Ron Wyden Makes It Clear Gina Haspel Pushed for Torture to Continue in 2005

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Among the many, many damning details of Gina Haspel’s confirmation hearing, one sticks out. Ron Wyden asked her whether, during the 2005 to 2007 period, whether she ever asked for the torture program to be continued or expanded. She didn’t answer. Instead, she dodged:

Haspel: Like all of us who were in the counterterrorism center and working at CIA in those years after 9/11, we all believed in our work, we were committed, we had been charged with making sure the country wasn’t attacked again. And we had been informed that the techniques in CIA’s program were legal and authorized by the highest legal authority in our country and also the President. So I believe, I and my colleagues in the counterterrorism center were working as hard as we could with the tools that we were given to make sure that we were successful in our mission.

Wyden: My time is short and that, respectfully, is not responsive to the question. That was a period where the agency was capturing fewer detainees, waterboarding was no longer approved, and especially in light of that Washington Post story, I would really like to have on the record whether you ever called for the program to be continued, which it sure sounds to me like your answer suggested. You said, well we were doing our job it ought to be continued.

This makes it clear that Haspel was involved in reauthorizing torture in 2005, in a process that was as rife with lies to DOJ as the original authorization process had been.

It also makes Haspel directly responsible for the torture of people like Abu Farj al-Lbi, which the torture report describes this way.

On May 2005, one day after al-Libi’s arrival at DETENTION SITE BLACK, CIA interrogators received CIA Headquarters approval for the use of the CIA’s enhanced interrogation techniques on Abu Faraj al-Libi. CIA interrogators began using the CIA’s enhanced interrogation techniques on Abu Faraj al-Libi on May 28, 2005, two days before the OLC issued its memorandum analyzing whether the techniques violated U.S. obligations under the Convention Against Torture.891

The CIA interrogated Abu Faraj al-Libi for more than a month using tlie CIA’s enhanced interrogation techniques. On a number of occasions, CIA interrogators applied the CIA’s enhanced interrogation techniques to Abu Faraj al-Libi when he complained of a loss of hearing,repeatedly telling him to stop pretending he could not hear well.892 Although the interrogators indicated that they believed al-Libi’s complaint was an interrogation resistance technique, Abu Faraj al-Libi was fitted for a hearing aid after his transfer to U.S. military custody at Guantanamo Bay in 2006.893 Despite the repeated and extensive use of the CIA’s enhanced interrogation techniques on AbuFaraj al-Libi, CIA Headquarters continued to insist throughout the summer and fall of 2005 that Abu Faraj al-Libi was withholding information and pressed for the renewed use of the techniques. The use of the CIA’s enhanced interrogation techniques against Abu Faraj al-Libi was eventually discontinued because CIA officers stated that they had no intelligence to demonstrate that Abu Faraj al-Libi continued to withhold information, and because CIA medical officers expressed concern that additional use of the CIA’s enhanced interrogation techniques “may come with unacceptable medical or psychological risks.894 After the discontinuation of the CIA’s enhanced interrogation techniques, the CIA asked Abu Faraj al-Libi about UBL facilitator Abu Ahmad al-Kuwaiti for the first time.895 Abu Faraj al-Libi denied knowledge of al-Kuwaiti.896

That Haspel appears to have pushed to use torture with al-Libi is significant for multiple reasons. First, as noted, the CIA tortured al-Libi immediately after taking him into custody. There was no show of seeing whether he would cooperate. The CIA used his claim of hearing problems — a claim that turned out to be true — as an excuse to do more torture. CIA apparently kept asking to resume torture with him, even though it didn’t work.

Really importantly for the legacy of the torture program, al-Libi not only didn’t reveal the identity of Abu Ahmad al-Kuwaiti while he was being tortured, he continued to lie about it after he was tortured.

But Haspel’s involvement in this might be most problematic given the timing of it. As noted, the CIA asked for custody of al-Libi while they were still getting torture reauthorized; the first two Bradbury memos, authorizing torture and then their use of them in combination, were approved on May 10. As further noted, however, CIA started torturing al-Libi before the last Bradbury memo was signed on May 30. We know from Jim Comey’s memos about that process that DOJ was pushed very hard to approve them. Critically important, however, is that Alberto Gonzales made a case against reapproving torture at the May 31 principals meeting. In spite of DOJ concerns, the principals committee reapproved all the techniques.

That’s because CIA had already started torturing al-Libi. Effectively, CIA (so, presumably, Haspel, among others), rushed to torture al-Libi so that the government would have no choice but to reauthorize it.

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The Sekulow Questions, Part Five: Attempting a Cover-Up by Firing Comey

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In this series, I have been showing a framework for the investigation that the Mueller questions, as imagined by Jay Sekulow, maps out. Thus far I have shown:

  • Russians, led by the Aras Agalarov and his son, cultivated Trump for years by dangling two things: real estate deals and close ties with Vladimir Putin.
  • During the election, the Russians and Trump appear to have danced towards a quid pro quo agreement, with the Russians offering dirt on Hillary Clinton in exchange for a commitment to sanctions relief, with some policy considerations thrown in.
  • During the transition period, Trump’s team took a series of actions that moved towards consummating the deal they had made with Russia, both in terms of policy concessions, particularly sanctions relief, and funding from Russian sources that could only be tapped if sanctions were lifted. The Trump team took measures to keep those actions secret.
  • Starting in January 2017, Trump came to learn that FBI was investigating Mike Flynn. His real reasons for firing Flynn remain unreported, but it appears he had some concerns that the investigation into Flynn would expose him.

This post lays out the questions on obstruction that lead up to Comey’s firing on May 9, 2017.

February 14, 2017: What was the purpose of your Feb. 14, 2017, meeting with Mr. Comey, and what was said?

On February 13, Trump fired Mike Flynn. The explanation he gave was one of the concerns Sally Yates had given to Don McGahn when she told him about the interview, that Flynn had lied to Mike Pence about having discussed sanctions relief with Sergey Kislyak on December 29, 2016. Except, coming from Trump, that excuse makes no sense, both because he had already shown he didn’t care about the counterintelligence implications of that lie by including Flynn in the January 28 phone call with Putin and other sensitive meetings. But also because at least seven people in the White House knew what occurred in Flynn’s calls, and Pence probably did too.

Against that backdrop, the next day, Trump had Jim Comey stay late after an oval office meeting so he could ask him to drop the investigation into Flynn. Leading up to this meeting, Trump had already:

  • Asked Comey to investigate the pee tape allegations so he could exonerate the President
  • Asked if FBI leaks
  • Asked if Comey was loyal shortly after asking him, for the third time, if he wanted to keep his job
  • Claimed he distrusted Flynn’s judgment because he had delayed telling Trump about a congratulatory call from Putin

After Trump asked everyone in the meeting to leave him and Comey alone, both Jeff Sessions and Jared Kushner lingered.

While the description of this meeting usually focuses on the Flynn discussion, according to Comey’s discussion, it also focused closely on leaks, which shows how Trump linked the two in his mind.

Here’s what Comey claims Trump said about Flynn:

He began by saying he wanted to “talk about Mike Flynn.” He then said that, although Flynn “hadn’t done anything wrong” in his call with the Russians (a point he made at least two more times in the conversation), he had to let him go because he misled the Vice President, whom he described as “a good guy.” He explained that he just couldn’t have Flynn misleading the vice President and, in any event, he had other concerns about Flynn, and had a great guy coming in, so he had to let Flynn go.

[a discussion of Sean Spicer’s presser explaining the firing and another about the leaks of his calls to Mexican and Australian leaders]

He then referred at length to the leaks relating to Mike Flynn’s call with the Russians, which he stressed was not wrong in any way (“he made lots of calls”), but that the leaks were terrible.

[Comey’s agreement with Trump about the problem with leaks, but also his explanation that the leaks may not have been FBI; Reince Priebus tries to interrupt but Trump sends him away for a minute or two]

He then returned to the topic of Mike Flynn, saying that Flynn is a good guy, and has been through a lot. He misled the Vice President but he didn’t do anything wrong on the call. He said, “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.” I replied by saying, “I agree he is a good guy,” but said no more.

In addition to providing Trump an opportunity to rebut Comey, asking this question might aim to understand the real reason Trump fired Flynn.

March 2, 2017: What did you think and do regarding the recusal of Mr. Sessions?  What efforts did you make to try to get him to change his mind? Did you discuss whether Mr. Sessions would protect you, and reference past attorneys general?

On March 2, citing consultations with senior department officials, Sessions recused himself “from any existing or future investigations of any matters related in any way to the campaigns for President of the United States,” while noting that, “This announcement should not be interpreted as confirmation of the existence of any investigation or suggestive of the scope of any such investigation.” At that point, Dana Boente became Acting Attorney General for the investigation.

Note that this question isn’t just about Trump’s response to Sessions’ recusal — it’s also about what he did in advance of it. That’s likely because even before Sessions recused, Trump got Don McGahn to try to pressure the Attorney General not to do so. He also called Comey the night before and “talked about Sessions a bit.” When Sessions ultimately did recuse, Trump had a blow-up in which he expressed a belief that Attorneys General should protect their president.

[T]he president erupted in anger in front of numerous White House officials, saying he needed his attorney general to protect him. Mr. Trump said he had expected his top law enforcement official to safeguard him the way he believed Robert F. Kennedy, as attorney general, had done for his brother John F. Kennedy and Eric H. Holder Jr. had for Barack Obama.

Mr. Trump then asked, “Where’s my Roy Cohn?”

In the days after the Sessions recusal, Trump also kicked off the year-long panic about being wiretapped.

On Thursday, Jeff Sessions recused from the election-related parts of this investigation. In response, Trump went on a rant (inside the White House) reported to be as angry as any since he became President. The next morning, Trump responded to a Breitbart article alleging a coup by making accusations that suggest any wiretaps involved in this investigation would be improper. Having reframed wiretaps that would be targeted at Russian spies as illegitimate, Trump then invited Nunes to explore any surveillance of campaign officials, even that not directly tied to Trump himself.

And Nunes obliged.

Don McGahn and Jeff Sessions, among others, have already provided their side of this story to Mueller’s team.

March 2 to March 20, 2017: What did you know about the F.B.I.’s investigation into Mr. Flynn and Russia in the days leading up to Mr. Comey’s testimony on March 20, 2017?

As Sekulow has recorded Mueller’s question, the special counsel wants to know what Trump already knew of the investigation into Mike Flynn before Comey publicly confirmed it in Congressional testimony. This may be a baseline question, to measure how much of Trump’s response was a reaction to the investigation becoming public.

But there are other things that went down in the weeks leading up to Comey’s testimony. Devin Nunes had already made considerable efforts to undermine the investigation; he would have been briefed on the investigation on March 2 (see footnote 75), the same day as Sessions recused.Trump went into a panic on March 4, just days after Sessions recusal, about being wiretapped; I’m wondering if there’s any evidence that Trump or Steven Bannon seeded the Breitbart story that kicked off the claim of a coup against Trump. Also of note is Don McGahn’s delay in conveying the records retention request about the investigation to the White House, even as Sean Spicer conducted a device search to learn who was using encrypted messengers.

March 20, 2017: What did you do in reaction to the March 20 testimony? Describe your contacts with intelligence officials.

On March 20, in testimony to the House Intelligence Committee, Comey publicly confirmed the counterintelligence investigation into Trump’s campaign.

I have been authorized by the Department of Justice to confirm that the FBI, as part of our counterintelligence mission, is investigating the Russian government’s efforts to interfere in the 2016 presidential election and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia’s efforts. As with any counterintelligence investigation, this will also include an assessment of whether any crimes were committed.

In addition to questions about the investigation (including the revelation that FBI had not briefed the Gang of Eight on it until recently; we now know the briefing took place the day Jeff Sessions recused which suggests FBI avoided letting both Flynn and Sessions know details of it), Republicans used the hearing to delegitimize unmasking and the IC conclusion that Putin had affirmatively supported Trump.

Sekulow’s questions (or NYT’s rendition of them) lump the hearing, at which Admiral Mike Rogers also testified, in with Trump’s pressure on his spooks to issue a statement that he wasn’t under investigation. Two days after the hearing, Trump pressured Mike Pompeo and Dan Coats to intervene with Comey to stop the investigation.

It’s possible that the term “intelligence officials” includes HPSCI Chair Devin Nunes. On March 21, Nunes made his nighttime trip to the White House to accelerate the unmasking panic. Significantly, the panic didn’t just pertain to Flynn’s conversations with Sergey Kislyak; it also focused on the revelation of Mohammed bin Zayed al Nahyan’s secret trip to New York and probably other conversations with the Middle Eastern partners that have become part of this scandal.

The day after Nunes’ nighttime trip, Trump called Coats and Rogers (and probably Pompeo) and asked them to publicly deny any evidence of a conspiracy between Trump’s campaign and Russia; NSA documented the call to Rogers.

It’s now clear that the calls Nunes complained about being unmasked actually are evidence of a conspiracy (and as such, they probably provided an easy roadmap for Mueller to find the non-Russian conversations).

March 30, 2017: What was the purpose of your call to Mr. Comey on March 30?

On March 30, Trump called Comey on official phone lines and asked him to exonerate him on the Russia investigation. According to Comey, the conversation included the following:

He then said he was trying to run the country and the cloud of this Russia business was making that difficult. He said he thinks he would have won the health care vote but for the cloud. He then went on at great length, explaining that he has nothing to do with Russia (has a letter from the largest law firm in DC saying he has gotten no income from Russia). was not involved with hookers in Russia (can you imagine me, hookers? I have a beautiful wife, and it has been very painful). is bringing a personal lawsuit against Christopher Steele, always advised people to assume they were being recorded in Russia. has accounts now from those who travelled with him to Miss Universe pageant that he didn’t do anything, etc.

He asked what he could do to lift the cloud. I explained that we were running it down as quickly as possible and that there would be great benefit, if we didn’t find anything, to our Good Housekeeping seal of approval, but we had to do our work. He agreed, but then returned to the problems this was causing him, went on at great length about how bad he was for Russia because of his commitment to more oil and more nukes (ours are 40 years old).

He said something about the hearing last week. I responded by telling him I wasn’t there as a volunteer and he asked who was driving that, was it Nunes who wanted it? I said all the leadership wanted to know what was going on and mentioned that Grassley had even held up the DAG nominee to demand information. I said we had briefed the leadership on exactly what we were doing and who we were investigating.

I reminded him that I had told him we weren’t investigating him and that I had told the Congressional leadership the same thing. He said it would be great if that could get out and several times asked me to find a way to get that out.

He talked about the guy he read about in the Washington Post today (NOTE: I think he meant Sergei Millian) and said he didn’t know him at all. He said that if there was “some satellite” (NOTE: I took this to mean some associate of his or his campaign) that did something, it would be good to find that out, but that he hadn’t done anything and hoped I would find a way to get out that we weren’t investigating him.

Trump also raised “McCabe thing,” yet another apparent attempt to tie the retention of McCabe to public exoneration from Comey.

Given the news that Sergei Millian had been pitching George Papadopoulos on a Trump Tower deal in the post-election period, I wonder whether Trump’s invocation of him in conjunction with “some satellite” is a reference to Papadopoulos, who had already been interviewed twice by this time. Nunes would have learned of his inclusion in the investigation in the March 2 CI briefing.

On top of the clear evidence that this call represented a (well-documented, including a contemporaneous call to Dana Boente) effort to quash the investigation and get public exoneration, the conversation as presented by Comey also includes several bogus statements designed to exonerate him. For example, Millian had actually worked with Trump in past years selling condos to rich Russians. Trump never did sue Steele (Michael Cohen sued BuzzFeed and Fusion early this year, but he dropped it in the wake of the FBI raid on him). And the March 8 letter from Morgan Lewis certifying he didn’t get income from Russia is unrelated to whether he has been utterly reliant on investment from Russia (to say nothing of the huge sums raised from Russian oligarchs for his inauguration). In other words, like the earlier false claim that Trump hadn’t stayed overnight in Moscow during the Miss Universe pageant and therefore couldn’t have been compromised, even at this point, Trump’s attempts to persuade the FBI he was innocent were based off false claims.

March 30, 2017: Flynn asks for immunity

Mike Flynn first asked Congress for immunity on March 30, 2017, with Trump backing the effort in a tweet.

A later question deals with this topic — and suggests Trump may have contacted Flynn directly about immunity at this time, but that contact is not public, if it occurred.

April 11, 2017: What was the purpose of your call to Mr. Comey on April 11, 2017?

At 8:26AM on April 11, Comey returned a call to Trump. Trump asked again for Comey to lift the cloud on him.

He said he was following up to see if I did what he had asked last time–getting out that he personally is not under investigation. I relied that I had passed the request to the Acting AG and had not heard back from him. He spoke for a bit about why it was so important. He is trying to do work for the country, visit with foreign leaders, and any cloud, even a little cloud gets in the way of that. They keep bringing up the Russia thing as an excuse for losing the election.

[snip]

He then added, “Because I have been very loyal to you, very loyal, we had that thing, you know.”

[snip]

He then said that I was doing a great job and wished me well.

April 11, 2017: What was the purpose of your April 11, 2017, statement to Maria Bartiromo?

On April 12, Fox Business News broadcast an interview with Maria Bartiromo (Mueller must know it was recorded on April 11, so presumably after the call with Comey). There are three key aspects of the interview. First, in the context of Trump’s failures to staff his agencies, Bartiromo asks why Comey is still around [note, I bet in Hope Hicks’ several days of interviews, they asked her if these questions were planted]. Given public reports, Trump may have already been thinking about firing Comey, though Steve Bannon, Reince Priebus, and Don McGahn staved off the firing for weeks.

TRUMP:  I wish it would be explained better, the obstructionist nature, though, because a lot of times I’ll say why doesn’t so and so have people under him or her?

The reason is because we can’t get them approved.

BARTIROMO:  Well, people are still wondering, though, they’re scratching their heads, right, so many Obama-era staffers are still here.

For example, was it a mistake not to ask Jim Comey to step down from the FBI at the outset of your presidency?

Is it too late now to ask him to step down?

TRUMP:  No, it’s not too late, but, you know, I have confidence in him.  We’ll see what happens.  You know, it’s going to be interesting.

On the same day he had asked Comey to publicly state he wasn’t being interviewed, Trump said he still had confidence in Comey, even while suggesting a lot of other people were angling for the job (something he had also said in an earlier exchange with Comey).  Trump immediately pivoted to claiming Comey had kept Hillary from being charged.

TRUMP: But, you know, we have to just — look, I have so many people that want to come into this administration.  They’re so excited about this administration and what’s happening — bankers, law enforcement — everybody wants to come into this administration.  Don’t forget, when Jim Comey came out, he saved Hillary Clinton.  People don’t realize that.  He saved her life, because — I call it Comey [one].  And I joke about it a little bit.

When he was reading those charges, she was guilty on every charge.  And then he said, she was essentially OK.  But he — she wasn’t OK, because she was guilty on every charge.

And then you had two and then you had three.

But Hillary Clinton won — or Comey won.  She was guilty on every charge.

BARTIROMO:  Yes.

TRUMP:  So Director Comey…

BARTIROMO:  Well, that’s (INAUDIBLE)…

TRUMP:  No, I’m just saying…

BARTIROMO:  (INAUDIBLE)?

TRUMP:  Well, because I want to give everybody a good, fair chance.  Director Comey was very, very good to Hillary Clinton, that I can tell you.  If he weren’t, she would be, right now, going to trial.

From there, Bartiromo asks Trump why President Obama had changed the rules on sharing EO 12333 data. Trump suggests it is so his administration could be spied on, using the Susan Rice unmasking pseudo scandal as shorthand for spying on his team.

BARTIROMO:  Mr. President, just a final question for you.

In the last weeks of the Obama presidency, he changed all the rules in terms of the intelligence agencies, allowing them to share raw data.

TRUMP:  Terrible.

BARTIROMO:  Why do you think he did this?

TRUMP:  Well, I’m going to let you figure that one out.  But it’s so obvious.  When you look at Susan Rice and what’s going on, and so many people are coming up to me and apologizing now.  They’re saying you know, you were right when you said that.

Perhaps I didn’t know how right I was, because nobody knew the extent of it.

Undoubtedly, Mueller wants to know whether these comments relate to his comments to Comey (and, as I suggested, Hope Hicks may have helped elucidate that). The invocation of Hillary sets up one rationale for firing Comey, but one that contradicts with the official reason.

But the conversation also reflects Trump’s consistent panic that his actions (and those of his aides) will be captured by wiretaps.

May 3, 2017: What did you think and do about Mr. Comey’s May 3, 2017, testimony?

On May 3, Comey testified to the Senate Judiciary Committee. It covered leaks (including whether he had ever authorized any, a question implicated in the Andrew McCabe firing), and the hacked email raising questions about whether Lynch could investigate Hillary. Comey described his actions in the Hillary investigation at length. This testimony would be cited by Rod Rosenstein in his letter supporting the firing of Comey. In addition, there were a number of questions about the Russia investigation, including questions focused on Trump, that would have driven Trump nuts.

Along with getting a reaction to the differences between what Comey said in testimony and Trump’s own version (which by this point he had shared several times), Mueller likely wants to know what Trump thinks of Comey’s claim that FBI treated the Russian investigation just like the Hillary one.

With respect to the Russian investigation, we treated it like we did with the Clinton investigation. We didn’t say a word about it until months into it and then the only thing we’ve confirmed so far about this is the same thing with the Clinton investigation. That we are investigating. And I would expect, we’re not going to say another peep about it until we’re done. And I don’t know what will be said when we’re done, but that’s the way we handled the Clinton investigation as well.

In a series of questions that were likely developed in conjunction with Trump, Lindsey Graham asked whether Comey stood by his earlier claim that there was an active investigation.

GRAHAM: Did you ever talk to Sally Yates about her concerns about General Flynn being compromised?

COMEY: I did, I don’t whether I can talk about it in this forum. But the answer is yes.

GRAHAM: That she had concerns about General Flynn and she expressed those concerns to you?

COMEY: Correct.

GRAHAM: We’ll talk about that later. Do you stand by your house testimony of March 20 that there was no surveillance of the Trump campaign that you’re aware of?

COMEY: Correct.

GRAHAM: You would know about it if they were, is that correct?

COMEY: I think so, yes.

GRAHAM: OK, Carter Page; was there a FISA warrant issued regarding Carter Page’s activity with the Russians.

COMEY: I can’t answer that here.

GRAHAM: Did you consider Carter page a agent of the campaign?

COMEY: Same answer, I can’t answer that here.

GRAHAM: OK. Do you stand by your testimony that there is an active investigation counterintelligence investigation regarding Trump campaign individuals in the Russian government as to whether not to collaborate? You said that in March…

COMEY: To see if there was any coordination between the Russian effort and peoples…

GRAHAM: Is that still going on?

COMEY: Yes.

GRAHAM: OK. So nothing’s changed. You stand by those two statements?

Curiously (not least because of certain investigative dates), Sheldon Whitehouse asked some pointed questions about whether Comey could reveal if an investigation was being starved by inaction.

WHITEHOUSE: Let’s say you’ve got a hypothetically, a RICO investigation and it has to go through procedures within the department necessary to allow a RICO investigation proceed if none of those have ever been invoked or implicated that would send a signal that maybe not much effort has been dedicated to it.

Would that be a legitimate question to ask? Have these — again, you’d have to know that it was a RICO investigation. But assuming that we knew that that was the case with those staging elements as an investigation moves forward and the internal department approvals be appropriate for us to ask about and you to answer about?

COMEY: Yes, that’s a harder question. I’m not sure it would be appropriate to answer it because it would give away what we were looking at potentially.

WHITEHOUSE: Would it be appropriate to ask if — whether any — any witnesses have been interviewed or whether any documents have been obtained pursuant to the investigation?

Richard Blumenthal asked Comey whether he could rule Trump in or out as a target of the investigation and specifically within that context, suggested appointing a special counsel (Patrick Leahy had already made the suggestion for a special counsel).

BLUMENTHAL: Have you — have you ruled out the president of the United States?

COMEY: I don’t — I don’t want people to over interpret this answer, I’m not going to comment on anyone in particular, because that puts me down a slope of — because if I say no to that then I have to answer succeeding questions. So what we’ve done is brief the chair and ranking on who the U.S. persons are that we’ve opened investigations on. And that’s — that’s as far as we’re going to go, at this point.

BLUMENTHAL: But as a former prosecutor, you know that when there’s an investigation into several potentially culpable individuals, the evidence from those individuals and the investigation can lead to others, correct?

COMEY: Correct. We’re always open-minded about — and we follow the evidence wherever it takes us.

BLUMENTHAL: So potentially, the president of the United States could be a target of your ongoing investigation into the Trump campaign’s involvement with Russian interference in our election, correct?

COMEY: I just worry — I don’t want to answer that — that — that seems to be unfair speculation. We will follow the evidence, we’ll try and find as much as we can and we’ll follow the evidence wherever it leads.

BLUMENTHAL: Wouldn’t this situation be ideal for the appointment of a special prosecutor, an independent counsel, in light of the fact that the attorney general has recused himself and, so far as your answers indicate today, no one has been ruled out publicly in your ongoing investigation. I understand the reasons that you want to avoid ruling out anyone publicly. But for exactly that reason, because of the appearance of a potential conflict of interest, isn’t this situation absolutely crying out for a special prosecutor?

Chuck Grassley asked Comey the first questions about what would become the year-long focus on Christopher Steele’s involvement in the FISA application on Carter Page.

GRASSLEY: On — on March 6, I wrote to you asking about the FBI’s relationship with the author of the trip — Trump-Russia dossier Christopher Steele. Most of these questions have not been answered, so I’m going to ask them now. Prior to the bureau launching the investigation of alleged ties between the Trump campaign and Russia, did anyone from the FBI have interactions with Mr. Steele regarding the issue?

COMEY: That’s not a question that I can answer in this forum. As you know, I — I briefed you privately on this and if there’s more that’s necessary then I’d be happy to do it privately.

GRASSLEY: Have you ever represented to a judge that the FBI had interaction with Mr. Steele whether by name or not regarding alleged ties between the Trump campaign and Russia prior to the Bureau launching its investigation of the matter?

COMEY: I have to give you the same answer Mr. Chairman.

In a second round, Whitehouse asked about a Trump tweet suggesting Comey had given Hillary a free pass.

WHITEHOUSE: Thank you.

A couple of quick matters, for starters. Did you give Hillary Clinton quote, “a free pass for many bad deeds?” There was a tweet to that effect from the president.

COMEY: Oh, no, not — that was not my intention, certainly.

WHITEHOUSE: Well, did you give her a free pass for many bad deeds, whatever your intention may have been?

COMEY: We conducted a competent, honest and independent investigation, closed it while offering transparency to the American people. I believed what I said, there was not a prosecutable case, there.

Al Franken asked Comey whether the investigation might access Trump’s tax returns.

FRANKEN: I just want to clarify something — some of the answers that you gave me for example in response to director — I asked you would President Trump’s tax returns be material to the — such an investigation — the Russian investigation and does the investigation have access to President Trump’s tax returns and some other questions you answered I can’t say. And I’d like to get a clarification on that. Is it that you cant say or that you can’t say in this setting?

COMEY: That I won’t answer questions about the contours of the investigation. As I sit here I don’t know whether I would do it in a closed setting either. But for sure — I don’t want to begin answering questions about what we’re looking at and how.

Update: Contemporaneous reporting makes it clear that Trump was particularly irked by Comey’s admission that “It makes me mildly nauseous to think that we might have had some impact on the election,” as that diminished Trump’s win. (h/t TC)

May 9, 2017: Regarding the decision to fire Mr. Comey: When was it made? Why? Who played a role?

The May 3 hearing is reportedly the precipitating event for Trump heading to Bedminster with Ivanka, Jared, and Stephen Miller on May 4 and deciding to fire Comey. Trump had Miller draft a letter explaining the firing, which Don McGahn would significantly edit when he saw it on May 8. McGahn also got Sessions and Rosenstein, who were peeved about different aspects of the hearing (those focused on Comey’s actions with regards to Hillary), to write letters supporting Comey’s firing.

Given that Mueller has the original draft of the firing letter and testimony from McGahn, Rosenstein, and Sessions, this question will largely allow Trump to refute evidence Mueller has already confirmed.

RESOURCES

These are some of the most useful resources in mapping these events.

Mueller questions as imagined by Jay Sekulow

CNN’s timeline of investigative events

Majority HPSCI Report

Minority HPSCI Report

Trump Twitter Archive

Jim Comey March 20, 2017 HPSCI testimony

Comey May 3, 2017 SJC testimony

Jim Comey June 8, 2017 SSCI testimony

Jim Comey written statement, June 8, 2017

Jim Comey memos

Sally Yates and James Clapper Senate Judiciary Committee testimony, May 8, 2017

NPR Timeline on Trump’s ties to Aras Agalarov

George Papadopoulos complaint

George Papadopoulos statement of the offense

Mike Flynn statement of the offense

Internet Research Agency indictment

Text of the Don Jr Trump Tower Meeting emails

Jared Kushner’s statement to Congress

Erik Prince HPSCI transcript

THE SERIES

Part One: The Mueller Questions Map Out Cultivation, a Quid Pro Quo, and a Cover-Up

Part Two: The Quid Pro Quo: a Putin Meeting and Election Assistance, in Exchange for Sanctions Relief

Part Three: The Quo: Policy and Real Estate Payoffs to Russia

Part Four: The Quest: Trump Learns of the Investigation

Part Five: Attempting a Cover-Up by Firing Comey

Part Six: Trump Exacerbates His Woes

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On the TS Ellis Show and the Lies about Lying

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The last words in the transcript of the hearing held Friday in Paul Manafort’s Eastern District of Virginia bank fraud and tax crime case go like this:

THE COURT: Mr. Asonye, I’m glad to see you here.

MR. ASONYE: I’m glad to see you as well, Your Honor.

Uzo Asonye is an Assistant US Attorney in EDVA who has prosecuted fraud cases before TS Ellis. Mueller’s team added Asonye to the EDVA case at the suggestion of Ellis. Ellis returned to his pleasure that Mueller had heeded his suggestion several other times over the course of the hearing, starting from his first comment after Michael Dreeben introduced himself.

THE COURT: Okay. And, Mr. Asonye, I’m glad to see you here. I indicated that the special counsel should have local counsel, and that’s you.

[snip]

MR. DREEBEN: The second point here is that we are within the Department of Justice. To the extent that Mr. Manafort is suggesting that we’re analogous to the independent counsels that operated under the old statute, that’s not right. Our indictment was reviewed and approved by the Tax Division, by the National Security Division. We operate within a framework of the Department of Justice. We’re not different from the U.S. Attorney’s Office in that respect. We’re all part of the same Department of Justice.

THE COURT: You resisted my suggestion to have someone here, and Mr. Asonye showed up. When did you ask Mr. Asonye to join you?

[snip]

MR. DREEBEN: Thank you, Your Honor. We took your admonition to heart, and we are very happy to have Mr. Asonye join us.

THE COURT: Good. I think that’s important for communications as well. Plus, you never know. If you have to try this case, you will have to try it before me. Mr. Asonye has some experience here. Is that right, Mr. Asonye?

MR. ASONYE: Yes, Your Honor.

THE COURT: And before me as well.

MR. ASONYE: Yes, Your Honor.

THE COURT: So he can tell you some interesting things.

[snip]

THE COURT: Of course, the difference is that if you did assign it to the Eastern District of Virginia, it wouldn’t come, Mr. Asonye, with a $10 million budget; would it?

You wouldn’t know that though, because most of the reports from the hearing have focused on exchanges like this, from Fox News:

Mueller’s team says its authorities are laid out in documents including the August 2017 scope memo – and that some powers are actually secret because they involve ongoing investigations and national security matters that cannot be publicly disclosed.

Ellis seemed amused and not persuaded.

He summed up the argument of the Special Counsel’s Office as, “We said this was what [the] investigation was about, but we are not bound by it and we were lying.”

He referenced the common exclamation from NFL announcers, saying: “C’mon man!” [my emphasis]

To be sure, Ellis was undeniably confrontational with Dreeben, in this and several other exchanges. But the Fox line, which it picked up from early reports, tells a distorted view of the hearing (even ignoring Ellis’ well known schtick of being confrontational in the court room).

First, the Fox representation is factually inaccurate in two ways. Here’s the transcript of the exchange Fox claims to have quoted directly.

DREEBEN: So it is not really appropriate to assume that the (b)(i) description is the factual statement that the regulations contemplate.

THE COURT: Well, I understand your argument, but let me characterize it and see if you find it as satisfying as you appear to indicate that you think it is: We said this is what the investigation was about. But we’re not going to be bound by it, and we weren’t really telling the truth in that May 17 letter.

I don’t watch pro football, but I used to enjoy the program that came beforehand where a bunch of players would get on and essentially make fun of everybody. But they would put on some ridiculous thing, and then they would all say in a chorus, Come on, man. [my emphasis]

Ellis was referring, explicitly, to the May 17 letter appointing Robert Mueller as special counsel and not, as Fox suggests, the August 2 Rosenstein memo that lays out what the Deputy Attorney General had included in Mueller’s scope by that point in time. The distinction is significant for the matter before the court, a two-part argument Manafort made that 1) the initial Mueller appointment was limited to Russia’s tampering and obstruction thereof, but the permission in the appointment to investigate anything “arising out of” that Russia investigation — which this prosecution had to be — was improper, and 2) that the August memorialization of Mueller’s authority incorporating the Ukrainian money laundering did not authorize this indictment because Mueller had improperly claimed the pre-existing investigation arose out of, rather than was subsumed into, the Russia investigation.

In a dispute in which the first issue is the memo appointing Mueller, Ellis is accusing Rosenstein of not incorporating everything he appointed Mueller to do in his May 17 statement, which Dreeben explained was done to hide the scope of the counterintelligence concerns from targets. That’s a claim backed by the government’s brief and the public Rosenstein testimony it cites.

Recognizing the need for confidentiality about the investigation, id. at 30, the Acting Attorney General “discussed that with [the Special Counsel] when he started” and has continued to have “ongoing discussion about exactly what is within the scope of his investigation,”

[snip]

The regulations do not provide that the factual statement must be made public.

The government brief argues that, because of his role in the campaign and his ongoing ties to Russians — including Oleg Deripaska, by name — the Manafort investigation falls under the original grant of authority. They make the “arises out of” argument only secondarily.

[E]ven assuming that paragraph (b)(i) does not cover all of the conduct charged in the Indictment—and, in the government’s view, it does—the conduct would fall within the scope of a matter that “arose or may arise directly from the investigation.”

Ellis’ concern that Rosenstein didn’t lay everything out in that first memo or might be hiding an ulterior motive of flipping Manafort go to two concerns that Dreeben (and Asonye’s presence) addressed head on. First, Ellis was concerned the Mueller team might be asserting it had unlimited power.

What we don’t want in this country is we don’t want anyone with unfettered power. We don’t want federal judges with unfettered power. We don’t want elected officials with unfettered power. We don’t want anybody, including the president of the United States, nobody to have unfettered power. So it’s unlikely you’re going to persuade me that the special prosecutor has unlimited powers to do anything he or she wants.

Though (again, given his reputation for beating up the side he plans to decide with) this line might be better understood as Ellis wanting to demonstrate a concern with the possibility that Mueller might think he has unfettered power.

Note, he includes the president in there.

Ellis also misstated, right as the discussion started, that the special counsel was not the government.

Let me ask the government — or not the government — the special counsel a few questions, Mr. Dreeben.

In correcting Ellis’ suggestion Mueller was not representing the government, Dreeben clarified that the Special Counsel was not operating under the Independent Counsel law that Ellis had elsewhere raised and seemed to be thinking of when suggesting they didn’t represent the government.

This is not the Independent Counsel Act that Your Honor was referring to in the conference that you spoke of. This is not a separate court-appointed prosecutor who’s operating under statutory independence. We are within the Department of Justice. We’re being supervised by an acting attorney general who has conferred upon us specific jurisdiction and who regularly is in a position to describe to us the metes and bounds of that.

To further establish this point the government notes — in both their brief and the hearing — that the Mueller team worked closely with the rest of DOJ in bringing the charges.

As explained above, every key step in this case has been authorized by the Acting Attorney General through ongoing consultation. Additionally, under the applicable rules, the Tax Division approved the tax-related charges. See 28 C.F.R. § 600.7(a) (Special Counsel must comply with DOJ rules, regulations, procedures, and policies); USAM § 6-4.200 (Tax Division must approve all criminal tax charges). And the Senior Assistant Special Counsel in charge of this prosecution is a long-time, career prosecutor with the internal authority to conduct this prosecution, separate and aside from his role in the Special Counsel’s Office.

While Ellis certainly made a public show of scolding the Mueller team claims, he did so in a hearing bracketed by his observation that Mueller had already done something — bring in Asonye — to assuage Ellis’ concerns about operating outside of normal DOJ procedure.

And while I hesitate to predict how Ellis will rule, I find the bracketing of the entire hearing with a focus on Asonye significant for two reasons. First, Ellis’ proposed remedy, if Mueller’s investigation were invalid, was to have EDVA prosecute the case (to which Downing suggested that that would make the search of his storage facility and home invalid, which for better and mostly worse is not how fourth amendment rulings work).

THE COURT: Let’s assume for a moment your argument that this delegation is in some way illegal. Why isn’t the right result simply to give to the Eastern District of Virginia’s U.S. Attorney’s Office — give it back to them and let them prosecute this indictment? Why isn’t that the right result?

MR. DOWNING: Well, the right result may be for the Department of Justice to finish the investigation they had started and make a determination as to whether or not to charge Mr. Manafort. But if, in fact, this order is defective, then Mr. Mueller did not have the authority of the U.S. Attorney to conduct a grand jury investigation, to get search warrants, or to return and sign an indictment.

THE COURT: All right. I think I understand.

Additionally, although many Manafort partisans view Ellis’ order that Mueller’s team give him an unredacted copy of the August 2 Rosenstein memo laying out everything that could be investigated as of that date as victory for Manafort, that actually falls far short of what Downing wanted, which was to have any other documentation showing the discussion behind appointing Mueller and approving subsequent steps thereafter.

MR. DOWNING: Just briefly, Your Honor. The one thing we would ask this Court to do before deciding the motion before the Court is to ask the government for what anybody who has had any experience with the Department of Justice knows exists, which is the written record. Where is the written record before Mr. Mueller was appointed? Where is the written record about the decision —

THE COURT: What do you mean by the written record?

MR. DOWNING: Mr. Rosenstein had a process he had to go through in order to determine that there was a conflict that gave rise to the appointment of special counsel, the specific matter that the special counsel was going to investigate in any additional jurisdiction he granted. It would all be written down somewhere. That’s how the Department of Justice works.

[snip]

THE COURT: All right. Is that what you’re — the record of identifying the conflict?

MR. DOWNING: I believe identification of the conflict, the matter that needed to be referred to a special counsel in order to — because of the conflict and the scope of the special counsel’s investigation, including any additional jurisdiction.

THE COURT: The May and August letters are the scope.

MR. DOWNING: That’s after the fact. You would expect that the Department of Justice, especially Mr. Rosenstein, would have had a memo before.

THE COURT: Why do you say that?

MR. DOWNING: Because in the Department of Justice generally, just in any situation —

THE COURT: Did you serve in the department?

MR. DOWNING: Fifteen years, five of which was under Mr. Rosenstein’s management. Mr. Rosenstein is a stickler for memos being written, for there to be a written record for the actions of the Department of Justice

In Rosenstein’s testimony and the government’s brief, they actually identify what the latter documents are: Urgent Reports documenting each major step, surely including the two searches on Manafort’s property.

The Special Counsel has an explicit notification obligation to the Attorney General: he “shall notify the Attorney General of events in the course of his or her investigation in conformity with the Departmental guidelines with respect to Urgent Reports.” 28 C.F.R. § 600.8(b). Those reports cover “[m]ajor developments in significant investigations and litigation,” which may include commencing an investigation; filing criminal charges; executing a search warrant; interviewing an important witness; and arresting a defendant.

So Downing specifically asked for (though not by name) the documentation that would have shown the back and forth discussions between Mueller and Rosenstein (and would have reflected Mueller’s compliance with the Urgent Reports requirement.

And Ellis didn’t grant that request. He asked only for the August 2 memo, not the Urgent Reports. That’s unsurprising — asking for the latter would have been a fairly breathtaking incursion on prosecutorial discretion.

But that suggests, at least thus far, Ellis is treating what he’s seeing as proper exercise of prosecutorial discretion.

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The Quest: Trump Learns of the Investigation (Part Four)

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In this series, I’m analyzing the Mueller questions as understood by Jay Sekulow and leaked to the NYT to show how they set up a more damning investigative framework than commentary has reflected.

This post laid out how the Agalarovs had been cultivating Trump for years, in part by dangling real estate deals and close ties with Vladimir Putin. This post shows how during the election, the Russians and Trump danced towards a quid pro quo agreement, with the Russians offering dirt on Hillary Clinton in exchange for a commitment to sanctions relief, with some policy considerations thrown in. This post laid out how, during the transition period, Trump’s team took a series of actions they attempted to keep secret that moved towards consummating the deal they had made with Russia, both in terms of policy concessions, particularly sanctions relief, and funding from Russian sources that could only be tapped if sanctions were lifted.

This post will look at Mueller’s reported investigative interest in Trump’s reaction to discovering the “Deep State” was investigating the election year operation, including the actions his team had tried to keep secret. Note, I have put all of the events leading up to Flynn’s firing here (not least because I think the firing itself often gets treated improperly as obstruction), though just some of the Jim Comey events. I will repeat the timeline of events in the next post, which overlaps temporally, for clarity.

January 6, 2017: What was your opinion of Mr. Comey during the transition?

This is a baseline question for Trump’s firing of Jim Comey. At a minimum, Trump would need to explain his decision to keep Comey. It also provides Trump an opportunity to rebut Comey’s claim that, in the January 6 meeting, Trump told Comey he:

had conducted myself honorably and had a great reputation. He said I was repeatedly put in impossible positions. He said you saved her and then they hated you for what you did later, but what coice did you have? He said he thought very highly of me and looked forward to working with me, saying he hoped I planned to stay on. I assured him I intended to stay. He said good.

January 6, 2017: What did you think about Mr. Comey’s intelligence briefing on Jan. 6, 2017, about Russian election interference?

One key detail Comey (and the other representatives of the intelligence community) would have detailed for Trump that day is not just that Russia interfered in the election, but their basis for concluding that “We also assess Putin and the Russian Government aspired to help President-elect Trump’s election chances,” a conclusion Republicans have objected to repeatedly.

In his book, but not his memos, Comey describes that immediately after the briefing, Trump first asked for assurances Russian interference hadn’t affected the outcome and then, with his team, started strategizing how to spin the conclusions so as to dismiss any outcome on the election.

‘I recall Trump listening without interrupting, and asking only one question, which was really more of a statement: “But you found there was no impact on the result, right?” The intelligence team said they had done no such analysis.

‘What I found telling was what Trump and his team didn’t ask. They were about to lead a country that had been attacked by a foreign adversary, yet they had no questions about what the future Russian threat might be.’

Instead, Trump and his team immediately started discussing how they would “spin” the information on Russia as if the intelligence officers were not in the room. ‘They were keen to emphasize that there was no impact on the vote, meaning that the Russians hadn’t elected Trump.’

This reflects the same concern expressed in the KT McFarland email from just days earlier (which probably reflected detailed Trump involvement) that acknowledging Russian involvement would “discredit[] Trump’s victory by saying it was due to Russian interference.”

January 6, 2017: What was your reaction to Mr. Comey’s briefing that day about other intelligence matters?

In its analysis of the questions, NYT takes this question to be exclusively about Comey’s briefing on the Steele dossier, and it may be. But in Obama’s January 5 briefing covering the same issues, according to Susan Rice, Comey and others discussed concerns about sharing classified information with the Trump team, especially Mike Flynn.

The memorandum to file drafted by Ambassador Rice memorialized an important national security discussion between President Obama and the FBI Director and the Deputy Attorney General. President Obama and his national security team were justifiably concerned about potential risks to the Nation’s security from sharing highly classified information about Russia with certain members of the Trump transition team, particularly Lt. Gen. Michael Flynn.

Even though concerns about Flynn came up in that Obama briefing, the FBI counterintelligence investigation did not. It’s possible that this passage from Comey’s memo, which describes the main part of the briefing and not that part dedicated to the Steele dossier, pertained to the counterintelligence concerns about Flynn,which Obama had already shared with Trump the previous fall; such a warning may or may not have included Flynn’s conversations with Sergey Kislyak.

If Comey briefed anything to do with Flynn, it would significantly change the importance of subsequent events.

As for the Steele dossier conversation, which surely is included with this question, Comey has claimed that Trump first tried to convince Comey is wasn’t true that he would need to “go there” to sleeping with prostitutes, “there were never prostitutes,” even though Trump’s reference to “the women who had falsely accused him of grabbing or touching them” actually undermined his defense.

Comey has also claimed that Trump seemed relieved when he said (in the context of the Steele briefing), that the FBI was not investigating him. Importantly, this took place after Comey had said he didn’t want people to claim the information came from the FBI.

I said media like CNN had them and were looking for a news hook. I said it was important that we not give them an excuse to write that the FBI has the material or [redacted] and that we were keeping it very close-hold.

[snip]

I responded that we were not investigating him and the stuff might be totally made up but that it was being said out of Russia and our job was to protect the President from efforts to coerce him. I said we try to understand what the Russians are doing and what they might do. I added that I also wanted him to know this in case it came out in the media.

He said he was grateful for the conversation, said more nice things about me and how he looks forward to working with me and we departed the room.

January 12, 2017: What was your reaction to news reports on Jan. 12, 2017?

On January 12, in the context of a discussion of Trump aiming for better relationships with Putin, David Ignatius reported revealed that Flynn had called Sergey Kislyak “several times,” asking whether but not asserting that it might be an attempt to undercut sanctions.

Trump said Wednesday that his relationship with President Vladimir Putin is “an asset, not a liability.” Fair enough, but until he’s president, Trump needs to let Obama manage U.S.-Russia policy.

Retired Lt. Gen. Michael T. Flynn, Trump’s choice for national security adviser, cultivates close Russian contacts. He has appeared on Russia Today and received a speaking fee from the cable network, which was described in last week’s unclassified intelligence briefing on Russian hacking as “the Kremlin’s principal international propaganda outlet.”

According to a senior U.S. government official, Flynn phoned Russian Ambassador Sergey Kislyak several times on Dec. 29, the day the Obama administration announced the expulsion of 35 Russian officials as well as other measures in retaliation for the hacking. What did Flynn say, and did it undercut the U.S. sanctions? The Logan Act(though never enforced) bars U.S. citizens from correspondence intending to influence a foreign government about “disputes” with the United States. Was its spirit violated? The Trump campaign didn’t immediately respond to a request for comment.

The report neither revealed the FBI had intercepts of the conversation nor confirmed an investigation. But it may have alerted Trump that the actions he was probably a party to weeks earlier might have legal consequences.

January 24: FBI interviews Mike Flynn and he lies about talking about sanctions

January 26 and 27, 2017: What did you know about Sally Yates’s meetings about Mr. Flynn?

According to Sally Yates’ public testimony, she met with Don McGahn to discuss Mike Flynn’s interview with the FBI on January 26, 2017. She framed it by describing that DOJ knew Mike Pence’s January 15 comments about Flynn’s conversations with Kislyak were not correct.

YATES: So I told them again that there were a number of press accounts of statements that had been made by the vice president and other high-ranking White House officials about General Flynn’s conduct that we knew to be untrue. And we told them how we knew that this – how we had this information, how we had acquired it, and how we knew that it was untrue.

And we walked the White House Counsel who also had an associate there with him through General Flynn’s underlying conduct, the contents of which I obviously cannot go through with you today because it’s classified. But we took him through in a fair amount of detail of the underlying conduct, what General Flynn had done, and then we walked through the various press accounts and how it had been falsely reported.

We also told the White House Counsel that General Flynn had been interviewed by the FBI on February [sic] 24. Mr. McGahn asked me how he did and I declined to give him an answer to that. And we then walked through with Mr. McGahn essentially why we were telling them about this and the first thing we did was to explain to Mr. McGahn that the underlying conduct that General Flynn had engaged in was problematic in and of itself.

Secondly, we told him we felt like the vice president and others were entitled to know that the information that they were conveying to the American people wasn’t true. And we wanted to make it really clear right out of the gate that we were not accusing Vice President Pence of knowingly providing false information to the American people.

And, in fact, Mr. McGahn responded back to me to let me know that anything that General Flynn would’ve said would have been based — excuse me — anything that Vice President Pence would have said would have been based on what General Flynn had told him.

We told him the third reason was — is because we were concerned that the American people had been misled about the underlying conduct and what General Flynn had done, and additionally, that we weren’t the only ones that knew all of this, that the Russians also knew about what General Flynn had done.

And the Russians also knew that General Flynn had misled the vice president and others, because in the media accounts, it was clear from the vice president and others that they were repeating what General Flynn had told them, and that this was a problem because not only did we believe that the Russians knew this, but that they likely had proof of this information.

And that created a compromise situation, a situation where the national security adviser essentially could be blackmailed by the Russians. Finally, we told them that we were giving them all of this information so that they could take action, the action that they deemed appropriate.

I remember that Mr. McGahn asked me whether or not General Flynn should be fired, and I told him that that really wasn’t our call, that was up to them, but that we were giving them this information so that they could take action, and that was the first meeting.

Then there was a follow-up meeting on January 27. Among the five topics discussed, McGahn asked if Flynn was in legal jeopardy, and if “they” (presumably meaning he and the Associate WHCO in the meeting) could see the underlying intelligence.

WHITEHOUSE: Did you discuss criminal prosecution of Mr. Flynn — General Flynn?

YATES: My recollection is that did not really come up much in the first meeting. It did come up in the second meeting, when Mr. McGahn called me back the next morning and asked the — the morning after — this is the morning of the 27th, now — and asked me if I could come back to his office.

And so I went back with the NSD official, and there were essentially four topics that he wanted to discuss there, and one of those topics was precisely that. He asked about the applicability of certain statutes, certain criminal statutes and, more specifically,

[snip]

And there was a request made by Mr. McGahn, in the second meeting as to whether or not they would be able to look at the underlying evidence that we had that we had described for him of General Flynn’s conduct. And we told him that we were inclined to allow them to look at that underlying evidence, that we wanted to go back to DOJ and be able to make the logistical arrangements for that. This second meeting on the 27th occurred late in the afternoon, this is Friday the 27th. So we told him that we would work with the FBI over the weekend on this issue and get back with him on Monday morning. And I called him first thing Monday morning to let him know that we would allow them to come over and to review the underlying evidence.

By the time the materials for review became available on January 30, Yates had been fired, nominally because she refused to defend Trump’s Muslim ban.

The HPSCI report (particularly content newly unredacted on May 4; see PDF 63 ff) reveals there were several concerns about Flynn’s contradictory comments (which Republicans bizarrely present as conflict). First, there had been a counterintelligence investigation into Flynn still active in December 2016, though FBI may have been moving to shut it down. The interview may have been sparked by Logan Act concerns, or it may have been Flynn’s public comments to Pence (the Republican report ignores that this would pose a blackmail problem). Comey told HPSCI that the agents found Flynn — a lifetime intelligence officer — exhibited no physical signs of deceit, but made it clear the Agents did find his statements plainly conflicted with known facts.

When Mueller asks the President what he knew about the meetings, he likely wants to know (and already has answers from McGahn and likely the Associate) whether they told him about the Flynn interview, if so when, and in how much detail. If they did tell Trump, Mueller may also want to know about whether McGahn’s questions on the 27th (including whether Flynn was in legal jeopardy) reflect Trump’s own questions.

Obviously, one other subtext of this question pertains to whether Yates’ pursuit of Flynn contributed to her firing.

The other critical point about whether and what Trump knew of Yates’ meetings with McGahn: on January 27, he had his first creepy meeting with Jim Comey. Then, on January 28, he had his first phone call with Vladimir Putin, a call Flynn attended.

January 27, 2017: What was the purpose of your Jan. 27, 2017, dinner with Mr. Comey, and what was said?

At lunchtime on January 27 — so after McGahn had called Yates to set up a follow-up meeting and indicated concerns about Flynn’s legal jeopardy, but before that meeting happened — Trump called Comey and set up dinner that day. According to Comey, several minor things that would recur later came up, including questions about Andrew McCabe and Trump’s exposition of the Hillary email investigation.

In addition, five other key things happened at the meeting.

He invited the FBI to investigate “the Golden Showers” thing to prove it was a lie:

At this point, he turned to what he called “the golden showers thing”

[snip]

He said he had spoken to people who had been on the Miss Universe trip with him and they had reminded him that he didn’t stay over night in Russia for that. [this is not true]

[snip]

He said he thought maybe he should ask me to investigate the whole thing to prove it was a lie. I did not ask any questions. I replied that it was up to him, but I wouldn’t want to create a narrative that we were investigating him, because we were not and I worried such a thing would be misconstrued. Ii also said that is very difficult to disprove a lie. He said ‘maybe you’re right,’ but several times asked me to think about it and said he would also think about it.

He asked if the FBI leaks:

He asked whether the FBI leaks and I answered that of course in an organization of 36,000 we were going to have some of that, but I said I think the FBI leaks far less than people often say.

He asked if Comey wanted to keep his job, even though they had discussed it twice before:

He touched on my future at various points. The first time he asked “so what do you want to do,” explaining that lots of people wanted my job (“about 20 people”), that he thought very highly of me, but he would understand if I wanted to walk away given all I had been through, although he thought that would be bad for me personally because it would look like I had done something wrong, that he of course can make a change at FBI if he wants, but he wants to know what I think. There was no acknowledgement by him (or me) that we had already talked about this twice.

I responded by saying that he could fire me any time he wished, but that I wanted to stay and do a job I love to and think I am doing well.

He asked for loyalty:

He replied that he needed loyalty and expected loyalty.

[snip — this comes after the request for an investigation]

He then returned to loyalty, saying “I need loyalty.” I replied that he would always get honesty from me. He paused and said that’s what he wants, “honest loyalty.” I replied, “you will get that from me.”

He claimed to suspect Mike Flynn’s judgment because he had delayed in telling Trump about Putin’s congratulatory phone call:

He then went on to explain that he has serious reservations about Mike Flynn’s judgment and illustrated with a story from that day in which the President apparently discovered during his toast to Teresa May that [Vladimir Putin] had called four days ago. Apparently, as the President was toasting PM May, he was explaining that she had been the first to call him after his inauguration and Flynn interrupted to say that [Putin] had called (first, apparently). It was then that the President learned of [Putin’s] call and he confronted Flynn about it (not clear whether that was in the moment or after the lunch with PM May). Flynn said the return call was scheduled for Saturday, which prompted a heated reply from the President that six days was not an appropriate period of time to return a call from the [President] of a country like [Russia]. (“This isn’t [redacted] we are talking about.”) He said that if he called [redacted] and didn’t get a return call for six days he would be very upset. In telling the story, the President pointed his fingers at his head and said “the guy has serious judgment issues.” I did not comment at any point during this topic and there was no mention or acknowledgement of any FBI interest in or contact with General Flynn.

Trump would be hard pressed to argue the meeting was unrelated to the Yates meeting and the FBI investigation. Which would mean one thing Trump did — in a meeting where he also lied to claim he hadn’t had sex in Moscow — was to disclaim prior knowledge of the Putin meeting the next day (even while emphasizing the import of it).

Of course, the claim he thought Flynn had poor judgment didn’t lead him to keep Flynn out of the phone call with Putin the next day.

January 28: Trump, Pence, Flynn, Priebus, Bannon, and Spicer phone Vladimir Putin

February 9, 2017: What was your reaction to news reports on Feb. 8-9, 2017?

According to Jim Comey, he went for a meet and greet with Reince Priebus on February 8. While he was waiting, Mike Flynn sat down to chat with him though didn’t mention the FBI interview. Then, after clarifying that the conversation with Comey was a “private conversation,” he asked if there was a FISA order on Flynn. Comey appears to have answered in the negative. Priebus then took Comey in to meet with Trump, who defended his answer in an interview with Bill O’Reilly released on February 6) that “There are a lot of killers. You think our country’s so innocent?” After Comey criticized that part of the answer, Trump, “clearly noticed I had directly criticized him.” (h/t TC for reminding me to add this.) Since Yates had told McGahn how they knew Flynn had lied, Priebus’ question about a FISA order suggests the White House was trying to find out whether the collection was just incidental, or whether both sides of all Flynn’s conversations would have been picked up.

On February 9, the WaPo reported that Flynn had discussed sanctions, in spite of public denials from the White House that he had.

National security adviser Michael Flynn privately discussed U.S. sanctions against Russia with that country’s ambassador to the United States during the month before President Trump took office, contrary to public assertions by Trump officials, current and former U.S. officials said.

Flynn’s communications with Russian Ambassador Sergey Kislyak were interpreted by some senior U.S. officials as an inappropriate and potentially illegal signal to the Kremlin that it could expect a reprieve from sanctions that were being imposed by the Obama administration in late December to punish Russia for its alleged interference in the 2016 election.

Flynn on Wednesday [February 8] denied that he had discussed sanctions with Kislyak. Asked in an interview whether he had ever done so, he twice said, “No.”

On Thursday [February 9], Flynn, through his spokesman, backed away from the denial. The spokesman said Flynn “indicated that while he had no recollection of discussing sanctions, he couldn’t be certain that the topic never came up.”

Officials said this week that the FBI is continuing to examine Flynn’s communications with Kislyak. Several officials emphasized that while sanctions were discussed, they did not see evidence that Flynn had an intent to convey an explicit promise to take action after the inauguration.

In addition to tracking Flynn’s changing claims, it also noted that on January 15, Mike Pence had denied both any discussion of sanctions in the December call and discussions with Russia during the campaign.

On February 10, Trump was asked by reporters about Flynn’s answer. Trump played dumb: “I don’t know about that. I haven’t seen it. What report is that? I haven’t seen that. I’ll look into that.” (h/t TC)

Presumably, Mueller wants to know how surprised Trump was about this story (which actually builds on whether McGahn told him about the Yates conversation). But given Trump’s earlier question about FBI leaks, I also wonder whether Mueller knows that Trump knew this was coming. That is, some of the leaks may have come from closer to the White House, as an excuse to fire Flynn, using the same emphasis that the story (and Yates) had: the claim that Flynn had lied to Pence.

Except Mueller probably knows that the effort to soothe Russia’s concerns about sanctions made in December were a surprise to few top aides in the White House, least of all Trump.

February 13, 2017: How was the decision made to fire Mr. Flynn on Feb. 13, 2017?

We have remarkably little reporting on how and why Flynn was actually fired — mostly just the cover story that it was because Flynn lied to Pence — though after Flynn flipped last year, Trump newly claimed he had to fire Flynn because he lied to the FBI (something that, if the claims about the original 302 are correct, FBI hadn’t concluded at the time Trump fired him).

The thing is, neither story makes sense. It’s virtually certain that many people in the White House knew what Flynn had said to Sergey Kislyak back in December 2016; Tom Bossert was included in KT McFarland’s emails to Mike Flynn, and he sent it to Reince Priebus, Stephen Bannon, Sean Spicer, and at least two other people. All of those people, save Bossert, are known to have provided testimony to Mueller’s team.

But it also makes little sense to argue that Trump had to fire Flynn because he lied. If so, he would have done so either immediately, before the Putin meeting, or much later, after FBI actually came to the conclusion he had lied.

One logical explanation is that Flynn lied because he was told to lie, in an effort to continue to hide what the Trump Administration was doing in the transition period to pay off its debts to Russia. But faced with the prospect that the FBI would continue to investigate Flynn, Trump cut him out in an effort to end the investigation. Which explains why things with Comey proceeded the way they did.

Update: This post has been updated with new details surrounding February 8-10 and newly unredacted details from the HPSCI report.

RESOURCES

These are some of the most useful resources in mapping these events.

Mueller questions as imagined by Jay Sekulow

CNN’s timeline of investigative events

Majority HPSCI Report

Minority HPSCI Report

Trump Twitter Archive

Jim Comey March 20, 2017 HPSCI testimony

Comey May 3, 2017 SJC testimony

Jim Comey June 8, 2017 SSCI testimony

Jim Comey written statement, June 8, 2017

Jim Comey memos

Sally Yates and James Clapper Senate Judiciary Committee testimony, May 8, 2017

NPR Timeline on Trump’s ties to Aras Agalarov

George Papadopoulos complaint

George Papadopoulos statement of the offense

Mike Flynn statement of the offense

Internet Research Agency indictment

Text of the Don Jr Trump Tower Meeting emails

Jared Kushner’s statement to Congress

Erik Prince HPSCI transcript

THE SERIES

Part One: The Mueller Questions Map Out Cultivation, a Quid Pro Quo, and a Cover-Up

Part Two: The Quid Pro Quo: a Putin Meeting and Election Assistance, in Exchange for Sanctions Relief

Part Three: The Quo: Policy and Real Estate Payoffs to Russia

Part Four: The Quest: Trump Learns of the Investigation

Part Five: Attempting a Cover-Up by Firing Comey

Part Six: Trump Exacerbates His Woes

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Trump Repeats the “Tapp” Story Line from Season One

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Last March 4, as it became clear the FBI was investigating him, President Trump wrote a bunch of tweets that claimed, falsely, that he had been wiretapped.

He even called for a “good lawyer” to make a case out of the “fact” that Obama was tapping his phone.

Today, Day Two of the Don and Rudy show, NBC has an exclusive story reporting that Michael Cohen’s phones were tapped before he was raided by the FBI a few weeks ago.

It’s certainly possible that the story is true. After all, prosecutors already revealed that “the USAO-SDNY has already obtained search warrants – covert until this point – on multiple different email accounts maintained by Cohen.” They also referred to some [redacted] reason to be concerned that Cohen was destroying evidence. So it’s certainly feasible SDNY had probable cause and reason to want to wiretap mob lawyer Michael Cohen.

But within minutes of the story breaking, Rudy was on the phone with Robert Costa, making false claims that if the wiretap picked up a conversation between Trump and Cohen, as the NBC report claims based off a single source, the FBI would need to notify Trump.

Giuliani tells me he can’t confirm there were wiretaps, hasn’t been informed. But when read NBC report, he was furious. “If they picked up the president, they would have had to notify him.” Said if true, wld be a “mockery” of attorney-client privilege and “gov’t misconduct”

And Giuliani’s concerns echo advice he gave Trump as the Cohen story was breaking, to stay off the phones with Cohen because they might be tapped. something the story itself describes, attributed to “sources close to” Rudy.

After the raid, members of Trump’s legal team advised the president not to speak to Cohen, according to a person familiar with the discussion.

Two sources close to Trump’s newest attorney, Rudolph Giuliani, say he learned that days after the raid the president had made a call to Cohen, and told Trump never to call again out of concern the call was being recorded by prosecutors.

Why would this detail be included in this NBC story? It’s like a Chekhov suicide pill, unnecessary to the story in chief but useful for giving a story additional dramatic meaning [yes, I made that term up, but I’ve got a PhD in literature, so am taking license to do so].

Incidentally, Corey Lewandowski was dining with Rudy last night before he went on Hannity.

As to the report about the wiretap itself, the NBC story is sourced to:

” two people with knowledge of the legal proceedings involving Cohen” [a kind of code often used to describe defense lawyers, though there are so many involved in this wiretap that it could be any of many]

“one person with direct knowledge”

“the person ” [that is, with direct knowledge — this is the confirmation that a call to the White House got picked up]

Nowhere does the story explain why someone with knowledge of a wiretap would want to burn it.

Certainly, there are explanations that given the people involved might explain the story. Michael Avenatti has claimed to know quite a bit about the surveillance of Michael Cohen; certainly, he has had communications with prosecutors involved, not least about whether he can intervene in the case. Alternately, Rudy is still quite close to some of NY’s more unethical FBI Agents, and it’s certainly possible one of them leaked the news.

By all means, let’s entertain the distinct possibility that the President’s personal lawyer, with all his mob ties, got treated like a mob lawyer. But let’s remember that Rudy appears to have made promises he can end the investigations into the President in the short term. He’s a liar. And Trump has specifically lied about being wiretapped before. So even if Cohen was wiretapped, beware serial liars making claims about the impact of such wiretaps on the President himself.

The President who cried “wiretap” once too often should be treated with a great deal of skepticism, particularly given the way Rudy immediately used this story to attack the investigation into Cohen.

Update: And now Rudy is using the alleged wiretap to call for Sessions to investigate those who were investigating  Cohen.

Rudy Giuliani called for Attorney General Jeff Sessions to intervene in the Michael Cohen case and put the people behind the probe “under investigation” in a phone call with The Hill on Thursday.

“I am waiting for the Attorney General to step in, in his role as defender of justice, and put these people under investigation,” Giuliani said, reacting to an NBC News report that phones belonging to Cohen, President Trump’s longtime personal attorney, had been tapped by investigators.

He gives up the game when he complains that FBI didn’t inform “us” of the alleged wiretap.

But Giuliani said that a wiretapping of Cohen would amount to “gross misconduct” by the government. He further alleged that “this case has been surrounded by numerous acts” that fit that description.

Giuliani added sarcastically, “And they don’t even notify us? I mean, he’s only the president of the United States.”

Rudy wasn’t representing Trump when the raid occurred.

Update: Rudy again gives up the game when he suggests only the FBI, the independent counsel, or DOJ would know about this wiretap.

Giuliani said that he found out about the wiretap news from NBC News’ report, which cited “two people with knowledge of the legal proceedings,” and not from Cohen himself. He believed someone in the Justice Department was behind the leak.

“Nobody else would know about it,” Giuliani said. “Cohen didn’t know about it, so it has to be the FBI, the independent counsel, or the Justice Department.”

“Anybody who says that I’m exaggerating when I say that this is an out-of-control investigation and they’re acting like storm troopers––give me a break, baby! They prove it every day.”

As I’ve already suggested, Avenatti is one other outsider who might have a whiff of this, if true. But in any case, the raid, and therefore the wiretap, is understood to have involved an independent investigation conducted by SDNY, not Mueller’s team. If true, there’s no way Mueller would know about it either. And yet Rudy uses it to suggest the Mueller investigation is out of control.

Update: … and NBC has retracted the story. FBI had a pen register on Cohen, not a wiretap. Which of course they would, because that’s one thing they use to decide which emails — which we know they collected — to read.

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The Quid Pro Quo: a Putin Meeting and Election Assistance, in Exchange for Sanctions Relief (Part Two in a Series)

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As I explained in Part One of this series, I think the Mueller questions leaked by the Trump people actually give a far better understanding of a damning structure to the Mueller investigation — one mapping out cultivation, a quid pro quo, and a cover-up — than the coverage has laid out. This post will lay out how, over the course of the election, the Russians and Trump appear to have danced towards a quid pro quo, involving a Putin meeting and election assistance in exchange for sanctions relief if Trump won (as noted, the Russians dangled real estate deals to entice Trump based on the assumption he wouldn’t win).

April 27, 2016: During the campaign, what did you know about Russian hacking, use of social media, or other acts aimed at the campaign?

Given the structure of George Papadopoulos’ plea, it’s highly likely Mueller knows that Papadopoulos passed on news that the Russians had thousands of Hillary emails they planned to release to help Trump to people in the campaign. Papadopoulos could have passed on that news to Stephen Miller and Corey Lewandowski as early as April 27. On the same day, Papadopoulos helped draft Trump’s first foreign policy speech, which Papadopoulos reportedly told Ivan Timofeev signaled a willingness to meet.

Between the time the GRU first exfiltrated DNC emails in April and the election, Trump invoked “emails” 21 times on Twitter (usually to refer to emails from Hillary’s server). The first of those times came on June 9, less than an hour after the Trump Tower meeting. The most famous of those came on July 27, when Trump addressed Russia directly.

Earlier in the day, Trump had called on Russia to release the emails not to the FBI, but to the press.

Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing. I think you will probably be rewarded mightily by our press.

The timing may reflect awareness among some in the campaign that the call to Russia was a step too far legally. (h/t TC for the addition)

That Trump’s email comments pertain mostly to Hillary’s home-based server doesn’t actually exonerate him. Right after the DNC release (and therefore the July 27 Trump tweet), GOP rat-fucker Peter Smith started reaching out to Russian hackers in hopes of finding hacked versions of those emails. His support documents named Steve Bannon, Kellyanne Conway, Sam Clovis, and Mike Flynn. If those people actually learned of the effort (there’s reason to believe Smith was just overselling the ties to the campaign), it’s possible that Trump learned about it as well.

As to social media, while it has gotten virtually no attention, the reference to three Florida-based Trump campaign officials in the Internet Research Agency indictment suggests further investigative interest in them.

[T]here are three (presumed) Americans who, both the indictment and subsequent reporting make clear, are treated differently in the indictment than all the other Americans cited as innocent people duped by Russians: Campaign Official 1, Campaign Official 2, and Campaign Official 3. We know, from CNN’s coverage of Harry Miller’s role in building a cage to be used in a fake “jailed Hillary” stunt, that at least some other people described in the indictment were interviewed — in his case, for six hours! — by the FBI. But no one else is named using the convention to indicate those not indicted but perhaps more involved in the operation. Furthermore, the indictment doesn’t actually describe what action (if any) these three Trump campaign officials took after being contacted by trolls emailing under false names.

So Mueller may be pursuing whether there was state-level coordination going on, and if so, how far up the campaign chain of command knowledge of that coordination extended.

May 31, 2016: What discussions did you have during the campaign regarding any meeting with Mr. Putin? Did you discuss it with others?

On June 16, 2015, the day Trump announced his campaign, the Agalarovs offered to serve as an intermediary between him and Putin.

Then, starting at least as early as March 31, 2016 (with Trump’s first foreign policy meeting), his aides started floating pitches for meetings with increasingly senior campaign officials that would hypothetically lead up to one between Trump and Putin.

Those include at least:

  • The George Papadopoulos thread, spanning from March 21 through August 15
  • The Carter Page thread, including his Moscow trip in July, and possibly continuing through his December Moscow trip
  • The NRA thread, focusing on the NRA meeting in Kentucky in May; NRA’s longer outreach includes Trump associates John Bolton and David Clarke

We know Trump was present and did not object when Papadopoulos pitched this in the May 31 meeting. Several of the other entrees went through Don Jr. Many of the offers got briefed at least as far as Jared Kushner and Paul Manafort. We don’t know how many of the other offers he learned about. We just know that years earlier he had joked about becoming Putin’s best friend, and over the course of the campaign, Russian intermediaries made repeated, persistent efforts to work towards a meeting between Trump and Putin, with a meeting between Agalarov representatives (who, again, had offered to serve as intermediaries with Putin when Trump kicked off the campaign) and the most senior people on the campaign happening just as Trump sealed up the nomination.

May 31, 2016: What discussions did you have during the campaign regarding Russian sanctions?

This is an open-ended question that might pose particular problems for Trump given the misleading statement claiming the June 9 meeting was about adoptions and not the Magnitsky sanctions. More interesting still are hints that Mueller sees a signaling going back and forth involving Papadopoulos; some of this may have involved signaling a willingness to provide sanctions relief.

Both Aras Agalarov and Natalia Veselnitskaya followed up after the election pushing for sanctions relief.

June 9, 2016: When did you become aware of the Trump Tower meeting?

Sam Nunberg has suggested Trump probably learned of the Trump Tower meeting before it happened. While he is unreliable on that point, the original June 3, 2016 email Rob Goldstone sent to Don Jr suggests reaching out to Trump’s assistant Rhona Graff.

I can also send this info to your father via Rhona, but it is ultra sensitive so wanted to send to you first.

Democrats suspect that between two calls Don Jr had with Emin Agalarov about the meeting on June 6, 2016, he called his dad.

Trump Jr.’s phone records show two calls to and from the same Russian number on June 6, 2016.62 The first call occurred at 4:04 pm on June 6, 2916 – just 21 minutes after Goldstone emailed Trump Jr. to say that Emin Agalarov was “on stage in Moscow but should be off within 20 minutes so I am sure can call. [emphasis added]” 63 At 4:38 pm, Trump Jr emailed Goldstone, “Rob, thanks for the help.”64

This documentary evidence indicates that a call likely took place between Trump Jr. and Emin Agalarov. During his interview, Trump Jr. confirmed that the Russian phone number belonged to Agalarov, though he claimed to not recall whether he actually spoke with him. Rather, despite one of the two calls reflecting a two-minute connection, Trump Jr. suggested that Agalarov may have left voice messages.65

The phone records also show a “blocked” number at 4:27 pm, between the two calls to and from Emin Agalarov. Trump Jr. claimed he did not know who was associated with the blocked number.66 While the Committee has not pursued leads to determine who called Trump Jr. at this crucial time from a blocked number, Corey Lewandowski told the Committee that Mr. Trump’s “primary residence has a blocked [phone] line.” 67

Mueller, of course, almost certainly has the phone records the Democrats weren’t able to obtain.

Finally, Steve Bannon has stated that he’s certain Don Jr “walk[ed] these jumos up to his father’s office on the twenty-sixth floor” on the day of the meeting. There’s reason to believe Ike Kaveladze and Goldstone could have done so, including the new piece of evidence that “Kaveladze left [a meeting with Rinat Akhmetshin and Natalia Veselnitskaya] after a few minutes to take a call from Agalarov to discuss the meeting.”

The day after the meeting — and four days before Trump’s birthday — Agalarov sent Trump an expensive painting as a present.

The June 9 meeting is, as far as is public, the most important cornerstone in a presumed quid pro quo. Russians offered unnamed dirt that Don Jr seemed to know what it entailed even before speaking to Emin Agalarov personally. Having offered dirt, four Russians — including two representatives of Trump’s long-time handler Aras Agalarov — laid out a pitch to end the Magnitsky sanctions. And less than a week later, a presumed Russian agent released the first dirt stolen from Hillary Clinton.

July 7, 2016: What knowledge did you have of any outreach by your campaign, including by Paul Manafort, to Russia about potential assistance to the campaign?

We don’t have many details on what Mueller knows about Manafort’s requests for help on the campaign. We do know he remained in close touch with Russians via someone the FBI believed was a Russian intelligence agent, Konstantin Kilimnik, through whom he remained in communications with Russian oligarch Oleg Deripaska. Deripaska is named in some court documents in a way that suggests his relationship with Manafort may be the still hidden third prong of investigation into Manafort approved by August 2, 2017.

Starting in April, Manafort and Kilimnik (whom Rick Gates and therefore presumably Manafort knew was a former GRU officer), exchanged a series of cryptic emails, suggesting that Manafort might be able to pay off the $20 million he owed Deripaska with certain actions on the campaign. In an email sent on July 7, Manafort offered to provide briefings on the campaign to Deripaska. On or around August 2, Manafort and Kilimnik met in person at the Grand Havana Club, in Kushner’s building at 666 5th Avenue. Both deny that anything about the campaign came up. Shortly after this meeting, one of Deripaska’s jets came to Newark, and Russian opposition figure Viktor Navalny has claimed to have proof the jet went from there to a meeting between Deripaska and Russian deputy prime minister Sergei Prikhodko.

An August 2017 report describes intercepts picking up “Russian operatives discussing their efforts to work with Manafort, … relay[ing] what they claimed were conversations with Manafort, encouraging help from the Russians.”

There’s one more area of potential assistance I find of interest. Since January, we’ve been getting hints that Oleg Deripaska has some tie to the Steele dossier, possibly through a lawyer he and Steele share. I’ve raised repeated concerns that the Russians learned about the dossier and found ways to feed Steele disinformation. If they did, the disinformation would have led Democrats to be complacent about the hacks that targeted them. And whether or not the dossier is disinformation (and whether or not Deripaska had a role in that, if true), Paul Manafort coached Reince Priebus on how to attack the dossier as a way to discredit the investigation into the campaign’s ties with Russia.

With regards to this Manafort question: remember that Rick Gates flipped on February 23, and the questions date to early March. So Gates may have proffered confirmation about these details. In any case, Mueller likely has learned far more about them two months after Gates flipped.

July 10-12, 2016: What involvement did you have concerning platform changes regarding arming Ukraine?

The Majority HPSCI Russia Report explains that the RNC platform was changed by staffers at the convention based off Trump’s public statements on sanctions.

[Rick] Dearborn generated a memorandum, dated August 1, 2016, outlining a detailed sequence of events that occurred between July 10 and 12, 2016. As part of that memo, J.D. Gordon created a timeline that noted candidate Trump’s policy statements–including at a March 31, 2016, national security meeting–served as the basis for the modification of [Diana] Denman’s amendments. Gordon’s timeline made it clear that the change was initiated by campaign staffers at the convention–not by Manafort or senior officials.

J.D. Gordon has not confirmed that he was asked about this, but he surely was. I would expect Mueller to have tested the timeline Gordon laid out in summer 2016 (when the platform change was a big political issue) against the testimony and communications records of everyone else involved.

Of course, by asking the question in this fashion, Mueller doesn’t reveal what he has already confirmed about the platform changes.

August 5, 2016: What did you know about communication between Roger Stone, his associates, Julian Assange or WikiLeaks?

After multiple public statements that the Russians were behind the hack-and-leak, on August 5, 2016 (after traveling from NY to LA to his home in FL), Roger Stone wrote a column claiming to believe that Guccifer 2.0 was a hacktivist with no ties to Russia. Stone’s purportedly changed beliefs about Guccifer 2.0 coincide with an August 4 claim he made in an email to Sam Nunberg that he had met with Julian Assange the night before. Stone’s claimed belief that Guccifer 2.0 is not Russian is key to his denials of any involvement or pre-knowledge of hack-and-leak events. It also kicked off an alternative story that others, up to and including Trump, have adopted to excuse their own embrace of the stolen emails. In other words, a key prong in the plausible deniability the Russians built into the hack-and-leak campaign came from long-time Trump associate Roger Stone, after a dramatic and unexplained change in beliefs (Lee Stranahan, who used to work for Breitbart and now works for Sputnik, has claimed some credit for the change, and given how lucid the August 5 column is, someone had to have helped Stone write it).

Ten days later, after Stone had called on Twitter to let him out of Twitter jail, Guccifer 2.0 and Stone started exchanging (fairly innocuous) DMs.

There are events both before and after that which suggest Stone — probably through more interesting go-betweens than Randy Credico — sought information on what dirt Assange and Wikileaks had, and what and when planned to do with it.

Much has been made, especially in the DNC lawsuit, about Stone’s seeming prediction that “it would soon be Podesta’s time in the barrel.” Perhaps that’s true (and Stone’s explanation for the tweet is garbage), but any explanation of Stone’s supposed prediction needs to acknowledge that he more often predicted Wikileaks would release Clinton Foundation emails, not Podesta ones, that he got the timing somewhat wrong, and that he didn’t dwell on the Podesta emails at all once Wikileaks started releasing them (preferring, instead, to talk about Bill Clinton’s lady problems). Still, that may reflect Stone involvement in the Peter Smith operation, and efforts to get WikiLeaks to release purported Clinton Foundation emails passed on via hackers.

That Mueller is even asking this suggests (if the several grand jury witnesses in recent months dedicated to it don’t already) that Mueller has a pretty good idea that Stone’s communications were more extensive than his denials let on. That he thinks Stone may have shared that information with Trump is all the more interesting.

All of which is to say that the known answers to Mueller’s questions map out a quid pro quo set up during the election, in which Russians offered a Putin meeting and dirt on Hillary, with the expectation that Trump would lift the Magnitsky sanctions if he won (and would get a Trump Tower in Moscow if he lost). I suspect there are other pieces to the quid pro quo, dealing with Ukraine and Syria. But certainly the June 9 meeting set up an understanding: dirt in exchange for Magnitsky relief. The release of the Guccifer 2.0 emails may indicate the Trump camp provided some signal they had formally accepted the offer.

Update: Fixed syntax in last paragraph, h/t LT.

RESOURCES

These are some of the most useful resources in mapping these events.

Mueller questions as imagined by Jay Sekulow

CNN’s timeline of investigative events

Majority HPSCI Report

Minority HPSCI Report

Trump Twitter Archive

Jim Comey March 20, 2017 HPSCI testimony

Comey May 3, 2017 SJC testimony

Jim Comey June 8, 2017 SSCI testimony

Jim Comey written statement, June 8, 2017

Jim Comey memos

Sally Yates and James Clapper Senate Judiciary Committee testimony, May 8, 2017

NPR Timeline on Trump’s ties to Aras Agalarov

George Papadopoulos complaint

George Papadopoulos statement of the offense

Mike Flynn statement of the offense

Internet Research Agency indictment

Text of the Don Jr Trump Tower Meeting emails

Jared Kushner’s statement to Congress

Erik Prince HPSCI transcript

THE SERIES

Part One: The Mueller Questions Map Out Cultivation, a Quid Pro Quo, and a Cover-Up

Part Two: The Quid Pro Quo: a Putin Meeting and Election Assistance, in Exchange for Sanctions Relief

Part Three: The Quo: Policy and Real Estate Payoffs to Russia

Part Four: The Quest: Trump Learns of the Investigation

Part Five: Attempting a Cover-Up by Firing Comey

Part Six: Trump Exacerbates His Woes

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After Reiterating Orin Kerr’s Arguments, MalwareTech Asks for the Indictment to be Dismissed with Prejudice

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In a post explaining that MalwareTech (Marcus Hutchins) had gotten a last minute continuance before an evidentiary hearing last month, I linked to my thread on the government’s weak responses to a bunch of motions he had submitted. Here’s how I described the original motions:

The five filings are:

  1. A motion for a bill of particulars, basically demanding that the government reveal what 10 computers Hutchins and his alleged co-conspirator conspired and intended to damage
  2. A motion to suppress the statements Hutchins made after he was arrested, requesting an evidentiary hearing, based on the fact that Hutchins was high and exhausted and didn’t know US law about Miranda warnings
  3. A motion to dismiss the indictment, arguing on three different grounds that,
    • The CFAA charges (one and six) don’t allege any intent to cause damage to a protected computer (because the malware in question steals data, but doesn’t damage affected computers)
    • The Wiretapping charges (two through five) don’t allege the use of a device as defined under the Wiretap Act, but instead show use of software
    • The sales-related charges (one, five, and six) conflate the sale of malware with the ultimate effect of it
  4. A motion to dismiss the indictment for improper extraterritorial application and venue, effectively because this case should never have been charged in the US, much less Milwaukee
  5. A motion to dismiss charges two and six based on suspected improper grand jury instruction failing to require intentionality

Yesterday, Hutchins submitted his replies to the government’s arguments, in which he argues:

1.The government needs to explain what kind of proof of damage to 10 computers that Hutchins and his co-defendant conspired to damage it will offer and provide discovery on it.

2. [Hutchins offered no new response to the government’s Miranda response]

4. Because the government didn’t include the legitimate (purchase by an FBI Agent of the malware) and specious (sharing a binary with someone in CA and discussing the malware in online forums) bases that tie Hutchins’ activities to Eastern District of Wisconsin or even the US in the indictment itself, the indictment is an improper extraterritorial application of the law and lack venues in EDWI.

5. Because the government doesn’t include intentionality where the statute requires it, it should dismiss the related counts with prejudice (note, this argument has evolved from a grand jury error to a more fundamental problem assault on the indictment).

While I’m not sure all of these will succeed on their own (indeed, I think the motion on venue with respect to CFAA might fail in the absence of the rest of this), these motions form an interlocking argument that there’s no there there.

Which the defense argues at most length is the motion reiterating that selling software does not amount to either CFAA (damaging 10 computers) or wiretapping (which requires a device), an argument Orin Kerr made just after the charges were released in August. I get the feeling the defense thought that, having had access to Kerr’s argument all these months, the government might have responded better. The two substantive parts of their argument are here, addressing the point that CFAA violations require doing (or attempting to do) actual damage to computers, not just code that has the ability to damage them.

[T]he government suggests that its characterization of Kronos as “malware” should satisfy the pleading standard, claiming that it is “common knowledge” that malware is “written with the intent of being disruptive or damaging.” (Gov’t Response at 4 (citing Oxford English Dictionary 2018).) But the CFAA does not make so-called malware illegal—it is not some form of contraband. In fact, the term “malware” does not appear anywhere in the statute. The CFAA is not concerned with what software is called, but what an actor uses it to do. Artificial labels aside, the question before the Court is whether the indictment adequately pleads a case that Mr. Hutchins and his co-defendant conspired or attempted to “knowingly cause[] the transmission of a program, information, code, or command, and as a result of such conduct, intentionally cause damage without authorization, to a protected computer.” 18 U.S.C. §§ 371 & 1030(a)(5)(A).

The only definition of “malware” relevant to that question is one offered in the indictment. The indictment, at paragraph 3(d), defines “malware” as “malicious computer code installed on protected computers without authorization that allowed unauthorized access to the protected computer.” Nothing in this definition involves “intentionally caus[ing] damage without authorization, to a protected computer,” which is necessary to violate § 1030(a)(5)(A). The indictment’s “unauthorized access” language seems to be borrowed from other provisions of the CFAA that have not been charged in this case, such as §§ 1030(a)(2), (5)(B), and (5)(C)—all of which include additional elements beyond “unauthorized access.” Even if Kronos precisely meets the definition of “malware” offered by the government in the indictment, that functionality alone would not constitute a violation of § 1030(a)(5)(A) or any other provision of the CFAA.

There are, I think, cases where malware sellers have been convicted — but only after their customers were busted doing damage. Here, the only customer mentioned in the legal case thus far was an FBI Agent that no one has alleged actually used the malware (the malware was used in other countries, including Hutchins’ home in the UK, about which the government has been completely silent since the initial indictment).

Here’s the language arguing that software, sold without a computer, is not a device as defined in the wiretapping statute charged.

[T]hose cases all involved claims that the defendants acquired communications using software running on a computer. Under those circumstances, a court has no reason to draw a distinction between the two because the software and computer are working together: the operation of one depends on the other. Indeed, the cases cited by the government discuss computers and the software installed on them as one unit. See, e.g., Zang, 833 F.3d at 633 (“[O]nce installed on a computer, WebWatcher automatically acquires and transmits communications to servers”); Klumb, 884 F. Supp. 2d at 661 (“The point is that a program has been installed on the computer which will cause emails sent at some time in the future through the internet to be re-routed[.]”); see also Shefts, 2012 WL 4049484, **6-10 (variously referring to servers, email accounts, software, and BlackBerry smartphones as interception devices).

For purposes of the § 2512 charges in this case, however, the distinction between software and computer is important. In Counts Two through Four, there is no computer, which would not be true in any scenario involving an actual interception. As noted in Potter, software alone is incapable of intercepting anything. 2008 WL 2556723, at *8. “It must be installed in a device, such as a computer, to be able to do so.” protected computer,” which is necessary to violate § 1030(a)(5)(A).

In both cases, the defense is basically arguing that not only do Hutchins’ actions not meet the terms of the statute, but the indictment was also badly written in an unsuccessful attempt to make those statutes apply.

These are alleged crimes for which the government has refused to identify victims, provided none of the requisite evidence of intentionality, applied to software that doesn’t obviously qualify under either of the charged laws. Some of that is a problem with the indictment, as written. Much about this case suggests the government assumed Hutchins would plead quickly, obviating the need to write an indictment that could hold up to a trial. As I noted, in its response a few weeks ago, the government claimed (after threatening that it might) it was planning on obtaining a superseding indictment.

The government plans to seek a superseding indictment in this case, and in doing so will correct this drafting error and moot Hutchins’s argument.

Two weeks later, there’s still no sign of the indictment that fixes the aspects the government admits are flawed, much less the other scope issues. And so now Hutchins is asking for the indictment — all counts of it, between one challenge or another — be dismissed with prejudice.

I’m not sure that will happen — judges have proven the ability to interpret CFAA to include all manner of bad hacker stuff. But an outright dismissal might put the government out of the misery it brought on itself with a case it should never have charged.

 

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On Manafort’s Referral of the Papadopoulos Offer(s)

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I want to return to something from the George Papadopoulos plea agreement in light of last week’s HPSCI Russia reports. In it, there was a footnote describing Paul Manafort’s response to Papadopoulos’ email about efforts to set up a meeting between Trump and Putin.

On or about May 21, 2016, defendant PAPADOPOULOS emailed another high-ranking Campaign official, with the subject line “Request from Russia to meet Mr. Trump.” The email included the May 4 MFA Email and added: “Russia has been eager to meet Mr. Trump for quite sometime and have been reaching out to me to discuss.”2

2 The government notes that the official forwarded defendant PAPADOPOULOS’s email to another Campaign official (without including defendant PAPADOPOULOS) and stated:

“Let[‘]s discuss. We need someone to communicate that DT is not doing these trips. It should be someone low level in the campaign so as not to send any signal.”

The Majority HPSCI Report explains the email, first, by noting that it accompanied another one Papadopoulos forwarded regarding a proposed Greek meeting. Then it described Gates and Manafort referring the requests for “these meetings” to a correspond to both.

(U) Although the Committee has no information to indicate that Papadopoulos was successful in setting up any meetings between the Trump campaign and the Russian government, he worked with campaign chief executive Steve Bannon to broker a September 2016 meeting between candidate Trump and Egyptian president Abdel Fatah el-Sisi.181 Trump was apparently pleased with the meeting, which he described In an Interview as “very productive,” describing el-Sisi as “a fantastic guy.”182

(U) While on a trip to Athens, Greece in May 2016, Papadopoulos sent an email to Manafort stating that he expected to soon receive “an official invitation for Mr. Trump to visit Greece sometime this summer should his schedule allow.”183 In the same email to Manafort, Papadopoulos also forwarded a meeting Invitation from Ivan Timofeev, Director or [sic] Programs for the Russian International Affairs Council, and claimed that “Russia has been eager to meet Mr. Trump for quite sometime and have been reaching out to me to discuss. thought it would be prudent to send to you.”184

(U) As of May 2016, Manafort had not yet been elevated to campaign chairman, but had a long track record of work abroad. Manafort forwarded Papadopoulos’ email to his business and campaign deputy [Rick Gates] noting that we need someone to communicate that D[onald] T[rump] is not doing these trips.” 185 Manafort and [Gates] agreed to assign a response of a “general letter” to “our correspondence coordinator.” the person responsible for “responding to all mail of non-importance.”186

Curiously, this account is based off Gates’ production; it should exist in the campaign’s production as well.

The clarification would seem to suggest that Manafort was treating all requests for Trump meetings as formalities, to be responded to with a regrets letter sent by a low level clerk. But it still doesn’t explain what Manafort meant when he said “It should be someone low level in the campaign so as not to send any signal.”

But there’s another detail that may undermine the claim that Manafort responded to all requests for Russian meetings with regrets. As the Minority HPSCI Report makes clear, Manafort received another request for a Trump-Putin meeting within days of the Papadopoulos one, one tied to Aleksandr Torshin’s trip to the NRA meeting.

On May 10, 2016, Erickson reached out to Rick Dearborn, a longtime senior advisor to Jeff Sessions and a senior campaign official:

“Switching hats! I’m now writing to you and Sen. Sessions in your roles as Trump foreign policy experts / advisors. […] Happenstance and the (sometimes) international reach of the NRA placed me in a position a couple of years ago to slowly begin cultivating a back-channel to President Putin’s Kremlin. Russia is quietly but actively seeking a dialogue with the U.S. that isn’t forthcoming under the current administration. And for reasons that we can discuss in person or on the phone, the Kremlin believes that the only possibility of a true re-set in this relationship would be with a new Republican White House.”44

The email goes on to say that Russia planned to use the NRA’s annual convention to make “first contact” with the Trump campaign and that “Putin is deadly serious about building a good relationship with Mr. Trump. He wants to extend an invitation to Mr. Trump to visit him in the Kremlin before the election.”45

Dearborn communicated this request on May 17, 2016 to the highest levels of the Trump campaign, including Paul Manafort, Rick Gates, and Jared Kushner. The effort to establish a back-channel between Russia and the Trump campaign included a private meeting between Torshin and “someone of high rank in the Trump Campaign.”46 The private meeting would take place just prior to then-candidate Trump’s speech to the NRA. As explained in Dearborn’s email, such a meeting would provide Torshin an opportunity “to discuss an offer he claims to be carrying from President Putin to meet with DJT. They would also like DJT to visit Russia for a world summit on the persecution of Christians at which Putin and Trump would meet.”47

The account of the NRA outreach is a bit muddled between the two reports. But Kushner passed on a related one from Rick Clay — not because he didn’t want to take the meeting, but because he worried they couldn’t verify the back channel.

“Pass on this. A lot of people come claiming to carry messages. Very few we are able to verify. For now I think we decline such meetings,” as well as “(b)e careful.”

But as both reports make clear, Don Jr did meet, briefly, with Torshin, though there is no known record of their face-to-face exchange.

The Majority’s finding on this topic affirms that Trump Jr. met with a Russian government official, Alexander Torshin, at the event, but conveniently concludes that “the Committee found no evidence that the two discussed the presidential election.”48 As with many findings in the report, this relies solely on the voluntary and self-interested testimony of the individual in question, in this case Trump Jr. The Majority refused multiple requests by the Minority to interview witnesses central to this line of inquiry, including Torshin, Butina, Erickson, and others.

These accounts come from the Sessions and Dearborn production. Again, both should also be available via the campaign, but that’s not where they came from, and the NRA requests were also sent to Manafort and Gates (so Gates’ production should include any response from Manafort).

As noted in both reports, Don Jr. met Torshin briefly on May 19, two days after the request for a high level meeting got passed onto senior people in the campaign.

Both reports separate the timelines out by source — and the Majority one presents events out of order, which adds to the confusion. But here’s how the two outreach efforts look.

May 4 [this gets forwarded to Lewandowski, Clovis, and Manafort by May 21]:

Timofeev to Papadopolous “just talked to my colleagues from the MFA. [They are] open for cooperation. One of the options is to make a meeting for you at the North America Desk, if you are in Moscow.”

Papadopolous to Timofeev: “Glad the MFA is interested.”

May 4, Papadopoulos to Lewandowski (forwarding Timofeev email):

“What do you think? Is this something we want to move forward with?”

May 5: Papadopoulos has a conversation with Sam Clovis, then forwards Timofeev email, with header “Russia updates.”

May 8, Timofeev to Papadopoulos:

Emails about setting Papadopoulos up with the “MFA head of the US desk.”

May 10, Paul Erickson email to Rick Dearborn proposes a meeting between Torshin and “someone of high rank in the Trump Campaign … to discuss an offer [Torshin] claims to be carrying from President Putin to meet with DJT.”

May 13, Mifsud to Papadopoulos:

“an update” of what they had discussed in their “recent conversations,” including: “We will continue to liaise through you with the Russian counterparts in terms of what is needed for a high level meeting of Mr. Trump with the Russian Federation.”

May 14, Papadopoulos to Lewandowski:

“Russian govemment[] ha[s] also relayed to me that they are interested in hostingMr. Trump.”

May 16: Rick Clay email to Rick Dearborn mentions an “overture to Mr. Trump from
President Putin.” Kushner responds, “Pass on this. A lot of people come claiming to carry messages. Very few we are able to verify. For now I think we decline such meetings.”

May 21, Papadopoulos to Paul Manafort, forwarding May 4 email:

“Request from Russia to meet Mr. Trump”

“Regarding the forwarded message, Russia has been eager to meet Mr. Trump for quite some time and have been reaching out to me to discuss.”

May 21, Manafort forwards Papadopoulos email to Rick Gates:

“Lets discuss. We need someone to communicate that DT is not doing these trips. It should be someone low level in the campaign so as not to send any signal.”

As noted, there should be more in the Gates production to describe what Manafort was up to, if he was indeed opposed to meetings themselves.

Of course, we don’t have that — though Mueller does have Gates wrapped up in a cooperation agreement.

Meanwhile, Don Jr kept doing meetings with Russians he would go on to disclaim. And weeks after all these invitations for high level meetings, he, Kushner, and Manafort took a meeting with someone all three had reason to trust, Aras Agalarov’s representatives.

 

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The Hole in the HPSCI Exoneration: Trump’s Hiring of Mike Flynn

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I’ll have a lot to say about HPSCI’s attempt to exonerate Trump in their Russia report released today. But for now I want to point to a big hole in it.

After laying out the four members of HPSCI complains (for the most part, fairly) that DOJ didn’t warn Trump about the four members of his staff who were viewed as a CI problem.

The Committee found that the Trump campaign was not notified that members of the campaign were potential
counterintelligence concerns. This lack of notification meant that the campaign was unable to address the problems with each campaign member and was ignorant about the potential national security concerns. AG Lynch recalled that, during her first meeting with Director Comey and McCabe about Page, “one of the possibilities the three of us discussed was whether or not to provide what is called a defensive briefing to the
campaign, wherein there would be a meeting with a senior person with the Trump campaign to alert them to the fact
that … there may be efforts to compromise
someone with their campaign.” 102

The suggestion is that, had someone only warned Trump that people suspected of being recruited by Russians were infiltrating his campaign, they wouldn’t have been there.

Except just before this passage, the report makes clear that the Flynn investigation pre-dated his hiring as National Security Adviser, included an examination of a meeting between him, his spawn, and Sergey Kislyak as well as the better publicized RT event in Moscow.

Trump can’t complain that he wasn’t warned about Flynn before hiring him, because Obama did warn him, and not just because of Obama’s problems with Flynn at DNI, but also because of concerns about his ties with Russia.

Obama warned Trump about Flynn during their Oval Office meeting on November 10, days after Trump was elected president.

“Given the importance of the job, the President through there were better people for it, and that Flynn wasn’t up for the job,” a former senior Obama administration official told CNN Monday.

[snip]

But at least one former Obama official disputed that, saying Obama’s concerns were not related to the firing of Flynn from the Defense Intelligence Agency but rather in the course of the investigation into Russian interference into the 2016 election.

“Flynn’s name kept popping up,” according to a senior Obama administration source.

In other words, in the one case where we know Trump knew of a tie between a top aide and Russia, he hired the person anyway. And then ordered him to reach out to the Russians to undercut Obama’s policies.

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SDNY Will Be Forced to Talk about Crimes Involving the President Today

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At 2PM today, in a court room in southern Manhattan, a lawyer someone hired last Wednesday to represent Donald Trump, Joanna Hendon, will push prosecutors from the Southern District of New York to explain that they have probable cause to believe crimes involving the president have been committed. Here’s why.

Last Monday, the FBI served Michael Cohen warrants listing crimes known to pertain to his taxi medallion businesses and his efforts to suppress information about Trump’s embarrassing sexual behavior, though the warrants themselves probably listed bank fraud, wire fraud, and campaign finance violations as the crimes. “[T]he riders to the search warrants – copies of which have been provided to Cohen – identify the federal criminal statutes under which Cohen is being investigated,” the government emphasized in its memo.

The taxi medallion stuff has no known tie to Trump. The hush arrangements clearly do, but at least in the case of Stormy Daniels, Trump and Cohen have both publicly denied an attorney-client role, which the government pointed out. “President Trump has publicly denied knowing that Cohen paid Clifford, and suggested to reporters that they had to ‘ask Michael’ about the payment.” It’s certainly possible Cohen has claimed to have firewalled Trump in other hush payments in the same effort to avoid campaign finance violations; to the extent that Trump has not been a formal party in those agreements, he may have likewise waived privilege.

And then there’s the crime-fraud exception to privilege, which the government invokes four times in its response to Cohen, describing how an investigative team can legally access such materials without approval from Cohen or his client if a judge okays it.

[T]he Filter Team will review them to determine whether the material is: (1) not privileged, (2) potentially privileged, (3) requires redaction, and/or (4) potentially meets an applicable exception (for example, the crime-fraud exception). To be clear, under no circumstances will a potentially privileged document or a document potentially subject to the crime-fraud exception be provided to or described to the Investigative Team without the consent of the privilege holder or his/her counsel, or the court’s approval. If the Filter Team is unable to clarify a document’s category, or if there is an exception to the privilege that applies to particular material, such as the crime-fraud exception, or any waiver of the privilege – the Filter Team will (1) confer with counsel for the privilege holder at the appropriate time and before any such material is shared with the Investigative Team and, if no agreement can be reached, submit the material under seal to an appropriate court for a determination as to whether the material is privileged;

[snip]

In the face of inaccurate and/or overbroad claims of privilege, the USAO-SDNY would be seriously prejudiced if it were not able, through a Filter Team, to evaluate the validity of such claims. As Judge Barbara Jones explained in permitting review by a filter team, “[w]ithout the benefit of such a review, the privilege team would likely be unable to argue, for example, that no attorney-client privilege attached to the communication because of the crime-fraud exception, or that a document should be available for use at trial, regardless of work-product contents, because of necessity and unavailability by other means.” [my emphasis]

Even though the FBI informed Cohen he was raided as the subject of an investigation pertaining to his own business, he fought the memo by invoking the part of the US Attorney’s Manual pertaining to witnesses, not subjects, which SDNY corrected.

Cohen’s reliance on the USAM misplaced, but he invokes the wrong section. Cohen cites to section 9-19.220 of the USAM, which, as Cohen points out, applies to “attorneys who are not suspects” of a criminal investigations. See Br. at 22; USAM § 9-19.220 (noting the procedure to be followed when privileged materials are sought from a “disinterested third party”). Cohen, however, is not the disinterested third party contemplated by the USAM. The applicable provision is that which applies when the attorney is a “suspect, subject or target” of the investigation.

And even though he was told he was being investigated for crimes unrelated to it, his lawyers nevertheless treated the raid as part of the Mueller investigation. Their description of communications with SDNY, for example, begins this way, followed by several redacted lines.

On April 9, 2018, Mr. Cohen’s legal counsel was advised in a telephone call by an Assistant United States Attorney from the Southern District of New York, that the Office of Special Counsel (Robert Mueller) had “referred a portion of” the subject matter of the warrants to the U.S. Attorney’s Office for the Southern District of New York. Id. ¶ 31. Each page of the attachments to the search warrants contains a footer with the date “2017.08.02” (August 2, 2017)—that happens to be the same date that the Office of Special Counsel’s jurisdiction was amended by the Deputy Attorney General. One obvious and credible explanation is that the attachments listing the subject matter of the warrant used by the U.S. Attorney’s Office were drafted by the Office of Special Counsel as earlier as that date. [three lines redacted]

The government, in addition to mocking Cohen’s assumption based off the footer metadata, reveals what that redaction hides: Cohen speculated, “see Br. at 10, that the SCO drafted the search warrants.”

Nevertheless, both sides treat Cohen’s attempt to treat this as a question of the Russia investigation seriously. The government provides three pieces of evidence to describe why Cohen couldn’t be trusted to turn these materials over pursuant to a subpoena — because the crimes themselves involve fraud and deception, because he had, by Friday, already invoked the Fifth in the Stormy Daniels civil suit suggesting he’d withhold documents here as well, and because a tantalizingly redacted passage that suggests Cohen or someone else has already started destroying evidence…

In addition, however, the government does contest Cohen’s claim that he fully cooperated with any of the three Russia investigation his lawyer addresses at length in his declaration, which (having treated this raid as part of the Mueller investigation rather than pertaining to separate crimes) he uses to argue that Cohen could be trusted to turn over documents willingly. For example, the government notes that Cohen himself has said he didn’t cooperate with the Congressional investigations (and wasn’t treated as a target).

It appears that Cohen was not a target of those investigations. Additionally, while Cohen claims in his motion to have been cooperative, he offers no support for this assertion. Publicly, Cohen suggested the opposite, telling Time Magazine that he declined a voluntary request from Congress because it was “too broad.”

Even better, and critically important to the Trump filing submitted last night, is where SDNY fact checks the Cohen claim, backed by his lawyer’s sworn declaration, that he hadn’t fully cooperated with Mueller’s investigation because Mueller asked for everything.

Cohen also states that the SCO “had requested that the Trump Organization produce all of Mr. Cohen’s communications that were within the Trump Organization’s custody, possession, or control,” and that Cohen objected “on the grounds that [the request] called for production of privileged communications, among other things.” (Br. 8-9). Although in the ordinary course, the USAO-SDNY would not comment on investigative requests or demands made to third parties, particularly those from a separate office undertaking its own, independent investigation, in light of the representations made by Cohen’s counsel, USAO-SDNY contacted the SCO about these representations and understands they are not accurate. In particular, the SCO did not request that the Trump Organization produce “all communications” by Cohen in the Trump Organization’s possession or control irrespective of subject matter or privilege. Indeed, the request made by the SCO was considerably narrower, and specifically omitted, among other things, any documents that were protected by privilege or of a purely personal nature. Cohen nonetheless objected to that request for documents and, after discussions between Cohen’s counsel and the SCO, the SCO decided not to seek production at that time. That Cohen sought to preclude the Trump Organization from producing these third party communications belies both (i) his general assertion of cooperation, and (ii) his stated principal interest in protecting attorney-client communications. Indeed, a careful review of Cohen’s motion papers reveals that he does not purport to have personally produced any documents to the SCO.

The intransigence pertaining to Cohen’s documents involving the Trump Organization continued over to last week’s response. While the Trump Organization (which I suspect is really who hired Hendon) did not request to be party to this fight, they did send SDNY a letter last week demanding that it return every document involving Cohen and the Trump Organization.

USAO-SDNY has already received correspondence from counsel for the Trump Organization (Cohen’s former employer), which referenced the searches conducted of Cohen’s premises and claimed:

We consider each and every communication by, between or amongst Mr. Cohen and the Trump Organization and each of its officers, directors and employees, to be subject to and protected by the attorney-client privilege and/or the work-product privilege.

As a reminder: in March, Mueller subpoenaed the Trump Organization for documents, including but not limited to Russia. That’s one reason, I suspect, that Cohen believes this raid is partly about supporting Mueller’s investigation (I wonder whether Trump Org is the entity that has started destroyed documents?). And that’s one reason, I suspect, that Cohen’s team made a bid to review the seized documents for responsiveness (they use the word 13 times in their filing) before SDNY’s taint team gets the documents.

That is, in addition to whatever other crimes Cohen has facilitated for the Trump Organization, he wants to make sure that the government can’t use materials seized in this raid to investigate other crimes, such as those Cohen might be suspected of in relation to the Mueller investigation.

Having failed to cooperate with both the congressional and Mueller investigations, which is one reason SDNY cites for having used a warrant rather than a subpoena, Cohen now wants to reset the clock so he can treat this raid as a subpoena rather than a warrant so he gets to decide what is responsive to the crimes he is being investigated for or even to the demands of the Russia investigation.

Frankly, to the extent that Mueller might use Cohen’s own crimes as an excuse to search his documents (which the FBI seems to have sorted, even to the level of describe specific checks on the search warrant returns) and his devices (which they seized) to find materials relating to the Russian investigation, I’m sympathetic to Cohen’s case. Sure, Mueller can and may already be working on obtaining warrants to search for materials he might use now that the devices are in the government’s possession. But given how advanced the Mueller investigation is, it seems the government should be expected to obtain separate probable cause warrants rather than rely on plain view doctrine to search for materials on Cohen’s devices relating to Russia.

All of which brings us to the letter Hendon submitted last night on behalf of Trump personally. Herndon actually goes several steps further than Cohen’s team did (while he asked to do the first review, he made a concerted case to appoint a Special Master to do it), asking that Cohen get copies of the seized materials, after which Cohen will decide what pertains to Trump, which Trump will then get to review to decide whether he will assert privilege, only after which SDNY will be permitted to object.

1. Enjoining the government from using a taint team to conduct an initial privilege review;

2. Directing the government to provide Mr. Cohen and his counsel with a copy of the materials seized from Mr. Cohen by the government on April 9, 2018;

3. Directing Mr. Cohen and his counsel, after the government provides Mr. Cohen and his counsel with a copy of the seized materials, to identify to the President all seized materials that relate to him in any way and to provide a copy of those materials to him and his counsel;

4. Directing the President and his counsel, after they review the materials provided by Mr. Cohen, to identify for the government’s taint team all materials over which the President asserts privilege;

5. Authorizing the government’s taint team to raise any objections to the President’s assertions of privilege with the Court; and

6. Prohibiting the government’s taint team from providing the Investigation Team with (a) any materials over which the President asserts a privilege without objection from the taint team, and (b) any materials that the Court rules are privileged over the taint team’s objection.

This effectively flips the process on its head, turning the seizure back into a subpoena situation. And while Herndon doesn’t make this as obvious as Cohen’s team did, they intend the Cohen and Trump reviews to include a review of responsiveness as well as privilege.

The level of protection provided to the privilege-holder in the familiar context of a grand jury subpoena duces tecum should be accorded to the President here. When a grand jury subpoena for documents is served, the recipient, with the advice of his counsel, reviews the documents in his possession and produces the responsive documents, with one critical exception: with notice to the government, the recipient withholds all responsive documents that he and his counsel conclude are subject to a privilege, identifying such documents in some fashion without disclosing the privileged contents, often by means of a privilege log. [my emphasis]

Curiously, Herndon doesn’t contest that the government has good reason to believe materials have gotten destroyed, but says that now that the government has obtained the documents, any risk of destruction is gone. Here’s the entirety of the section where Herndon addresses the government’s need to seize these documents.

Of course, here, the government chose not to serve a grand jury subpoena, but instead to execute search warrants on an attorney’s office, residences, and effects. The government asserts that this truly extraordinary measure was necessary to prevent the destruction of evidence. (Gov’t Opp. at 14.) But even if that is true, the exigency has dissipated entirely, as the seized materials are now in the government’s control, beyond any of the potential misuses of the materials that motivated the seizure in the first place. Therefore, the fact that the government seized privileged documents rather than subpoenaing them is now irrelevant – except for the profoundly important privilege issues that the government’s unilateral and peremptory action has raised.

The government insists that it is “entitled” to the seized materials. (Id. at 2, 19.) However, to the extent the government seized privileged information, it is not entitled to have that information, much less review it. See, e.g., von Bulow, 828 F.2d at 99 (recognizing the “urgent” “need for timely protection [from disclosure] … where the discovery sought is … blanketed by the absolute attorney-client privilege”). It simply cannot be the case that by acting in such an aggressive, intrusive, and unorthodox manner, the government has somehow created an entitlement on its own part to eliminate the President’s right to a full assertion of every privilege argument available to him. Indeed, if the Court were to endorse the use of a taint team under these circumstances, raids of law offices would likely become more commonplace, as they would permit the government to wrest from the privilege-holder the ability, in the first instance, to assert privilege over documents and rightfully withhold them.

The government has done what it has done, and it has thereby protected against every notional evil it could have articulated in favor of its action. It no longer has any cognizable interest in proceeding by any procedure other than that which is typically employed to ensure that the attorney-client privilege is fully protected.

Note what has fallen out of the discussion of exigency? The crime-fraud exception, which SDNY had made clear it expected to find ample evidence of.

Elsewhere, Herndon does mention SDNY’s expectations of finding materials that fall under the crime-fraud exception, but she suggests that a taint team cannot be trusted to access the documents first because it might provide the investigative team documents that are clearly not privileged, a non sequitur to the point of crime-fraud exception documents.

The government has assured the Court that “under no circumstances will a potentially privileged document or a document potentially subject to the crime-fraud exception be provided to or described to the Investigative Team without the consent of the privilege-holder or his/her counsel, or the court’s approval.” (Gov’t Opp. at 6.) Presumably the government intends by those words to comfort the Court, but the government simply cannot make that guarantee. See, e.g., Lek, 2018 WL 417596, at *1-3. As discussed above, under the government’s proposal, the taint team will turn over to the Investigative Team all materials that the taint team itself deems not privileged. If such materials contain any privileged information that the taint team failed to identify, the President’s privilege will be irremediably violated. The President, the public, and the government have a vital interest in ensuring the integrity of the privilege review process, and the taint team procedure is plainly inadequate to the task. [my emphasis]

Remarkably, Herndon suggests that the public (!!!) has an interest in letting criminal suspect Michael Cohen, who has already proven uncooperative with valid investigations, sort through his materials to decide whether the government should have documents that prove he abused his position as a lawyer to commit fraud on behalf of a client.

As the government has said, it’s not clear Cohen has any clients besides Donald Trump.

Which is why I suspect SDNY is going to provide details in court today of the crimes that it has probable cause to believe were committed. Because, in the face of an otherwise compelling claim that this is an exceptional case, what SDNY is investigating is still that Cohen served not to provide legal advice to Donald Trump, but to provide legal cover for fraud.

I have no idea what Kimba Wood will do in response (and I suspect SDNY will challenge the legal precedents Herndon has invoked).

But I suspect we’re going to hear a lot more about how SDNY has reason to believe that Michael Cohen hasn’t been serving as a lawyer for Trump, he has been serving as a fixer for him.

And Stormy Daniels will be looking on as evidence of that fact.

Update: In their filing laying out the scope of what Michael Cohen considers privileged this morning, his lawyers make their concerns about plain view doctrine even more explicit.

The choice here is between allowing the Government to make an end run around the Fourth Amendment by scooping up and viewing all of the communications seized in the search of a lawyer’s office (in this case, all of the documents and data of the President’s personal attorney) regardless of whether the documents seized were the subject of the judge’s original probable cause determination, or appointing a neutral third party to conduct that review. If the government can obtain a search warrant for particular items but then seize and review everything in an attorney’s office, the protections of the Fourth Amendment are meaningless.

[snip]

In addition, a Special Master should be appointed in the interest of the administration of justice to ensure that the Government does not have access to materials for which they have not yet shown would be obtained through a valid search warrant through a showing of probable cause. In obtaining the search warrant, the Government had to make a showing of probable cause that Mr. Cohen is in possession of evidence of a crime. The search warrant is designed to allow the Government to obtain that material – and that material only.

And they again invite SDNY to lay out evidence that this stuff isn’t covered under the crime-fraud exception.

Moreover, without proffering any evidence of its applicability, the government referred to the “crime-fraud” exception in its opposition brief, (Gov’t Opp. Br. at 6, 10), and during oral argument. 4/13/18 Tr. at 28. The government also referred to its search warrant application – which we have never seen – as including “evidence for the crimes that were set forth in [a] detailed affidavit.” 4/13/18 Tr. at 60. Since there is, according to the government, an “ongoing grand jury investigation” (which is required to remain secret), it would most certainly be embarrassing and “detrimental” to Mr. Cohen’s clients if he were to reveal their identities publicly.

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