SDNY Prosecutors Protect Trump’s Privacy to Enter into a Joint Defense Agreement with the Russian Mob

Whooboy is there an interesting flurry of motions over in the Ukrainian grifter prosecution. Effectively, SDNY prosecutors and (two of) Lev Parnas’ co-defendants want to slow him from sharing information with HPSCI. The letters include:

  • January 17: Parnas asks to modify the protective order a third time
  • January 22: Igor Fruman lawyer Todd Blanche says he has an attorney-client interest in some of what Parnas wants to and has already shared
  • January 22: Andrey Kukushkin lawyer Gerald Lefcourt says he just wants a privilege review
  • January 23: SDNY says Parnas should not be able to share iCloud information he obtained via discovery without review
  • January 24: Parnas lawyer Joseph Bondy makes a quick argument asserting they should be able to share the information
  • January 24: Bondy responds to Fruman letter at more length
  • January 27: Blanche responds again, invoking Dmitry Firtash to speak on behalf of unnamed others

The dispute started when Parnas asked to share content that the FBI seized from Parnas’ iCloud account and then provided to him in discovery. He listed just 11 Bates stamp numbers in the initial request, but it’s unclear what kind of files these are. In response, the lawyer that Fruman shares with Paul Manafort, Todd Blanche, objected to that request, and also asked to “claw back” any privileged materials that Parnas already produced to HPSCI (remember that Victoria Toensing has already complained that Parnas has violated privilege). Blanche makes a dig at Parnas’ media tour:

My obvious concern is that Mr. Bondy’s hasty efforts to find a forum (beyond MSNBC and CNN) for someone —  anyone — to listen to his client’s version of events caused him to irresponsibly produce privileged materials to the HPSCI.

One of the two other co-defendants, Andrey Kukushkin, weighed in — having been alerted by SDNY that, “its filter team identified materials in Mr. Parnas’ iCloud account that may fall within a common-interest attorney-client privilege held jointly by Mssrs. Kukushkin, Parnas, and aothers” — and stated that he did not object to Parnas sharing information “if all privileged materials can be removed from Mr. Parnas’ iCloud account prior to production to HPSCI.”

Having thus cued Parnas’ co-defendants to submit complaints, SDNY then weighed in, objecting to Parnas’ request. They invoke two reasons for their objection. The first poses interesting Fourth Amendment considerations; effectively SDNY argues that Parnas’ warrant return from Apple includes material that Parnas never possessed (and some material he deleted that only still exists because prosecutors obtained a preservation request).

The materials at issue include records that, as far as the Government knows, were never in Parnas’s possession. For instance, the data produced by Apple includes deleted records (which may only exist because of the Government’s preservation requests), account usage records, and other information to which a subscriber would not necessarily have access. The form of the report, which was created by the FBI, was also never in Parnas’s possession.

[snip]

Additionally, to the extent Parnas seeks to produce his own texts, emails, photographs or other materials, he should have access to the content stored on his iCloud account through other means: he can simply download his own iCloud account and produce it to HPSCI (and in fact, it appears he has already done so).

[snip]

To the extent that Parnas has deleted materials from his iCloud account, the Government is willing to work with counsel to ensure that Parnas can produce his own materials that are responsive to the Congressional request to HPSCI. To that end, the Government respectfully submits that Parnas’s counsel should identify for the Government any specific chats, emails, photographs, or other content Parnas is unable to access from his iCloud currently, but whic exist within the discovery that has been produced to him and in his view are responsive to the Congressional subpoena.

I find that stance interesting enough — basically a reverse Third Party doctrine, saying that subscribers aren’t the owners of the information Apple has collected on them, at least not in the former that FBI reports it out.

It’s the other objection I find most interesting. SDNY prosecutors — including one of the ones who argued against broad claims of privilege in the Michael Cohen — objects because the data from Parnas’ iCloud,

[I]t public disclosure still has the potential to implicate the privacy and privilege interests of third parties and co-defendants.

It then argues that requiring Parnas to specifically request content that he already deleted,

would also permit his co-defendants to raise any concerns with respect to their privilege or privacy interest prior to the materials’ release.

SDNY’s prosecutors are arguing that Parnas can’t release his own iCloud material because of other people’s privacy interests!! As if it is the place for SDNY’s prosecutors to decide what HPSCI considers proper levels of disclosure!!

I’ve been giving SDNY the benefit of the doubt on this prosecution, assuming that as prosecutors they would push back against any Bill Barr attempt to protect Rudy (though not the President). But this alarms me. It seems like SDNY is using Fruman — who is in a Joint Defense Agreement with Rudy — to speak for Rudy’s interests.

After making a cursory response to SDNY, Bondy responded in more detail to Fruman. In it, Bondy makes the kind of argument about the limits of privilege you’ll almost never see a lawyer make.

[T]he burden is on the party asserting the attorney-client privilege to first establish that there was: 1) a communication; 2) made in confidence; 3) to an attorney; 4) by a client; 5) for the purpose of seeking or obtaining legal advice. The part asserting attorney-client privilege has the burden of conclusively proving each element, and courts strongly disfavor blanket assertions of the privilege as “unacceptable.” In addition, the merre fact that an individual communicates with an attorney does not make the communication privileged.

There are also instances in which the attorney-client privilege is waived, including when the substance of otherwise privileged communications are shared with third parties, when the communications reflect a criminal or fraudulent intent between the parties, when the communications are part of a joint–yet conflicted–representation, and in cases where the parties to a joint defense have become adverse in their interests. 

Bondy then goes on to add that HPSCI “does not recognize attorney-client privilege,” which may be why, at about the time these letters were breaking, Jay Sekulow was on the floor of the Senate haranguing Democrats for not respecting that privilege (which Sekulow suggested was in the Bill of Rights). He uses that stance to suggest SDNY is making a claim that violates separation of powers.

From there, Parnas goes on to disavow any privilege shared in his brief Joint Defense Agreement with the Russian mob, in part based on discussions about his initial response to the HPSCI subpoena having been shared more widely.

Mr. Parnas waives all privilege with respect to the communications he had with Mssrs. Dowd and Downing. Furthermore, the substance of his and Mr. Fruman’s legal representation appears to have been shared with third parties, including Jay Sekulow, Rudolf Giuliani, John Sale, Jane Raskin, and others. … As the Court may know, Mssrs. Sekulow, Raskin, and Giuliani are also attorney for President Trump. Mr. Giuliani and the President have interests divergent from Mr. Parnas’s wish to cooperate with Congress and the Government. Mr. Parnas believes that his and Mr. Fruman’s ostensibly joint representation by Attorneys Dowd and Downing was conflicted and intended from its inception to obstruct the production of documents and testimony responsive to lawful congressional subpoena.

[snip]

Here, Attorney Dowd undertaking a joint representation of Mr. Parnas and Mr. Fruman — with the President’s explicit permission — constituted an actual conflict of interest at the time and appears designed to have obstructed Mr. Parnas’s compliance with HPSCI’s subpoenas and any ensuring efforts to cooperate with congressional investigators or federal prosecutors.

Bondy ends by saying it’s up to those claiming a conflict to invoke it.

Bondy makes it fairly clear: he believes the privilege SDNY has set Fruman up to object to involves Rudy and Trump, neither of whom are in a position to object, particularly given that if they do, Bondy will argue that Parnas believes their grift might be criminal and therefore the privilege doesn’t apply.

So instead of the President and his lawyer claiming that Parnas’ release of this material will violate privilege, Fruman does.

Mr. Fruman has reason to believe that the Production Material contains privileged information belonging to Mr. Fruman and others.

He invokes only the consultation of their shell company, Global Energy Producers, with [Rudy’s former firm] Greenberg Traurig in conjunction to substantiate a common attorney-client interest, then nods to more:

This is but one example, and there are many more, but certainly the privilege issues implicated by the repeated amendments to the Protective Order are far more expansive than the attorney-client relationships identified in Mr. Bondy’s letter.

Fruman then complains that he cannot — as Parnas has said he must do — invoke privilege because he’s not in possession of the materials (just the taint team and Parnas have them).

The best part is where, still faced with the problem that the people whose privilege is at issue (Rudy and Trump) cannot politically invoke it, Fruman finds someone else whose privilege, he says, has been violated: Dmitry Firtash.

Mr. Fruman is not the only person whose privilege information is at risk. For example, Mr. Parnas has represented that he was employed as a translator for Victoria Toensing and Joseph DiGenova in connection with their representation of Dymitry Firtash. Clearly, any materials Mr. Parnas received as a translator assisting attorneys in the representation of Mr. Firtash would be protected by attorney-client privilege. And that privilege would be held by Mr. Firtash, the client, not Mr. Parnas.

It’s increasingly clear what Parnas and Bondy are up to: They’re trying to make it politically (and given the OLC memo prohibiting the indictment of the President) bureaucratically impossible to pursue further charges. If everything recent Parnas did was done for the President, he shouldn’t be the only one facing prosecution for it.

Fruman, meanwhile, seems to be the sole member of the Joint Defense Agreement with the Russian Mob who is a party here, trying to prevent his position from deteriorating by speaking for all the affected parties, only without naming Rudy or Trump (presumably backed by the same old pardon promises Trump always uses to get witnesses against him to take the fall).

What’s not clear is what SDNY is up to. Because it sure seems like they’ve used Fruman to protect Trump’s and even Rudy’s interests.

Judge Oetken scheduled a hearing for Thursday to resolve all this. Which may be too late for Parnas’ play.

The Whack-a-Mole Cover Story: Bill Barr’s Knowing Complicity Moved a Month Earlier

Attentive readers of yesterday’s NYT Bolton story have noted that Bolton says that by August, Trump’s demand in the quid pro quo was not just the announcement of an investigation, but “all materials they had about the Russia Investigation that related to Mr. Biden and supporters of Mrs. Clinton in Ukraine.”

In his August 2019 discussion with Mr. Bolton, the president appeared focused on the theories Mr. Giuliani had shared with him, replying to Mr. Bolton’s question that he preferred sending no assistance to Ukraine until officials had turned over all materials they had about the Russia investigation that related to Mr. Biden and supporters of Mrs. Clinton in Ukraine.

That is, in August of last year, Trump was extorting Ukraine to obtain materials about 2016.

Some have suggested this is new news. But it’s not. It came up at Mick Mulvaney’s October 17, 2019 press conference. As he told it, the hold was primarily because of corruption and to press the rest of Europe to provide their fair share of funding for Ukraine. Mulvaney made a statement that — given that we now know DOD reviewed how much Europe provided and concluded they were providing more than the US — is fairly breathtaking in retrospect. Mulvaney gets away with this by claiming it’s just about lethal aid.

So we actually looked at that, during that time, before — when we cut the money off, before the money actually flowed, because the money flowed by the end of the fiscal year — we actually did an analysis of what other countries were doing in terms of supporting Ukraine.  And what we found out was that — and I can’t remember if it’s zero or near zero dollars from any European countries for lethal aid.  And you’ve heard the President say this: that we give them tanks and other countries give them pillows.  That’s absolutely right, that the — as vocal as the Europeans are about supporting Ukraine, they are really, really stingy when it comes to lethal aid.  And they weren’t helping Ukraine, and then still to this day are not.

From those two excuses — corruption and European support — Mulvaney then adds, as what he probably intends to be a throwaway comment, that part of this was investigating the DNC server, all the while trying to pretend that an investigation into the DNC server (he can never seem to label this the Crowdstrike conspiracy theory) pertains to corruption.

Did he also mention to me in pass the corruption related to the DNC server?  Absolutely.  No question about that.  But that’s it.  And that’s why we held up the money.

Now, there was a report —

Q    So the demand for an investigation into the Democrats was part of the reason that he ordered to withhold funding to Ukraine?

MR. MULVANEY:  The look back to what happened in 2016 —

Q    The investigation into Democrats.

MR. MULVANEY: — certainly was part of the thing that he was worried about in corruption with that nation.  And that is absolutely appropriate.

[snip]

Did he also mention to me in pass the corruption related to the DNC server?  Absolutely.  No question about that.  But that’s it.  And that’s why we held up the money.

Now, there was a report —

Q    So the demand for an investigation into the Democrats was part of the reason that he ordered to withhold funding to Ukraine?

MR. MULVANEY:  The look back to what happened in 2016 —

Q    The investigation into Democrats.

MR. MULVANEY: — certainly was part of the thing that he was worried about in corruption with that nation.  And that is absolutely appropriate.

Someone latches on to Mulvaney’s admission that Trump was demanding an investigation into his opponents, and raises “the Bidens.” Someone else notes that even if you’re just talking about the DNC, it still means Trump engaged in a quid pro quo to investigate his prospective opponents, since the DNC is also involved in 2020.

Q    Mr. Mulvaney, what about the Bidens, though, Mr. Mulvaney?  Did that come into consideration when that money was held up?

MR. MULVANEY:  I’m sorry, I don’t know your name, but he’s being very rude.  So go ahead and ask your question.

Q    Just to clarify, and just to follow up on that question: So, when you’re saying that politics is going to be involved —

MR. MULVANEY:  Yeah.

Q    — the question here is not just about political decisions about how you want to run the government.  This is about investigating political opponents.  Are you saying that —

MR. MULVANEY:  No.  The DNC — the DNC server —

[snip]

Q    Are you saying that it’s okay for the U.S. government to hold up aid and require a foreign government to investigate political opponents of the President?

MR. MULVANEY:  Now, you’re talking about looking forward to the next election.  We’re talking —

Q    Even the DNC.  The DNC is still involved in this next election.  Is that not correct?

Mulvaney starts to panic, and to get out of that panic, invokes the Durham investigation. To defer from 2020, Mulvaney says Trump was just obtaining information for an ongoing investigation.

MR. MULVANEY:  So, wait a second.  So there’s —

Q    So are you saying —

MR. MULVANEY:  Hold on a second.  No, let me ask you —

Q    But you’re asking to investigate the DNC, right?

MR. MULVANEY:  So, let’s look at this —

Q    Is the DNC political opponents of the President?

MR. MULVANEY:  There’s an ongoing — there’s an ongoing investigation by our Department of Justice into the 2016 election.  I can’t remember that person’s name.

Q    Durham.

MR. MULVANEY:  Durham.  Durham, okay?  That’s an ongoing investigation, right?  So you’re saying the President of the United States, the chief law enforcement person, cannot ask somebody to cooperate with an ongoing public investigation into wrongdoing?  That’s just bizarre to me that you would think that you can’t do that.

In other words, in Mulvaney’s presser, he excused the political aspect of Trump’s quid pro quo by claiming the President was pressing Ukraine to cooperate in the Durham investigation. He claimed that this wasn’t about Biden but instead about 2016.

Of course, that had to have caused all sorts of heartache over at DOJ, because they had been saying for almost a month that Bill Barr had no clue about any of this and here Mulvaney was saying that the quid pro quo was about the investigation Barr set up and was micromanaging.

After DOJ pushed back, the White House adopted the line that this was about Burisma’s corruption.

To be sure, the impeachment witnesses didn’t always support that. Kurt Volker, for example, invented a story that when he pushed Ukraine to investigate Burisma, he meant they should investigate the corrupt company, not Biden and that the request to investigate 2016. He discounted the request for an investigation into 2016 by suggesting Ukrianians might be trying to buy influence.

SCHIFF: Ambassador, let me also ask you about the allegations against Joe Biden, because that has been a continuing refrain from some of my colleagues, as well. Why was it you found the allegations against Joe Biden, related to his son or Burisma, not to be believed?

VOLKER: Simply because I’ve known Vice President — former Vice President Biden for a long time, I know how he respects his duties of higher office and it’s just not credible to me that a Vice President of the United States is going to do anything other than act as how he sees best for the national interest.

[snip]

SCHIFF: I take it since you say that — you acknowledge that asking for an investigation of the Bidens would have been unacceptable and objectionable, that had the President asked you to get Ukraine to investigate the Bidens, you would have told him so?

VOLKER: I would have objected to that. Yes, sir.

SCHIFF: Mr. Goldman?

GOLDMAN: Thank you, Mr. Chairman. Just one follow up on that, Ambassador Volker. When — when you say thread the needle, you’re — you mean that you understood the relationship between Vice President Biden’s son on — and Burisma but you were trying to separate the two of them in your mind? Is that right?

VOLKER: Well I believe that they were separate, that — and I — this references the conversation I had with Mr. Giuliani as well, where I think the allegations against Vice President Biden are self-serving and not credible.

A separate question is whether it is appropriate for Ukraine to investigate possible corruption of Ukrainians that may have tried to corrupt things or buy influence. To me, they are very different things. As I said, I think the former is unacceptable, I think the latter in this case is …

[snip]

GOLDMAN: Now he was insisting from a public commitment from President Zelensky to do these investigations, correct?

VOLKER: Now, what do we mean by these investigations?

GOLDMAN: Burisma and the 2016 election.

VOLKER: Burisma and 2016, yes.

GOLDMAN: And, at the time that you were engaged in coordinating for this statement, did you find it unusual that there was such an emphasis on a public statement from President Zelensky to carry out the investigations that the president was seeking?

VOLKER: I didn’t find it that unusual. I think when you’re dealing with a situation where, I believe the president was highly skeptical about President Zelensky being committed to really changing Ukraine after this entirely negative view of the country, that he would want to hear something more from President Zelensky to be convinced that — OK, I’ll give this guy a chance.

GOLDMAN: And he — perhaps he also wanted a public statement because it would lock President Zelensky in to do these investigations that he thought might benefit him?

VOLKER: Well again, we’re — when we say these investigations what I understood us to be talking about was Ukrainian corruption.

GOLDMAN: Well, what we’re talking about is Burisma and the 2016 election, let’s just —

VOLKER: Correct, correct — yes, right.

[snip]

VOLKER: I do remember having seen some of the testimony of Mr. Kent, a conversation in which he had asked me about the conspiracy theories that were out there in Ukraine. I don’t remember what the date of this conversation was.

And my view was, well, if there are things like that, then why not investigate them? I don’t believe that there’s anything to them. If there is — 2016 election interference is what I was thinking of — we would want to know about that. But I didn’t really there was — believe there was anything there to begin with.

It was a thin story, but necessary to explain why Volker did something he knew to be utterly corrupt, and then got caught doing it. While not explicitly, he was endorsing the possibility that Ukraine might have had a corrupt role in 2016.

All that said, Bolton’s certainty that Trump was also asking for Ukraine to provide the US with information on 2016 raises the import of this detail: Bolton claims (and DOJ has been releasing conflicting comments since yesterday) that he warned Bill Barr about this shadow Ukraine policy in July.

Mr. Bolton also said that after the president’s July phone call with the president of Ukraine, he raised with Attorney General William P. Barr his concerns about Mr. Giuliani, who was pursuing a shadow Ukraine policy encouraged by the president, and told Mr. Barr that the president had mentioned him on the call. A spokeswoman for Mr. Barr denied that he learned of the call from Mr. Bolton; the Justice Department has said he learned about it only in mid-August.

After releasing an initial denial yesterday, today DOJ has issued a non-denial confirmation.

A Justice Department official familiar with the matter said Mr. Bolton did call Mr. Barr to express concerns about Mr. Giuliani and his shadow foreign policy in Ukraine. It wasn’t clear what, if anything, the attorney general did with that information.

Department spokeswoman Kerri Kupec denied that Mr. Barr learned of the Ukraine call from Mr. Bolton. The department has repeatedly said he learned about it in mid-August.

We don’t know for sure, but the difference in timeline may be utterly critical to Barr’s implication in this conspiracy. For starters, Bolton’s warning to Barr undoubtedly came before Barr stopped into a meeting in September with Rudy Giuliani about the Venezuelan who happened to be funding some of the Ukrainian grift. Bolton’s warning may make DOJ’s efforts to bracket off the Parnas and Fruman investigation, which Barr undoubtedly knew about, from the whistleblower complaint far more suspect.

Most importantly, we don’t know when multiple Ukrainians offered John Durham dirt (much less who they are). But if happened between Bolton’s warning in July and when Barr has previously claimed to have learned that Trump told Zelensky that he, Bill Barr, would happily receive the dirt he was extorting, it would make Durham’s acceptance of that dirt part of the conspiracy itself. That is, it would make Barr’s efforts to use DOJ to investigate Trump’s opponents a key part of both a conspiracy being investigated in SDNY, from which Barr has irresponsibly not recused, as well as an impeachment investigation, from which Barr has also not recused.

Bolton’s certainty that Trump wanted Ukraine to provide materials for a US investigation into Trump’s foes is not at all new. But the fact that Barr should have known he was part of this conspiracy a month earlier than he had previously admitted is.

Charles Cooper’s Letter about Pre-Publication Review Discounts Any Executive Privilege Claims

In the wake of yesterday’s NYT story revealing damning details about John Bolton’s book manuscript, his lawyer, Charles Cooper, released the letter sent on December 30 laying out what they expected from the pre-publication review.

In it, Cooper (who while he was at the Office of Legal Counsel wrote at least one opinion laying the foundation for the unitary executive, one that helped cover up Iran-Contra) suggests there is only one basis on which the White House can object to the content of his client’s manuscript: classification.

I appreciate your assurance that the sole purpose of prepublication security review is to ensure that SCI or other classified information is not publicly disclosed. In keeping with that purpose, it is our understanding that the process of reviewing submitted materials is restricted to those career government officials and employees regularly charged with responsibility for such reviews.

Cooper leaves unstated his assertion that the White House cannot object to material in the book on Executive Privilege grounds, or any Absolute Immunity grounds that Pat Cipollone might dream up.

Such an assertion is wholly inconsistent with Cooper’s previous assertion (made for his other client, Charles Kupperman but which Bolton adopted by association) that the White House has any say over whether Bolton must respond to a dually authorized Congressional subpoena. Normally, a subpoena can overcome Executive Branch demands that the subpoenaed person not testify, if they want to testify. Here, Cooper is suggesting that the only restriction that the White House can impose on Bolton’s non-subpoenaed speech is classification review.

I get why he said it. He was trying to lay the groundwork for the statement he released last night, in which he suggested the White House had circulated Bolton’s manuscript outside those career civil servants who are entitled to review it.

But it will make it far harder to ignore future subpoenas, whether from the Senate, the House, or SDNY (in a Rudy Giuliani investigation).

Dick Cheney’s Apprentice Strikes

John Bolton may lack the courage of Marie Yovanovitch, Jennifer Williams, Fiona Hill, or Alex Vindman. But he learned the art of bureaucratic murder from the master, Dick Cheney. And so it is that after the President’s lawyers have already laid out their defense, it magically happened that NYT learned the damning details about Ukraine in the draft of Bolton’s book that would make his testimony in the impeachment trial monumental.

Apparently, the book describes:

  • In an August meeting about releasing the aid, Trump said he didn’t want to release it until Ukraine sent all documents pertaining to Biden and Hillary
  • Mike Pompeo knew Rudy’s allegations about Marie Yovanovitch were false and believed Rudy may have been working for other clients when he floated them
  • Bolton told Bill Barr that he was mentioned in the call in July; Barr has claimed he only learned that in August
  • Contrary to Mick Mulvaney’s claims, the Chief of Staff was present on at least one call with Rudy
  • Bolton, Pompeo, and Secretary of Defense Mark Esper counseled Trump to releasee the aid almost a dozen times

The details I most relish — not least because Dick Cheney hurt the country using his bureaucratic skills but included none of them in his autobiographical novel — are there bureaucratic details.

Mr. Bolton’s explosive account of the matter at the center of Mr. Trump’s impeachment trial, the third in American history, was included in drafts of a manuscript he has circulated in recent weeks to close associates.

[snip]

White House officials … said he took notes that he should have left behind when he departed the administration.

Bolton has notes. And “close associates” of his have drafts of the manuscript.

Bill Barr may be sending FBI agents out to pick up Bolton’s notes as they went to pick up Jim Comey’s memos detailing Trump’s damning behavior, but at this point, I think Bolton could instead send them to NARA to comply with the Presidential Records Act. And if Barr goes after Bolton, I assume his friends will release the drafts.

Plus, there are several other ways this can get out. Bolton has just won himself an invitation to testify to SDNY about Rudy (and Pompeo may have as well). The House could go after Bolton for investigations of everyone else he implicated — Pompeo, Barr, Mulvaney — all of whom deserve to be impeached themselves.

Already, a significant majority of voters want the Senate to call witnesses like Bolton. Now, if they don’t so they can acquit, it will make this a bigger story going forward.

Propaganda and Flattery: Jack Posobiec Parrots Adam Schiff’s Case for Impeachment

Several members of the frothy right have listened to the recording Igor Fruman made of a dinner with Trump in April 2018 and declared that Parnas and/or Fruman must be a spy.

And while neither of these men seem to have figured out that Fruman, not Parnas, reportedly made this recording, their assessment is not as crazy as most frothy conspiracies. After all, the government has very pointedly not denied that it had a FISA order on one or another of the grifters (one that Bill Barr would probably have known about if not approved personally). If the government did have a FISA order, it means the FBI showed the FISA court there was probable cause that one of these guys was clandestinely working as an agent of a foreign power. And WSJ suggested that the reason SDNY is not interested in a cooperation deal with Parnas is because he will not admit he got Marie Yovanovitch fired — precisely the ask recorded on this video — at the behest of some Ukrainian.

At a meeting with prosecutors from the Manhattan U.S. attorney’s office late last year, people familiar with the matter say, Mr. Parnas’s attorney disputed that he pushed for the removal of the U.S. ambassador to Ukraine at the behest of a Ukrainian official—one of the charges in the campaign finance indictment.

So prosecutors, this time, appear to suspect that Jack Posobiec may be right, that when Parnas and Fruman made this recording they were working as clandestine agents of a foreign government.

Mind you, Posobiec and Benny Johnson, having not even figured out that Fruman made the recording yet, have assuredly not thought through what this means.

It means that someone they believe is a “spy” could gain direct access to Donald Trump with no more than the promise of a $325,000 campaign donation. It means that a “spy” could incite Donald Trump to take a certain policy action — one that happens to be one that corrupt oligarchs in Ukraine and Russia would support — with no more than a bunch of lies about what the US Ambassador had said. It means that these “spies” further managed to become business partners with the President’s defense attorney. One of these “spies” even managed to become an auxiliary member of the President’s Mueller defense team, privy to sensitive secrets about how he would successfully obstruct that investigation.

Having made Rudy Giuliani their agent, these “spies” managed to use him to supplant the beliefs of the US government, not just the professional Deep State, but a bunch of solidly Republican Trump appointees up to and including John Bolton. It means these “spies” used Rudy to get Trump to believe conspiracy theories ginned up by foreign government officials. And it means these “spies” managed to get the President to take actions that gave Russia an advantage in their war against Ukraine.

With little more than propaganda and flattery — and some money laundered through a shell company — these “spies” managed to alter the stated policy of the United States. That is the direct implication of Posobiec’s allegation.

As it happens, that’s precisely the same argument House Impeachment Manager Adam Schiff made on Friday (h/t Crooks & Liars for the video).

Admittedly, Schiff was focusing on a slightly different set of propaganda talking points, that Ukraine interfered in the 2016 election rather than Russia. But the model by which President Trump came to reject the conclusion of our intelligence community and instead parrot the words that Vladimir Putin gave him are the same: flattery and propaganda.

I’m sure you remember this. It was I think unforgettable for every American. But I’m sure it was equally unforgettable for Vladimir Putin. I mean, there he is, the President of Russia, standing next to the President of the United States, and hearing his own Kremlin propaganda talking points coming from the President of the United States.

Now, if that’s not a propaganda coup I don’t know what is. It’s the most extraordinary thing. It’s the most extraordinary thing. The president of the united states standing next to the president of Russia, our adversary, saying he doesn’t believe his own intelligence agencies. He doesn’t believe them. He’s promoting this crazy server theory cooked up by the Kremlin. Right next to the guy that cooked it up. It’s a breathtaking success of Russian intelligence. I don’t know if there’s ever been a greater success of Russian intelligence.

Whatever profile Russia did of our president, boy, did they have him spot on. Flattery and propaganda. Flattery and propaganda is all Russia needed. And as to Ukraine, well, they needed to deliver a political investigation to get help from the United States. I mean, this is just the most incredible propaganda coup.

Because as I said yesterday, it’s not just that the President of the United States standing next to Vladimir Putin is reading Kremlin talking points. He won’t read his own national security staff talking points but he will read the Kremlin ones. But it’s not just that he adopts the Kremlin talking points. That would be bad enough. It is not bad enough, not damaging enough, not dangerous enough to our national security that he’s undermining our own intelligence agencies. It’s not bad enough that he undermines those very agencies that he needs later that we need later to have credibility.

[snip]

How do you make that argument as the President of the United States when you just told the world you trust the Russians more than your own people? You trust Rudy Giuliani more than Christopher Wray. How do you make that case? If you can’t make that case what does that mean to our security? But that’s not the end of it. It’s not just a propaganda coup. It is not just the undermining of our agencies.

It is also that the buy-in to that propaganda meant that Ukraine wasn’t going to get money to fight the Russians. I mean, that’s one hell of a Russian intelligence coup. They got the President of the United States to provide cover for their own interference with our election. They got the President of the United states to discredit their own intelligence agencies, to drive a wedge between the United States and Ukraine, the President of the United States to withhold aid from Ukraine in a war with Russia, in a war claiming Ukrainian lives every week.

Has there ever been such a coup? I would submit to you in the entire length of the Cold War the Soviet Union had no such success, no such success and why? Because a former mayor of New York persuaded a president of the United States to sacrifice all of that. Was it worth it? I hope it was worth it. I hope it was worth it. For the president. Because it certainly wasn’t worth it for the United States.

To be sure, Posobiec has barely started to figure out that grifters with some laundered money and sweet talk can get this President to adopt policies contrary to those Congress and Trump’s entire national security establishment think is best. He’s far from adopting Schiff’s view that a President who can be manipulated so easily by flattery and propaganda is unfit to be President. He presumably still believes that Trump can’t be impeached for extorting Ukraine campaign assistance because, as President, Trump can set whatever policy he wants; if Posobiec believes that, though, he should account for the fact that someone he believes is a “spy” got Trump to adopt that policy.

But Posobiec has nevertheless made the same argument that Schiff made Friday: that what he sees on this recording is a “spy” who managed to get close to Trump, tell him something guaranteed to trigger his narcissism, in response to which Trump took action.

The Significance of the Trump-Firing-Masha Recording

Yesterday morning, ABC and then Daily Beast revealed that there was a recording of the April 2018 meeting where Lev Parnas got Trump to say he would fire Marie “Masha” Yovanovitch simply by suggesting she was bad-mouthing Trump. Then, last night, Parnas’ lawyer Joseph Bondy appeared on Rachel Maddow’s show again, and provided more details of the recording.

It is about 1:40 hours long, and the firing reference comes after 40 minutes.

Bondy’s interview made two things clear:

  • By April 2018 — when Trump’s administration made Javelin missiles available to Ukraine provided that they not use them against Russia, reportedly in exchange for Ukraine’s halt to any cooperation with the Mueller inquiry — Trump was interested in how vulnerable Ukraine could be made by withdrawing US support. Half an hour, Parnas told Trump Ukraine could resist the Russian incursion without US help, based on what, we don’t know.
  • Lev Parnas probably did not fully comply with the HPSCI subpoena.

I’m as interested in the claimed story about how the recording came about.

Igor Fruman — the guy whose deep connections in Ukraine, including with some mobbed up businessmen, Parnas claims to have networked through — made the recording. That led most people to assume that Fruman released it, and therefore is cooperating, something for which there is no support.

There are at least three other possible sources for the recording.

First, SDNY seem to be suggesting that Parnas and Fruman were working for an as-yet unnamed Ukrainian to get Masha fired. That makes all the smiling pictures that the men posted with Trump and other powerful Republicans feel like a kind of reporting system, perhaps the same one Maria Butina was using. Such social media posting would be a good way to make it clear to whoever is footing the bill for such an operation that the grifters are obtaining the meetings promised. If so, the recording (and other similar ones) might serve a three-fold purpose:

  • It can serve as blackmail against Trump and others, just as it’s being used now
  • It collects intelligence about the security around Trump (Fruman reportedly took a video of the two of them entering the meeting)
  • It assures the paymaster of this operation that he’s getting what he paid for

Remarkably, we don’t yet know what Ukrainian was allegedly paying the grifters. It could be Dmitro Firtash (who last fall gave Parnas’ wife “a loan” that she could use to buy a house that, because it’d be in Florida, could not be seized as forfeiture). Given that Kevin Downing was involved in Parnas and Fruman’s defense, it could be any of Ukrainians who paid Paul Manafort after he entertained a plan to carve up Ukraine on August 2, 2016, which include Serhiy Lyovochkin and Rinat Akmetov, the former of whom used a straw donation to attend Trump’s inauguration. Or it could be one of the dodgy businessmen around Fruman. All had and have an incentive to try to reverse Ukraine’s efforts to combat corruption, and so would value the removal of Masha. [Update: I’m missing two other obvious candidates — Yuriy Lutsenko and Viktor Shokin — though much of the reporting on their interest in taking her out focuses on 2019 efforts that are more closely tied to dirt on the Bidens. Update: Fixed where the allegation that a Ukrainian was directing their efforts.]

Any of those people might have reason to release the recording. In the same way that Oleg Deripaska was pushing FBI to investigate Paul Manafort even as he was using Manafort’s desperation to try to coerce him to become his asset again, including to carve up Ukraine, anyone trying to compromise Trump can use his efforts to beat impeachment to make him more reliant on Ukrainian discretion about any deals they’ve made. Plus, by making Trump’s corruption and compromise clear even as Republican Senators vote against doing anything about it, it ensures that every single federally elected Republican has been implicated in this operation. So it’s possible the recording came from the paymaster.

It’s also possible it came from SDNY’s notoriously leaky FBI. The ABC reporters who first released it include DOJ beat journalists, so it would make sense that they’d have FBI sources. But I doubt it, not least because an FBI source would have had reason to leak it before yesterday.

But there is another possibility: that Parnas was the source, but he and Bondy lied about it early in the day (and okayed its release while Bondy was on MSNBC’s set, with a natural alibi he expressly noted), to create a cover story for releasing the recording without admitting that Parnas had not fully complied with the HPSCI subpoena but was belatedly, just yesterday, providing a copy of the recording to HPSCI. Bondy claimed it had been on Parnas’ iCloud all the time, but he had forgotten he had it.

Bondy was more aggressively questioned last night, in part by Chuck Rosenberg and Maya Wiley. But neither confronted Bondy on reports that, in discussions with SDNY last month, he had maintained Parnas’ claim that he was innocent of the existing charges against him: that he was paid and directed by the still-unnamed Ukrainian to get Masha fired. Neither raised that prosecutors have repeatedly said they expect to file more charges against the grifters, likely including (because FBI likely obtained a FISA order against one of them) foreign agent charges, which undercuts Bondy’s claim that Parnas is not seeking a cooperation deal because the existing charges against him don’t have that serious a sentencing range.

Bondy offered some explanation for why Parnas had not searched his iCloud because he had to make sure SDNY had gotten their evidence first. That sounds like a load of baloney. After all, SDNY would have been able to obtain Parnas’ iCloud account with a warrant to Apple (given that Apple decided not to encrypt iCloud after previously considering it, that means some really damning information on Trump is just sitting on a server in Cupertino or somewhere). The recording was over 18 months old when Parnas was arrested. So SDNY had had it, likely, for some time. Moreover, SDNY had told Parnas they had their discovery collected on December 3, which means Bondy could have provided this record — and anything else that was always available to Parnas — even before the phone records. Bondy now is claiming that Parnas was injured with a delay in discovery, because it delayed his ability to cooperate with HPSCI, which is totally undermined by any admission that Parnas had never even searched his iCloud (and still may not have) for information related to the HPSCI subpoena.

All of which suggests Parnas is trying to carefully manage what he’s sharing with HPSCI, presumably focusing on the latter period of his work to get Masha fired, when he could claim to be doing Rudy Giuliani’s bidding, and not the earlier part, when prosecutors claim he was working for some Ukrainian. For better and worse, that likely means that Rudy is at least partly a victim of Parnas, someone who was desperate and weak and easily manipulated into doing really stupid things — just like Trump — who could then be claimed as the real actor behind this operation.

In a sane world, both parties would take a step back and agree that our quisling President and his fawning lackeys were an easy mark. We’d talk about how to unwind whatever damage Trump has done to himself and the country.

But we don’t live in a sane world and Republicans are about to defend Trump’s right to be manipulated by grifters and spies as his Constitutional prerogative.

Mike Pompeo Can Find Proof that Obama Addressed Ukrainian Corruption in Trump’s Joint Defense Agreement

Mike Pompeo had an unbelievably dickish interview with NPR’s Mary Louise Kelly this morning. In spite of the fact that Kelly alerted his staff she intended to ask about Iran and Ukraine, he complained when she turned to Ukraine. He falsely claimed he had defended everyone of his reports, including Marie Yovanovitch. And he reportedly accused Kelly of not being able to find Ukraine on a map (which she promptly did).

I was taken to the Secretary’s private living room where he was waiting and where he shouted at me for about the same amount of time as the interview itself.

He was not happy to have been questioned about Ukraine.

He asked, “do you think Americans care about Ukraine?”

He used the F-word in that sentence and many others. He asked if I could find Ukraine on a map. I said yes, and he called out for aides to bring us a map of the world with no writing. I pointed to Ukraine. He put the map away. He said, “people will hear about this.”

But the craziest thing might be Pompeo’s claim that President Obama did nothing to take down corruption in Ukraine.

Change of subject. Ukraine. Do you owe Ambassador Marie Yovanovitch an apology?

You know, I agreed to come on your show today to talk about Iran. That’s what I intend to do. I know what our Ukraine policy has been now for the three years of this administration. I’m proud of the work we’ve done. This administration delivered the capability for the Ukrainians to defend themselves. President Obama showed up with MREs (meals ready to eat.) We showed up with Javelin missiles. The previous administration did nothing to take down corruption in Ukraine. We’re working hard on that. We’re going to continue to do it. [my emphasis]

Pompeo has to say this, obviously, because a key Trump defense against impeachment is that Joe Biden was supporting, rather than combatting corruption. But a number of impeachment witnesses, including Marie Yovanovitch, explained at length the things Obama had done to combat Ukrainian corruption. It’s one of many reasons why Obama did not give lethal aid to Ukraine. Bruce Ohr, whom Trump has targeted for over a year, worked hard on the issue, too.

But the craziest part of this claim — that Obama did nothing to take down corruption in Ukraine — can be found in Trump’s own Joint Defense Agreement. There are two glaring exhibits of efforts taken under Obama to combat corruption: Dmitro Firtash, who was indicted for bribery by NDIL in 2013, is represented by Victoria Toensing and Joe DiGenova, who were consulting on Trump’s defense against the whistleblower complaint on October 8, 2019.

So, too, was Kevin Downing, Paul Manafort’s defense attorney. Manafort, of course, was ultimately found guilty of breathtaking corruption in Ukraine in an investigation that started in January 2016. Manafort lied to obstruct an investigation into what he was doing in a meeting on August 2, 2016, where he discussed how to get paid by several of his corrupt Ukrainian paymasters, shared his campaign strategy, and discussed how to carve up Ukraine to Russia’s liking; that investigation started just days later, on August 10, 2016.

In short, Obama’s DOJ opened a number of investigations into Ukrainian corruption. It just turns out that two of the most notorious defendants in those investigations are part of a Joint Defense Agreement with Pompeo’s boss.

How Many Other Grifters and Spies Have Incredibly Damning Recordings of Donald Trump?

In Lev Parnas’ interview with Rachel Maddow, he confirmed a previously reported story that in April 2018, he incited President Trump to try to fire Marie Yovanovitch by (falsely) telling Trump that the Ambassador was badmouthing him.

For days, Republicans have been dismissing such claims, in part by emphasizing that Parnas (like Trump) is under indictment.

It turns out that Parnas has receipts, in the form of a recording of the incident someone shared with ABC.

A recording reviewed by ABC News appears to capture President Donald Trump telling associates he wanted the then U.S. Ambassador to Ukraine Marie Yovanovitch fired – and speaking at a small gathering that included Lev Parnas and Igor Fruman — two former business associates of Trump’s personal lawyer Rudy Giuliani who have since been indicted in New York.

The recording appears to contradict statements by President Trump and support the narrative that has been offered by Parnas during broadcast interviews in recent days. Sources familiar with the recording said the recording was made during an intimate April 30, 2018 dinner at the Trump International Hotel in Washington, D.C.

Trump has said repeatedly he does not know Parnas, a Soviet-born American who has emerged as a wild card in Trump’s impeachment trial, especially in the days since Trump was impeached.

“Get rid of her!” is what the voice that appears to be President Trump’s is heard saying. “Get her out tomorrow. I don’t care. Get her out tomorrow. Take her out. Okay? Do it.”

On the recording, it appears the two Giuliani associates are telling President Trump that the U.S. ambassador has been bad-mouthing him, which leads directly to the apparent remarks by the President. The recording was made by Fruman according to sources familiar with the tape.

[snip]

Parnas appears to say: “The biggest problem there, I think where we need to start is we gotta get rid of the ambassador. She’s still left over from the Clinton administration,” Parnas can be heard telling Trump. “She’s basically walking around telling everybody ‘Wait, he’s gonna get impeached, just wait,” he said.

According to the Daily Beast, Igor Fruman made the recording.

A recently-indicted associate of Rudy Giuliani taped President Donald Trump calling for the firing of Ukraine Ambassador Marie Yovanovitch, according to the lawyer for a second Giuliani associate.

Joseph Bondy, a lawyer for Florida businessman Lev Parnas, told The Daily Beast that the recording was made by former partner Igor Fruman. Both men were arrested in October and charged with campaign finance violations.

TDB also quotes Fruman’s lawyer refusing to comment about the recording. That may be because he is in a joint defense agreement with Rudy Giuliani (and by association the President). Which means this recording came from someone else, either Congress or Parnas himself (though he has only modified the protection order for stuff on his own phones).

This is utterly damning for the President’s claims — which were transparently false — that he didn’t know Parnas.

But they’re also an indication of how easily Trump can be put into compromising situations. April 2018, when this exchange occurred, was just a month after Parnas and Fruman started buying their way into elite crowds with Donald Trump. It was weeks before they gave $325,000 to Trump’s SuperPAC (which, given that they are accused of buying this access in order to get Yovanovitch fired, sure looks like payoff). And they were reportedly doing this at the behest of a still as yet unnamed Ukrainian.

Yet they had to do little more than lie about Yovanovitch to get Trump to order that she be fired. While Republicans in the Senate may not give a damn, the video will, at a minimum, make it harder for Bill Barr to protect the president.

So on top of everything this does for Trump’s legal woes, this video raises real questions about who else has such damning recordings of Trump. Mar-a-Lago has already been demonstrated to be a nest of spying. And Trump has chosen not to bring handlers with him into key meetings with foreign leaders — including, but not just, Putin.

I promise you, this is not the only utterly damning recording of the President out there.

The question is what those who have such damning recordings are doing with the leverage they give over the President.

NSA Is Probably Withholding Details of the Alleged Burisma Hack from Congress

Over the weekend, Adam Schiff and other impeachment managers started alleging that the NSA is withholding information about Ukraine from the Intelligence Committees and impeachment team.

“And I’ll say something even more concerning to me, and that is the intelligence community is beginning to withhold documents from Congress on the issue of Ukraine,” Schiff said. “The NSA, in particular, is withholding what are potentially relevant documents to our oversight responsibilities on Ukraine, but also withholding documents potentially relevant that the senators might want to see during the trial.”

Schiff added: “There are signs that the CIA may be on the same tragic course. We are counting on the intelligence community not only to speak truth to power, but to resist pressure from the administration to withhold information from Congress because the administration fears that they incriminate them.”

An Intelligence Committee official later said, “Both the NSA and CIA initially pledged cooperation, and it appears now that the White House has interceded before production of documents could begin.”

Schiff had dropped the claim, at times, in his presentation to the Senate and to the press.

But in his stem-winding close last night, he mentioned the alleged Burisma hack in a way that strongly suggests that’s what NSA is withholding.

Now we just saw last week a report that Russia tried to hack, or maybe did hack, Burisma. Okay. I don’t know if they got in. I’m trying to find out. My colleagues on the Intel Committee, House and Senate, we’re trying to find out, did the Russians get in? What are the Russian plans and intentions? Well, let’s say they got in. And let’s say they start dumping documents to interfere in the next election. Let’s say they start dumping some real things they hacked from Burisma, let’s say they start dumping some fake things they didn’t hack from Burisma, but they want you to believe they did. Let’s say they start blatantly interfering in our election again, to help Donald Trump. Can you have the least bit of confidence that Donald Trump will stand up to them and protect the national interest over his own personal interest? You know you can’t.

Schiff’s speech was a planned show-stopper, climax, thus far, of the impeachment trial. It is highly unlikely Schiff included this mention, with the detail that he and both the Intelligence Committees are trying to figure out whether Burisma really got hacked, without very good reason.

But it also goes to the power of information war.

When NYT first reported that GRU had hacked Burisma, I had two thoughts.

The hackers fooled some of them into handing over their login credentials, and managed to get inside one of Burisma’s servers, Area 1 said.

“The attacks were successful,” said Oren Falkowitz, a co-founder of Area 1, who previously served at the National Security Agency. Mr. Falkowitz’s firm maintains a network of sensors on web servers around the globe — many known to be used by state-sponsored hackers — which gives the firm a front-row seat to phishing attacks, and allows them to block attacks on their customers.

“The timing of the Russian campaign mirrors the G.R.U. hacks we saw in 2016 against the D.N.C. and John Podesta,” the Clinton campaign chairman, Mr. Falkowitz said. “Once again, they are stealing email credentials, in what we can only assume is a repeat of Russian interference in the last election.”

[snip]

To steal employees’ credentials, the G.R.U. hackers directed Burisma to their fake login pages. Area 1 was able to trace the look-alike sites through a combination of internet service providers frequently used by G.R.U.’s hackers, rare web traffic patterns, and techniques that have been used in previous attacks against a slew of other victims, including the 2016 hack of the D.N.C. and a more recent Russian hack of the World Anti-Doping Agency.

“The Burisma hack is a cookie-cutter G.R.U. campaign,” Mr. Falkowitz said. “Russian hackers, as sophisticated as they are, also tend to be lazy. They use what works. And in this, they were successful.”

First, this attribution is not (yet) as strong as even the first attribution that GRU had hacked the DNC, to say nothing of the 30 non-government sources for that attribution since laid out in the GRU indictment and the Mueller Report. There’s good reason to remain cautious about this attribution until we get more than one not very well established contractor attributing the hack.

But to some degree, it doesn’t matter whether GRU hacked Burisma and whether they took documents with plans to leak them during the election. Indeed, disinformation may explain why this was an easily identifiable hack, whether done by GRU or someone else. Because the news that someone appearing to be GRU targeted Burisma in early November — when it was clear Trump would be impeached for extorting Volodymyr Zelensky to get dirt on Burisma — serves a clear purpose. It adds evidence that Trump is owned by Russia and, after the Senate doesn’t vote to remove him, will demonstration that Republicans don’t much give a damn that he is owned by Russia.

To be clear: There’s abundant evidence that Russia does have leverage over Trump, and more is likely to be forthcoming.

But that’s far more valuable, for Russia, if that’s public and if the Republicans in the Senate sanction it.

And that may explain why NSA is withholding the information, if indeed that’s what they’re withholding. In the same way that the FBI went to great lengths to withhold a letter they believed to be disinformation suggesting that Loretta Lynch would fix the Hillary investigation, information that appears to add to the already abundant case that Russia is in the tank for Trump. Given the stakes, that doesn’t justify it. But at this point, GRU wouldn’t need to hack Burisma for any point — the hack itself, in the middle of the impeachment investigation, is enough to lay a marker on Donald J. Trump.

He belongs to the GRU, the hack says, whether or not he does anything affirmatively to confirm that claim. But if the NSA is withholding that detail, it would seem to confirm the point.

Lev Parnas’ Own Delays Ensured His Evidence Couldn’t Be Considered in the House Investigation

In an update on discovery for Judge Paul Oetken, the government fairly predictably debunked Lev Parnas’ claim to have cooperated fully with prosecutors. They describe how Parnas delayed receiving that discovery, both by refusing to turn over the passwords for the devices seized by the government, and by waiting 16 days before providing the government a hard drive on which to obtain the evidence.

In a letter filed on January 20, 2020, counsel for defendant Parnas suggested that the Government has purposefully delayed the production of discovery to Parnas in order to frustrate his ability to comply with a subpoena or document request from the House Permanent Select Committee on Intelligence (“HPSCI”). Such a suggestion is baseless and completely belied by the facts. The two largest sources of delay with respect to the Government’s ability to produce the contents of Parnas’s devices to him—including an iPhone 11 that he produced (without objection from the Government) to HPSCI on January 12, 2020—are directly attributable to Parnas himself. First, Parnas declined to provide the password to his devices, which is of course his right, but which required the FBI to spend nearly two months unlocking the iPhone 11. The Government has yet to access many of the other password-protected devices seized from Parnas, although the FBI’s efforts to unlock them are ongoing. Second, when the Government did unlock several of Parnas’s devices in early December 2019, the Government asked Parnas’s counsel on December 3, 2019 to provide a hard drive on which to produce discovery, as the Government does in every case and with every defendant. However, Parnas’s counsel did not produce such a hard drive until December 19, 2019, shortly before the Christmas holiday, and more than two weeks after the Government had requested the drive. The Government produced the iPhone 11 to Parnas on December 31, 2019. However, Parnas’s counsel was unable to figure out how to open the device extraction on his own computer, so the Government made available a paralegal and technical expert—during the holidays—to sit with Parnas’s counsel to troubleshoot his technical issues. The Government has and will continue to work with defense counsel to facilitate each defendant’s access to discovery and to make discovery available as expeditiously as possible.

The type, source, and timing of the delay significantly debunks Parnas’ claims to want to be totally forthcoming in impeachment.

Consider the timing. Parnas was arrested on October 9 of last year. It took him some days to get a lawyer who wasn’t ordering him to take the fall for the President, but he did so by October 18. That was five days before Matt Gaetz — still in Trump’s good graces — stormed the HPSCI SCIF to try to delay ongoing depositions. On October 31, the House authorized an impeachment proceeding. On November 21, HPSCI voted to adopt the Democratic report on its investigation.

In a letter submitted to the court today, Parnas claims he first started asking for his discovery so he could respond to the House subpoena on November 6.

Between November 21 and 23, days after HPSCI wrapped up impeachment, Lev Parnas first started talking about cooperating. But even then, Parnas was offering deliberately erroneous stories about Devin Nunes’ interactions with him, reversing the relationship between himself, John Solomon, and Nunes, thereby hiding (as his most recently press blitz has downplayed) the extent to which he is orchestrating this echo chamber, not responding to it.

Even as Parnas was claiming, publicly and privately, he wanted to cooperate with HPSCI, he was delaying any such cooperation by withholding the passwords to his devices.

And all the while, FBI was working on breaking into his iPhone 11 — a phone that Parnas must have gotten just weeks before he was arrested, as it was only released on September 20 — for which he had refused to provide the password. (Note, nothing we have seen nothing that necessarily came off a phone purchased on September 20 or later, though we have seen a calendar entry for September 26. Though he presumably copied everything over.) Though, significantly, we now know the FBI is taking more time cracking Parnas’ other devices (thus far he has turned over the iPhone, an iPad, and a Samsung phone) than with the latest model iPhone, which the government has confirmed it cracked on December 3, meaning it took about 55 days to open.

That day, December 3, SDNY told Parnas’ lawyer that the content of some of the devices they had seized was available and he should come get it. Parnas provided the government with a thumb drive to get the contents of the phone, but not a hard drive.

The House voted out articles of impeachment on December 18.

It was the very next day when Parnas’ lawyers provided DOJ with a hard drive to obtain the first batch of discovery.

Parnas claims that because of technical problems, they ultimately used a thumb drive to get the phone contents, on December 31. Given other reports, that came after SDNY refused to have Parnas cooperate if he wasn’t willing to plead guilty to the main existing charge against him. Thereafter, his attorney moved quickly to ask to amend the protective order to share with HPSCI. That was on January 3, and they’ve made several deliveries since then.

Given competing complaints about the technical details for obtaining the phone, it seems both sides were to blame. The government may have also refused to provide the phone on a thumb drive to try to push him to cooperate.

Parnas’ delay may have stemmed from defense strategy. For example, a desire to try to plead out the case before going public like this. Parnas’ priority absolutely should be on minimizing his prison time.

There was a real delay that Parnas appears to have chosen, for whatever reason. Notably, Parnas happened to ensure, by taking 16 days to give the government a hard drive on which to obtain evidence, that he could not have received discovery to respond to his House subpoena until literally the day after the House voted out articles of impeachment. Parnas’ evidence may well be very useful — though in November and in his recent press blitz, he downplayed the degree to which he started this whole campaign in 2018, well before Rudy got involved, so it’s clear we’re not getting the full truth, and the delay may well have given him a way to cherry-pick what he provides to Congress.

Whatever he’s up to, Parnas has been stalling for time.

Update: In a new letter, Parnas makes clear that they tried to obtain just the iPhone on a thumb drive, right on December 3. Accordingly, I have updated this post to reflect that both sides blame each other.

  • At 5:39pm, Defense Counsel contacted the Government to confirm that our proposed request for the Court to order the Government to disclose when it had first cracked Mr. Parnas’s iPhone did not breach the protective order between the parties.
  • The Defense had made this request regarding the date of extraction in writing on January 1, 2, 4, 6, 10, 13, 2020, and by phone on a number of other occasions. Notwithstanding these multiple requests, the Government consistently refused to answer.
  • At 5:45, after speaking with AUSAs Donaleski and Roos by phone, per their request, we e-mailed them the parts of our letter that were potentially at issue. • At 6:15pm, AUSAs Zolkind and Roos returned our call, indicating they had no objection to the letter, and would be filing a discovery update letter addressing this issue in part. The call ended at 6:23pm.
  • At 6:19pm, while on the phone with AUSAs Zolkind and Roos, AUSA Donaleski filed the Government’s discovery update letter by ECF, including a self-serving footnote regarding the production of Mr. Parnas’ iPhone 11. In its letter, the Government still failed to identify with specificity when the phone had first been extracted.
  • At 6:41 pm, we filed the letter we had been discussing with the Government.
  • At 8:23pm, AUSA Donaleski filed another letter with the Court, complaining about our filing, and for the first time informing that the iPhone had been extracted on December 3, 2019.

 

image_print