The Durham Investigation Has Lasted 50% Longer than the Mueller Investigation

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It seems like just days ago we were celebrating a big milestone in the life of the Durham investigation: the 1,000 day mark.

Time flies when you’re unethically making accusations designed to rile up the frothy base, because Durham hits another major milestone today.

Today makes day 1,011 for Durham. The Mueller investigation lasted 674 days, total. So as of today, John Durham has been investigation for 50% longer than the entire Mueller investigation he was hired to undermine.

I had to highlight the end date for Mueller because it gets lost when compared to the Durham timeline.

In 22 months, Mueller got convictions of Trump’s Coffee Boy, his National Security Advisor, his Campaign Manager and the Campaign Manager’s Deputy, Trump’s personal lawyer, as well as another American and the son-in-law of Alfa Bank Oligarch German Khan. On a referral, a second Konstantin Kilimnik partner, Sam Patten pled guilty. Mueller charged 25 Russian involved in attacks on the country, as well as Kilimnik himself in a conspiracy with Manafort (though not the conspiracy for trading campaign strategy for debt relief). With another eight months, DC’s US Attorney would win Roger Stone’s conviction. None of those things — not the George Papadopoulos guilty plea, not the guilty plea of Khan’s son-in-law Alex Van der Zwaan, and not Michael Cohen’s plea to covering up the communications he had (on Trump’s behalf) with the Kremlin — derives from either the Steele dossier or the Alfa-Bank anomalies.

In half again that time span, John Durham has won the guilty plea of Kevin Clinesmith (whose misconduct DOJ Inspector General Michael Horowitz found), charged Michael Sussmann for lying about coordinating with Hillary staffers he didn’t coordinate with, and charged Igor Danchenko for lies that Durham’s prosecutors created, at least in part, with cut-and-paste failures. All because he’s sure — and he’s going to keep going until he finds proof — that the abundant prosecutions Mueller obtained were the fruit of stuff that Durham is working hard to criminalize and not the criminal conduct that all those Trump flunkies but Stone admitted to.

With the addition of a new financial crimes prosecutor yesterday to the Michael Sussmann prosecution team, I feel like Durham is barely getting started. Why not double the length of time it Mueller took to investigate rather than avoid admitting you can’t substantiate any of your conspiracy theories?

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Six Data Points about the CIA Dragnet

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Last week, Ron Wyden and Martin Heinrich released a declassified letter they wrote last April, describing a CIA bulk program that had not been fully briefed to the Intelligence Committees, which violated the spirit and understanding of efforts to shut down bulk collection.

This history demonstrates Congress’s clear intent, expressed over many years and through multiple pieces of legislation, to limit, and in some cases, prohibit the warrantless collection of Americans’ records, as well as the public’s intense interest in and support for these legislative efforts. And yet, throughout this period, the CIA has secretly conducted it own bulk program [redacted]. It has done so entirely outside the statutory framework that Congress and the public believe govern this collection, and without any of the judicial, congressional or even executive branch oversight that comes with FISA collection.

I’ve been hesitating writing about it. That’s true, because it’s not the least little surprise to me. I’ve written a series of pieces describing how the self-congratulatory pieces claiming legislation passed in the wake of Snowden’s leaks won’t do what they say. I pointed out some of what PCLOB was likely to find when they started this review.

Then there’s bullet 4, which suggests CIA and/or NSA are collecting “within the United States or from U.S. companies.”

With regards collection “within the US,” Mayer’s post is helpful here too, pointing to loopholes for wireless and satellite communication.

The law that results is quite counterintuitive. If a communication is carried by radio waves, and it’s one-end foreign, it falls under Executive Order 12333. If that same communication were carried by a wire, though, it would fall under FISA. (Specifically, the Section 702 upstream program.)

As for how this Executive Order 12333 authority might be used beyond satellite surveillance, I could only speculate. Perhaps intercepting cellphone calls to or from foreign embassies?12 Or along the national borders? At any rate, the FISA-free domestic wireless authority appears to be even broader than the Transit Authority.

As far as collection outside the US, this may simply be a reference to providers voluntarily providing data under 18 U.S.C. § 2511(2)(f), as we know at least some of the telecoms do.

I pointed out that a consideration of the risks of surveillance under EO 12333 to US persons had to consider CIA’s use of it (then got yelled at because I pointed out enormous blindspots in “expert” reports). I noted that when cautioning about the dragnet Donald Trump would wield, you had to consider EO 12333.

I mean, there’s been a whole lot of self-congratulation since Snowden. And it has all been just that, something to brag to donors about. Because EO 12333 was always out there, and it was always possible to do virtually all of what Snowden exposed in the Section 215 program via EO 12333.

Add that to the list of unpopular things I have said over the years that leads “experts” to prefer to ignore me.

So I assume this will be ignored like all those other warnings of precisely this moment.

Here’s where I would propose to go find the CIA dragnet.

CIA always wanted to restore its Stellar Wind component

First, remember there was a CIA component to Stellar Wind, the first dragnet set up for counterterrorism (which this program is). CIA had to do its own IG Report on Stellar Wind.

Remember that one of Bill Binney’s gripes about how NSA repurposed his surveillance was that they eliminated the encryption hiding US person identifiers, effectively making it easy to spy on US persons.

Now consider that on July 20, 2004, the CIA took the lead on pushing for the adoption of “supplemental procedures” allowing the analysis of US person metadata under EO 12333. July 20, 2004 was days after Jack Goldsmith, who had shut down parts of Stellar Wind, resigned, and the agencies immediately moved to start turning all the programs he had shut down (including both surveillance and torture) back on.

It took years to restore that access to US person data (I have a theory that Alberto Gonzales was fired because he refused to reauthorize it). But starting in 2007, expanding  in 2009 (at a time when the Section 215 program was under threat), and then fully implementing in 2011 (after NSA had to shut down the PRTT program knowing full well it violated John Bates upstream order), SPCMA was rolled out.This meant that, so long as data was collected via whatever means overseas, US person metadata could be included in the analysis.

The government has been preserving its ability to use 18 U.S.C. § 2511(2)(f)

Over a series of IG Reports written by Glenn Fine, I honed in a memo that David Barron (the OLC head who, under Obama, played a similar role as John Yoo did for George Bush) wrote seemingly authorizing using 18 U.S.C. § 2511(2)(f) to get “international” data from telecoms provided voluntarily. In 2013, David Kris confirmed that that had been happening.

In March 2021 — so before he wrote the letter just declassified but after he was briefed by PCLOB on the report on the CIA dragnet — the Congressional Research Service wrote a report on 18 U.S.C. § 2511(2)(f) for Senator Wyden. It describes how it works as an exception to FISA and other criminal laws.

Accordingly, Section 2511(2)(f) identifies two broad categories of government activities that are exempt from Title III, the SCA, the Pen Register statute, and section 705 of the Communications Act of 1934:27 (1) the “acquisition by the United States Government of foreign intelligence information from international or foreign communications”; and (2) “foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system.” These two categories are further qualified so that the exception only applies if: (3) the acquisition or the foreign intelligence activity is not “electronic surveillance” as defined under FISA; and (4) an “exclusivity” clause states that ECPA, the SCA, and FISA shall be the exclusive means by which electronic surveillance and the interception of domestic wire, oral, and electronic communications may be conducted. Each of these clauses is discussed in more detail below.

It describes that some things don’t count as an “acquisition” under FISA, such as something obtained from a telephone instrument being used in the ordinary course of business.

Therefore, some intelligence activities that qualify as “acquisitions” for purposes of Section 2511(2)(f) may not qualify as “electronic surveillance” under FISA because the acquisition is not accomplished through an electronic, mechanical, or other surveillance device. Although FISA does not define this phrase, ECPA provides a definition of “electronic, mechanical, or other device” to mean “any device or apparatus which can be used to intercept a wire, oral, or electronic communication.”46 However, this definition expressly excludes “any telephone or telegraph instrument, equipment or facility, or any component thereof” that is “being used by a provider of wire or electronic communication service in the ordinary course of its business.”47

This is the kind of language that was used to treat bulk metadata as a mere business record under Section 215 after the government stopped relying exclusively on voluntary production. The bulk telephony data of all Americans was just a business record.

The report written for Ron Wyden during the same period he was writing the now unclassified letter also notes that “exclusivity” only applies to “domestic” communications, not stuff acquired overseas.

The exclusivity clause is first directed at interception of domestic communications, which would not appear to be affected by the previous disclaimers regarding acquisition of foreign and international communications or foreign intelligence activities directed at foreign electronic communications systems.

In other words, if telephone companies want to voluntarily give the records they otherwise keep to the IC for the purpose of foreign intelligence, it fits in this loophole. And given the realities of telecommunication, a huge percentage of “domestic” communications can be obtained overseas.

In 2013, NYT reported that AT&T was providing CIA call records

In 2013, as a bunch of different dragnets were being disclosed while everyone was looking exclusively at Section 215 and right after Kris had confirmed this application of 18 U.S.C. § 2511(2)(f),  Charlie Savage described that the CIA had its own dragnet based on telephone records purchased from AT&T.

The C.I.A. is paying AT&T more than $10 million a year to assist with overseas counterterrorism investigations by exploiting the company’s vast database of phone records, which includes Americans’ international calls, according to government officials.

The cooperation is conducted under a voluntary contract, not under subpoenas or court orders compelling the company to participate, according to the officials. The C.I.A. supplies phone numbers of overseas terrorism suspects, and AT&T searches its database and provides records of calls that may help identify foreign associates, the officials said. The company has a huge archive of data on phone calls, both foreign and domestic, that were handled by its network equipment, not just those of its own customers.

Legally, this dragnet would fit solidly in the 18 U.S.C. § 2511(2)(f) loophole.

Obama’s codification of EO 12333 in his final days

Insanely, Obama finished the process of reconstituting the Stellar Wind program in his final days. He did so, I’ve been told, in an effort to put guidelines in place (for example, Loretta Lynch adopted rules that you couldn’t use EO 12333 data for political purposes, as if that would restrain Donald Trump). But I emphasized then precisely what Wyden and Heinrich are emphasizing now. There’s no oversight.

Which brings us to whether the EO sharing procedures, as released, might bind Trump anymore than EO 12333 bound Bush in 2001.

In general, the sharing procedures are not even as stringent as other surveillance documents from the Obama Administration. The utter lack of any reasonable oversight is best embodied, in my opinion, by the oversight built into the procedures. A key cog in that oversight is the Department of National Intelligence’s Privacy and Civil Liberties Officer — long inhabited by a guy, Alex Joel, who had no problem with Stellar Wind. That role will lead reviews of the implementation of this data sharing. In addition to DNI’s PCLO, NSA’s PCLO will have a review role, along with the General Counsels of the agencies in question, and in some limited areas (such as Attorney Client communications), so will DOJ’s National Security Division head.

What the oversight of these new sharing procedures does not include is any statutorily independent position, someone independently confirmed by the Senate who can decide what to investigate on her own. Notably, there is not a single reference to Inspectors General in these procedures, even where other surveillance programs rely heavily on IGs for oversight.

There is abundant reason to believe that the PATRIOT Act phone and Internet dragnets violated the restrictions imposed by the FISA Court for years in part because NSA’s IG’s suggestions were ignored, and it wasn’t until, in 2009, the FISC mandated NSA’s IG review the Internet dragnet that NSA’s GC “discovered” that every single record ingested under the program violated FISC’s rules after having not discovered that fact in 25 previous spot checks. In the past, then, internal oversight of surveillance has primarily come when IGs had the independence to actually review the programs.

Of course, there won’t be any FISC review here, so it’s not even clear whether explicit IG oversight of the sharing would be enough, but it would be far more than what the procedures require.

I’d add that the Privacy and Civil Liberties Oversight Board, which provided key insight into the Section 215 and 702 programs, also has no role — except that PCLOB is for all intents and purposes defunct at this point, and there’s no reason to believe it’ll become operational under Trump.

I guess I was wrong about PCLOB. It did get reconstituted, and seven years after the EO 12333 review started we’re getting dribbles about what it found!

And in fact if this whole discussion didn’t make me crabby, I’d point out details from the PCLOB report that suggest things aren’t as bad as I thought they’d get in 2017, when this dragnet was handed over to Donald Trump.

So I’m not entirely a pessimist!

PCLOB only has authority over counterterrorism programs

The only problem with being proven wrong about PCLOB, however, is even though there were efforts to expand its mandate during the Trump years, those efforts failed.

It can only look at counterterrorism programs.

So there could be a parallel program used for counterintelligence (indeed, the sharing rules make it quite clear there’s a CI purpose for it), and we’d never get oversight over it. So Wyden and Heinrich should be pushing to get a full briefing on the CI version of this, because it’s there, I would bet you a lot of money.

Anyway, if you want to find the CIA dragnet, you can look at my warnings over the last 9 years (or Charlie Savage’s report on it from 2013). Or you can look at the loophole that 18 U.S.C. § 2511(2)(f) creates, Ron Wyden was exploring closely when he was writing this letter. Another place you might look is AT&T’s earnings statements.

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John Durham Chose to Meet with John Ratcliffe Rather than Witnesses Necessary to His Investigation

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The evidence continues to mount that John Durham has done an epically incompetent investigation. I’ll pull together all that evidence later this week.

But one that I find hilarious and shocking can’t wait.

A piece written by the Fox News propagandist who played a key role in magnifying Kash Patel’s false claims over the weekend credulously continues the Murdoch effort to jack up the frothers by claiming that — rather than letting statutes of limitation expire with no charges — Durham has instead sped up his investigation. Fox also cites a single source claiming that Durham’s investigation has been run very professionally.

Special Counsel John Durham’s investigation has “accelerated,” and more people are “cooperating” and coming before the federal grand jury than has previously been reported, a source familiar with the probe told Fox News.

The source told Fox News Monday that Durham has run his investigation “very professionally,” and, unlike Special Counsel Robert Mueller’s investigation, his activities, and witness information and cooperation status are rarely, if ever, leaked.

Fox unsurprisingly doesn’t cite the part of a recent filing that makes it clear that April Lorenzen doesn’t think it has been run professionally.

In fact, this piece demonstrates that no one who would actually know whether Durham’s investigation has been conducted professionally would talk to them:

Durham’s Feb. 11 filing says that the “FBI General Counsel” will “likely be a central witness at trial.”

Baker did not immediately respond to Fox News’ request for comment.

Durham also provided grand jury testimony from “the above-referenced former FBI Assistant Director for Counterintelligence.” It is unclear to which official Durham is referring, but the title could be a reference to Bill Priestap, who served as the FBI’s assistant director for counterintelligence from 2015 to 2018.

Priestap did not immediately respond to Fox News’ request for comment.

Durham also lists “a former FBI Deputy Assistant Director for Counterintelligence.” It is unclear to whom Durham is referring.

[snip]

Strzok, who was part of the original FBI investigation into whether the Trump campaign was colluding with Russia to influence the 2016 presidential election, and later in Special Counsel Robert Mueller’s office, was fired from the FBI in 2018 after months of scrutiny regarding anti-Trump text messages exchanged with former FBI General Counsel Lisa Page. Their anti-Trump text messages were uncovered by the Justice Department inspector general.

Fox News was unable to reach Strzok for comment.

[snip]

Elias’ law firm, Perkins Coie, is the firm that the Democratic National Committee and the Clinton campaign funded the anti-Trump dossier through. The unverified dossier was authored by ex-British Intelligence agent Christopher Steele and commissioned by opposition research firm Fusion GPS.

A spokesperson for Elias did not immediately respond to Fox News’ request for comment. [my emphasis]

But somebody who would speak with Fox News is John Ratcliffe, the former AUSA who misrepresented his record to get elected but who nevertheless got to be Director of National Intelligence for a short period because Ric Grenell was so much more unsuited to hold the position.

As DNI, Ratcliffe made false claims about Chinese intervention in the election as a way to downplay Russia’s ongoing efforts to help Trump. Ratcliffe is currently spending a lot of time denying that his politicized views (and delay of) a mandated election interference report played some role in January 6 conspiracy theories.

We now know that Ratcliffe should be happy to make those denials to the January 6 Committee directly and under oath — because he has apparently been very happy to chat with Durham’s investigators.

Meanwhile, this week, sources told Fox News that former Director of National Intelligence John Ratcliffe met with Durham on multiple occasions and told him there was evidence in intelligence to support the indictments of “multiple people” in his investigation into the origins of the Trump-Russia probe.

Ratcliffe’s meetings with Durham are significant (beyond suggesting he may be the single source who told Fox News this isn’t a shitshow investigation) because, days before Billy Barr made Durham a Special Counsel, Ratcliffe unmasked Hillary’s identity in foreign intercepts and burned collection on Russian internal intelligence analysis in order to release a report trying to insinuate that Hillary’s fairly unsurprising decision to tie Trump to Russia is what led the FBI to investigate Trump’s ties to Russia.

At issue is a report from John Ratcliffe, sent on September 29, 2020, explaining that,

In late July 2016, U.S. intelligence agencies obtained insight into Russian intelligence analysis alleging that U.S. Presidential candidate Hillary Clinton had approved a campaign plan to stir up a scandal against U.S. Presidential candidate Donald Trump by tying him to Putin and the Russians’ hacking of the Democratic National Committee. The IC does not know the accuracy of this allegation or the extent to which the Russian intelligence analysis may reflect exaggeration or fabrication.

The following week, presumably in an attempt to dredge up some kind of attack out of an absurd attack, Ratcliffe released the underlying reports that, he claimed in his original report, show the following:

According to his handwritten notes, former Central Intelligence Agency Director Brennan subsequently briefed President Obama and other senior national security officials on the intelligence, including the “alleged approval by Hillary Clinton on July 26, 2016 of a proposal from one of her foreign policy advisors to vilify Donald Trump by stirring up a scandal claiming interference by Russian security services.”

On 07 September 2016, U.S. intelligence officials forward an investigative referral to FBI Director James Comey and Deputy Assistant Director of Counterintelligence Peter Strzok regarding “U.S. Presidential candidate Hillary Clinton’s approval of a plan concerning U.S. Presidential candidate Donald Trump and Russian hackers hampering U.S. elections as a means of distracting the public from her use of a private mail server.”

By releasing the exhibits, Ratcliffe should raise real questions about his credibility. For example, I’m not at all sure this date, from Brennan’s notes, reads July 26 and not July 28, a critical difference for a ton of reasons.

The FBI report has a slew of boilerplate making it clear how sensitive this report was (for obvious reasons; effectively it shows that the CIA had some kind of visibility into Russian intelligence analysis), which makes it clear how utterly unprecedented this desperate declassification is. Former CIA lawyer Brian Greer discusses that in this Lawfare post.

Plus, Ratcliffe left out an unbelievably important part of the report: the role of Guccifer 2.0 in the Russian report. Intelligence collected in late July 2016 claimed that Hillary was going to work her alleged smear around neither the GRU (which had already been identified as the perpetrator of the DNC hack) nor WikiLeaks (which had released the DNC files, to overt celebration by the Trump campaign), but Guccifer 2.0, who looked to be a minor cut-out in late July 2016 (when this intelligence was collected), but who looked a lot more important once Roger Stone’s overt and covert communications with Guccifer 2.0 became public weeks later.

The report suggests Hillary magically predicted that days after this plot, President Trump’s rat-fucker would start a year’s long campaign running interference for Guccifer 2.0. Not only did Hillary successfully go back and trick George Papadopoulos into drunkenly bragging about Russian dangles in May 2016, then, Hillary also instantaneously tricked Stone into writing propaganda for Guccifer 2.0 days later.

The report never made any sense. As I noted at the time, to be true, it would require Hillary to have gone back in time to trick the Coffee Boy to learn of and pass on Russia’s plans. Worse still, the claim suggested that Roger Stone — whom FBI has evidence was in contact with the Guccifer 2.0 persona starting in spring 2016 — started parroting the same line the Russians were pushing, even before the FBI learned of it. In other words, read in conjunction with the actual evidence about 2016, the intelligence report on Russia actually suggested that Stone’s ties to Russian intelligence may have been far more direct than imagined.

But John Ratcliffe was too stupid to understand that, and everything we’ve seen about John Durham suggests he is too. That Durham has been repeatedly interviewing Ratcliffe suggests he buys Ratcliffe’s theory that this should have undermined the very real reason to investigate Trump. It also explains why, on the Sussmann indictment, Durham was so squishy about the July 2016 timeline: he needs this report to be more important than the fact that Trump stood up in public and asked Russia to hack some more (which is what led the researchers to look twice at this anomalous data).

Nevertheless, it appears that rather than interviewing witnesses who would be necessary to vet the charges he filed against Michael Sussmann, such as a single Hillary staffer, Durham has, instead, just kept going back to serial liars like Ratcliffe to renew his own conspiracy theories.

Ah well, this disclosure gives Michael Sussmann cause to subpoena Ratcliffe, just like this stunt has given him reason to subpoena Kash Patel. It’s increasingly clear that these addle-brained Republicans fed these conspiracies into Durham’s investigation, and now are magnifying them as Durham’s investigation gets exposed as incompetent, without disclosing that they’re the ones who provided the conspiracy theories in the first place.

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“Fill the Silence:” On Obstruction, Listen to DOJ and Merrick Garland

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Happy Valentines Day, the day on which TV lawyers proclaim that DOJ has let the statutes of limitation on Trump crimes expire, in this case, Trump’s request of Jim Comey that he let the Mike Flynn investigation go.

As I noted in a relevant post last week, Randall Eliason wrote a column last week demanding that the “Biden Justice Department [] issue a report on the Mueller report.”

Today, Ben Wittes and Quinta Juercic wrote a worthwhile piece positing five different possibilities for how Garland dealt with the Mueller Report. Those five are:

  1. “Garland considers the matter closed as a result of Barr’s having closed it.”
  2. DOJ “review[ed] Barr’s judgment but agrees with him on any of a number of legal positions that would make a prosecution of the former president nearly impossible.”
  3. DOJ “quietly reopened the matter, at least for paper review—that is, not for investigation but to review the conclusions based on the collected evidence—and agreed with Barr’s judgments on the facts.”
  4. DOJ “quietly began reviewing Barr’s judgment and is letting certain statutes of limitations lapse because it considers the later fact patterns more plausible criminal cases than the earlier ones.”
  5. “The Garland-run Justice Department never even considered the question of whether to, well, consider the question.”

It’s a worthwhile piece because it gets inside the brain of a DOJ institutionalist and attempts to game out how they might think.

But their discussion is absolutely silent about several pieces of public evidence showing Garland’s DOJ taking action, even while demanding that Garland, himself, “fill the silence.”

That is, they make the mistake of claiming DOJ has been entirely silent. It has not been. They simply haven’t listened to what DOJ has already said.

“The matter” was not closed as of November 2020

Jurecic and Wittes treat “this matter” as a self-evident whole, without defining what they mean by it. I assume when they use the term, “this matter,” they’re referring to Trump’s obstructive actions described in the second Volume of the Mueller Report.

Such shorthand is why, in my own post, I pointed out that most people engaging in this discussion (and I include Jurecic and Wittes in this group), account for the fact not all of Trump’s criminal exposure was in the second Volume. Materials unsealed in September 2020, for example, confirm that DOJ continued to investigate Trump for a big infusion of cash from an Egyptian bank in September 2016 until that summer (CNN’s reporting on it confirmed that timing).

A footnote unsealed (and therefore buried and still all-but unreported) the day before the 2020 election revealed that the investigation into whether Roger Stone conspired with Russia continued after Mueller shut down. Redactions that (in an earlier release) were identified as relating to the Stone matter treated that matter as an ongoing investigation in November 2020.

Similarly, in October 2020, DOJ treated the investigation into a pardon dangle for Julian Assange as an ongoing investigation. In fact, one of the issues that Lawfare treats as exclusively a matter of obstruction –Trump’s direction to Corey Lewandowski to order Jeff Sessions to shut down the entire Russian investigation — likely relates closely to the pardon dangle to Assange, because it came days after Stone told Assange he was intervening with the highest level of government to alleviate Assange’s woes.

We don’t know how many of the ten referrals still redacted in November 2020 remain ongoing; when DOJ released information to Jason Leopold last week, they just chose to release the four pages covered by a DC Circuit order and not a full reissued report. But we do know that “the matter” of the Mueller investigation was not closed as recently as November 2020.

DOJ IG was investigating follow-on obstruction

Both before Trump was ousted by voters and since, reports confirmed that DOJ’s Inspector General was investigating things that should be treated as follow-on obstruction, most explicitly Billy Barr’s efforts to undercut the Roger Stone prosecution but also Barr’s preferential treatment of Paul Manafort as compared to Michael Cohen (the latter will be part of Michael Horowitz’s review of BOP COVID response). Given DOJ IG’s past work, it’s not clear that this will be very critical of Barr’s own role.

One way or another, though, we have weeks-old confirmation that some of it remains under review. Depending on what DOJ IG finds, it’s possible (though unlikely) that might provide predicate to reopen past decisions.

But such a review also means that, because DOJ IG reviews add years to any investigative process, there will be a significant delay before we hear about such matters.

Merrick Garland has told you what he thinks about the OLC memo on prosecuting a President (and, to a lesser extent, OLC memos generally)

Two of Lawfare’s possibilities, especially the second, rely on a deference to OLC, including the declination memo that Amy Berman Jackson partially unsealed (and about which further unsealing the DC Circuit is currently considering).

We know that Garland’s DOJ will defer to most previous OLC memos, in part because his DOJ did so in fighting further unsealing of this memo. But we know even more about what Garland thinks of the memo prohibiting charging a president from an exchange on the topic Garland had with Eric Swalwell in October.

Garland: Well, Office of Legal Counsel memoranda, particularly when they’ve been reviewed and affirmed by Attorneys General and Assistant Attorneys General of both parties, it’s extremely rare to reverse them, and we have the same kind of respect for our precedents as the courts do. I think it’s also would not normally be under consideration unless there was an actual issue arising and I’m not aware of that issue arising now. So I don’t want to make a commitment on this question.

Swalwell: I don’t want to talk about any specific case but, just, in general, should a former President’s suspected crimes, once they’re out of office, be investigated by the Department of Justice?

Garland: Again, without, I don’t want to make any discussion about any particular former President or anything else. The memorandum that you’re talking about is limited to acts while the person was in office, and that’s all I can say.

Swalwell: And should that decision be made only after an investigation takes place before deciding beforehand a general principle of we’re not going to investigate a former President at all? Would you agree that if there are facts, those should be looked at?

Garland: Again, you’re pushing me very close to a line that I do not intend to cross. We always look at the facts and we always look at the law in any matter before making a determination.

In the exchange, Garland makes quite clear that, “it’s extremely rare to reverse” OLC memos because, “we have the same kind of respect for our precedents as the courts do.” Garland also explained that memo and any others (including Barr’s declination memo), “would not normally be under consideration unless there was an actual issue arising and I’m not aware of that issue arising now.”

One reason the memo is not at issue right now is because, “The memorandum that you’re talking about is limited to acts while the person was in office.” But as has often been ignored (though I pointed it out last month), the most recent known version of an OLC memo prohibiting the indictment of a sitting president is significantly premised on the constitutionality of a President being prosecuted after he leaves office even if he was acquitted by the Senate for the same conduct in an impeachment trial.

Randolph Moss, serving as Assistant Attorney General for OLC in 2000, famously wrote the following:

Our view remains that a sitting President is constitutionally immune from indictment and criminal prosecution.

Less famously, however, the first 11 pages of that more famous memo rely on this earlier OLC memo from Moss:

We conclude that the Constitution permits a former President to be criminally prosecuted for the same offenses for which he was impeached by the House and acquitted by the Senate while in office.

By stating that those odious OLC memos remain valid — that is, by deferring to OLC precedent — Garland was in the same breath saying that a former President can be indicted, including for things he was acquitted of in the Senate.

Obviously, Mueller’s findings never made it to the Senate. But Trump’s attempt to coerce Ukraine did and Trump’s attempted coup did.

There are four relevant investigations that tell you how Garland’s DOJ has approached this

In their piece and podcast, Jurecic and Wittes speak as if what Garland would do is entirely hypothetical, as if we don’t know what DOJ would consider palatable regarding earlier criminal exposure.

Except we do know, a bit, because four of the eight investigations into Trump flunkies that have been publicly confirmed provide some insight. For example:

  • Tom Barrack: Barrack confirmed in a recent filing what prior reporting had laid out: this investigation arose out of the Mueller investigation. “As early as December 2017, Mr. Barrack voluntarily produced documents and met with prosecutors in the Special Counsel’s Office investigation, which was led by Robert Mueller and included prosecutors from the Eastern District of New York.” It’s possible it was the first of those ten referrals that remained sealed in November 2020. If it was, it is an indication DOJ would pursue a prosecution arising out of the Mueller investigation that was substantially complete before Trump left, though even in that case it took four months after Garland was sworn in.
  • Erik Prince: It’s not clear whether the investigation into Erik Prince that Billy Barr shut down in 2019-2020 arose out of the Mueller investigation (though it is clear that any Mueller investigation into Prince had been closed by September 2020). I first alluded to a renewed investigation into Prince in this post, and NYT has since publicly confirmed it. I’m no more certain about the scope of the renewed investigation than the NYT, but I do know it is in a different District and it does overlap with the prior investigation, at least somewhat. That doesn’t tell you what DOJ would require to reopen a closed Mueller investigation, but it does show that Lisa Monaco would permit a prior, closed investigation to be reopened, perhaps with a new hook or newly acquired evidence.
  • Rudy Giuliani: The confirmed investigation into Rudy pertains to his Ukraine influence-peddling with a scope from May 2018 through November 2019. As such, except insofar as those actions were a continuation of efforts Paul Manafort had started in 2016, they say nothing about how Garland would treat a continuing Mueller investigation. But we do know one utterly critical fact and another key detail: First, the warrants to seize Rudy’s phones were approved on Monaco’s first day in office. That’s a pretty compelling piece of proof that Garland’s DOJ is not going to shy away from Trump’s closest flunkies. Significantly, SDNY successfully fought to get a privilege waiver spanning from January 1, 2018 (so before Rudy started Trump obstruct the Mueller investigation) through the date of seizure, April 28, 2021 (so through the attempted coup). This tells you that Garland’s DOJ could investigate Rudy for any of his suspected criminal actions, and no one would know about it.
  • Robert Costello: Costello is the lawyer through whom, the Mueller Report describes, Rudy was dangling a pardon for Michael Cohen for back in April 2018 (so within the scope of the privilege review). Currently, he is both Rudy’s lawyer overseeing that privilege review and Steve Bannon’s lawyer. After getting Bannon out of his Build the Wall fraud indictment with a pardon (sound familiar?), Costello helped Bannon walk into a contempt indictment based off non-cooperation with the January 6 investigation. All that background establishes that Costello is just tangential to the Mueller Report (though where he appears, he appears as part of the efforts to obstruct the investigation). But the details of DOJ’s seizure of Costello’s toll records after he made some contradictory claims in FBI interviews on the Bannon contempt case are worth examining closely. That’s because DOJ’s interest in the toll records cannot pertain solely to the January 6 subpoena to Bannon; the scope of the seizure not only predates the subpoena, but predates the establishment of the committee entirely (and happens to cover the entirety of the privilege review Costello oversaw). It’s tough to know what to make of this, but it is indication, like the approval of warrants targeting Rudy, that Garland’s DOJ will take fairly aggressive action pursuing obstruction and other crimes.

Trump is likely on the hook for other obstructive actions

The Lawfare piece claims that, aside from the pardons of Manafort, Stone, and Flynn, there’s no new evidence pertaining to Mueller-related obstruction (and other crimes).

And it’s not like new evidence has emerged since Mueller issued his reports—save the 2020 pardons of Manafort, Stone and Flynn.

But that’s not true. On top of whatever evidence DC USAO obtained on Stone after Mueller shut down (one of which was Andrew Miller’s long-awaited testimony), the government appears to have obtained more evidence on the other example of direct conspiracy with Russia. In the years since Mueller finished, the government has apparently developed new certainty about two details Mueller expressed uncertainty about: Konstantin Kilimnik is a “known Russian Intelligence Services agent,” and he, “provided the Russian Intelligence Services with sensitive information on polling and campaign strategy” in 2016. That suggests DOJ obtained new evidence (and may be why FBI put a $250,000 reward out for Kilimnik’s arrest in summer 2020). Whatever new details are behind this increased certainty, it could change DOJ’s understanding of Manafort’s actions as well. Add in the fact that Treasury accuses Kilimnik of continuing such information operations into the 2020 election — when Rudy was the pivot point — and Trump’s three big scandals may be converging.

But there may well be other obstructive acts, pertaining to the Mueller crimes, as well. Amid all the discussion of Trump’s destruction or removal of classified Presidential Records when he left the White House, for example, there has been little consideration about whether any of those documents pertain to Mueller or the other two investigations Trump obstructed. The January 6 Commission has already confirmed, for example, that some of the Trump documents they obtained were ripped up, and since the investigation into January 6 started immediately, it is highly likely the attempted document destruction happened while the investigation was pending. CNN’s most recent update on Trump’s stand-off with the Archives (in which someone who sounds like Impeachment One Defense Attorney Pat Philbin refused to turn over a document NARA knew to come looking for) is consistent with obstruction, possibly tied to the original Perfect Transcript.

None of this is proof of discrete new evidence on obstruction. Rather, it looks more like the never-ending wave of obstruction all runs together, with the pardons for Stone and Flynn (either, like Stone, known to be under investigation or closely tied to someone, Sidney Powell, known to be)  linking the obstruction of Mueller with the implementation of the coup attempt.

I can’t explain what, precisely, Garland’s DOJ is doing with the Mueller Report (besides prosecuting Trump’s top donor as a foreign agent on a referral from it). But it is simply false that DOJ has been silent about it.

Where DOJ has been speaking, however, is in active dockets and not in a three year old report.

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Kash Patel Knew, and Did Nothing, about the Latest Durham-Related Frenzy

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As predicted, the latest Durham filing has jacked up the frothy right. It even led the Former President to claim these actions should be “punishable by death.”

But the oddest statement came from “Former Chief Investigator for Russia Gate [sic]” and current key witness to an attempted coup, Kash Patel, sent out by the fake Think Tank that hosts some of the former Trumpsters most instrumental in covering up for Trump corruption.

Taken literally (which one should not do because it is riddled with false claims), the statement is a confession by Kash that he knew of what others are calling “spying” on Trump and did nothing to protect the President.

Let’s start, though, by cataloguing the false claims made by a man who played a key role in US national security for the entirety of the Trump Administration.

First, he claims that the Hillary Campaign, “ordered … lawyers at Perkins Coie to orchestrate a criminal enterprise to fabricate a connection between President Trump and Russia.” Thus far, Durham has made no claims about any orders coming from the Hillary Campaign (and the claim that there were such orders conflicts with testimony that Kash himself elicited as a Congressional staffer). The filing in question even suggests Perkins Coie may be upset about what Sussmann is alleged to have done.

Latham – through its prior representation of Law Firm-1 – likely possesses confidential knowledge about Law Firm-1’s role in, and views concerning, the defendant’s past activities.

In fact, in one of the first of a series of embarrassing confessions in this prosecution, Durham had to admit that Sussmann wasn’t coordinating directly with the Campaign, as alleged in the indictment.

Kash then claims that “Durham states that Sussmann and Marc Elias (Perkins Coie) … hired .. Rodney Joffe … to establish an ‘inference and narrative’ tying President Trump to Russia.” That’s false. The indictment says the opposite: Joffe was paying Perkins Coie, not the other way around. Indeed, Durham emphasized that Joffe’s company was paying Perkins Coie a lot of money.  And in fact, Durham shows that the information-sharing also went the other way. Joffe put it together and brought it to Perkins Coie. Joffe paid Perkins Coie and Joffe brought this information to them.

Kash then claims that “Durham writes that he has evidence showing Joffe and his company were able to infiltrate White House servers.” Kash accuses the Hillary Campaign of “mastermind[ing] the most intricate and coordinated conspiracy against Trump when he was both a candidate and later President.” This betrays either real deceit, or ignorance about the most basic building blocks of the Internet, because nowhere does Durham claim that Joffe “infiltrated” any servers. Durham, who himself made some embarrassing technical errors in his filing, emphasizes that this is about DNS traffic. And while he does reveal that Joffe “maintain[ed] servers for the EOP,” that’s not infiltrating. These claims amount to a former AUSA (albeit one famously berated by a judge for his “ineptitude” and “spying”) accusing a conspiracy where none has been charged, at least not yet. Plus, if Joffe did what Kash claims starting in July 2016, as Kash claims, then Barack Obama would be the one with a complaint, not Trump.

Finally, Kash outright claims as fact that Joffe “exploited proprietary data, to hack Trump Tower and the Eisenhower Executive Office Building.” This claim is not substantiated by anything Durham has said and smacks of the same kind of conspiracy theorizing Louise Mensch once engaged in. Only, in this case, Kash is accusing someone who has not been charged with any crime — indeed, a five year statute of limitation on this stuff would have expired this week — of committing a crime. Again: a former AUSA, however inept, should know the legal risk of doing that.

Curiously, Kash specifies that the White House addresses involved were in the Eisenhower Executive Office Building. That could well be true, but Durham only claims they were associated with EOP, and as someone who worked there, Kash should know that one is a physical structure and the other is a bureaucratic designation. But to the extent Kash (who has flubbed basic Internet details already) believes this amounted to hacking the EOP, it is based off non-public data.

So, like I said, the piece is riddled with false claims, but with two claims that go beyond anything Durham has said.

The statement is all the stranger given that Kash Patel knew about these allegations four years ago, at a time when he was one of the most powerful Congressional staffers on matters pertaining to intelligence.

And he did nothing about them.

Well. He did do something.

He started this line of inquiry — brought it up entirely out of the blue — in an interview of Michael Sussmann largely focused on Sussmann’s response to a hostile attack by Russia.

About a quarter of the way into an interview on December 18, 2017, after Sussmann debunked the frothy right’s conspiracy theory about the DNC being unwilling to share information with the FBI (which was a central focus of the interview), a staffer veered away from that line of questioning and asked about other meetings. Sussmann answered the questions that someone interested in cybersecurity would have wanted to know: how does the government share information with a high-profile victim of a nation-state attack?

Q Thats helpful. Thank you Going over to – moving on from CrowdStrike and the FBI, did you ever have any interactions with any other government agencies in relation to the DNC hack, Russian involvement in the 2016 elections, or anything like that, or any members of any government agencies?

A So.yes. For the intrusion, I believe our contacts initially and for a while were only with the FBI. And there came a time when we got involved with the Department of Homeland Security, and had a variety of ongoing meetings with them for various purposes. We reached out to State officials, to the State — Association of Chief Information Officers from the States.

But that’s not what this staffer was interested in. This staffer was thinking big.

Q Did you meet with anybody else, any members of the Intelligence Community, either officially or unofficially, to discuss these matters?

MS. RUEMMLER: With respect to the DNC?

Q The DNC, the 2016 Russia election, all things that fit under that sort of general big title.

Sussmann, perhaps sensing this staffer was about to deliver a gotcha, noted that he didn’t always know who was in a room.

A So let me provide one general exception. I had meetings and calls with the FBI when there were a lot of people in the room, and I don’t necessarily know —

Q Yeah, I don’t mean that.

A — who was there.

That’s not what this staffer was after either. The staffer wanted to know about a meeting Sussmann had with the CIA.

Q I don’t mean the FBI. I don’t mean those big conference calls or anything like that. I mean, did you have any engagements with any members of the Intelligence Community, not the FBI, one-on-one, or in small groups, or telephone calls, or communications with folks, say, such as the Central Intelligence Agency?

Sussmann responded as to the subject of the interview, the DNC hack: no, all the meetings were with FBI or DHS. That’s when the staffer in question revealed he wanted to know about other topics.

A I think as regards to the I think all of the hacking ~ I think all of the hacking stuff was limited to the FBI and DHS.

Q Okay. So you never had any communications with members of the CIA [redacted] discussing the ~ not only the hack, but also the possible Russian intrusion and Russian involvement in the 2016 election?

That’s when Kathryn Ruemmler, representing Sussmann, referred to the staffer in question by name: Kash. This line of questioning was done by Kash Patel (which isn’t surprising, seeing as how at the time he was the “Chief Investigator for Russia Gate [sic].”

MS. RUEMMLER: Kash, just to clarify, you’re talking about the 2016 timeframe here? [my emphasis]

The staffer now identified as Kash continued, making it clear he already knew the answer to the question he was asking. He already knew about this meeting.

Q Well, that’s when that incident occurred. I’m asking if you ever have from that time until today?

A So I have — I have various contacts with members of law enforcement and the Intelligence Community on behalf of a number of different clients. So I’m not sure how to —

Q Sure. I’ll narrow it down for you. Fair enough. As it relates to what you and I have been talking about here today

A Right

Q –that is, the DNC hack, the Russian involvement in the 2016 election, and any information that was derived therefrom, did you meet or discuss with any members of the Intelligence Community outside of the FBI to provide information, talk to them about these matters? Did they reach out to you? Did anything like that ever happen in 2016 or 2017

With her client having been asked about a topic that wasn’t among the topics he had prepared to discuss or among the clients whose privileged matters he had gotten prior authorization to discuss and apparently worried about ethical issues, Ruemmler asked if she and Sussmann need to take a minute to confer.

MS. RUEMMLER: Do you want to confer for a second?

MR. SUSSMANN: I just want to talk about the range of – I have a lot of different clients, and since we’ve just spoken —

MS. RUEMMLER: As long as you don’t reveal identity of them, which You’re not permitted to do under the rules, or any content.

MR. SUSSMANN: Can we step outside and talk about how to deal with the range of clients?

MS. RUEMMLER: Yes.

[Discussion off the record.]

MR. SUSSMANN: Thank you.

At this point, if Sussmann were really hiding this stuff (as John Durham claims), he could have refused to answer the question, citing that privilege and the off-topic question. But Sussmann didn’t do that. He consulted with Ruemmler (something that Durham is now making a stink about), then came back in the room, noted that Kash had asked an off-topic question, but nevertheless answered honestly.

[The reporter read the record as requested.]

MR. SUSSMANN: So I’m not clear as to the scope of what you’re asking your question, but I’m going to be sort of more expansive in my answer, because there’s nothing — you said in relation to the things that we discussed today, and this is not something we’ve discussed today.

But I did have — I don’t believe I had — s0 two things. I don’t believe I had — I didn’t have direct contact with [NSA] butI can relate to you some indirect contacts with [NSA]. And I had a meeting [at CIA] as well.

That’s what Kash was looking for.

Okay.

Sussmann explained, noting that this was classified.

A The [NSA] contact related to specifically my representation of the DNC, and my contact [with CIA] did not relate to my specific representation of the DNC, or the Clinton campaign, or the Democratic Party. And I also — I’m not — I will do the best that I can with you. I think there are limits to what I can discuss in an unclassified setting.

Kash asked about the CIA meeting.

Q Okay, fair enough. What was your contact [with CIA] about?

A So the contact [with CIA] was about reporting to them information that was reported to me about possible contacts, covert or at least nonpublic, between Russian entities and various entities in the Untied States associated with the — or potentially associated with the Trump Organization.

Q And when did that contact [with CIA] occur, month and year?

A February 2017.

Q Where did you get that information from to relay to [CIA]?

A From a client of mine.

Q Why did you go [to CIA]

After Ruemmler interrupted again to remind Sussmann not to violate privilege, he explained that he reached out on this front because he knew of Obama’s effort to get a review of potential Russian involvement in the election.

Q You did say, right, that you had — you’d received information from a client — I’m not asking who — that may be germane to the 2016 election and associates of the Trump campaign or people affiliated with the Trump campaign.

So my follow-up question was, why did you go to [CIA] with this information?

A Oh, I’m sorry. And I apologize. I remember what I was going to say. It was — it was, in large part, in response to President Obama’s post-election IC review of potential Russian involvement in the election. And in that regard, I had made outreach prior to the change in administration in 2016. And for reasons known and unknown to me, it took a long time to — or it took — you know, it took a while to have a meeting, and so it ended up being after the change in administration.

The line of questioning continued later with someone else, because Kash had to leave. In those questions, Sussmann factually answered the information came from a client he had represented before the DNC, and admitted he had the information prior to the election. He explained his motive for sharing the information with James Baker (which led the FBI to be able to intervene and prevent the NYT from publishing, something Durham didn’t bother to investigate before indicting Sussmann) and CIA. He admitted that Perkins Coie still represented the DNC when he met with the CIA, though he wasn’t doing work for them anymore. And, in a passage that will be a focal point of the trial, he described how he and Joffe decided together to share this information.

Q Okay. I want to ask you, so you mentioned that your client directed you to have these engagements with the FBI and [CIA] and to disseminate the information that client provided you. Is that correct?

A Well I apologize for the double negative. It isn’t not correct, but when you say my client directed me, we had a conversation, as lawyers do with their clients, about client needs and objectives and the best course to take for a client.

And so it may have been a decision that we came t0 together. I mean, I don’t want to imply that I was sort of directed to do something against my better judgment, or that we were in any sort of conflict, but this was — I think its most accurate to say it was done on behalf of my client.

In other words, Kash and his colleagues have known the outlines of this for over four years.

At the time, and in his next job at NSC, Kash would have had ready access to the CIA for more details about the meeting — indeed, he came into this interview knowing about it already.

At the time, and in his next job at NSC, and in his next job as DOD Chief of Staff, Kash would have had knowledge of Rodney Joffe’s contracts with FBI and NSA.

At the time, and in his next job at NSC, and in his next job as DOD Chief of Staff, Kash would have had access to the DARPA contract, which got extended afterwards.

In his comment, the Former President said that “those who knew about this” should be subject to criminal prosecution. And Kash Patel was, at all moments between December 2017 and January 2021, not only aware of the outlines and the players, but he did nothing.

Whatever else this kerfuffle has done, it has made Kash’s exposure as a witness in this case quite dicey. Because not only is Kash a witness that Sussmann was not hiding what he did, but he is someone who for years was in a position to do something about it, and he did nothing.

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Mueller Found Probable Cause, but Did Not Charge, Don Jr for Misdemeanor Hacking

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I didn’t move quickly enough yesterday to see what correct reading of newly released Mueller Report materials Byron York deleted. But Byron got literally everything wrong with this tweet, purportedly a correction.

Sadly, Byron is not the only one making this error. Daily Beast did so, as well. Even BuzzFeed’s coverage of this is misleading.

Parts of the Mueller Report that BuzzFeed have liberated — both this most recent unsealing and a prior one in November 2020 — now show that:

  • Mueller had sufficient evidence to charge Don Jr with a misdemeanor CFAA charge, but once he ruled out a felony charge, did not charge Jr, because he correctly determined that would be an asinine prosecutorial decision
  • Mueller had outstanding questions about whether Roger Stone conspired with Russia, and so declined to charge him in July 2018 but did refer those questions for ongoing investigation (an investigation which, if claimed exemptions are any guide, was still ongoing in November 2020)

Mueller didn’t charge Jr because his likely crime amounted only to a misdemeanor

As newly unsealed language explains,

The Office also considered whether Donald Trump Jr. intentionally accessed a protected computer without authorization, in violation of [CFAA … by] us[ing] a password, supplied to him by WikiLeaks … to access the website “putintrump.org” in September 2016.

Mueller found that Don Jr’s conduct met each element — (1) access without authorization and (2) obtain information from (3) a protected computer (4) intentionally — of a misdemeanor CFAA violation (meaning, there was probable cause he had committed the crime):

  1. Trump Jr. received the password from WikiLeaks and then wrote to others that “it worked” when he tried it; that evidence would support a conclusion that he “accesse[d] a computer without authorization.”
  2. Trump Jr’s statement in an email that he had seen the website’s contents likely sufficed to demonstrate that he “obtained information” from the computer, since the word “obtain” in this provision “includes mere observation of the data.”
  3. The computer accessed with the password likely qualifies as “protected” under the statute, which reaches “effectively all computers with Internet access.”
  4. The same course of conduct, and Trump Jr’s email admissions afterwards, also suggested that Trump Jr acted “intentionally.”

That language establishes that, contra Byron, Don Jr did probably commit a crime, something that one of the leading experts on CFAA, Orin Kerr, laid out in 2018.

But Mueller didn’t charge it. Legalistically, Mueller didn’t charge it because prosecutors couldn’t prove that Jr’s conduct was serious enough to merit a felony charge because he didn’t get $5,000 of value from the information or try to commit another crime with the information.

In this instance, Trump Jr. accessed the website shortly before it went public using a “guessed” password that, although it was sent to him individually, had also been posted by WikiLeaks to its public Twitter account, such that anyone following WikiLeaks could have gotten the same purview of the website that Trump Jr. did. That fact, among others, would make it difficult to prove that Trump Jr. acted to further any crime or tort or that he obtained information valued at more than $5,000–which are the kind of circumstances that can trigger felony punishment under the statute.

Colloquially, this language means that Mueller determined the conduct was so minor that it would be asinine to charge. That was undoubtedly the correct decision.

Incidentally, this is a perfect example of what I discussed in my Ratfucker Rashomon series about ways the genre of the Mueller Report — a report on prosecutorial decisions — obscures the real significance of the investigative findings. This conduct was interesting for Mueller not because it was ever going to be charged as a crime (though it was one of the things cited to get the contents of Assange’s Twitter account in 2017), but because WikiLeaks and Assange fairly obviously repeatedly cultivated Jr, including:

  • In October 2016 when they tried to conduct outreach to the campaign via him rather than Roger Stone
  • The day after the election, when they pitched Don Jr on ways to contest a Hillary win
  • In December 2016, when they again tried to shift the pardon discussions ongoing with Stone to Jr
  • In July 2017, when Assange encouraged Don Jr to release his own June 9 meeting emails and to reach out to the go-between Stone was using, Margaret Kunstler
  • In November 2017, when Assange implicitly threatened Don Jr with release of more CIA source code

All this is important for understanding how WikiLeaks was pressuring Trump and likely played a huge role in Trump’s pivot on an Assange pardon after he realized Mueller was investigating it. But much of it is not criminal (and it’s not clear whether Jr encouraged it at all). So none of it appears in the Mueller Report, which is limited to prosecutorial decisions.

This misdemeanor CFAA declination, then, hides far more interesting investigative threads Mueller pursued that would never show up in a declinations report.

Mueller didn’t charge Stone because DOJ was still investigating

Because the four pages released yesterday include two of a number of discussions of the prosecutorial decisions regarding Stone, multiple people (including Byron) are stating that Mueller found that Stone did not conspire with Russia’s hack-and-leak campaign. That’s based on this language:

Separately, Russian intelligence officers who carried out the hacking into Democratic Party computers and the personal email accounts of individuals affiliated with the Clinton Campaign conspired to violate, among other federal laws, the federal computer-intrusion statute, and they have been so charged. See United States v. Netyksho, et al., No. 18-cr-215 (D.D.C.). The evidence was not sufficient to charge that former Trump Campaign member Roger Stone joined or participated in the hacking conspiracy.

[snip]

Therefore, the Office did not seek charges against WikiLeaks, Assange, or Stone for participating in the computer-intrusion conspiracy alleged in Count One of the Netyksho indictment.

Both these references discuss a prosecutorial decision made in July 2018.

But a footnote to the CFAA declination released in the material BuzzFeed liberated in November 2020 reveals that Mueller made multiple referrals regarding this issue to DC’s US Attorney Office.

The Office determined that it could not pursue a Section 1030 conspiracy charge against Stone for some of the same legal reasons. The most fundamental hurdles, though, are factual ones.1279

1279 Some of the factual uncertainties are the subject of ongoing investigations that have been referred by this Office to the D.C. U.S. Attorney’s Office.

A warrant targeting Stone after the Netysko indictment in 2018 explained that, “It does not appear that Stone is currently aware of the full nature and scope of the ongoing FBI investigation.” Warrants from this same period (some of which were originally withheld from Stone) make clear the investigation pertained to his foreknowledge of Guccifer 2.0’s operation, not WikiLeaks. The efforts to hide parts of the investigation from Stone appears to have worked, as he appears to have believed that the charges against him for lying, obstruction, and witness tampering pertaining to WikiLeaks was the end point of the investigation, which may have been why Andrew Miller ended his challenge to a Mueller subpoena after the Report was released.

In fact, a number of other declination decisions don’t include all of Stone’s exposure. The most substantive Stone-related declination in the report addresses contacts with WikiLeaks (but not Guccifer 2.0) and addresses campaign finance crimes.

The individual declinations of a conspiracy don’t address the section of the report that addresses Stone’s conduct:

That particular section is silent about declining a conspiracy related to Volume I Section III, which is where everything Stone-related appears, even his contacts with Henry Greenberg, which was effectively another outreach from a Russian, which otherwise should appear in Section IV.

In other places, too, the report discusses “Trump Campaign officials” or members, rather than discussing people associated with it or a former campaign official as it does elsewhere, a distinction with Stone (who left the campaign in 2015) that Mueller sustained.

Further, the evidence was not sufficient to charge that any member of the Trump Campaign conspired with representatives of the Russian government to interfere in the 2016 election.

[snip]

As a result, the Office did not charge Gordon or any other Trump Campaign official with violating FARA or Section 951, or attempting or conspiring to do so, based on contacts with the Russian government or a Russian principal.

All of which is to say that Mueller did not charge Roger Stone in July 2018 when he indicted the Russian hackers. Likewise, he did not charge Stone for receiving an illegal campaign donation by optimizing the WikiLeaks releases. But the other declinations in the report stop short of addressing Stone’s conduct, and a footnote (as well as referrals that were explicitly labeled as Stone-related in the second release of the report) makes clear that the investigation into Stone continued past the end of the Mueller investigation.

That doesn’t mean DC prosecutors ultimately found that Stone committed a crime. He has not been charged (at least not publicly). But at the time the report was written in March 2019, the investigation into whether Stone conspired with Russia remained ongoing.

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On Unrealistic Expectations for Mueller Report Obstruction Charges

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Among those whinging that Merrick Garland hasn’t imprisoned Donald Trump yet, there is an apparent belief that the Mueller Report left obstruction charges all wrapped up in a bow, as if the next Administration could come in, break open the Report, and roll out fully-formed charges.

Even among those with a more realistic understanding of the Mueller Report, people continue to call for some public resolution of the obstruction charges, as Randall Eliason did here and Quinta Jurecic did here. Jurecic even updated her awesome heat map of the obstruction charges, with the date the statute of limitations (if an individual act of obstruction were charged outside a continuing conspiracy) would expire for each.

None of that is realistic, for a whole range of reasons.

The obstruction-in-a-box belief is based on a misunderstanding of the Mueller Report

First, the belief that Merrick Garland could have come into office 11 months ago and rolled out obstruction charges misunderstands the Mueller Report. Many if not most people believe the report includes the entirety of what Mueller found, describes declination decisions on every crime considered, and also includes a volume entirely dedicated to Trump’s criminal obstruction, a charging decision for which Mueller could not reach on account of the OLC memo prohibiting it. None of that is true.

As I laid out in my Rat-Fucker Rashomon series, the Mueller Report is only a description of charging decisions that the team made. My comparison of the stories told in the Report with those told in the Stone warrant affidavits, Stone’s trial, and the SSCI Report show that Mueller left out a great deal of damning details about Stone, including that he seemed to have advance notice of what the Guccifer 2.0 persona was doing and that Stone was scripting pro-Russian tweets for Trump in the same period when Trump asked Russia, “if you’re listening — I hope you are able to find the 30,000 emails that are missing.”

And, as DOJ disclosed hours before the 2020 election, Mueller didn’t make a final decision about whether Stone could be charged in a hack-and-leak conspiracy. Instead, he referred that question to DC USAO for further investigation. In fact the declinations in the Mueller Report avoid addressing any declination decision for Stone on conspiring with Russia. The declination in the report addresses contacts with WikiLeaks (but not Guccifer 2.0) and addresses campaign finance crimes. The section declining to charge any Trumpsters with conspiracy declines to charge the events described in Volume I Section II (the Troll operation) and Volume I Section IV (contacts with Russians), in which there is no Stone discussion. Everything Stone related — even his contacts with Henry Greenberg, which is effectively another outreach from a Russian — appears in Section III, not Section IV. The conspiracy declinations section doesn’t mention Volume I Section III (the hack-and-leak operation) at all and (as noted) in the section that specifically addresses hack-and-leak decisions, a footnote states that, “Some of the factual uncertainties [about Stone] are the subject of ongoing investigations that have been referred by this Office to the D.C. U.S. Attorney’s Office.” This ongoing investigation would have been especially sensitive in March 2019, because prosecutors knew that Stone kept a notebook recording all his conversations with Trump during the campaign, many of which (they did have proof) pertained to advance notice of upcoming releases. That is, the ongoing investigation into Stone was also an ongoing investigation into Trump, which is consistent with what Mueller told Trump’s lawyers in summer 2018.

That’s not the only investigation into Trump that remained ongoing at the time Mueller closed up shop. The investigation into a suspected infusion of millions from an Egyptian bank during September 2016 continued (per CNN’s reporting) until July 2020, which is why reference to it is redacted in the June 2020 Mueller Report but not the September 2020 one. I noted both these ongoing investigations in real time.

The Mueller Report also doesn’t address the pardon discussions with Julian Assange, even though that was included among Mueller’s questions to Trump.

So contrary to popular belief, Volume II does not address the totality of Trump’s criminal exposure.

That ought to change how people understand the obstruction discussion in Volume II. For all the show of whether or not Mueller could make a charging decision about Trump, the discussion provably did not include the totality of crimes Mueller considered with Trump.

All the more so given the kinds of obstructive acts described in Volume II. The biggest tip-off that this volume was about something other than criminal obstruction charges, in my opinion, is the discussion of Trump’s lies about the June 9 meeting in Trump Tower. As Jurecic’s heat map, her extended analysis, and my own analysis at the time show, the case that this was obstruction was weak. “Mueller spent over eight pages laying out whether Trump’s role in crafting a deceitful statement about the June 9 meeting was obstruction of justice when, according to the report’s analysis of obstruction of justice, it was not even a close call.” At the time, I suggested Mueller included it because it explained what Trump was trying to cover up with his other obstructive actions during the same months. But I think the centrality of Vladimir Putin involvement in Trump’s deceitful statement — which gets no mention in the Report, even though the Report elsewhere cites the NYT interview where that was first revealed — suggests something else about this incident. Because of how our Constitution gives primacy in foreign affairs to the President, DOJ would have a very hard time charging the President for conversations he had with a foreign leader (Trump’s Ukraine extortion was slightly different because Trump refused to inform Congress of his decision to blow off their appropriation instructions). But Congress would (in a normal time, should) have no difficulty holding the President accountable for colluding with a foreign leader to invent a lie to wield during a criminal investigation. Trump’s June 9 meeting lie is impeachable; it is not prosecutable.

Similarly, several of the other obstructive acts — asking Comey to confirm there was no investigation into him, firing Comey, and threatening to fire Mueller — would likewise be far easier for Congress to punish than for DOJ to, because of how expansively we define the President’s authority.

That is, these ten obstructive acts are best understood, in my opinion, as charges for Congress to impeach, not for DOJ to prosecute. The obstruction section — packaged up separately from discussion of the other criminal investigations into Trump — was an impeachment referral, not a criminal referral. I think Mueller may have had a naive belief that Congress would be permitted to consider those charges for impeachment, such an effort would succeed, and that would leave DOJ free to continue the other more serious criminal investigation into Trump.

It didn’t happen.

But that doesn’t change that a number of these obstructive acts are more appropriate for Congress to punish than for DOJ to.

Bill Barr did irreparable damage to half of these obstruction charges

Bill Barr, of course, had other things in mind.

Those wailing that Garland is doing nothing in the face of imminently expiring obstruction statutes of limitation appear to have completely forgotten all the things Billy Barr did to make sure those obstruction charges could not be prosecuted as they existed when Mueller released his report.

That effort started with Barr’s declination of the obstruction charges.

Last year, Amy Berman Jackson forced DOJ to release part of the memo Barr’s flunkies wrote up the weekend they received the Mueller Report. The unsealed portions show that Rod Rosenstein, Ed O’Callaghan, and Steven Engel signed off on the conclusion that,

For the reasons stated below, we conclude that the evidence described in Volume II of the Report is not, in our judgment, sufficient to support a conclusion beyond a reasonable doubt that the President violated the obstruction-of-justice statutes. In addition, we believe that certain of the conduct examined by the Special Counsel could not, as a matter of law, support an obstruction charge under the circumstances. Accordingly, were there no constitutional barrier, we would recommend, under the Principles of Federal Prosecution, that you decline to commence such a prosecution.

This was unbelievably corrupt. There are a slew of reasons — from Barr’s audition memo to the way these officials include no review of the specific allegations to the fact that some of these crimes were crimes in progress — why this decision is inadequate. But none of those reasons can make the memo go away. So unless DOJ were to formally disavow this decision after laying out the reasons why the process was corrupt (preferably via analysis done by a quasi-independent reviewer like the Inspector General), any prosecution of the obstruction crimes laid out in the Mueller Report would be virtually impossible, because the very first thing Trump would do would be to cite the memo and call these three men as witnesses that the case should be dismissed.

But Barr’s sabotage of these charges didn’t end there. At his presser releasing the heavily-redacted report, Barr excused Trump’s obstruction because (Barr claimed) Trump was very frustrated he didn’t get away with cheating with Russia unimpeded, thereby deeming his motives to be pure.

In assessing the President’s actions discussed in the report, it is important to bear in mind the context.  President Trump faced an unprecedented situation.  As he entered into office, and sought to perform his responsibilities as President, federal agents and prosecutors were scrutinizing his conduct before and after taking office, and the conduct of some of his associates.  At the same time, there was relentless speculation in the news media about the President’s personal culpability.  Yet, as he said from the beginning, there was in fact no collusion.  And as the Special Counsel’s report acknowledges, there is substantial evidence to show that the President was frustrated and angered by a sincere belief that the investigation was undermining his presidency, propelled by his political opponents, and fueled by illegal leaks.  Nonetheless, the White House fully cooperated with the Special Counsel’s investigation, providing unfettered access to campaign and White House documents, directing senior aides to testify freely, and asserting no privilege claims.  And at the same time, the President took no act that in fact deprived the Special Counsel of the documents and witnesses necessary to complete his investigation. Apart from whether the acts were obstructive, this evidence of non-corrupt motives weighs heavily against any allegation that the President had a corrupt intent to obstruct the investigation.

These claims were, all of them, factually false, as I laid out at the time. But because he was the Attorney General when he made them, they carry a great deal of weight, legally, in establishing that Trump had no corrupt motive for obstructing the investigation into his ties to Russia.

And after that point, Barr made considerable effort to manufacture facts to support his bullshit claims. Most obviously, he sicced one after another after another investigator on the Russian investigation to try to substantiate his own bullshit claims. In the case of Barr’s efforts to undermine the Mike Flynn prosecution — which investigation lies behind four of the obstruction charges laid out in the Mueller Report — the Jeffrey Jensen team literally altered documents to misrepresent the case against Flynn. Similarly, a Barr-picked prosecutor installed to replace everyone who was fired or quit in the DC US Attorney’s Office, Ken Kohl, stood before Judge Sullivan and claimed (falsely) that everyone involved with the Flynn prosecution had no credibility.

If we move forward in this case, we would be put in a position of presenting the testimony of Andy McCabe, a person who our office charged and did not prosecute for the same offense that he’s being — that we would be proceeding to trial against with respect to Mr. Flynn.

So all of our evidence, all of our witnesses in this case as to what Mr. Flynn did or didn’t do have been — have had specific findings by the Office of Inspector General. Lying under oath, misleading the Court, acting with political motivation. Never in my career, Your Honor, have I had a case with witnesses, all of whom have had specific credibility findings and then been pressed to go forward with the prosecution. We’re never expected to do so.

Again, so long as this testimony remains credible, you can’t pursue obstruction charges remotely pertaining to Flynn, meaning four of the obstruction charges are off the table.

Barr also chipped away at the other charges underlying the obstruction charges, intervening to make it less likely that Roger Stone or Paul Manafort would flip on Trump and help DOJ substantiate that, yes, Trump really did cheat with Russia to get elected. Barr also got OLC to undercut the analysis behind charging Michael Cohen for the hush payments (which may have made it impossible for SDNY to charge Trump with the same charges).

Meanwhile, John Durham toils away, trying to build conspiracy charges to substantiate the rest of Barr’s conspiracy theories. Along the way, Durham seems to be tainting other evidence that would be central to any obstruction charges against Trump. For example, in the most recent BuzzFeed FOIA release, all parts of Jim Comey’s memos substantiating Trump’s obstruction that mentioned the Steele dossier were protected under a b7(A) exemption, which is almost certainly due to Durham’s pursuit of a theory that Trump’s actions with Comey were merely a response to the Steele dossier, not an attempt to hide his Flynn’s very damning conversations with the Russian Ambassador during the transition. That is, Durham is as we speak making evidence unavailable in his efforts to invent facts to back Barr’s claims about Trump’s pure intent in obstructing the Mueller investigation.

As noted, all of these efforts are fairly self-obviously corrupt, and most don’t withstand close scrutiny (as the altered documents did not when I pointed them out). But before DOJ could pursue the obstruction charges as they existed in the Mueller Report, they would first have to disavow all of this.

Inspector General Michael Horowitz was reportedly investigating at least some of this starting in 2020. And I trust his investigators would be able to see through much of what Barr did. But even assuming Horowitz was investigating the full scope of all of them, because of the pace of DOJ IG investigations, the basis to disavow Barr’s efforts would not and will not come in time to charge those obstruction counts before the statutes of limitation expires.

The continuing obstruction statutes have barely started

In addition to obstructing the punishment of Paul Manafort and Roger Stone and undermining the theory behind the Michael Cohen hush payment charges, Bill Barr also worked relentlessly to undermine the prosecution of Rudy Giuliani.

There were undoubtedly a lot of reasons Barr needed to do that. If he didn’t, he might have to treat Trump’s extortion of Ukraine (which was the follow-up to Manafort’s Ukraine ties in 2016). Rudy was central to Trump’s own obstruction of the Mueller investigation. And if Rudy were shown to be an Agent of Russian-backed Ukrainians, it would raise significant questions about Trump’s larger defense (questions for which there is substantiation in Mueller’s 302s).

I understand there was a sense, in the middle of Barr’s efforts, that prosecutors believed they could just wait those efforts out.

And then, literally on Lisa Monaco’s first day on the job, DOJ obtained warrants to seize 16 devices from Rudy. During all the months that people have been wailing for Garland to act, Barbara Jones has been wading through Rudy’s phones to separate out anything privileged (and, importantly, to push back on efforts to protect crime-fraud excepted communications). Almost the first thing Lisa Monaco did was approve an effort to go after the key witness to the worst of Trump’s corruption.

There are many reasons I keep coming back to that seizure to demonstrate that Garland’s DOJ (in reality, Monaco would be the one making authorizations day-to-day) will not back off aggressive investigations of Trump. Even if DOJ only had warrants for the Ukraine investigation, it would still get to larger issues of obstruction, because of how it relates to impeachment. But even if it were true those were the only warrants when DOJ raided Rudy, there’s abundant reason to believe that’s no longer true. If DOJ got warrants covering the earlier obstruction or Rudy’s role in the attempted coup, no one outside that process would know about it.

Then, in recent days, DOJ made another audacious seizure of a lawyer’s communications, a seizure that only makes sense in the context of a larger obstruction investigation, this time of the January 6 investigation, yet more evidence that DOJ it not shying away from investigating Trump’s crimes.

Indeed, DOJ currently has investigations into all the nodes of the pardon dangles, too: Sidney Powell’s work for Trump on a thing of value (the Big Lie) while waiting for a Mike Flynn pardon; Roger Stone’s coordination with militias before and after he got his own pardon; promises to the Build the Wall crowd — promises kept only for Bannon — tied to efforts to help steal the election; and Rudy’s role at the center of all this.

There would be no reason to charge the pardon dangles from 2019 (the balance of the obstruction charges that Barr didn’t hopelessly sabotage) when DOJ has more evidence about pardon bribes from 2020, including the devices of the guy at the center of those efforts, and the direct tie to the January 6 coup attempt to tie it to. Indeed, attempting to charge the earlier dangles without implicating everything Trump got out of the pardons in his attempted coup would likely negatively impact an investigation into the more recent actions.

Even assuming Mueller packaged obstruction charges for DOJ to indict, rather than Congress to impeach, the deliberate sabotage Barr did in the interim makes most of those charges impossible. The exceptions — the pardon dangles — all have additional overt acts to include that sets aside Barr’s past declination.

DOJ cannot charge the Mueller obstruction charges. But they also cannot explain why not, partly because of the institutional necessity to move beyond Barr’s damage, but partly because doing so would damage the possibility of charging the continuation of that very same obstruction.

One obstruction crime is actually a conspiracy crime

I forgot one more detail that’s really important: One of the listed acts of obstruction, Trump’s efforts to have Jeff Sessions shut down the investigation, appears to be a Stone-related conspiracy crime. As I noted, that effort started nine days after Roger Stone told Julian Assange, “I am doing everything possible to address the issues at the highest level of Government.”

Especially given that it is among the weaker obstruction crimes, this is one that would be better pursued as a conspiracy crime (though it would be tangled up in the Assange extradition).

Update: As Jackson noted on Twitter, DC Circuit should soon weigh in on ABJ’s efforts to liberate more of Barr’s declination memo.

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When Lawyers’ Lawyers Need Lawyers: The Import of Robert Costello’s Toll Records — for Bannon, for Rudy, and for Donald Trump

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As I explained in this piece, the lawyer who represents both Rudy Giuliani and Steve Bannon — and who has been at the center of Trump’s pardon-dangling for almost three years — had two meetings with the Bannon prosecution team, where he made a number of claims that could not all be true. The first meeting Robert Costello had with DOJ was on November 3, with a follow-up on November 8, 2021.

Just two of the sets of mutually contradictory claims Costello made in his first interview are:

COSTELLO had not had communication with attorneys for TRUMP prior to that date. [October 18, 2021, when Trump filed a lawsuit challenging Executive Privilege waivers for the January 6 Committee]

And,

COSTELLO first had contact with [Attorney for Donald Trump Justin] CLARK on approximately October 4 or October 5, 2021.

Or:

COSTELLO did not discuss disposing of any documents requested in the Select Committee subpoena with any attorneys who represented former President TRUMP.

And,

Even though MICHAEL FLYNN was not an attorney, he was present during attorney-client-protected discussions. Those particular attorneys represented former President TRUMP and CLARK informed COSTELLO not to respond to item 17.

I would imagine there’s no better way to get the FBI to start investigating you for false statements then by making a bunch of mutually contradictory claims in one interview.

There were certainly other claims Costello made which he should have known to be false. For example, given that his other client, Rudy Giuliani, put out a statement asserting that Sidney Powell did not work for Trump, Costello likely knows that Powell’s presence at a meeting, along with non-lawyer Mike Flynn, would not implicate Trump’s privilege, even if a meeting between Costello client Bannon and Costello client Rudy could itself be considered privileged, which is a fantastic stretch in any case. But that’s a claim, he told the FBI, that he advised Bannon to make in refusing to respond to the January 6 subpoena by invoking Executive Privilege.

Nevertheless, the FBI did not have to obtain the content of Costello’s communications to test whether he lied at that meeting on November 3, given that so many of his fact claims could be tested simply by obtaining his call and email records to see whether he was speaking with Trump lawyers (and those for Mark Meadows, Dan Scavino, and Kash Patel) and if so, when, about which Costello made affirmative denials in his meeting with DOJ. If he was discussing with other lawyers how to deal with the Select Committee investigation at a time he claimed he was not, the FBI would have deemed that a suspected lie worthy of more investigation.

And that’s what the FBI did, making eight requests for records (four for phone records, four for Internet records, apparently covering his work and personal emails and phones) resulting in 790 pages, total.

Given the abundant detail included in the Motion to Compel (undoubtedly included to provide hypothetical co-conspirators some idea of the extent of the record seizure, including that no content was obtained), Bannon’s claims seem to be predictably overblown. There appear to be three grand jury subpoenas and just one 2703(d) order (to an Internet provider, likely someone like Google). That is, some of the eight requests appear to be an effort to figure out which phones and email were of interest, in advance of obtaining toll record themselves. Indeed, Bannon makes much out of the fact that DOJ obtained payment method associated with Costello’s phone, available with a basic subscriber request. And unless Costello is a remarkably stingy user of SMS texting, the request for those toll records appears to be narrowly tailored either by time or interlocutor; there are just two pages of SMS text toll records.

Here’s a summary of what the government appears to have obtained:

Bates stamp range: US 001093-001883

US 001093: Grand jury subpoena

US 001145-001768: 623-page return from Internet provider showing IP activity, status (read or unread, inbox, etc.) and other details concerning emails and other activity offered by the carrier obtained with a Section 2703(d) Order on November 11, 2021 [US 001733] that includes a case number [US 001732-001735] and returned on December 7, 2021.  Returns include:

  • US 001151-001249: 98 pages showing IP activity for the email account sought from March 5, 2021 through November 12, 2021, as well as a report on what other services from the provider Costello uses
  • US 001733, 001735, 001740, and 001742: Several references to a 2703(d) order or equivalent
  • US 001765: Grand jury subpoena

US 001769-001789: Costello’s 302s

US 001834: Case number

US 001842: Case number

US 001863: Subscriber record showing payment method for Costello’s cell phone

US 001866: Costello’s data usage

US 001872; Grand jury subpoena

US 001874-001875:  SMS (text messaging) information, including the numbers to which texts were sent and from which they were received

The government doesn’t appear to be treating these records as evidence in their contempt case against Bannon. As the  Bannon filing notes, the government only turned them over on January 4, after stating (before they had obtained the bulk of these records) that the evidence in their case-in-chief against Bannon only consisted of 200 documents.

It is curious that Government counsel delayed producing these documents until January 4, 2022. On November 18, 2021, the parties appeared before this Court. At that proceeding, Government counsel insisted that the Government was ready for trial, that this is a simple and straightforward case, and that it was ready immediately to provide Mr. Bannon with the discovery in the case, which it described as “less than 200 documents,” with “most of” it purportedly comprised of “materials the defendant already has ….” [11/18/2021 Hearing Tr. at 3].

Costello first joined Bannon’s criminal defense team over two weeks after Bannon was indicted, and after DOJ pointed out that Costello’s representation would pose a problem for any Advice of Counsel defense. Given that DOJ obtained toll records from Costello’s firm, it’s possible they tipped him off and he joined the Bannon team to create this problem after that.

Bannon’s filing also notes that the government hasn’t provided the subpoenas obtaining this material, as they would have if the subpoenas targeted him, personally.

Nowhere in the Government’s production was a copy of a court order authorizing the Government’s actions, nor was there a copy of any subpoena for the records, nor was there even any application for a court order or for authorization from the Department of Justice for subpoenas intended to obtain defense counsel’s personal and professional telephone and email records.

That makes sense: Bannon can’t be held responsible for the things his (and Rudy’s) lawyer says while sitting with the FBI. Costello is the one who made mutually contradictory claims, not Bannon.

But, at least as Bannon tells it, the team that seized these records appears to have taken little care to protect Costello’s other clients.

Furthermore, there was nothing in the production that indicated any effort to limit the access of the prosecutors assigned to this case to defense counsel’s personal and professional records, nor was there any indication of any filter in place to distinguish between attorney-client privileged or work-product privileged information that could be garnered from the records the Government obtained and non-privileged materials, nor was there any indication of any filter intended to protect confidential and privileged related to other clients of Mr. Costello and his law firm or intended to keep the prosecutors handling this case from access to any such privileged material.

Indeed, after wailing a bit about DOJ’s oblique response when asked about this seizure, the Bannon filing returned to Costello’s other clients and “witnesses” consulted in those representations.

Beyond all of the above, the Government’s response ignores the damage its actions risked causing for other clients of Mr. Costello and his law firm, for telephone calls and emails to and from other clients and witnesses consulted in relation to their cases would now be exposed by the Government’s efforts to obtain records for all of the attorney’s emails and telephone records.

And in fact, in a letter responding to Bannon’s questions about these records, DOJ made no representations about work product related to Costello’s other clients, even while emphasizing what the prosecution team (which is different from DOJ as a whole) has in its possession.

Aside from the information that Mr. Costello voluntarily disclosed on behalf of Mr. Bannon during the investigation of this matter, the Government has not taken any steps to obtain any attorney work product relating to any attorney’s representation of Mr. Bannon or to obtain any confidential communications between Mr. Bannon, Mr. Costello, and Mr. Katz, or between Mr. Bannon and any other attorneys.

We have provided all discoverable material in the prosecution team’s possession, custody, or control relating to Mr. Costello’s and Mr. Katz’s involvement in the conduct charged in the Indictment. The Government understands its discovery obligations under Federal Rule of Criminal Procedure 16; the Jencks Act; and Brady, Giglio, and their progeny, and will continue to comply with them should additional discoverable material come into the prosecution team’s possession, custody, or control.

That’s significant because of the temporal scope of the email metadata obtained: from March 5 through November 12, 2021, basically the last event for which Costello was representing Bannon in the Build the Wall criminal prosecution and his indictment on these new charges (though, again, Costello didn’t join his defense team for over two weeks). These records don’t include any period when Costello was criminally representing Bannon.

But they do cover a far broader period than would be necessary to understand what communications Costello had with lawyers for Donald Trump after Bannon was subpoenaed by the January 6 committee on September 23. Indeed, they cover a broader period than the entire January 6 Committee, which was created by House Resolution 503 on June 30, 2021.

Presumably, DOJ saw something in the initial records they were seeking — or in records obtained by others, or in another unseen ongoing investigation — to scope the Internet request for the entirety of the period between Costello’s past and current criminal representation of Bannon. Or they were already interested in Costello (for whom there was a possible referral in the Mueller investigation), and his interview with the FBI extended that interest.

That suggests this really isn’t about Bannon.

But the seized records do include the entirety of the period when Costello was helping Rudy review the contents of 16 devices seized by SDNY. Of note, Trump could have, but chose not to participate in that Special Master process. Because he moved to intervene, Dmitry Firtash is permitted to review the records seized from Victoria Toensing to protect his own interests, but Trump’s lawyers should not be getting notice of what was seized from Rudy.

Indeed, the conversations of interest regarding the Bannon representation happen to have taken place during a period during which Costello had gotten an extension to review the contents of the first seven devices seized from Rudy.

On September 28, 2021, I directed that Mr. Giuliani complete his review of the data contained on seven of these devices by October 6, 2021, which was later extended to October 12, 2021. These seven devices contain 2,226 items in total dated on or after January 1, 2018. Mr. Giuliani designated 3 items as privileged, and I am reserving decision on those 3 items. The remaining 2,223 items have been released to the Government.

Costello told the FBI he had no conversations with any Trump lawyers for this period. Even if he had conversations with other Trump lawyers during this review problem, it would conflict with what he told the FBI in his Bannon-related meeting.

It’s certainly possible that the only warrants at issue in the Special Master review are the Ukraine-related ones overtly used to seize Rudy’s devices, and that the SDNY team is completely excluded from accessing these records; if that’s the case, it would suggest there’s no investigation into Rudy out of DC, particularly not one in which JP Cooney or Molly Gaston are participating, both senior prosecutors at DC USAO.

Or there’s something far more interesting going on.

Update: I realized after I posted this that Costello’s 302s were included in the 790 pages Bannon complained about, meaning he claimed things were call records when instead they were the obvious justification for the call records. I’ve added and bolded those pages above.

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Trump’s Coup Attempts: A Tale of Five Pardon Dangles

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In an analysis piece earlier this week, the NYT reported as newsworthy that,

Over the weekend, Mr. Trump also dangled, for the first time, that he could issue pardons to anyone facing charges for participating in the Jan. 6 attack if he is elected president again — the latest example of a yearslong flirtation with political violence.

Politico followed that with a report that Trump at least considered blanket pardons for those who might be implicated in January 6.

“Is it everybody that had a Trump sign or everybody who walked into the Capitol” who could be pardoned? Trump asked, according to that adviser. “He said, ‘Some people think I should pardon them.’ He thought if he could do it, these people would never have to testify or be deposed.”

Offering preemptive pardons is not a new idea for Trump. According to Michael Cohen, Trump also entertained bulk pardons with the Russian investigation before Jay Sekulow figured out that it would make it easier for people to testify against him.

Q What is – you had a conversation with Jay Sekulow about something called a pre-pardon?

A Yes.

Q How many conversations did you have with him about pre-pardoning

A One or two.

Q And what did he say to you?

A The problem with a pre-pardon is that you have to answer every question because technically you have immunity, so you can’t assert any Fifth Amendment privilege.

Q Let’s back up for a second, because that presupposes that you’ve already discussed the idea of you getting a pardon. Did Jay Sekulow tell you that the President was considering giving you a pardon?

A That’s not the way that he stated it, but we had a conversation, one at least – I believe it may have been two – and I am not 100 percent certain of the exact date that that occurred, but the concept of a pre-pardon was discussed, yes.

Q Okay. So if you said that’s not exactly how he said it, what do you remember him saying about the idea of you getting a pardon?

A Well, it wasn’t just me. It was globally, in order to, I guess, shut down, you know, this investigation. And I had said to him, you know, what .. well, you know, there’s always the possibility of a pre-pardon. And –

Q Let’s take your time, because it’s important for us to understand not just the gist of the conversation but who said what exactly. All right? So you mentioned something called a global pardon. Did he use that term?

A No.

Q Okay. What do you mean by a global pardon?

A Okay. That in order to shut this whole thing down, that this is how they were potentially going to do it, and everybody would just get a pardon. And said, well, it wouldn’t be a pardon, it would be a pre-pardon, because nobody’s been charged yet. So it ultimately just became, that’s not really something that could be accomplished, because then they’d have the right, again, to ask you questions, everyone on the team.

Q So when you say everyone, who do you mean?

A I guess whoever it is that you started to request to come in, testify, subpoenaed.

And in Trump’s last days in office, he considered pre-emptive pardons, but — in part because of Pat Cipollone’s opposition — he did not do so.

It is the case that Trump has now dangled pardons at a time he doesn’t have the power to grant them. Even that is not new, though, given that Roger Stone was brokering a Julian Assange pardon no later than November 15, 2016 and probably starting even before the election, in October 2016.

This latest dangle is more newsworthy, though — and for reporters who don’t want to enable Trump’s authoritarian power, ought to be reported as — an attempt to reclaim power he already lost after reneging on promises of pardons made while he still had the power to grant them.

It is not news that Trump used pardon dangles as one tool to attempt a coup on January 6. At least five people directly involved in the coup attempt benefitted from pardons, some awarded at key times in the planning process, with Steve Bannon’s issued at the last possible moment.

It is not news that Trump is making pardon dangles publicly to try to bend the will and buy the silence of others. This latest pardon dangle comes in the wake of five events, all of which pose a direct threat to Trump:

  • December 15: The Select Committee contempt referral for Mark Meadows that puts him at risk of Presidential Records Act and obstruction prosecution
  • January 12: The indictment on sedition charges of the Oath Keepers whose testimony could most directly damage Trump
  • January 19: SCOTUS’ refusal to reverse the DC Circuit order allowing the Archives to share Trump records
  • January 19: The delivery to prosecutors, on January 19, of a large number of texts and messages from Rudy Giuliani’s phones
  • January 20: The Select Committee request for Ivanka’s testimony, which strongly suggested she has violated the Presidential Records Act
  • January 21: The report from Sidney Powell’s attorney that she is “cooperating” in her own prosecution and the Select Committee

What’s newsworthy is that Trump is trying this tack after reneging on promises to three of the people involved (during the last days of his Administration, there were reports that Meadows, Rudy, and Ivanka all might receive pardons) that Trump made in the course of planning for the coup.

So I’d like to tell the story of five pardons — three granted, and two withheld — in the context of Trump’s attempted coup on January 6.

Michael Cohen pardon dangle

This first pardon necessary to understand what Trump is up to is one that didn’t happen: The pardon dangle to try to silence Michael Cohen. As the Mueller Report described. in the wake of a raid on Cohen, Robert Costello started reaching out as an envoy for Rudy Giuliani, offering pardons.

On or about April 17, 2018, Cohen began speaking with an attorney, Robert Costello, who had a close relationship with Rudolph Giuliani, one of the President’s personal lawyers. 1022 Costello told Cohen that he had a “back channel of communication” to Giuliani, and that Giuliani had said the “channel” was “crucial” and “must be maintained.” 1023 On April 20, 2018, the New York Times published an article about the President’s relationship with and treatment of Cohen. 1024 The President responded with a series of tweets predicting that Cohen would not ” flip” :

The New York Times and a third rate reporter . . . are going out of their way to destroy Michael Cohen and his relationship with me in the hope that he will ‘flip. ‘ They use nonexistent ‘sources’ and a drunk/drugged up loser who hates Michael, a fine person with a wonderful family. Michael is a businessman for his own account/lawyer who I have always liked & respected. Most people will flip if the Government lets them out of trouble, even if it means lying or making up stories. Sorry, I don’t see Michael doing that despite the horrible Witch Hunt and the dishonest media! 1025

In an email that day to Cohen, Costello wrote that he had spoken with Giuliani. 1026 Costello told Cohen the conversation was “Very Very Positive[.] You are ‘loved’ … they are in our corner … . Sleep well tonight[], you have friends in high places.”1027

According to Cohen, Rudy Giuliani and Robert Costello were at the heart of Trump’s efforts to buy silence.

But Cohen couldn’t be silent about his own plight, and so facing prosecution from that and after a privilege review of his files discovered the recording Cohen made of Trump’s hush payments, he started cooperating with Mueller, helping them to understand what Trump was trying to hide about his ties with the Kremlin during the election.

Cohen paid for that decision, too. He did more time, for example, than Roger Stone, who (like Cohen) had kept blackmail material on Trump. As such, Cohen served as a useful example to Trump: if you cooperated against Trump, Trump would ensure that you suffered a worse outcome than those who had sustained the lies to protect him.

Roger Stone commutation

Roger Stone kept a notebook recording every conversation he had with Donald Trump during the 2016 election. After the election, according to an unreliable October 2018 interview that Steve Bannon had with Mueller’s team, Stone got a meeting to which he brought what appears to be that notebook. Trump asked Bannon to attend, it seems, to ensure that Stone would be kicked out after a short time.

While BANNON was at Breitbart in 2013-2015, BANNON had a strong relationship with [redacted]. BANNON heard from [redacted] STONE was still talking to Trump and was an advisor. STONE subsequently made those statements to BANNON as well. BANNON was suspect and upset. BANNON believed you had to eep TRUMP “on program.” While BANNON was on the Trump Campaign he never heard any mention of STONE from TRUMP or anyone else on the campaign. After the win, STONE tried a full court press in order to get a meeting with TRUMP. [redacted] eventually set up a meeting with TRUMP and STONE in early December 2016 on the 26th floor of Trump Tower. TRUMP didn’t want to take the meeting with STONE. TRUMP told BANNON to be in the meeting and that after 5 minutes, if the meeting hadn’t concluded, to throw STONE out. STONE came in with a book he wrote and possibly had a folder and notes. [full sentence redacted] TRUMP didn’t say much to STONE beyond “Thanks, thanks a lot.”. To BANNON, this reinforced STONE [redacted] After five to six minutes, the meeting was over and STONE was out. STONE was [redacted] due to the fact that during the meeting TRUMP just stared.

That was Bannon’s second-to-last interview with Mueller’s team. A week after his last interview, at which Bannon also appeared before the grand jury, the FBI raided Stone’s homes. One of the things they explicitly looked for was that notebook.

53. On May 8, 2018, a law enforcement interview of [redacted] was conducted. [redacted] was an employee of Stone’s from approximately June 2016 through approximately December 2016 and resided in Stone’s previous New York apartment for a period of time. [redacted] provided information technology support for Stone, but was not f0rmally trained to do so. [redacted] was aware that Stone communicated with Trump during the 2016 presidential campaign, and afterward, both in person and by telephone. [redated] provided information about a meeting at Trump Tower between Trump and Stone during the time [redacted] worked for him, to which Sterne carried a “file booklet” with him. Stone told [redacted] the file booklet was important and that no one should touch it. [redacted] also said Stone maintained the file booklet in his closet.

54. On December 3, 2018, law enforcement conducted an interview of an individual (“Person 1 “) who previously had a professional relationship with a reporter who provided Person 1 with information about Stone. The reporter relayed to Person 1 that in or around January and February 2016, Stone and Trump were in constant communication and that Stone kept contemporaneous notes of the conversations. Stone’s purpose in keeping notes was to later provide a “post mortem of what went wrong.”

In November 2019, Stone was convicted for lying about the nature and Trump’s awareness of his back-channel to the Russian operation. Billy Barr went to extraordinary lengths to attempt to minimize the punishment Stone would suffer for covering that up. He went so far as claiming threats against a federal judge by Roger Stone and the Proud Boys, threats which foreshadowed January 6, were a mere technicality.

But in July 2020, the moment when Stone would have to report to prison approached. Stone made several public appearances telling a story that was impossible as told, the gist of which was that prosecutors had promised Stone they would fight for leniency if he would testify about the content of a subset of the conversations he had with Trump during the election. That had the desired effect: Trump commuted Stone’s sentence before he reported for prison, protecting Stone in a way he had not done for Paul Manafort.

Billy Barr minimized the damage this should have done to Trump’s electoral chances. The Attorney General sat on a footnote of the Mueller Report that revealed when all this occurred, Roger Stone was still under investigation for the hack-and-leak with Russia. Barr released that literally on the eve of the 2020 election, and to this day no major outlet has reported that Stone was still under investigation for conspiring with Russia after the Mueller Report was released.

Mike Flynn pardon

As I laid out in this post, Mike Flynn got next to nothing out of his his two year attempt to renege on his plea agreement with Robert Mueller.

  • Replaced competent lawyers with incompetent TV grifters
  • Released evidence he lied to his lawyers doing the FARA filing
  • Consented to waive privilege so DOJ could find more proof he lied
  • Debunked a slew of conspiracy theories
  • Got really damning transcripts released
  • Served 708 days of supervised release
  • Joined a gang
  • Got one of his gang members prosecuted for death threats against Judge Sullivan
  • Got a ruling — and, later, a clear statement from DOJ — that no abuse occurred
  • Exposed his son to further prosecution
  • Exposed DOJ to further scrutiny
  • Proved Judge Sullivan’s point about selling the country out

After 18 months of making repeatedly debunked claims that he had been victimized by DOJ, however, he did get the most expansive pardon Trump gave, one pardoning not just his underlying crimes, but also the crimes he committed during the process of performing that victimization.

Given everything that has happened since, it’s worth considering Flynn’s performance as a victim as part of Trump’s reelection campaign.

That became most evident on September 29, 2020. Earlier in the day, in a status hearing, Sidney Powell confessed that weeks earlier, she had spoken to Trump about the case, and asked him not to pardon Flynn.

More curious still, she admitted she had spoken with Trump’s campaign attorney, Jenna Ellis.

THE COURT: Let me ask you this before you get to your other objections since we’re talking about — since I raised the issue about communications and correspondence with the Department of Justice. Have you had discussions with the President about this case?

MS. POWELL: I have not, Your Honor, while the case was pending pre-motion to dismiss or otherwise other than an update as to what happened in it.

THE COURT: I’m sorry. I’m not sure I understand your answer. The question is whether you’ve had any discussions at all with the President of the United States about Mr. Flynn and about this case. Yes or no.

MS. POWELL: I’m sorry, Your Honor. I can’t discuss that.

THE COURT: What’s the reason why you can’t discuss that?

MS. POWELL: I would think any conversations that I had with the President would be protected by executive privilege.

THE COURT: Well, you don’t work for the government.

MS. POWELL: I don’t think the executive privilege is limited to people who work for the government.

THE COURT: So you’re purporting to invoke executive privilege not to answer the Court’s question about whether you discussed Mr. Flynn’s case with the President of the United States. Is that correct?

MS. POWELL: Yes. Other than the fact that after the government moved to dismiss or at some point in the last month or so, I provided the White House an update on the overall status of the litigation.

THE COURT: How did you provide that update? Was it in writing?

MS. POWELL: No, sir.

THE COURT: How did you provide that update? Who did you speak with?

MS. POWELL: I provided it in person to counsel for the President.

THE COURT: I mean the White House counsel or a deputy or who did you speak to?

MS. POWELL: Your Honor, I spoke with Jenna [Ellis] and I spoke with the President himself to provide a brief update of the status of the litigation within the last couple of weeks.

THE COURT: And did you make any request of the President?

MS. POWELL: No, sir. Other than he not issue a pardon.

THE COURT: All right. Prior to that discussion with the President — how many discussions with the President have you had about this case?

MS. POWELL: That’s the only one I recall.

THE COURT: So you’re not ruling out other — well, certainly, you would recall a discussion with the President of the United States, wouldn’t you?

MS. POWELL: Well, I’ve had a number of discussions with the President of the United States. I think the New York Times reported I’ve had five. So it seems like they probably have a number better than I know.

THE COURT: Are the New York Times’ representations erroneous?

MS. POWELL: I couldn’t tell you the number of times I’ve actually spoken with the President, Your Honor.

THE COURT: All right. About this case. But there’s been more than one though.

MS. POWELL: No, sir. I can tell you I spoke with one time to the President about this case to inform him of the general status of the litigation.

THE COURT: And was that within the last two weeks?

MS. POWELL: Time has a way of getting by for me, but it’s certainly well after the government moved to dismiss and probably if I recall correctly after the writ of mandamus was entered.

THE COURT: All right. Did you ever ask the President of the United States to request his Attorney General to appoint more attorneys in this case?

MS. POWELL: Oh, heavens, no.

THE COURT: All right. So very succinctly just so I have a clear understanding, what precisely — during the first time you spoke with the President of the United States, what precisely did you ask him to do in connection with this case? What did you ask him to do in connection with this case?

MS. POWELL: I never discussed this case with the President until recently when I asked him not to issue a pardon and gave him the general update of the status of the litigation. [my emphasis]

On the same day Powell admitted to speaking, some weeks earlier, to Trump’s campaign attorney Jenna Ellis, Trump delivered a pre-arranged attack against Joe Biden in the first debate.

President Donald J. Trump: (01:02:22)
We’ve caught them all. We’ve got it all on tape. We’ve caught them all. And by the way, you gave the idea for the Logan Act against General Flynn. You better take a look at that, because we caught you in a sense, and President Obama was sitting in the office.

This false claim was based off misrepresentations based on altered Peter Strzok notes released as part of Bill Barr’s efforts to reverse the prosecution of Flynn. There were other altered documents released for wider dissemination in this period, as well, including additional Strzok and Page texts that newly violated the Privacy Act, though after DOJ had to confess that they had altered those documents, any further focus on the altered documents were dropped.

And then, Trump pardoned his Agent of Turkey along with the Thanksgiving bird.

At the moment Trump would have informed Sidney Powell of that news, she was at Lin Wood’s plantation plotting ways to steal the election Trump had lost. If Flynn was not already with Powell plotting away at the moment he learned of his pardon, he would join her within 24 hours.

Within weeks, the recently-pardoned retired General and foreign agent that had been plotting away with Sidney Powell and Patrick Byrne, someone who had been seduced by an admitted Russian agent, was calling for military intervention. Flynn’s calls for insurrection were reported in real time, but the news was buried and the fact that Trump had just pardoned the man calling for a coup did not make the coverage.

Roger Stone pardon

During the first half of December, Roger Stone was palling around with the accused terrorists who would help physically obstruct the vote certification on January 6.

Days later, one of the Oath Keepers that Stone palled around with, Kelly Meggs, bragged of arranging an alliance with other accused terrorists that Stone also palled around with, the Proud Boys that Trump had told to “Stand Back and Stand By” in that same debate on September 29 where Trump had used a campaign attack packaged up by Sidney Powell.

On December 23, Trump pardoned Stone for the crimes of which he was convicted (but not those that were still under investigation).

On Christmas, Meggs specifically tied protection, almost certainly of Stone, and coordination with a Proud Boy, almost certainly Enrique Tarrio, in the same text.

On December 26, Stone associate Kelly Meggs called this an insurrection (albeit in response to Trump’s order) explicitly.

On December 27, Stone went to Mar-a-Lago to thank Trump for the pardon directly and to discuss how he would “ensure that Donald Trump continues as our president.”

Roger Stone, who received a Christmas week pardon from President Donald Trump, delivered a personal thank you to the president on Sunday at the Trump International Golf Club in West Palm Beach.

Stone wrote that he counseled the president on how he could “ensure that Donald Trump continues as our president.”

[snip]

Stone said via text that he deleted the words and images after he was notified the golf club has “a policy of prohibiting photos of club members or guests out of respect for their privacy.” He said he didn’t have any additional comment.

A photo posted and then removed from Roger Stone's Parler social media page shows President Donald Trump, left, Kimberly Guilfoyle, an unidentified man and Roger Stone at the Trump International Golf Club in West Palm Beach on Sunday.
A photo posted and then removed from Roger Stone’s Parler social media page shows President Donald Trump, left, Kimberly Guilfoyle, an unidentified man and Roger Stone at the Trump International Golf Club in West Palm Beach on Sunday.

One picture showed four people talking: Trump; Kimberly Guilfoyle, a senior adviser to the Trump campaign and Donald Trump Jr.’s girlfriend; Christopher Ruddy, the CEO of the website and cable channel Newsmax, which is based in Boca Raton; and Stone.

“I thanked President Trump in person tonight for pardoning me,” he wrote. “I also told the president exactly how he can appoint a special counsel with full subpoena power to ensure that those who are attempting to steal the 2020 election through voter fraud are charged and convicted and to ensure that Donald Trump continues as our president #StopTheSteal #rogerstonedidnothingwrong.”

The next day, Stone deleted the pictures of his face-to-face meeting with Trump.

On January 5 and 6, Stone continued to interact closely with the Oath Keepers (and some Proud Boys). The morning of the insurrection, one of the Oath Keepers since charged with sedition, Joshua James, checked in with the operational leader for the Oath Keepers that day every time that someone — almost certainly Stone — moved.

Two days after the insurrection, Kristin Davis tweeted out a picture of Stone signing his pardon paperwork. (h/t gal_suburban)

Stone never hid it: His pardon was directly tied to his efforts to keep Trump in power. Given that Stone’s pardon was not as expansive as Flynn’s, he remains at some legal exposure for prosecution for his later efforts (including his June 2017 efforts to shut down the investigation into Julian Assange), so he had a real incentive to do anything he could to keep Trump in power.

Steve Bannon

Three days after Trump lost the election, Steve Bannon — in planning for an illegal second Trump term — threatened to assassinate Chris Wray and Anthony Fauci. The same day, his very competent lawyer, Bill Burck (the guy who got him through a bunch of serial lies in the Mueller investigation), fired him as a client, even as he was facing fraud charges for cheating Trump’s rubes.

It wasn’t until December 11, well into the plotting for a coup, that Robert Costello — the very same lawyer who dangled a pardon to Michael Cohen over two years earlier — noticed his appearance. Costello’s representation of Bannon also meant that the same lawyer represented both Rudy and Bannon, two of the masterminds in the Willard War Room.

December 11, when Costello formally filed as Bannon’s lawyer, is around the same time, according to Dustin Stockton and Jennifer Lawrence, that Paul Gosar’s Chief of Staff tied a pardon for their own involvement in Bannon’s fraud to their efforts to overturn the election results.

In December 2020, as the tour rolled around the country, Stockton and Lawrence say they got a call from Rep. Paul Gosar (R-Ariz.) and his chief of staff, Thomas Van Flein. According to Stockton, Van Flein claimed he and the congressman had just met with Trump, who was considering giving them a “blanket pardon” to address the “We Build the Wall” investigation.

“We were just in the Oval Office speaking about pardons and your names came up,” Van Flein allegedly said. Van Flein did not respond to a request for comment.

Gosar suggested the bus tour was helping Stockton and Lawrence build support for a pardon from the caucus and Trump. “Keep up the good work,” Gosar said, according to Stockton. “Everybody’s seen what you’re doing.”

So it was probably assumed that, so long as Bannon kept helping Trump try to steal the election, he would would get a pardon. That was true even though Roger Stone made it clear after his trial that Bannon had testified in the grand jury against him.

But on the last day, among the very last pardons Trump granted, Trump pardoned Bannon not just for the crimes he had already been charged with, but any others that might arise from the Build the Wall project federally.

Rudy Giuliani left dangling

Almost three years after Rudy started helping Trump out of his legal troubles, in part by shamelessly dangling pardons to (at least) Cohen and Paul Manafort, Rudy got nothing. He got no pardon even though he was represented by Robert Costello, who had started the pardon dangles with him. He got no pardon even after working relentlessly — and exposing himself to further criminal exposure — trying to help Trump steal an election. Rudy got nothing, even though it was known that Barr had failed in his efforts to kill the Ukraine influence peddling investigation into Rudy.

While there had been abundant discussion of pardoning people who weren’t yet charged in early 2021, after Trump’s coup attempt, that plan was scotched.

It might not have happened in any case, given the conclusion Jay Sekulow had come to years earlier, the preemptive pardons make witnesses more likely to testify against Trump.

But because of the insurrection, Pat Cipollone got a lot more involved in pardons. And the insurrection made it virtually impossible to pardon the mastermind of the insurrection, Rudy Giuliani, even while making it all the more important to find a way to keep Rudy silent.

Ten days after (we now know) SDNY first obtained a warrant targeting Rudy Giuliani in the investigation used to justify seizing all his phones, Rudy boasted that he had “very, very good insurance.” Rudy certainly believed Trump would protect him.

But he didn’t.

That’s the angle through which Trump’s latest attempt to dangle pardons should be viewed. Rudy may be the most important person Trump needs to silence. But Trump had a chance to pardon Rudy when he had the authority, and he failed to do so.

Update: Added the SCOTUS decision to the list of things that must have Trump worried. h/t Brian Pillion

Key pardons of January 6 participants

February 18. 2020: Bernie Kerik

November 25, 2020: Mike Flynn

December 22, 2020: George Papadopoulos

December 23, 2020: Roger Stone and Paul Manafort

January 19, 2021: Steve Bannon

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While TV Lawyers Wailed Impotently, DOJ Was Acquiring the Communications of Sidney Powell, Rudy Giuliani, and (Probably) Mark Meadows

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Because TV lawyers continue to wail that DOJ isn’t doing enough to investigate Donald Trump, I want to dumb down this post.

While TV lawyers have been wailing impotently that DOJ has been doing nothing to investigate Donald Trump, DOJ and the National Archives have been acquiring the communications behind some of the most damning events leading up to January 6. DOJ has been doing so even as the TV lawyers guaranteed us they would know if DOJ were doing such things, yet insisting that DOJ was not.

Consider just the events leading up to the December 18, 2020 series of meetings at the White House, involving Sidney Powell, Rudy Giuliani, and Mark Meadows, which some of the same reporters that reported it in real time are reporting as if it were new news.

Sidney Powell

According to the WaPo story on the grand jury investigation into Sidney Powell, a subpoena in that investigation issued in September asked for “communications and other records related to fundraising and accounting” related to Powell’s grift.

Federal prosecutors have demanded the financial records of multiple fundraising organizations launched by attorney Sidney Powell after the 2020 election as part of a criminal investigation, according to a subpoena reviewed by The Washington Post.

The grand jury subpoena, issued in September by the U.S. attorney’s office for the District of Columbia, sought communications and other records related to fundraising and accounting by groups including Defending the Republic, a Texas-based organization claiming 501(c) 4 nonprofit status, and a PAC by the same name, according to the documents and a person familiar with the investigation who spoke on the condition of anonymity to share details of the probe.

As part of the investigation, which has not been previously reported, prosecutors are seeking records going back to Nov. 1, 2020.

The subpoena reviewed by The Post was signed by Assistant U.S. Attorney Molly Gaston, who is also handling politically charged matters related to the Jan. 6 attack on the Capitol, including contempt of Congress charges brought against former Trump adviser Stephen K. Bannon for refusing to testify in front of the House committee investigating the pro-Trump riot. [my emphasis]

While the predication of that investigation seems to be based on Powell’s fundraising — soliciting money from dupes who believe her false claims of a stolen election — because proving that she knew those claims were false would require collecting everything about her efforts to manufacture false claims, it would get the communications explaining how to exploit those false claims as well. Plus, this September subpoena reveals just what DOJ did after moving to an overt phase. Prior to that, DOJ presumably obtained — first — preservation orders and — then — warrants on the emails that, according to Patrick Byrne, Powell claims she sent Rudy about her schemes.

On January 21 (a week before Trump started dangling pardons again), Sidney Powell’s lawyer revealed she is “cooperating” in that investigation, though in contemplating “cooperation” with the January 6 committee, she is reserving privilege claims about “advice” to Donald Trump.

A lawyer for Sidney Powell, a well-known, Trump-connected attorney, acknowledged that her organization’s fundraising connected to the 2020 election is subject to an ongoing federal criminal investigation.

Powell’s lawyer, Howard Kleinhendler, told CNN that his client “is cooperating” with the investigation into her organization, Defending the Republic, by the US Attorney’s Office in the District of Columbia. That cooperation includes “rolling productions” of documents.

[snip]

Still, when the committee asks Powell about communications she had with Trump, that is “going to get a little hairy,” Kleinhendler told CNN.

He said Powell believes that the times Trump called her to ask for legal advice may be covered by attorney-client privilege — even if he never paid her to be his or his campaign’s lawyer. Powell never worked as a lawyer for the former President personally or for the Trump campaign, Kleinhendler said.

“We’ll have to deal with that, and we’ll have to try to discuss with the committee to see how” to handle privilege issues, Kleinhendler said.

Any emails obtained with a non-public warrant would be sent to a taint team that would review Sidney Powell’s privilege claims independently. Of particular interest, after Trump claimed Powell represented him on November 15, 2020, Rudy stated as clearly as he can manage on November 22 that, “Sidney Powell is practicing law on her own. She is not a member of the Trump Legal Team. She is also not a lawyer for the President in his personal capacity.”

With that statement, Rudy effectively waived privilege for any communications implicating both of them from that date forward, long in advance of that December 18 meeting at which Powell purportedly told him about all the communications she sent him in the interim.

Similarly, most of these events post-date the time, November 25, when Powell can credibly claim to be representing Mike Flynn in an effort to nullify the consequences of his lies and foreign agent work, because that’s when Trump pardoned Flynn. So she may want to claim privilege, but after November 25, all visible basis for that claim was affirmatively gone, and for anything seized from her email provider, she’s likely not going to be involved in making that claim anyway.

As I previously noted, the prosecutor in charge of that investigation dropped off three other January 6 prosecutions by March 29 of last year (though there is at least one other investigation, the obstruction investigation into Capitol Police Officer Michael Riley, on which she was also working in the interim).

Gaston originally pulled three January 6 cases in the investigation’s early days, those of Robert Packer, Robert Gieswein, and Derrick Evans, just the latter of which, involving a then-West Virginia state politician, had any possible public corruption component. But, at a time of immense staffing shortages at DC’s US Attorney’s Office, she dropped off those cases on February 18 (in the case of Packer) and March 29 (in the case of Gieswein and Evans). I’ve long wondered what, in the weeks after Merrick Garland came in, became a higher priority for the DC US Attorney’s leading public corruption prosecutor. We now know one thing she picked up in the interim was the prosecution of Michael Riley, the Capitol Police Officer who advised rioter Jacob Hiles to delete Facebook posts about his role in the riot. And by September, Gaston’s grand jury investigation into Sidney Powell’s grift had started taking overt steps like subpoenaing Powell’s nonprofit.

There continue to be some curious moves that suggest DOJ is shifting prosecutorial resources to unseen investigations in fairly urgent fashion.

Rudy Giuliani

Meanwhile, on January 21 (the same day that CNN reported that Powell was “cooperating” in the DOJ investigation, and so also a week before Trump started dangling pardons again), Special Master Barbara Jones reported on the progress of the privilege review of 16 devices seized from Rudy Giuliani on April 28, 2021.

Here’s a summary of what that review and the earlier known seizures of Rudy’s communications in the Ukraine-related investigation into Rudy:

Because of the temporal scope Judge Paul Oetken approved last year, Jones has completed a privilege review of all communications that date between January 1, 2018 through April 28, 2021 on 8 of the devices seized from Rudy (April 28 was the day the devices were seized). We can’t know what dates during which Rudy was using those 8 devices. It could well be that they were older phones with nothing recent.

But we know that of the communications on the phone with the most texts and chats — the phone designated 1B05 — the government received 99.8% of any communications dated between January 1, 2018 and April 28, 2021 and they received those communications no later than January 21.

Of particular note, Rudy at first tried to claim privilege over 56 items from phone 1B05. He thought better of those claims in 19 cases. And then, after Jones deemed 37 of them not to be privileged, he backed off that claim as well. During a period when Jones and Rudy’s team would have been discussing those 37 items, Judge Oetken issued a ruling saying that the basis for any privilege claims (but not the substance of the communications) would have to be public. After precisely the same kind of ruling in the Michael Cohen Special Master review, Trump backed off his claim of privilege for Cohen’s recording about the hush payments. That may be what persuaded Rudy to withdraw his claim of privilege over those materials here, as well.

And whether or not DOJ has already accessed the communications Rudy conducted during 2020 and 2021 on any of the 16 devices seized from him, we know all the phones Rudy was using in April 2021 are in DOJ’s possession and that Judge Oetken has already approved a privilege review to cover those communications.

Mark Meadows

On December 15, the House voted to send the Mark Meadows contempt referral to DOJ for prosecution. Much to the chagrin of the TV lawyers, DOJ has not taken overt action against Meadows on the criminal contempt of Congress referral.

But as I’ve repeatedly argued, that referral is better considered — and would be more useful to the pursuit of justice — as a referral of Mark Meadows for a violation of the Presidential Records Act and obstruction of the DOJ criminal investigation that he knew to be ongoing.

Among the things included in the referral are:

  • A link to this Politico report quoting “a source close to former President Donald Trump’s ex-chief of staff,” insisting that, “all necessary and appropriate steps either were or are being taken” to ensure that Meadows is not deemed to have violated the Presidential Records Act by failing to share Presidential communications he conducted on his personal email and phone
  • Repeated references to Jonathan Swan’s coverage of the December 18 meeting at which Powell and others discussed seizing the voting machines
  • Indication that Meadows received notice on his personal phone (and so among the records withheld in violation of the PRA) the rally might get violent
  • A citation of a message that Meadows turned over to the committee (but presumably not, originally, to the Archives) in which Alyssa Farah urged, “You guys have to say something. Even if the president’s not willing to put out a statement, you should go to the [cameras] and say, ‘We condemn this. Please stand down.’ If you don’t, people are going to die”
  • Citation of several communications Meadows had with state politicians involved in the fake elector scheme (which Deputy Attorney General Lisa Monaco has confirmed they are investigating), including one where Meadows said, “I love it” and another where he said, “Have a team working on it;” Monaco’s confirmation puts Meadows on notice that his actions are the subject of a federal criminal investigation
  • A claim of election fraud sent to Meadows on his private email (and so among the materials he violated the PRA by withholding)
  • Citation of a tweet Meadows sent on December 21 reporting “‘Several members of Congress just finished a meeting in the Oval Office with President @realDonaldTrump, preparing to fight back against mounting evidence of voter fraud. Stay tuned”
  • Citation of this story describing that Meadows’ late December trip to Georgia to pressure election officials to find more votes could get him in legal trouble; when Fulton County DA Fannie Willis asked for increased protection in the wake of Trump’s calls for riots, she stated explicitly that she was criminally investigating, “former President Donald J. Trump and his associates,” putting Mark Meadows on notice that he’s under criminal investigation there, too

This entire process led Meadows and his attorney to make efforts to comply with the PRA, meaning they’ve been working to provide the communications cited here, as well as those Meadows intended to claim privilege over, to the Archives.

If they can’t comply — and some of the texts in question were sent via Signal, which is really hard to archive, and so may not have been preserved when Meadows sent his own phone back to his provider to be wiped and replaced — then Meadows will not just be in violation of the PRA (which is basically toothless) but also of obstructing the criminal investigation he knew was ongoing when he replaced his phone. Obstruction carries a far stiffer penalty than contempt of Congress does, and it serves as good evidence of involvement in a larger conspiracy.

As Carl Nichols, the Trump appointee presiding over the Steve Bannon criminal contempt case (and therefore likely to preside over one against Meadows if it were ever charged), criminal contempt is for someone from whom you’ve given up getting cooperation, not someone who still might offer useful cooperation.

Meanwhile if Meadows and his lawyer do belatedly comply with Meadows’ obligations under the PRA, it’s quite possible (particularly in the wake of the Supreme Court ruling denying Trump’s attempt to override Joe Biden’s privilege waiver) that DOJ has to do no more to obtain these records than to send a warrant to the Archives. If not, Meadows is now on notice that he is the subject of several criminal investigations (the fake elector one and the Fulton County one), and he may think twice before trying to withhold communications that are already in possession of the Archives.

So whether or not DOJ has these documents in their possession right now, they have the means to get them very easily.

In other words, while TV lawyers have been wailing that DOJ has been doing nothing, DOJ has been acquiring the communications from at least two of the key participants in that December 18 meeting, and the Archives have been acquiring the communications of a third.

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