Bill Barr Complains that His Special Counsel Was Unable to Match Robert Mueller’s Record of Success

Even before the Igor Danchenko trial, Billy Barr declared victory in defeat — arguing that if John Durham could just “fill in a lot of the blanks as to what was really happening,” the inevitable acquittal would still give Durham an opportunity to spin fairy tales about what Durham imagines happened.

“What these cases show is that these are difficult cases to win,” Barr said. “There’s a reason it takes so long, and you have to build up the evidence because at the end of the day, you’re going before these juries that aren’t going to be disposed to side with the people they view as supporting Trump.”

Danchenko is slated to go on trial next month on charges of lying to the FBI about the Steele dossier, for which he was the main source. The dossier claimed that Trump and members of his campaign and company had established extensive ties to the Russian government and had colluded during the 2016 election.

The trial is widely expected to be the final criminal prosecution from Durham’s investigation before he submits a report of his findings to Attorney General Merrick Garland.

But despite Durham’s limited success in the courtroom, Barr defended the investigation he ordered, saying the courtroom was allowing Durham to establish a record of what had occurred with the so-called Russiagate investigation.

“I think Durham got out a lot of important facts that fill in a lot of the blanks as to what was really happening,” Barr said. “My expectation is … the Danchenko trial will also allow for a lot of this story to be told, whether or not he’s ultimately convicted. I hope he’s convicted, but if he isn’t, I still think it provides an avenue to tell the story of what happened.”

Like an obedient puppy, Durham did use the trial as an opportunity to get extraneous details into the public record. On top of the $1 million dollar offer that Brian Auten said, vaguely, Christopher Steele might have gotten if he had corroborated the dosser — which has been treated like an FBI attempt to bribe a source for dirt on Trump and as the most exonerating possible detail, rather than an effort to investigate a real threat to the country — Durham went out of his way to give the full names of people at various meetings so Carter Page and Donald Trump can add them to lawsuits.

Mind you, along the way, the trial also revealed the FBI’s own assessment of Danchenko’s cooperation, which contributed to 25 investigations and which Barr burned to a crisp by exposing him, with Lindsey Graham’s help, as a source in 2020.

Q. And you were concerned, in July of 2020, when you became aware that Attorney General Barr was going to release a redacted version of Mr. Danchenko’s interview in January of 2017?

A. Yes.

Q. You were upset about that?

A. I was.

Q. You found out about that during a telephone conference, right?

A. I did.

Q. And you disagreed with that decision?

A. I did.

Q. The OIG had already completed a report on that investigation, correct?

A. Yes.

Q. And you thought that the release of that document was dangerous?

A. Yes.

Q. You even wrote up a memo of that phone call you were on in July of 2020 where you learned that they were going to publish a redacted version of his interview, correct?

A. I did.

[snip]

Q. And within an hour of Mr. Danchenko’s January interview being released to the senate judiciary committee, the senate judiciary committee, I won’t say who, released it to the public?

A. They did.

[snip]

Q. So, Agent Helson, you wrote in October of 2020 that from 2017 until present day, Mr. Danchenko had provided information on at least 25 FBI investigations assigned to at least six field offices?

A. Correct.

Q. In addition, he aided the United States Government by introducing the United States Government to a sub-source who had provided additional information separate to his report, correct?

A. Correct.

[snip]

Q. And it’s noted that he — his reporting contributed to at least 25 active FBI investigations.

[snip]

Q. In July of 2020 his identity became public after the release of the redacted version of his interview in January of 2017. Since that public disclosure, he has received threatening messages via social media and email. It’s resulted in significant damage to his reputation from false and baseless claims aimed to undermine his credibility. Those are your words, correct?

A. Correct.

Q. The Washington Field Office had assessed that this will have negative ramifications with respect to his ability to provide for his family via personal income for the foreseeable future, correct?

A. Correct.

Q. And while the FBI cannot promise complete anonymity to anyone who provides information, his identity became public only after the decision was made to release the redacted version of his interview, correct?

A. Correct.

Q. As a result of that act, his ability to continue to provide information viable to the FBI is diminished as is his ability to provide financial support to his family.

After the trial, Barr has been spending time on Fox News declaring — as much of the frothy right has — that this record, of how he deliberately harmed national security for revenge, exposed the corruption of what Barr calls “Russiagate,” the moniker frothers use to distract from the real substance of the Russian investigation.

I was disappointed, obviously. I think they did a good job prosecuting the case. Their ability to put evidence on, in a very difficult case, was limited by some rulings, and they weren’t able to get access to some witnesses overseas. So it was a tough — it was a tough case, so this should show people that it’s hard to win these cases, and sometimes it takes time to … to achieve justice. But as people say — I think Andy McCarthy said — the real public interest being served here was exposing the full extent of the corruption that was involved in Russiagate [sic] and the abuse by the FBI in that whole episode. And I think Durham is going to get a report out that’s gonna lay out all the facts.

Barr and everyone else are pointing to the exposures they and Durham made to justify their actions because they didn’t have evidence to support their claims.

Barr is whining that getting false statements convictions is hard. But Robert Mueller was able to prove that:

  • Alex Van der Zwaan lied to cover up his efforts, in conjunction with Konstantin Kilimnik and Rick Gates, to cover up Manafort’s effort to spin Ukraine’s politicized Yulia Tymoshenko prosecution during the 2016 election
  • George Papadopoulos lied to cover up his advance knowledge of the Russian effort to help Trump
  • Mike Flynn lied to cover up his back channel calls with Sergei Kislyak to undermine Obama Administration policy (and also that he was a paid agent of Turkey during the campaign)
  • Michael Cohen lied to hide the secret negotiations he had directly with the Kremlin about an impossibly lucrative real estate deal
  • Paul Manafort conspired to cover up a front organization he set up with Konstantin Kilimnik and (at a preponderance of the evidence standard) lied to cover up his August 2016 meeting with Kilimnik
  • Roger Stone lied and intimidated Randy Credico to cover up his real back channel to the Russian operation

I mean, Robert Mueller had no problem getting convictions, whether from guilty pleas, jury verdicts, or (in the case of Manafort’s lies about the August 2, 2016 meeting) a judge’s ruling.

One reason he had no problem was that these defendants were generally guilty of a lot more than just lying. It’s a lot easier to get Flynn to admit he lied about his back channel discussions with the Russian Ambassador, after all, when he was also on the hook for secretly being an agent of Turkey. It’s lot easier to get Papadopoulos to admit he lied about his advance warning of the Russian operation when he’s trying to stave off foreign agent charges tied to Israel. It’s a lot easier to get a jury verdict against Stone when he spent months plotting out his lies with multiple people on emails.

Mueller wasn’t able to get false statement verdicts from everyone, mind you. For example, because Steve Bannon and Erik Prince deleted their texts from early January 2017, Mueller did not charge them for false statements made to cover up meetings to set up a back channel with UAE and Russia. That’s one lesson that Durham should have taken to heart: Absent the mobile app records from Sergei Millian and Igor Danchenko, he had no way of knowing whether Millian called Danchenko on July 26, 2016.

That’s not the only evidentiary complaint Barr makes here. He’s complaining that Durham was unable to get hearsay admitted against Danchenko. He’s angry that Durham was not permitted to introduce Millian’s wild Twitter boasts as evidence without requiring Millian to show up and make those claims under oath. And he’s complaining that Durham wasn’t able to introduce his pee tape conspiracies without charging it.

But the most alarming of the former Attorney General’s statements — before and after the trial — embrace the notion that it is a proper goal of failed prosecutions to expose information that does not rise to the level of criminality.

As I’ll show in a follow-up, the Durham fiasco is part of a piece of Barr’s larger actions, both his other failed prosecutions — most notably, that of Greg Craig — but also his efforts to undo the convictions for which there was no reasonable doubt of guilt.

It’s not enough to talk about Durham’s unprecedented failure … it’s not enough to note that Durham and his prosecutors repeatedly failed to take basic investigative steps before embracing and charging conspiracy theories that juries didn’t buy … it’s not enough to note how, in an attempt to prove those conspiracy theories, Durham and his prosecutors and abused the prosecutorial system.

Durham’s entire project is a continuation of Barr’s unprecedented politicization of DOJ, one that not only places Republicans attempting to secretly work for hostile nations above the law, but that has made the country far less safe in many other ways.

It’s not just Durham prosecuted two men without any real hope of winning conviction, all to expose things that aren’t crimes. It’s that Billy Barr hired him to do just that.

In Both Bannon and Stolen Document Cases, Trump’s Associates Claim He Is Still President

Update: Judge Carl Nichols has sentenced Steve Bannon to four months in jail but has, as I predicted, stayed the sentence pending Bannon’s appeal. 

Twice in a matter of hours, filings were submitted to PACER in which lawyers interacting with Trump claimed the former President still exercised the power of President, well past January 20, 2021.

Accompanying a response to DOJ’s sentencing memo for Steve Bannon, for example, his lawyer Robert Costello submitted a declaration claiming that because Bannon had appeared before Congressional committees three times to testify (in part) about things he did while at the White House, he was right to expect that the January 6 Committee would treat him the same way — for events that long postdated his service in the White House — as they had for topics that included his White House service,

It’s not just that Costello is claiming that Bannon is claiming actions he took three years after he left the White House could be privileged. Just as crazy is Costello’s claim that this subpoena came “during the Trump Administration.”

Nuh uh. That guy was not President anymore in October 2021, when Bannon was subpoenaed.

More interesting are DOJ’s explanations for disputes between them and Trump over the documents he stole.

Best as I understand, this table shows the disputes, thus far.  (Trump’s attorney-client claims are those documents not mentioned here, though I’ve put question marks for the last three documents because there’s a Category C that may include some of those.)

 

As the government notes in its dispute of Trump’s claims, he identified most of these as personal, even documents that were solidly within his duties as President. This extends even so far as a letter the Air Force Academy baseball coach sent Trump, item 4.

The last of the nine documents (4) is a printed e-mail message from a person at one of the military academies addressed to the President in his official capacity about the academy’s sports program and its relationship to martial spirit. The message relates at a minimum to the “ceremonial duties of the President” (44 U.S.C. § 2201(2)) if not to his Commander-in-Chief powers.

The most important of those may be the clemency packages.

Six of the nine documents (2, 3, 7, 8, 12, 13), are clemency requests with supporting materials and relate to the President’s “Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” U.S. CONST. Art. II, § 2, cl. 1. Those requests were received by Plaintiff in his capacity as the official with authority to grant reprieves and pardons, not in his personal capacity.

For reasons I’ll return to, I think DOJ now believes that whatever document had classification markers in the packet that included clemency for Roger Stone and some kind of information about a French President is no longer classified. So the determination regarding whether Trump can treat pardons as personal gifts is likely to affect the ultimate resolution regarding the Stone clemency document, too.

But for those before the parties, Trump is claiming that people made personal requests for pardons of him, not requests to him in his role as President. That’s a dangerous premise.

More contentious still are Trump’s claims of Executive Privilege over four documents. Two pertain to his immigration policies. With that claim of Executive Privilege, he’s basically attempting to keep deliberative discussions about immigration out of the hands of the government.

Crazier still, though, are two documents that must reflect the operation of his post-presidential office. Both sides agree that item 15 — “meeting requests for your approval” — and item 16 — “Molly’s questions for POTUS approval” — are personal, even in spite of the reference to “POTUS.” Likely, they reflect the fact that Molly Michael, who had been Trump’s Executive Assistant at the end of his term, and who continued to work for him at Mar-a-Lago, continued to refer to him as “POTUS” after he had been fired by voters. That’s not unusual — all the flunkies surrounding Trump still call him President. But that means those two documents actually reflect the workings of Trump’s office since he left the White House.

And Trump has claimed Executive Privilege over them.

That’s ridiculous. But it’s tantamount to trying to suggest that anything involving him, personally, still cannot be accessed for a criminal investigation. Or maybe it reflects that he really, really doesn’t want the government to retain these two seemingly innocuous records.

As DOJ notes in their filing, even if both sides agree that these records are personal, DOJ can still argue they have cause to retain the documents for evidentiary purposes.

Although the government offers its views on the proper categorization of the Filter A documents as Presidential or personal records as required by the Order Appointing Special Master (ECF 91, at 4) and Amended Case Management Plan (ECF 125, at 4), that categorization has no bearing on whether such documents may be reviewed and used for criminal investigative purposes and does not dictate whether such documents should be returned to Plaintiff under Criminal Rule 41(g). Personal records that are not government property are seized every day for use in criminal investigations. And the fact that more than 100 documents bearing classification markings were commingled with unclassified and even personal records is important evidence in the government’s investigation in this case.

As DOJ noted in their 11th Circuit Appeal (filed after reviewing these records),

Moreover, unclassified records that were stored in the same boxes as records bearing classification markings or that were stored in adjacent boxes may provide important evidence as to elements of 18 U.S.C. § 793. First, the contents of the unclassified records could establish ownership or possession of the box or group of boxes in which the records bearing classification markings were stored. For example, if Plaintiff’s personal papers were intermingled with records bearing classification markings, those personal papers could demonstrate possession or control by Plaintiff.

Second, the dates on unclassified records may prove highly probative in the government’s investigation. For example, if any records comingled with the records bearing classification markings post-date Plaintiff’s term of office, that could establish that these materials continued to be accessed after Plaintiff left the White House.

These two documents, which both sides seem to agree reflected Trump’s office workings after he had left the Presidency, were probably intermingled with classified records. As DOJ notes, that likely shows that either Trump and/or Molly Michael had access to these classified records after neither had clearance to do so anymore.

Which might explain why Trump is trying to withhold these documents: because it is evidence not just that he continued to access stolen classified documents after he left the Presidency, but that he treated classified documents in such a way that someone else was able to too, which could be charged as another crime under the Espionage Act.

As I noted, Trump is now claiming that DOJ got some of these wrong, so it’s possible they’re rethinking their claim that Trump continued to be entitled to Executive Privilege as a private citizen. The claim of Executive Privilege over something both sides agree doesn’t pertain to the Presidency would just be another form of obstruction.

But in all phases of his post-Presidential efforts to avoid accountability, all those around Trump continue to indulge his fantasy that he still retains the prerogatives of the office.

Update: Trump has filed his dispute about DOJ’s filing. The highlighted cells in the table above reflect the changed determinations. Notably, Trump has withdrawn privilege claims regarding the likely office records that post-date his move to MAL. But he added EP designations to clemency packages.

My suspicion is that this reflects a changed strategy about how to avoid accountability for the most things, not any real dispute raised before DOJ filed.

Fronting for OVD: A Third Deripaska-Focused Indictment from Late September

DOJ rolled out two sanctions-related indictments targeting Russia yesterday. One, charged in Connecticut, accuses some Latvians and a Ukranian of attempting to purchase and re-export a jig grinder to “individuals in Russia.”

The indictment alleges that, beginning in 2018, Eriks Mamonovs, 33, and Vadims Ananics, 46, both citizens of Latvia who operated CNC Weld, a Latvia-based corporation, conspired with Stanislav Romanyuk, 37, a citizen of Ukraine and resident of Estonia who operated Estonia-based BY Trade OU, and others, including Janis Uzbalis, 46, of Latvia, and individuals in Russia and a Russia-based company, to violate U.S. export laws and regulations and smuggle a jig grinder that was manufactured in Connecticut to Russia. A jig grinder is a high-precision grinding machine system that does not require a license to export to European Union countries, but does require a license for export and reexport to Russia because of its potential application in nuclear proliferation and defense programs. [my emphasis]

The Latvians accused were arrested Tuesday; Ukranian Stanislav Romanyuk was arrested in Estonia on June 13. The actual indictment — described as a superseding indictment — was obtained on July 7, but is not yet publicly docketed.

The other indictment, which was charged in Brooklyn, charges five Russians — one of whom was arrested in Germany, the other in Italy, both on Monday — along with a Spaniard and a Venezuelan, for sanctions violations and money laundering.

Payment for NDA GmbH’s illicit activities was often consummated in U.S. dollars routed through U.S. financial institutions and correspondent bank accounts.  To facilitate these transactions, Orekhov and his coconspirators used fictitious companies, falsified “Know Your Customer” documentation and bank accounts in high-risk jurisdictions, causing U.S. banks to process tens of millions of dollars in violation of U.S. sanctions and other criminal laws.  In one conversation with Soto, Orekhov bragged that “there were no worries…this is the shittiest bank in the Emirates…they pay to everything.”  The scheme also utilized bulk cash drops with couriers in Russia and Latin America, as well as cryptocurrency transfers worth millions of dollars, to effectuate these transactions and launder the proceeds.

It, too, focuses on the military aspect of the scheme — and even claims to have found components obtained through this network on the battlefield in Ukraine.

As alleged, Orekov has served as the part owner, Chief Executive Officer and Managing Director of Nord-Deutsche Industrieanlagenbau GmbH (NDA GmbH), a privately held industrial equipment and commodity trading company located in Hamburg, Germany.  The other owner of NDA GmbH is Artem Uss, the son of the governor of Russia’s Krasnoyarsk Krai region.  Kuzurgasheva served as the Chief Executive Officer of one of the scheme’s shell companies and worked for NDA GmbH under Orekhov.  Using NDA GmbH as a front company, Orekhov and Kuzurgasheva sourced and purchased sensitive military and dual-use technologies from U.S. manufacturers, including advanced semiconductors and microprocessors used in fighter aircraft, missile systems, smart munitions, radar, satellites and other space-based military applications.  These items were shipped to Russian end users, including sanctioned companies controlled by Telegin and Tulyakov, such as Radioavtomatika, Radioexport and Abtronics, that serviced Russia’s defense sector.  Some of the same electronic components obtained through the criminal scheme have been found in Russian weapons platforms seized on the battlefield in Ukraine.

But there’s a significant component of the Brooklyn indictment that focuses on Oleg Deripaska and Rusal. The lead defendant, Yury Orekhov, is described as a former procurement manager for what the indictment makes clear is Deripaska and Rusal. [Note, the indictment variably transliterates his name Orekov and Orekhov; I’ll use the latter.]

OREKHOV previously worked as a procurement manager for a publicly-traded Russian aluminum company (the “Aluminum Company”) controlled by a Russian billionaire and industrialist (the “Oligarch”), an individual whose identity is known to the Grand Jury.

The identify of Rusal (and therefore Derispaska) is confirmed in a paragraph that describes the period of Rusal’s sanctions (which Reuters noted here).

On August 3, 2021, USS sent OREKHOV a draft communication to the Aluminum Company regarding business dealings with NDA GmbH. The letter began, “During the sanctions period, the Company [NDA GmbH] began to supply fuel oil for [the Aluminum Company in Guinea].” Notably, the Aluminum Company was included in the SDN List from on or about April 6, 2018 through on or about January 27, 2019.

For example, Orekhov and Artem Uss are accused of laundering money to purchase oil from Venezuela’s sanctioned PDVSA for the use of Rusal. The indictment cites communications from Orekhov to a trader Juanfe Serrano, referencing the sanctions against Deripaska.

Indeed, as reflected in numerous documents from the Aluminum Company and NDA GmbPI, the defendants YURY OREKOV and ARTEM USS repeatedly purchased oil from PDVSA, causing U.S. financial institutions to process U.S. dollar-denominated payments, and supplied it to the Aluminum Company. For example, in a March 2020 draft letter addressed to a Deputy of the State Duma (one of the chambers of Russian parliament), who was an associate of the Oligarch, NDA GmbH proposed alternate sources of supply for “[Aluminum Company] procurement,” including using a “small, aggressive trader” that “conducts high-risk transactions in the Caribbean region, including with the Venezuelan state-owned company PDVSA, which is under sanctions, [and] has excess profits due to a 40% discount on the selling price of oil.” On or about December 4, 2021, in a series of electronic communications between OREKHOV and the defendant JUAN FERNANDO SERRANO PONCE, OREKHOV wrote, “this is our mother company pasting a link to the Aluminum Company’s website and a link to the Oligarch’s Wikipedia page. OREKHOV stated, “He [the Oligarch] is under sanctions as well. That’s why we [are] acting from this company [NDA GmbH]. As fronting.” SERRANO responded, “My partner also haha … he is very close to the government. He is one of the influence people in Venezuela. Super close to the Vice President.” SERRANO pasted a link showing search results for a Venezuelan lawyer and businessman who was currently wanted by U.S. authorities for bribery and money laundering, an individual whose identity is known to the Grand Jury. Later, in a series of communications between OREKHOV and SERRANO in or about March 2022, OREKHOV sought a “term contract with [PDVSA]” for “1 million [barrels of oil] per month,” and clarified that, “with [the Aluminum Company] it’s an annual contract, every month, every month … this is stable for sure.” [my emphasis]

As described, the smuggling involved spans Germany, Venezuela, Dubai, Malaysia, Panama, China, and Australia, among other countries. Seven US companies are identified. In addition, there’s an Individual 1 tied to a “California-based consulting and logistics company” who met with Orekhov in Europe in 2019.

The entire indictment — and the timeline laid out in the conspiracy part — almost feels like two indictments: one that spans 2018 through January 2020 (when Bill Barr was trying to shut down inconvenient investigations) and a second one that restarted after Russia’s Ukraine invasion.

In two different paragraphs pages apart, the indictment describes a conversation that Uss and Orekhov had on March 30 of this year, after the expanded invasion of Ukraine started. While much of the context seems left out, it seems that Orekhov was getting cold feet on Russia.

28. On March 30, 2022, the defendant YURY OREKHOV asked the defendant ARTEM USS, “Have you decided to leave Russia?” USS joked in response, “[Y]ou want to be an international fugitive? It’s too much.” OREKHOV replied, “[A]nd you? Would you like to? 1 can arrange, very easy.”

[snip]

37. In a March 30, 2022 message exchange between the defendants YURY OREKHOV and ARTEM USS regarding NDA GmbH’s business with the Aluminum Company, USS wrote to OREKHOV, “[I]f you’re serious … I will meet with [the Oligarch’s initials] when 1 return to Moscow . . . and I will convey to him personally your desire to pay off all debt… if you don’t want to work with Russia now and it’s really toxic, then don’t work. I will follow this closely.”

That’s the kind of person who might be willing to make a deal.

As I said above, this is the third indictment of Deripaska-linked figures obtained in late September. The timeline looks like this:

September 21: Deripaska property manager Graham Bonham-Carter indicted in SDNY

September 26: Orekhov et al indicted in EDNY

September 28: Superseding indictment obtained against Olga Shriki, Deripaska, and others

September 29: Deripaska’s US-based associate Shriki arrested

October 11: Bonham-Carter arrested in the UK

October 17: Yury Orekhov and Artem Uss arrested in Germany and Italy, respectively

In less than a month, then, DOJ has charged Deripaska, both a US and UK based manager, and someone involved in illicit procurement for Deripaska and the Russian government, with arrests of those three key associates.

The announcements for all three describe the involvement in National Security Division’s Counterintelligence and Export Control Section — the spying section (the Connecticut announcement lists an NSD trial attorney, but it’s unclear whether he is specifically in the CECS section). The Orekhov indictment even describes that a CECS prosecutor will play a part in the prosecution. That implies DOJ’s interest goes beyond just sanctions violations.

It’s fairly impressive work and no doubt unbelievably complicated coordination, given all the other countries involved. But it feels like there might be a few more things in the work. As noted, while the indictment charging Deripaska personally moves for forfeiture of Deripaska’s three US-based properties, Shriki is not described as the primary person running those properties.

Judge Aileen Cannon Risked the Safety of the Country to Protect Two Probably Public Letters

There’s a detail from yesterday’s Raymond Dearie hearing that I’ve seen no other journalist cover: that filter team attorney Anthony Lacosta described sending a public link of this document to Trump attorney Jim Trusty on September 30.

If it’ll help the parties, I sent email to Trusty on 9/30 that sent a copy of letter at issue. I sent link, they appear to be the same, all that’s missing is signature.

We know from the privilege inventory that was accidentally docketed that it’s an 11-page letter from then Trump attorney Marc Kasowitz to Robert Mueller.

Lacosta mentioned that the letter had been published. That must mean the letter is this one, published by the NYT on June 2,2018 (here’s the text for those who can’t access the NYT).

As I noted weeks ago, this document from the same inventory also is almost certainly a letter released publicly years ago, too.

Harold Bornstein, who was then Trump’s personal physician, released a one-page letter dated September 13, 2016 as part of Trump’s campaign for President.

In other words, two of the documents that Judge Aileen Cannon pointed to in order to claim that Trump was suffering a grave harm that justified enjoining an ongoing criminal investigation into some of the most sensitive documents in US government have probably been public for years. Indeed, the Bornstein letter was released by Trump himself.

Here’s how the government described the harm Judge Cannon caused to the United States by enjoining DOJ’s access to these documents in their appeal to the 11th Circuit.

a. The government has a “demonstrated, specific need” for the records bearing classification markings

The government’s need for the records bearing classification markings is overwhelming. It is investigating potential violations of 18 U.S.C. § 793(e), which prohibits the unauthorized retention of national defense information. These records are not merely evidence of possible violations of that law. They are the very objects of the offense and are essential for any potential criminal case premised on the unlawful retention of the materials. Likewise, these records may constitute evidence of potential violations of 18 U.S.C. § 2071, which prohibits concealment or removal of government records.

The records bearing classification markings may also constitute evidence of potential violations of 18 U.S.C. § 1519, prohibiting obstruction of a federal investigation. As described above, on May 11, 2022, Plaintiff’s counsel was served with a grand-jury subpoena for “[a]ny and all documents or writings in the custody or control of Donald J. Trump and/or the Office of Donald J. Trump bearing classification markings.” DE.48-1:11. In response, Plaintiff’s counsel produced an envelope containing 37 documents bearing classification markings, see MJ-DE.125:20-21, and Plaintiff’s custodian of records certified that “a diligent search was conducted of the boxes that were moved from the White House to Florida” and that “[a]ny and all responsive documents accompany this certification,” DE.48-1:16. As evidenced by the government’s subsequent execution of the search warrant, all responsive documents did not in fact accompany that certification: more than 100 additional documents bearing classification markings were recovered from Plaintiff’s Mar-a-Lago Club. Those documents may therefore constitute evidence of obstruction of justice.

The government’s compelling need for these records is not limited to their potential use as evidence of crimes. As explained in the stay proceedings, the government has an urgent need to use these records in conducting a classification review, assessing the potential risk to national security that would result if they were disclosed, assessing whether or to what extent they may have been accessed without authorization, and assessing whether any other classified records might still be missing. The district court itself acknowledged the importance of the government’s classification review and national security risk assessment. DE.64:22-23. The government has further explained, including through a sworn declaration by the Assistant Director of the FBI’s Counterintelligence Division, why those functions are inextricably linked to its criminal investigation. DE.69-1:3-5. For example, the government may need to use the contents of these records to conduct witness interviews or to discern whether there are patterns in the types of records that were retained. The stay panel correctly concluded that a prohibition against using the records for such purposes would cause not only harm, but “irreparable harm.” Trump, 2022 WL 4366684, at *12; see also id. at *11. Plaintiff has never substantiated any interest that could possibly outweigh these compelling governmental needs, and none exists.

b. The government has a “demonstrated, specific need” for the remaining seized records The government also has a “demonstrated, specific need” for the seized unclassified records. The FBI recovered these records in a judicially authorized search based on a finding of probable cause of violations of multiple criminal statutes. The government sought and obtained permission from the magistrate judge to search Plaintiff’s office and any storage rooms, MJ-DE.125:37, and to seize, inter alia, “[a]ny physical documents with classification markings, along with any containers/boxes (including any other contents) in which such documents are located, as well as any other containers/boxes that are collectively stored or found together with the aforementioned documents and containers/boxes,” MJ-DE.125:38. The magistrate judge thus necessarily concluded that there was probable cause to believe those items constitute “evidence of a crime” or “contraband, fruits of crime, or other items illegally possessed.” Fed. R. Crim. P. 41(c)(1), (2); see MJ-DE.57:3.

That is for good reason. As an initial matter, the unclassified records may constitute evidence of potential violations of 18 U.S.C. § 2071, which prohibits “conceal[ing]” or “remov[ing]” government records. Moreover, unclassified records that were stored in the same boxes as records bearing classification markings or that were stored in adjacent boxes may provide important evidence as to elements of 18 U.S.C. § 793. First, the contents of the unclassified records could establish ownership or possession of the box or group of boxes in which the records bearing classification markings were stored. For example, if Plaintiff’s personal papers were intermingled with records bearing classification markings, those personal papers could demonstrate possession or control by Plaintiff.

Second, the dates on unclassified records may prove highly probative in the government’s investigation. For example, if any records comingled with the records bearing classification markings post-date Plaintiff’s term of office, that could establish that these materials continued to be accessed after Plaintiff left the White House. Third, the government may need to use unclassified records to conduct witness interviews and corroborate information. For example, if a witness were to recall seeing a document bearing classification markings next to a specific unclassified document (e.g., a photograph), the government could ascertain the witness’s credibility and potentially corroborate the witness’s statement by reviewing both documents.

In short, the unclassified records that were stored collectively with records bearing classification markings may identify who was responsible for the unauthorized retention of these records, the relevant time periods in which records were created or accessed, and who may have accessed or seen them. [my emphasis]

The government needs to figure out whether Trump’s negligence caused any compromise of highly sensitive documents.

But Judge Cannon decided that letters Trump released to impress voters are more important.

1,500 Investigative Subjects: A Competent Google GeoFence Motion to Suppress for January 6

For some time, I’ve been waiting for a January 6 defendant to (competently) challenge the use of a Google GeoFence as one means to identify them as a participant in January 6. (There have been incompetent efforts from John Pierce, and Matthew Bledsoe unsuccessfully challenged the GeoFence of people who livestreamed on Facebook.)

The motion to suppress from David Rhine may be that challenge. Rhine was charged only with trespassing (though he was reportedly stopped, searched, and found to be carrying two knives and pepper spray, but ultimately released).

As described in his arrest affidavit, Rhine was first identified via two relatively weak tips and a Verizon warrant. But somewhere along the way, the FBI used the general GeoFence warrant they obtained on everyone in the Capitol that day. Probably using that (which shows where people went inside the Capitol), the FBI found him on a bunch of surveillance video, with his face partly obscured with a hat and hoodie.

The motion to suppress, written by Tacoma Federal Public Defender Rebecca Fish, attempts to build off a ruling in the case of Okello Chatrie (and integrates materials from his case) to get the GeoFence used to identify Rhine and everything that stemmed from it thrown out.

The three-step GeoFence Warrant and the returns specific to Rhine are sealed in the docket.

But the MTS provides a bunch of the details of how the FBI used a series of warrants to GeoFence the crime scene.

First, as Step 1, it got a list of devices at the Capitol during the breach, either as recorded in current records, or as recorded just after the attack. At this stage, FBI got just identifiers used for this purpose, not subscriber numbers.

The geofence warrant requested and authorized here collected an alarming breadth of personal data. In Step 1, the warrant directed Google to use its location data to “identify those devices that it calculated were or could have been (based on the associated margin of error for the estimated latitude/longitude point) within the TARGET LOCATION” during a four-and-a-half hour period, from 2:00 p.m. until 6:30 p.m. Ex. A at 6. The target location—the geofence—included the Capitol Building and the area immediately surrounding it, id. at 5, which covers approximately 4 acres of land, id. at 13. Indeed, the warrant acknowledges that “[t]o identify this data, Google runs a computation against all stored Location History coordinates for all Google account holders to determine which records match the parameters specified by the warrant.” Ex. A at 26 (emphasis added). Though not spelled out with clarity in the warrant itself, the warrant ordered that the list provided in step 1 not include subscriber information, but that such information may be ordered at a later step. See id. at 6; see also id. at 25 (“This process will initially collect a limited data set that includes only anonymous account identifiers, dates, times, and locations.”).

This yielded 5,723 unique devices (note, the MTS points to Google filings from the Chartie case to argue that only a third of Google’s users turn on this location service).

Google ultimately identified 5,653 unique Device IDs that “were or could have been” within the geofence, responsive to the first step of the warrant. Ex. B (step 2 warrant and application) at 6. However, Google additionally searched location history data that Google preserved the evening of January 6. When searching this data, as opposed to the current data for active users at the time of the search, Google produced a list of 5,716 devices that were or could have been within the geofence during the relevant time period. Id. Google additionally searched location history data that Google preserved on January 7. When searching this data, Google produced a list of 5,721 devices that were or could have been within the geofence during the relevant time period. Id. The three lists combined yielded a total of 5,723 unique devices that Google estimated were or could have been in the geofence during the four-and-a-half hour period requested. Id. at 7.

In Step 2, the FBI asked Google to identify devices that had been present at the Capitol before or after the attack — an attempt to find those who were there legally. That weeded the list of potentially suspect devices to 5,518.

In this case, the second step of the geofence warrant was also done in bulk, given the lack of specificity as to the people sought. In the initial warrant, the Court ordered Google to make additional lists to eliminate some people who were presumptively within the geofence and committed no crimes. First, the warrant ordered Google to make a list of devices within the geofence from 12:00 p.m. to 12:15 p.m. on January 6. And second, the warrant ordered Google to make a list of devices within the geofence from 9:00 p.m. to 9:15 p.m. Ex. A at 6.

[snip]

Google provided these lists to the government in addition to the lists detailed above. Google identified 176 devices that were or could have been within the geofence between 12:00 p.m. and 12:15 p.m., and 159 devices that were or could have been within the geofence between 9:00 p.m. and 9:15 p.m. Ex. B at 6. The government ultimately subtracted these devices from those that they deemed suspect. Id. at 7. However, this still left 5,518 unique devices under the government’s suspicion. See id. The original warrant contemplated the removal of devices that were present at the window before and after the primary geofence time because the government asserted that the early and late windows were times when no suspects were in the Capitol Building, but legislators and staff were lawfully present. Ex. A at 27. However, the original warrant also indicated that “The government [would] review these lists in order to identify information, if any, that is not evidence of crime (for example, information pertaining to devices moving through the Target Location(s) in a manner inconsistent with the facts of the underlying case).” Ex. A at 6.

Aside from comparing the primary list with the lists for the early and late windows, the government appeared to do no culling of the device list based on movement. Rather, the government used other criteria to decide which devices to target for a request for subscriber information. 3.

The government then asked for the subscriber information of anyone who showed up at least once inside the Capitol (as the MTS notes, Google’s confidence levels on this identification is 68%). That identified 1,498 devices.

In step 3, as relevant to this case,4 the government sought subscriber information—meaning the phone number, google account, or other identifying information associated with the device—for two different categories of people. First, the government sought subscriber information for any device for which there was a single data point that had a display ratio entirely within the geofence. Ex. B at 7. In other words, the government sought identifying information for any device for which Google was 68 percent confident the device was somewhere within the geofence at a single moment during the four-and-a-half hour geofence period. Again, the government equated presence to criminality. The government sought and the warrant ordered Google to provide identifying information on 1,498 devices (and likely people) based on this theory. See id.

It also asked for subscriber information from anyone who had deleted location history in the week after the attack, which yielded another 37 devices.

Second, the government sought identifying subscriber information for any device where location history appeared to have been deleted between January 6 or 7 and January 13, and had at least one data point where even part of the display radius was within the geofence. See Ex. B at 7–8. The government agent asserted that such devices likely had evidence of criminality because: “Based on my knowledge, training, and experience, I know that criminals will delete their Google accounts and/or their Google location data after they commit criminal acts to protect themselves from law enforcement.” Id. at 8.

[snip]

The theory that potentially changed privacy settings or a deleted account as indicative of criminality led the government to request identifying information for 37 additional devices (and likely people). Ex. B at 8.

The MTS notes that at a later time, the FBI expanded the scope of the GeoFence for which they were seeking subscriber information, but that’s not applicable to Rhine.

4 Discovery indicates that the government later sought substantially more data from geofences in areas next to, but wholly outside of, the Capitol Building. However, Mr. Rhine addresses here the warrants and searches most relevant to his case.

The GeoFence was one of a number of things used to get the warrant to search Rhine’s house and digital devices.

I’ll hold off on assessing the legal merit of this MTS (though I do plan to share it with a bunch of Fourth Amendment lawyers).

For now, what is the best summary I know of how the known Google GeoFence reveals how the FBI used it: first obtaining non-subscriber identifiers for everyone in the Capitol, removing those who were by logic legally present before the attack, and then obtaining subscriber information that was used for further investigation.

And that GeoFence yielded 1,500 potential investigative subjects, which may be only be a third of Google users present (though would also by definition include a lot of people — victims and first responders — who were legally present). Which would suggest 4,500 people were inside the Google GeoFence that day, and (using the larger numbers) 15,000 were in the vicinity.

As I keep saying, the legal application here is very different in the Chartrie case, because everyone inside the Capitol was generally trespassing, a victim, a journalist, or a first responder.

To make things more interesting, Rudolph Contreras, who is the FISA Court presiding judge, is the judge in this case. He undoubtedly knows of similar legal challenges that are not public from his time on FISC.

Which may make this legal challenge of potentially significant import.

John Durham’s Missing Signals (and FaceTime and WhatsApp and iPad)

As is common, the case agent for the Durham investigation against Igor Danchenko, Ryan James, was the last witness on Friday. Case agents are often used to summarize the case against a defendant and introduce boring communications records that the prosecution will rely on in the closing arguments.

As Durham cued James to describe, he spent the first nine years of his career as an FBI employee in New Haven, where Durham was, first an AUSA and then US Attorney.

Q When you finished up at the Quantico Training Academy, you would then be a first office agent as it’s sometimes referred to?

A Yes.

Q And what’s a first office agent?

A So that’s the term that you get when you graduate the academy, and it’s the first office you’re assigned to.

Q And where were you first assigned?

A New Haven, Connecticut.

Q And how long were you in New Haven, Connecticut?

A So I was there from late ’09 to September of 2018.

By description, he’s the single current or former FBI employee of five who testified at the trial (the others being Brian Auten, Kevin Helson, Amy Anderson, and Brittany Hertzog) who described no expertise in Russian counterintelligence.

James’ job was to introduce a bunch of travel and communications records that — Durham will claim on Monday — rule out the possibility that Igor Danchenko got a call from an anonymous caller, probably around July 24 or 25, 2016, someone Danchenko claimed to believe was Sergei Millian. This is the burden Durham chose to take on when he charged Danchenko with four counts — the four remaining after Judge Anthony Trenga dismissed the fifth on Friday — about whether Danchenko was lying on four different occasions in 2017 when he described what he had believed in July 2016.

Here are those four counts as quoted in transcripts or interview reports from the indictment, and how Durham charged the alleged lie.

Durham is not proving that Danchenko lied that the person on the call was Millian. He has to prove that Danchenko lied about what he believed in about the call in 2016, five years after the interviews in question and six after the call.

At times, even Durham seems not to have understood what he got himself into by charging that Danchenko lied when he said he believed in 2016 that he thought that a call he described to the FBI came from Millian. Durham can’t just prove that Millian didn’t call Danchenko (though he has presented insufficient evidence to prove that). To rule out the possibility that Danchenko really believed a call even he described as weird came from Millian, Durham is stuck — with one exception I’ll lay out below — attempting to prove that Danchenko received no call from anyone, whether Millian or anyone else.

In an attempt to do that on Friday, Durham had James walk through how his team obtained all the records possible for the phone numbers they identified for Millian at the time (at least one, a Russian one, seems not to have been included, though exhibits aren’t available remotely).

Q And as to telephone records, would you indicate to the ladies and gentlemen of the jury what telephone records — specific telephone records that you obtained relating to Mr. Millian.

A We obtained all the records possible for the phone numbers that we had identified for Mr. Millian.

Durham had Ryan describe what sounds like a time-consuming effort to track down every single telephony call that called Danchenko’s known line in that time period in late July early August 2016.

Q Now, you told the jurors that among other things that were subpoenaed were three telephone lines that were active in 2016 for Millian, correct?

A Yes.

Q But I think you also told them that you had looked for any other number that may have been in FBI databases that would tie in some fashion to Millian, correct?

A Yes.

Q And did you compare all of those numbers to any calls going into Mr. Danchenko’s telephone number?

A Yes.

Q And the jury saw a particular record that will be in evidence reflecting the fact that Millian was providing his new Moscow number. Do you remember that? It was a plus-45 telephone number?

A Yes.

Q Did you also check that number against any incoming calls to Mr. Danchenko’s telephone line?

A Yes.

Q And what can you tell the jurors about that?

A We didn’t identify any known numbers for Sergei Millian making an incoming call to Mr. Danchenko.

They made a great show of bragging about getting records from Sergei Millian and Danchenko that (they suggested) the NY Field Office and Mueller team before them had not.

Q To your knowledge, had anybody gotten those before?

A No.

[snip]

Q Do you know if prior to you and your colleagues retrieving that information, if anybody had gone and retrieved it? Do you know?

A I do know. No, they didn’t.

But in the entire performance, neither Durham nor James described the records that would be most probative to determine if Millian called Danchenko in late July 2016: Details of LinkedIn contacts between Danchenko and Millian (probably as early as May or June) and what Danchenko’s LinkedIn page looked like when that happened. That presumed LinkedIn contact was not mentioned at all during James’ testimony.

Durham’s entire premise — that a review of incoming telephony calls to Danchenko could serve to rule out a call from Millian — is based off a claim that Millian would have no way of contacting Danchenko on anything but his telephony line, because that’s all the information Danchenko included in the signature block of the email he sent on July 21, asking to meet. Mind you, even on direct examination, when Durham had Brian Auten agree there was no mention of mobile apps in the signature block, Auten noted there was a mention of a mobile app in the body of the message: to LinkedIn.

Q And then there’s a signature block, correct?

A Correct.

[snip]

Q Is there anything anywhere in this document, Government’s Exhibit 204T, Mr. Danchenko’s initial outreach to Millian, that says anything about the use of apps?

A In the signature block, no. And the only app I believe that’s mentioned is LinkedIn, which is the last line of 204T in the letter.

Q And LinkedIn isn’t communication — verbal communication, correct?

A Not to my knowledge, no.

Q Right. So nothing in here about contact me using an app or anything of that sort?

A According to the block, no.

Durham wasn’t interested because LinkedIn, itself, does not support voice calls.

Danny Onorato emphasized the reference to LinkedIn at more length with Auten on cross.

Q. Okay. And that would be the email that Mr. Durham showed you July 21st, and that, kind of, starts off with the strange phone call, right? So the timeline is late May, right, where there’s an introduction?

A. Right.

Q. Which is Mr. Danchenko told you?

A. Yes.

Q. And then, he said in, kind of, late June or late July he reached out to Millian, right?

A. Correct.

Q. Okay. And so this is reach out, right?

A. This is — this is a July 21st —

Q. Yep.

A. — 2016, Igor Danchenko to [email protected]

Q. Okay. And what I want you to focus on, right, is that he said [As read:] “It would be interesting if it were possible to chat with you by phone or meet for coffee/beer in Washington or New York where I’ll be next week.” Right?

A. Right.

Q. “I am, myself, in Washington.” So he’s giving him alternatives as to where the meeting could take place, right?

A. Correct.

Q. Okay. I want you to focus on the last line of the email, please.

A. Yes.

Q. He said [As read:] “I sent you a request to LinkedIn. There my work is clearer.” Right?

A. Correct.

The reason Danchenko’s referral to his LinkedIn is important (aside from the prior communication that never got introduced as evidence) is because people often list all modes of communication at LinkedIn, including their mobile apps. Danchenko’s current LinkedIn bio has a link to his Telegram account.

At the time , before he started being stalked by frothers, Danchenko used at least four more mobile apps: in addition to the Telegram he still uses, WhatsApp, Viber, FaceTime, and Wickr.

Q. Okay. Thank you. Are you aware that when Mr. Danchenko spoke to the FBI he told them that he used, in this timeframe, WhatsApp, Viper, [sic] FaceTime, Wickr, and Telegram?

A. I think it would depend on what time frame you are talking about talking to the FBI.

Q. Sure. But between, let’s say, January, when you met with him, and call it July, after he’s meeting with Mr. Helson.

A. I don’t know if I would be able to rattle off all of those different things.

Q. Sure. Some of them?

A. Some of them.

Q. Okay. And, again, those apps — whether it’s one, two, three, four, or five of them — do not leave records on my Verizon cell phone bill, right?

A. I do not believe so.

If Danchenko had those apps listed on his LinkedIn in 2016, as he has Telegram listed on his LinkedIn today, then it would be readily apparent how Millian could have figured out how to call Danchenko in late July 2016: on the LinkedIn profile that Danchenko explicitly pointed him to.

The explanation from Ryan James — an FBI agent who likely worked closely with Durham since the start of his FBI career, but who claims no expertise at all in counterintelligence — about how he ruled out a call to Danchenko from Millian (much less anyone else) in 2016 did nothing to exclude mobile app calls, at all.

Short of having the cell phone Danchenko was using all the time and the devices used with the at-least four SIM cards Millian was using at the time, Durham couldn’t even begin to rule out such a call. That’s how mobile apps work, and that’s why people making spooky anonymous phone calls prefer to use apps.

Absent having the devices themselves, the FBI routinely uses Apple and Google store records to show what apps someone has downloaded onto their various phones. That’s how I know precisely when Roger Stone added ProtonMail, Signal, and WhatsApp to his phone in August, October, and (on the new phone he got after the election) November 2016: from app store records used in FBI affidavits. To make a show of figuring out what apps, besides LinkedIn, Danchenko and Millian used in common, James could have obtained records from the app stores. He didn’t describe doing that either.

But the details of the LinkedIn communications between Danchenko and Millian might have either explained or ruled out the most obvious explanation for how Millian would have known to call Danchenko on a mobile app: That Millian referred to Danchenko’s LinkedIn account, which we know he used because he used it himself to approach Papadoploulos.

When Danchenko’s lawyers lay all this out Monday, Durham will point to the single Danchenko LinkedIn communication he did introduce — a 2020 LinkedIn message confirming that he was the source for 80% of the raw intelligence in the Steele dossier.

BY MR. DURHAM: Q. Sir, with respect, then, to the Government’s Exhibit 1502, that’s a LinkedIn message, correct?

A. Correct.

Q. Now, the date of the Government’s Exhibit 1502, you indicated was, again, what?

A. It was October 11, 2020.

It’s unclear to me whether the LinkedIn messages that Durham obtained include the one(s) Danchenko sent Millian in 2016. He said he had deleted a bunch of records, including those pertaining to Millian, before first meeting with the FBI in 2017.

During cross-examination, Kevin Helson revealed that FBI themselves twice advised Danchenko to purge his phone to protect against compromise, including once after Bill Barr released his January 2017 interview materials.

Q. Okay. And, in fact, Agent Helson, once Mr. Danchenko became a confidential human source, and for good reason, you told him that he should scrub his phone, correct?

A. Yeah, at the beginning, there were two times that we had discussed that action was at the beginning to kind of mask and obfuscate his connection to Steele and any connection to us. And then after the three-day interview became public, we readdressed that as well as we assumed he would be most likely targeted from — by cyber means by the Russians.

Q. So to the extent it’s possible there were any communications that were left on his phone from the period when he was doing the reporting that later ended up being the dossier, they were likely erased?

A. Yeah, depending on how he did it.

When Danchenko submitted his objections to Durham’s exhibits on September 15, Durham had not yet identified that he planned to pull out only that October 2020 one.

The government has not identified which LinkedIn messages it seeks to introduce and Mr. Danchenko objects to admission of any messages not sent by Mr. Danchenko and objects to the inclusion of any messages not specifically admitted as evidence.

That would have been the period Durham was working on his strategy in the wake of Sergei Millian’s refusal to show up to testify under oath to any of this, the strategy preformed Friday to deny a call of any kind by reviewing only telephony calls,

The transcript reflects that only Exhibit 1502 — the October 2020 LinkedIn message — was introduced as evidence. But the stipulation mentions Exhibit 1500.

MR. DURHAM: Okay. This is in the matter of United States versus Igor Y. Danchenko, Criminal No. 1:21-cr-245, parenthesis, (AJT), close parenthesis. [As read]: It is hereby stipulated and agreed by and between the undersigned parties that, if called to testify, a records custodian from LinkedIn would testify as follows: Paragraph No. 1, Government’s Exhibits 1500 and 1502 are true and accurate copies of the contents of the LinkedIn account “Igor Danchenko” controlled by Igor Danchenko. Paragraph No. 2, Government’s Exhibits 1500 and 1502 are true and accurate copies of authentic business records of LinkedIn that were made at or near the time of the acts and events recorded in them by a person with knowledge and were prepared and kept in the course of LinkedIn’s regularly conducted business activity. And it was the regular practice of LinkedIn to make such business records, and the source of the information or the method and the circumstances of preparation are trustworthy. The parties stipulate to the authenticity of Government’s Exhibits 1500 and 1502.

All of Danchenko’s LinkedIn records that still existed in 2020 could have been available at trial, but just the October 2020 one was introduced.

There was, however, one LinkedIn message from 2016 introduced. In cross-examination of Auten, Onorato introduced the LinkedIn request that Millian sent to George Papadopoulos just days before Danchenko initially reached out to Millian on July 21.

Q. First of all, does it appear to be a LinkedIn message between George Papadopoulos and Mr. Millian?

A. Yes, it does.

Q. And the date of that is July 15th of 2016, right?

A. Correct.

Q. Okay. And just — it appears to be an email that LinkedIn is sending to Mr. Millian, correct?

A. Yes.

Q. Okay. And I’m just going to direct your attention to a specific portion of the second page. Okay?

A. Yes.

MR. ONORATO: And, Your Honor, I’m not going to talk about the —

THE COURT: All right.

BY MR. ONORATO: Q. Okay. Millian writes to George — do you see where it says, “To George”?

A. Yes.

Q. Okay. So that’s Millian sending a comment to Mr. Papadopoulos, right?

A. Correct.

Q. Okay. And I want to direct your attention to the bottom of the highlighted portion where it says, “Please do not hesitate to contact me at (212) 844-9455.”

A. I see that, yes.

Q. Okay. And do you see in the last line it says, “Sent from LinkedIn for iPad”? Okay?

A. Yes, I see that.

Q. Okay. And so in this timeframe Mr. Millian is saying on the 15th that Mr. Papadopoulos can call him at that phone number that we discussed, right?

A. Correct.

Q. Okay. And so do you know that the 212 area code is from New York?

A. Yes.

Q. Okay. And that’s where Mr. Millian lived, right?

A. Correct.

Q. Okay. And you also sent an iPad — a message from an iPad, right?

A. Correct.

Q. And, again, that’s a device that you can FaceTime people from that we all know, right?

A. Yes.

Q. And the one that doesn’t leave a record or footprint on a device, right? A. In terms of a record on a device.

Q. I mean a — with a cell phone carrier, like Verizon or Sprint or AT&T. A. Correct.

[snip]

Q. And so remember before when I introduced an email from Mr. Papadopoulos to Mr. Millian?

A. Yes.

Q. That came in the form of an email, didn’t it?

A. Yes, it did.

Q. And so this is, you know, him saying that I sent you a previous email, the LinkedIn email. And then I’m sending you an email on July 21st, correct?

A. I think it’s sending a request on LinkedIn.

Q. Right.

A. So I think that might be a little different than an actual email, but it’s a request.

Q. But when you get a request, it comes via email, right?

A. Yes, that does.

Millian was already in South Korea on July 15. Onorato made much of the fact, with Auten, that Durham hadn’t introduced these records. While Durham will point to the voicemail reference (which doesn’t help him as much as he thinks it does), the LinkedIn request will show that Millian wasn’t using the phone that Durham made a big deal out of being turned off. He was using an iPad.

And that detail will make the inadequacy of James’ search evident. When Durham got James to explain that he had pulled the records that would show up in a toll records report from the 917 phone number tied to Millian’s iPad. Durham almost seemed to concede you would get no phone records for telephony calls tied to an iPad.

Q You said there was a 917 area code, correct?

A Correct.

Q What were you able to determine as to that telephone number?

A It appeared that that number was assigned to an iPad.

Q Okay. And did you look at whatever records were available by way of subpoena or search warrant there?

A Yes.

James’ summary of Millian’s contacts is not online. But the LinkedIn contact with Papadopoulos would not show up on the call records Durham pulled. Its absence on James’ exhibit will serve as proof that Millian was communicating during the period for which James conducted a review in ways that would never show up in telephony records.

Danchenko’s team may have more to disprove Durham’s telephony distraction. Onorato seemed to want to say more about all this. After Durham finished questioning James on direct, Danny Onorato responded to Judge Trenga’s question about how long cross would take by hinting that he wanted to ask James questions, but he would have to convince Stuart Sears to do so first over lunch.

THE COURT: How long do you think you’ll be, Mr. Onorato?

MR. ONORATO: So Mr. Sears is going to —

THE COURT: Mr. Sears, how long do you think you’ll be? (Reporter clarification.)

MR. ONORATO: There may be no questions unless I talk him into questions.

When I read this in the transcript, I was thinking of all the questions I would want asked: about the coercion of witness testimony by threatening them with indictment, about James’ insinuation that having telephony records is more comprehensive than having actual devices — which is what Mueller’s team used to understand some of Millian’s contacts at the time. I would have asked James to describe how Durham never bothered to interview George Papadopoulos, either before Durham and Bill Barr went on a junket to Europe based off Papadopoulos’ claims, or in the wake of learning that Sergei Millian had handed him his ass.

I would have asked how he could competently claim to have ruled out a call with Danchenko without at least reviewing those LinkedIn exchanges.

But Sears convinced Onorato to holster whatever surprises they have. After lunch, Stuart Sears revealed that Onorato hadn’t talked him into questions of James at all.

THE COURT: Please be seated. Mr. Sears, any cross?

MR. SEARS: It’s a little anti-climatic, Your Honor, but I have no questions for this witness.

Rather than point out the gaping problems with James’ claimed proof that Millian didn’t call Danchenko, rather than giving Durham a chance to add to the record, they let it rest.

Damnit!

But particularly given their sustained effort to show that Durham has been withholding comms far more than Danchenko has, I expect James’ silence about LinkedIn records to be central.

So will Durham’s effort to get Auten to testify inaccurately to suggest that Danchenko had said the call from someone he believed to be Millian could only have been a telephony call.

Q. Okay. But I do want to try to correct something about what you testified about this morning. Okay?

A. Okay.

Q. And you prepared to testify with Mr. Durham and his team, right?

A. Yes.

Q. Okay. And I think he asked you to look at Government Exhibit 100.

A. Yes.

Q. Okay. And when he asked you to look at Government one- — Exhibit 100, I think you may have answered that he did not mention a call app on Page 20, right, in response to his questions?

A. Yes.

Q. Okay. Well, do me a favor. Look at Page 20 and then 21, And see if that refreshes your memory the first day about what Mr. Danchenko told you.

A. I apologize. Yes, it basically says — would you like me to read it?

Q. Yeah.

A. Okay. I’ll start at the middle of — middle of the last paragraph of Page 20. [As read:] “The two of them talked for a bit and the two of them tentatively agreed to meet in person in New York City at the end of July. At the end of July, Danchenko traveled with his daughter to New York but the meeting never took place and no one ever called Danchenko back. Altogether, he had only a single phone call with an individual he thought to be Millian. The call was either a cellular call or it was a communication through a phone app.”

Q. I’m sorry, what did you just say?

A. “Or it was a communication through a phone app.”

Q. Okay. So remember when Mr. Durham asked you questions this morning, right?

A. Yes.

Q. Did he omit — ask you to look at page 21 to see what Mr. Danchenko told you that day?

A. I don’t think he was omitting. I think I —

Q. Okay. And did you intentionally omit, intentionally tell the jury something wrong, right?

A. No.

Q. But the import of the testimony was that, no, he never mentioned in that first meeting it could have been a phone app, right?

A. Correct.

Q. And now we all know that that’s false, right?

A. Correct.

Q. So he did mention a mobile app?

A. That is correct.

Onorato then introduced Auten’s notes from the interview where he underlined “app.”

Q. Okay. And just for the record, again, we’re at — they’re not page-numbered, but it’s Defense Exhibit 497, and it’s Bates-stamped SCO350067270. Okay? And those appear to be — but I don’t want you to just agree with me — the interview notes from your first conversation with Mr. Danchenko. So that’s on July 24th — or January 24th. I keep saying July.

A. Yeah.

Q. Okay. I want you to look at the middle of the page.

A. Yes.

Q. And he said to you, which you wrote down at the same time and it looks like you underlined it, “Either cell phone or an app,” with an underscore, right?

A. That is correct.

Q. Those are your handwritings, right?

A. That is my handwriting, yes.

Q. And when he wrote “app,” the instant is that it’s probably an app because you’re emphasizing “app,” right?

A. I don’t necessarily know if I was emphasizing, but I did draw a line under it, yes.

Q. And you would agree that when you draw a line under something that’s generally — one of the reasons you do it is you want to emphasize —

A. It can be one of the reasons, yes.

Onorato repeated the point: Durham had introduced affirmatively false testimony about whether that call, hypothetically from Millian, may have been on a phone app.

Q. All right. And just to show the jury what you were looking at, right? A. Right. Q. So, again, despite the testimony this morning, that Mr. Danchenko did not mention a phone app, just to highlight it for you, right?

A. Correct.

Q. And so that’s the correct testimony, right?

A. Yes.

Q. And whether it was Mr. Durham’s question or whether it was your misunderstanding, you did not intentionally leave the jury with the impression, right?

A. Correct.

Q. That he didn’t say that on the first day, right?

A. Correct.

Q. But you would think as lawyers in the case that we should know the general state of the evidence?

A. Correct.

Q. And could correct that for you, right?

A. Correct.

Q. And Mr. Durham didn’t take any steps to correct your wrong answer, did he?

A. I don’t recall him correcting that.

Q. Okay. But now, I’m correcting it, right?

A. You are correcting it.

To be fair to Durham, for Onorato’s complaints here that Durham misrepresented the evidence, on several occasions, Danchenko’s lawyers have suggested that Danchenko said the call was on a mobile app, rather than it could have been. But unlike Durham and his team, Danchenko’s lawyers didn’t repeatedly elicit false testimony about what transcripts said.

None of that will be the most central part of Danchenko’s closing argument tomorrow. What will come before debunking Durham’s claim that such a call could not have taken place and showing how Durham tried to exclude records corroborating that such a call did take place is the testimony from both men who interviewed Danchenko, saying they believe him.

With Brian Auten there was some equivocation (during which Danny Onorato raised the fact that Durham had made him a subject of the investigation during the period any doubts creeped in), but ultimately he said he still does not doubt that Danchenko believed the call came from Millian, the only thing at issue in the remaining four counts.

Q. And so when you made that statement under oath before the Senate, you didn’t think he was lying to you that he had contact with Mr. Millian, right, or believed — not that he did, that he believed? A. I — I have no reason to doubt that he believed he was talking to Mr. Millian based upon what he told us in the interview. Q. Okay. I’m sorry. Once more, can you please repeat that to the jury? A. I don’t have any basis to — at the time to believe that —

[snip]

Q. So do you remember being — do you remember giving the following answer: [As read:] “On the whole, you did not see any reason to doubt the information the primary sub-source provided about who he received information from, which was the supervisory intel’s analyst focus.” Right?

A. Yes. That is from my — that’s from my OIG testimony.

Q. Right. But you said it under oath, subject to penalty of perjury?

A. Correct.

Q. And it’s true?

A. Correct.

Q. And it’s true today?

A. Correct.

Stuart Sears walked Helson first through his general opinion that Danchenko never lied to him.

Q. Agent Helson, it was no — it was no secret, during the course of your relationship with Mr. Danchenko, that there was a discrepancy between how Mr. Steele described how Mr. Danchenko represented his interactions with Mr. Millian and how Mr. Danchenko told you he actually explained his interactions?

A. Yes.

Q. Okay. It was no — it was no secret. Everyone knew all along that there was a disconnect there?

A. Correct.

Q. And at no point during your entire time of meeting with Mr. Danchenko over those three years, did you ever walk away thinking that he was lying to you about anything; is that fair?

A. That’s fair.

Q. In fact, for years after your conversations with Mr. Danchenko about his anonymous phone call with the person he believed to be Mr. Millian, you would submit reports indicating that he was a reliable source?

A. Correct.

Q. And some of those reports would even mention the Millian discrepancy and you would write that you believed that Mr. Danchenko had accurately reported the information as best you could recall?

Sears then had Helson describe how, in reports in 2019 and 2020, he had dismissed the import of any inconsistencies in the Millian reporting.

Q. And this report even addresses the inconsistency regarding the Millian issue?

A. Correct.

Q. Correct? And this report that you generated says that Mr. Danchenko’s position or story on the Millian situation never changed while the motivation of others came into question, right?

A. Correct.

Q. And that’s Chris Steele?

A. That is true.

The most important testimony from Helson, though, addresses the one exception I noted above. As I noted in this post and this table above, Danchenko’s story about the Millian call, in the four charged conversations and the one with Auten, deviated from form on one occasion: on October 24, 2017.

That October 24 conversation came during the period when Auten was trying to address the discrepancies between Steele’s claims of the Millian conversations and Danchenko’s (though the FBI didn’t tell Danchenko they were interviewing Steele — they were basically playing the men off each other).

I fully expect that Durham, in an attempt to salvage at least one guilty verdict, will focus on the October 24 case and claim that the deviation from prior testimony — at a time when Danchneko was trying to fix immigration issues — was the tell that he lied.

Who knows? It might work! If he can convince the jury that the October 24 deviation was a tell that he was lying, maybe he can convince the jury that Danchenko invented the lie that he believed he had actually talked to Millian to cover up inventing a story for Durham.

That’s what he’s left with.

Which is why Helson’s note, on the back of his interview notes from that conversation, will be critically important. Explaining that he pushed Danchenko really hard on this point (this is one of the interviews for which there’s no recording and less reliable documentation), he wrote that he believed Danchenko’s response — including the inconsistent reference to two calls — was what you’d expect from particularly confrontational questioning.

Q. Okay. And you wrote — and you can close that now. And you wrote — going back to Government Exhibit 102, which was your memorandum of the interview of Mr. Danchenko — you wrote in addition to that he didn’t inquire about the nature of the questions regarding Mr. Millian, quote, “Mr. Danchenko’s responses were consistent with what would be expected during this type of questioning.”

A. Correct.

Q. And that meant that his reaction to the line of questioning did not lead you to believe he was lying to you, correct?

A. Correct.

Whether you find Danchenko’s stories credible or not, the fact of the matter is that Durham charged Danchenko with lying in these conversations in spite of the fact that his primary witnesses both attested, sometimes under oath, that they believed him.

There’s no telling what the jury will do. Durham will use testimony from a validation review to suggest that at least one person at the FBI, someone who didn’t have a personal investment in Danchenko’s success, suspected he was a GRU spy. Durham will likely argue that Auten and Helson only believe Danchenko because they’re incompetent.

Which is why, ultimately, Durham’s own evasions and failures will be central.

Igor Danchenko Would Have Been a Crucial Witness to Understanding the Disinformation in the Dossier

Igor Danchenko claims that a Supervisory Special Agent involved in the Russian investigation described his cooperation with the FBI as a confidential source as one of the upsides of that investigation.

As one supervisory special agent has agreed, “one of the upshots [of the Crossfire Hurricane Investigation] has been a relationship with [Mr. Danchenko] which has provided the FBI insights into individuals and to areas that it otherwise was lacking [ ] because of the difficulty with which the FBI has in recruiting people from that part of the world.” The agent further agreed that the FBI’s relationship with Mr. Danchenko was “one thing that in terms of usefulness really did result from this [investigation].”

Danchenko cited it as part of his successful effort to limit how much detail about the 2010 counterintelligence into him John Durham could present at trial, which starts today.

It’s an odd statement, insofar as he doesn’t cite the source (I was wondering if it comes from a pre-trial interview of a witness he plans to call, the precise details of which he’s withholding until the trial). Plus, there are FBI agents who seemed happy to have participated in the investigation, notwithstanding the way Trump found a way to ruin the career of virtually every FBI person involved in it (besides the two guys who botched the Alfa Bank investigation). This person, with the reference to “usefulness,” sounds like one of the skeptics.

Imagine if one of the FBI agents the frothers have been celebrating as a Mueller skeptic for years had good things to say about the (hopefully last) target in Durham’s witch hunt?

Whoever it is, the frothers’ continued obsession with Danchenko’s role as an FBI source — now joined by Chuck Grassley and Ron Johnson — and their certainty there was impropriety about it is a testament to how deep within a bubble they all are, in which Trump matters but US security does not.

Start with what we know or can infer about his vetting. First, he was brought on as a source in March 2017, before the FBI stopped including FISA material among the databases it used to vet potential informants. So they likely checked collections of communications from known Russian spies before they formalized the relationship, including those they knew he had contact with years earlier. If that’s right, they knew a lot about what ties he had with Russians.

Then, at least if we can believe Danchenko, every time there was a discrepancy between what he said and others said, they were resolved in his favor.

To the contrary, not only did investigators and government officials repeatedly represent that Mr. Danchenko had been honest and forthcoming in his interviews, but also resolved discrepancies between his recollection of events and that of others in Mr. Danchenko’s favor.

Frothers blew over the implications of this just like they blew over Danchenko’s reference, in this same filing that, “The government had unfettered access to Mr. Danchenko for approximately four years following his first interview in January 2017” (a presumed allusion to his relationship with the FBI).

This statement about “discrepancies” between Danchenko’s versions and those of others would have to include the interview with Christopher Steele that Durham attempted (unsuccessfully) to introduce as evidence.

On September 18 and 19, 2017, FBI personnel from the Robert Mueller Special Counsel team interviewed Christopher Steele. Steele informed the FBI personnel, in part, that the defendant had collected election-related material in the United States for Orbis. As part of that undertaking, the defendant informed Steele that he met in person with Sergei Millian on two or three occasions – in New York and once in Charleston, South Carolina. The defendant subsequently informed the FBI that he had not in fact met with Millian on any occasion. On November 2, 2017, the defendant further stated to the FBI that Steele incorrectly believed the defendant had met in-person with Millian, and that he (the defendant) did not correct Steele in that misimpression.

Danchenko makes this even more explicitly clear later.

[W]hile the facts alleged in the indictment may show that [Steele] provided the FBI with an inaccurate statement about a meeting between Mr. Danchenko and [Millian] in New York, the facts also clearly show that Mr. Danchenko corrected the record for the FBI by unequivocally stating, on multiple occasions, that he had never met with [Millian] in New York and did not know whether he ever spoke on the phone with [Millian].

Most Republicans claim that Steele’s dossier was garbage. Danchenko maintains he had no role in writing it and Durham doesn’t seem to have any evidence to the contrary. Everything in Danchenko’s prosecution (and the entire DOJ IG Report on Carter Page) is consistent with the FBI believing Danchenko over Steele. And yet the frothers are sure that one of the first guys to raise questions about Steele (Bruce Ohr was actually the first, though he never gets credit for that) is suspect.

If Danchenko’s claim (made after reviewing discovery) is true — something I expect we’ll learn more about during the trial — Mueller, at least, came away from a series of interviews in fall 2017 crediting Danchenko’s claims about the construction of the Steele dossier over Steele’s own. I think the record is somewhat more equivocal than that. For example, Danchenko’s claim that he, “did not view his/her contacts as a network of sources, but rather as friends with whom he/she has conversations about current events and government relations,” is not credible; he knew he was getting paid for this information. But Danchenko showed proof of some of his other claims (for example, in texts with his friend Olga Galkina), and I assume whatever vetting FBI did — including the FISA 702 collection targeting Galkina — held up as well.

If you think Steele fucked over Trump, that should matter to you.

But Danchenko (and that anonymous FBI agent) make it clear Steele was not the only person who Danchenko helped the FBI to understand. Danchenko describes that the investigation into the dossier ended in November 2017.

The investigation into the Reports was ultimately completed by Special Counsel Robert S. Mueller, III, in or about November 2017

But he remained an approved source until October 2020. A Danchenko filing describes being interviewed “dozens of times,” of which roughly eight are included in the scope of the indictment against him (three in January, and one each in March, May, June, October, and November 2017), which therefore must be the only ones that pertain to the dossier. Durham’s project, with his conspiracy theory driven prosecution, is to claim that Danchenko lied at least once in every interview about the dossier.

That Danchenko was interviewed some 16 more times is news: it would suggest Danchenko’s was asked to explain more than just Steele’s reporting methods. It’s not even clear Durham would have reviewed all that reporting before he charged Danchenko; he’s not known to have investigated past the beginnings of the Mueller investigation, and Durham only produced a December 2017 draft opening memo for an investigation into Charles Dolan in the last month.

[W]hen agents drafted a December 2017 communication in support of opening an investigation into Dolan, they included the information Mr. Danchenko provided them as support for opening the investigation. 3

3 The December communication is highly exculpatory with regard to the essential element of materiality and it is not clear why it was only produced 30 days from the start of trial. It was produced as Jencks material (also late by the terms of the Court’s Order requiring all Jencks to be produced by September 1) but is obviously Brady evidence. 

Durham certainly didn’t bother learning all of Rodney Joffe’s contributions to the FBI before he made wild insinuations about him and got him discontinued as an FBI source, so it’s possible he did not for Danchenko either.

And that’s interesting given what is in the public record about related events.

Try to look at the Russian investigation not as an attempt to sink Trump (much of what we know about matters Danchenko may have cooperated on comes from before the investigation was predicated on Trump), and not as the precursor to the prosecutions we know happened. Try to consider the Russian investigation as an investigation in the wake of a hostile attack from a foreign power. And consider what the DOJ IG Report on Carter Page — a document most frothers treat with near biblical reverence and ignorance, the declassified footnotes to the report, the Bruce Ohr 302s, and details revealed in the Danchenko filings disclose about where the investigation into the dossier and related topics developed between December 2016 and September 2000.

In the period when Danchenko was brought on as an informant (and before the time Steele was interviewed) the FBI learned that Steele had problematic ties with Oleg Deripaska and his (and Danchenko’s) source network had been compromised by Russian spooks.

  • December 2016: As much as Steele was trying to push the dossier to the FBI, he was also trying to push Oleg Deripaska’s complaints that Manafort had stolen money from him
  • January 12, 2017: Another intelligence service relayed an inaccuracy about the Michael Cohen claims in the Steele Report, claims Danchenko sourced to his friend Galkina, who had gotten close to Dmitry Peskov via Dolan
  • January 24, 2017: Danchenko didn’t know that Deripaska was the one who paid Steele to investigate Manafort in spring 2016
  • February 14, 2017: Steele was working for certain attorneys, including the attorney for Oleg Deripaska
  • February 27, 2017: An individual with ties to Trump and Russia said the pee tape was the product of Russia infiltrating a source into the Steele network
  • March 2017: The Crossfire Hurricane considers the full import of the open counterintelligence investigation on Millian
  • June 2017: Someone affiliated with Oleg Deripaska learned of Steele’s project by early July 2016 — so before all but the first report
  • Early June 2017: Russian spooks became aware of Steele’s election investigation in early 2016 [this date is probably wrong but still an indication that Russia learned about the project from the start]
  • Early June 2017: FBI targeted Olga Galkina under Section 702 (and discovered her ties to Chuck Dolan and both their ties to Dmitry Peskov)
  • December 2017: FBI at least considered opening an investigation into Dolan
  • February 2018: The reason Manafort shared campaign information in August 2016 was in an effort to get “whole” with Deripaska; Kilimnik shared a clever plot to defeat Hillary
  • April 2018: Treasury sanctions Deripaska, among others
  • May 2018: More on how Kilimnik’s August meeting pertained to a plan to beat Hillary
  • September 2000: Deripaska’s US associate, Olga Shriki, appears before grand jury

By 2019, the IG Report makes clear, there were abundant reasons to suspect that Deripaska had played a key role in injecting disinformation into the dossier. In the earlier days of the investigation, key people on the Crossfire Hurricane team didn’t know of Steele’s ties to Deripaska, something that, “could have indicated that Steele was being used in a Russian ‘controlled operation’ to influence perceptions (i.e., a disinformation campaign).” Until the way Deripaska was working both sides — increasing Manafort’s legal jeopardy while using his desperation to get his cooperation with the election operation — became clear, Deripaska’s ties to the dossier didn’t make sense, as Bill Priestap explained.

[I]f that’s the theory [that Russian Oligarch 1 ran a disinformation campaign through [Steele] to the FBI], then I’m struggling with what the goal was. So, because, obviously, what [Steele] reported was not helpful, you could argue, to then [candidate] Trump. And if you guys recall, nobody thought then candidate Trump was going to win the election. Why the Russians, and [Russian Oligarch 1] is supposed to be close, very close to the Kremlin, why the Russians would try to denigrate an opponent that the intel community later said they were in favor of who didn’t really have a chance at winning, I’m struggling, with, when you know the Russians, and this I know from my Intelligence Community work: they favored Trump, they’re trying to denigrate Clinton, and they wanted to sow chaos. I don’t know why you’d run a disinformation campaign to denigrate Trump on the side.

But as the Manafort side of the equation became clear, it all made more sense. And the implication is that by 2019, that’s what the FBI understood to have happened.

Chuck Grassley was the first person to start raising public questions about Deripaska’s role in the dossier. Similarly, he was among the first to raise concerns about disinformation and the dossier.

The more likely explanation for Danchenko’s CHS status is one he and other Republicans should welcome: that the FBI investigated how the dossier was used as disinformation. Danchenko was fed a lot of shit, from people (like Galkina) he trusted implicitly; that shit happened to be tailored to sow maximal dissension in US politics. And then Steele, unbeknownst to Danchenko, packaged it up inside exaggerations.

If it bothers you that the dossier was larded with disinformation — and it should bother people on both sides of the aisle — then you should welcome FBI’s effort to understand how that happened. And one crucial step in that process is to understand how the network behind it tied right back to the Russians who played central roles in the 2016 attack on US democracy. Danchenko would have been a key guide to that information.

Trump’s File B-076: Calvinball Ping Pong

I spent part of last weekend attempting to understand how Judge Cannon might explain throwing out Raymond Dearie’s work plan (which included a rolling process designed to finish up by November 30). This is what I came up with (by all means please let me know if I’ve made errors, but otherwise, don’t invest too much in this because the big takeaway is that Judge Cannon is playing Calvinball, so the current rules mean little).

What Cannon appears to have done is with no formal notice of what the deadline was or even that ten plus five was no longer operative, treat Dearie’s September 23 filing as his final action in setting the plan, but along the way use her own five day deadline for complaints instead of the September 27 deadline Dearie gave, which is the only way Trump’s temporal complaint would be timely yet have her order not be days premature.

The next day, with no notice of any new deadline, Cannon issued her order throwing out most of Dearie’s plan. I’ve spent hours and days looking at this, and there’s no making sense of the deadlines. Certainly, this could not have happened if any of Dearie’s deadlines had been treated as valid.

DOJ took a look at what Cannon had done and moved the 11th Circuit to accelerate the review process. They cited a number of reasons for the change in schedule. They described that Cannon sua sponte extended the deadline on the review to December 16.

On September 29, subsequent to the parties’ submission of letters to Judge Dearie, the district court sua sponte issued an order extending the deadline for the special master’s review process to December 16 and making other modifications to the special master’s case management plan, including overruling the special master’s direction to Plaintiff to submit his designations on a rolling basis.

Depending on how you make sense of Cannon’s Calvinball deadlines, it was a sua sponte order, because Trump’s complaint about the deadlines (not to mention his complaints generally) came in after the deadline attached to the Dearie plan that Cannon seems to treat as his final official action.

I think what really happened is that Cannon fired Dearie without firing him in response to being told by the 11th Circuit she had abused her authority, ensuring not only that nothing he decides will receive any consideration, but also ensuring that he has almost no time to perform whatever review role he has been given.

Effectively, Judge Cannon has just punted the entire process out after the existing appeals schedule, at which point — she has made clear — she’ll make her own decisions what government property she’s going to claim Trump owns.

I believed, when I wrote that a week ago, Judge Dearie would have no real say in the process until November 14 (see the timeline below), after Trump had made designations on all the seized documents and then spent ten days fighting over those designations with DOJ.

I don’t know what Dearie thought, but on October 4 — one day after receiving the designations from the filter team materials, five days after Cannon’s order — he canceled a scheduled October 6 status hearing, citing the order.

Then, yesterday, he had a say, issuing an order in response to the filter team designations he received on October 3. The order did the following:

  • Reveal a set of about 35 pages of Category A files that Trump had raised no attorney-client privilege over (marked in turquoise below)
  • Ordered the Privilege Review Team to provide those files to the Case Team by October 10 so they can review Trump’s Executive Privilege and Presidential Records Act claims
  • Indicated he would “promptly issue a report making recommendations” about Trump’s attorney client privilege claims as to the remaining Category A and Category C documents
  • In fact of a dispute over whether Dearie should make a privilege designation on file B-076, confirmed there was no dispute about the document in question because Trump made no privilege claim over it
  • Ordered DOJ to return the originals of all the Category B documents to Trump by October 10, including file B-076
  • Set a status hearing for October 18

As I laid out here, Category A documents are government documents involving some legal issue. Category B documents are the personal documents (including those pertaining to Trump’s health, taxes or accounting) that DOJ proposed returning 38 days ago. Category C is a new category, possibly limited to this document turned over to the filter team after the initial filter team inventory was completely,

On Monday, September 26, counsel for the Privilege Review Team provided Plaintiff’s counsel with another example of filter failure. The email in question was identified by the “FBI case team,” and returned to the Privilege Review Team, which is characterizing the communication as non-privileged. Plaintiff believes the email falls squarely into the category of attorney-client privileged.

Possibly it includes different kinds of documents (such as the call logs) that don’t precisely fit the other two categories.

Here’s what we know of the designations so far, with turquoise being things Dearie cleared to share with the Case Team. (I’ve marked items Trump has claimed no privilege over with an N, items he has claimed privilege over parts of with a P, items that he must be claiming privilege over with a Y, and used question marks for items that, because of the additional category, I’m not certain about.)

 

Here’s what happens next, best as I can tell according to the rules of Calvinball.

First by Monday, DOJ will give all the original documents in Category B back. That seems to comply with Judge Cannon’s plans, because according to Judge Cannon’s original order, if both sides agree on the privilege designation for a file, it “shall be handled in accordance with the parties’ agreement.”

If the Privilege Review Team agrees with Plaintiff’s position, the subject document shall be handled in accordance with the parties’ agreement. If the Privilege Review Team disagrees with Plaintiff’s position, the dispute shall go to the Special Master for a report and recommendation and, if either party objects to the report and recommendation, to the Court for de novo review and decision. Failure to object to a report and recommendation within five (5) calendar days shall result in waiver of that objection.

Both sides say Trump should have the originals, and by Monday — a federal holiday — Trump will have the originals back. As I’ve written, that will eliminate one of the harms that Judge Cannon deliberately inflicted on Trump in order to justify getting involved.

It’s the other part of the order I find more interesting: If someone objects to what Dearie has done, they’ve got five calendar days — so until October 12 — to complain to Cannon so she can overrule Dearie.

One side has complained about what Dearie did to not make a privilege determination on B-076, because there’s no dispute: Trump has not claimed privilege over it. Making the determination wasn’t controversial. Rather, deciding to make the determination at all is what one side has complained about.

Document B-076 is a one-page document from Morgan Lewis, the law firm involved in Trump’s taxes.

It’s significant because the duplicate (item 3, which is four copies of the same one-page letter) is one basis for Judge Cannon’s claim that DOJ had made a filter failure. Here’s how the filter team has described it.

An additional seventh box was transferred to the custody and control of the Privilege Review Team agents on August 10 ,2022, after a Case Team agent observed a document on Morgan Lewis letterhead comingled with newspapers.6 Consistent with the filter protocol set forth in the Affidavit, the Case Team stopped its review of the entire box and provided it to the Privilege Review Team agents to conduct a review to identify and segregate potentially privileged materials.

6That document is item Number 3 in Exhibit B (FILTER-B-065 to FILTER-B-068). Also contained within the seventh box were Item Numbers 1 to 4 in Exhibit A (FILTER-A-001 to FILTER-A-005), which the Privilege Review Team agents identified as potentially privileged after receiving custody and control of the box.

And here’s how Judge Cannon used that document (among others) to claim both that Trump was being deprived of personal tax documents and that the filter process had failed.

According to the Privilege Review Team’s Report, the seized materials include medical documents, correspondence related to taxes, and accounting information [ECF No. 40-2; see also ECF No. 48 p. 18 (conceding that Plaintiff “may have a property interest in his personal effects”)]. The Government also has acknowledged that it seized some “[p]ersonal effects without evidentiary value” and, by its own estimation, upwards of 500 pages of material potentially subject to attorney-client privilege [ECF No. 48 p. 16; ECF No. 40 p. 2]

[snip]

Review is further warranted, as previewed, for determinations of privilege. The Government forcefully objects, even with respect to attorney-client privilege, pointing out that the Privilege Review Team already has screened the seized property and is prepared to turn over approximately 520 pages of potentially privileged material for court review pursuant to the previously approved ex parte filter protocol [ECF No. 48 p. 14]. In plain terms, the Government’s position is that another round of screening would be “unnecessary” [ECF No. 48 p. 22]. The Court takes a different view on this record.

To begin, the Government’s argument assumes that the Privilege Review Team’s initial screening for potentially privileged material was sufficient, yet there is evidence from which to call that premise into question here. See In re Sealed Search Warrant & Application for a Warrant by Tel. or Other Reliable Elec. Means, 11 F.4th at 1249–51; see also Abbell, 914 F. Supp. at 520 (appointing a special master even after the government’s taint attorney already had reviewed the seized material). As reflected in the Privilege Review Team’s Report, the Investigative Team already has been exposed to potentially privileged material. Without delving into specifics, the Privilege Review Team’s Report references at least two instances in which members of the Investigative Team were exposed to material that was then delivered to the Privilege Review Team and, following another review, designated as potentially privileged material [ECF No. 40 p. 6]. Those instances alone, even if entirely inadvertent, yield questions about the adequacy of the filter review process.13

13 In explaining these incidents at the hearing, counsel from the Privilege Review Team characterized them as examples of the filter process working. The Court is not so sure. These instances certainly are demonstrative of integrity on the part of the Investigative Team members who returned the potentially privileged material. But they also indicate that, on more than one occasion, the Privilege Review Team’s initial screening failed to identify potentially privileged material. The Government’s other explanation—that these instances were the result of adopting an over-inclusive view of potentially privileged material out of an abundance of caution—does not satisfy the Court either. Even accepting the Government’s untested premise, the use of a broad standard for potentially privileged material does not explain how qualifying material ended up in the hands of the Investigative Team. Perhaps most concerning, the Filter Review Team’s Report does not indicate that any steps were taken after these instances of exposure to wall off the two tainted members of the Investigation Team [see ECF No. 40]. In sum, without drawing inferences, there is a basis on this record to question how materials passed through the screening process, further underscoring the importance of procedural safeguards and an additional layer of review. See, e.g., In re Grand Jury Subpoenas, 454 F.3d 511, 523 (6th Cir. 2006) (“In United States v. Noriega, 764 F. Supp. 1480 (S.D. Fla. 1991), for instance, the government’s taint team missed a document obviously protected by attorney-client privilege, by turning over tapes of attorney-client conversations to members of the investigating team. This Noriega incident points to an obvious flaw in the taint team procedure: the government’s fox is left in charge of the appellants’ henhouse, and may err by neglect or malice, as well as by honest differences of opinion.”).

In other words, this Morgan Lewis document is one of the central documents to Cannon’s argument that the FBI is not to be trusted, that the investigative team has been tainted, that poor Donald Trump is being deprived of his personal tax records.

And Dearie has now made public that that’s bullshit.

But Trump, who didn’t claim it was privileged, now has the opportunity — by October 12 — to complain to Cannon that his hand-picked Special Master is being mean again.

And that would happen before DOJ submits its merits brief to appeal Cannon’s decision to get involved in the first place, which is due on October 14.

Regardless of the error that the 11th Circuit already ruled Cannon had made by intervening, Dearie has now eliminated much of the claimed harm that Cannon invented to intervene. He has ordered returned all the personal medical and tax documents that Cannon used to claim he was being deprived of very sensitive documents. And he has confirmed that for one of three claimed filter failures — the only one, importantly, pertaining to a non-governmental document — was not a privileged document at all.

Trump could ask Cannon to overrule Dearie for even making that public. But that would make it clear — and public for DOJ’s brief — that Cannon was once again intervening to create a harm she could then invoke to claim a need to intervene.

I don’t know whether under Judge Cannon’s Calvinball rules Dearie was supposed to take these steps at all. But if she wants to override them (again), it’ll make it clear that she’s simply creating harms to excuse her intervention.

Update: Reworded the B-076 language per nedu’s comments.

Timeline

September 29, 2022: Cannon order alters Dearie work plan

September 30, 2022: DOJ motion to extradite 11th Circuit appeal

October 3, 2022; Trump response to 11th Circuit; motion to seal privilege log; original privilege status report unsealed; Potentially privileged material designations submitted (under seal)

October 4, 2022: Trump SCOTUS appeal of part of 11th Circuit decision; Dearie cancels October 6 status hearing

October 5: Vendor selected

October 7: Dearie issues order on filter team materials, sets October 10 and October 20 deadlines (in bold)

October 10: Deadline to return originals of Category B documents to Trump

October 11: DOJ Reply to Trump Emergency Motion at SCOTUS

October 12: Deadline to complain to Cannon about Dearie’s October 7 order

October 13: DOJ provides materials to Trump

By October 14: DOJ provides notice of completion that Trump has received all seized documents

On or before October 14: DOJ revised deadline to 11th Circuit

October 18: Phone Special Master conference

October 19: Original deadline for DOJ appeal to 11th Circuit

October 20: Deadline for disputes about Executive Privilege and Presidential Records Act on filtered material

21 days after notice of completion (November 4): Trump provides designations for all materials to DOJ

November 8: Election Day

November 10, 2022: Trump revised deadline to 11th Circuit

10 days after receiving designations (November 14): Both sides provide disputes to Dearie

November 17, 2022: DOJ revised reply to 11th Circuit

30 days after DOJ appeal (November 18): Original Trump response to 11th Circuit

21 days after Trump reply (December 9): Original DOJ reply to 11th Circuit

December 16: Dearie provides recommendations to Cannon

January 3: New Congress sworn in

No deadline whatsoever: Cannon rules on Dearie’s recommendations

Seven days after Cannon’s no deadline whatsoever ruling: Trump submits Rule 41(g) motion

Fourteen days after Cannon’s no deadline whatsoever ruling: DOJ responds to Rule 41(g) motion

Seventeen days after Cannon’s no deadline whatsoever ruling: Trump reply on Rule 41(g)

The Additional Complexities of the Proud Boy Sedition Case

Some weeks ago, someone involved in the Proud Boy case emailed me a personal invitation to the Proud Boy leader trial later this year: “please accept my invitation to come report on the proceedings in person.  In my opinion, it will prove far more interesting than the OK trial.” It had been a long time since I had heard from this person — since I warned him, for a second time, I would not treat his emails to me as presumptively off the record, because by then the frequency of them and the conflicts between what he said about the First Amendment publicly and what he said to me on emails had become newsworthy in and of itself.

I have no intention of traveling to DC for the Proud Boy trial. Like the Oath Keeper one, there will be scores of journalists who are very familiar with the case who will do great live coverage. I would add little, if anything.

But this person’s promise that the trial will be more interesting than the Oath Keeper one is a sound prediction. To be clear: I think the evidence shows that the Proud Boys are far more complicit in the attack on democracy on January 6 than the Oath Keepers, who were mostly whack right wingers with delusions of grandeur. But I also recognize that the Proud Boy case has been far more difficult for DOJ to put together than the Oath Keeper one, in significant part because they have been more successful at cultivating authoritarian law enforcement that likes their mob culture.

Remember, several Proud Boys, including Tarrio, worked with Roger Stone to threaten Amy Berman Jackson and Bill Barr’s DOJ treated it as a mere legal technicality. The Proud Boys got sanction, as a mob, from the President’s own mouth, which had ripple effects throughout government on the way they were treated.

So I wanted to look at three indications of the difficulties the Proud Boy prosecution may face that the Oath Keeper prosecutors did not.

Delayed phone exploitation

First, in a hearing yesterday in the case against five men who were co-travellers with Joe Biggs the day of the attack, prosecutor Nadia Moore mentioned that she had just provided the “scoped” phones from (I think) Paul Rae and Eddie George — “scoped” is what they call it when the FBI pulls out the things that are responsive to a warrant. That’s a fairly shocking delay in exploiting their phones. Rae was arrested on March 24, 2021 and George was arrested on July 15, 2021. But it’s true that a May discovery index from the Proud Boy leader case only shows a scoped LG Tablet from George, with no scoped phone listed for either (though there is a phone video from Rae listed).

It may well be that — like Enrique Tarrio — they had really complex passwords on their phone. It took over a year to exploit the content of his phone, even though it was seized before January 6. There appear to be others, too, whose phones were not yet exploited in May.

Aside from a delay in the scoping of Stewart Rhodes’ phone due to the volume of encrypted texts on it and a privilege review holding up the exploitation of Kellye SoRelle’s phone, there were no known similar delays on the Oath Keeper side.

Complicit FBI and law enforcement

While the Oath Keepers, like the Proud Boys, intentionally recruit law enforcement, the Proud Boys have been better at co-opting cops. Around five of the charged Proud Boys were former or still cops when charged. Tarrio had been a formal informant during a prior criminal prosecution. And several other members of the Proud Boys, including Joe Biggs, provided information to the FBI about what they claimed were Antifa.

Biggs described his own relationship with the FBI this way:

By late 2018, Biggs also started to get “cautionary” phone calls from FBI agents located in Jacksonville and Daytona Beach inquiring about what Biggs meant by something politically or culturally provocative he had said on the air or on social media concerning a national issue, political parties, the Proud Boys, Antifa or other groups. Biggs regularly satisfied FBI personnel with his answers. He also stayed in touch with a number of FBI agents in and out of Florida. In late July 2020, an FBI Special Agent out of the Daytona Beach area telephoned Biggs and asked Biggs to meet with him and another FBI agent at a local restaurant. Biggs agreed. Biggs learned after he travelled to the restaurant that the purpose of the meeting was to determine if Biggs could share information about Antifa networks operating in Florida and elsewhere. They wanted to know what Biggs was “seeing on the ground.” Biggs did have information about Antifa in Florida and Antifa networks in other parts of the United States. He agreed to share the information. The three met for approximately two hours. After the meeting, Biggs stayed in touch with the agent who had called him originally to set up the meeting. He answered follow-up questions in a series of several phone calls over the next few weeks. They spoke often.

This is the same office where an FBI Agent, in August, refused to participate in the arrest of militia-associated men who planned to bring weapons to January 6. The agent then ran to Chuck Grassley and Ron Johnson, bitching, after his clearance was suspended because he didn’t like the way FBI was running domestic terrorism investigations.

The single FBI informant known to have been present on January 6 appears not to have told his handlers about a meeting he was at the night before where using violence was discussed. And so DOJ has given two members of the Kansas City Proud Boy cell who were with him — Ryan Ashlock and Louis Colon — unbelievably sweet plea deals, I suspect to sustain the rest of the cases against the Proud Boys.

Both Tarrio and Biggs have made specific requests for their own communications with law enforcement — in Tarrio’s case, he claims it is Brady material. That is, they plan to argue they couldn’t be guilty of plotting against the government because they’ve been so chummy with often right wing authoritarian cops in the past.

Witness backsliding

The Proud Boys have also been very good at pressuring witnesses not to testify against the mob. It had seemed that Ryan Samsel might enter into a plea deal describing what transpired between him and Biggs right before he kicked off the entire riot, for example, until Samsel was assaulted in still unexplained circumstances at the DC jail. Zach Rehl seemed like he was considering a plea deal until Tarrio called Rehl’s wife about it.

Jeff Finley, who was a co-traveller of Rehl’s, seems like he cooperated his way into a misdemeanor plea deal (like Brandon Straka is known to have), but in a July request for a four-month continuance, the government seemed to suggest they weren’t sure how complicit Finley was.

The government requests this continuance to allow time for the parties to fully evaluate the nature and seriousness of the defendant’s misconduct and for the parties to prepare a full and complete allocution to assist this Court in its sentencing.

All this is background to the Jeremy Bertino plea rolled out yesterday. Bertino was a high level Proud Boy who, because he was injured in a December 12 brawl, was not present on January 6, but was closely involved in discussions in advance of it.

Bertino’s possible arrest has been anticipated for months. A misdemeanor docket for Bertino was briefly unsealed on September 15 but then sealed. Yesterday, he pled guilty to one count of seditious conspiracy and one count of unlawful weapons possession for a small arsenal he had in spite of a past felony conviction. He is, as everyone (including me) has reported, the first Proud Boy to plead to seditious conspiracy. And he’s another participant in key leadership discussions in advance of the attack.

His statement of offense, however, leads me to wonder whether he didn’t get this plea deal in part to keep Charles Donohoe — who like Bertino is from North Carolina, and who pled guilty to obstruction and assault in April — from backsliding as a cooperator.

Most of the new details the SOO provides focus on 2020, describing how the Proud Boys radicalized in late 2020 and emphasizing the import of the December 12, 2020 confrontations, including explicit discussions about using Tarrio’s anticipated arrest to rile people up against the cops. The description of changing attitudes about the cops (something that has featured in Proud Boy indictments from the start) may serve to combat Tarrio and Biggs’ efforts to claim chumminess with the cops.

Bertino further understood that due to a number of negative interactions with law enforcement, including the events of December 12, the Proud Boys increasingly viewed police as the enemy and Proud Boy members increasingly referred to the police as “coptifa,” meaning that they viewed the police as siding with Antifa.

The SOO explains that Bertino did not know what plan Biggs and Nordean came up with at a still unexplained meeting around 9PM on January 5. A very similar paragraph appears in Donohoe’s statement of offense.

What I’m most surprised about is who it includes and who it excludes: The SOO names Donohoe at least twelve times — sworn statements implicating Donohoe in events, many of which he himself admitted to in his own SOO. That shouldn’t be necessary for a cooperating witness (though because they were both in the Carolinas, the two men would have worked closely together). While it mentions Person-3, whom Alan Feuer has identified as John Stewart, it does not name Aaron Wolkind at all, referred to frequently in earlier Proud Boy materials as Person-2. With the exception of Person-3 (who is not yet charged), the focus is entirely on those already charged in the leaders conspiracy, not any other Proud Boys.

It is undoubtedly an important step to get a plea to sedition from someone who wasn’t even present the day of the attack. But that doesn’t alleviate the many things that make this case more complex than the Oath Keeper one.

NARA Asked for 24 Boxes … Trump Gave Them 15

The Archives (NARA) has released several sets of documents pertaining to the documents Trump stole, including the email that kicked off the entire hunt for documents on May 6, 2021. In it, NARA General Counsel Gary Stern emailed Pat Philbin, Mike Purpura, and Scott Gast talking about known missing items (including the love letters from Kim Jong Un).

Of those love letters, Stern described that Trump had a binder of them made right before he left office, just like he had a binder of the records pertaining to the Russian investigation.

[I]n January 2021, just prior to the end of the Administration, the originals were put in a binder for the President, but were never returned to the Office of Records Management for transfer to NARA.

More hilariously, Stern told the Trump lawyers that he knew of around 24 boxes of records that had been kept in Trump’s residence that weren’t returned. Stern told Trump’s lawyers that he knew that Pat Cipollone had told Trump to give them back — all 24 boxes of Presidential Records!

It is also our understanding that roughly two dozen boxes of original Presidential records were kept in the Residence of the White House over the course of President Trump’s last year in office and have not been transferred to NARA, despite a determination by Pat Cipollone in the final days of the Administration that they need to be. I had also raised this concern with Scott during the final weeks.

NARA emailed Trump’s lawyers and told them he knew that there were roughly 24 boxes that Trump’s own White House Counsel had determined belonged to NARA.

And after an extended fight, Trump returned just 15.

Trump apparently thought a building full of archivists would just round up from 15.

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