Zach Rehl’s Subpoena for Port-a-John Details from the Non-Existent One Nation Under God

The fourth defendant in the Proud Boy Leader indictment, Zach Rehl, has finally made an aggressive appearance in the docket.

How he got here is a matter of significant interest — and some dispute. On September 9, Aram Rostom (who keeps getting these great scoops), reported that Enrique Tarrio released a recording in July reassuring everyone that Rehl would not flip. “If there’s anyone that will hold fast, it’s fucking Zach.”

In the July audio, a copy of which was reviewed by Reuters, Tarrio said that “we are trying to f—ing avoid” a situation in which the senior members facing charges would cooperate with prosecutors. The four, who are jailed without bond, have pleaded not guilty.

Raising the possibility that one of the four leaders may have been cooperating with authorities, Tarrio told fellow Proud Boy leadership he didn’t believe that the man was doing so – and said he had spoken about the matter directly with that leader’s wife.

“The bigger problem with that is the guys that are in prison right now are holding on to hope that everybody is f—ing staying put because they didn’t do anything wrong,” Tarrio said. “The moment that they think one of the guys flipped, it throws everything off and it makes everybody turn on each other, and that’s what we are trying to f—ing avoid.”

When the message leaked, Tarrio released another recording saying that it’s hard enough to fight the government without having to fight, “not just a regular felony, like a serious felony.”

“You know it’s hard enough to fight a f—ing entire government…,” Tarrio said in the Aug. 27 message, “to have to worry about dudes in here f—ing putting you in felony territory. Not just regular felony, like a serious felony.”

On September 19, Ethan Nordean included the following allegations in a filing, noting that in August (so after Tarrio called Rehl’s wife), Rehl had asked Judge Amit Mehta for help firing his attorney, citing what sound like real complaints with his representation. Nordean went on, describing an incident in which prosecutor Seth Jones met with Rehl outside the presence of his counsel and threatened Rehl with transfer to DC if he didn’t flip.

In the bail hearing on September 13, counsel to Defendant Biggs alerted the Court to information concerning the government’s attempts to transfer Defendant Rehl to the D.C. jail. Specifically, Biggs’ counsel advised that the government’s attorneys may have threatened to transfer Rehl to D.C. from a Philadelphia jail if he did not agree to cooperate with the government against the other Defendants. Counsel have subsequently gathered additional information about this episode. It significantly bears on Nordean’s and Biggs’ pending bail motions in several respects. These matters should be investigated by the Court, as it appears that the government’s constitutional violations here are not limited to the improper withholding of exculpatory material beyond the point at which Defendants may make timely use of it. Counsel are working on obtaining sworn declarations for the Court but advise it here about what they have learned in the meantime.

On August 13, Defendant Rehl mailed a letter to the Court. Exh. 1. He was writing from his cell in FDC Philadelphia. Rehl formally requested that he be allowed to terminate his thencounsel, “effective immediately, due to ineffective counsel.” Among other reasons given, Rehl noted that his counsel was taking actions on his behalf without his knowledge and ignoring virtually all requests to discuss the case. “In five months, I have met with [counsel] once in the middle of May for approximately 30 minutes,” Rehl wrote. Exh. 1. As this letter was never filed on the docket, it is not clear when the government became aware of it. However, as inmate nonlegal mail is reviewed, particularly in a case such as this, there is a presumption that the government gained knowledge of the letter at some point.

Sometime after he mailed that message to the Court, Rehl was removed from his cell by federal agents, likely U.S. Marshals. Rehl did not know where he was being taken. The agents told him he was headed to a court appearance. That was not true. Rehl was then moved through an underground tunnel to what appeared to be the Philadelphia federal courthouse. He was then steered not to a courtroom but to an office. There he was greeted by assistant U.S. Attorney Luke Jones. Rehl apparently waited with the government’s prosecutor, without counsel present, for approximately an hour and a half. At that point, an individual who works in the office of Rehl’s former counsel appeared. Rehl had never retained this person to be his counsel and knew her only as an assistant to his former lawyer.3 At that point, AUSA Jones began to converse with Rehl about this case. It is our understanding that Rehl’s retained counsel was not then present. Neither was an FBI agent, according to those in the room.

Among other matters, AUSA Jones apparently told Rehl that if he did not cooperate with the government, he would likely be transferred from FDC Philadelphia to the D.C. jail, where he would not be able to see his wife and child, at least until after his “conviction.”4 It is our understanding that when Rehl said there was nothing to cooperate about, AUSA Jones responded that, in that case, Rehl could “wear a wire” when talking to others. Rehl’s then-counsel arrived much later—approximately three hours behind schedule. At that point the lawyers agreed to continue the meeting to the following day.

So unusual were these proceedings that the Marshals who transported Rehl back to the jail expressed their concern to him about his apparent total lack of legal representation. “Did you know that interview was going to happen? Did your lawyer set that up for you?” When jail staff returned to Rehl’s cell the next day, he refused to meet with AUSA Jones again. [link added]

Nordean made all this public based on a claim that this meant the government was holding them — last I checked, in Florida and Washington — because they wanted Rehl to wear a wire on them.

In response, Jones said the claims were bullshit and inappropriate for Biggs and Nordean to raise in any case.

The allegations of government misconduct are false. It would be improper for the government to address these allegations with counsel for defendants Nordean or Biggs, neither of whom represent defendant Rehl, or to address them further in a public filing. Defendant Rehl is represented by counsel, with whom the government has conferred regarding these allegations.

Contrary to defendant Nordean’s suggestion (ECF No. 174 at 4-7), the allegations have no bearing on his or defendant Biggs’ pending motions to reopen bail hearings. Moreover, the allegations are spurious and should not be countenenced by the Court.

At the most recent hearing, prosecutors attributed the earlier delay on moving Rehl to detention motions and said the Marshals were responsible for the decision to move him. Who knows who is telling the truth, but Judge Tim Kelly agreed that it really is irrelevant to Biggs and Nordean’s bids to get out of jail. He also had a separate hearing where Rehl informed him that Jonathon Moseley is now representing him and he’s quite happy with the relationship thus far.

That’s how we got here, to Rehl’s second substantive motion, in which Moseley moved to request for a subpoena for information on the permits authorizing the Wild Protest rally at the location advertised on the East side of the Capitol. Or, if he can’t get that, he wants policies on port-a-johns because (the motion shows) there were port-a-johns where the rally advertisement said a rally would be held.

ZACHARY REHL, by counsel, requests the issuance of a subpoena to the U.S. Capitol Police, c/o Thomas Manger, [new] Chief of Police and/or Custodian of Records, for

(1) Any and all documents relating in any way to any application for —

(2) Any and all documents relating in any way to —

(3) Any and all documents relating in any way to the denial of —

(4) Any and all documents relating in any way to any revocation of — any permit to demonstrate or assemble on the grounds of the U.S. Capitol, especially in the Northeast corner of the grounds across 2nd Street, NE from the U.S. Supreme Court, on January 6, 2021, or for any time period including January 6, 2021. Or:

(5) Any and all documents relating in any way to the placement of temporary toilets (commonly described as porta-potties) on the grounds of the U.S. Capitol, in the Northeast corner of the grounds across 2nd Street, NE from the U.S. Supreme Court, on January 6, 2021, or for any time period including January 6, 2021. (Please do not confuse the facilities set up on the other side of the Capitol very far away for assembly of stands for the inauguration on January 20, 2021, which could not explain the porta-potties across Second Street from the U.S. Supreme Court.)

(6) Any and all documents relating in any way to general policies and procedures at any time concerning restrictions on the placement of equipment such as porta-potties on the grass of the U.S. Capitol grounds (i) without a permit or (ii) without the employment of contractors approved by the U.S. Capitol Police to do the work.

There’s a lot of word games about how what the indictment really alleges (the object of the conspiracy notwithstanding) is that Rehl conspired to argue in favor of the Electoral College.

15. Indeed, the First Superseding Indictment alleges that:

36. On December 23, 2020, REHL posted on social media describing January 6, 2021, Congress gets to argue the legitimacy of the [E]lectoral [C]ollege votes, and as “the day where yes, there will be a big rally on that day.”

16. Thus, the grand jury by indictment and the prosecution assisting in the drafting of the indictment admits and confesses that REHL’s goal was to get Congress “to argue the legitimacy of the [E]lectoral [C]ollege votes, and – for THAT purpose ” yes, there will be a big rally on that day.”

17. The government admits and confesses within the four corners of the indictment that the goal of the alleged “conspiracy” (which would require a criminal goal) was to get Congress “to argue the legitimacy of the [E]lectoral [C]ollege votes,” and not to stop, obstruct, delay or hinder the Electoral College certification.

18. The government admits and confesses within the four corners of the indictment that the goal of the alleged “conspiracy” was to demand that Congress do not just half of its job but all of its job in certifying the Electoral College vote.

19. Congress plainly could not “argue” the “legitimacy” of the Electoral College votes IF CONGRESS WERE NOT IN SESSION.

But the request itself, for proof that the underlying protest was permitted, is a reasonable basis to try to argue he didn’t plan to prevent the peaceful transfer of power that day.

The problem for Rehl — and the reason this move may backfire — is that the permits are already public and they likely say far more than Rehl wants them to say; BuzzFeed liberated them (in a fairly historic bit of Jason Leopold and Jeffrey Light FOIA magic).

The documents show that when Capitol Police received the permit application for the specific port-a-john location that Rehl wants to subpoena, an officer responding to the permits judged that the application was an attempt to hide the role of Stop the Steal in the rally.

On Dec. 21, 2020, a group called One Nation Under God filed an application with the Capitol Police’s special events section to stage a protest over “election fraud in swing states” at the Senate East Front grassy area on Jan. 6 between 9 a.m. and 6 p.m.

The officer who reviewed the application noticed some irregularities. For one thing, the officer wrote in an intelligence assessment, “One Nation Under God is not an organization and does not maintain social media accounts or webpages.” For another, one of the people listed as a confirmed speaker was Alexander, a leader of Stop the Steal, which was planning a major rally at Freedom Plaza that same day.

A screenshot of the text from the documents

Obtained via Capitol Police

“I explained,” the officer wrote, “that it appears that the Stop the Steal and the One Nation Under God is one in the same due to the similarities and the affiliation with Ali Alexander.” In an email on Dec. 31, 2020, another officer mentioned concerns about the approval of “certain permits,” specifically that “the permit requests … are being used as proxies for Stop the Steal” and “may also be involved with organizations that may be planning trouble.”

The officer did some follow up only to find that the guy who applied for the permit couldn’t answer basic questions about the event.

The permit application listed Nathan Martin of Shelby, Ohio, as a representative of One Nation Under God. According to the documents, a Capitol Police officer spoke with him on Dec. 28, 2020. The officer’s notes suggest that Martin was not forthcoming about the group’s plans.

A screenshot of the application from One Nation Under God

Obtained via Capitol Police

A permit application listing Nathan Martin as the contact for One Nation Under God

“I inquired if he has any additional information he could give me for the event. Mr. Martin said there are a few events that they have going on and he does not know which one I was referring,” the officer wrote. “When I asked about the ‘few events’, he stated that the events were in the hotels.”

And when BuzzFeed called Martin, he admitted that the tie between the group on the permit and Stop the Steal — effectively confirming that One Nation was a front for Stop the Steal.

Brown, who did not respond to emails and phone calls requesting comment, told the officer Martin “is associated with Stop the Steal and travels with Ali Alexander.” Martin “does not seem to have an official title but he deals with the daily operations to include hotel books and car rentals.”

[snip]

In an interview with BuzzFeed News, Martin acknowledged his affiliation with the two groups but said he could not explain what One Nation Under God’s mission was, how it was formed, and for what purpose. He said he had not seen the permit, could not explain why his name was on it, and was unaware that the demonstration had been capped at 50 people.

The permit also says the purpose of the demonstration is “demonstration for election fraud in swing states,” which doesn’t sound particularly legal. And BuzzFeed learned that the sound equipment (which Alex Jones may have used to lure bodies to the East side of the Capitol) was never used.

Now maybe Rehl knows all this. Maybe this is what he thinks he’ll get. He first started pursuing this subpoena on September 11, two days after BuzzFeed released these records. So maybe the proof that the Capitol Police approved this permit even after recognizing it was all just a front is what he’s after.

But effectively what he’s doing is soliciting records that show Stop the Steal, with which the Proud Boys seem to have coordinated, engaged in a kind of fraud on the Capitol Police to obtain more permits and spread out their obviously false claim that each protest would only have 50 participants.

Effectively, he risks opening up a whole big can of fraud exposure for any co-conspirators, and any reliance the Proud Boys made on having this permit (and the port-a-johns) to legitimize their mob rests on the shell games that Ali Alexander’s people were playing.

Update: Rehl didn’t know about the BuzzFeed liberation, but neither did he credit me for informing him when he learned of it (the third time the Proud Boy leaders have not credited my reporting in their filings).

4. However, in response to the filing of counsel’s Motion, a news blog noticed the Motion and commented on it, and the blog entry was forwarded to me as counsel.

5. It seems that BUZZFEED filed suit for this information and the permits were released to the public on September 9, 2021. The documents produced are attached hereto.

The admission that he didn’t know that the permits had been liberated (and therefore didn’t know that they show Ali Alexander playing a shell game to obtain permits) may be why his attorney wants to get a good look at these permits for “demonstration for election fraud in swing states” before he relies on them for a new bid to be released.

THEREFORE, the Motion may be moot and counsel asks the Court to delay any consideration of the Motion until counsel can decipher these documents and determine if anything further is still needed.

The Yahoo Story about All the Things CIA Wasn’t Allowed to Do Against WikiLeaks

When last we saw Zach Dorfman get a big scoop, he managed to present claims about Eric Swalwell appropriately cooperating with the FBI in a counterintelligence investigation so wildly out of context that the story fed false claims about Swalwell for most of a year.

His big story about Mike Pompeo’s vendetta against WikiLeaks — with Sean Naylor and Michael Isikoff — is bound to be a similar example.

Wherein paragraph 100-something debunks paragraphs 1 and 2

The first two paragraphs claim that there were discussions about assassinating Julian Assange.

In 2017, as Julian Assange began his fifth year holed up in Ecuador’s embassy in London, the CIA plotted to kidnap the WikiLeaks founder, spurring heated debate among Trump administration officials over the legality and practicality of such an operation.

Some senior officials inside the CIA and the Trump administration even discussed killing Assange, going so far as to request “sketches” or “options” for how to assassinate him. Discussions over kidnapping or killing Assange occurred “at the highest levels” of the Trump administration, said a former senior counterintelligence official. “There seemed to be no boundaries.”

Paragraph 12 says that lots of those things described in paragraphs one and two weren’t approved.

There is no indication that the most extreme measures targeting Assange were ever approved, in part because of objections from White House lawyers, but the agency’s WikiLeaks proposals so worried some administration officials that they quietly reached out to staffers and members of Congress on the House and Senate intelligence committees to alert them to what Pompeo was suggesting. “There were serious intel oversight concerns that were being raised through this escapade,” said a Trump national security official.

Around about paragraph 67 the piece describes Mike Pompeo asking for “the art of the possible,” something CIA Directors have a history of doing as a way to think outside the box.

Soon after the speech, Pompeo asked a small group of senior CIA officers to figure out “the art of the possible” when it came to WikiLeaks, said another former senior CIA official. “He said, ‘Nothing’s off limits, don’t self-censor yourself. I need operational ideas from you. I’ll worry about the lawyers in Washington.’” CIA headquarters in Langley, Va., sent messages directing CIA stations and bases worldwide to prioritize collection on WikiLeaks, according to the former senior agency official.

Around the 90s, Yahoo claims someone learned second-hand that Trump asked about killing Assange, but then suggests that wasn’t real, then describes top CIA officials talking about killing Assange, then admits such plans may have never gotten to the White House.

Some discussions even went beyond kidnapping. U.S. officials had also considered killing Assange, according to three former officials. One of those officials said he was briefed on a spring 2017 meeting in which the president asked whether the CIA could assassinate Assange and provide him “options” for how to do so.

“It was viewed as unhinged and ridiculous,” recalled this former senior CIA official of the suggestion.

It’s unclear how serious the proposals to kill Assange really were. “I was told they were just spitballing,” said a former senior counterintelligence official briefed on the discussions about “kinetic options” regarding the WikiLeaks founder. “It was just Trump being Trump.”

Nonetheless, at roughly the same time, agency executives requested and received “sketches” of plans for killing Assange and other Europe-based WikiLeaks members who had access to Vault 7 materials, said a former intelligence official. There were discussions “on whether killing Assange was possible and whether it was legal,” the former official said.

Yahoo News could not confirm if these proposals made it to the White House. Some officials with knowledge of the rendition proposals said they had heard no discussions about assassinating Assange.

And then well past paragraph 100, Yahoo admits the plans to assassinate Assange went nowhere, in significant part because doing so would be illegal.

A primary question for U.S. officials was whether any CIA plan to kidnap or potentially kill Assange was legal. The discussions occurred under the aegis of the agency’s new “offensive counterintelligence” authorities, according to former officials. Some officials thought this was a highly aggressive, and likely legally transgressive, interpretation of these powers.

Without a presidential finding — the directive used to justify covert operations — assassinating Assange or other WikiLeaks members would be illegal, according to several former intelligence officials. In some situations, even a finding is not sufficient to make an action legal, said a former national security official. The CIA’s newfound offensive counterintelligence powers regarding WikiLeaks would not have stretched to assassination. “That kind of lethal action would be way outside of a legitimate intelligence or counterintelligence activity,” a former senior intelligence community lawyer said.

In the end, the assassination discussions went nowhere, said former officials.

The idea of killing Assange “didn’t get serious traction,” said a former senior CIA official. “It was, this is a crazy thing that wastes our time.”

As to the discussions of kidnapping Assange, both the UK and NSC nixed those ideas, though White House Counsel lawyer John Eisenberg (who is presented as the hero of the Yahoo story, and who was a national security lawyer at DOJ during the Bush Administration when such things did get approved) worried that CIA would do it without alerting him and others, and so pressed DOJ to indict Assange if they were going to.

“There was a discussion with the Brits about turning the other cheek or looking the other way when a team of guys went inside and did a rendition,” said a former senior counterintelligence official. “But the British said, ‘No way, you’re not doing that on our territory, that ain’t happening.’” The British Embassy in Washington did not return a request for comment.

In addition to diplomatic concerns about rendition, some NSC officials believed that abducting Assange would be clearly illegal. “You can’t throw people in a car and kidnap them,” said a former national security official.

In fact, said this former official, for some NSC personnel, “This was the key question: Was it possible to render Assange under [the CIA’s] offensive counterintelligence” authorities? In this former official’s thinking, those powers were meant to enable traditional spy-versus-spy activities, “not the same kind of crap we pulled in the war on terror.”

In short, this is a very long story that spends thousands of words admitting that its lead overstates how seriously this line of thought, particularly assassination, was pursued.

I will have lots more to say about several things that discredit this story. But for now that’s the important thing: The story admits that the story oversells its lead.

Yahoo describes the changing view regarding WikiLeaks

The story is useful because it lays out a chronology that few people understand, how over years the US view on Assange gradually changed (the view is entirely based on “former” officials and likely doesn’t reflect even what happened with Assange in the last years of the Trump Administration). The events it describes that led to a gradual change in the way the US treated Assange as depicted in this story are:

  • In response to the 2010 releases, the Obama Administration, “restricted investigations into Assange and WikiLeaks”
  • “In the wake of the Snowden revelations, the Obama administration allowed the intelligence community to prioritize collection on WikiLeaks,” no longer requiring a warrant for intel; but when “top intelligence officials” tried to get the White House to deem people like Laura Poitras and Glenn Greenwald “information brokers,” Obama refused
  • In spite of the changes described as occurring in 2013, in 2015 DOJ remained, “very protective,” of its authorities over whether to charge Assange and whether to treat WikiLeaks “like a media outlet”
  • “The events of 2016 ‘really crystallized’ U.S. intelligence officials’ belief that the WikiLeaks founder ‘was acting in collusion with people who were using him to hurt the interests of the United States,’ … But there was still ‘sensitivity on how we would collect on them.'” [Yahoo says NSA “surveilled” Guccifer 2.0’s Twitter accounts but we know that DOJ obtained warrants to read them, as well, which it doesn’t mention]
  • Yahoo presents a series of seemingly conflicting claims about how things changed in 2016, but does say that shortly before Trump took over Obama’s view on WikiLeaks underwent a “sea change”
  • On April 13, 2017, over a month after the first Vault 7 releases, Pompeo declared WikiLeaks a non-state hostile intelligence agency, thereby accessing “offensive counterintelligence” activities to use against WikiLeaks, including disruption efforts (though the article suggests none were ever used); this label did result in far more collection on WikiLeaks associates traveling around the world
  • In summer 2017, Pompeo embraced proposals to kidnap Assange, which was ultimately pitched to the British, but they refused and NSC officials argued it would be illegal
  • In December 2017, the Five Eyes worked together to thwart a believed Russian exfiltration attempt, and on the same day, DOJ charged Assange by complaint
  • In April 2019, Assange was booted from the Embassy and arrested under a single CFAA count, which DOJ has twice superseded (Yahoo makes no mention of the second superseding indictment and the story seems to drop well before the end of the Trump Administration; it makes no mention of whether Gina Haspel continued the policies pursued by Pompeo after he moved to State in 2018)

The timeline laid out here conflicts with virtually everything Assange claimed about the genesis of his charges during his extradition hearing: showing that Assange’s help getting Snowden out of Hong Kong is what started the process of revising views of WikiLeaks, showing that the US changed their understanding of Assange in 2016, not in 2017, as Assange repeatedly claimed in his extradition hearing, and showing that things really started ratcheting up after the Vault 7 release, at a time when Assange was also under investigation for several things unrelated to journalism (though Yahoo doesn’t mention those investigations, even though they are public), and was therefore separate from Trump’s election or Jeff Sessions’ later leak-driven commitment to crack down on journalists.

In short, amidst a jillion words making claims that the article itself discredits, the article proves that Assange lied, repeatedly, in his extradition hearing, and that the precipitating event in originally charging him was credible information about a Russian exfiltration plot.

Roger Stone reporter Michael Isikoff appears to be unfamiliar with the entire Roger Stone case

One thing that this story never explains is why, if the entire Trump Administration were so opposed to Assange as they claim, Pompeo would have to declare WikiLeaks a non-state hostile intelligence service rather than relying on a Presidential finding to spy on WikiLeaks’ associates.

The immediate question facing Pompeo and the CIA was how to hit back against WikiLeaks and Assange. Agency officials found the answer in a legal sleight of hand. Usually, for U.S. intelligence to secretly interfere with the activities of any foreign actor, the president must sign a document called a “finding” that authorizes such covert action, which must also be briefed to the House and Senate intelligence committees. In very sensitive cases, notification is limited to Congress’s so-called Gang of Eight — the four leaders of the House and Senate, plus the chairperson and ranking member of the two committees.

But there is an important carveout. Many of the same actions, if taken against another spy service, are considered “offensive counterintelligence” activities, which the CIA is allowed to conduct without getting a presidential finding or having to brief Congress, according to several former intelligence officials.

Often, the CIA makes these decisions internally, based on interpretations of so-called “common law” passed down in secret within the agency’s legal corps. “I don’t think people realize how much [the] CIA can do under offensive [counterintelligence] and how there is minimal oversight of it,” said a former official.

That’s what gave Pompeo broader authorities to operate on his own (and thereby creating the risk he might try to assassinate Assange without White House knowledge). But it’s also what limited his options legally. Had Pompeo gotten a finding, kidnapping and assassination would be less obviously prohibited, and just the Gang of Eight would have been briefed. But by making this announcement publicly, everyone learned about it. Ron Wyden predictably raised concerns (and there was a perennial battle over whether Congress would agree with Pompeo’s label as a sense of Congress).

Effectively, Pompeo got fewer authorities and more political pushback, literally the opposite of why Yahoo claims why he went this route.

I don’t know the answer. But I do know that this story’s treatment of Trump is bizarre and ignores a lot of known facts, so it’s possible the answer is the most obvious one: Pompeo couldn’t get a Presidential finding because the President wouldn’t sign off.

As noted above, the article does describe that a source heard second-hand that Trump asked for options to kill Assange, though it doesn’t date it more specifically than spring 2017 and dismisses the statement as one of Trump’s routine attacks.

The story describes that Mike Pompeo was terrified of briefing Trump on the Vault 7 breach, the first releases of which were published on March 7, 2017.

Pompeo, apparently fearful of the president’s wrath, was initially reluctant to even brief the president on Vault 7, according to a former senior Trump administration official. “Don’t tell him, he doesn’t need to know,” Pompeo told one briefer, before being advised that the information was too critical and the president had to be informed, said the former official.

It doesn’t explain, then, whether Pompeo, or Jim Comey, was the source of the briefing that Trump promptly shared with Tucker Carlson literally the day when the FBI would first interview suspected Vault 7 source Joshua Schulte in an urgent attempt to prevent him from fleeing the country with his diplomatic passport. It sure as hell doesn’t explain how the President, in his first known big leak of classified information, almost blew the entire Vault 7 investigation, and how that’s consistent with a plan to assassinate Assange.

Even crazier, especially given Michael Isikoff’s participation in the story, is that there’s no mention of the disclosures that came out as part of the Roger Stone investigation and the Mueller investigation more generally.

No later than November 15 (and possibly even before the election), Trump’s rat-fucker was working with Assange’s lawyer brokering a pardon deal.

In April, Stone called on Pompeo to resign for his comments in the wake of Vault 7.

Stone took to InfoWars on April 18, calling on Pompeo to either provide proof of those Russian ties or resign, defending the release of the Vault 7 tools along the way.

The Intelligence agencies continue to insist that Julian Assange is an active Russian Agent and that Wikileaks is a Russian controlled asset. The agencies have no hard proof of this claim whatsoever. Assange has said repeatedly that he is affiliated with no nation state but the Intelligence Agencies continue to insist that he is under Russian control because it fits the narrative in which they must produce some evidence of Russian interference in our election because they used this charge to legally justify and rationalize the surveillance of Trump aides, myself included.

[snip]

President Donald Trump said on Oct, 10, 2016 “I love Wikileaks” and Pompeo who previously had praised the whistleblowing operation now called Wikileaks “a non-state hostile Intelligence service often abetted by state actors like Russia”. Mr. Pompeo must be pressed to immediately release any evidence he has that proves these statements. If he cannot do so ,the President should discharge him.

[snip]

Julian Assange does not work for the Russians. Given the import of the information that he ultimately disclosed about the Clinton campaign, the Obama administration and the deep secrets in the CIA’s Vault 7, he has educated the American people about the tactics and technology the CIA has used to spy on ordinary Americans.

Assange personally DMed Stone to thank him for the article, while claiming that Pompeo had stopped short of claiming that WikiLeaks had gotten the stolen DNC emails directly, thereby making WikiLeaks like any other media outlet.

On or about April 19, 2017, Assange, using Target Account 2, wrote to Stone, “Ace article in infowars. Appreciated. But note that U.S. intel is engages in slight of hand maoevers [sic]. Listen closely and you see they only claim that we received U.S. election leaks \”not directly\” or via a \”third party\” and do not know \”when\” etc. This line is Pompeo appears to be getting at with his \”abbeted\”. This correspnds to the same as all media and they do not make any allegation that WL or I am a Russia asset.”

The Mueller investigation even showed that in the very same time period where Pompeo was considering assassination attempts on Assange, Trump’s rat-fucker was leveraging the “highest level of Government” to address Assange’s issues.

On June 10, 2017, according to affidavits submitted as part of the Mueller investigation, Roger Stone DMed Julian Assange and told him he was doing everything he could to “address the issues at the highest level of Government.”

57. On or about June 10, 2017, Roger Stone wrote to Target Account 2, “I am doing everything possible to address the issues at the highest level of Government. Fed treatment of you and Wikileaks is an outrage. Must be circumspect in this forum as experience demonstrates it is monitored. Best regards R.” Target Account 2 wrote back, “Appreciated. Of course it is!”

Nine days after the rat-fucker who had a notebook that recorded all the communications he had with Trump during the election described working at the highest level of government to help Assange, Trump attempted to shut down the entirety of the hack-and-leak investigation.

On June 19, 2017, according to the Mueller Report, the President dictated a message for Corey Lewandowski to take to Jeff Sessions, telling the (recused) Attorney General to meet with Robert Mueller and order him to limit his investigation only to future election meddling, not the election meddling that had gotten Trump elected.

During the June 19 meeting, Lewandowski recalled that, after some small talk, the President brought up Sessions and criticized his recusal from the Russia investigation.605 The President told Lewandowski that Sessions was weak and that if the President had known about the likelihood of recusal in advance, he would not have appointed Sessions.606 The President then asked Lewandowski to deliver a message to Sessions and said “write this down.” 607 This was the first time the President had asked Lewandowski to take dictation, and Lewandowski wrote as fast as possible to make sure he captured the content correctly.608 The President directed that Sessions should give a speech publicly announcing:

I know that I recused myself from certain things having to do with specific areas. But our POTUS . .. is being treated very unfairly. He shouldn’t have a Special Prosecutor/Counsel b/c he hasn’t done anything wrong. I was on the campaign w/ him for nine months, there were no Russians involved with him. I know it for a fact b/c I was there. He didn’t do anything wrong except he ran the greatest campaign in American history.609

The dictated message went on to state that Sessions would meet with the Special Counsel to limit his jurisdiction to future election interference:

Now a group of people want to subvert the Constitution of the United States. T am going to meet with the Special Prosecutor to explain this is very unfair and let the Special Prosecutor move forward with investigating election meddling for future elections so that nothing can happen in future elections.610

Days after Roger Stone told Julian Assange that he was trying to resolve matters at the highest level of government, the President of the United States tried to issue a back channel order that would shut down the investigation into Assange — and by association, Stone.

And it went on like that for some time, possibly up to the time when Mueller asked Trump about any pardon discussions for Assange. Only after that did Don Jr’s buddy tell former Sputnik employee Cassandra Fairbanks that the pardon discussion was off, whereupon she flew to London to tell Assange herself.

Particularly pertinent to the question of why CIA was working via offensive counterintelligence authorities rather than a Presidential finding, in October, after weeks of prodding from Trump, Pompeo took a meeting with Bill Binney to hear a theory that would have undermined the entire Intelligence Community’s attribution of the DNC hack via which emails shared with WikiLeaks were stolen. According to The Intercept’s report of the meeting, it led others in the Intelligence Community to worry that Pompeo had stopped heeding intelligence, particularly regarding Russia, that Trump didn’t like.

Some senior CIA officials have grown upset that Pompeo, a former Republican representative from Kansas, has become so close to Trump that the CIA director regularly expresses skepticism about intelligence that doesn’t line up with the president’s views. Pompeo has also alienated some CIA managers by growing belligerent toward them in meetings, according to an intelligence official familiar with the matter.

[snip]

[I]ndications of Pompeo’s willingness to support Trump at the risk of tainting the intelligence process have occasionally broken into the open in recent months. In August, the Washington Post reported that Pompeo had taken the unusual step of having the CIA’s Counterintelligence Mission Center, which would likely play a role in any inquiries by the agency into Russian election meddling, report directly to him. That move has raised concerns within the agency that Pompeo is seeking to personally control the CIA’s efforts to investigate accusations of collusion between the Trump campaign and Russia.

At the very least, by fall this put Pompeo in a more precarious position regarding his vendetta against Assange.

The thing is, the hero of this Yahoo story, John Eisenberg, must know parts of this story, because he was a key part of efforts to protect Trump. He played a role in protecting Mike Flynn after he lied to the FBI and an even bigger role in protecting Trump after he tried to coerce election help from Ukraine, so who knows what his motives really are here. But he certainly must know these details … but they don’t show up in the story.

Crazier still, Isikoff must know parts of these stories, because he reported on the Stone case.

Yet not only don’t those details appear in this story, but the depiction of an entire Administration, save for heroes like John Eisenberg, intent on assassinating Julian Assange is inconsistent with those public facts about Trump’s repeated efforts to undermine any attribution implicating Assange to say nothing of discussions of pardons for Assange.

The truth may be somewhere in the middle, with Trump vacillating between wanting to kill Assange and wanting to liberate him (in this story, however, he’s quoted complaining that Assange was treated badly). But what the President did to undermine the investigation targeting Assange seems to be as important a part of this story as the claim that he mouthed off once about the possibility of assassinating Assange, something he has done with a slew of other journalists and perceived enemies.

The UC Global timeline

Among all the 30 sources cited in the story and the reports that CIA ratcheted up spying on WikiLeaks associates under Pompeo, Yahoo didn’t succeed in getting more clarity on the — by the end of 2017 — very intrusive surveillance of Assange inside the Ecuadorian Embassy by a contractor called UC Global, citing just one source confirming the US did have access to video surveillance without even naming UC Global or revealing which agency UC Global was working with.

A former U.S. national security official confirmed that U.S. intelligence had access to video and audio feeds of Assange within the embassy but declined to specify how it acquired them.

So instead of new information from those 30 sources, Yahoo instead relies on the prior reports from some UC Global whistleblowers. As I noted here, based on their Assange extradition hearing testimony, one of them is quite credible while the other is far less so.

It’s important that Yahoo relies on the whistleblowers, because it provides another way, along with the public details they inexplicably leave out, to test their narrative. Yahoo describes, accurately, that UC Global was sharing information with the US by mid-2017 (the credible witness described key developments in June and July).

By late 2015, Ecuador had hired a Spanish security company called UC Global to protect the country’s London embassy, where Assange had already spent several years running WikiLeaks from his living quarters. Unbeknownst to Ecuador, however, by mid-2017 UC Global was also working for U.S. intelligence, according to two former employees who testified in a Spanish criminal investigation first reported by the newspaper El País.

Yahoo doesn’t note, however, that data collection first started to expand in 2016, and formal vetting for what was presumably this relationship started by January 24, 2017, just one day after Pompeo was confirmed.

I also recall that once Donald Trump won the elections, at the end of 2016, the collection of information intensified as Morales became more obsessed with obtaining as much information as possible.

[snip]

On 24 January 2017, once Donald Trump had acceded to the presidency of the United States, David Morales sent a message over Telegram in which he wrote, “Well, I want you to be alert because I am informed that we are being vetted, so everything that is confidential should be encrypted […] That’s what I’m being told. Everything relates to the UK issue. I am not worried about it, just be alert […] The people vetting are our friends in the USA”.

That is, this process started after WikiLeaks’ cooperation with Russia in 2016 caused a “sea change” in US treatment of Assange, but before Pompeo’s vendetta in response to Vault 7.

And while the surveillance absolutely ratcheted up during that summer (so potentially consistent with Pompeo’s vendetta, but also at a time when WikiLeaks was also under several different criminal investigations), Yahoo neglects to mention that the really intrusive surveillance came in December, at the same time (it reports) that the IC had credible reports of an exfiltration attempt.

In early December 2017, I was instructed by David Morales to travel with a colleague to install the new security cameras. I carried out the new installation over the course of several days. I was instructed by Morales not to share information about the specifications of the recording system, and if asked to deny that the cameras were recording audio. I was told that it was imperative that these instructions be carried out as they came, supposedly, from the highest spheres. In fact, I was asked on several occasions by Mr. Assange and the Political Counsellor Maria Eugenia whether the new cameras recorded sound, to which I replied that they did not, as my boss had instructed me to do. Thus, from that moment on the cameras began to record sound regularly, so every meeting that the asylee held was captured. At our offices in UC Global it was mentioned that the cameras had been paid for twice, by Ecuador and the United States, although I have no documentary evidence to corroborate this assertion.

The story Yahoo tells significantly amounts to Mike Pompeo proposing some illegal options to take out Assange, only to be thwarted by (at a minimum) the lawyers in place to prevent such things — though there’s good reason to believe DOJ played a big role in it too. And then, at a time when Pompeo had lost or was losing his bid to pursue illegal activities, the Five Eyes (presumably including Australia) identified and countered a Russian exfiltration attempt.

That presumably changed a lot of things about how the IC dealt with Assange. But those details don’t appear in this story. Aside from the mentions of DOJ successfully retaining the gatekeeper role on these questions in 2015 and 2017 (something I have some, albeit limited, reason to believe continued through 2019), the story doesn’t consider — at all! — the various criminal investigations at the time, not even the one that Isikoff has covered in the past.

Crazier still, it presents this as a story about the Trump Administration, while ignoring public details about a key player in that Administration — some guy named Trump — was doing that at the least conflicted with Pompeo’s actions.

Pompeo is and was batshit crazy and I’m glad, for once, the lawyers managed to rein in the CIA Director. But this seems to be, largely, a story about crazy Mike Pompeo being reined in by lawyers.

The FBI’s Proud Boy Informant Showed Up Late

The Proud Boys charged with the most serious assaults on January 6 — including (at a minimum) Dan “Milkshake” Scott and Christopher Worrell — are not charged with conspiracy, though both could easily have been included as co-conspirators. Nor is Ryan Samsel, who is not known to be a Proud Boy but spoke to Joe Biggs just before he kicked off the entire riot by allegedly knocking over a cop and giving her a concussion (this may change, especially since, after a long delay, DOJ charged Samsel individually in an indictment that, either via the assignment wheel or because it was identified as a case related to the Proud Boys leadership indictment, got assigned to Judge Tim Kelly). While Dominic Pezzola is charged with assault for stealing the riot shield he used to break into the Capitol and Billy Chrestman is charged with threatening to assault a cop, their co-defendants are not implicated in those assaults, except insofar as they are overt acts in a conspiracy.

That’s why I find this detail from NYT’s blockbuster report on what a Proud Boy informant who showed up late to the January 6 riot and then entered the Capitol has told the FBI about the investigation rather interesting.

At the same time, the new information is likely to complicate the government’s efforts to prove the high-profile conspiracy charges it has brought against several members of the Proud Boys.

On Jan. 6, and for months after, the records show, the informant, who was affiliated with a Midwest chapter of the Proud Boys, denied that the group intended to use violence that day.

[snip]

On the eve of the attack, the records show, the informant said that the group had no plans to engage in violence the next day except to defend itself from potential assaults from leftist activists — a narrative the Proud Boys have often used to excuse their own violent behavior.

The government has never accused the Proud Boy conspirators of planning to use violence themselves, though there is evidence they knew their incitement could spark violence among “normies.” There’s even evidence that Ethan Nordean tried to rein in one attack (though only after he had presumably witnessed other assaults on cops).

That is, that claim is utterly irrelevant to the government’s conspiracy cases against the Proud Boys.

And yet the NYT offered it as one reason this informant’s report might, “complicate the government’s efforts to prove the high-profile conspiracy charges it has brought against several members of the Proud Boys.”

To be sure, there is one way this informant might undermine the existing conspiracy charges.

The informant’s interview reports affirmatively claim that he knew of no plans to storm the Capitol, nor did he hear any talk of the electoral college certification in his travels that day.

In lengthy interviews, the records say, he also denied that the extremist organization planned in advance to storm the Capitol.

[snip]

But statements from the informant appear to counter the government’s assertion that the Proud Boys organized for an offensive assault on the Capitol intended to stop the peaceful transition from Mr. Trump to Mr. Biden.

On the eve of the attack, the records show, the informant said that the group had no plans to engage in violence the next day except to defend itself from potential assaults from leftist activists — a narrative the Proud Boys have often used to excuse their own violent behavior.

Then, during an interview in April, the informant again told his handlers that Proud Boys leaders gave explicit orders to maintain a defensive posture on Jan. 6. At another point in the interview, he said that he never heard any discussion that day about stopping the Electoral College process.

The records show that, after driving to Washington and checking into an Airbnb in Virginia on Jan. 5, the informant spent most of Jan. 6 with other Proud Boys, including some who have been charged in the attack. While the informant mentioned seeing Proud Boys leaders that day, like Ethan Nordean, who has also been charged, there is no indication that he was directly involved with any Proud Boys in leadership positions.

In a detailed account of his activities contained in the records, the informant, who was part of a group chat of other Proud Boys, described meeting up with scores of men from chapters around the country at 10 a.m. on Jan. 6 at the Washington Monument and eventually marching to the Capitol. He said that when he arrived, throngs of people were already streaming past the first barrier outside the building, which, he later learned, was taken down by one of his Proud Boy acquaintances and a young woman with him. [my emphasis]

This guy’s testimony absolutely poses a challenge to prosecutors prosecuting the Proud Boys this guy was actually interacting with.

That said, the NYT does not say whether he was interacting with those charged with conspiracy or even obstruction (still-active Proud Boys, like Jeremy Grace, have been charged only with trespassing). Even if he was interacting with people charged with conspiracy, the fact that he showed up late and (claimed that he) did not know that some of his own acquaintances were going to breach the barriers until after the fact would, at most, show that he wasn’t privy to the plans of lower level cells.

But the way in which DOJ has charged the Proud Boy side of the conspiracies is with one leadership conspiracy, and four subconspiracies that are effectively cells that allegedly worked together to achieve smaller objectives: to breach the West door, to breach the North door, and to keep the Visitor Center gates open (the NYT misses one of the charged Proud Boy conspiracies, against the Klein brothers, for opening a North door to the building, which has acquired more tactical import with the charging of Ben Martin).

Two main things matter to the viability of the larger Proud Boys conspiracy: First, whether the four charged in the leadership conspiracy did have an advance plan. And second, whether their conspiracy interlocks with the Dominic Pezzola conspiracy that ended up breaching the front door of the Capitol and with it exposed Pezzola, his co-conspirators, and by association, the Proud Boy leaders to terrorism enhancements.

The second point is one that the Proud Boy leaders are contesting aggressively. We have yet to see evidence proving a tie between those two conspiracies. But we also have yet to see any evidence from the December rally at which the ties to Pezzola appear to have been forged. Meanwhile, William Pepe is disclaiming knowing the others, suggesting a possible weakness in that conspiracy charge.

As to the first, what we’ve seen in public evidence is that, in the wake of the Enrique Tarrio arrest on January 4, the four leaders attempted to regroup, and then, on the night before the riot, Joe Biggs and Ethan Nordean met with unnamed people and finalized a plan in seeming coordination with Tarrio, and avoided speaking of it even on their limited leadership Telegram chat.

On January 4, when Tarrio arrived in DC for the riot, he was arrested for his attack on the Black Church in December, whereupon he was found with weapons that are unlawful in DC. In the wake of Tarrio’s arrest, Ethan Nordean was supposed to be in charge of the operation. But around 9:08PM the day before the riot (these texts reflect Nordean’s Washington state time zone, so add three hours), someone said he had not heard from Nordean in hours.

Minutes later, Biggs explained that “we just had a meeting w[i]th a lot of guys” and “info should be coming out.” While redacted in these texts, the superseding indictment describes that he also notes he had just spoken with Tarrio.

He further explained that he was with Nordean and “we have a plan.”

Biggs then says he gave Tarrio a plan.

Ethan Nordean may have been in charge on January 6. But Biggs seems to have been the one working most closely with Tarrio, through whom at least some of the inter-militia coordination worked.

There’s little question they had a plan to do something (and that that plan did not include attending the Trump rally which was the primary innocent reason for Trump supporters to show up to DC that day). The question is what kind of evidence DOJ has substantiating that plan, especially after claimed efforts to flip Zach Rehl collapsed. (Nordean has also said he’ll move to suppress these texts because his spouse consented to the breach of his phone, which led FBI to obtain them, but it’s likely the FBI has a second set of the texts in any case.)

But it also is likely the case that the place to look for that evidence is not with a low-level Proud Boy who showed up late to insurrection, but with the others with whom Nordean and Biggs were meeting the night before the riot. And there’s no indication that these people were all Proud Boys, and in fact good reason to suspect they weren’t.

In the weeks before the riot, Kelly Meggs repeatedly talked about a Florida-based intra-militia alliance.

In the days after both the DC even[t] and an event involving Stone in Florida, Oath Keeper Kelly Meggs claimed he organized a Florida-based “alliance” between the Oath Keepers, Proud Boys, and 3%ers.

On Christmas Eve, Meggs specifically tied protection at the January rally, probably of Stone, and coordination with a Proud Boy, almost certainly Tarrio, in the same text.

And in the days after, the Southern California 3%ers laid out a Stop the Steal affiliated plan to surround the Capitol.

Spread the word to other CALIFORNIA Patriots to join us as we March into the Capitol Jan 6. The Plan right now is to meet up at two occasions and locations: 1. Jan 5th 2pm at the Supreme Court steps for a rally. (Myself, Alan, [and others] will be speaking) 2. Jan 6th early 7am meet in front of the Kimpton George Hotel…we will leave at 7:30am sharp and March (15 mins) to the Capital [sic] to meet up with the stop the steal organization and surround the capital. [sic] There will be speakers there and we will be part of the large effort for the “Wild Rally” that Trump has asked us all to be part of. [my emphasis]

Not only is this what happened on January 6, but Joe Biggs seemed to know that key Stop the Steal figures, including his former employer Alex Jones, would open up a second front of this attack and arrived to take part in it, entering the Capitol a second time virtually in tandem with the Meggs-led Stack.

This is one reason I keep presenting all these conspiracies together: because there’s good reason the Proud Boy conspiracies don’t just intersect with each other, but that the Proud Boy conspiracies intersect, in the person of Joe Biggs and others, with each other.

There are many reasons that the report of an FBI handler not understanding that his or her Proud Boy informant was describing the breach of the Capitol as it happened is important.

After meeting his fellow Proud Boys at the Washington Monument that morning, the informant described his path to the Capitol grounds where he saw barriers knocked down and Trump supporters streaming into the building, the records show. At one point, his handler appeared not to grasp that the building had been breached, the records show, and asked the informant to keep him in the loop — especially if there was any violence.

But, except to limited degree to which his testimony affects the case against the Proud Boys with whom he actually interacted, this report primarily provides yet more proof that the FBI, trained by Billy Barr not to investigate any subjects Trump claimed as his own tribe, had no conception of what they were looking at on January 6, not even as the Proud Boys led an attack on the Capitol.

The government has not yet publicly shown all of its evidence that the Proud Boy leaders, alone or in concert with other militias and Stop the Steal organizers, had a plan to attack the Capitol on January 6. Unless something disrupts the case, we won’t see that until next summer.

But one thing we know from the available evidence is that low-level Proud Boys who showed up late to insurrection are not the place to look for that plan.

John Durham Is the Jim Jordan of Ken Starrs

Last Thursday, John Durham indicted Michael Sussmann, the Perkins Coie lawyer who advised the DNC, DCCC, and Clinton Campaign about cybersecurity in 2016 as they struggled to deal with a hostile nation-state attack aiming — in part — to help elect their opponent. The indictment accuses Sussmann of lying to FBI General Counsel James Baker at a September 19, 2016 meeting at which Sussmann shared information about the curious DNS traffic between a server used by a Trump marketing contractor and Alfa Bank.

emptywheel’s long history of debunking the Alfa Bank story

Before I unpack the indictment, let me remind readers that when this story first publicly broke, I explained why the Spectrum Health (aka my boob hospital at the time) aspect of the allegations made no sense, criticized Hillary’s team (including Jake Sullivan) for jumping on the story, and echoed Rob Graham’s criticism of the researchers who accessed DNS data to conduct this research.

In addition to his technical debunking, Robert Graham made an equally important point: researchers shouldn’t be accessing this data for ad-lib investigations into presidential candidates, and it’s not even clear who would have access to it all except the NSA.

The big story isn’t the conspiracy theory about Trump, but that these malware researchers exploited their privileged access for some purpose other than malware research.

[snip]

In short, of all the sources of “DNS malware information” I’ve heard about, none of it would deliver the information these researchers claim to have (well, except the NSA with their transatlantic undersea taps, of course).

[snip]

[B]efore Tea Leaves started pushing this story to the press, the FBI had been investigating it for two months.

Which, to my mind, raises even more questions about the anonymous researchers’ identities, because (small world and all) the FBI likely knows them, in which case they may have known that the FBI wasn’t jumping on the story by the time they started pitching it.

Or the FBI doesn’t know them, which raises still more questions about the provenance of these files.

Ah well, if President Hillary starts a war with Russia based off Iraq-War style dodgy documents, at least I’ll have the satisfaction of knowing my boob clinic is right there on the front lines.

In March 2017, I observed that the weird Alfa Bank entry in the Steele dossier suggested a feedback loop between the Alfa Bank server story and the dossier project. Then days after that, I noted all the ways that the packaging of this story made it more suspect.

In 2018, I complained about the way Dexter Filkins had strained to sustain the story, while noting that people ought to look more closely at why Alfa Bank might be the focus here; the Mueller Report since confirmed that within weeks after the story broke publicly, Vladimir Putin pushed Oligarchs from Alfa Bank to fight harder against western sanctions, something that the alleged source for the Alfa Bank entry in the dossier seemed to parrot.

In short, I not only have consistently criticized this story, but done so in ways that anticipate the most justifiable parts of the indictment. It’s only the last bit — how the Alfa narrative echoes Putin’s interests — that this indictment doesn’t incorporate.

I guess with five more years Durham might get there…

So in unpacking this indictment, I’m in no way defending the Alfa Bank – Trump Tower story. It was a sketchy allegation, the packaging of it was suspect, and those who conducted the research arguably violated ethical guidelines.

I got to where Durham got in this indictment years and years ago. But that doesn’t make it a crime.

John Durham’s “narrative”

Moreover, that doesn’t mean Durham should tell as strained a “narrative” as those who packaged up this story. Central to Durham’s indictment is an assumption that if a victim of a crime who believed at the time that the crime had a — since confirmed — political goal reports suspicious, potentially related details, the victim must be motivated exclusively out of self-interest, not good citizenship or a concern about national security. That is, this entire indictment assumes that when Russia attacks a Presidential candidate, that is not itself a national security concern, but instead nothing more than a political dispute.

Effectively, John Durham has made it a crime for someone victimized by a Russian influence operation to try to chase down Russian influence operations.

Tech Executive-1 and Clinton both had retained Perkins Coie long before this, with Sussmann getting involved specifically for cybersecurity help in the wake of the Russian hack

The indictment, perhaps deliberately, obscures the timeline and facts leading up to the charged lie. But here’s the story it tells. First, all of Durham’s subjects established contracts with each other, even though all of those contracts (including Fusion GPS’) had scopes far larger than oppo research on Trump’s relationship with Russia.

  • In February 2015, Tech Executive-1 (whom I’ll call TE-1 for brevity) retained Sussmann to deal with a US government agency [Durham does not say whether this matter was resolved or continued in this period in 2016, which is central to the question of what kind of client of Sussmann’s TE-1 was].
  • In April 2015, the Clinton Campaign retained Perkins Coie and made Marc Elias the Campaign’s General Counsel.
  • In April 2016, the victim of a Russian government election-related attack, the DNC, retained Sussmann to help it deal with aftermath, which included meeting with the FBI. As the indictment describes this was not just legal support but cybersecurity.
  • [After a Republican retained them first and on a date that Durham doesn’t reveal,] Perkins Coie retained Fusion GPS to conduct oppo research on Trump pertaining to Russia [and other topics, though Durham doesn’t mention those other topics].

Durham only mentions in passing, later, that the researchers involved here similarly knew each other through relationships that focused on cybersecurity and predated these events.

Via means and on specific dates that Durham doesn’t always provide, Tea Leaves, TE-1, Sussmann, and two Researchers got the DNS data showing an anomaly

There are two sets of research here: that done in a university setting and that done at companies associated with TE-1, though TE-1 is the pivot to both. As depicted, Durham suggests the former are more legally exposed than the latter.

  • By some time in late July 2016 [the exact date Durham doesn’t provide], a guy who always operated under the pseudonym Tea Leaves but whom Durham heavy-handedly calls “Originator-1” instead had assembled “purported DNS data” reflecting apparent DNS lookups between Alfa Bank and “mail1.trump-email.com” that spanned from May 4 through July 29.
  • Tea Leaves was a business associate of TE-1 and via means Durham doesn’t describe, the data Tea Leaves gathered was shared with TE-1.
  • “In or about July 2016” [at a time that, because of the laws of physics, must post-date the late July date when Tea Leaves collected this data and the date when he shared them with TE-1], TE-1 alerted Sussmann to the data.
  • On July 31, Sussmann billed the Clinton Campaign for 24 minutes with the billing description, “communications with Marc Elias regarding server issue.”
  • At some point [Durham doesn’t provide even a month, but by context it was at least as early as July 2016 and could have been far, far earlier], TE-1’s company provided a university with data for a government contract ultimately not contracted until November 2016, including the DNS data from an Executive Branch office of the US government that Tech Exec-1’s company had gotten as a sub-contractor to the US government. [This date of this is critical because it would be the trigger for a Conspiracy to Defraud charge, if Durham goes there.]
  • In or about August 2016 [Durham doesn’t provide a date], a federal government was finalizing but had not yet signed a cybersecurity research contract with [presumably] that same university to receive and analyze large quantities of public and non-public data “to identify the perpetrators of malicious cyber-attacks and protect U.S. national security.” Tea Leaves was the founder of a company that the university was considering [Durham doesn’t provide the date of consideration, but generally these things precede finalization] for a subcontract with the government contract.

TE-1 directs employees of companies under his control to research this issue

Though Durham’s indictment is somewhat vague, at least one piece of research from companies associated with TE-1 was shared with the FBI; it appears that other threads of research were not shared.

  • In or about early August 2016 [the dates of which Durham doesn’t provide], TE-1 directed personnel at two companies in which he had an ownership interest to search for what the indictment calls, “any Internet data reflecting potential connections or communications between Trump or his associates and Russia,” which Durham describes to be “derogatory information on Trump.” In connection with this tasking, TE-1 later stated [on a date Durham doesn’t describe] he was working with someone who had close ties to the Democratic Party.
  • At some point, an individual tasked with this work described being “uncomfortable regarding this tasking,” [Durham doesn’t describe when he learned this or whether there is any contemporaneous proof].
  • At some point [Durham doesn’t describe the date], TE-1 provided one of his companies with personal (but publicly available) data from six Trump associates and one purported US-based lobbyist for Alfa Bank and directed these individuals should be the focus of that company’s data queries and analysis [Durham doesn’t say whether these six associates overlapped with the people Fusion had been tasked to research, nor does he allege they got included in the eventual reports to the FBI; both details are needed to assess his case].
  • On August 12, 2016, Sussmann, Elias, and TE-1 met in Elias’ office; Sussmann billed his time to the Clinton Campaign describing, “confidential meetings with Elias, others.”
  • On August 15, employees at one of the companies queried their holdings against a set of addresses that referred to Trump and/or Alfa Bank.
  • During the same time period [Durham doesn’t specify when], employees at Internet Company-3 drafted a written paper that included technical observations that Sussmann would later convey to the FBI.

Around the time this started, Sussmann met Fusion and a bunch of meetings happened that were billed to Hillary

  • On July 29, Sussmann and Marc Elias met with Fusion GPS [Durham doesn’t affirmatively claim this data pertained to the server issue], and Sussmann billed his time to the Hillary Campaign under “General Political Advice,” a different description than all the other Fusion meetings that Durham more credibly claims relate to the Alfa Bank allegation.
  • Around “the same [August] time period” [Durham doesn’t provide the date], Sussmann, Elias, and Fusion personnel began exchanging emails with the subject line, “Connecting you all by email;” [Durham doesn’t say who initiated the email, but it suggests that before this period, Sussmann and Fusion did not have direct contact].
  • On August 17, 2016, Sussmann, Elias, and TE-1 conducted an additional conference call, for which Sussmann billed his time to the Clinton campaign, noting “telephone conference with” TE-1 and Elias.
  • On August 19, 2016, Sussman and Elias had another in-person meeting that Sussmann described as a meeting with TE-1, which was billed as a “confidential meeting with Elias, others.”

Researchers 1 and 2 and Tea Leaves worked with TE-1 on a “storyline” and “narrative” with varying degrees of skepticism expressed

This is the stuff Durham–with some justification–will and has used to taint all this as a political project.

  • On July 29, Researcher-2 emailed Researcher-1 the data compiled by Tea Leaves [Durham provides no evidence that TE-1 was involved in this exchange].
  • On August 19, Researcher-1 queried Internet data maintained by TE-1’s company [it is not clear but this suggests it was not the data turned over to the University] for the aforementioned mail1.trump-email.com domain. Researcher-1 then emailed TE-1 with the list of domains that had communicated with it, saying the list, “does not make much sense with the storyline you have.”
  • On August 20, Tea Leaves emailed Tech Exec-1, Researcher-1, and Researcher 2, stating that, “even if we found what [TE-1] asks us to find in DNS, we don’t see the money flow, and we don’t see the content of some message saying, ‘send money here’.” Tea Leaves then explained that one could fill out sales forms and cause them, “to appear to communicate with each other in DNS.” Tea Leaves then noted that “it’s just not the case that you can rest assured that Hillary’s opposition research and whatever professional gov and investigative journalists are also digging come up with the same things.”
  • On August 20, TE-1 clarified that the task was “indeed broad,” and that,
    • Being able to provide evidence of *anything* that shows an attempt to behave badly in relation to this [Durham doesn’t describe what the antecedent of “this” is], the VIPs would be happy. They’re looking for a true story that could be used as the basis for closer examination.
  • Still on August 20, seemingly distinguishing between that task and the Alfa Bank allegations, TE-1 said, “the prior hypothesis was all that they needed: mailserver dedicated or related to trump … and with traffic almost exclusively with Alfa was sufficient to do the job. … Trump has claimed he and his company have had NO dealings with .ru other than the failed Casino, and the Miss universe pageant. He claims absolutely NO interaction with any financial institutions. So any potential like that would be jackpot.” [Ellipses original]
  • On August 21, TE-1 emailed the recipients [but not, apparently, Sussmann], urging them to do further research on Trump which would “given the base of a very useful narrative.” He added that he didn’t believe the trump-email.com domain was a secret communications channel but a “red herring,” because the host was “a legitimate valid company,” stating they could “ignore it, together with others that seem to be part of the marketing world.”
  • On August 22, Researcher-1 raised doubts about whether, using only the tools they were currently using, they could prove their hypothesis. Among the concerns raised is that they couldn’t prove that “this is not spoofed [] traffic.” [brackets original; bolded in the original]
  • Later in or about August 2016 [on dates Durham doesn’t provide], TE-1 exchanged emails with personnel from Fusion.

Sussmann drafts a white paper and (via unstated means) TE-1 gets Researchers 1 and 2 and Tea Leaves to review it

  • Between September 5 and September 14, Sussmann drafted a white paper, generally billing his time to the Clinton Campaign, but on September 14, billing time to both Clinton and TE-1.
  • On September 14, TE-1 [not Sussmann] sent the white paper he had drafted to Researcher 1, Researcher 2, and Tea Leaves to ask them if a review of less than an hour would show this to be plausible. Though some of them noted how limited the standard of “plausibility” was, they agreed it was plausible, and Researcher 2 said [Durham does not quote the specific language here] “the paper should be shared with government officials.”

Sussmann shares this and other information with James Baker and–Durham claims–affirmatively lies about whether he is representing someone

  • Both before the September 19 meeting and after it (notably in a September 12 meeting involving the NYTimes, in which Marc Elias also participated), Sussmann spoke to the press about what Durham credibly suggests was the Alfa Bank white paper. Sussmann billed this to Clinton.
  • On September 19, Sussmann met with Baker and provided him with three white papers and a thumb drive with data. Durham doesn’t actually make clear where all three of these came from.
  • On September 19, Sussmann met with James Baker. Durham claims that “he stated falsely that he was not acting on behalf of any client” [which Durham cannot quote because there’s no contemporaneous record], that he had been approached by multiple cyber experts [Durham doesn’t say whether the three he named were Researcher 1, Researcher 2, and Tea Leaves or other people, as seems to be the case], three white papers [which I may return to because this is another problematic spot in his story], and some of the data, which Durham calls “purported.”
  • Immediately after the September 19 meeting, Baker met with Bill Priestap whose notes read:
    • Michael Sussman[n] — Atty: Perkins Coie — said not doing this for any client
      • Represents DNC, Clinton Foundation, etc. []
      • Been approached by Prominent Cyber People (Academic or Corp. POCs), People like: [three names redacted]
  • Durham substantiates a claim that Sussmann billed the meeting itself to Hillary to a description, “work and communications regarding confidential project,” that does not, at least as he quotes it, mention a meeting with the FBI General Counsel at all.

Some of this — the reference to crafting a narrative and a storyline — is damning and validates my discomfort with the political nature of this project five years ago. Other parts of this emphasize the researchers’ insistence on truth from at least parts of this effort. Still others (such as the recognition that this could be spoofed data) will almost certainly end up being presented as exculpatory if this ever goes to trial, but Durham seems to think is inculpatory.

In one place, Durham describes “aforementioned views,” plural, that the Alfa Bank data was a “red herring,” something only attributed to TE-1 in the indictment, seemingly presenting TE-1’s stated view on August 21 to everyone involved, including Sussmann, who does not appear to have been on that email chain. He claims Sussmann, Researcher 1 and 2, TE-1, and Tea Leaves drafted the white paper(s) shared with the FBI, but all he substantiates is a less than one hour review by everyone but Sussmann. He leaves out a great deal of detail about what Jean Camp and someone using the moniker Tea Leaves did and said, publicly, after the FBI meeting, which may totally undercut Durham’s “narrative.”

But other parts, even of the story that Durham tells, are problematic for his narrative. First, there is not (yet) the least hint that Tea Leaves — whom he calls “The Originator” — fabricated this data (or even packaged it up misleadingly, though I think there is evidence he did). Nor is there the least hint that TE-1 asked Tea Leaves to come up with the data. That part of the story is fundamentally important and Durham simply ignores it with that legally unnecessary — particularly given that Durham clearly labels this person as Tea Leaves — moniker “Originator,” giving the anomalous forensic data a kind of virgin birth. And while two of the four tech experts described herein (there appear to be at least three others not described) expressed some doubt about the meaning of it, none of them seems to have doubted that there was an anomaly in the Trump marketing server and Alfa Bank.

Based on this story, though, Durham insinuates Sussmann fed information that he, Sussmann, knew to be bullshit to the FBI on behalf of both Hillary and TE-1, and in so doing affirmatively hid that the bullshit “storyline” was designed to help Hillary which (he claims) would have led the FBI to treat it differently.

In spite of a lot of thus far extraneous details, that’s the only crime he has alleged.

The existing case is remarkably weak

As a number of people have noted, as charged this is a remarkably weak case. Ben Wittes dedicates a section of his post on this indictment to those weaknesses. They are, succinctly:

  • The evidence regarding the core allegation in the indictment pits Sussmann’s word against James Baker’s; there are no other witnesses.
  • After the meeting with Baker, Sussmann repeatedly admitted under oath he was representing a client, a detail which could be exculpatory or inculpatory.
  • Baker testified to Congress he did believe Sussmann was representing a client (meaning Baker will be used to discredit Baker, the one witness to Sussmann’s alleged lie).
  • Even in Bill Priestap’s nearly-contemporaneous notes which are the only documentation of Sussmann’s comments, he describes Sussmann as Hillary’s lawyer (including for the Clinton Foundation, which may be incorrect), so FBI knew full well that Sussmann represented Hillary.
  • Priestap’s notes may be inadmissible hearsay at trial.

The NYT article predicting these charges also claim Durham is conflating Sussmann’s tracking of his hourly work with the actual money charged to the Hillary campaign.

Moreover, internal billing records Mr. Durham is said to have obtained from Perkins Coie are said to show that when Mr. Sussmann logged certain hours as working on the Alfa Bank matter — though not the meeting with Mr. Baker — he billed the time to Mrs. Clinton’s 2016 campaign.

[snip]

They are also said to have argued that the billing records are misleading because Mr. Sussmann was not charging his client for work on the Alfa Bank matter, but needed to show internally that he was working on something. He was discussing the matter with Mr. Elias and the campaign paid a flat monthly retainer to the firm, so Mr. Sussmann’s hours did not result in any additional charges, they said.

There are a number of other ways that Sussmann’s presumably well-funded defense will combat these charges. But as to the allegation buried amid all these details, Durham’s evidence is weak.

Durham’s materiality broadcasts his bid for a ConFraudUS conspiracy

But that’s not what this is about.

Durham is not just alleging that Sussmann was hiding that he was working for Hillary. He is also claiming that Sussmann was at the same time representing TE-1 at that meeting. In the indictment, I think that’s based on a single data point — that Sussmann billed TE-1’s company for “communications regarding confidential project” on September 14. I’m not sure whether that makes the false statements case still weaker or stronger.

But it’s a key part of where Durham obviously wants to go.

Not only are many of the details Durham included in the indictment irrelevant to the false statements charge, but if they were crimes by themselves, they would have been tolled under any five year statute of limitations already. There are only two conceivable purposes for including them in this indictment. First, to give the Alfa Bank Oligarchs more cause to sue more people, effectively a US prosecutor assisting Russians in cynical lawfare. Durham’s investigation incorporates stuff the Oligarchs have already liberated, so is itself derivative of Russian lawfare. Effectively, that means that a prosecutor working for Bill Barr’s DOJ pursued a prosecution that was complementary to an intelligence-related effort by foreigners who pay Kirkland & Ellis a lot of money. Sussmann will have real cause to question whether Brian Benczkowski (who recused from matters involving this aspect of Alfa Bank) or any other Kirkland & Ellis lawyer had a role in this strand of the investigation.

Then there’s the most obvious way to extend the statute of limitations on the events that happened in July and August 2016: to include them in a conspiracy that continued after those dates (and indeed, Durham refers to Elias, Researcher 1 and 2, and Tea Leaves in the way DOJ often uses to refer to charged or uncharged co-conspirators).

Given the extended statement Durham includes to explain why Sussmann’s alleged lie is material under the charged statute, that’s undoubtedly where Durham wants to head with his investigation.

SUSSMANN’s lie was material because, among other reasons, SUSSMANN’s false statement misled the FBI General Counsel and other FBI personnel concerning the political nature of his work and deprived the FBI of information that might have permitted it more fully to assess and uncover the origins of the relevant data and technical analysis, including the identities and motivations of SUSSMANN’s clients.

Had the FBI uncovered the origins of the relevant data and analysis and as alleged below, it might have learned, among other things that (i) in compiling and analyzing the Russian Bank-1 allegations, Tech Executive-1 had exploited his access to non-public data at multiple Internet companies to conduct opposition research concerning Trump; (ii) in furtherance of these efforts, Tech Executive-1 had enlisted, and was continuing to enlist, the assistance of researchers at a U.S.-based university who were receiving and analyzing Internet data in connection with a pending federal government cybersecurity research contract; and (iii) SUSSMAN, Tech Executive-1, and Law Firm-1 had coordinated, and were continuing to coordinate, with representatives and agents of the Clinton Campaign with regard to the data and written materials that Sussmann gave to the FBI and the media.

Don’t get me wrong. This will clearly pass the incredibly low standard for materiality under existing precedent. Though Sussmann will surely make much of citing the invented standard Billy Barr used to try to dismiss the Mike Flynn prosecution, which first requires the investigation in question to be legitimate.

The Government is not persuaded that the January 24, 2017 interview was conducted with a legitimate investigative basis and therefore does not believe Mr. Flynn’s statements were material even if untrue. Moreover, we not believe that the Government can prove either the relevant false statements or their materiality beyond a reasonable doubt.

[snip]

In any event, there was no question at the FBI as to the content of the calls; the FBI had in its possession word-for-word transcripts of the actual communications between Mr. Flynn and Mr. Kislyak. See Ex. 5 at 3; Ex. 13. at 3. With no dispute as to what was in fact said, there was no factual basis for the predication of a new counterintelligence investigation. Nor was there a justification or need to interview Mr. Flynn as to his own personal recollections of what had been said. Whatever gaps in his memory Mr. Flynn might or might not reveal upon an interview regurgitating the content of those calls would not have implicated legitimate counterintelligence interests or somehow exposed Mr. Flynn as beholden to Russia.

If DOJ had no interest in figuring out whether Trump was undermining sanctions to pay off a quid pro quo, they sure as hell have no interest in launching a 3-year investigation to figure out the tie between these allegations and Hillary that was obvious to Priestap in real time, particularly given how quickly the FBI dismissed the allegations in 2017 and given that the allegations are not publicly known to have had a tie to their larger Russian investigation.

Still, while Durham will have no trouble proving Sussmann’s claimed lie meets the standards of materiality, Durham’s claims for it are ridiculous.

It’s a load of horseshit that FBI would have treated this tip any differently — which amounted to investigating it, alerting the press there was nothing to it, then dismissing it pretty quickly, as far as is public — if they knew that Sussmann was formally being paid at that meeting by Hillary, if he in fact was. Priestap knew Sussmann was representing Hillary and said as much in the best evidence Durham has! In fact, FBI’s warning to the NYT about this story in October could be presented as evidence that FBI already incorporated an assumption this came from Hillary.

Likewise, it’s a load of horseshit that FBI couldn’t know that the Bureau needed to ID the researchers behind the project. If I was able to figure that was important out before the 2016 election, and I did, then the experts at the FBI surely figured that out.

But what Durham’s materiality statement emphasizes — what Durham claims Sussmann intended to hide with his claimed lie — is that, “researchers at a U.S.-based university … were receiving and analyzing Internet data in connection with a pending federal government cybersecurity research contract.” That’s the significance of ¶¶23a through e of the indictment, which describe how TE-1 provided data that included some from an Executive Branch office of the U.S. government, which his company had obtained “as a sub-contractor in a sensitive relationship between the U.S. government and another company,” to the university at which Researcher 1 and 2 were working, and both with his university researcher allies and employees of his own company, he tasked people to research Donald Trump. Durham is suggesting that subset of data taints the whole pool that TE-1 shared, making it a Federal interest.

It’s not just that Durham is working on a theory that Sussmann deliberately dealt garbage to the FBI (which GOP sources also did on the Clinton Foundation) while trying to hide that fact. It’s that data originally sourced from the government was used in doing that research.

It’s actually the kind of argument that DOJ prosecutors typically succeed with. Except it’s all premised on proving that Sussman was trying to hide all this in his meeting with Baker. Even if the evidence surrounding the meeting weren’t so flimsy, this is another degree of motive that Durham is straining mightily to make.

Durham needs Sussmann to have lied, because a deliberate attempt to obscure the rest is necessary for his “storyline.” His evidence that Sussmann lied — much less, deliberately — is shoddy. But if he can’t get that, then his hopes for a larger “narrative” collapse.

The parts of the story Durham doesn’t tell

That becomes more clear when you consider some details that Durham doesn’t include in his indictment.

Two details that were public to everyone involved make it clear why Durham’s silence about the exact dates in July when this operation started is so corrupt.

On July 22, WikiLeaks published emails that were at the time believed and since have been confirmed by the FBI to have been hacked by Russia. Durham hides the dates in July when many of these events transpired, but everything he includes suggests this activity post-dated the time when WikiLeaks published stolen emails and the entire security community in the US, surely including every researcher mentioned in this story, coalesced on the belief that Russia was the culprit. Durham refers to Russia’s attack on Hillary (and therefore on the US) inaccurately as, “the hacking of its email servers by the Russian government” and “a hack” (the hack went well beyond just email and continued through the period of Sussmann’s meeting with Baker). But, amazingly, Durham’s “narrative” doesn’t account for the fact that Hillary was targeted not just with an attack but with an information operation. And the timeline he presents here affirmatively hides that these events took place after the entire security community understood that there was an information operation aspect to the attack.

Then, on July 27, Trump gave a press conference in Florida where he said numerous things that make all the actions of Sussmann and others justifiable on national security grounds. First, Trump raised doubts about the Russian attribution of the DNC hack that, by that point in July, was the consensus among national security experts, undoubtedly including every tech expert mentioned in this indictment.

I watched this guy Mook and he talked about we think it was Russia that hacked. Now, first of all was what was said on those that’s so bad but he said I watched it. I think he was live. But he said we think it was Russia that hacked.

And then he said — and this is in person sitting and watching television as I’ve been doing — and then he said could be Trump, yeah, yeah. Trump, Trump, oh yeah, Trump. He reminded me of John Lovitz for “Saturday Night Live” in the liar (ph) where he’d go yes, yes, I went to Harvard, Harvard, yes, yes. This is the guy, you have to see it. Yes, it could be Trump, yes, yes. So it is so farfetched. It’s so ridiculous. Honestly I wish I had that power. I’d love to have that power but Russia has no respect for our country.

And that’s why — if it is Russia, nobody even knows this, it’s probably China, or it could be somebody sitting in his bed. But it shows how weak we are, it shows how disrespected we are. Total — assuming it’s Russia or China or one of the major countries and competitors, it’s a total sign of disrespect for our country. Putin and the leaders throughout the world have no respect for our country anymore and they certainly have no respect for our leader. So I know nothing about it.

Trump then offered his bullshit explanation for why he wouldn’t release his tax returns, framing it in terms of whether he had business ties to Russia.

TRUMP: Because it’s under order. And I’ll release them when the audits completed. Nobody would release when it’s under — I’ve had audits for 15 or 16 years. Every year I have a routine audit. I’m under audit, when the audits complete I’ll release them. But zero, I mean I will tell you right now, zero, I have nothing to do with Russia, yes?

Trump then said the nation-state hack of his opponent wasn’t the important thing, the content of the emails that were released was, thereby encouraging the press to participate in the information operation aspect of this attack.

He already did something today where he said don’t blame them, essentially, for your incompetence. Let me tell you, it’s not even about Russia or China or whoever it is that’s doing the hacking. It was about the things that were said in those e-mails. They were terrible things, talking about Jewish, talking about race, talking about atheist, trying to pin labels on people — what was said was a disgrace, and it was Debbie Wasserman Schultz, and believe me, as sure as you’re sitting there, Hillary Clinton knew about it. She knew everything.

Trump then asked Russia to further hack his opponent.

Russia, if you’re listening, I hope you’re able to find the 30,000 e-mails that are missing.

Trump then doubled down on the comment he made about his taxes, assuring the press that he had “zero” business ties with Russia.

TRUMP: No, I have nothing to do with Russia, John (ph). How many times do I have say that? Are you a smart man? I have nothing to with Russia, I have nothing to do with Russia.

And even — for anything. What do I have to do with Russia? You know the closest I came to Russia, I bought a house a number of years ago in Palm Beach, Florida.

Palm Beach is a very expensive place. There was a man who went bankrupt and I bought the house for $40 million and I sold it to a Russian for $100 million including brokerage commissions. So I sold it. So I bought it for 40, I told it for 100 to a Russian. That was a number of years ago. I guess probably I sell condos to Russians, OK?

QUESTION: (OFF-MIKE)

TRUMP: Of course I can. I told you, other than normal stuff — I buy a house if I sold it to a Russian. I have nothing to do with Russia. I said that Putin has much better leadership qualities than Obama, but who doesn’t know that?

QUESTION: (OFF-MIKE)

TRUMP: Of course not. I own the Trump organization. Zero, zero. Go ahead.

Trump then reiterated his claim that no one could attribute the DNC hack to Russia.

TRUMP: No, but they seem to be, if it’s Russians. I have no idea. It’s probably not Russia. Nobody knows if it’s Russia. You know the sad thing is? That with the technology and the genius we have in this country, not in government unfortunately, but with the genius we have in government, we don’t even know who took the Democratic National Committee e-mails. We don’t even know who it is.

I heard this morning, one report said they don’t think it’s Russia, they think it might be China. Another report said it might be just a hacker, some guy with a 200 I.Q. that can’t get up in the morning, OK? Nobody knows. Honestly they have no idea if it’s Russia. Might be Russia. But if it’s any foreign country, it shows how little respect they have for the United States. Yes, ma’am.

Finally, Trump also stated that he would consider lifting sanctions on Russia.

QUESTION: I would like to know if you became president, would you recognize (inaudible) Crimea as Russian territory? And also if the U.S. would lift sanctions that are (inaudible)?

TRUMP: We’ll be looking at that. Yeah, we’ll be looking.

Each of these comments, individually, would have raised eyebrows. The same comments, made by an American citizen, would equally have raised alarms among those committed to cybersecurity.

But for a presidential candidate to encourage the hostile nation-state information operation targeting his opponent, then ask the hostile nation-state to further target her, in conjunction with the repeated denials of any business ties to Russia raised real, legitimate questions about whether Trump was putting his own interests above the national security of the country.

You might excuse Durham for excluding this from his indictment because after all he was busy indicting a ham sandwich based on hearsay evidence he might be able to exclude these facts at trial. Except that an August 20 comment from TE-1 that Durham quotes in his indictment may be a direct reference to (and at the least incorporates knowledge of) this press conference.

Trump has claimed he and his company have had NO dealings with .ru other than the failed Casino, and the Miss universe pageant. He claims absolutely NO interaction with any financial institutions. So any potential like that would be jackpot.

That is, Durham included what appears to be a reference to the July 27 press conference. It appears (though Durham obscures this point) that all the actions laid out in this indictment post-date the press conference. Virtually everyone in the US committed to ensuring America’s national security was alarmed by Trump’s comments in this press conference. Yet Durham doesn’t acknowledge that all these actions took place in the wake of public comments that made it reasonable for those committed to cybersecurity to treat Donald Trump as a national security threat, irrespective of partisan affiliation.

Durham will work hard to exclude detail of Trump’s press conference from trial. But I assume that if any of the named subjects of this investigation were to take the stand at trial, they would point out that it was objectively reasonable after July 27 to have national security concerns based on Trump’s encouragement of Russia’s attack on Hillary Clinton and his defensive denials of any business ties. Any of the named subjects of the indictment would be able to make a strong case that there was reason to want to, as a matter of national security, test Trump’s claim to have no financial ties to Russia. Indeed, the bipartisan SSCI Report concluded that Trump posed multiple counterintelligence concerns, and therefore has concluded that Durham’s portrayal of politics as the only potential motive here to be false.

Central to Durham’s theory of prosecution is that there was no sound national security basis to respond to anomalous forensic data suggesting a possible financial tie between Trump and Russia. Except that, after that July 27 speech — and all of these events appear to post-date it — that theory is unsustainable.

The parts of the story Durham doesn’t tell

And not only was it objectively reasonable to test whether Trump’s claims to have “zero” business ties to Russia were false, but those suspecting that Trump was hiding such ties were, in fact, correct.

According to Michael Cohen, when Trump walked off the stage from that July 27 press conference, Cohen asked Trump why he had claimed that he had zero business ties with Russia when he had in fact been pursuing an impossibly lucrative deal to brand a Trump Tower in Moscow. And we now know that within hours of Trump’s request, GRU hackers made a renewed assault on Hillary’s own servers. By the time security researchers pursued anomalous data suggesting covert communications with a Russian bank, Cohen had already participated in discussions about working with two sanctioned Russian banks to fund the Trump Tower deal, had agreed to work with a former GRU officer to broker it, had spoken to an aide of Dmitry Peskov, and had been told that Putin was personally involved in making the deal happen. Just on the Trump Tower basis alone, Trump had publicly lied in such a way that posed a counterintelligence risk to America.

But that was not the only thing that Trump had done by the date when a bunch of security researchers responded to anomalous forensic data to test whether Trump was hiding further ties to Russia’s attack on Hillary Clinton.

In March, Trump hired Paul Manafort, a financially desperate political operative with close ties to a Russian intelligence officer, Konstantin Kilimnik, who (SSCI provided three redacted examples of) may have been involved in the hack-and-leak operation. In April, Manafort started leveraging his relationship with Trump to try to make money. In May, Manafort started regularly sending Kilimnik the campaign’s internal polling data. All that happened before researchers started testing Trump’s claims to have had no tie to Russia. On July 28, Kilimnik emailed Manafort to set up a meeting to talk about the future of Ukraine. Just days after the researchers started the inquiry, on August 2, Manafort met with Kilimnik to discuss carving up Ukraine in the same meeting where he described his strategy to win the election.

In April, an academic with close ties to Russia, Joseph Mifsud, told an unqualified braggart whom Trump had added to his team to pretend he had a foreign policy plan, George Papadopoulos, that Russia had thousands of Hillary’s emails that they intended to release to help Trump.

In May, according to Rick Gates’ testimony, Roger Stone started claiming he had advance knowledge of what would become the WikiLeaks releases. On or about June 15, per Gates, Stone told him that “he had contact with Guccifer 2.” According to a warrant affidavit targeting Stone, he searched Google on “Guccifer” before the Guccifer website went up that day. On June 23, Manafort called Stone and then the two old friends met for 30 minutes in the Trump cafeteria. On June 30, Stone spoke to Trump. According to multiple sources (including Michael Cohen), Stone knew of the DNC drop before it happened.

In June, Don Jr accepted a meeting with Natalia Veselnitskaya at which he believed he would get dirt on Hillary Clinton. At the meeting, Veselnitskaya asked Don Jr to end sanctions on Russia, and the candidate’s son said his dad would reconsider it if he won.

In short, the researchers who, in the wake of Trump’s damning comments, were testing whether Trump had lied about having ties to Russia, not only had objectively reasonable reasons to do that research. But their suspicions were proven correct, over and over again.

Durham describes the outcome of the FBI investigation into the allegations this way:

The FBI’s investigation of these allegations nevertheless concluded that there was insufficient evidence to support the allegations of a secret communications channel with Russian Bank-1. In particular, and among other things, the FBI’s investigation revealed that the email server at issue was not owned or operated by the Trump Organization but, rather, had been administered by a mass marketing email company that sent advertisements for Trump hotels and hundreds of other clients.

Nothing here suggests the FBI disproved that this was an anomaly.

And there’s one more detail that Durham didn’t include in the Sussmann indictment: on July 26, Australia first shared their report about what George Papadopoulos told Alexander Downer in May. The next day, July 27, the FBI Legat in the UK got the tip. On July 31 — before the substantive research into the Alfa Bank allegation began — the FBI opened an UNSUB investigation into who got advance warning about the Russian operation and shared it with George Papadopoulos. In other words, by hiding the dates when Tea Leaves first discovered the anomalous data, Durham is hiding not just the damning things that publicly happened before the Alfa Bank operation got started, but probably details about the tip that turned into the Crossfire Hurricane investigation.

In the wake of the Sussmann indictment, the usual Russian denialists have claimed that this proves that what they call “Russiagate” was all a fraud.

Such claims defy the rules of physics, suggesting that events that happened after the FBI opened an investigation to learn how and why the Trump campaign (via three channels, as it turns out) learned of the Russian attack in advance were in fact the cause of it.

It is likely that Durham will be able to exclude all these details from a Michael Sussmann trial, at least if it remains just a false statements case. He will be able to convince Judge Christopher Cooper, who is presiding over the case, that this information — that the researchers not only had reason to believe Trump presented a cybersecurity risk to the country, but that the researchers turned out to be right, and that FBI had itself determined there was reason to carry out the same kinds of investigations that the researchers did, possibly before any one of them took a single step — is irrelevant to the case against Sussmann. But if Durham charges ConFraudUS based on a claim that it was illegitimate to look into why Donald Trump was inviting Russia to hack his opponent, it will become centrally important that, before these researchers started conducting their investigation, the FBI had likewise decided such an investigation had merit.

The Alfa Bank story was sleazy and unethical. But it was still, nevertheless, an instance where someone representing the victim of a nation-state attack attempted to chase down information that may have pertained to that nation-state attack.

John Durham will go down in history as the guy who decided that torturing detainees, even in excess of legal guidance, was not a crime, but a victim sharing concerns about nation-state hacking is.

Update: It’s likely that Richard Burt was one of the people investigated as part of this effort. Per the Mueller Report, he was the person Petr Aven asked to establish a tie with Trump’s transition in 2016.

After the December 2016 all-hands meeting, A ven tried to establish a connection to the Trump team. A ven instructed Richard Burt to make contact with the incoming Trump Administration. Burt was on the board of directors for LetterOne (L 1 ), another company headed by Aven, and had done work for Alfa-Bank. 1169 Burt had previously served as U.S. ambassador to Germany and Assistant Secretary of State for European and Canadian Affairs, and one of his primary roles with Alfa-Bank and Ll was to facilitate introductions to business contacts in the United States and other Western countries. 1170

While at a L1 board meeting held in Luxembourg in late December 2016, Aven pulled Burt aside and told him that he had spoken to someone high in the Russian government who expressed interest in establishing a communications channel between the Kremlin and the Trump Transition Team. 1171 Aven asked for Burt’s help in contacting members of the Transition Team. 1172 Although Burt had been responsible for helping Aven build connections in the past, Burt viewed Aven’s request as unusual and outside the normal realm of his dealings with Aven. 1173

Burt, who is a member of the board of CNI (discussed at Volume I, Section IV.A.4, supra), 1174 decided to approach CNI president Dimitri Simes for help facilitating A ven’ s request, recalling that Simes had some relationship with Kushner. 1175 At the time, Simes was lobbying the Trump Transition Team, on Burt’s behalf, to appoint Burt U.S. ambassador to Russia.1176

Burt contacted Simes by telephone and asked if he could arrange a meeting with Kushner to discuss setting up a high-level communications channel between Putin and the incoming Administration. 1177 Simes told the Office that he declined and stated to Burt that setting up such a channel was not a good idea in light of the media attention surrounding Russian influence in the U.S. presidential election. 1178 According to Simes, he understood that Burt was seeking a secret channel, and Simes did not want CNI to be seen as an intermediary between the Russian government and the incoming Administration. 1179 Based on what Simes had read in the media, he stated that he already had concerns that Trump’s business connections could be exploited by Russia, and Simes said that he did not want CNI to have any involvement or apparent involvement in facilitating any connection. 118

Update: Corrected scope of Benczkowski’s recusal. His should cover the server issue (and Alfa Bank issues for the first two years he was CRM).

Update: Brian Krebs wrote a post laying out all the people who still believe there’s something going on technically. I don’t think that’s inconsistent, at all, with this one. As noted, everyone who looked at this believes it’s an anomaly. What I keep pointing to is the aftermath of that anomaly got Alfa Bank to act in a certain way that is consistent with Putin’s interests. Krebs notes that it has also led to a lot of scrutiny of security researchers in the US, not unlike the way the aftermath of the Steele dossier discredited most top Russian experts in the US government.

Update: This transcript of Preet Bharara and Joyce Vance discussing the many weaknesses of the Durham indictment largely replicates what I’ve laid out here but is worth a review.

How Rick Gates Used Maggie Haberman and Ken Vogel

Last week, DOJ released a reprocessed set of most of Rick Gates’ 302s in Jason Leopold’s FOIA for Mueller materials. I used that as an opportunity to pull together all of his 302s to capture the content and pull out the materials withheld under b7A exemptions (b7A exemptions reflect ongoing investigations — though many of these are clearly just counterintelligence investigations into Ukraine’s attempts to influence US politics). I did the same thing for Steve Bannon, Mike Flynn, and Sam Patten’s files.

Reading all the 302s like this shows this, at times, Gates went wobbly on Mueller’s team. And it provides yet more evidence that a NYT article — bylined by two reporters that came up in Gates’ interviews, Maggie Haberman and Ken Vogel — was a (wildly successful) attempt to misrepresent how damning were Gates’ admissions about Paul Manafort’s efforts to provide ongoing campaign updates to Russian intelligence officer Konstantin Kilimnik.

Nevertheless, the NYT has never issued a correction.

It’s not news that Gates went wobbly on his cooperation. Andrew Weissmann described the beginning process of this in his book, Where the Law Ends. But the 302s suggest it was not a one-time event.

As Weissmann told it in his book published before all the 302s came out, in one of his first proffers, Gates told prosecutors that he himself was skimming money from Manafort.

Gates said he understood and, from there, we began in earnest, alternating between Gates admitting his guilt for the crimes he and Manafort had committed and our teasing out information he had about others. This can be an awkward dance, but Gates seemed to be forthcoming. For example, after walking us through how, precisely, he’d helped Manafort launder money from his offshore accounts, Gates explained that he’d also personally stolen money from Ukraine by inflating the invoices he submitted for their political consulting work then pocketing that excess cash. Gates had never told Manafort about this skimming, he said, or reported that extra income on his taxes. We hadn’t known about this—it was new information, and encouraging, since it signaled that Gates understood that he could not hide or minimize his own criminality anymore.

That may have happened in his first interview, on January 29, 2018, when he described diverting income from his DMP work to an account in London.

Having gotten Gates to admit cheating Manafort, Weissmann then turned to what he called a “Jackpot” moment, when Gates described two things: that, at the August 2 meeting in the Havana Room, Manafort had told Kilimnik how he planned to win the campaign (a question Weissmann’s team was obsessed with understanding), and also that Manafort had ordered Gates to send Konstantin Kilimnik polling data throughout the campaign (of which Mueller’s team did not have prior knowledge).

“I learned of that meeting on the same day that it happened,” Gates explained. “Paul asked if I could join him and ‘KK,’ ” as Gates called Kilimnik. “The meeting was supposed to be over dinner, but I got there late.”

I did not look over at Omer, but I knew he was thinking what I was, that it was good that Gates was being forthright so far and confirming what we knew.

“Do you know how long they had already been there?” I asked.

“I don’t, but I think I was fairly late getting there. They were well into the meal.”

“What do you recall being discussed?” Omer asked. “A few things,” Gates explained. One subject was money—certain oligarchs in Ukraine still owed Manafort a considerable amount. Another was a legal dispute between Manafort and the Russian oligarch Oleg Deripaska. We asked Gates if there was any new or unusual information raised about these issues, but he said no—those problems had been percolating for a while. This was not, it seemed, enough of a reason for Kilimnik to come to New York from Moscow.

“What else do you recall being discussed?” Omer asked.

“There was discussion about the campaign,” Gates said. “Paul told KK about his strategy to go after white working-class Democrats in general, and he discussed four battleground states and polling.”

“Did he name any states?” I asked.

“Michigan, Wisconsin, Pennsylvania, and Minnesota,” Gates said.

“Did he specifically mention those states, and did he describe them as battleground states, or is that your description?” I asked.

“No,” Gates said. “Paul described them that way. And, yes, I remember those four states coming up.”

“And he described polling?” Omer asked.

“Yes, but I had been sending our internal polling data to KK all along,” Gates explained. “So this was a follow-up on that, as opposed to something out of the blue.”

“I’m sorry,” I said, “but why were you sending polling data to Kilimnik?”

“Paul told me to send him the data, periodically. So I did. I’d send it using WhatsApp or some other encrypted platform. I assume it was to help Paul financially. I just did what Paul told me to do.”

“KK didn’t have any position on the campaign, right?” I asked.

The 302 from that same first interview shows Gates raised Manafort’s election year meetings with Kilimnik, though he got some details wrong, as I’ll return to. Gates addressed the Havana Bar meeting in his second interview, too, though he continued to tell an implausible story.

In his third interview, Gates attempted to lie about whether he had deleted documents; after a long discussion (still redacted because of an ongoing investigation), Gates admitted “maybe” he had deleted documents after learning of Mueller’s investigation.

In the fourth interview (at which Gates referenced false claims floated in the press to suggest the Mueller investigation had dodgy beginnings), Gates attempted to hide that he had lied to Mercury Public Affairs and Podesta Group about who their Ukrainian client really was, only to admit that “overtime” he realized what he had told them was not truthful; ultimately he admitted that “we got cute” by registering (and getting Podesta Group to register) under the Lobbying Disclosure Act and not FARA. At least as recorded in the 302, that’s the interview where Gates first lied about a meeting Manafort had with Dana Rohrabacher. At the same interview, Gates’ lawyer, Tom Green (who is a friend of Mueller’s), made a statement attributing Gates’ failures to keep certain lobbying documents to DMP archiving policy; in his statement of offense, Manafort admitted he still had those documents when he submitted his lobbying filings.

Weissmann’s book describes catching Gates in the lie about Rohrabacher.

Not long after I reentered the room, our interview with Gates turned to the FARA charges. Gates explained, in a convoluted fashion, that he and Manafort had believed there was no need to register under FARA since they were not personally doing any of the lobbying themselves. Manafort understood now that the law required him to file, Gates said, but he hadn’t understood that at the time.

Nothing about this argument was credible. Manafort was not only a longtime lobbyist but an attorney himself; he had extensive experience navigating the FARA rules and had gotten entangled with the FARA Unit before. (In the eighties, Manafort had a presidential appointment in the Reagan administration, which normally would have prohibited him from also working as a lobbyist, but he’d requested a waiver from that facet of the FARA rules. Interestingly, when his request was denied by a responsible White House attorney, Manafort resigned from his public office in order to continue the more profitable private lobbying work.) We had even uncovered an email from Gates to Manafort that clearly set out the FARA regulations. It was inconceivable that they’d misunderstood the law. Even the factual premise of their purported misunderstanding was untrue: Manafort had personally acted as a lobbyist. We had emails showing that Gates had arranged a meeting for Manafort with the pro-Russia California congressman Dana Rohrabacher in March 2013, shortly after Rohrabacher became chair of the subcommittee that oversaw Ukraine issues.

It was clear that Gates was not being straight with us—not uncommon, initially, with people who try to cooperate; they tell the truth with various degrees of success at first. When we confronted Gates with the emails about the Rohrabacher meeting, Gates simply doubled down, floating an even more absurd claim. He acknowledged that, yes, Manafort and Rohrabacher had met in Washington in 2013, but Gates claimed that he remembered Manafort telling him at the time that the subject of Ukraine had never come up—and therefore, there’d been no reason for Manafort to register under FARA for this activity: It wasn’t actually lobbying.

This wasn’t true, either, and we had evidence to prove it. Gates and Manafort had prepared a memo after the Rohrabacher meeting for President Yanukovych of Ukraine, summarizing the discussion. That memo was one of the many damning documents we’d discovered from Manafort’s condo search. We showed it to Gates: Was everything written here a lie? we asked. He had no response.

Gates’s story was crumbling before our eyes. It was infuriating because it was so counterproductive for everyone, and, on a personal level, displayed a certain contempt for us, and a low opinion of our ability to discern the truth. The good faith we needed, on both sides, was evaporating.

I asked Tom Green, Gates’s counsel, to speak in private, and then decided with him that we should break for the day. I asked Tom to get to the bottom of whatever was happening. All along, Gates had seemed to have trouble when it came to discussing Manafort and his crimes. He was clearly straining to shed his allegiance to his old boss. Still, Gates was discussing his own crimes, and it wasn’t clear why he’d chosen to start lying, so stubbornly, now, about this particular point; the FARA charges weren’t even among the most serious ones we brought.

If there was some explanation, Tom would need to figure it out quickly. The lies we’d just been told were deflating for us, given how hopeful we’d been about Gates’s usefulness as a witness.

Right now, we told Tom, there was no way we could sign Gates up.

Ultimately, Gates would plead guilty to this lie about Rohrabacher as a separate false statement.

The next day, according to Weissmann’s book, Green had seemingly gotten Gates back on track.

Tom came back to our office the next day. “Look,” he said, “my client messed up.”

Gates was scared, he explained. This entire process was wrenching for him. Gates felt pulled between his desire to cooperate and his allegiance to Manafort, and his client had just momentarily broken down. He’d fed us the various cover stories yesterday to avoid implicating Paul on the FARA charges.

In his book, Weissmann doesn’t reflect on the other lies that Gates must have told before his team caught Gates in a lie they could prove was one. But Gates’ earlier testimony does conflict with what he would say later.

And even having recommitted to cooperating, it seems Gates was still shading the truth in those February sessions, at least until he actually pled guilty.

The released 302s show that on February 2, Gates admitted that they should have registered under FARA for the meeting with Rohrabacher. In the same interview, there are five pages discussing a redacted subject that remain exempted under a b7A (ongoing investigation) exemption. Even in that interview, even after admitting he was still on the DMP payroll in the months while everyone was trying to place Manafort on the Trump campaign, Gates offered implausible answers about why Manafort would ask him to provide updates to Oleg Deripaska in the guise of confirming a lawsuit that had been dismissed had been dismissed. Additionally, Gates explained away a briefing for Trump about Manafort’s ties to Ukraine as Manafort’s effort to have Gates prepared to answer press questions about the topic.

Importantly, given later admissions about Gates’ efforts to work the press, when asked about the emails with Kilimnik discussing campaign briefings that had been reported in the press the previous year, Gates claimed he hadn’t spoken to Manafort about those reports. Then, having claimed he and Manafort hadn’t concocted a cover story about them, he claimed that they were references to Deripaska’s lawsuit.

Gates was shown an email thread between Kilimnik and Manafort dated July 7, 2016 through July 29, 2016.

Gates stated he saw some of these email[s] in the news. Gates did not talk to Manafort about the emails when they were leaked to the press. In July 2016, the topic of conversation with Manafort was the Deripaska lawsuit.

But then shortly after, in the very same interview, Gates described talking to Manafort about the emails.

When this email came out in the news, Manafort told Gates, Brad Parscale and [redacted] that the article was “B.S.”

That is, Gates claimed not to have spoken to Manafort about the news, but then described doing just that, and based on that inconsistent claim, asserted that the emails about providing campaign briefings to Deripaska pertained to the lawsuit with the Russian oligarch.

In this interview where Gates was clearly trying to shade the truth, he nevertheless still admitted sending “confidential polling data derived from internal polls” to Kilimnik.

On February 7, Gates had his first interview with another Mueller team, the Russian team led by Jeannie Rhee. The interview largely focused on the role of Dmitri Simes had in Trump’s first foreign policy speech, and touched briefly on the various views people had about sanctions on Russia.

Even though the Mueller team would eventually obtain evidence that Roger Stone tried to influence this process through Gates, Gates never mentioned how he personally released news of the speech through Maggie Haberman as a way to inform Stone about it, effectively using Maggie as a vehicle to communicate with someone, Stone, whom Manafort treated as part of his team while hiding those direct ties.

On April 22, 2016, Maggie Haberman broke the news that Donald Trump would give a foreign policy speech. As she reported, the speech was scheduled to be held at the National Press Club and would be hosted by the Center for National Interest, a group that once had ties to the Richard Nixon Library.

Donald J. Trump will deliver his first foreign policy address at the National Press Club in Washington next week, his campaign said, at an event hosted by an organization founded by President Richard M. Nixon.

The speech, planned for lunchtime on Wednesday, will be Mr. Trump’s first major policy address since a national security speech last fall.

The speech will be hosted by the Center for the National Interest, formerly known as the Nixon Center, and the magazine it publishes, The National Interest, according to a news release provided by the Trump campaign.

The group, which left the Richard Nixon Presidential Library and Museum in 2011 to become a nonprofit, says on its website that it was founded by the former president to be a voice to promote “strategic realism in U.S. foreign policy.” Its associates include Henry A. Kissinger, the secretary of state under Nixon, as well as Senator Jeff Sessions, Republican of Alabama and a senior adviser to Mr. Trump. Roger Stone, a sometime adviser of Mr. Trump, is a former Nixon aide.

That night, according to texts released during his trial, Roger Stone wrote Rick Gates, furious that he had not been consulted about the details of the speech first — though Gates explained that he leaked it to Haberman so Stone would find out. “I cannot learn about a foreign policy speech from the media,” Trump’s rat-fucker said. “This is personally embarrassing. I’m out,” said the advisor who had supposedly quit the campaign almost a year earlier.

Among the things Stone bitched about learning from a leak to Maggie Haberman made partly for his benefit was about the venue. “No detail on venue and no input on content.”

In that same interview where Gates did not disclose Stone’s demand that he get a say on Trump’s foreign policy speeches, he nevertheless reiterated his admission that, “Gates sent Kilimnik both publicly available information and internal information from Fabrizio’s polls.” Gates also provided a description of Cambridge Analytica in the poll mix, though his descriptions of the campaign’s reliance on CA would remain inconsistent through the entirety of his cooperation with Mueller’s team.

Over the next two meetings, things seemed to get closer to finalizing the plea. In an interview on February 9, Gates further elaborated on why he had lied about the meeting with Rohrabacher. Prosecutors also got him on the record on an instance where he gave family members advance information about the acquisition of ID Watchdog, a company he had a stake in, by Equifax. Then in the following interview, Mueller’s team went through one after another crime he may have committed — insider trading (with IDW), bank fraud, bribery, “lack of candor under oath,” including during his 2014 FBI interview and the Skadden Report, campaign fraud, obstruction of justice, all of which would need to be on the record before he pled guilty.

After doing that, prosecutors got Gates on the record about key Mueller-related topics about which they wanted his cooperation, including Stone and Thomas Barrack. In their review of Gates’ description of the August 2 meeting, he confirmed that Deripaska was discussed (though claimed he only knew polling data was shared with the Ukrainian paymasters), and provided a really sketchy explanation of what this was all about:

Gates was asked why Kilimnik referred to Manafort’s “clever plan to defeat” Hillary Clinton in an email. Gates believed this referred to Manafort’s strategy to attack Clinton’s credibility. Gates was asked what was “clever” about this. Gates agreed that it was not clever and he did not know why Kilimnik characterized it as clever.

Gates did not trust Kilimnik. Gates did not know why Manafort was sharing internal polling data with Kilimnik. Gates said Kilimnik could have given the information to anyone.

That’s when the plea deal should have been finalized. But as Weissmann described in his book, it wasn’t.

Gates’ prior attorney (who was also representing someone else against whom Gates would testify), in the guise of demanding past payment, caused a sealed conference to be held before Amy Berman Jackson which alerted the press that he might be cooperating, which in turn generated a great deal of pressure on Gates not to flip (including the involvement of Sean Hannity). From Weissmann again:

But before we received the final versions back, with signatures, the process was disrupted yet again. Gates’s second defense counsel, Walter Mack, called our office unexpectedly and asked what the heck was going on: Was it true that his client was cooperating with the special counsel’s investigation?

It’s hard to convey the strangeness of Walter’s phone call: not only that he didn’t seem to know that Gates was seeking to cooperate, but that he was calling us for answers, instead of asking his own client, or his co-counsel Tom Green. We told Walter that he should direct those questions to Gates or Tom. It was not our place to be an intermediary between defendants and their various attorneys, or to mediate whatever spat Walter had just brought to our doorstep.

I’m still not sure what was going on behind the scenes. Later, Walter would claim a lack of payment from Gates—maybe that had something to do with it. But it was also hard to ignore that Walter happened to be simultaneously representing a man named Steven Brown in a separate case in New York. Brown had enlisted Gates in a fraudulent scheme and therefore could be harmed by information Gates might share if he cooperated.

Regardless, whatever dispute was playing out might have remained irrelevant to our case—except that Walter’s subsequent discussions with Tom apparently unraveled to the point that Walter filed a motion asking to be relieved as Gates’s counsel; this required all of us to appear briefly in court. The short proceeding had very little to do with our office and was under seal at the time, but our mere appearance at the courthouse roused interest from the reporters staking out the building. At the proceeding, the court told Tom to brief Walter on the cooperation progress. Shortly thereafter, someone leaked a story about Gates and his intention to cooperate to the Los Angeles Times.

This media attention was unsettling for Gates—as whoever leaked the story presumably knew it would be. It is hard enough to betray your former mentor, and walk away from your former life, by talking to government investigators. It is more daunting once you’ve seen your decision to cooperate spelled out in a national headline and are forced to discuss it with every friend and family member who calls to ask you if it’s true. Such press also sends out an alarm to those who’d seek to pull Gates back in line and away from the government.

As we feared, once the story ran, Gates got cold feet. Tom and I spoke nearly every day for the next two weeks. He explained that he was still working to convince his client to cooperate, and I expressed bafflement. I’d never seen anything like this before. Gates had passed the point of no return; because he’d already signed the proffer agreement and admitted his criminal liability to all of the charged crimes (and then some), he would be going to trial with effectively no defense if he backed out now. Tom assured me that Gates understood this—but he also said that Gates had lots of people loyal to the White House whispering in his ear.

So prosecutors drew up a second indictment against Manafort and Gates in Virginia. That, plus some advice from Charlie Black, may have been enough to get him back on board.

This time it seemed real. “He’s coming to my office to sign the papers right now,” Tom said.

I was relieved, but still skeptical. I told Tom I’d need to see him and Gates in our office again, to hear Gates explain what the hell had just happened. I also alerted him that we were, at that moment, pushing forward with our indictment in Virginia and, because the courthouse there didn’t allow phones or electronic devices, there was no way for me to call the prosecutors and stop it. Still, I assured Tom, this wouldn’t affect our deal: If Gates proved trustworthy, we’d move to dismiss this second set of charges in Virginia without prejudice and proceed in Washington as planned.

Gates came back into our office the next day. I leveled with him: “I’ve never had this experience before, and I need to understand what happened,” I said. “Why did you balk at the last minute? What’s going on?”

He seemed more vulnerable this time. He explained the intense pressure that Manafort and others were putting on him not to cooperate, how Manafort had told him that money could be raised to defray their legal expenses, and that the White House had their backs—code, Gates knew, to keep quiet and hold out for a pardon.

But, Gates went on, he’d also spoken to Charlie Black. Black had been in business with Manafort years ago, at the firm Black, Manafort, Stone and Kelly, then gone on to become a dean of Republican Party strategists and enjoyed a sterling reputation. (In a masterstroke, it turned out, at a moment when Tom was almost out of ideas, he had recruited Black to reach out to Gates and offer advice.) Black told Gates that, were he in a similar predicament, he would cooperate. Gates wasn’t an old man like Black and Manafort, Black explained; he needed to think about himself and his young family. And moreover, Black insisted, Gates would be foolish to count on a pardon. Trump was too self-absorbed to be dependable.

“I took this all in,” Gates said, “and I decided to follow Black’s advice.” Black’s encouragement seemed to have finally empowered Gates to turn on his old boss. “I know there’s a possibility that Paul will get a pardon in the end, and I’ll have to watch him walk free. But I decided I just have to deal with what I’ve done, and own what I have done.” He’d broken the law, he said. He needed to deal with the consequences now and do right by his family.

The first interviews after Gates pled guilty focused on this process, eliciting descriptions of all the people Gates had spoken to in prior days, including the Black conversation, three conversations where Manfort tried to find money to pay Gates’ legal bills, and others. A pardon came up but no one told him he would be pardoned. Someone also tried to help Gates find what would have been his fourth defense team. Gates explained that he had been told the Nunes Memo and the IG Report on the Hillary investigation would change the climate for his defense.

But after that, things started to move forward. Investigators got a list of all the encrypted comms Gates had used and those he knew Manafort had used. Then they began to turn back to all the Manafort graft Gates would help prosecutors untangle.

On March 1 — the first time prosecutors would return to two key Russia-related issues after Gates pled guilty, the August 2 meeting and Roger Stone — Gates revealed that he had lied to Ken Vogel in 2016 (who was then with Politico) about the Havana Club meeting. Gates started by (improbably) claiming he had never before read the June 19, 2017 WaPo story in which Konstantin Kilimnik provided a cover story for the August 2 meeting. That led him to admit lying to Vogel because he believed they’d get away without disclosing the meeting.

Gates stated that he hadn’t previously read the 6/19/2017 Washington Post article, which contained a statement from Konstantin Kilimnik regarding a meeting held in New York on 8/2/2016. Gates stated that following the 8/2/2016 meeting (which was held at New York’s Havana Club), Gates spoke to Paul Manafort regarding a subsequent Politico story about it. The author of the Politico article, Kenneth Vogel, had emailed a list of questions to Manafort. Manafort forwarded these questions to Gates, who answered “no” to all the questions. Gates admitted that he lied to Vogel with these responses. He had been assured no one would find out about this meeting. Gates stated that Jared Kushner became angry following the Politico article, unsure as to why Manafort would have such a meeting.

Then Gates admitted that Manafort did ask him whether anyone called him about the meeting — something still redacted for ongoing investigation. Effectively, Gates admitted that he understood that Manafort expected him to lie about the meeting.

Remember, during precisely this period in 2016, Oleg Deripaska was playing a double game, making Manafort more vulnerable even while getting him to share campaign campaign information. Perhaps not unrelatedly, much of the next month of Rick Gates interviews in 2018 focused on the Pericles lawsuit that Deripaska used as leverage against Manafort to put him in that more vulnerable position.

A March 21 interview covering things like Roger Stone and Cambridge Analytica remains significantly redacted (including one b7A redaction covering the latter topic added since this 302 was last released).

Something sort of interesting happened in April 2018. On two consecutive days, Gates told a slightly different story about Roger Stone. On April 10, Rhee and Aaron Zelinsky joined Manafort prosecutors Weissmann and Andres. At the beginning of the interview, Gates warned that someone was not happy he was cooperating. In the April 10 interview, Gates provided details about Stone’s ongoing relationship with Manafort that don’t appear, in unredacted form, elsewhere, as well as details of calls and meetings from June (these communications were a focus at Stone’s trial). Gates revealed that the day before Stone’s “Podesta time in the barrel” comment on August 21, 2016, Manafort told Gates Stone had told him the emails would come out (this is consistent with at least one of Manafort’s interviews). One subtext of this interview is that the means by which Lewandowski got fired in June was related to Stone’s bid to get Hillary’s emails.

In the April 10 interview, Gates described a June 15, 2016 phone call he had with Manafort and Stone where Stone said “he had been in contact with Guccifer 2.” The FBI spent much of 2018 trying to track down forensic proof that this had indeed happen.

In the same interview, Gates asserted that Manafort,

always intended to use Stone as an outside source of information. Manafort relied on Stone to do operative work and dig up opposition material. Manafort had conveyed to Gates that Stone was in the hunt for Clinton’s emails prior to the Crowdstrike report dated 06/14/2016 announcement. Stone told Gates and Manafort something major was going to happen and that a leak of information was coming.

All told this may be Gates’ most revelatory interview about Stone.

But an April 11 interview, which covers the same issues (and at which Rhee was not present), seems to back off the claim that Manafort was pushing Stone to go get the emails. “[N]o one told Stone to go get” the emails Assange had. In a separate interview that same day (without the Stone team), Weissmann and Andres asked Gates about contacts he had had, though that seems to refer to contacts during 2017. On April 17, an interview seemed to focus on something Manafort had done.

Prosecutors kept asking about his contacts during the investigation (as they did with Mike Flynn during the same period). On May 3, Gates described with whom he had contact since his last interview (on April 19). That included two conversations with Maggie Haberman. Later in May, Gates was interviewed about his and Manafort’s response to an July 2016 AP report on Manfort’s Ukraine graft. In July, Gates revealed that, prior to pleading guilty, Manafort had warned Gates against his attorney Tom Green. In different July interview, Gates also described being in contact with people about a NYT report on him.

Gates’ plea deal required he get prior approval before he revealed any information derived from his cooperation to a third party. But he appears to have remained in touch with the NYT anyway.

In August, investigators grilled Gates about a topic that they hadn’t known about but which he had admitted on the stand while testifying in Paul Manafort’s trial: That he may have submitted a false expense report to the Inauguration Committee, replicating a theft that he had earlier used against Manafort. That discussion remains redacted under b7A redactions. It was not addressed in the government sentencing memo for Gates. It’s one potential crime Gates admitted only after entering into the plea agreement.

During fall interviews, Gates addressed additional investigative interest (such as the spin-off prosecutions arising from Manafort’s graft). He provided an interview on Stone on October 25 (the day before Steve Bannon would be interviewed and one of his last interviews before the election) that generally accorded with past testimony. And he did a few interviews pertaining to Kilimnik (parallel to the time when Manafort was being questioned about the same topic), including one where he reiterated that,

GATES understood that the polling data he was sending to KILIMNIK would be given to LYOVOCHKIN and DERIPASKA. GATES believed MANAFORT would have sent the polling data to LYOVOCHKIN as part of his efforts to get money out of Ukraine. GATES believed MANAFORT would have sent the polling data to DERIPASKA [redacted]. GATES opined that MANAFORT believed that Trump’s strength in the polls would be advantageous to him.

GATES provided KILIMNIK a mix of public polls and the campaign’s Fabrizio polling data based on what MANAFORT thought looked good. The Fabrizio polls were more reliable because they used cell phone polling data.

GATES provided certainly weekly data automatically to KILIMNIK. MANAFORT and GATES would send additional polling data on an ad hoc basis. On multiple occasions, GATES and MANAFORT would receive a poll and MANAFORT would tell GATES to send it to KILIMNIK based on the poll’s content.

That is, while there were conflicting details, after the time Gates started cooperating, his story about sharing polls repeatedly (though not always) acknowledged that Deripaska was receiving the polls. He consistently said the polls included non-public data (though his excuses for doing so varied from interview to interview and never offered a plausible explanation). And while he shifted the timeline earlier during the first interviews where he was telling other lies, after that point Gates never disputed that Manafort provided a more detailed explanation of his campaign strategy to Kilimnik, and he admitted his data sharing continued at least through the time Manafort left the campaign on August 19.

Gates’ description of what happened after that had some variances, as did his description of what polls were included in the sharing — but they always included Fabrizio’s polls, which, based on past work, they were the ones with which Kilimnik would be most familiar.

On November 7, the day Jeff Sessions would be fired, making way for Billy Barr to be nominated and confirmed, Gates did two interviews without his attorney, Tom Green, present.

There was, among the released interviews (there are about 60 that have been released, plus some other identified 302s that haven’t been), just one more in 2018.

Then, in advance of a February 15, 2019 interview, Gates’ attorney reached out to correct a claim that prosecutors had made as part of Manafort’s breach hearing. The important correction was that “GATES did not recall bringing [a document he had printed out earlier that day for a planning meeting] to the [Havana Bar] meeting. Gates affirmed, however, that,

At the 08/02/2016 meeting with GATES, MANAFORT, and KILIMNIK there was a much more detailed discussion of internal polling data compared to the data GATES sent to KILIMNIK via WHATSAPP. At the dinner meeting, GATES, MANAFORT, and KILIMNIK discussed internal polling from FABRIZIO which included battleground states.

[snip]

GATES recalled MANAFORT discussed internal polling from other sources including CAMBRIDGE ANALYTICA. The information provided in this meeting by MANAFORT to KILIMNIK was based on internal information and polls; it was a synthesis that included internal polling data.

In addition to the major correction regarding the document he printed out, however, Gates altered his testimony from many (though not all) of his previous interviews in one key way. At an interview the day after Billy Barr was confirmed as Attorney General and as Mueller’s team were already drafting their report, Gates reported that,

DERIPASKA was also in the mix. GATES recalled, however, that the letter to DERIPASKA was related to MANAFORT’s and DERIPASKA’s legal dispute. GATES does not specifically know if MANAFORT sent internal polling data to DERIPASKA.

That is, in his first interview after Barr became Attorney General, Gates backed off a claim that (at least per the 302s) he had made as recently as late October, that he knew he was sending Deripaska the polling data.

Then, on February 22, Gates had a last interview, by phone (there must have been one or several in advance of the Stone and Greg Craig trials). For a third time, his attorney — Robert Mueller’s friend Tom Green — was not present.

The topic of the interview, like so many before, was whom Gates had had contact with about the investigation. But of course, this time, key details of the investigation, especially about sharing polling data with Kilimnik, had been revealed by one of those redaction failures that sometimes happen at opportune times. Gates described someone “alert[ing] GATES to the allegation discussed above,” but claimed “their communication had no substance.” Before and after that, though, redacted answers that Gates offered seemed to deny speaking to anyone about the allegations, whether the inquiry pertained to comparing notes about answers with others involved — as Gates had denied then disproved happened in summer 2017 — or lying to the media to minimize damage — as Gates had admitted lying to Ken Vogel about the very same allegation.

And in spite of the fact that Weissmann warned Gates at least once not to say anything about his communications with Green, Gates ended the interview by addressing a claim his attorney seems to have made. “GATES stated that his counsel GREEN had been mistaken in indicating to the Special Counsel’s Office that GATES,” with a long paragraph describing what Green had told prosecutors but that Gates, with Green absent, was denying.

It turns out, though, that the demonstrably false story that NYT told resembled the ones Gates told in interviews where he was also lying about Rohrabacher, a year earlier. The NYT claimed that Gates had only transferred the data during the spring, not in August. It claimed “most of the data was public.” And it claimed Gates had only shared the data with two Ukrainian oligarchs, and not Oleg Deripaska.

Both Mr. Manafort and Rick Gates, the deputy campaign manager, transferred the data to Mr. Kilimnik in the spring of 2016 as Mr. Trump clinched the Republican presidential nomination, according to a person knowledgeable about the situation. Most of the data was public, but some of it was developed by a private polling firm working for the campaign, according to the person.

Mr. Manafort asked Mr. Gates to tell Mr. Kilimnik to pass the data to two Ukrainian oligarchs, Serhiy Lyovochkin and Rinat Akhmetov, the person said. The oligarchs had financed Russian-aligned Ukrainian political parties that had hired Mr. Manafort as a political consultant.

In his first interview, Gates claimed that the two Kilimnik meetings happened in spring, March and May. He further claimed the last time he spoke to Kilimnik was in May 2016, not that August meeting nor later attempts to craft a cover story for the Skadden Arps intervention. He offered another reason entirely for the meeting than sharing campaign data: Yanukovych wanted Manafort to run his next campaign.

In his second interview, Gates was told clearly the meeting at the Havana Bar happened in August, but then, when he began to admit to sharing campaign information, suggested Manafort had shared “Manafort’s plan for the primaries.” When reminded again that the meeting happened in August, long after Trump sealed up the nomination, Gates still persisted by claiming “they must have talked about the delegate issue and Manafort’s plan to get Trump enough delegates to win the nomination.” This interview appears to be the first time Gates offered the explanations he settled on for sharing campaign strategy — to get the Ukrainians to pay their bills and to get Deripaska to drop his law suit. But when investigators asked the obvious question — why Manafort wanted to share campaign information from someone he thought was Russian intelligence Gates claimed none of this was secret.

Gates was asked why Manafort would provide strategy information on the Trump Campaign to someone he thought was Russian Intelligence. Gates stated that the information on the battleground states and strategy was not secret.

This comment appears between passages redacted for ongoing investigation, so it’s not really clear whether the “he” here means Gates (who later would admit he suspected Kilimnik was a spy) And yet, he and Manafort spent a good deal of time obfuscating about doing just that.

Back in January 2018, before he started getting caught in deliberate lies, Gates was telling stories that shifted the time and the substance regarding why he and Manafort shared campaign data with Konstantin Kilimnik. And then, just as the Mueller team started preparing to write their conclusions, the NYT published a story that adopted the same time shift and subject obfuscations.

And in between, Rick Gates shared details repeatedly about how he used Maggie Haberman and Ken Vogel.

Rick Gates’ Interviews

July 2, 2014

[link]

DMP International

Manafort strategist Gates structure

Party of Regions region

Cyprus

b7A

Someone he met with (Kluyev)

Lyovochkin

Business deal (Pericles?)

Kilimnik

January 29, 2018

[link]

Weissmann and Andres

Gates taxes

Oligarchs as paymasters

DMP pay directly

Manafort taxes

Gates aware Manafort not claiming everything

Corey Lewandowski

Tension rises after Cruz drops out

Claims that CL spent an exorbitant amount on bling

Gates doesn’t know whether firing about overpayments

b7A allegations about Lewandowski

Rick Dearborn

Running DC ops

Gates marginalized during transition bc of Dearborn

Dearborn and platform

Manafort’s resignation

Gates liaison to RNC

Gates believed Manafort should have fought media

Projects Manafort had started, data dump, taken over by Bannon (NSC, NEAC, Evangelicals and labor)

Flynn and McFarland

Gates and Flynn traveled together

Walid Phares

Phares brought on by Dearbon

Loan Fraud

Funds from Cyrpus

Citizens Bank 29

Tabs

Manafort never asked Gates to doctor doc

Cypriot accounts

DMP entities

Gates location

Richmond

Gates had apartment in DC but worked in NY and LA w/Barrack

Falsified P&Ls

Accrual

Tabs [emails from trial]

Kilimnik

Met in 2007, IRI

Worked for Russian intelligence

Worked out of DMP offices

Unfettered access to Yanu

Gates believed KK met Deripaska thru Manafort

Two meetings in 2016

False claim that last time Gates spoke to KK was May 2016

Gates believed last meeting was 2009

Trump Campaign

Outreach to foreign

June 9 meeting, family meeting

Gates didn’t know if Deripaska attended UNGA in September 2016 bc no visa

b7A

  • Lewandowski
  • Yanukovich and KK and Deripaska
  • OB
  • August meeting (confusion about May and August)

January 30, 2018

[link]

Weissmann and Andres

August 2 meeting

Sources of Oppo research

  • Flynn, data consultant in Houston
  • Don Jr and Clinton Foundation after June 9 meeting
  • Clovis said he had lead on missing emails
  • Claimed Stone never spoke about WikiLeaks to Gates, also Guccifer

Campaign Financing

  • No foreign contributions
  • Trump low dollar donations and self-finance

Inauguration

  • Claimed not to know KK went to Inauguration
  • Rybolovlev seeking inauguration tickets (b7A)

Redacted (foreign support)

  • Financial support
  • Cambridge Analytica

Bank Fraud

  • 377 Union
  • Cyprus and buying real estate in cash
  • Private equity people with email accounts

Genesis Capital

  • Howard Street
  • Sending Citizens false information on Howard Street

B7A

  • The true details of the Ukraine offer
  • More details about KK and Deripaska
  • Rybolovlev seeking inauguration tickets
  • Manafort’s funding

January 31, 2018

[link]

WEissmann and Andres

Foreign entities

  • Actinet trading Limited
  • KK facilitate payments
  • Bletilla Ventures
  • Global Highway
  • Lucicle Consultants
    • Gates suspected quid pro quo
    • Gates rarely at meetings with oligarchs
  • Marziola Holdings
  • Olivenia Trading
  • Peranova Holdings
  • Sergaon Holdings
    • Used to pay management on Pericles
  • Pompolo
  • St. Vincent and Grenadines
    • Diminishing confirmations
  • REdacted

Tax returns

  • 2010
  • 2011
  • 2012
  • 2013
  • 2014
  • 2013 amended

Communication methods

  • Email accounts, anti-crisis project

Communication with KK during campaign

  • WhatsApp

Deleted documents

  • Gates claims he didn’t delete anything
  • Long b7A
  • Gates says he may have deleted stuff

Project Hapsburg

  • Pitch Yanu
  • Group of senior Europeans (b7A)

b7A

  • KK facilitate payments
  • Payments from oligarchs
  • Gates at microtargeting meeting with oligarchs
  • Seragon used to pay management on Pericles deal
  • Confirmations from Manafort on St Vincent accounts
  • Communication methods: email accounts, Hushmail
  • Threema and Viber from KK
  • WhatsApp
  • Bat PHones
  • Gates deletes documents
  • Hapsburg VIPs

February 1, 2018

[link]

Weissmann and Andres

US Consultants Program Background

EFCMU [lots of newly unsealed pertaining to Podesta and Mercury]

Congressman Dana Rohrabacher

The FARA Unit

DMP FARA Obligation

The Skadden Report

Think Tanks

The Association Agreement

Other

b7A

Azarov and Kluiev

February 2, 2018

[link]

Weissmann and Andres

FARA

  • Indirect involvement in Podesta and Mercury triggers FARA

Rohrabacher

Redacted b7A (possibly 2)

The Trump Campaign

  • Trying to get hired as early as January
  • Getting hired would be good for business, followed by b7A
  • April outreach about the campaign, getting whole
  • Gates assumes Black Caviar is Akmetov (Manafort says Yanu)

Post Manafort resignation

  • b7A, Manafort’s efforts to stay in touch
  • Manafort in touch with Parscale and Dearborn

2017

  • How Manafort stayed in touch
  • Gates didn’t know any resolution to Deripaska lawsuit

Dates: Where Gates was in early 2016 and October 2016

b7A

  • Redacted after Rohrabacher
  • Getting hired would be good for business
  • Getting whole and Deripaska
  • Manafort never told Gates what he was offering Deripaska
  • The quid pro quo came up at the May meeting, probably
  • Black Caviar
  • Post-resignation, how Manafort stayed in touch and what Gates talked to him about
  • Whom Manafort reached out through
  • Gates not know where Manfort was traveling (besides Cuba)

February 7, 2018

[link]

Weissmann, Andres, Rhee, Zelinsky

April 27 foreign policy speech

  • Arose out of convo bt Kushner, Miller, and Manafort
  • How the hotel was booked
  • Who was backstage
  • Whether someone besides campaign was backstage

Speech content

  • Miller drafts, Gates reviews
  • Simes gets advance copy
  • Simes forwarded Russian talking points to Kushner
  • Manafort and Simes may have known each other
  • Simes floats the Clinton Foundation dirt to Jared

Gates claims to have contemporaneous memory of June 9 meeting

Sam Clovis

Yanukovych

Other

Polling data

  • Description of the mix of polls, including CA

b7A

  • Why Manafort started leveraging Trump in April

February 9, 2018

[link]

Weissmann and Andres

Rohrabacher

Energy Today

Redacting lobbying

Navitas LLC

FARA

Payment with Stock

Redacted

ID Watchdog

February 12, 2018

[link]

Weissmann and Andres

Other Crimes

  • Insider trading
  • Investment fraud (redacted)
  • Bank fraud
  • Bribery
  • Lack of candor under oath
    • Winding up agreement about how bank accounts in Cyprus held
    • FBI interview 2014
    • Skadden report
  • Campaign fraud
    • Vendor payments from campaign (Red Curve)
  • Obstruction of Justice
    • Mueller
    • FARA (b7A in context with FARA reports, regarding AP questions)
    • Skadden
  • Other

Kilimnik

  • August 2
  • Clever plan to defeat Hillary

Sam Pataten

Manafort and policy

Barrack and Policy (b7A)

Roger Stone

  • How they met in 1995
  • Stone’s relationship with Trump
  • What Stone advised campaign on (including targeting states)

Hacking

  • Focus on DCCC files
  • Stone tried to hire someone in SC for social media

Redacted (Pericles?) Pericles’ relationship to DMP b7A

Foreign money to campaign

Uncoordinated rallies and media campaigns

Other, including Gates’ knowledge of Comey and Flynn firing

b7A

  • Local officials and bribery in Ukraine
  • Coordinating story about FARA
  • August 2, when Gates arrived
  • August 2, where Gates stayed that night
  • Yanukovych X2
  • Kilimnik RU intelligence
  • Barrack and Policy
  • How Gates met Stone
  • Pericles’ relationship with DMP

February 22, 2018

[link]

Weissmann

A discussion of post-plea ramifications

b7A: Speaking to someone on February 20, 2018

February 27, 2018

[link]

Weissmann, Andres, Richardson

Communications accounts

  • Email
    • Manafort communicating with [Kilimnik] separately (b7A)
  • Telephone
    • Bat phone b7A
  • Applications (some b7A)

Pre/Post plea

  • Who Gates communicated with in the two weeks prior (b7A)
  • Gates’ conversations about how Nunes memo and IG Report would help him fight

Konik Madison (where he was working)

Legal Fees (Gates paying his own)

IDW

Akhmetov [redacted]

  • Redacted (b7A)
  • Akhmetov owned US Coal

United Kingdom

  • Several periods when he lived in London, including when he worked on Pericles deal

Foreign Campaign Contributions

  • Memo permitting foreign contributions if they went to policy (b7A)

Manafort criminal activity

  • Donation to McCain’s campaign

Troll farms

b7A

  • OpSec, probably tied to Kilimnik, who he communicated with prior to his plea
  • Someone’s exorbitant legal fees
  • Akhmetov
  • Pericles and London
  • Foreign donations to 501c4
  • Donation to McCain from LOAV

February 28, 2018

[link]

Weismann and Andres

ID Watchdog

McCain campaign (LOAV laundering a donation from Deripaska)

Submarine deal

Energy Today

[Redacted] Gates Plea

Cyprus Accounts

FBAR

US Vendors and Real Estate

KWC (Manafort’s accountants)

February 28, 2018

[link]

Weissman and Andres

Bank Contacts

Campaign

  • Payments from someone (possibly Russian); formerly b7A
  • Who Manafort was still speaking to in December 2016
  • Who Gates was speaking to

b7A

  • Who Manafort was speaking to

March 1, 2018

[link]

Weissmann and Andres

August 2016 and Havana Club

  • Lying to Ken Vogel
  • Whether he had received calls about the meeting (b7A)
  • Kilimnik’s claims to the WaPo

DNC Hack/Roger Stone

  • Gates accompanied Manafort to meeting with Stone
  • “Something big is going to happen that we can use”
  • Stone told Gates days before the Podesta drop that, “Podesta is going to be taken down”
  • Genesis of Seth Rich story (Stone spoke to both Bannon and Cohen)
  • Fears of RNC hack

Departure of Manafort

June 9 meeting

  • Manafort warned against the June 9 meeting
  • Manafort wasn’t sure he attended

b7A

  • Whether he had calls abt the Havana meeting
  • KK’s claims to WaPo
  • Manafort told the campaign something about an RNC hack

March 12, 2018

[link]

Andres — recorded as “on or around,” and not entered until July

Personal Background

Gates and Manafort’s background

Work in Ukraine

  • When he was there
  • What they did which years
  • How the Lyov money came in

Manafort entities

Pericles (b7A)

  • 2014 lawsuit came as a total surprise

Vendor payments

Cyprus

Manafort’s accountants

Akhmetov work

Deripaska

  • Manafort’s effort to get Deripaska a visa
  • Deripaska wanting to get in US aluminum business

DMP and Manafort Associates (all redacted, one b7A)

b7A

  • 1¶ of personal backgroun
  • A description of someone who socialized with Manafort
  • How the money from Lyovochkin came in
  • Something abt the political accounts in Cyrpus

March 16, 2018

[link]

Andres

Overseas travel

  • Pericles

Ukraine

  • Lyov’s business deals

Jared Kushner

  • Kushner’s relationship with Manafort sours
  • Barrack told Gates Kushner had fucked over business partners
  • Trump told K Christie would never work in Admin

Deripaska’s visa (b7A)

b7A

Deripaska, Pericles, Lyov

March 18, 2018

[link]

Weissmann and Andres

Pericles

Ukraine

After November 2016 Election

  • Talking points on Manafort and Gates’ work in Ukraine
  • Broidy

b7A

  • Pericles, Ukraine, Intervening for Broidy

March 20, 2018

[link]

Weissmann and Ahmad

Mostly b7A about fundraising for the campaign

March 21, 2018

[link]

Rhee, Weissmann

Redacted (b7A)

Redacted (b7A)

Corsi (one b7A about meeting Trump)

Cambridge Analytica (two b7A)

Lewandowski (all b7A)

Flynn (mostly b7A)

Stone projects (b7A)

March 28, 2018

[link]

Weissmann, Andres

DMP details and doc review

April 10, 2018

[link]

Andres, Rhee, Weissmann, Zelinsky

Jerome Corsi

  • Meeting purportedly something about Hillary’s emails (may be redacted in more recent release)

Roger Stone’s role in the campaign

  • Stone got more involved in April 2016
  • Manafort told Gates Stone was on the hunt before June 14
  • Stone said he had info directly from Assange
  • Stone trying to talk to Kushner abt Crowdstrike report
  • b7A
  • Convo on or about June 15 where Stone said he had contact with Guccifer 2 (conflicts with earlier comment)
  • Family meeting on June 20, Stone did not come up (that’s when Lewandowski was fired)
  • Manafort and Stone have lunch on June 23 (check schedule for Flynn call that same day)
  • Stone told Manafort abt Podesta day before time the barrel comment

Campaign response to hacked emails

  • Attributes inside job to Seth Rich
  • Interest ratchet up on April May time frame
  • Gates describes euphoria in response to June 12 announcement, not July 22

Speak to Hannity often

b7A:

  • Stone talking to Kushner about Crowdstrike report

April 11, 2018

[link]

Andrew Weissmann, Greg Andres, Aaron Zelinsky [Not Rhee]

Roger Stone talking Hillary’s emails constantly

  • Assange has Hillary emails
  • Wait and see approach
  • No one took action
  • Stone said release would happen imminently and very soon
  • Stone and Bannon in contact daily

June 12, 2016 – July 22, 2016

  • Trump talking to Stone directly
  • Messaging strategy
  • Disagreement about where emails had come from

Messaging strategy, speaking to Kilimnik

July 22, 2016

  • Whether he had convos about how to use
  • “Gates initially stated Stone said there would be additional information coming, however, Gates later said he did not recall Stone saying there would be more during the conference call.”

Late July – 8/19/16

  • Trump’s are you listening ad lib (others say Stone)

August 2, 2016

  • Stone talked to Trump about more coming

August 2, 2016 – August 21, 2016

September 2016

October 4, 2016

October 7, 2016

Rest of October 2016

b7A:

  • Conversation about what campaign could plan for,
  • Trump talking to Stone directly,
  • Messaging strategy,
  • Whether Manafort asked Kilimnik to reach out, rest of October

April 11, 2018

[link]

Weissmann and Andres

Information about the investigation

b7A

Contacts (with those being investigated?)

April 17, 2018

[6th release link]

Andres and Zelinsky

Ted Malloch

Oppo doc on Trump (b7A)

April 17, 2018

[link]

Serialized interview 445

April 17, 2018

[link]

Possibly outreach from Manafort

April 18, 2018

[link]

Goldstein and Andres

Gates’ contact with Flynn and McFarland

Transition communications with Russia

b7A

  • Flynn and McFarland (originally b7B)
  • Meetings involving Kislyak (originally b7B)
  • Flynn’s firing (originally b7B)
  • Trump’s views on Russian investigation (originally b7B)

April 18, 2018

[link]

Andres

Apparently entire accounting trial prep

April 18, 2018

[link]

Andres

Michael Cohen

  • Cohen wanted Lewandowski fired

Redacted

  • Entirely b7A

Obama’s call to Yanu

April 19, 2018

[link]

Andres

Investing vehicle b7A

Redacted privacy

Roger Stone privacy

April 19, 2018

[6th release link]

Someone who got a meeting directly

Kushner and Greenblatt, Jewish community

b7A

Strategic messaging based on the dumps

Emails were campaign’s October surprise

April 19, 2018

[10th series link]

Weissmann

Manafort’s Land Rover dealer

April 19, 2018

[10th release link]

Weissmann

Trial prep

May 3, 2018

[link]

Andres

Accounts in St. Vincent (b7A)

Contract with Yanu through Lyov

May 3, 2018

[link]

Andres and Van Grack

Flynn among chief surrogates by spring 2016 (along with Rudy, Sessions, Kudlow)

No memory of June 30 Flynn meeting with Manafort

No memory of call on 6/23/16, no memory of social media discussion

Flynn had influence on Trump’s thinking about foreign interference, someone else b7A would discuss it

Flynn advised Trump to hold off on responding about Russian emails

Someone with whom first interaction was during transition

Bill paid to Flynn company (Colt)?

b7A

Someone first met in transition

Possibly same person speaking up about foreign interference

May 3, 2018

[link]

Andres

Who DMP was really working for

b7A

Who has equity in DMP (possibly Kilimnik or another of the Ukrainians? Manafort wanted Gates to say the accounts were Manafort’s)

Possibly related to Actinet in Cyprus

May 3, 2018

[link]

Trump hates Haley

Trump and McConnell hate each other

Pence has ties to Congress

Mnuchin and others looking for a tax dodge

May 3, 2018

[link]

What contacts he had had, including with Maggie H

Contact with Parscale about DNC lawsuit

May 24, 2018

[link]

Gates stayed at Manafort’s house

Someone was on company healthcare

Proshenko

ECFMU

AP report in June/July 2016 (formerly b7A)

May 31, 2018

[link]

Andres

Who did some job

June 13, 2018

[link]

Andres

Whether he knew someone

Something odd about the way he appeared in the office

June 20, 2018

[link]

Andres

Gates didn’t destroy ECFMU docs

Manafort warned Gates against Green

June 27, 2018

[link]

Andres

All redacted

July 5, 2018

[link]

ID people in picture

Manafort said they’d get help from Lyov

July 12, 2018

[link]

Andres

More about interviews with the NYT

August 18, 2018

[link]

Weissmann and Andres

Response to Gates saying he may have submitted a false expense report to PIC

He did not get along with a woman on PIC

Did not get involved in distribution’

b7A

Most everything about Gates’ claims about PIC

September 11, 2018

[link]

2 SDNY and 1 NSD AUSA

Skadden Report background

Skadden report media strategy

Emails/Docs shown to Gates

  • Project Veritas strategy, Hawker
  • Aspirational that project would conclude Tymo was valid
  • Van Der Zwaan and. Hawker
  • Emails with Craig
  • Master Control Grid–Craig to media
  • Mercury
  • Whether Craig wanted to talk to NYT

September 27, 2018

[link]

Andres and Weissman

Black Caviar Email

  • It seems DOJ may not have believed Manafort’s claim that caviar was a reference to Yanu, and not someone like Akhmetov or Deripaska
  • Yanu returning
  • Yanu not reaching out after he fled

Polling data

  • Reason why he sent polling data to Deripaska b6
  • “On multiple occasions GATES and MANAFORT woudl receive a poll and  MANAFORT would tell GATES to sent it to KILIMNIK based on the poll’s content.”

Trump presidential campaign

  • Mnuchin handled everything but direct mail
  • Middle EAst and Israel came up
  • It would have been unfathomable for Manafort to travel while on campaign and speed with which he went after surprised Gates.

b7A

  • Who gave Manafort caviar (earlier Gates had said it would be Akhmetov)
  • Source of largest payments
  • Whether Manafort would have traveled
  • What Manafort planned to do after election

September 27, 2018

[link]

Andres, 2 AUSAs (from SDNY?) and 1 NSD

Genesis of Manafort lobbying for Party of Regions

  • Need at least one EU citizen to be founder
  • Goal to counter issues EU had with Ukraine

Lobbying firms

  • Manafort’s choice, Mercury obvious
  • Manafort told the people that the client was GoU
  • People always reported to Manafort

Docs

  • Podesta originally planning on filing FARA

b7A

redacted

Someone told Gates

One letter

October 9, 2018

[link]

Weissmann

No discussion of using a front for PsyGroup

October 10, 2018

[link]

Weissmann, UASA, and NSD Trial Attorney

Mercury call

Durbin Resolution

Skadden Arps

Docs

Financial backing of ECMFU b7A

October 10, 2018

[link]

James Mann, Nicole Lockhart, Ryan Ellersick

Work in Gabon

Trump Campaign

Inauguration

Post-Campaign

  • America First Policies
  • Romanian delegation
  • Trump and golf

1MDB

Redacted appointment and other appointments

FATA and Gates’ trouble

Miscellaneous

  • Last spoke to
  • Viceroy Hotel
  • Encrypted apps
  • Something from someone close to Grassley’s staff
  • References to Demers as puffery
  • More on Malaysia
  • Putting out headlines on Feinstein

October 25, 2018

[link]

Weissmann, Rhee, Zelinsky

June 12, 2016 to July 22, 2016

  • Stone made his comments at least two weeks before June 12
  • When emails didn’t come, it was an example of Stone saying something that didn’t happen (inconsistent with earlier claim that Stone had raised G2)
  • Trump frustrated Hillary’s emails not found
  • Manafort would have Gates check in
  • Stone told Gates of drop before 7/22
  • Messaging strategy built in June July
  • Clinton trustworthy problems

Post July 22 WikiLeaks releases

  • Opportunity for deflection after comments about Ted Cruz’s father
  • Gates, public indications Russia behind them
  • Congratulatory call between Manafort and Stone after 7/22
  • Laguardia call
  • Gates not sure whether pressure coming from the top
  • Around this time Bannon brought on to bolster Manafort
  • Defend Manafort by attacking Podesta

October 4

October 7

  • Stone had multiple avenues into campaign, including Bannon
  • Discussions about content of Podesta after drop

Redacted

Corsi’s Podesta docs (Gates doesn’t remember)

October 25, 2018

[link]

Weissmann, Mann, Lockart, unnamed, Ellersick

Inauguration

  • About half b7A

Other work for Trump (including VTB)

Miscellanous (including b7A)

October 25, 2018

[link]

Weissmann

DCI Group

  • Grassroots for Bush becomes DCI
  • Discussion of Manafort being hired there

Ukraine

Russia

Manafort’s work for other countries

Manafort legal fees

Miscellaneous

Bannon set up a war room separate from the White House

b7a

  • People associated with DCI
  • Ukraine
  • Policy on Crimea
  • Manafort’s work for other countries
  • Something that happened in late 2017
  • Someone Kushner had asked him to meet

October 29, 2018

[link]

Weissmann

Manafort’s China Efforts

  • Telephone project
  • b7A
  • Tried to get Chinese nationals into inauguration

Ukraine work

  • b7A hiring in 2010
  • Gates never heard plans abt Eastern Ukraine
  • Kilimnik and Deripaska

Boyarkin and Deripaska

  • Spoke good English, lots of work for Deripaska

Miscellaneous: Pay t0 play with Clinton

b7A

  • Manafort’s China efforts
  • DMP hiring in 2010
  • After Patten and Kilimnik
  • Kilimnik direct line to Deripaska
  • Boyarkin

October 29, 2018

[link]

Ahmad, Weissmann

At first no control over budget

Gates convinced Trump he couldn’t self-finance any longer

Red Curve

Mid-June Manafort took over budget expenditures

Gates out of inner circle by the time of $10 million infusion

No evidence of kickbacks (b7A)

Meeting with Cambridge Analytica in NY

Cruz liked psychographics not the comms

Big donor to the campaign

Gates would review Trump’s call logs, but after Conway took over people had to call Melania

b7A

Kickbacks

Cambridge Analytica data

CA claimed to be US-based, Gates figured out it was UK,

November 7, 2018

[link]

Rhee, Weissmann, Andres (Gates’ lawyer not present)

Friends and Family list for Inauguraiton

November 7, 2018

[link]

Andres and Weissmann

Lewandowski’s PAC (formerly b7A)

Redacted, b7A

Redacted, someone with offices in NY and ties to POR

Campaign’s knowledge of Manfort’s Ukraine work

  • Manafort claimed he told Trump
  • Trump needing all details as it broke

Misc, fundraiser

Creation of vehicle to protect Trump’s delegates (527, worked on with Stone, pitched to Trump), b7A

Kilimnik in May

  • Boy, direct tie with Putin
  • b7A

March 30 email b7A

b7A

  • 527 to protect Trump’s delegates
  • Boyko direct to Putin
  • May meeting
  • March 30 email

November 11, 2018

[link]

Weissmann

Money laundering scheme

Viber message about Manafort attending inauguration events

Manafort continued to work through Kushner

February 15, 2019

[link]

Andres, Rhee, Weissmann

Polling data sent to Kilimnik

Meeting with Kilimnik

Gates didn’t know if Manafort sent data to Deripaska

b7A: WhatsApp sharing, A memo, data on cities

February 22, 2019

[link]

Andres, Weissmann, Green not present

Whether Gates had discussions about the reporting on the Kilimnik violation

Claims Green was mistaken for whatever reason he set up the meeting

How Jacob Chansley Proved Patrick LeDuc Right

I have written repeatedly about how charging January 6 rioters with obstruction provides DOJ a really elegant way of holding people accountable, while providing the flexibility to distinguish between different levels of seriousness (until such time as some judge overturns this application of 18 USC 1512).

A review of what has happened with five men who’ve pled guilty to obstruction so far illustrates not only the range of sentences possible from the same charge, but also the factors DOJ is using to distinguish defendants based on their actions on January 6.

Before I lay out what has happened, first a word of explanation: To get to sentences, the two sides in a plea deal first agree on a  “Estimated Offense Level,” then (if someone pleads guilty), knocks a few points (usually 3) off for pleading. That gives a number that gets plugged into the Sentencing Table to figure out the guidelines sentence, in months, based on whether someone has a criminal record.

So in what follows, I’m showing the initial calculation (before the 3 points taken off for pleading guilty), and then showing what the plea agreement says the guidelines will be. In the table, I’ve marked the four different guidelines calculated in the five cases I discuss here (Scott Fairlamb has some criminal background so may get bumped up a level, but the others have no criminal background).

Paul Hodgkins, who traveled alone to bring his Trump flag to the floor of the Senate, pled guilty to obstruction, and went into sentencing facing a 15 to 21-month sentence (and ultimately got an 8-month sentence).

The number you’ll see Patrick LeDuc mention — 14 — in an email below is obtained by knocking 3 points off 17. And the 15-21 months is taken by checking the “0” criminal record column for an offense level of 14.

Scott Fairlamb. who didn’t plan for insurrection but while there punched a cop, pled guilty to obstruction and assault and goes into sentencing facing 41 to 51 months. DOJ has reserved the right to invoke a terrorist enhancement (including in his plea colloquy) that, if Judge Lamberth agreed, could result in a far stiffer sentence, up to 10 years.

Josiah Colt, who planned his trip to DC with two others, came to DC armed, and rappelled onto the Senate floor, pled guilty to obstruction, but faces (before getting credit for cooperation) 51 to 63 months.

Graydon Young, who planned in advance with a militia, entered the Capitol as part of a Stack, and tried to destroy evidence, pled guilty to obstruction, but faces (before getting credit for cooperation) 63 to 78 months. The difference in guideline between him and Colt is not that Colt’s “militia” was disorganized (a couple of guys he met online), but rather that Young tried to destroy evidence. Otherwise, they’re the same.

These four men all pled guilty to the same crime, obstruction of the vote count, but all faced and are facing dramatically different sentences based on the context of what they had done. And for those who deliberately used violence in pursuit of obstruction could face longer sentences, up to 20 years, which happens to be the same sentence that some sedition-related charges carry, but (again, unless judges overturn this application of obstruction) would be far easier to prove to a jury.

Somewhere around 200 January 6 defendants have been charged with obstruction, but among those 200, there’s a great range of actions they took in their alleged effort to prevent the peaceful transfer of power, including:

  • How obstructive their actions were (a 3 point enhancement)
  • Whether they used violence or threats thereof (an 8 point enhancement)
  • Whether they planned in advance to obstruct the vote count (a 2 point enhancement)
  • Whether they engaged in further obstruction (a further 2 point enhancement)
  • Whether someone did or abetted more than $1,000 in damage to the Capitol (which will likely get a terrorism enhancement)

And this is an issue that will play out in Paul Hodgkins’ effort to appeal his sentence.

According to claims made in court, Hodgkins decided to admit his guilt early on, which led to him being the first person to plead guilty to that obstruction charge. His lawyer at the time was a guy named Patrick LeDuc, a JAG Reserve Officer who learned after he started representing Hodgkins he had to deploy to the Middle East. Immediately after he was sentenced to a below guidelines sentence, per representations a new lawyer has now made, he asked if he could appeal (Friday, Judge Randolph Moss granted his request to extend his time to appeal). What LeDuc said in response will likely be the matter of a legal fight. We do know that on August 21, LeDuc told Hodgkins, “You have no right to appeal the sentenced [sic] pursuant to our plea agreement,” which suggests that at that point, LeDuc understood Hodgkins’ complaint to be with the sentence, not the competence of his representation.

But we know, for sure, that LeDuc told Carolyn Stewart, Hodgkins’ new lawyer, that other January 6 defendants who made it to the Senate floor were going to be charged with more enhancements to the base obstruction charge than Hodgkins.

Here is what you should know. Capitol Hill Defendants found in the Senate are all being offered a felony (same as Paul)(some more than one felony) with an 8 level enhancement (you might consider obtaining a Federal Sentencing manual for your reference). I was able to get the DOJ to agree to only a 3 level enhancement. You ought to know that my plea deal was adopted at the highest level to include the AG of the United States. That meant that my client was at level 14 instead vice level 19. Other Capitol Hill defendant [sic] are looking at 46 months low end. The AG instructed AUSA Sedky to argue for mid range – 18 months. And you would suggest that is evidenced [sic] of malpractice. I would argue that an attorney of 6 months accusing an attorney with over 250 jury trials at both the State and Federal level, and with 30 years of experience is unprofessional on your part.

If you think the plea deal was insufficient, then you ought to know that the United States makes offers with a a [sic] take it or leave it attitude. Everything in the plea deal was boilerplate with one exception that did not bother me. That was a provision that required me to agree that level 14 was good to go and that I would not object to the PSR. I was allowed to argue for a variance under 3553, which was my strategy all along, and the judge did indeed vary 3 levels into ZONE B. Ms. Sedky is a very experienced prosecutor, and the plea deal was arranged over many lengthy phone calls over a period of 3 months. Being the first felony case to be resolved was something that DOJ had to concur in because my case was going to set the precedent for every one to follow and the stakes were high for both sides.

My strategy paid off to Paul’s benefit. No other Federal defendant who is pleading to a felony will get a sentence better than Paul (nearly 250 others)  We had a very good judge who understood the issues, and the sentence was a fair reflection of the fats.

LeDuc is obviously furious at being called incompetent (and writing from Qatar where he is also juggling a huge influx of refugees from Afghanistan). But in this passage he describes a lot of the background to the plea deals that was evident to those  of us following closely, but for which there had been only off the record confirmation.

I think things may intervene that change DOJ’s plans (particularly if any of the challenges to 1512 are successful). But LeDuc describes that the plan when he was involved was to give Hodgkins a good deal and then use that as the precedent for everyone else. With other judges an 8-month sentence may not actually be the floor, but it is the base level treatment DOJ thinks it will adopt for those charged with felonies.

We’ve seen a few people plead down from felonies to 18 USC 1752, but thus far those people are looking at close to the same sentence as Hodgkins, 6 months, a difference of 2 months and the onerous felony conviction.

One thing LeDuc did say is that other defendants who made it to the Senate floor will face 8 level enhancements. Again, I’m virtually certain there will be others who made it to the Senate that will avoid this treatment.

But yesterday, with Jacob Chansley’s sentence, LeDuc was proven correct: another defendant, with whom Hodgkins stormed the Senate floor, got an 8 point enhancement for doing so.

.

Note that, as with Fairlamb, the government reserved the right to ask for a terrorist enhancement, though I did not hear AUSA Kimberly Paschall make a record of that in yesterday’s plea hearing, as AUSA Leslie Goemaat did in Fairlamb’s plea hearing.

To be sure, Chansley’s Statement of Offense includes multiple things that weren’t present with Hodgkins (nor will they be present for some others who made it to the Senate floor). According to his sworn Statement of Offense, Chansley defied orders from Officer KR four different times, and made public and written comments while in the Senate that might be deemed a threat, including to Mike Pence personally.

11. At approximately 2:16 p.m., the defendant and other rioters ascended the stairs to the second floor to the Senate side of the U.S. Capitol building. In a clearing on the second floor, the defendant and other rioters were met by a line of U.S. Capitol Police officers, instructing them to peacefully leave the building. The defendant challenged U.S. Capitol Police Officer K.R. to let them pass, ultimately using his bullhorn to rile up the crowd and demand that lawmakers be brought out.

12. Instead of obeying the instructions of the U.S. Capitol Police to leave the building, the defendant traversed another staircase to the third floor of the Senate side of the U.S. Capitol building. At approximately 2:52 p.m., the defendant entered the Gallery of the Senate alone. The defendant then proceeded to scream obscenities in the Gallery, while other rioters flooded the Chamber below.

13. The defendant then left the Gallery and proceeded down a staircase in an attempt to gain entry to the Senate floor. There, the defendant once again encountered Officer K.R., who once again asked him to leave the building. The defendant insisted that others were already on the Senate floor and he was going to join them. Officer K.R. then followed the defendant on to the Senate floor.

14. The defendant then scaled the Senate dais, taking the seat that Vice President Mike Pence had occupied less than an hour before. The defendant proceeded to take pictures of himself on the dais and refused to vacate the seat when Officer K.R., the lone law enforcement officer in the Chamber at the time, asked him to do so. Instead, the defendant stated that “Mike Pence is a fucking traitor” and wrote a note on available paper on the dais, stating “It’s Only A Matter of Time. Justice Is Coming!”

15. After Officer K.R. again asked the defendant to vacate the seat, the defendant remained, calling other rioters up to the dais and leading them in an incantation over his bullhorn, which included giving thanks for the opportunity “to allow us to send a message to all the tyrants, the communists, and the globalists, that this is our nation, not theirs, that we will not allow America, the American way of the United States of America to go down.” The defendant went on to say “[t]hank you for allowing the United States to be reborn. Thank you for allowing us to get rid of the communists, the globalists, and the traitors within our government.”

16. Finally, at approximately 3:09 p.m., other law enforcement officers arrived to support Officer K.R., and cleared the defendant and other rioters from the Chamber. [my emphasis]

While it’s a puzzle to compare who posed more of a threat, Scott Fairlamb or Jacob Chansley, DOJ is treating both as people who deliberately tried to prevent the vote count by using violence or threats thereof. And because of that, DOJ has gotten their attorneys to agree, they should face a sentence more than twice as long as Hodgkins faced.

And that’s precisely what Patrick LeDuc told Hodgkins’ new lawyer would happen.

Update: I’ve corrected that these are the only five men who’ve pled guilty to obstruction. Some other Oath Keepers also did.

The Network Effect: The 3%ers Incitement, Terrorist Enhancements, and California’s Anti-Maskers

At a hearing for Danny Rodriguez on August 31, Judge Amy Berman Jackson asked, as she had in the last hearing, why Rodriguez wasn’t included in the indictment with a bunch of other men who, like him, are accused of assaulting Michael Fanone, a case over which she is also presiding. As also happened in that last hearing, ABJ asked about a plea offer. In July, AUSA Kimberly Paschall said Rodriguez might not be offered a plea deal at all. On Tuesday, Paschall said he would only be offered a plea deal if he were willing to be debriefed first, prosecutor’s jargon meaning that someone will only be permitted to plead guilty if he cooperates against others. Paschall also said that any plea would necessarily include the 18 USC 1361 charge against Rodriguez for breaking a window because it carries a terrorism enhancement. When prompted by Rodriguez’ attorney (who sourced her intelligence to Twitter), Paschall admitted there may be a superseding indictment against Rodriguez, widely assumed to be some kind of conspiracy indictment with other extremists from Southern California.

As HuffPo reported in February (relying heavily on the work of online researchers including Deep State Dogs), before his arrest Rodriguez was a well-known participant in a group of Southern California anti-maskers, one who had been reported for assault even before boarding a plane to DC in January.

Rodriguez, who goes by “Danny” and “DJ,” is well known among Trump supporters in the Los Angeles area as a superfan of the former president. Multiple news outlets have featured him in their coverage of the local pro-Trump movement in recent years, in articles that included his name and photo. He regularly attended the weekly Trump rallies in Beverly Hills last year. He was recognizable there by his dark-rimmed glasses and the many distinctive pins on his hat, which has a big GOP elephant symbol on the brim.

Rodriguez coordinated with other members of this network — including Gina Bisignano — while at the riot.

What Paschall basically admitted in Tuesday’s hearing is that DOJ intends to hold Rodriguez accountable as a terrorist, possibly in conjunction with his network of right wing operatives. But for all the reports (on Twitter) about network members flipping on each other, the network of extremists still manages to sow violence in front of the LAPD with impunity.

There are other public signs, however, that DOJ is going after this network. In June, DOJ rolled out a conspiracy indictment against six Three Percenters, including Alan Hostetter and Russell Taylor. In spite of explicit threats of execution detailed in it, it doesn’t include a crime of terrorism like the one charged against Rodriguez. While the Three Percenter ties, the plans to come to DC armed, and the defendants’ role in a January 5 Stop the Steal rally attracted a lot of attention, the import of a Telegram channel described in it got less focus.

On January 1, 2021, [Russ] TAYLOR created a Telegram chat called “The California Patriots-DC Brigade” (the “DC Brigade”) and invited other individuals to join. TAYLOR, HOSTETTER, WARNER, KINNISON, MARTINEZ, and MELE all joined, along with more than 30 others.

In the “about” section that described the purpose of the DC Brigade group, TAYLOR wrote:

This group will serve as the Comms for able bodied individuals that are going to DC on Jan 6. Many of us have not met before and we are all ready and willing to fight. We will come together for this moment that we are called upon.

In a series of messages on January 1, 2021, TAYLOR further explained the purpose of the group. In one message, he explained: “This thread is exclusive to be utilized to organize a group of fighters to have each other’s backs and ensure that no one will trample on our rights. Also, if there is key intel that we need to be aware of tor [sic] possible threats.” He added: “I am assuming that you have some type of weaponry that you are bringing with you and plates as well.” TAYLOR also asked members to identify if they had previous law enforcement experience, military experience, or “special skills relevant to our endeavors,” as well as the planned date and time of their arrival in D.C.

There were 36 people in this thread and DOJ may have arrested just 4 before this conspiracy charge, leaving at least 26 others who participated in a channel about coming armed to the Capitol still out there.

In recent days (close to three months after the conspiracy indictment), DOJ has started arresting those participants. On August 26, for example, DOJ arrested Jeffrey Scott Brown on charges of assault, civil disorder, and trespassing based in part on him spraying an irritant at the police.

The government cited Brown’s participation in Taylor’s Telegram channel to substantiate pre-meditation for his violence.

During the course of the investigation into the events of January 6, 2021, law enforcement has identified communications that documented planning and coordination amongst individuals in advance of January 6, 2021. As detailed below, the investigation has established that JEFFREY SCOTT BROWN participated in a Telegram group chat on an encrypted messaging app in the days leading up to January 6. In the Telegram chat “about” section was the following description: “This group will serve as the Comms for able bodied individuals that are going to DC on Jan 6. Many of us have not met before and we are all ready and willing to fight. We will come together for this moment that we are called upon.”

One of the members of this chat was Telegram user “JB” (UID XXXXXX1832). On January 5, 2021, at approximately 6:30 a.m. PST, Telegram user “JB” posted a picture of himself with the caption “Boarding LAX.” LAX is the airport code for the Los Angeles International Airport.

Yesterday, another of the participants on Taylor’s Telegram channel, Ben Martin, was arrested for his sustained efforts to get and keep the North doors of the Capitol open.

Among the pictures of Martin included in his arrest affidavit at that North door are some also included in a detention memo for Matthew Klein that depict the Klein brothers, already charged with conspiracy for their efforts to open it.

Martin’s arrest warrant describes Facebook Messenger discussions Martin had with an RT who, like Russell Taylor, publicly called for violence in advance of the riot. That RT invited Martin to a Telegram channel that sounds (except for RT’s boasts about its size) just like The California Patriots-DC Brigade.

A search warrant of the MARTIN Facebook account identified by the tipster revealed that the account was registered as “benjamin.martin.90410.” A review of the account further revealed communications between MARTIN and a Facebook account associated with R.T. Based on a different investigation, R.T. is known to the FBI to have advocated for violence in the lead-up to January 6, organized others to travel to D.C. for January 6 (some of whom participated in the riot at the U.S. Capitol), and to have participated himself in the riot at the U.S. Capitol on January 6. MARTIN’s account contained communications occurring on January 3, 2021, between R.T. and MARTIN through Facebook Messenger in which MARTIN and R.T. discussed traveling to Washington D.C. for January 6, 2021. In the communications, R.T. invited MARTIN to join a Telegram chat for “a group of 200+ California patriots that are going to DC Jan 6,” which MARTIN accepted and joined. On January 6, 2021, MARTIN sent four messages to R.T. that stated, “we need to meet”, “I just spoke to Peggy Hall she said we need to meet”, and “I am in DC as we”, “well” [sic].

Consider what you have in this network:

  • Ties to two militias, the Three Percenters and the Proud Boys
  • Organization based in localized, violent anti-mask activism
  • A direct tie to one of two organized rallies on January 5
  • A Telegram channel tying a group of participants together
  • The use of blowhorns and radios during the riot to maximize impact
  • Taylor’s description of a plan, formulated at least by December 30, to “surround the capital,” followed by Simon’s sustained efforts to open a new front on the North side of it
  • Discussions in advance of executing traitors followed by an assault on Michael Fanone that caused a heart attack
  • By dint of Rodriguez’ damage to a window of the Capitol, a crime of terrorism that can (and Paschall is intent, will) carry a terrorism enhancement

At Tuesday’s hearing, Paschall didn’t seem sure whether they will end up charging Rodriguez in a conspiracy with some of the others (though she said DOJ would likely finalize their decision on that point by October 1). Certainly, it doesn’t seem like local law enforcement in LA is anything but an impediment.

But this network of extremists is a good place to look to understand how the various parts of the riot came together.

“This is not reverse RICO!” Shane Jenkins Gives Away John Pierce’s Game

John Pierce, the trial attorney who is attempting to represent up to 18 January 6 defendants while lying in a COVID ward, seems to have found three kinds of clients for himself (I’ve included a roster below). There are a bunch of Proud Boys and other militia members who might serve as a kind of firewall for Joe Biggs and Enrique Tarrio. There are a handful of people charged with trespassing who have said outlandish things in the past about January 6. And there are three defendants with criminal records accused of assaulting cops. Two of those three, Peter Schwartz and Shane Jenkins, (the other is James McGrew) had hearings today to figure out what to do with their defense attorney who already had too much on his plate before getting COVID.

The hearings didn’t provide much more clarity into what has happened with Pierce. The same unbarred, indicted associate, Ryan Marshall, whom Judge Amit Mehta ordered last week to find a member of the DC bar to show up today appeared, alone in the first hearing and with a Bankruptcy lawyer who is not a member of the DC bar for the second. Marshall revealed they were trying to get an outside attorney to sign a contract to help represent all these defendants. That attorney is not the bankruptcy lawyer though, who just offered to fill in when she heard about the troubles in the news. Mehta asked Marshall about Pierce’s partner, Bainbridge (with whom Marshall purportedly works), but Marshall said he had never met him.

Marshall did admit Pierce is very sick and had spent most of yesterday sleeping. He said Pierce expects to get out in a week, but that was based on Pierce’s own representation, not anything someone with medical expertise said. Marshall said Pierce is not (now?) on a ventilator.

But when it came time to ask what Schwartz wanted to do about this, he revealed Marshall hadn’t spoken to him all week. He claimed this was the first he heard about it. He reeled off a bunch of complaints — a spider bite, old contacts, poor medical care — but in spite of a long, long criminal record, didn’t seem to understand that’s what lawyers are for, to help air those complaints. Nor did he understand that he doesn’t have the uncontested ability to refuse to waive Speedy Trial, particularly not when the bozo lawyer he has chosen to represent him goes AWOL.

Things were a bit different with Shane Jenkins, for whom “Pierce” filed a notice of appearance from the hospital (Marshall explained a paralegal had done it on Pierce’s instructions). Plus, Marshall had at least spoken to Jenkins to reassure him it’s a good idea to hire Pierce even though he’s hospitalized.

After Judge Mehta decided it was prudent to leave Maria Jacobs, the public defender currently representing Jenkins, on the job until someone actually qualified to practice law in DC showed up, Jenkins had his say.

Like Schwartz, he insisted he won’t waive Speedy Trial (as with Schwartz, Mehta waived it for a few weeks). Like Schwartz, he complained about the discovery he had gotten.

But — particularly given Pierce’s earlier claims about wanting to do a Public Authority defense — the specific claims Jenkins made about discovery were genuinely enlightening (these are my live-tweets).

Several questions about discovery. I received cracked disc that no longer works. Edited videos that exclude very important information. If these were used before GJ, that’s deception.

Jenkins claims there was a murder being covered up by DOJ, or suppressed by DOJ. “I’d love to proceed to trial, the facts prove the truth, I look forward to DOJ laying facts on table, full discovery, not interested in waiving BRady. This is not reverse RICO.”

Jenkins apparently claims to believe that the videos of his alleged assaults were edited to hide a murder, apparently committed by the police, on the West Terrace of Capitol. He appears to be claiming that he was retaliating for that murder.

With Ryan Samsel (who wisely fired Pierce in late July), Samsel seemed to have made coached claims about who assaulted him in jail, something that has not yet been publicly confirmed, though the public and totally believable story blames the guards. It’s not surprising, though, that someone who is a trial attorney and not a defense attorney, would encourage his clients to make public claims accusing the government.

But what Jenkins did was interesting precisely because Pierce claimed, when he announced he was going to mount a Public Authority defense, that he needed all the video.

He’s going to get all the video. Every January 6 defendant will get it.

And none of it will show that cops committed a murder on the West Terrace.

But Jenkins at least suggested that he plans to defend himself against assaults clearly shown on video by claiming that the real videos show cops killing peaceful Trump supporters.


Even as that has been going on, however, Pierce has been convincing one after another January 6 defendant to let him represent them. The following list is organized by the date — in bold — when Pierce first filed an appearance for that defendant (I’ll probably update this list as Pierce adds more defendants):

1. Christopher Worrell: Christopher Worrell is a Proud Boy from Florida arrested on March 12. Worrell traveled to DC for the December MAGA protest, where he engaged in confrontational behavior targeting a journalist. He and his girlfriend traveled to DC for January 6 in vans full of Proud Boys paid for by someone else. He was filmed spraying pepper spray at cops during a key confrontation before the police line broke down and the initial assault surged past. Worrell was originally charged for obstruction and trespassing, but later indicted for assault and civil disorder and trespassing (dropping the obstruction charge). He was deemed a danger, in part, because of a 2009 arrest for impersonating a cop involving “intimidating conduct towards a total stranger in service of taking the law into his own hands.” Pierce first attempted to file a notice of appearance on March 18. Robert Jenkins (along with John Kelly, from Pierce’s firm) is co-counsel on the case. Since Pierce joined the team, he has indulged Worrell’s claims that he should not be punished for assaulting a cop, but neither that indulgence nor a focus on Worrell’s non-Hodgkins lymphoma nor an appeal succeeded at winning his client release from pre-trial detention. While he has been hospitalized with COVID, Pierce submitted some filings attempting to get Worrell out of jail because he’s not getting medical care; the most recent filing not only thrice misstated what jail Worrell is in, but also admitted he has refused treatment at least five times.

2. William Pepe: William Pepe is a Proud Boy charged in a conspiracy with Dominic Pezzola and Matthew Greene for breaching the initial lines of defense and, ultimately, the first broken window of the Capitol. Pepe was originally arrested on January 11, though is out on bail. Pierce joined Robert Jenkins on William Pepe’s defense team on March 25. By April, Pierce was planning on filing some non-frivolous motions (to sever his case from Pezzola, to move it out of DC, and to dismiss the obstruction count), but not much has happened since.

3. Paul Rae: Rae is another of Pierce’s Proud Boy defendants and his initial complaint suggested Rae could have been (and could still be) added to the conspiracy indictments against the Proud Boys already charged. He was indicted along with Arthur Jackman for obstruction and trespassing; both tailed Joe Biggs on January 6, entering the building from the East side after the initial breach. Pierce filed to join Robert Jenkins in defending Rae on March 30.

4. Stephanie Baez: On June 9, Pierce filed his appearance for Stephanie Baez. Pierce’s interest in Baez’ case makes a lot of sense. Baez, who was arrested on trespassing charges on June 4, seems to have treated the January 6 insurrection as an opportunity to shop for her own Proud Boy boyfriend. Plus, she’s attractive, unrepentant, and willing to claim there was no violence on January 6. Baez was formally charged with trespassing on August 4.

Victoria White: If I were prosecutors, I’d be taking a closer look at White to try to figure out why John Pierce decided to represent her (if it’s not already clear to them; given the timing, it may simply be because he believed he needed a few women defendants to tell the story he wants to tell). White was detained briefly on January 6 then released, and then arrested on April 8 on civil disorder and trespassing charges. At one point on January 6, she was filmed trying to dissuade other rioters from breaking windows, but then she was filmed close to and then in the Tunnel cheering on some of the worst assault. Pierce filed his notice of appearance in White’s case on June 10. On September 3, White told Judge Faruqui she didn’t want Pierce to represent her anymore.

Ryan Samsel: After consulting with Joe Biggs, Ryan Samsel kicked off the riot by approaching the first barriers and — with several other defendants — knocking over a female cop, giving her a concussion. He was arrested on January 30 and is still being held on his original complaint charging him with assault and civil disorder. He’s obviously a key piece to the investigation and for some time it appeared the government might have been trying to persuade him that the way to minimize his significant exposure (he has an extensive criminal record) would be to cooperate against people like Biggs. But then he was brutally assaulted in jail. Detainees have claimed a guard did it, and given that Samsel injured a cop, that wouldn’t be unheard of. But Samsel seemed to say in a recent hearing that the FBI had concluded it was another detainee. In any case, the assault set off a feeding frenzy among trial attorneys seeking to get a piece of what they imagine will be a huge lawsuit against BOP (as it should be if a guard really did assault him). Samsel is now focused on getting medical care for eye and arm injuries arising from the assault. And if a guard did do this, then it would be a key part of any story Pierce wanted to tell. After that feeding frenzy passed, Pierce filed an appearance on June 14, with Magistrate Judge Zia Faruqui releasing his prior counsel on June 25. Samsel is a perfect defendant for Pierce, though (like Rittenhouse), the man badly needs a serious defense attorney. Update: On July 27, Samsel informed Magistrate Judge Zia Faruqui that he would be retaining new counsel.

5. James McGrew: McGrew was arrested on May 28 for assault, civil disorder, obstruction, and trespassing, largely for some fighting with cops inside the Rotunda. His arrest documents show no ties to militias, though his arrest affidavit did reference a 2012 booking photo. Pierce filed his appearance to represent McGrew on June 16.

Alan Hostetter: John Pierce filed as Hostetter’s attorney on June 24, not long after Hostetter was indicted with five other Three Percenters in a conspiracy indictment paralleling those charging the Oath Keepers and Proud Boys. Hostetter was also active in Southern California’s anti-mask activist community, a key network of January 6 participants. Hostetter and his defendants spoke more explicitly about bringing arms to the riot, and his co-defendant Russell Taylor spoke at the January 5 rally. On August 3, Hostetter replaced Pierce.

6, 7, 8. On June 30, Pierce filed to represent David Lesperance, and James and Casey Cusick. As I laid out here, the FBI arrested the Cusicks, a father and son that run a church, largely via information obtained from Lesperance, their parishioner. They are separately charged (Lesperance, James Cusick, Casey Cusick), all with just trespassing. The night before the riot, father and son posed in front of the Trump Hotel with a fourth person besides Lesperance (though Lesperance likely took the photo).

9. Kenneth Harrelson: On July 1, Pierce filed a notice of appearance for Harrelson, who was first arrested on March 10. Leading up to January 6, Harrelson played a key role in Oath Keepers’ organizing in Florida, particularly meetings organized on GoToMeeting. On the day of the riot, Kelly Meggs had put him in charge of coordinating with state teams. Harrelson was on the East steps of the Capitol with Jason Dolan during the riot, as if waiting for the door to open and The Stack to arrive; with whom he entered the Capitol. With Meggs, Harrelson moved first towards the Senate, then towards Nancy Pelosi’s office. When the FBI searched his house upon his arrest, they found an AR-15 and a handgun, as well as a go-bag with a semi-automatic handgun and survivalist books, including Ted Kaczynski’s writings. Harrelson attempted to delete a slew of his Signal texts, including a video he sent Meggs showing the breach of the East door. Pierce attempted to get Harrelson out on bail by joining in the bail motion of one of his co-defendants, which may either show how little he knows about defense work or how little he cares.

10. Leo Brent Bozell IV: It was, perhaps, predictable that Pierce would add Bozell to his stable of defendants. “Zeeker” Bozell is the scion of a right wing movement family including his father who has made a killing by attacking the so-called liberal media, and his grandfather, who was a speech writer for Joseph McCarthy. Because Bozell was released on personal recognizance there are details of his actions on January 6 that remain unexplained. But he made it to the Senate chamber, and while there, made efforts to prevent CSPAN cameras from continuing to record the proceedings. He was originally arrested on obstruction and trespassing charges on February 12; his indictment added an abetting the destruction of government property charge, the likes of which have been used to threaten a terrorism enhancement against militia members. Pierce joined Bozell’s defense team (thus far it seems David B. Deitch will remain on the team) on July 6.

11. Nate DeGrave: The night before DeGrave’s quasi co-conspirator Josiah Colt pled guilty, July 13, Pierce filed a notice of appearance for Nate DeGrave. DeGrave helped ensure both the East Door and the Senate door remained open.

12. Nathaniel Tuck: On July 19, Pierce filed a notice of appearance for Nathaniel Tuck, the Florida former cop Proud Boy.

13. Kevin Tuck: On July 20, Pierce filed a notice of appearance for Kevin Tuck, Nathaniel’s father and still an active duty cop when he was charged.

14. Peter Schwartz: On July 26, Pierce filed a notice of appearance for Peter Schwartz, the felon out on COVID-release who maced some cops.

15. Jeramiah Caplinger: On July 26, Pierce filed a notice of appearance for Jeramiah Caplinger, who drove from Michigan and carried a flag on a tree branch through the Capitol.

Deborah Lee: On August 23, Pierce filed a notice of appearance for Deborah Lee, who was arrested on trespass charges months after her friend Michael Rusyn. On September 2, Lee chose to be represented by public defender Cara Halverson.

16. Shane Jenkins: On August 25, Pierce colleague Ryan Marshall showed up at a status hearing for Jenkins and claimed a notice of appearance for Pierce had been filed the night before. In that same hearing, he revealed that Pierce was in a hospital with COVID, even claiming he was on a ventilator and not responsive. The notice of appearance was filed, using Pierce’s electronic signature, on August 30, just as DOJ started sending out notices that all Pierce cases were on hold awaiting signs of life. Jenkins is a felon accused of bringing a tomahawk to the Capitol and participating in the Lower West Tunnel assaults on cops.

At Lunchtime on March 15, 2017, Joshua Schulte Went Home and Got His Passport[s]

“Whoever committed the leak” of CIA hacking tools Joshua Schulte stands accused of, Schulte said in his first FBI interview on March 15, 2017, “was guilty of espionage and deserved to be executed.”

Schulte submitted the 302 from that interview to accompany a motion to suppress the initial search of his cell phone (remember, he went pro se last month, so he’s formulating this defense himself, and this challenge not one the supremely competent Sabrina Shroff mounted when she was in charge of his defense). Schulte based his motion to suppress on a claim that the FBI used a subpoena, not a warrant, to authorize the seizure of his phone.

Schulte’s challenge is, from a legal standpoint, transparent garbage. He claims that the FBI seized his phone with a subpoena. That’s not what the record he submits shows. It shows, instead, that the FBI handed him a subpoena for both grand jury testimony and his phone, then walked back to his apartment with him, then executed a search warrant that included his electronic devices among the items to be searched.

[Schulte, referred to as KP, for either Kinetic Panda or Kinetic Piranha] was presented with a subpoena to appear at a grand jury hearing, scheduled to occur on March 17, 2017. KP was also served with a subpoena, authorizing the FBI to seize KP’s phone. From PERSHING SQUARE, the interviewing Agents and KP walked to KP’s residence, 200 East 39th Street, Apartment 8C, New York, New York, where FBI personnel executed a search warrant.

[snip]

SSA HUI thereafter served KP with a subpoena to appear at a grand jury hearing on March 17, 2017 and a subpoena that authorized the FBI to seize KP’s phone. SSA HUI also stated the FBI would soon execute a search warrant at KP’s residence. KP read the documents and stated he did not know what it all meant. KP was told by the interview Agents that he had every right to seek legal counsel. KP was also told by the interview Agents that he could return to the residence and be present during the search. KP voluntarily agreed to return to the residence and provide access to the search team.

The FBI obtained two warrants to search items including Schulte’s electronic devices first one permitting a covert search and then a second one that permitted that overt search. He knew of the warrant before the search of the phone occurred.

Which means the other details of the 302, which don’t help Schulte but which provide new insight on him and the investigation, are the most interesting details of this new release.

Consider his comment that the leaker should be executed. In the interview, he places blame on “Karen,” for lax security. “KP stated he didn’t want to place blame on anyone in terms of being negligent, but her approach to security was lax.” Trial testimony makes it clear this is a reference to the second-level supervisor he blamed for being disciplined at CIA. So from the very first moment, he seemed to frame Karen as a target of a ruthless Espionage investigation. He would continue from jail, suggesting the “Information War” he launched from a jail cell was actually continuous with an earlier effort to blame Karen, contrary to what Schulte argued at his first trial.

Just as interesting, the comment claiming such a leaker would be guilty of espionage matches something he said to his co-worker, “Jeremy Weber” (whom he also tried to blame for the leak) in conversations about Edward Snowden.

Q. You don’t remember him ever discussing leakers with you?

A. I, I do remember talking about leakers.

Q. Okay. What do you recall?

A. There was discussion around Snowden.

Q. Okay. And?

A. Schulte felt that Snowden was a — had betrayed his country.

Q. That doesn’t, you know, he seems to have strong opinions on everything. You sure he didn’t say more?

A. He probably would have call him a traitor. Said he should be executed for sure. I don’t remember specific verbiage, but he did express his typical strong opinions.

Schulte made those comments to Weber, even though the government claims to have chat logs in which Schulte said that Snowden, unlike Chelsea Manning, didn’t endanger anyone with his leaks.

More recently, Schulte has been fighting to have a home server, including a selection of Snowden files on it, returned to him.

But I’m particularly interested in the comments Schulte made about his planned trip to Cancun.

KP advised that he planned to travel to Cancun, Mexico on Thursday, March 16, 2017 with his brother who lived in Dallas, Texas. KP stated he has three younger brothers who all lived in Texas. KP had discussed moving back to Texas at some point and running a business with his brother in Dallas. KP stated the trip cost him approximately $1,200.00 and they planned to stay at a resort. KP stated he had no plans to meet up with anyone other than his brother during the trip, and he planned to return to the U.S. on March 20, 2017. KP stated he and his brother wanted to take a trip to either Cancun or Denver, Colorado, but they ultimately chose Cancun.

KP stated he returned to his residence during lunchtime earlier in the day to retrieve his passport so he could check-in online. KP said his passport was currently located inside his backpack, which was on the floor next to KP at PERSHING SQUARE. KP said he printed out his travel documents earlier. (Agent Note. KP reached inside his backpack and showed SA DONALDSON the documents he printed for the Cancun trip.)

KP said he understood how his potential travel abroad could cause angst at high levels of government; however, KP said if he was guilty, then he would have already left the country. KP stated he booked the Cancun trip prior to the WIKILEAKS publication. [my emphasis]

According to the trial interview of Robert Evanchec, one of the agents who conducted this investigation, they already knew of this trip when then went to interview him (indeed, they included it in the warrant affidavits). “[W]e learned that within a week’s time he was planning to travel, for the second time in his life, outside the United States.” As described in that testimony, it was why they chose to interview Schulte so early in the investigation.

Q. I think you said earlier that early in the investigation, you learned that the defendant was traveling or planning to travel?

A. That’s correct.

Q. Where was he planning to travel to?

A. To Cancun, Mexico.

Q. When was the defendant scheduled to travel?

A. He was scheduled to depart on March 16, 2017.

Q. How, if at all, did that impact your investigation?

A. It accelerated our need to quickly understand what this defendant had done, and what his intentions were in traveling to Cancun. As I said earlier, it was only the second time in his life that he left the United States. And certainly his departure this close to the WikiLeaks release was of concern to us, and necessitated that we escalate our investigation and look into other ways to find out why he was traveling.

Q. What did you do as a result of that?

A. As a result of that, we had planned and actually ended up interviewing the subject Mr. Schulte.

While the 302 doesn’t record it, according to Evanchec’s testimony, after telling the FBI he had gone home at lunch to retrieve “his passport,” Schulte then told FBI Agents his diplomatic passport was back at his apartment.

Q. Did the defendant say anything about a diplomatic passport at the residence?

A. He did.

Q. What did he say about that?

A. He indicated that he had retained a diplomatic passport from his time at the CIA that he had not returned that was inside of his residence.

Schulte accompanied the FBI back to the apartment, let them in, hung around for a bit, then returned to Bloomberg, staying longer than he told them he would.

While he was at Bloomberg, FBI got far enough in their search of Schulte’s apartment to determine that the diplomatic passport was not there.

Q. You testified that the defendant told you that that diplomatic passport was in his apartment; is that correct?

A. That’s correct, sir.

Q. Was the diplomatic passport found in his apartment?

A. It was not.

When Schulte didn’t return when he said he would, Evanchec intercepted Schulte again as he was about to leave Bloomberg. The 302 redacts the reference to the FBI telling him they did not find his diplomatic passport at the apartment.

As Evanchec testified, when they intercepted Schulte on his way out, he admitted that he had stashed his diplo passport at his work station at Bloomberg, and they all went to his workstation and got both passports.

A. I believe it was just after midnight, around 12:15 p.m. We observed him again in the lobby of the Bloomberg building at 120 Park Avenue.

Q. Did you approach him?

A. We did.

Q. Who was with you at that time?

A. At the time it was myself, Special Agent Gary Ido, and Special Agent John Summers.

Q. What, if anything, did you say to the defendant at that time?

A. We indicated to him that we had obtained classified information or found classified information in his residence. And we also indicated that we had not recovered his diplomatic passport.

Q. What, if anything, did the defendant say in response?

A. He indicated the diplomatic passport was actually in his office at Bloomberg.

Q. Did he go anywhere after that?

A. Yes, he escorted us along with a security official from Bloomberg to his desk where we took possession of the diplomatic passport.

Q. Did you take possession of any other passport at that time?

A. Yes.

Q. What passport?

A. His personal passport.

Now, virtually all of this has previously been made public (presumably, Evanchec reviewed the 302s before testifying at the trial).

What’s new is that, at least per Schulte, he went home in the middle of the day to get his passport(s). His excuse for doing so might make sense — he was trying to check in online, which you can only do a day in advance. He might have been able to check in from his house, at lunch, unless he tried and discovered he could only check in 24-hours before his flight (he was scheduled to leave work before the end of the day on March 16).

Except none of that would require Schulte to bring two passports back to work, his regular passport and his diplomatic passport (the latter of which he should have but did not turn in when he left the CIA the previous November). Indeed, given the scrutiny Schulte had to have known he would be under, flying under the diplo passport would provoke alarm all by itself, so presumably he was checking in with his regular passport.

What I find particularly interesting, however, is the timing.

That’s because sometime between 10:50 AM and 3:30 PM that same day, Trump said the following in a recorded interview with Tucker Carlson, leaking classified information that would have alerted Schulte, if he had a way to hear it, that the government had determined that “a lot of things were taken” from the CIA under Obama, not under Trump.

Trump: Because I don’t want to do anything that’s going to violate any strength of an agency. You know we have enough problems. And by the way, with the CIA, I just want people to know, the CIA was hacked and a lot of things taken. That was during the Obama years. That was not during, us, that was during the Obama situation. Mike Pompeo is there now, doing a fantastic job. But we will be submitting certain things, and I will be perhaps speaking about this next week. But it’s right now before the Committee, and I think I want to leave it at that. I have a lot of confidence in the committee.

If Schulte had some way of seeing this, then, he would have been alerted that FBI had learned enough to know that he was a likely culprit for the leak.

Around the time Trump said this, Schulte (by his own telling) left work and got the passport he needed to check in for his second-ever flight out of the country — he reserved the flight on February 27. He never showed which passport he had in his bag to the FBI Agents, so it’s possible he also got the diplo passport he shouldn’t have even had, much less needed to check in for a flight.

For what it’s worth, it doesn’t seem possible that Schulte would have gotten advance notice he was the suspect for the leak from Trump’s blabbing to Tucker Carlson. I’ve not found any evidence that that interview played live; rather, it appears to have first aired at 9PM, by which point Schulte would have already been intercepted by FBI Agents in the Bloomberg lobby as he left from work.

But the 302 shows that, at around the same time that Trump was blabbing non-public details of the investigation into Schulte to a cable TV personality, Schulte left work and got his passport, possibly even the diplomatic passport he shouldn’t have had.

image_print