020 attempt, assisted by Bill Barr, to frame Joe Biden, and the heightened urgency of the fate of Ukraine — I thought I’d publish this now.

In an alternate reality, the final report laying out how Trump knowingly requested and accepted help — help he may have denied, but which did come from Russia — to win the 2016 election might have started with a nod to these exhibits, submitted in conjunction with Paul Manafort’s guilty plea on September 14, 2018.

The criminal information and exhibits describe Manafort’s efforts to help Viktor Yanukovych neutralize his pro-Western female opponent, Yulia Tymoshenko, first by prosecuting her for corruption, then by launching an increasingly complex transnational influence operation to “plant some stink on Tymo” to justify the prosecution. The exhibits describe how Manafort tried to spin a Skadden Arps report finding that Tymoshenko’s criminal intent “is almost non-existent,” and then how Manafort criminally covered up that effort at spin. There’s even a passage describing how Manafort manufactured a claim that Tymoshenko was antisemitic by getting an Israeli to make a statement to the NYPost.

“Bada bing bada boom,” Manafort bragged about his success in manufacturing a fake election scandal.

It was all an effort, Manafort described, to claim Ukraine was building a “‘rule of law’ democracy” so the EU and US would ignore Yanukovich’s human rights violations.

In that same alternate reality, Manafort would have honored his plea deal, and in the days following Manafort’s September 14 plea, he would have elaborated on the things he told prosecutors in the days leading up to it and some others they likely wanted to know. He might have explained how his Ukrainian backers and probably Konstantin Kilimnik — who a number of people, but not Manafort, admitted might be a Russian spy — seemed to know by December 2015 that Manafort would run Donald Trump’s campaign. Manafort might have revealed more about his meeting with Kilimnik on August 2, 2016, at which he reviewed polling that showed the key to winning was driving up Hillary’s negatives; Manafort might also have explained the relationship between that election discussion and two other topics discussed that night: how he would get paid millions and Kilimnik’s plan to carve up Ukraine for Russia’s benefit. If Manafort had fulfilled his plea deal, he might have explained what his long-time friend Roger Stone pitched to him on August 3, the day after that secret cigar bar meeting, as a way to “save Trump’s ass.”

He might have said more than he otherwise did about how Stone learned, within a few weeks after that August 3 conversation, that WikiLeaks would be dropping emails stolen from John Podesta that would show, Stone hoped, that Hillary’s campaign manager had the same kind of Russian exposures that Manafort did.

Manafort would be vindicated because he had to leave the campaign for being too pro-Russian, and this would show that Podesta also had links to Russia and would have to leave.

None of that happened.

Manafort seems to have decided — perhaps after a conversation his attorney had with Rudy Giuliani around the same day he flipped — to string out Mueller’s prosecutors until after the midterms. After the election Trump fired Jeff Sessions and ultimately replaced him with someone who would shut down the investigation and see to it that Manafort’s imprisonment remained comfortable, and not just comfortable, but amenable to further collusion with Rudy on schemes that would frame Hunter Biden for tax and influence peddling crimes in Ukraine, until such time as Trump could pardon his former campaign manager for tax and influence peddling crimes in Ukraine.

In this alternate reality, then, the story of how Trump taught Republicans to hate rule of law might start with a story of how his campaign manager had spun corruption as rule of law in the past, in Ukraine, and how the 2016 election did something similar in the US.

But then, Republicans didn’t need Paul Manafort’s help to demonize Hillary Clinton. That had been a core focus of the Republican party since her spouse’s presidency. That unrelenting focus on criminalizing the Clintons (and via that narrative, dehumanizing Democrats, thereby heightening polarization) had been nourished over three decades in an increasingly airtight Fox News bubble, one newly challenged by even sloppier, more radical propaganda outlets.

In the years before the election contest with Trump, the right wing propaganda machine manufactured two criminal investigations into Hillary to “plant some stink” on her.

In January 2016 — fifteen years after DOJ first investigated the Clinton Foundation  — three different FBI offices opened investigations into the Clinton Foundation based entirely or substantially on Peter Schweizer’s Clinton Cash. Notably. At least one of the FBI agents handling an informant on that investigation was affirmatively pro-Trump. “I saw a lot of scared MFers on … [my way to work] this morning,” one gloated the day after the election. “Start looking for new jobs fellas. Haha.” As NYT first reported, that investigation remained open until after Trump left office.

And by the time Manafort joined Trump’s campaign in March 2016, House Republicans were three years into their endless Benghazi investigations. After years of pushing, that had morphed into the investigation into Hillary’s private server, which would merge right into the public and private pursuit of Hillary’s deleted emails. “Russia, if you’re listening,” Trump begged a hostile country to find those deleted emails for him, even as his ascendant National Security Advisor worked with a Senate staffer to find out of hostile powers had gotten copies.

Details of both investigations into Hillary leaked, with a slew of stories (one, two, three) fed through Devlin Barrett (then still at WSJ) in the days before the election.

Of course it was Jim Comey who did the real damage, first by usurping DOJ’s authority to issue a prosecutorial decision and then planting some stink on Hillary while doing so. That led to a series of congressional hearings, and ultimately to the reopening of the investigation, predictably leaking days before the election.

Among the many but-fors that decided that election, Comey’s actions were easily the most important. Comey did this — made repeated attempts to stave off claims of partisanship — in a naive bid he could convince the hoards chanting “Lock her up!” of the legitimacy of the decision not to charge.

We’ll never know, but that effort, the orchestrated campaign to criminalize Hillary followed by a ham-handed effort to convince right wingers of the legitimacy of a considered prosecutorial decision, by itself, may have been enough to carry Trump to victory.

This, then, was the raw material Russia exploited in 2016 — stoking both sides of a deep partisan divide fueled by two decades of a propaganda focused on criminalizing Hillary Clinton.

The Republicans proved in that election (or reconfirmed the Whitewater test) that if only they repeated allegations often enough, loudly enough, preferably over and over again in Congress, eventually some criminal investigation would result, a criminal investigation that Republicans could then amplify.

The Republicans came to that election with an unshakeable belief that Hillary was a criminal and if DOJ said she wasn’t, there must be something wrong with DOJ, not any shortcomings in the evidentiary case.

And then Russia dropped a match on that already flaming bonfire.

Where Derek Hines Claims to Have Gotten the Hunter Biden Dick Pics He Sniffed

Even if Judge Maryellen Noreika threw out the gun charges against Hunter Biden today, I’d be grateful for the recent squabble over Hunter Biden’s motion to compel, and not just for the endless amusement of seeing an experienced drug prosecutor like Derek Hines claim sawdust on a table saw is cocaine.

That’s because by providing what he thinks is solid proof that Hunter was an addict in 2018, Hines has revealed a bit about where such evidence exists among the digital evidence he has in hand and where it doesn’t.

Most significantly, for this case, it appears Derek Hines relied exclusively on the laptop to get the texts surrounding the period immediately after Hunter Biden bought a gun. Particularly given the turmoil in Hunter’s access to his devices in those precise days, without validation of the texts in an Apple database, that would make the texts far harder to use at trial.

As a reminder, the Apple data at issue comes from three places:

In December, Hines got a warrant to search the existing data for gun crime evidence, but did not go back to obtain a warrant to access any backed up devices — if they exist — that would be more appropriate to the gun charges.

Hines claimed, in his response to Hunter’s selective prosecution bid that, “the results of the search” of the laptop “were largely duplicative of information investigators had already obtained from Apple.” In his response to Hunter’s motion to compel, he claimed that, “Many of the same messages, photographs, and information that were obtained from the iCloud warrants were also located on the defendant’s laptop,” but made no representations about the reverse — whether all the messages present on the laptop were in the iCloud production.

It appears they were not.

This table shows my rough transcription the 28 items included in Hines’ exhibit of gun-related evidence. Let me know of errors, particularly with my time conversations between UTC and “Hunter time,” which I’ve assumed was PT for the earlier texts and ET for the later ones. I’ve bolded those instances where “Hunter time” is the day before UTC time. My transcription of the hex identifiers, where Hines included them, are especially likely to have errors (and only include the first identified hex for each item).

These items include:

Items 1, 26-28: Four pictures, all of which he has presented without hex identifiers or EXIF metadata. Two come from iPhone backups obtained from Hunter’s iCloud (one being the iPad on which items 28-25 were found); two (including the sawdust picture) come from what is described as an iPhone 11 backed up to iTunes, apparently found on the laptop; I’m aware of no public record of Hunter owning an iPhone 11. Note: for the reason zscoreUSA notes below, Hines’ label of the sawdust picture as an iPhone 11 must be an error, as those were first released on September 20, 2019, too late to be on the laptop, and only possible to be included in the iCloud returns if Hunter got one the day they were released and backed up everything to an iPhone 11. So it may be a typo for iCloud backup 11, which would be an iPhone XR. 

Items 2-10: Nine texts, dated between May and July 2018, obtained from iCloud Backup 1, which the warrant return describes as an iPhone X. Six of those, items 5 through 10, appear to record a drug transaction arranged over the course of a half hour overnight on July 25-26. While this backup is associated with an iPhone X of uncertain vintage (Hunter went through at least three iPhone Xes in 2018), seven items were obtained from a device called XRNASHUA, an iPhone XR; Apple did not introduce the iPhone XR until October 2018 and Hunter is not known to have obtained his first one until spring 2019, in New Haven, not Nashua. The only two communications obtained from an iPhone X, Items 3 and 4, used an unknown phone number. Item 2 is a WhatsApp text.

Items 11-17: These texts, showing exchanges between Hunter and Hallie Biden on October 13, 14, and 23, derive from what Hines describes as an iTunes Backup. Hines doesn’t identify of which phone — not even the device type — nor does the metadata included identify which phone Hunter used. Just one of the texts Hunter sent, item 13, is described as “delivered” after it was “sent.” I’ll return to these below.

Items 18-25: These texts came from an iPad Pro called “Robert’s iPad” which, based on the serial number included in Gus Dimitrelos’ report, was purchased in November 2015.

iPad Pro 12.9-inch (1st generation) Wi-Fi
Purchase Date: November 2015

Serial Number: DLXQL4EUGMLD

Emails released on BidenLaptopEmails dot com show someone logging into Hunter’s iCloud, Facetime, and iMessage with an iPad Pro on November 11, 2015, the same day Gus Dimitrelos shows it — named as Roberts, no apostrophe, iPad — logging into Hunter’s iCloud account. The next day, a pricy iPad pencil was ordered from Apple, though it was on backorder until January 2016. On May 20, 2016, Find my iPad was used to play a sound on an iPad called “iPad 206” twice. The process of signing into iCloud, then Facetime and iMessage with an iPad Pro, was repeated on September 11, 2016, what Dimitrelos describes as the first access by iPad 206, the one already associated with Hunter’s account earlier that year. On October 26, 2016, Find my iPad was disabled on iPad Pro 206 and on November 13, 2016 the cards were removed and the device was deleted — presumably, given that Find my iPad had been disabled, in person. Those same publicly released emails show no other iPad Pros logging for the first time into Hunter’s account, though in August 2018, an iPad (not identified as a Pro) was deleted, with that process completing in September 2018. But Dimitrelos shows four other iPads named either “Robert’s” or “Roberts” iPad logging into Hunter’s account (February 19, 2013, August 24, 2017, October 21, 2017, January 21, 2018). Of the texts included in Hines’ exhibit, which were sent between November 8 and December 27, 2018, just one, item 20, was marked as delivered and read, and it wasn’t one of the ones sent to probable family members.

I’ll leave the technical discussion there, in case anyone understands how Apple tracks iMessage texts or the difference between texts saved in ChatStorage and SMS.

But several general conclusions stick out. First, it’s likely that two of the devices for which Hines got a new warrant for drug crimes in December 2018, iCloud Backup 2, a 6S, and iCloud Backup 3, seemingly a different XR, had no communications pertinent to the year in question, 2018 [update: unless the explanation for Hines’ error in labeling photos as iPhone 11 is a typo for iCloud backup 11]. That will be of interest if Abbe Lowell ever gets to file a suppression motion, since there could be no probable cause to obtain content from an unrelated period. Second, it’s not clear that any of these devices were the devices on which the communications in question were sent. Hines’ best evidence of a drug purchase — those texts from July 25-26, 2018 — would probably have been sent in an iPhone X and then synched onto an iPhone XR purchased quite a bit later. As with all the other digital evidence Hines seems not to have thought through, given how often Hunter lost devices with access to his iCloud account and how rarely he reset it, it’s not enough to show that texts saved through Hunter’s iCloud showed evidence of a drug purchase. You would have to show that the phone on which those texts were originally sent was in Hunter’s hand at the time the texts were sent.

And this problem is especially fraught for those October 13-14 texts sent between Hallie and Hunter in October 2018, by far the most important evidence for his case. Here’s how they fit in with the timeline I laid out here, showing how Hunter responded after realizing he had misplaced both his main phones on October 11. The two main texts (in bold below) appear to have been sent before Hunter first logged into his new replacement iPhone and before he changed his password, even while people were clearly trying to break into some of his accounts. So prosecutors would have to prove that those texts weren’t sent by whoever inherited the phones Hunter had just lost.

Timeline

October 12, 12:56PM: As you requested, your temporary [AT&T] password is: ****** Use your user ID and temporary password to sign in to your account.

October 12, 12:56PM: Looks like you recently updated the AT&T password.

October 12, 12:57PM: Critical security alert for your linked Google Account, Sign-in attempt was blocked for your linked [RosemontSeneca] Google Account [device not specified]

October 12, 3:25PM: Thanks for using your AT&T Device Protection Plan! Your claim [ending in 431] has been started

October 12, 3:32PM: Thanks for using your AT&T Device Protection Plan! Your claim [ending in 431] has been started

October 12, 3:38PM: Thanks for using your AT&T Device Protection Plan! Your claim [ending in 579] has been started

October 12, 3:40PM: Your [AT&T] insurance claim [phone ending in 96]

October 12, 3:44PM: Your [AT&T] insurance claim [phone ending in 13]

October 12, 3:49PM: Thanks for using your AT&T Device Protection Plan! Your claim [ending in 701] has been started

October 12, 3:55PM: Please complete and return your claim documents Wireless Number: **94

October 12, 3:57PM: Thanks for using your AT&T Device Protection Plan! Your claim [ending in 799] has been started

October 12, 4:03PM: Please complete and return your claim documents Wireless Number: **29

October 12, 5:35PM: Hello. Review your AT&T order

October 12, 6:22PM: Good news. Your replacement device [grey Apple iPhoneX] has shipped. [phone ending in 13]

October 12, 6:24PM: Phone [email from Joey]

Hey, You left your phone and other things. Tried to reach you at 202 and 302 all day but no luck. Let me know where to overnight.

October 12, 7:20PM: Good news. Your replacement device [iPhone 8] has shipped. [phone ending in 96]

October 12, 8:00PM: Verify your Samsung account [accessing Hunter’s iCloud]

October 12, 11:31PM: Someone Just Checked Your Background Report

October 13, 7:10AM: (Email) You left your phone. How do I get it to you?

joey

October 13, 7:26AM: (Email) You left your phone. How do I get it to you?

joey

October 13, 11:13AM: Let’s setup your AT&T replacement device [phone ending in 13]

October 13, 12:35AM: Someone Just Checked Your Background Report

October 13, 2:00PM: Hello, Review your AT&T order [changes to wireless]

October 13, 9:17PM: Your [RosemontSeneca] Google Account was just signed in to from a new Samsung Galaxy Note 9 device

October 13 10:30PM: I’m now off MD Ave behind blue rocks

October 13, 11:36PM: Wells Fargo Has Registered Your Mobile Device

October 14, 5:37AM: I was sleeping in a car

October 14, 2:24PM: Your Apple ID password has been reset

October 14, 2:24PM: Your Apple ID was used to sign in to iCloud on an iPhone X

October 14, 3:28PM: Wells Fargo card added to Apple Pay

October 14, 3:36PM: Verify your Samsung account [on iCloud]

October 14, 7:48PM: (Email from Joey) “Overcoming myself”

When you have a minute, read ….

Open my shared note:

Robert Hur Complained about Biden Notes that Trump Almost Certainly Already Declassified

If you ignore the overreading Robert Hur confessed to in order to justify writing a 388-page report that should have been 75, if you ignore the way Hur improperly used prejudicial language to attack a Presidential candidate and set up impeachment frenzy among Republicans, there are some interesting historic details about Robert Hur’s report, such as the details of what classified documents investigators found.

Thirty-four pages of the report consist of appendices, describing what investigators found where. And because Hur spent 156 pages explaining why he didn’t indict Biden based on the actions of Senate staffers shipping 2,000 boxes of Speech and Debate protected documents first to the Archives and then the University of Delaware decades ago, there are descriptions of how virtually all of the documents got where they ended up (except, of course, the two folders of Afghanistan documents around which he builds the excuse to write a 388-page report).

One of the most interesting descriptions, for example, explains how some of the most sensitive documents the FBI found — an envelope of documents about Obama’s Iran deal, including several with a bunch of compartment markings — probably ended up at Penn Biden Center.

The report describes that the documents were compiled in anticipation of a January 29, 2015 breakfast meeting at the Naval Observatory at which Biden attempted to persuade six Senators who had traveled to Israel together to support Obama’s Iran deal. Biden’s staffers got a bunch of compartmented documents delivered in advance; they were properly signed off in person. A picture of the breakfast meeting shows Biden with an envelope that may contain the documents in question.

Another picture shows Biden with some of the handwritten notes that would end up at Penn Biden Center.

Unlike he did with the Afghan documents, Hur did not invent a narrative to explain why Biden might have wanted to retain these. He noted that Promise Me, Dad, barely mention the Iran deal (it similarly barely mentioned the Afghanistan memo, but that didn’t deter Hur).

Hur surmises that Biden simply kept these really sensitive documents on hand, and they got moved, by someone else, when he left office.

Given his practice of having his front office staff store files he wanted to keep close at hand, Mr. Biden likely gave the EYES ONLY envelope to his executive assistant to keep within reach for future engagement with members of Congress. He and his staff appear to have eventually forgotten about it-along with other older files in the front-office collection-and staff members unwittingly moved it out of the West Wing at the end of the administration.

That’s how Hur declined to prosecute some of the most sensitive documents discovered (documents that, it should be said, would require Senators to testify if they were ever charged).

Less interesting and far more tedious are Biden’s Senate documents. Under Hur’s supervision, the FBI spent what must have been days and days going through the boxes sent in several passes to University of Delaware, discovering decades-old documents, many labeled Confidential which, he conceded, could be either a classification mark or Senate discretion.

Some of the documents are marked “CONFIDENTIAL.” While that is a valid marking for classified information, the term “CONFIDENTIAL” is also used in other contexts not involving classified information. Senate staffers could have understood these to be internal committee documents or simply sensitive documents created by authors who wanted to limit the number of people who viewed them.

It should trouble Members of Congress that Hur never took Speech and Debate under consideration in his analysis, particularly given that these were documents that Biden specifically didn’t want to retain.

Hur spent almost four pages discussing two binders (and one corresponding document found at Penn Biden Center) titled, “Weekend with Charlie Rose,” which were not marked as classified on the front.

It was, quite obviously, a briefing book that got brought back from Aspen to the Wilmington house and never moved from there.

In searching the contents of the box in the garage where they found one of the “Weekend With Charlie Rose” binders, agents found binders from other trips Mr. Biden took as vice president in the same box. 1340 A naval enlisted aide recalled that Mr. Biden kept such binders after returning from his trips. 1311

There must be hundreds of similar briefing books top officials brought back from one or another Aspen conference. That’s a problem. It’s not a crime.

You can see how tedious — and unnecessary — parts of this exercise were.

It’s Hur’s analysis of Biden’s diaries that I find most interesting, and troubling. Hur’s approach to these diaries is one of the most obvious flags of political bias in a report full of them.

Take his use of language. The word “diaries” appears 103 times in the report [note: someone with interns should replicate this work, as it is inexact]. In about five of those instances, Hur quotes the people around Biden referring to these notebooks as diaries. Two instances discuss the Presidential Record Act’s language treating diaries as personal records, exempt from PRA. Maybe ten or so appear in a section where Hur envisions that Biden would describe these as diaries as a defense, but the word is always put in Biden’s mouth. Hur adheres to using “notebooks” here.

Mr. Biden will likely say, he never believed his notebooks, which he thought of as his personal diaries, fell within that arrangement. He treated the notebooks markedly differently from the rest of his notes and other presidential records throughout his vice presidency, for example, allowing staff to store and review his notecards, but not his notebooks. 914 This treatment, he will argue, and the extremely personal content of some of the notebooks, shows that he considered them to be his personal property. Mr. Biden’s notebooks included gut-wrenching passages about his son’s death and other highly personal material. 915 His claim that he believed he did not need to send what he considered to be his personal diary to be stored at a government facility will likely appeal to some jurors. 916

We expect Mr. Biden also to contend that the presence of classified information in what he viewed as his diary did not change his thinking. As a member of the exclusive club of former presidents and vice presidents, Mr. Biden will claim that he knew such officials kept diaries, and he knew or expected that those diaries-like Mr. Reagan’s-contained classified information. 917 He also understood that former presidents and vice presidents took their diaries home upon leaving office, without being investigated or prosecuted for it. [all emphasis mine]

But the overwhelming bulk of those remaining 85 or so uses of the word “diaries” describe Reagan’s (or in two cases, other Presidents’) diaries.

By contrast, there are 461 uses of the word “notebook” in Hur’s report. That’s the word Hur uses to refer to what he quotes people around Biden calling the President’s diaries.

Reagan had diaries. And as a result, when DOJ discovered them, they remained untouched.

Biden has notebooks. By calling these notebooks, Hur permitted himself to do with Biden’s most private thoughts what DOJ did not do with Reagan’s: review them all.

Mr. Biden’s notebooks, which contained, among other things, his handwritten notes taken during classified meetings as vice president, presented a challenge. None of the pages contained classification markings but investigators assessed some of the content was potentially classified. Classification review by intelligence agencies of unmarked information is more challenging and time-consuming than for marked documents. We therefore reviewed all of Mr. Biden’s handwritten notes and selected thirty-seven excerpts totaling 109 notebook pages to submit for classification review. Investigators selected entries they believed were most likely highly classified and that a jury of laypeople would find was national defense information under the Espionage Act. [my emphasis]

All the gut-wrenching passages about Beau and whatever else (likely including a great many gut-wrenching passages about Hunter)? They’re identified with footnotes to make it easier for Jim Jordan to find them. Not dick pic-sniffing, honest. Just an attempt to find 37 excerpts that a jury of laypeople might believe were National Defense Information, even though the Presidential Records Act has a clear exception for diaries, and so this was never going to be charged anyway.

I was interested in what Hur selected anyway, but this background — the linguistic games Hur played to be able to snoop in Biden’s diaries — made the inquiry more important. Some of the 37 excerpts he chose were predictable.

Several weeks after the killing of Osama bin Laden, for example, then-Vice President Joe Biden wrote down his recollections about it, just like every other person involved.

On June 19, 2013, not quite two weeks after the first Snowden leaks, Biden attended a briefing by the National Security Agency.

Because it’s Joe Biden, there has to be an Amtrak connection.

But the selection that fries my ass about this exercise — the selection that makes me confident this shit is intended to blow up later in the year — is this one.

I have no doubt in my mind that these two pages of Biden’s diary are his version of these notes, Peter Strzok’s memorialization of Jim Comey’s description of what happened in the January 5, 2017 White House meeting where Comey, Barack Obama, Joe Biden, Susan Rice, and Sally Yates discussed what the fuck they were going to do about the fact that Trump’s incoming National Security Advisor had been picked up on FISA intercepts undermining Obama’s policy on Russia.

The red outline, as most will remember, is where someone who participated in Jeffrey Jensen’s review added an inaccurate note to package this up for a campaign attack on Biden.

The reason this fries my ass is that this meeting is something that Donald Trump and his allies have spent years politicizing and — as proven by that added misleading date — lying about.

The other reason this fries my ass is that Trump has declassified details of this, over, and over, and over. Hell, he even declassified the intercepts that might explain the HCS-O classification. It’s not entirely clear who did the declassification review of this (Hur had State stand in for the National Security Council to avoid conflict, but not in this case).

But particularly given the politicized background of this investigation, Hur should have left this well enough alone. It should not be the case that by licensing himself to snoop in Biden’s diaries, Hur can dig out the things Donald Trump would most like to read.

Robert Hur licensed himself to rifle through Joe Biden’s most personal thoughts by calling Biden’s stacks of paper “notebooks” rather than “diaries.” He then provided specific details about not just where to find the painful memories of his family struggles. But also one event that Trump has spent years trying to misrepresent.

Robert Hur’s Box-Checking

In the middle of his explanation for why he believed that Joe Biden had willfully retained classified records pertaining to Afghanistan but that he couldn’t prove that beyond a reasonable doubt, Special Counsel Robert Hur admitted that jurors “who are unwilling to read too much into” what Hur describes as an 8-word utterance would find his case lacking.

But reasonable jurors who are unwilling to read too much into Mr. Biden’s brief aside to Zwonitzer–“I just found all the classified stuff downstairs”–may find a shortage of evidence to establish that Mr. Biden looked through the “Facts First” folder, which is the only folder known to contain national defense information. These jurors would acquit Mr. Biden of willfully retaining national defense information from the “Facts First” folder.

I’m puzzled how this is not a confession that he, Hur, was really reading too much into two file folders the FBI found in a box in Biden’s garage.

Indeed, that’s what two bizarre chapters in his story are, Hur the novelist, spinning a story about this box because, he admitted much earlier, this is the best he’s got.

As explained in Chapter Eleven, the strongest case for criminal charges against Mr. Biden relating to the Afghanistan documents would rest on his retention of the documents at the Virginia home in 2017.

The only other retained documents he even considered charging were Biden’s diaries, which Biden seems to have kept under the Presidential Records Act’s exclusion of diaries from the definition of Presidential Records (though Hur included a picture of Biden taking notes in one of these notebooks during a key meeting in the Situation Room, so that notebook, at least, was a Presidential Record).

(3) The term “personal records” means all documentary materials, or any reasonably segregable portion thereof, of a purely private or nonpublic character which do not relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President. Such term includes–

(A) diaries, journals, or other personal notes serving as the functional equivalent of a diary or journal which are not prepared or utilized for, or circulated or communicated in the course of, transacting Government business;

To sustain his claim that those notebooks represented willful retention that he couldn’t prove, Hur got in a squabble about the precedent set by Ronald Reagan’s diaries, which similarly included classified information, but which weren’t charged even after they became key evidence in the Iran-Contra investigation. Biden had a precedent to rely on, and so Hur didn’t charge.

So left with only the box in the garage to appease the Republicans, Hur worked backward from this reference in a conversation Biden had with his ghost writer in 2017, the 66-word utterance on which he built a 388-page report:

So this was – I, early on, in ’09-I just found all the classified stuff downstairs-I wrote the President a handwritten 40-page memorandum arguing against deploying additional troops to Iraq-I mean, to Afghanistan-on the grounds that it wouldn’t matter, that the day we left would be like the day before we arrived. And I made the same argument … I wrote that piece 11 or 12 years ago. [my emphasis]

Only Hur didn’t call it a 66-word utterance. He called it an 8-word utterance, repeating those bolded eight words 23 times in the report without mention of the 40-page memorandum that Biden mentioned in the same sentence. Only once did he provide the full context.

Biden’s attorneys argued that given that Biden mentioned it in the very same sentence, it’s more likely that Biden was referring to that memo than two folders of documents found in a box in Biden’s garage.

We believe that an accurate recitation of the evidence on this point would recognize the strong likelihood that the President was referring in the recording to his private handwritten letter to President Obama — the one mentioned on this recording immediately after the eight words that you are focused on — rather than the marked classified Afghanistan documents discovered in the Wilmington garage.

There were drafts of the memo — which Biden wrote over Thanksgiving in 2009 in an attempt to dissuade President Obama from surging more troops into Afghanistan — in the box in the garage, but the FBI found the hand-written memo itself stored elsewhere in Biden’s Wilmington home. It too had classified information in it, but Hur treated it like the diaries it was found in, something Biden wrongly treated as a personal document.

Because these documents on Afghanistan were the only thing he had, Hur went to some length to spin a story that might be consistent with Biden finding those documents in a rental house in Virginia in early 2017 and, just weeks after having sent other marked classified documents back to the Naval Observatory, deciding to keep them.

Part of that involved telling two stories, which narratively collapse events from 2017 with the discovery of the documents in question, to provide motive.

Hur’s first attempt suggested that Biden willfully retained these documents to help write his book, Promise Me, Dad, on which he was working with the ghost writer to whom he mentioned classified documents.

MR. BIDEN’S SECOND BOOK, PROMISE ME, DAD, AND THE DISCOVERY OF CLASSIFIED AFGHANISTAN DOCUMENTS

Like many presidents, Mr. Biden has long viewed himself as a historic figure. Elected to the Senate at age twenty-nine, he considered running for president as early as 1980 and did so in 1988, 2008, and 2020. During his thirty-six years in the Senate, Mr. Biden believed he had built a record in both domestic and foreign affairs that made him worthy of the presidency.

In addition to the notebooks and notecards on which he took notes throughout his vice presidency, Mr. Biden collected papers and artifacts related to noteworthy issues and events in his public life. He used these materials to write memoirs published in 2007 and 2017, to document his legacy, and to cite as evidence that he was a man of presidential timber.

Only, that story didn’t work, because Promise Me, Dad wasn’t about Afghanistan, it was about Beau’s death and Biden’s subsequent decision not to run for President in 2016. And while Hur tried to fudge what surely was the result of a classification review, that book had no classified information in it.

As Biden’s attorneys noted, not only wasn’t Promise Me, Dad about Afghanistan, but Biden never wrote a book — never intended to write a book — about this Afghanistan policy dispute.

Your report erroneously (and repeatedly) makes statements about the value of the marked classified Afghanistan documents to President Biden, such as President Biden had a “strong motive” to keep them and they were an “irreplaceable contemporaneous record” like the notebooks. Report at 203. 231. These statements are contrary to the evidence and the documents themselves. First the President forcefully testified that he “never thought about writing a book about the 2009 Afghanistan policy review. Tr., Day II at 22. Thus, the President had no need to retain the documents for that purpose.

So Hur tried again in the following chapter. This time his story — one relying primarily on books other people wrote — Obama, Stan McChrystal, and Robert Gates, with only Ron Klain backing it with witness testimony — was that Biden needed the documents for vindication, when Afghanistan turned into America’s Vietnam. Secret vindication, I guess, given that Biden didn’t use this in the 2020 election.

To fully appreciate Mr. Biden’s references to Afghanistan in his conversation with Zwonitzer on February 16. 2017, it is helpful to understand Mr. Biden’s place in the fraught debate about American policy in Afghanistan in the early days of the Obama administration.

In that debate. Mr. Biden played a conspicuous role. He strongly opposed the military’s effort to send large numbers of U.S. troops to Afghanistan, and this opposition culminated in the lengthy handwritten memo Mr. Biden sent President Obama over the Thanksgiving holiday in 2009. By 2017, Mr. Biden believed his judgment as reflected in the memo had been vindicated by history. Years later, in December 2022 and January 2023. FBI agents found the handwritten Thanksgiving memo and marked classified documents containing his advice to President Obama in Mr. Biden’s Delaware home.

This is a closing argument. This language is wildly inappropriate in a declination memo, because Hur didn’t find the evidence to back this story!

Worse still, it’s stupid. Because all Biden needed for vindication was that 40-page memo, the one he mentioned in the very same sentence as he mentioned the classified documents. The one stored inside the house, not in a discarded box in the garage. The one he never used during the 2020 election.

But Hur was undeterred by a stupid motive argument.

Next, after admitting that the FBI never succeeded in tracing the Afghan documents, much less proving they were in the basement of the Virginia house, he used this photo analysis to claim that the box found in the garage is the same one that appeared in two pictures taken in Biden’s Wilmington office in 2019, shortly after everything was shipped from Virginia to Delaware.

Maybe that’s right? Or maybe (as some people argued in this thread on Xitter) the D on the box in the garage is shaped differently and in a different place on the box lid than the one in the picture. Whatever it is, it’s no smoking gun.

Finally, Hur goes to the contents of the box, claiming — with some justification — that some of the things in the box date to the same period when Biden uttered those 8 or maybe 66 words to his ghost writer.

Several folders in the garage box contained materials that Mr. Eiden appears to have accessed both shortly before and shortly after February 16 2017, the day Mr. Biden told Zwonitzer he had “just found classified documents downstairs. 582 For example, in January 2017 less than a month before told Zwonitzer he had just found the classified documents downstairs, Mr. Biden appears to have accessed documents later found in the box. On January 23, 2017. Biden wrote a notebook entry about a call scheduled for later that to finalize a deal with Creative Artists Agency (CAA), a talent agency that went on to represent him in negotiating his book deal for Promise Me, Dad. 583 The same entry also referenced Mr. Biden’s work with his sister on his “S Corp.”584

The box found in Mr. Biden’s garage contained a corresponding file folder, labeled “Signed Contracts Penn, CAA,” which contained the signature page of a final agreement between Mr. Biden and Creative Artists Agency.585 Mr. Biden signed the agreement, which was dated a few days after the notebook entry, on January 26, 2017.586 The folder also contained the final agreement between Mr. Biden and the Penn Biden Center-Mr. Biden’s primary employer after his vice presidency-which Mr. Biden signed, also on January 26, 2017. 587 And the folder contained a W-9 tax form for Mr. Biden’s S corporation, CelticCapri, which Mr. Biden used to receive income from book deals and speeches, among other purposes.588 The W-9 form listed Mr. Biden as the president of the S corporation and was signed by Mr. Biden and dated January 30, 2017-less than three weeks before Mr. Biden told Zwonitzer he had just found classified documents downstairs.589

The argument would be more persuasive, admittedly, if Hur didn’t confess that the FBI got the documents that had been in the box out of order when they repackaged them.

When FBI agents repackaged the contents of the ripped garage box into a new box on December 21, 2022, it appears the order of a few of the materials changed slightly. This chapter discusses in detail below two folders that contained marked classified documents about Afghanistan: the manila “Afganastan” folder and the red “Facts First” folder. It appears the “Afganastan” folder was near the “Facts First” folder in the garage box when agents recovered the box, but the precise original location of the “Afganastan” folder at that time is unknown.

Dudes. This was a consensual search of the President’s home, and you couldn’t even repackage documents competently? Really?

This argument would be more persuasive still if Hur weren’t ignoring some of the other things that were found in the box, that had nothing to do with Biden’s transition in 2017, which Biden’s attorneys described this way:

Your characterization of the box in the garage as containing only matters of “great personal significance” to the President is inconsistent with the facts. The evidence shows that this tattered box contained a random assortment of documents. including plainly unimportant ones such as: a short-term vacation lease; a VP-era memorandum on furniture at the Naval Observatory for purchase; talking points from speeches; campaign material; empty folders; a 1995 document commemorating Syracuse Law’s 100-year anniversary; and other random materials. In his interview. President Biden commented regarding one of the folders, which read “Pete Rouse”: “Christ that goes back a way,” confirming that he had not encountered that material in recent years. Tr., Day I, at 144. When asked how things like a binder labeled “Beau Iowa” got into the “beat-up” box. the President responded “Somebody must’ve, packing this up, just picked up all the stuff and put it in a box, because I didn’t.” Id. at 146. When asked about the later-dated material, the President responded: “[s]ee, that’s what makes me think just people gathered up whatever they found, and whenever the last thing was being moved. So the stuff moving out of the Vice President’s residence, at the end of the day, whatever they found. they put – they didn’t separate it out, you know, Speakers Bureau and Penn or whatever the hell it is. or Beau. They just put it in a single box. That’s the only thing I can think of.” Id. at 147. Some of the documents in the box contain what appears to be staff handwriting–including a D.C. tax return and a W2-further indicating that the box was likely filled by staff. We believe that an accurate recitation of the evidence on this point would include a description of these facts.

The true jumble of the box is particularly important because, elsewhere, Hur used the similar miscellany in a different box to rule out the possibility of willful retention for some of the documents found at the Penn Biden Center.

Finally, several of the files in the box where the EYES ONLY envelope was found appear to have been forgotten files of little value to Mr. Biden, such as the file about a 2011 ski trip. The files, therefore, do not appear to be a set that Mr. Biden personally curated. Nor do they appear to be the type of files people keep close as a matter of course in their everyday lives.

Hur adopted a different standard where it was clear only staffers were involved in packing a box than he did with a box that was central to “the strongest case for criminal charges against Mr. Biden.” Hur needed this box to be personally curated by Joe Biden, and so he omitted a bunch of random stuff that would debunk his story.

Still, this entire investigation should never have gotten this far, to where Hur was doing desperate last interviews three months after Biden’s own interview, to where Hur was spending 156 pages describing his declination decisions, and so in the process describing every single document at length.

To get there, Hur did something almost unheard of in declination decisions for 18 USC 793(e) cases: He treated “failure to deliver” as affirmative. Bizarrely, when he gets to the part of his discussion of the statute where he describes having to prove that Biden refused to deliver National Defense Information documents to an appropriate government official, he pivots, changes the subject, mid-paragraph.

Finally, the government must prove that a defendant willfully retained the material and failed to deliver it to an officer or employee “entitled to receive” the information. The statute does not define who is “entitled to receive” the information, so again, courts have looked to the governing rules concerning the handling of classified materials, primarily the executive order. 758 Generally, those entitled to receive the information are people with the requisite security clearance and the need to know. 759 Willfulness is a heightened mens rea, which as articulated by the Supreme Court in Bryan v. United States, requires proof “that the defendant acted with knowledge that his conduct was unlawful.” 760 Under the Espionage Act, an act is willful when “it is done voluntarily and intentionally and with the specific intent to do something that the law forbids. That is to say, with a bad purpose either to disobey or to disregard the law.” 761 While willfulness requires proving an intent to disobey the law, courts have applied Bryan’s standard of “simple willfulness” to Section 793(e) and rejected any need for the government to prove an intent to cause harm. 762

Accordingly, to prove a violation of Section 793(e) we would need to show that Mr. Biden knowingly retained national defense information and failed to deliver it to an appropriate government official, and that he knew this conduct was unlawful. [bizarre pivot] As discussed in more detail below, because of the interrelation between “national defense information” and “classified information,” when evaluating a potential Section 793(e) charge, the Department considers whether the information the person possessed was classified and whether the person knew it was classified.

In doing so, he dodges (here) the difficulty with charging a President with 793(e): That unlike actual clearance holders, Biden was never processed out of a clearance, which is where prosecutors fulfill that prong of the elements of offense when charging 793(e) along with other crimes, like leaking. When people with clearance leave their job, they’re reminded they have to give stuff back; because he wasn’t processed out of a clearance, Biden never got that talk.

Hur then wanders off a little ways, then returns to the question of delivering classified documents to someone entitled to receive them, by purporting to distinguish 793(e) from 793(d).

Subsection (d) also does not apply, because it requires a failure to deliver materials on demand, and when asked to return any classified materials from his vice presidency, Mr. Biden consented to searches and returned all potentially classified materials that were discovered. 767

Nuh uh! That’s not the difference between (d) and (e). The main difference is whether someone is authorized to have classified information or not.

(d) lawfully having possession … or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it;

(e) unauthorized possession … or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it

Even for dirtbags like Jeremy Brown, DOJ generally only charges a retention charge absent something else after an officer asks for documents back. In Brown’s case, for example, they called an officer who had asked for the specific charged documents back to testify at trial to prove that prong of the elements of offense. And because Joe Biden was never processed out of a clearance, because the Archives never came looking for these, no one ever asked him to give the documents back.

Until he offered the documents up.

This entire report, all 388 pages of it, is based on a wild misrepresentation of how DOJ approaches Espionage Act prosecutions. And to the extent it’s not — to the extent that Hur is clinging to events caught on tape back in 2017 — the Statutes of Limitation have long expired.

And that gives up the game, even more than Robert Hur’s confession that jurors who weren’t, as he spent a year doing, “read[ing] too much into” some documents found in a box, would never convict on this.

Hur spent a year trying to find facts that would allow him to charge Joe Biden, charge a President, doing backflips with the evidence along the way, and then writing up a report that provides far more evidence about 40 year old documents covered by Speech and Debate than we’ll ever learn about the stolen documents at Mar-a-Lago.

This was never an ethical prosecutorial pursuit. It was always about writing a novel for a rabid audience.

Or, as you might consider it, just an exercise in box-ticking for partisan ends.

Update: I’ve been corrected: The SOL on Espionage Act is 10 years.

Michael Bromwich Warns of Robert Hur Report Ahead of Release

Merrick Garland has informed Congress that Robert Hur, the Special Counsel who spent an entire year confirming that when Joe Biden discovered classified information, he returned it, has finished his investigation and will release it pending a privilege review.

ABC’s report on the release raises cause for concern. Former Inspector General Michael Bromwich, who represented twenty witnesses in the inquiry (and who also has represented Andrew McCabe in avenging his firing), cautions that Hur is refusing to ensure he has the proper context for the interviews he did.

According to attorney Michael Bromwich, for the past month he has repeatedly suggested to Hur’s team that — without such a review — Hur might miss “proper factual context” for the information that each of his clients provided.

But, as Bromwich described it, Hur’s office repeatedly told him that none of the witnesses in the probe would be able to see the report before it became public.

“It’s a huge process foul, and not in the public interest,” Bromwich told ABC News.

An attorney representing other witnesses agreed, saying that his clients should be able to review a draft of Hur’s report before its release.

The ongoing dispute underscores a growing concern among Biden’s closest aides — and the attorneys representing them — that Hur’s report could be substantially critical of Biden, even if it doesn’t recommend charges against him.

ABC News previously reported that Hur’s team had apparently uncovered instances of carelessness related to Biden.

Speaking to ABC News on Wednesday, Bromwich said he expects anecdotes and information provided by many of his clients — ranging from junior staffers to senior advisers — to be included in Hur’s report, but he declined to offer any specifics.

However, Bromwich noted that Hur’s investigation has been so far-reaching that investigators even interviewed waitstaff who had worked an event at Biden’s home in recent years to determine if they might have been exposed to classified documents.

Hur is absolutely right that other Special Counsels have not offered witnesses the ability to review a report before its release.

But his immediate comparison is a tell.

Hur, a close associate of Rod Rosenstein who served as his Principal Associate Deputy Attorney General during (and therefore supervised) the Mueller investigation in its earliest, productive phase, may be thinking of the Mueller Report. In its first 200 pages it laid out how Trump’s willingness to welcome Russian help during an assault on democracy showed evidence for, but not enough to charge, a conspiracy (though the investigation into Roger Stone for such a conspiracy remained ongoing). All of it, though, was tied to a series of prosecutorial decisions. In its second 200 pages, it described obstructive conduct as President that could not be charged.

Rosenstein, after barely keeping his job in the wake of disclosures that he had considered wiretapping the President, participated in a corrupt declination for those actions.

There are key differences between the Mueller Report and what we should expect the scope to be for this report — notably, that much of the conduct pertains to what happened between the time Joe Biden left the Naval Observatory and when he moved into the White House.

And, more importantly, Bromwich advised people to cooperate. And such cooperation no doubt freed Hur to search and search and search in a way that was not possible when key witnesses were lying to obstruct the investigation, as happened with Mueller.

That’s how you spend over a year confirming what was known from the start.

But Hur’s stance also comes in the wake of the Durham Report, which because of a supine press, has never been exposed as the propaganda hit job it is. It is provable that Durham:

  • Was appointed without evidence any potential crime had been committed
  • Engaged in a review of other investigations taken during an election (and lied about the results), something that is not remotely a prosecutorial function and does not remotely belong in a SCO report
  • Fabricated a key claim against Hillary Clinton, one which he pursued for years
  • Renewed allegations against defendants who were acquitted at trial
  • Made claims about witness cooperation that at least one has disputed publicly
  • Failed to make prosecutorial decisions for one crime he investigated (the Italian referral) and the statement for which there was most proof it was a deliberate lie
  • Engaged in selective editing to substantiate false claims

Only the last of those — selective editing — was a claim that was credibly made about Mueller (in his editing of an obstructive voice mail John Dowd left for Mike Flynn’s attorney).

And it comes in the wake of David Weiss’ decision — taken in tandem with long-time associates of Rosenstein and Hur, Leo Wise and Derek Hines, and in the wake of pressure from Baltimore-based IRS Agent Gary Shapley — to ask for Special Counsel status because he wants to write a report. (As I have noted, I think that may be one point of Abbe Lowell’s SCO challenge to Weiss’ appointment; to attempt to enjoin a report that is not legally justified.)

Because of the aforementioned supine press, because there is no accountability structure in place for Special Counsels, and because as prosecutors they enjoy broad immunity (though Durham tellingly backed off false claims he made in his report when he testified to Congress), the Special Counsel process was exploited by Bill Barr in retaliation for Rosenstein’s appropriate decision to appoint one.

I don’t expect Hur’s report to be as corrupt as Durham’s. I expect it to overcompensate for claims that Trump was treated differently for intentionally stealing 300 classified records (and hiding still more) than Joe Biden was for negligently taking some home and then giving them back.

Seth DuCharme’s Information Operation

Former Bill Barr aide Seth DuCharme did something funny in his two sentencing memos for former FBI counterintelligence professional Charles McGonigal.

Secret meetings

In his SDNY sentencing memo, he redacted a long paragraph which, by context, purported to describe cooperation.

SDNY was having none of that.

They explained that the redacted passage described a single meeting he had in which he shared — per a participant — “insignificant” information, not anything that merited a bonus for cooperation.

McGonigal describes an interview with other government agencies, at which he answered questions about misconduct others may have committed and his own conduct. (Br. 15- 16). The U.S. Attorney’s Office conducting this prosecution did not request that meeting, did not attend that meeting, and has little knowledge of what was said there, beyond a brief summary from one of its participants—who characterized the contents of McGonigal’s statements as, in substance, insignificant. There thus appears to be no basis for McGonigal to “presume” that his statements were “of some assistance.” (Br. 16).11 Nor can McGonigal seek sentencing credit for this meeting by citing United States v. Fernandez, 443 F.3d 19, 33 (2d Cir. 2006), abrogated by Rita v. United States, 551 U.S. 338 (2007). As McGonigal notes, that case states that a sentencing court could consider a defendant’s efforts to cooperate with the Government even if those efforts did not result in a cooperation agreement. (Br. 16). But its holding was that the district court was within its discretion to conclude “that the cooperation was fitful and that it should not be used to lighten [the defendant’s] sentence.” Fernandez, 443 F.3d at 34 (internal quotation marks omitted). This Court should reach the same conclusion with respect to McGonigal’s attempt to obtain a lenient sentence by attending a single meeting.

In a footnote, they tattled on DuCharme for trying to inflate the value of it by unilaterally redacting it.

11 The Court should not infer from McGonigal’s sealing of the corresponding paragraph in his submission that he has provided information of any value. The Government did not ask that this paragraph be sealed. Rather, McGonigal’s attorney informed the undersigned and the Washington, D.C. prosecutors that he intended to seal the paragraph, and neither objected.

DuCharme didn’t even attempt this ploy in DC. This time he left the paragraph unsealed.

When the United States presented him with a reasonable plea offer during the discovery phase of this case, Mr. McGonigal swiftly agreed to accept responsibility for his actions. In addition, he agreed to meet with representatives from seven different DOJ offices after his plea and provided truthful information to the government during a seven-hour interview session.

[snip]

Moreover, after Mr. McGonigal entered his plea, on November 17, 2023, at the request of the United States, Mr. McGonigal met with seven components28 of the Justice Department simultaneously in Manassas, Virginia, where he answered all questions presented to him on a wide variety of topics, including detailed discussions of his understanding of certain events, and his considered assessment of what the FBI can do to improve its compliance policies and practices to detect and deter improper conduct within the organization. We have been informed that the United States found the information that Mr. McGonigal provided during the full-day interview to be truthful and, we presume, of some assistance given the length and detail of the discussions.

Though by feigning coy about which parts of DOJ he met with, he again tried to fluff the import of it.

28 The specific components represented are not listed here, out of respect for sensitivities related to their specific areas of responsibility, but that information is available upon request if it is material to Court’s consideration.

DC USAO, which must have set up the meeting, didn’t mention it. Instead, they described the extensive effort FBI has made to make sure McGonigal didn’t drum up investigations into other people to help friends overseas, as he seems to have done for Albania.

Moreover, given the defendant’s senior and sensitive role in the organization, the FBI has been forced to undertake substantial reviews of numerous other investigations to insure that none were compromised during the defendant’s tenure as an FBI special agent and supervisory special agent. The defendant worked on some of the most sensitive and significant matters handled by the FBI. PSR ¶¶ 98-101. His lack of credibility, as revealed by his conduct underlying his offense of conviction, could jeopardize them all. The resulting internal review has been a large undertaking, requiring an unnecessary expenditure of substantial governmental resources.

This may be the only passage, in either DOJ sentencing memo, that discussed what a lasting harm having a top spymaster team up with foreigners seeking favors is for the FBI.

It suggests that DOJ might trust McGonigal to discuss “compliance policies,” but no longer the counterintelligence investigations in which he played a role.

Non-spy charges against the spy chief

I thought DuCharme’s ploy to provide the appearance of cooperation via evasion and redaction made an amusing introduction to something else I’ve been meaning to write, as part of my Ball of Thread series.

There was some consternation when McGonigal got sentenced in December to (just) 50 months for working for Oleg Deripaska. The complaint was, I think, that McGonigal hadn’t been labeled a spy, with some belief that would have changed the outcome.

I’d like to explain why, I suspect, DOJ did what they did.

I think they got a similar outcome as they would have had they called what he did “spying,” but deprived McGonigal — and just as importantly, DuCharme, who tried to pitch the “insignificant” information he shared as some great cooperation — from conducting an information operation to undercut the prosecution.

McGonigal was prosecuted for two schemes.

In DC, he was charged for secretly getting paid by, and traveling with, top Albanians, and ultimately predicating a FARA investigation into a Republican lobbyist with ties to a rival Albanian faction. For that, McGonigal was charged with a bunch of disclosure violations, making the secrecy the crime, not the scheming with Albania. The government is asking Judge Colleen Kollar-Kotelly to sentence him on February 16 to 30 months; they have not explicitly asked her to impose the sentence consecutively, which is the only way this sentence would extend his detention.

In NY, he was charged for secretly working with Oleg Deripaska. For that, he was charged with sanctions violations and money laundering. After he pled to conspiracy, the government had asked Judge Jennifer Rearden to sentence him to the max 60 months; she gave him the aforementioned 50 month sentence.

The government has not claimed to have proof that McGonigal shared any sensitive information with Deripaska or the Albanians, whether they have it and aren’t telling, or whether there is none. Without it, you would not expand McGonigal’s potential sentence by charging him with the crimes that might label him a spy: Foreign Agent crimes in DC, since he was working for a foreign state, or FARA in NY, since Deripaska is not quite the same thing as the Russian state. By larding on the disclosure violations in DC and asking for an obstruction enhancement, DOJ has raised total possible exposure there. And no FARA charges would carry a tougher sentence than the potential 20 year money laundering sentence that McGonigal avoided by pleading out in SDNY.

That is, DOJ charged McGonigal in such a way that the punishment would be the same, the 20 years on the money laundering charge or five-plus on disclosure violations, without giving McGonigal a cause to demand information exposing his operations at FBI.

But he did try.

Deripaska’s visit

Before I explain how, let’s situate things a bit.

According to Business Insider, a tip from the UK is one of the things that led to the investigation into McGonigal. They picked him up via the surveillance of a Russian in London they were tracking.

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

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

Whether the UK picked him up in 2018 or 2019, according to the indictment his meetings with Deripaska — including in London — were in 2019.

In or about 2019, after McGONIGAL had retired from the FBI, SHESTAKOV and McGONIGAL introduced [Evgeny Fokin] to an international law firm [Kobre & Kim] with an office in Manhattan, New York (the “Law Firm”). [Fokin] sought to retain the Law Firm to work in having the OFAC Sanctions against Deripaska removed, a process often referred to as “delisting.”

During negotiations to retain the Law Firm, McGONIGAL traveled to meet Deripaska and others at Deripaska’s residence in London, and in Vienna. In electronic communications exchanged as part of these negotiations, McGONIGAL, SHESTAKOV, [Fokin] and others did not refer to Deripaska by his surname, but rather used labels such as “the individual,” “our friend from Vienna,” and “the Vienna client.”

DuCharme asserted at McGonigal’s SDNY sentencing that working with a law firm on delisting Deripaska in 2019, “would have been legal.”

After Charlie left the FBI, he met Oleg Deripaska. He met him in London in a prestigious international law firm with a lawyer. But I think the government agrees that that part would have been legal, because there is the carve-out for certain legal representations.

That didn’t go through.

It’s true that there’s a carve out for legal services that would make that, in general, legal. Probably far less so if you know that the guy you’re working with is a Russian spy.

DuCharme claims McGonigal did not, at least with regards to Fokin.

So this person, Fokin, reaches out to Charlie after that at some point. And just to be clear, as far as Mr. McGonigal knows, Fokin is not, as I guess is rumored in the media, to be a Russian intelligence officer. That’s not his understanding. But he certainly knows him to be associated with Oleg Deripaska; and he certainly knows that Deripaska is on the sanctions list.

The indictment and government sentencing memo, however, describe that McGonigal told a subordinate that Fokin was a spy.

McGonigal also told a subordinate that he wanted to recruit Fokin, who was, according to McGonigal, a Russian intelligence officer.

Let’s situate where things were in 2019. McGonigal was, without question, retired from the FBI. But at the time, DuCharme was working for Bill Barr, among other things, setting up an investigation to undermine the Russian investigation that disclosed how a close Deripaska associate, Konstantin Kilimnik, used Paul Manafort’s debt to Deripaska as leverage to learn how Trump planned to beat Hillary Clinton and also discuss carving up Ukraine to Russia’s liking. DuCharme would go on from there to set up a back channel via which Rudy Giuliani could channel dirt, including from a known Russian spy, into the Hunter Biden investigation.

A meeting with a law firm would have been legal. And also, DuCharme and his boss were working hard to blame the 2016 Russian operation on Hillary rather than Deripaska, recklessly chasing leads to those involved all over the world.

In fact, among the leads that DuCharme was chasing in 2019 as he and John Durham (he of the studied ignorance about what really happened) dreamt up ways to undermine results showing Trump welcomed help from Russia — along with the Russian-backed Ukrainians and Joseph Mifsud — involved Deripaska.

On July 3, 2019, DuCharme emailed Durham about a Fox News report that FBI had worked with Oleg Deripaska in an attempt to get Robert Levinson released and returned by Iran.

To be sure, unlike Mifsud and the Ukrainians, there’s no record DuCharme and Durham and Barr did chase the possibility that Deripaska would have damning information on Andy McCabe.

Though two months before DuCharme sent Durham a lead on Deripaska, on May 1, 2019, Bill Barr’s face melted when Ben Sasse asserted that Deripaska was a “bottom-feeding scum-sucker.”

Anyway, back to McGonigal and his charges for secretly working for Deripaska.

The investigation into McGonigal went overt in November 2021 and after that point, DuCharme described, McGonigal’s counsel, presumably DuCharme himself, remained in contact with the government.

More than a year before his arrest, on November 21, 2021, FBI agents conducted a recorded, voluntary interview of Mr. McGonigal at Newark airport when he returned home from an overseas business trip. While he was speaking to agents at the airport, another team of agents visited Mr. McGonigal’s home in lower Manhattan and met with his wife. Over the following year, Mr. McGonigal was aware of the ongoing investigation into his business dealings and remained in communication with the United States through his counsel.

So as SDNY and DC USAO were contemplating how to charge their former spymaster leading up to his January 2023 indictments, they knew that they would have to contend not just with McGonigal’s former Top Secret clearance, but also that of his attorney, the guy who in at least two cases facilitated the intake of spy dirt for partisan purposes on behalf of the former Attorney General.

Graymail

DuCharme was well aware of that.

In his DC sentencing memo, for example, he described how, by pleading guilty relatively quickly, McGonigal saved the government from engaging in the Classified Information Procedures Act process, the process by which the judge acts as an intermediary to make sure that defendants can get classified information that would be helpful to a defense without unnecessarily compromising information that would be of no help.

In contrast to Mr. Saffarinia, Mr. McGonigal quickly accepted responsibility for a single count of false statements through his guilty plea, avoiding any further expenditure of government resources, including potential Classified Information Procedures Act (“CIPA”) litigation.

It’s not true, however, that McGonigal spared SDNY of using the CIPA process. Though something very funky happened in that process in SDNY, which I believe is a big testament to the reason why they treated McGonigal’s exposure there the way they did, by charging him with crimes that would carry the same punishment without charging with a foreign agent crime. I first wrote about this funkiness here.

It seems like SDNY pre-empted a full-blown CIPA practice by having select documents, dating to well before McGonigal got into discussions with Deripaska’s people, that made clear that Deripaska was, “associated with a Russian intelligence agency” that must be GRU, which meant nothing that happened downstream of that knowledge would be all that helpful to McGonigal’s defense. That is, DuCharme may claim, evidence to the contrary, that McGonigal didn’t believe Fokin is a spy, but SDNY declassified a very small subset of documents making it clear McGonigal had to have known Deripaska was associated with GRU.

That’s part of the story that would have been told had this gone to trial: that when McGonigal secretly went to work for Deripaska, he knew of his ties to Russian intelligence.

SDNY must have planned this from the start.

It started on February 8, 2023, shortly after his indictment, when SDNY filed a CIPA letter, requesting a CIPA 2 conference.

Often, these CIPA letters review the entire CIPA process. The one Jay Bratt submitted in the Trump stolen documents case, for example, went through Section 1, Section 2, Section 3, Section 4, Section 5, Section 6 (broken down by sub-section), Section 7, Section 8, Section 9, and Section 10.

Not the SDNY one in the McGonigal case. It went through Section 2 — asking for a conference — and then stopped.

The Government expects to provide the Court with further information about whether there will be any need for CIPA practice in this case, and to answer any questions the Court may have, at the CIPA Section 2 conference.

In response, on March 1, DuCharme submitted his own CIPA letter, laying out Sections 1 through 8. Along the way, DuCharme promised that as part of CIPA 4, he would submit a memo telling Judge Jennifer Rearden what kind of information would be helpful to Charlie McGonigal’s defense, much later describing surveillance that must exist.

Under Section 4, upon a “sufficient showing” by the government, the Court may authorize the government to “delete specified items of classified information from documents to be made available to the defendant . . . , to substitute a summary of the information for such classified documents, or to substitute a statement admitting relevant facts that the classified information would tend to prove.” 18 U.S.C. § App. III § 4. The government makes a sufficient showing that such alternatives are warranted through an ex parte submission to the Court. See id; see also United States v. Muhanad Mahmoud Al-Farekh, 956 F.3d 99, 109 (2d Cir. 2020). Of critical importance to the fairness of the process, the Court may review, ex parte and in camera, the classified information at issue to determine whether and in what form the information must be disclosed to the defendant, and whether the government has truly satisfied its discovery obligations. See, e.g., United States v. Aref, No. 04 CR 402, 2006 WL 1877142, at *1 (N.D.N.Y. July 6, 2006). To assist the Court in this analysis, the defense will provide the Court with its initial view of the scope of material that will be relevant and helpful in the preparation of the defense at the upcoming conference and will supplement that information as appropriate.

[snip]

In the present case, there is far more than a trivial prospect, and in fact there is a high likelihood if not certainty, that the IC possesses information that is relevant and helpful to the preparation of the defense. The indictment charges violations of IEEPA based on an alleged agreement to provide services on behalf of Oleg Deripaska, a foreign national with allegedly close ties to a foreign government, who, it is reasonable to assume, may have been a target of surveillance by the United States during the relevant time frame. Moreover, the indictment makes specific references to previously-classified information that was in the possession of the IC, to which Mr. McGonigal had access by virtue of his position as Special Agent in Charge of the Counterintelligence Division of the New York Field Office. [my emphasis]

Seth DuCharme set out to know, among other things, what kind of surveillance FBI obtained on McGonigal, including whatever surveillance the Brits picked up when they first grew concerned about McGonigal meeting certain Russians in London.

Things never got to CIPA 4.

On March 3, Judge Rearden confirmed she would hold two separate CIPA conferences. The SDNY conference was held on March 6. On March 7, the day after SDNY’s CIPA conference and the day before McGonigal’s, SDNY responded to McGonigal’s CIPA letter. It suggested that any investigation the Intelligence Community did of McGonigal’s “corruption” by Deripaska would not be helpful to his defense. But if McGonigal wanted to make a list of things he specifically wanted, he should put that in writing.

McGonigal’s letter repeatedly asserts that the intelligence community must possess information that is helpful to his defense, without specifying what that information must be or what agencies must possess it. (See, e.g.¸ Dkt. 30 at 6 (claiming that the intelligence community writ large “may be presumed to have been involved” in the investigation of this matter); id. at 7 (asserting that “in fact there is a high likelihood if not certainty, that the IC possesses information that is relevant and helpful to the defense”)). At best, he has suggested that the general subject of this case—a recently retired FBI intelligence official being corrupted by a Russian oligarch—is of the type that might be of interest to intelligence agencies.2 Even if that claim is true, however, it is a far cry from suggesting that those agencies possess anything helpful to the defense.

[snip]

Finally, McGonigal suggests that he will “identify categories of classified information that will be material to his defense at the defendant’s ex parte Section 2 conference.” (Dkt. 30 at 7). But it is unclear why he needs to do this in an ex parte conference. As he elsewhere acknowledges, CIPA establishes procedures for the defense to identify classified information it wishes to offer, and those procedures are not ex parte.

[snip]

The Government thus trusts that McGonigal will identify any classified information he claims is relevant to the Government, as CIPA elsewhere expressly provides. See id. § 5 (“If a defendant reasonably expects to disclose or to cause the disclosure of classified information in any manner in connection with any trial or pretrial proceeding involving the criminal prosecution of such defendant, the defendant shall, within the time specified by the court or, where no time is specified, within thirty days prior to trial, notify the attorney for the United States and the court in writing.” (emphasis added)).3

On May 8, SDNY filed a short letter informing Judge Rearden that they had declassified the material they had told her they would in their own CIPA 2 hearing and provided it to the defense.

At the March 6, 2023 ex parte conference held pursuant to Section 2 of the Classified Information Procedures Act (“CIPA”) in the above-referenced case, the Government described to the Court certain materials that the Government was seeking to declassify. The Government writes to confirm that those materials have been declassified and produced to the defendants. At this time, the Government does not anticipate making a filing pursuant to Section 4 of CIPA and believes it has met its discovery obligations with respect to classified information.

It seems likely that this declassified material includes the document, which McGonigal received in May 2017, identifying Deripaska’s ties to (what must be) GRU disclosed in the government’s sentencing memorandum. Effectively, SDNY was saying that, once you understand Deripaska was GRU (and whatever else also got declassified), anything that came after that would not be helpful to your defense.

DuCharme was not yet done. On June 23, he submitted another letter describing that it was perplexing and puzzling and concerning and hard to imagine that there wasn’t more.

With respect to the way forward as it pertains to classified discovery, as we noted at our last court appearance, the government has indicated that it “does not anticipate making a filing pursuant to Section 4 of CIPA and believes it has met its discovery obligations with respect to classified information.” See ECF No. 44 at 1. In a subsequent series of conversations, the government informed us, in a general way, that it has satisfied its discovery obligations relating to classified information. The government’s position is perplexing. While it is not surprising that the government does not wish to account for its each and every step in satisfying its constitutional obligations, it is puzzling and concerning that the government would, at this stage, determine that no CIPA Section 4 presentation to the Court is appropriate, when we are a year away from trial and the government’s discovery obligations with respect to Rule 16, the Jencks Act, Brady and Giglio are ongoing. The indictment and the U.S. Attorney’s press release include accusations that foreseeably implicate classified information within each of the four categories of discoverable information. With respect to the category of impeachment material alone, it is hard to imagine a world in which there are no classified materials that touch on the credibility of the government’s trial witnesses (or alleged unindicted coconspirator hearsay declarants), and which would require treatment under Section 4 of CIPA.

DuCharme suggested that maybe the problem was that the information helpful to McGonigal’s defense was simply super duper classified, but that it still had to be turned over.

As an initial matter, the classification level of information in the possession of the United States is wholly irrelevant as to whether or not it is discoverable. Classification rules appropriately exist to safeguard the national defense of the United States by limiting the dissemination of such information in the normal course. See Exec. Order No. 13526, 75 Fed. Reg. 707, (2009) (prescribing a uniformed system for classifying national security information). But once a defendant is indicted, the government is obligated to consider whether information within its holdings is discoverable under the applicable rules, statutes and constitutional caselaw

The letter explained that both McGonigal and Seth DuCharme could be trusted with the government’s classified information — after all, McGonigal was only indicted for cozying up to the Russian oligarch he had hunted for years, not mishandling classified information. And Seth DuCharme was, until recently, trusted with Bill Barr’s most sensitive secrets, including about the side channels ingesting dirt from known Russian agents.

Further, it is hard to understand why the government is so reluctant to be more transparent in explaining its discovery practices to the defense in this case. While many national security cases involve defendants with no prior clearances or experience with the U.S. Intelligence Community, and may involve only recently-cleared defense counsel who may be new to navigating the burdens and responsibilities of handling classified information, here, those concerns do not apply. Mr. McGonigal was one of the most senior and experienced national security investigators in the FBI with significant direct professional experience in the areas germane to his requests for assurances about the thoroughness of the government’s discovery analysis. In addition, before moving to private practice, the undersigned counsel served as the Chief of the National Security Section, the Chief of the Criminal Division and the Acting United States Attorney in the U.S. Attorney’s Office in the Eastern District of New York as well as the Senior Counselor to the Attorney General of the United States for National Security and Criminal matters, and has responsibly held TS/SCI clearances with respect to some of the United States government’s most sensitive programs. As the Department of Justice has concluded in re-instating defense counsel’s clearances for the purpose of this case, we are trustworthy. So, here, we have a defendant and defense counsel who are highly respectful and experienced with regard to the protocols for handling and compartmentalizing sensitive classified information, and simply request comfort that the government has indeed done everything it would normally do in a case such as this, with sufficient detail to assess the credibility of the government’s position.

Notably, Mr. McGonigal has not been accused of mishandling classified information in the cases brought against him, and he maintains respect for the national security interests of the United States, as of course do we. In addition, we are not asking the government to disclose to the defense any sensitive sources and methods by which discoverable information was collected—only to provide greater transparency to us, and to the Court, as to how it views its procedural obligations, so that we may consider the fairness and reasonableness of the government’s approach. Mr. McGonigal is personally familiar with this process from his time at the FBI, and it is reasonable for him to expect to be treated no worse than the other defendants who have come before him. To adequately represent Mr. McGonigal, it seems only fair that we be allowed to hold the United States government to the same standards that the defendant upheld as a national security and law enforcement professional, and to make a record of the government’s position.

Then DuCharme made a helpful offer to meet in a secure hearing or to submit a more highly classified brief — perhaps taking SDNY up on their instruction to put it in writing — again suggesting he had something specific in mind.

In sum, if the government could explain, in an appropriate setting, how it determined that it had obviated the need for a CIPA Section 4 proceeding, we likely can avoid speculative motion practice, and the parties and this Court may be assured that we can continue to litigate this case fairly and with the level of confidence to which we are entitled.

[snip]

To the extent the Court would like more detailed briefing on these issues prior to the conference, the CISO has provided to cleared defense counsel access to facilities that would allow us to draft a supplemental submission at a higher classification level.

I don’t want to minimize the problem CIPA presents for defendants, nor the kind of prosecutorial dickishness that can roil discovery discussions. But this entire exchange was, in my experience, pretty remarkable. The arguments, for example, are little different from ones Trump is making in the stolen documents case, but McGonigal’s arguments always seemed more targeted than Trump’s, which are a mad splay attempting to review the entire Intelligence Community.

Then it was over.

On June 23, DuCharme doubled down on his certainty there were secrets that would help McGonigal. On July 10, Judge Rearden scheduled a hearing for updates on classified discovery. That same day, the government described making a discovery production four days after DuCharme’s letter, then said it planned to file a response to the letter before the hearing, which it said was scheduled for July 18. Judge Rearden gave them four days to file the response, until July 14. That day, July 14, the day SDNY would otherwise have filed another public letter about classified discovery, McGonigal withdrew his request for a status hearing. A month later McGonigal pled guilty to the one count of conspiracy.

To be sure, the deal was pretty sweet, given that it took the onerous money laundering exposure off the table. But the 50 months is the kind of sentence he might have faced for Foreign Agent charges — anything that stopped short of alleging that McGonigal had shared FBI secrets with Oleg Deripaska, of which, again, there is no hint in any of the charging documents.

Yet SDNY successfully prosecuted the former FBI spymaster for working for Oleg Deripaska without (apparently) sharing anything more than the first notices McGonigal got of the spook ties the Intelligence Community found Oleg Deripaska to have.

 

 

 

image_print