Chuck Grassley and Ron Johnson Waste Taxpayer Dollars Looking for Foreign Hackers the One Place They Aren’t

Last Wednesday, majority staffers for the Senate Finance and Homeland Security Committees wrote Chuck Grassley and Ron Johnson a memo that purports to update those Committee chairs of the status of an investigation into —  well, the purpose of the investigation is actually not clear, but ultimately it’s an investigation designed to keep hopes of finding some smoking gun in Hillary’s servers that several other investigations haven’t found, an investigation that Grassley has been pursuing for four years.

As the memo describes, the most recent steps in this “investigation” involve some interviews that were completed and all related backup documentation obtained in April, four months ago.

We pursued this issue by requesting interviews with the two ICIG officials. On December 4, 2018, your staff, along with staff from Senators Feinstein and McCaskill, interviewed ICIG employees Mr. Rucker and Ms. McMillian. On December 20, 2018, you transmitted a copy of an interview summary of the Majority’s questions and the witness’s answers to the ICIG for a classification review. On January 30, 2019, the ICIG provided classified and unclassified versions of the interview summary, and the Office of Senate Security redacted the classified information. On February 28, 2019, the ICIG provided documentary evidence including copies of emails and notes from meetings. On April 9, 2019, the DOJ IG and ICIG provided a summary of their findings related to these Chinese hacking allegations.

The staffers use these investigative steps, completed four months ago, to make two insinuations: that State tried to classify Hillary’s emails as deliberative rather than classified (something long known, and easily explained by the known debate over retroactive classification for the emails).

In addition, the staffers report that one but not a second Intelligence Committee Inspector General employee remarked that FBI Agents seemed non-plussed by their concerns that China had hacked Hillary. The description of that claim in the topline of the memo drops Peter Strzok’s name as its hook.

[A]ccording to one ICIG official, some members of the FBI investigative team seemed indifferent to evidence of a possible intrusion by a foreign adversary into Secretary Clinton’s non-government server. The interview summary makes clear exactly what information Mr. Rucker and Ms. McMillian knew regarding the alleged hack of the Clinton server, as well as the information they shared with the FBI team, including Peter Strzok, the Deputy Assistant Director of the FBI’s Counterintelligence Division in charge of the Clinton investigation.

Wow, that Peter Strzok is some devious asshole, showing no concern about Hillary being hacked by a foreign government, huh? Presumably, that’s the headline the taxpayer funded staffers wanted: BREAKING Peter Strzok doesn’t care about foreign hacking or State trying to protect Hillary.

To the credit of press outlets that did cover this report, they did get what the more relevant conclusion to these documents is: After spending a year double-checking the work of the FBI, these Senate staffers found that the FBI was right when it said it had found no evidence Hillary’s server had been hacked.

What the backup actually shows is that an ICIG Inspector, Phil Rucker, found an “anomaly” while reviewing Hillary Clinton’s emails, an unknown Gmail for a company called Carter Heavy Industries in her email headers, which he thought could have been used to steal her emails as sent. At a meeting largely designed to explain the ICIG efforts to review Hillary’s email for classified information to Strzok, who had just been promoted to the DAD position at FBI a week earlier, Rucker shared what he found with Strzok and the FBI agent he had already been liaising with, Dean Chappell. The FBI already knew of it, and that same day would confirm the explanation: that tech contractor Paul Combetta had used a dummy email to copy over Hillary’s emails as he migrated Hillary’s email onto a Platte River server.

When interviewed about all this three years later, after Peter Strzok had become the villain in Donald Trump’s Deep State coup conspiracy, Rucker accused Strzok of being “aloof and dismissive” of his concerns.

Mr. Rucker said that Mr. Chappell was normal and professional as he had come to know him to be, but that he didn’t know anything about Mr. Strzok prior to the meeting. Mr. Rucker said that Mr. Strzok seemed to be “aloof and dismissive.” He said it was as if Mr. Strzok felt dismissive of the relationship between the FBI and ICIG and he was not very warm. He said that Mr. Strzok didn’t ask many questions including any about SAP related issues. He said the meeting lasted approximately 30 to 60 minutes and that only people from the FBI attended; there were no employees from DOJ. Mr. Rucker said that he knows that an FBI attorney was present, but he cannot remember the person’s name or even whether it was a man or a woman.

[snip]

Mr. Rucker said that he discussed SAP with the FBI. He said he discussed another of Secretary Clinton’s emails that they were never able to quite figure out. He said he verbally presented this information to Mr. Strzok which lasted only for a minute or so. He said that he doesn’t think he mentioned Carter Heavy Industries by name, but only the appearance of a Gmail address that seemed odd. He said that Mr. Strzok seemed “nonplused” by the info, and that he didn’t ask any follow-up questions. He said that Mr. Chappell seemed familiar with the discovery and he felt like Mr. Chappell was walling Mr. Rucker off intentionally as an investigator would, to protect the investigation.

That last detail — that Chappell seemed familiar with the discovery — is key. In fact, the emails sent in advance of the February 18, 2016 meeting reveal that several weeks earlier, Rucker had already shared this anomaly with Chappell, and Chappell had told him then that he already knew about it.

Along with making accusations about Strzok, Rucker changed his story about how strongly he believed that he had found something significant. The day before Chappell told him the FBI was already aware of the email, Rucker had emailed him that the anomaly was probably nothing.

Additionally, he wanted me to run something that I found in my research of the email metadata past you or someone on the team. It’s probably nothing, but we would rather be safe than sorry.

But when interviewed last year by Senate staffers seeking more evidence against Strzok, Rucker claimed that until a news report explained the anomaly in 2018, he had 90% confidence he had found evidence that China had hacked Hillary’s home server, and still had 80% confidence after learning the FBI had explained it.

Rucker: Mr. Rucker said that he didn’t find any evidence in the remainder of the email review they conducted, but that based on the subpoena issued by the FBI in June 2016 which he learned about this year through a news article, it decreased his confidence level from 90% to 80%.

Meanwhile, the one other ICIG employee interviewed last year, Jeanette McMillan, described what Rucker claimed was dismissiveness as adopting a poker face.

[T]hey provided the information to Mr. Strzok who found it strange. Even before their meeting with Mr. Strzok, Dean Chappell of the FBI informed them that he was aware of the Carter Heavy Industries email address. She said that she doesn’t know whether Mr. Chappell knew before they dropped off the original packet in January 2016, or if he learned of it afterward. News of this email address being found on Secretary Clinton’s emails wasn’t shocking to them, she said, but they took It seriously.

[snip]

[T]he FBI employees in attendance were “poker faced.”

In other words, what the backup released last week actually shows is a tremendous waste of time trying to second guess what the FBI learned with the backing of subpoenas and other investigative tools. To cover over this waste of time, Grassley and Johnson instead pitch this as a shift in their investigation, this time to examine claims that Strzok wasn’t concerned about State arguing that emails weren’t classified (and probably an attempt to examine the document, believed to be a fake, suggesting Loretta Lynch would take care of the Hillary Clinton investigation).

Staff from the Intelligence Community Inspector General’s office (ICIG) witnessed efforts by senior Obama State Department officials to downplay the volume of classified emails that transited former Secretary Hillary Clinton’s unauthorized server, according to a summary of a bipartisan interview with Senate investigators.

In fact, in the “summary” released, McMillan told Senate investigators that, “If anything, there were problems at State with upgrading of information,” exactly the opposite of what Grassley and Johnson claim in their press release.

And that word — summary — should raise a lot of questions. It’s not a transcript; in most cases, the report is a paraphrase of what the witnesses said. Moreover, it’s only a “summary” of what Majority staffers asked. Minority staff questions were not included at all, as best demonstrated by this nearly hour-long gap in the “summary.”

Because of the way Grassley brought this “investigation” with him when he assumed the Chairmanship of the Finance Committee, this release — from Chuck Grassley as Finance Committee Chair and Ron Johnson as Homeland Security Chair — effectively did not involve the Ranking members of the committees that did the work — Dianne Feinstein as Judiciary Ranking member and Claire McCaskill as HSGAC Ranking member.

To put what a colossal misuse of taxpayer funds this is, consider, first of all, that Grassley has been pursuing this for over four years.

Last fall, Majority staffers actually asked Rucker how ICIG came to be involved in the Hillary investigation.

How did ICIG come to be involved with the Secretary Clinton email investigation?

Rucker: – Mr. Rucker said ·that on March 12, 2015, the Senate sent a letter to ICIG requesting assistance regarding a Russian hacker who allegedly broken into Sidney Blumenthal’s email account. He said that the Sidney Blumenthal emails looked legitimate and were not at the SSRP level. He said that [redacted], a former CIA employee who worked with Blumenthal, was the author of most of the material. That was determined in part, he said, based on his writing style. Shortly after wards, he said, ICIG received another Senate request for assistance, this timein relation to the email practices of several former Secretaries of State including Secretary Clinton. He said that through ICIG, he was brought in to assist State in reviewing the email information in June 2015.

But they knew the answer to that. As their own staffers tacitly reminded Grassley and Johnson, Grassley has been pursuing this since 2015.

Your investigation began in March 2015 with an initial focus on whether State Department officials were aware of Secretary Clinton’s private server and the associated national security risks, as well as whether State Department officials attempted to downgrade classified material within emails found on that server. For example, in August 2015, Senator Grassley wrote to the State Department about reports that State Department FOIA specialists believed some of Secretary Clinton’s emails should be subject to the (b)(1), “Classified Information” exemption whereas attorneys within the Office of the Legal Advisor preferred to use the (b)(5), “Deliberative Process” exemption. Whistleblower career employees within the State Department also reportedly notified the Intelligence Community that others at State involved in the review process deliberately changed classification determinations to protect Secretary Clinton.1 Your inquiry later extended to how the Department of Justice (DOJ) and Federal Bureau of Investigation (FBI) managed their investigation of the mishandling of classified information.

That means that this effort — to misrepresent an interview conducted in December as a way to introduce new (and obviously bogus) allegations against Strzok — is a continuation of Barbara Ledeen’s efforts to prove some foreign government had hacked Hillary’s home server, as laid out in the Mueller Report.

Ledeen began her efforts to obtain the Clinton emails before Flynn’s request, as early as December 2015.268 On December 3, 2015, she emailed Smith a proposal to obtain the emails, stating, “Here is the proposal I briefly mentioned to you. The person I described to you would be happy to talk with you either in person or over the phone. The person can get the emails which 1. Were classified and 2. Were purloined by our enemies. That would demonstrate what needs to be demonstrated.”269

Attached to the email was a 25-page proposal stating that the “Clinton email server was, in all likelihood, breached long ago,” and that the Chinese, Russian, and Iranian intelligence services could “re-assemble the server’s email content.”270 The proposal called for a three-phase approach. The first two phases consisted of open-source analysis. The third phase consisted of checking with certain intelligence sources “that have access through liaison work with various foreign services” to determine if any of those services had gotten to the server. The proposal noted, “Even if a single email was recovered and the providence [sic] of that email was a foreign service, it would be catastrophic to the Clinton campaign[.]” Smith forwarded the email to two colleagues and wrote, “we can discuss to whom it should be referred.”271 On December 16, 2015, Smith informed Ledeen that he declined to participate in her “initiative.” According to one of Smith’s business associates, Smith believed Ledeen’s initiative was not viable at that time.272

[snip]

In September 2016, Smith and Ledeen got back in touch with each other about their respective efforts. Ledeen wrote to Smith, “wondering if you had some more detailed reports or memos or other data you could share because we have come a long way in our efforts since we last visited … . We would need as much technical discussion as possible so we could marry it against the new data we have found and then could share it back to you ‘your eyes only.'”282

Ledeen claimed to have obtained a trove of emails (from what she described as the “dark web”) that purported to be the deleted Clinton emails. Ledeen wanted to authenticate the emails and solicited contributions to fund that effort. Erik Prince provided funding to hire a tech advisor to ascertain the authenticity of the emails. According to Prince, the tech advisor determined that the emails were not authentic.283

Remember, Ledeen was willing to reach out to hostile foreign intelligence services to find out if they had hacked Hillary, and she joined an effort that was trawling the Dark Web to find stolen emails. She did that not while employed in an oppo research firm like Fusion GPS, funded indirectly by a political campaign, but while being paid by US taxpayers.

Chuck Grassley is now Chair of the Finance Committee, the Committee that should pursue new transparency rules to make it easier to track foreign interference via campaign donations. Ron Johnson is and has been Chair of the Homeland Security Committee, from which legislation to protect elections from foreign hackers should arise.

Rather than responding to the real hacks launched by adversaries against our democracy, they’re still trying to find evidence of a hack where there appears to have been none, four years later.

Update: For some reason I counted 2015-2019 as five years originally. That has been fixed.

Roger Stone Once Again Limits His Denials

In addition to the government showing that Roger Stone is a disorganized crime figure the other day, Roger Stone submitted a curious filing of his own, in yet another apparent attempt to feed denialist propaganda.

A week earlier, the government made a detailed argument that Stone, in his sustained bid to make his trial an attempt to challenge the government evidence that Russia hacked the DNC, misunderstood what the case was about. All that matters, the government argues, is whether Stone’s lies materially affected the House Intelligence investigation into the Russian tampering.

Stone’s false statements also had a natural tendency to (and in fact did) affect HPSCI’s investigative steps, priorities, and direction—regardless of Russia’s 2016 activities. See United States v. Safavian, 649 F.3d 688, 691-92 (D.C. Cir. 2011) (statements material if they “were capable of influencing the course of the FBI’s investigation”). For example, HPSCI did not subpoena the written communications that Stone claimed not to exist, and HPSCI did not investigate the other intermediary (Person 1) when Stone claimed that Person 2 was his sole intermediary. Moreover, Organization 1’s activities and coordination with Stone were relevant to evaluating the Intelligence Community’s work, to assessing any risks that Organization 1 may pose, and to considering any future actions that should be taken to deter coordination with state and non-state actors seeking to influence American elections. None of these understandings of materiality depends in any way on whether Russia in fact participated in the hacks or transmitted the hacked materials to Organization 1, and therefore Stone’s evidence on that subject is not relevant to the materiality inquiry.4

As part of that discussion, in a footnote, they engage in some counterfactuals to show how, even if some alternative scenarios, including the main one suggested by Stone, were true, his lies would still be material.

4 Even under Stone’s crabbed view of materiality and HPSCI’s investigation, Stone’s statements were still material, regardless of Russia’s exact role. Stone now primarily focuses only on evidence about whether Russia transferred the stolen files. But even if Organization 1 received the files elsewhere, it does not follow that Organization 1 has no connection to Russia’s election interference. For example, Organization 1 could theoretically have received the files from someone who received them from Russia; Russia could theoretically have coordinated its other election interference activities with Organization 1’s posting of stolen documents even if Russia was not Organization 1’s source; and individuals associated with the Trump Campaign could theoretically have played a role coordinating the two. Under any view, Stone’s communications with and about Organization 1 were material, regardless of Russia’s exact role.

As you read this “theoretical” scenario, remember that the campaign considered reaching out to WikiLeaks after the John Podesta files got released. And Roger Stone was — at least in 2018 — among those Trump flunkies who were trying to get Julian Assange a pardon.

The government presents this as theoretical, but it demonstrates, correctly, that WikiLeaks’ role in the operation matters whether or not the person who dealt them one or another set of files was a Russian intelligence officer.

Stone spends much of his response claiming (nonsensically) that because the government wants to introduce a Julian Assange video to establish dates for the public record surrounding certain details (in that case, when it was publicly knowable that WikiLeaks would release more files), it makes the issue of how Russia got the files to WikiLeaks central. In the hands of better lawyers — or at least, lawyers who weren’t playing for a pardon — this argument might have merit. In Stone’s case it doesn’t, in part because he failed to describe what evidence he wanted to introduce, and in part because he doesn’t understand what files Bill Binney, one of his intended witnesses, is talking about (they’re not the John Podesta emails, and so are irrelevant to Stone’s lies).

The government objects to Roger Stone presenting two witnesses who will testify, and demonstrate, that WikiLeaks did not receive the relevant DNC and DCCC data from the Russian state. That evidence will establish that the relevant data was “leaked” to WikiLeaks, not transferred to WikiLeaks by the Russian State. The government claims such evidence will be irrelevant, unfairly prejudicial, and cause delay and would turn the subject matter into a “mini-trial.” The government states: “If a person chooses to make false statements to the government, he or she takes the risk that the false statement is material.” (Motion at 14). But, the government takes the same risk: that the alleged false statements might be deemed immaterial by the jury. 1

Stone should be permitted to present evidence that his answers did not materially affect the congressional investigation because the Indictment makes clear that the investigation was of a “Russian state hack.”

But along the way, Stone includes his own footnote where he (perhaps in an effort to present a quote that denialists like Aaron Maté can quote without context, as Maté has done repeatedly as the useful idiot of both Stone and Concord Management) misrepresents the government’s theoretical as instead genuine curiosity.

1 The government wonders if the Russian state hacked and stole the relevant data and then someone else coordinated the delivery of the data to WikiLeaks. See Dkt. #172 n. 4. The government, nor the Mueller report proved or disproved this scenario. But if WikiLeaks did not receive the data from the Russian state then Stone’s communications with WikiLeaks were immaterial.

Stone is absolutely right that the government doesn’t prove or disprove this scenario. The Mueller Report notes explicitly that,

The Office cannot rule out that stolen documents were transferred to WikiLeaks through intermediaries who visited during the summer of 2016. For example, public reporting identified Andrew Müller-Maguhn as a WikiLeaks associate who may have assisted with the transfer of these stolen documents to WikiLeaks.

The prosecutors in his case aren’t tasked with answering that question. Indeed, if pressed, they could argue that Stone’s lies might well have served to hide firsthand knowledge of how the Podesta emails did get to WikiLeaks, which would make them even more material.

From a legal standpoint, Stone’s argument is unlikely to work, even if it were argued with more legal rigor.

What I’m interested in, however, is how Stone homes in on just one part of the scenario, the hand-off of files to WikiLeaks. The government actually laid out three parts to its theoretical: WikiLeaks got the files stolen by Russia from a cut-out, but also coordinated with Russia on “other election interference activities,” and individuals associated with the Trump campaign played a role coordinating the handoff of the files and WikiLeaks’ other coordination with Russia.

  • Organization 1 could theoretically have received the files from someone who received them from Russia;
  • Russia could theoretically have coordinated its other election interference activities with Organization 1’s posting of stolen documents even if Russia was not Organization 1’s source;
  • Individuals associated with the Trump Campaign could theoretically have played a role coordinating the two.

It’s a series of tantalizing hypotheticals! And while the first two (the second of which is pretty oblique) could independently be true, the last one implies the two would not be independent, but that, instead, someone “associated” with the Trump campaign coordinated the first two steps.

But of course, the government presents all this as a theoretical possibility, not (as Stone falsely claims) as a question they’re seeking, here, to answer.

Stone, however, only deals with the first part of that scenario: “the Russian state hacked and stole the relevant data and then someone else coordinated the delivery of the data to WikiLeaks.” He doesn’t address the possibility that WikiLeaks had some other kind of role. And he definitely doesn’t address the possibility that someone “associated” with the Trump campaign had a role in coordinating the two. In a gesture towards addressing a government hypothetical (in part) that some individual associated with the Trump campaign might have coordinated other election year activities, Stone suggests that the only way the communications of a Trump associate with WikiLeaks would be material would be if the communications involved actual transfer of emails.

This is something Stone has long been doing — making narrowly tailored denials that don’t address some tantalizing possibilities: in this case, that Stone had a role arranging something else with WikiLeaks.

And all the while, Stone drops a suggestion that overstates the uncertainty of what the government knows.

The Government Accuses Roger Stone of Being a Disorganized Figure Who Committed a Crime

The government and Roger Stone are arguing over whether prosecutors can show the Frank Pentangeli clip from the Godfather II at his trial. Last month, the government argued they need to show the clip to explain the context of Stone’s orders to Randy Credico to ““Start practicing your Pantagele.”

The clip of Pentangeli’s testimony is directly relevant to the charge of witness tampering in this case (count 7). To prove that charge, the government must prove that Stone corruptly persuaded or attempted to corruptly persuade a witness (Person 2), intended to interfere in that witness’s testimony, and did so with a current or future proceeding in mind. See 18 U.S.C. § 1512(b)(1); United States v. Edlind, 887 F.3d 166, 172-174 (4th Cir. 2018). Several of the allegedly criminal acts at issue involve Stone’s referencing Pentangeli and Pentangeli’s testimony before Congress. To understand Stone’s messages to Person 2—including what Stone was asking Person 2 to do—it is necessary to understand those references. Taken in context, Stone’s references to Pentangeli and to specific lines spoken by Pentangeli are unmistakable. This clip is highly probative of the meaning of Stone’s communications to Person 2.

[snip]

Watching the movie clip and seeing the context in which Pentangeli delivers the lines that Stone quotes to Person 2 makes clear that Stone’s messages were not mere references to Person 2’s abilities as an impressionist, but rather were a suggestion that Person 2 testify falsely to Congress. The clip is an important piece of evidence on this critical, disputed issue.

In response, in one of their most seriously argued filings, Stone’s team argued the clip would unduly link Stone with the mafia (though they got the role Stone would play in the analogy wrong).

Any reference to “The Godfather” (regardless of which one) brings up a clear and unalienable connection to the Italian-American Mafia. Any attempts to compare the conduct of Stone to that of an alleged mafia member, testifying that he murdered on the orders of ‘the Godfather’ will instantly create a connection in the minds of the jurors that Stone is somehow similar to a murderous mafioso.

[snip]

Stone objects because unlike the other movies and interviews cited by the government, the Godfather trilogy is iconic and its themes and implications are known by most people who are potential jurors. A clip of the movie triggers the implication of the entire series – cold, calculated, violence and crime.3 Once a Mafia connection is made the damage will be done.

In a footnote, Stone’s lawyers suggest that the government didn’t include a transcript because it would alert Judge Amy Berman Jackson to how damning the clip would be. They claim to include a transcript as an exhibit.

The government either assumes the Court is necessarily familiar with the movie clip from the Godfather II, or recognizes that if it were to see it the nature of its improper character evidence and unfairly prejudicial clip would be apparent. The transcript of the scene is presented as Exhibit – 1, the movie clip itself is presented here (click here).

Today, the government responded, in part, by suggesting that showing the clip would not be unfairly prejudicial, it would just fully explain the crime Stone allegedly committed.

As the D.C. Circuit has observed, Rule 403 does not apply to “powerful, or even ‘prejudicial’ evidence” but instead “focuses on the ‘danger of unfair prejudice.’” United States v. Gartmon, 146 F.3d 1015, 1021 (D.C. Cir. 1998) (Court’s emphasis). This means “an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” Old Chief v. United States, 519 U.S. 172, 192 (1997). While the scene from The Godfather Part II may be dramatic in some sense, Stone chose to reference it, and Rule 403 “does not provide a shield for defendants . . . permitting only the crimes of Caspar Milquetoasts to be described fully to a jury.”

In a footnote, however, they note that the transcript Stone included inaccurately described both the words and actions from the movie.

Stone’s response attached a purported transcript of the clip at issue. See Doc. 171, Ex. 1. This transcript is inaccurate in several respects, including the words transcribed and actions described. The government respectfully suggests that the Court review the film clip itself, and the government can make a copy available for the Court’s review upon request.

In point of fact, they didn’t make the transcription errors themselves; they just used an an early draft of the screenplay they found online. (h/t AL) The miscitation is ironic, though, in part because Stone appears to be prepping a challenge to the accuracy of the transcript of his interview with HPSCI, and also because it’s clear from Stone’s references to the scene in communications to Credico that he knows the scene better than whoever lazily just copied this from the web.

Ultimately, though, it shows that even in Stone’s most aggressively argued motion, his defense is still (as it has been repeatedly) totally disorganized and sloppy.

He might have done better arguing he has nothing in common with The Godfather because he’s a disorganized crime figure.

(h/t WB for the pun.)

Don McGahn Is Not the Most Critical Witness on Impeachment

In the last several days, Jerry Nadler has stated more and more clearly that his committee is conducting an inquiry on whether to file articles of impeachment. Six months after gaining the majority, this feels like a slow walk perhaps intended to time any impeachment vote based on how it will impact the election.

In its press release and complaint seeking to enforce its subpoena against Don McGahn last week, the House Judiciary Committee made an alarming claim: that Don McGahn was the most important witness in its consideration of whether to file for impeachment.

McGahn is the Judiciary Committee’s most important fact witness in its consideration of whether to recommend articles of impeachment and its related investigation of misconduct by the President, including acts of obstruction of justice described in the Special Counsel’s Report.

That claim suggests that the House Judiciary Committee has a very limited conceptualization of its own inquiry and perhaps an overestimation of how good a witness McGahn will be.

McGahn’s probably not as credible as HJC Dems think

I say the latter for two reasons. First, in the early days of the Russian investigation, McGahn overstepped the role of a White House Counsel. For example, even after his office recognized they could not talk to Jeff Sessions about the Russian investigation or risk obstruction, McGahn followed Trump’s orders to pressure Dana Boente on the investigation.

At the President’s urging, McGahn contacted Boente several times on March 21, 2017, to seek Boente’s assistance in having Corney or the Department of Justice correct the misperception that the President was under investigation.326

Curiously, McGahn and Boente’s versions of what happened are among the most divergent in the entire Mueller Report, which might suggest McGahn was less than forthright in testimony that, per footnotes, came in one of his earlier interviews.

Plus, as the Mueller Report acknowledges, the NYT story that triggered one of the key events in the report — where Trump asked McGahn to publicly rebut a claim that he had asked McGahn to fire Mueller, which led him to threaten to resign — was inaccurate in its claim that McGahn had functionally threatened to resign (which was clear in real time). 

On January 26, 2018, the President’s personal counsel called McGahn ‘s attorney and said that the President wanted McGahn to put out a statement denying that he had been asked to fire the Special Counsel and that he had threatened to quit in protest.784 McGahn’s attorney spoke with McGahn about that request and then called the President’s personal counsel to relay that McGahn would not make a statement.785 McGahn ‘s attorney informed the President’s personal counsel that the Times story was accurate in reporting that the President wanted the Special Counsel removed.786 Accordingly, McGahn’s attorney said, although the article was inaccurate in some other respects, McGahn could not comply with the President’s request to dispute the story.787

Put McGahn under oath, and Republicans will ask if he was a source for that story, and if he was, why he oversold what he did. At the very least they’ll beat him up for letting the “#FakeNews NYT” spread lies.

There are far better (tactically and Constitutionally) reasons to impeach

More troubling still, asserting that McGahn is the most important witness — and stating that he’d be a witness in “criminal obstruction” — you prioritize that cause for impeachment over others, causes that might elicit some Republican support or at the very least mobilize the Democratic base.

To my mind, the best cause for impeachment — in terms of cornering Republicans and mobilizing the Democratic base — pertains to Trump’s repurposing of otherwise allocated funding for his Wall. This was an issue about which Republicans themselves had problems. It highlights Trump’s impotence to deliver on his campaign promise that Mexico would pay for his wall. It goes to issues of efficacy on national security issues. And it highlights how Trump has abused authority — authority which goes to the core of separation of powers — to facilitate his attacks on Latino immigrants. Plus, depending on when impeachment was triggered, having focused on the power of the purse would provide a tool to rein Trump in if he survived the election.

Democrats should also focus on Trump’s abuse of the Vacancy Reform Act in his appointments to lead the Consumer Financial Protection Board, DOJ, DOD, and ODNI. Violating the spirit of Consumer Financial Protection Board gave Trump a way to gut an entity meant to protect consumers, something that Elizabeth Warren will be able to magnify better than anyone (all the more so if and when the economy starts to turn south). Appointing Big Dick Toilet Salesman Matt Whitaker to fire Jeff Sessions provides a different way to get to the Russian investigation, and may (if BDTS prevented Mueller from naming Trump in the Roger Stone indictment) focus more attention on the resolution of that case (which has the potential of being both a really damaging trial or a pre-trial pardon). The appointment of Patrick Shanahan as Acting Secretary of Defense provides a way to focus on ethics complaints about his tenure, to say nothing about Trump’s tolerance for familial abuse. And Trump must be held accountable for whatever predictable problems selecting a loyalist over Sue Gordon as Acting DNI will cause — and some of the predictable problems, which might involve North Korea, Iran, or cybersecurity, could be quite damning.

Another impeachment cause that would invoke some of the same issues as the Russian investigation, but in a way that would be more awkward for the President, is Trump’s abuse of security clearances, starting with, but not limited to, Kushner’s (this is an issue where the Oversight Committee has done great work). An inquiry into why Trump gave Kushner clearance would provide a way to get to Kushner’s awkward role in foreign policy, particularly the possibility that he shared US classified information with Gulf oligarchs. If Kushner is found to have shared intelligence allowing Mohammed bin Salman to target Al-Waleed bin Talal or Jamal Khashoggi, it will invoke a slew of issues that will put Republicans in an awkward position (and have the salutary effect of focusing attention on Trump’s refusal to keep the Saudis honest).

Democrats would be idiots if they didn’t make an issue of Trump’s self-dealing, including but not limited to emoluments. It’s likely Republicans would defend the President on this point, but if they do, it can form the basis for legislation to more clearly prohibit such self-dealing going forward if Democrats do well in 2020. In addition, it goes to an issue that was absolutely key to Trump’s supporters, #DrainTheSwamp, but on which he has been (predictably) an utter failure.

Finally, Democrats should include Trump’s refusal to respond to violations of the Presidential Records Act in any impeachment inquiry. It is true that most Administrations have had problems adhering to PRA going back to Poppy Bush (Obama is to a large extent an exception, but Hillary’s avoidance of the Federal Records Act undermines that good record). But when pressed, most prior Administrations have been forced to admit the details of their failures to fulfill the law. Here, Trump has simply refused to respond to all questions about PRA violations. Some of these violations involve key players in the Russian investigation: Jared, KT McFarland, and Bannon. But these same people were involved in other scandals, such as the willingness to sacrifice US standards on nuclear security so that a bunch of Republicans can make $1 million per reactor (again, this would incorporate great work done by OGR).

This is a non-exclusive list. The point is, however, that HJC should frame their impeachment inquiry broadly, partly because some of Trump’s high crimes and misdemeanors have pissed off Republicans in the past, and partly because a failed impeachment trial can still frame Republican obstruction in a way that voters will care about.

Obviously, I think Trump’s conduct during the Russian investigation is important, and it’s all packaged up with a bow. But it’s not even just obstruction. Trump lied under oath in his written responses to Mueller. And Trump cheated to win an election. So even while pursuing impeachment on Russia, it needs to be more broadly conceived than the issues that Don McGahn can address. 

Other witnesses have more to offer than Don McGahn

So even in the emphasis on the Russia investigation, I think there is at least one better witness: Jay Sekulow. Sekulow has done a number of things that don’t qualify for attorney client privilege, such as his conversations directly with Michael Cohen to write a false statement hiding the President’s ties to Russia. That goes directly to Trump’s sworn lies.

Then there’s John Kelly. He was at DHS for the beginning of Trump’s abusive immigration policies. He knows details of Trump’s security clearance abuses (and might actually give a damn about them). He should know details of the PRA violations (and if not, should be accountable for why not). And he knows details of Kushner’s privatized foreign policy (and probably tried to control it). Kelly was a minor witness for Robert Mueller, but should be a key witness to any impeachment inquiry.

Finally, there’s the role of the Office of Legal Counsel and its head Steve Engel in all this. Some of OLC’s opinions enabling Trump’s abusive acts have been every bit as dodgy as John Yoo’s ones. It is the place of DOJ’s oversight committee to review the circumstances of those shitty opinions. While the government would likely fight this testimony particularly aggressively based on deliberative and attorney-client privileges, both John Yoo and Steven Bradbury have testified before, Yoo on an issue (torture) pertaining to abuse. Engel would still be able to testify about patterns of communication and the degree to which Trump dictated outcomes.

I’ll grant you, there are good reasons why McGahn may be a good tactical witness. I suspect that, by the time he testified, McGahn might be prepared to Bigfoot his testimony, not least in an attempt to cleanse himself of the Trump taint. So at that level, he may be a willing, damning witness.

So calling McGahn the most important witness might just be a legal tactic, a means to tie HJC’s obstruction inquiry with witnesses who have been blocked from testifying. And the White House Counsel position (to say nothing of the former White House Counsel position) is one for which there is precedent (under Clinton and Bush) for coerced testimony.

But I hope to hell HJC doesn’t really believe he’s the most important witness.

The Ohr 302 Exemptions

As I noted yesterday, the FD-302s of FBI’s conversations with Bruce Ohr released to Judicial Watch the other day are unremarkable. The scope of Judicial Watch’s request left out the time periods — before Ohr was handed off to Bill Priestap after the election, and after Mueller was hired — that would be the most interesting. But what we do see shows that FBI first reached out to Ohr in an effort to assess the Steele dossier production, and Ohr was able and willing to chase down answers for the FBI that go to issues of credibility. Later, Steele reached out to Ohr in a panic about what would happen as Congress scrutinized his work more closely; in what we see, those conversations were not inappropriate (which is not to say I’m sympathetic to Steele’s concerns, given how he publicized his work). Though given Ohr’s notes, they may have been later in the year; at a minimum, they show how aggressively Steele was trying to prepare a public story that ended up being quite partial.

In my opinion, the FOIA exemptions are the most interesting aspect to the 302s. We can learn a bit from the things DOJ chose (or felt obligated) to protect. Here’s a short guide to FOIA exemptions and here’s DOJ’s more thorough one.

The less interesting redactions are for the following purposes:

  • b7C/b6: Protects privacy, used here to protect everything from Steele’s name to other sources
  • b7D: Protects confidential sources (both Steele and his sub-sources would get some protection)
  • b7E: Protects law enforcement techniques, including the bureaucracy of writing up 302s

The exemption, b3, protects information protected by statute, often the National Security Act. For example, that’s one of the exemptions (along with privacy and law enforcement technique exemptions) used to protect boring bureaucratic details about the case file. But it’s interesting in one instance.

The discussions, starting on PDF 14, of how Steele was panicking about one of his sources are protected for privacy, source, and b3, statute (as well as, sometimes, law enforcement technique).

That’s interesting, because FBI is not saying this person’s identity is classified. Nor is it saying that this person is credibly at risk of being killed, which would be a b7F (which is what they’d use to protect our own recruited agents). But they are according Steele’s source some kind of statutory protection.

The exemption, b1, protects classified information. It’s a measure, in these discussions about someone who used to work as an intelligence officer for an ally and who continues to collect HUMINT, of what the DOJ or other agencies considers genuinely classified (and doesn’t always line up with the initial or FOIA review classification marks on the paragraphs). For example, a paragraph describing how Ohr first met Steele — which appears in unredacted form in Ohr’s congressional testimony as follows — is protected by both a b3 and b1 exemption, presumably to protect references to MI6.

I believe I met Chris Steele for the first time around 2007. That was an official meeting. At that time, he was still employed by the British Government. I went to London to talk with British Government officials about Russian organized crime and what they were doing to look at the threat, and the FBI office at the U.S. Embassy in London set up a meeting. That was with Chris Steele. And there were other members of different British Government agencies there. And we met and had a discussion. And afterwards, I believe the agent and I spoke with Chris Steele further over lunch.

A more interesting redaction appears on PDF 8, in a series of paragraphs where Bill Priestap was asking Ohr whether about his personal knowledge of certain aspects of Steele’s work, such as whether he had witnessed Steele’s meetings with Jon Winer. One of those paragraphs is redacted, in part for b3 and b1 reasons, and classified Secret. Whatever that protects, it’s a reminder that Ohr and Steele had real discussions about organized crime in the past.

By far the most interesting exemptions, however, are what FBI has chosen to protect because of ongoing investigations, exemption b7A, starting with what they have not protected: these conversations, generally.

The frothy right believes that Bruce Ohr should go to prison because he shared information about suspected Russian crimes with other experts in the subject. Ohr’s role in the dossier has presumably been under scrutiny for some time as part of DOJ IG’s investigation into the basis for Carter Page’s FISA application. In addition, Christopher Steele and Glenn Simpson have both been referred to DOJ for suspected lies to Congress, the latter more credibly than the former. With one significant possible exception, there’s nothing in these 302s that has been protected for either of those reasons. Ohr’s earlier and later conversations with Steele would be more pertinent to those inquiries (and there’s reason to believe the later ones are being treated as such), but some of these 302s would clearly be too. But FBI has determined they can release these files. That’s interesting, especially, because of the history of this FOIA:

  • August 6, 2018: Initial Judicial Watch FOIA
  • September 10, 2018: JW sues
  • March 15, 2019: DOJ tells JW the files are being withheld in full
  • March 22, 2019: Conclusion of Mueller investigation
  • April 1, 2019: Status report states that FBI is evaluating impact of conclusion of that investigation on FOIA
  • May 8, 2019: DOJ still considering whether FBI can release the files
  • July 25, 2019: DOJ decides it can release the files in part

As recently as August 5, DOJ said it was “still engaged in internal discussions about the redactions necessary to release the requested records to the public.” In other words, a very recent review of these files has determined that files showing how FBI handled the mid-term discussions between Christopher Steele and Bruce Ohr may be released to the public.

The big possible exception pertains to details of the original conversation on Trump and Russia with Steele.

Steele’s initial conversation

The paragraph describing what Steele first told Ohr back on July 30, 2016 is redacted for b1, b3, and b7A reasons.

The redactions in this passage include the entirety of Steele’s explanation for the “over a barrel” comment, which is interesting because other agencies have released these details (which may name the people boasting they had kompromat on Trump). The paragraph also redacts part of the discussion of Deripaska preparing to bring details on Paul Manafort’s “theft” from him to US authorities. That may be for privacy reasons,  but — assuming the order is the same in the interview and the notes, but it seems Ohr was reading verbatim — both are redacted for ongoing investigation reasons in Ohr’s notes released in December.

If, as seems to be the case, Page was not redacted as part of an ongoing investigation in either of these suggests the early Ohr conversation is not one being scrutinized by DOJ IG on the FISA application (especially given the notes were released in December, well before the IG had come close to finishing, as has been reported).

Note, Ohr turned over notes from during and after the meeting with Steele to Priestap. Just these notes were released in December, meaning the notes he wrote after the meeting must be among the 6 pages of Ohr’s notes withheld in that December release, in part to protect an ongoing investigation (that could be consistent both with the known DOJ IG investigation into the origins of the investigation, and an investigation into those two allegations).

One other thing in that first interview pertains, per the redaction to an ongoing investigation: a discussion of a post-Ukrainian invasion meeting involving Ohr, Steele, and oligarchs (possibly, though not definitely, Russian).

 

The description seems to match a meeting Steele is known to have set up with Deripaska (though that meeting was in 2015).

Oleg Deripaska

The treatment of one known Deripaska reference and this reference to cultivating oligarchs as sources (earlier in 2016, Steele had been trying to get DOJ to use Deripaska as a source) is particularly interesting given that, what appear to be additional Deripaska references, are also redacted to protect an ongoing investigation.

A significant chunk of the 302 memorializing the February 6, 2017 interview protects an ongoing investigation.

There are good reasons to think this is a reference to Deripaska. Steele worked for Deripaska lawyer Paul Hauser, and Deripaska was interviewed in September 2016. Deripaska would be directly implicated in the election (two months after this interview, Deripaska was sanctioned).

This may reflect a conversation directly with Hauser though, as the Steele reference in this interview was covered in entirely in a WhatsApp chat. Given the redaction, it’s also possible that Ohr took notes, which would be among the 6 pages not turned over because of an ongoing investigation.

And while less definitive, this passage from the February 14 interview of Steele referring to which lawyers he was working for could also be the Hauser work.

Given the withholdings on Ohr’s note from the meeting, the ongoing investigation does pertain to Steele’s client.

If it is Deripaska, it would suggest that Steele was financially dependent on his Deripaska work, as the other client mentioned, Bilfinger, wasn’t paying him (which he complained about to Ohr).

[Note, this note also has what looks like a reference to “Snowden report,” which makes absolutely no sense to me, so I assume I’m misreading it.] Update: This is likely a reference to the report, from the day before, that Russia was offering Snowden to Trump.

It has long been troubling that Steele had an ongoing relationship with Deripaska during the time he worked on the dossier. It’s clear that Deripaska used Steele to misinform DOJ that he was upping the pressure on Manafort, hiding that Manafort was instead making a desperate — and somewhat successful bid — to get back on Deripaska’s payroll.

A good deal of the ongoing investigation redactions in these Ohr 302s suggest DOJ continues to be interested in all that, as well.

Alfa Bank

The other ongoing investigation redactions are far more surprising, as they suggest (though this is far less definitive than the Deripaska tie) that DOJ may continue to investigate … something pertaining to the Alfa Bank allegations.

The initial reference to Alfa Bank, from the November 22, 2016 interview and discussing his September 2016 meeting with Glenn Simpson, is not protected as part of an ongoing investigation — though what appears to be a continuation of a discussion of it is treated as classified.

But a follow-up reference to Alfa bank does seem to be redacted as part of an ongoing investigation. These two paragraphs from the December 12, 2016 interview of Ohr, at PDF 11, have just one exemption explanation, including the b7A ongoing investigation one.

It’s certainly possible that the second paragraph is unrelated, and that’s what pertains to the ongoing investigation. But treating them as the same FOIA exemptions suggests they’re related.

In the same interview, Ohr explained that when he asked Simpson if he was concerned about his personal safety, Simpson,

mentioned that someone called and asked him to find out where all of the Alfa Bank stories were coming from. Simpson did not state this was a threat from the Russians, but that was the impression made upon OHR based upon the timing of the comment and using that story as a response to OHR’s question.

This seems to suggest more than one Alfa Bank story.

Also note two things. First, when the NYT first got the story of Jared Kushner’s “back channel” meeting with Sergey Gorkov, they had it as a meeting with Alfa Bank (though they misspelled it in the same way that Steele’s dossier did). That meeting would take place four days after Simpson raised whatever crazy tip he got, on December 13.

Kushner agreed to meet with Gorkov. 1151 The one-on-one meeting took place the next day, December 13, 2016, at the Colony Capital building in Manhattan, where Kushner had previously scheduled meetings. 1152

Also, during this period, Petr Aven was trying to reach out to Trump’s people on direct orders from Putin.

In December 2016, weeks after the one-on-one meeting with Putin described in Volume I, Section IV.B.1.b, supra, Petr Aven attended what he described as a separate “all-hands” oligarch meeting between Putin and Russia’s most prominent businessmen. 1167 As in Aven’s one-on-one meeting, a main topic of discussion at the oligarch meeting in December 2016 was the prospect of forthcoming U.S. economic sanctions. 1168

After the December 2016 all-hands meeting, Aven tried to establish a connection to the Trump team. Aven instructed Richard Burt to make contact with the incoming Trump Administration

It’s highly unlikely that Simpson got wind of any of those things; we would have heard about it. I raise these other instances not because I think Simpson had them, but because it’s clear Mueller chased these Alfa leads much further than we otherwise knew, and the leads themselves still seem not to have amounted to anything (even while showing that Putin leveraged the threat of election-related sanctions on the one bank that was legally acceptable in the west at the time, Alfa, to get its oligarch to join his efforts to cultivate Trump).

These Alfa allegations all still seem to be fluff. But even so, the redactions in the second reference may suggest there’s something here of continued interest to the FBI.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

The Unremarkable Bruce Ohr 302s

Last night, Judicial Watch (and DOJ) released some of the FD-302s (FBI interview reports) between Bruce Ohr and the FBI. This post will lay out what they include.

As a reminder, Ohr is a top DOJ expert on Russian organized crime. He has known Christopher Steele since 2007 and Ohr’s wife — who is an expert on Russia — did some work for Fusion GPS during the election that was related to, but not part of, Steele’s work for Fusion. Ohr and Steele had conversations in 2016 about a range of things, including Oleg Deripaska (for whom Steele was doing work and who Steele trusted far more than he should have), Russian doping, and Trump’s ties to Russia.

Starting on July 30, 2016 and continuing through November 2017, Steele shared first his Trump-related information with Ohr, and then his concerns about how his dossier was all blowing up, including his concern for at least one of his sources. After Steele was cut off as a paid source in November 2016, FBI had Ohr communicate with Bill Priestap, who was a top counterintelligence person at FBI, whenever he spoke with Steele as a way to stay in touch with the former British intelligence officer, at first as part of vetting the dossier, and later to monitor where he was at.

This release of 302s is partial (though that’s based on Judicial Watch’s request, not FBI’s response). It doesn’t include any record of Ohr’s conversations with FBI and DOJ prior to November 22, 2016 (which include at least an early August meeting with Andrew McCabe and Lisa Page and a fall meeting with Page, Peter Strzok, Andrew Weissmann, Zainab Ahmad, and Bruce Swartz). It also doesn’t include Ohr’s communications after May 2017. Thus, it explicitly would exclude any information about how Mueller treated the dossier, details of what FBI and Steele did to try to limit Congress’ investigation into the role of the dossier, and whether and how FBI investigated possible false statements from Steele and (especially) Glenn Simpson.

In addition, while DOJ already released a lot of the backup to this (including Ohr’s communications with Steele and Simpson and some but not all of his notes), Judicial Watch has apparently not posted something DOJ already provided them, which is a file “Manafort Chronology” that JW received in an earlier lawsuit (I’ve asked JW for that file; they say they’re still processing it, even though they received it before these 302s). That document would presumably make it clear (as if the investigative team Ohr met with didn’t already) that more of what Ohr passed on to FBI from Steele before the election would pertain to Manafort, not Carter Page.

These meetings covered by the 302s seem to be broken into three groups:

  • November 22 to December 20: FBI’s review of Steele’s reporting process and collection of relevant materials
  • January 25 to February 14: Steele and Simpson express their panic in the aftermath of the dossier publication to Ohr
  • May 8 to 15: Steele’s panic about Congress increases, FBI offers to set up an FBI contact

November 22, 2016

This meeting was obviously an introductory meeting between Ohr and Priestap. He describes how he first met Steele (which partly redacted here but not redacted in his testimony to HJC/OGR). There’s a redacted comment that probably reflects Ohr’s view of Steele’s sources. That probably pertains to one or more oligarchs, because Ohr then explains his own opinion about the willingness of oligarchs to share information; this paragraph has been redacted because of an ongoing investigation, as has the paragraph describing Ohr’s summary of his meeting with Steele in July 2016 (which Ohr told McCabe about within days). There’s a reference to these notes from July (see PDF 31)

When these notes were released in December 2018, both the source for the “over a barrel” comment and Deripaska’s threats against Manafort were protected for ongoing investigation; at least in this paragraph, some of both are unsealed.

Ohr then explains what he knew about the Fusion GPS oppo research project, including that Simpson was passing the information on to “many individuals or entities.”

It’s clear that Ohr was asked about Michael Isikoff’s Yahoo article on Carter Page. Ohr described meeting with Simpson and Steele around that time, but his focus was instead on the Alfa Bank server allegation, which I’l return to.

Pristap also must have asked Ohr whether Steele made up his allegations, which Ohr said he did not believe Steele had done. Ohr explained that “there are always Russian conspiracy theories that come from the Kremlin.” He stated that he believed that Steele was just reporting what he heard, “but that doesn’t make that story true.”

Ohr was also asked about Jon Winer and whether he knew how Steele handled his sources, as well as for contact information for someone, probably Steele.

December 5

Several weeks after the initial meeting, Priestap interviewed Ohr again with follow-up questions about the dossier. He appears to reveal that he never was present when Steele interviewed a source (though there was a meeting he described). He says he was never present for meetings between Steele and Jon Winer. He described his wife Nellie’s research for Simpson. And he explained that Simpson directed Steele to “speak to the press as that was what Simpson was paying” him to do. Priestap apparently asked if Steele went to David Corn on his own or at the direction of Simpson, which Ohr did not know the answer to.

At that meeting, Ohr handed over the “Manafort Chronology” (which may or may not be Nellie’s work), which is the document JW may not have released yet.

December 12

Ohr met with Simpson on December 10 and obtained a copy of the dossier on thumb drive, so met with Priestap to share that and his notes from that meeting (see PDF 32).

At the meeting, Simpson told Ohr the Michael Cohen allegations (though these should and do appear to be the dated October allegations). Simpson shared gossip about some former Trump person (he thought it was Rick Wilson, but Wilson denied it yesterday) who was concerned about Trump’s ties to Russia. He raised Aleksandr Torshin’s outreach to the NRA and shared this article on it, even while noting there was disagreement on his staff about how much money Russia was funneling to the NRA. Simpson disputed NYT’s doubts about the Alfa Bank server (either Priestap or Simpson got the date of the article wrong); in response to an Ohr question about whether he thought he was safe, Simpson said someone had called and “asked him to find out where all of the Alfa Bank stories were coming from.” Simpson told Ohr he still had concerns about Sergei Millian and noted, “Looking at Millian led Simpson’s company to Cohen” (which Simpson would later share with Congress).

Simpson admitted that he asked Steele “to speak to the Mother Jones reporter as  it was Simpson’s Hail Mary attempt.” Note this means that after Priestap asked Ohr who decided to contact Corn, Ohr asked Simpson, and then passed on the answer. From this point forward, Ohr was basically providing FBI information on the Fusion effort.

Finally, Simpson appeared to suggest that much of Steele’s reporting comes from one source but “Simpson does not know his name.” This also seems to be a question Ohr posed after having been asked about it by Priestap. There are almost entirely redacted notes at PDF 33 listing “possible intermediaries” attributed to Simpson, but it’s unclear if Ohr took those notes at that meeting.

December 20

Several weeks after he said he would do so, Ohr met with Priestap and shared Nellie Ohr’s research for Fusion on a thumb drive.

January 23

On January 20, Simpson contacted Ohr in a panic about one of Steele’s sources. The following day, Ohr and Steele spoke about the concerns. The description of those concerns are treated, among other redactions, as legally classified information. The description of what appears to be the person in Ohr’s notes released last year is protected as part of an ongoing investigation (PDF 34-35). One thing Steele told Ohr, though, was that he knew the person was alive and well because he had posted on Facebook.

On the January 21 call, Steele also told Ohr he had spoken with someone in John McCain’s office sometime “prior to October 2016.” Either he’s only telling Ohr part of the story, or the date is wrong, because Steele’s known contacts related to McCain were in December.

January 25

Several days later, Ohr reached out to Priestap again to update him on what Steele had said in a followup. In that call either Steele or Ohr suggested the person might be exposed because of journalists. (PDF 36)

January 27

Several days later Ohr updated Pristap on his latest WhatsApp contact with Steele.

February 6

A few weeks later, Steele called about two things. First, the firing of Sally Yates led him to believe he needed another contact in case Ohr was fired; Priestap asked Ohr to ask Steele if he’d feel comfortable going through the FBI. He also seemed to be passing on information from someone, probably Deripaska, complaining that because of the 2016 election the FBI considered him a “criminal.” There’s a redacted section, and all this redacted information is protected as an ongoing investigation.

At the same meeting, Ohr offered up that Kathleen Kavalec, who was briefing allies on possible Russian tampering in their elections, had also met with Steele several times before the 2016 election. Ohr said that she said Steele’s reporting was generated mainly from [redacted]; which either pertains to a named source or from a reporting source.

February 14

This was mostly a follow-up reporting on a February 11 FaceTime chat with Steele, though Steele described working for two attorneys, one of whom appears to be redacted as part of an ongoing investigation in Ohr’s notes (PDF 37).

Ohr told the FBI he had not yet asked Steele if he’d be comfortable working through an FBI agent.

Note: There are March WhatsApp texts and written notes Ohr took with no corresponding 302. They pertain to Steele’s concerns about Congressional inquiries.

May 8

Ohr reported on a May 3 WhatsApp call with Steele, in which he expressed concerns about Congress’ scrutiny of his role. Steele also told Ohr that Simpson would be heading over to the UK soon and was lawyering up. But he still offered additional information to the FBI, if it was interested. Note, this is the first 302 where a normal listing of both interviewers is used, though there are indications elsewhere that Priestap was accompanied by someone else.

May 12

Ohr reports on a May 10 WhatsApp call in which Steele tells him the Senate Intelligence Committee is seeking information. The FBI asks Ohr to ask if Steele is willing to “have a conversation” with FBI agents in the UK, and Ohr agrees to pass it on.

May 15

After meeting with the FBI on May 12, Ohr contacted Steele to find out whether he’d be willing to talk to the FBI — “nothing more than a conversation with the FBI;” three days alter he said he would.

Steele also said he had information on a conversation between two people.

It Is False To Claim the Counterintelligence Investigation into Trump Is Unprecedented

There’s a conceit among the frothy right that the counterintelligence investigation into Donald Trump is unprecedented. At a recent hearing with FBI Director Christopher Wray, for example, Josh Hawley set up the question this way.

Hawley: Director Wray, earlier this year I sent the FBI two letter seeking additional information about news reports that the agency, the Bureau, had opened a counterintelligence investigation of the President following the exercise of the President’s constitutional prerogatives to direct foreign policy and otherwise oversee the Executive Branch. I did not receive a response to those letters beyond a form letter acknowledging receipt. And since I have you here and have you under oath, let me just ask you what I want to know. To your knowledge has the FBI ever launched a counterintelligence investigation into another President in American history?

Wray: I don’t know the answer to that question.

Hawley: And so it would be “no” then, since it’s “to your knowledge”? It’s fair to say you’re not aware of one, personally, is all I’m asking?

Wray: It’s fair to say I’m not aware of one.

Hawley: Is it safe to say then, to the best of your knowledge, that such a move would be and is unprecedented?

Wray: Um, well again, we’ve been around for 111 years, so I don’t really know what is precedented or not precedented in that regard.

The question, as framed, is totally bullshit, and Democratic members of Congress should stop letting their colleagues frame what happened to Donald Trump in such a way.

The proper question is, is there precedent that a counterintelligence investigation was opened into a major party candidate (distinguishing from Eugene Debs, into whom I’m sure there was a standing counterintelligence investigation through his presidential runs).

And the answer to that is simple. The precedent is Hillary Clinton.

In 2016, there was a counterintelligence investigation touching on both the Democratic and Republican candidates for President. The one into the Democrat was public. FBI managed it in ways, twice, that had an impact on the race. In addition to that CI investigation, there was also an investigation — predicated in part on oppo research from the Republican party — that involved the candidate’s interactions with foreign leaders. The latter investigation, into the Clinton Foundation, leaked. It leaked so egregiously that the Deputy Director of the FBI was fired for the leak.

The counterintelligence investigation into the Republican candidate was not public. Unlike the investigation into the Democrat, the one into the Republican was also not, at first, predicated against the candidate himself (to be honest, the Clinton email investigation would have been differently, and probably better, handled if Hillary weren’t the only possible target). It did not come to be opened against the guy who was still a candidate when the investigation was opened until he obstructed the investigation by firing the people conducting it.

The proper question for Josh Hawley to ask is, “Is there precedent for a criminal investigation against a sitting president for obstructing the investigation into what his campaign did to get elected?” The answer is easy. Yes. That is what happened with Nixon, and appropriately so.

The thing is, I can guarantee you Republicans would support an investigation into Hillary for obstructing the counterintelligence investigation into her behavior. The reason I can guarantee it is Republicans to this day — from the President on down — think there should be an ongoing investigation into whether Democrats gamed the investigation into Hillary. If Hillary had won, Senate Republicans would have demanded a special prosecutor into Hillary’s server, to say nothing of whether her interactions with foreign leaders were influenced by the Clinton Foundation.

Virtually all the conspiracy theories about the investigation into Trump, from the claims of a coup on down, are premised on granting him, as candidate, the privileges he would get when he became President. Those theories ignore the fact that in 2016, the FBI conducted CI investigations into both candidates. And there’s no question which it treated worse in doing so.

The Transcript the Frothy Right Claims Exculpates George Papadopoulos Instead Probably Inculpates Him

Last Monday, Republican huckster lawyer Joe Di Genova promised — among other things — that the documents the frothy right has been promising will blow up the Russian investigation would be released Wednesday — that is, a week ago. The frothy right — which for some unfathomable reason is following sworn liar and all around dope George Papadpoulos like sheep — believes that a transcript of the interactions between him and Stefan Halper somehow includes evidence that undercuts the case that there was probable cause that Carter Page was an agent of a foreign power.

An exchange from Sunday, however, confirms that the transcript in question shows that Papadopoulos was actively lying in September 2016 about his ties to Russia. In an exchange with Papadopoulos, Maria Bartiromo confirmed that the transcript in question is the one on which the former Trump flunkie told Stefan Halper that working with Russia to optimize the release of emails stolen from Hillary would be treason.

Bartiromo said that she had spoken with Papadopoulos on Saturday night, during which he told her that the recorded conversation in question involves him and FBI informant Stefan Halper in September 2016. Papadopoulos allegedly pushed back against Halper’s suggestion that he or the Trump campaign would have wanted Russia to release the Democratic National Committee emails it hacked in 2016.

[snip]

Bartiromo then said that “George Papadopoulos told me last night” that the transcript Gowdy was referring to is from a conversation Papadopoulos had with Halper in London at the Sofitel Hotel in London where she recounted that, according to Papadopoulos, Halper questioned Papadopoulos, saying, “Russia has all of these e-mails of Hillary Clinton and you know, and when they get out that would be really good for you, right? That would be really good for you and the Trump campaign, if all those e-mails got out, right?”

But Bartiromo says Papadopoulos responded to Halper by saying “that’s crazy,” “that would be treason,” “people get hanged for stuff,” and “I would never do something like that.”

That means it’s the same transcript that Mark Meadows — questioning Papadopoulos about what he learned not from his lawyers (who said there was no misconduct with Papadopoulos) but from the John Solomon echo chamber — asks about here.

Mr. Meadows. You say a transcript exists. A transcript exists of that conversation?

Mr. Papadopoulos. That’s I guess what John Solomon reported a couple days ago.

Mr. Meadows. So are you aware of a transcript existing? I mean —

Mr. Papadopoulos. I wasn’t aware of a transcript existing personally.

Mr. Meadows. So you have no personal knowledge of it?

Mr. Papadopoulos. I had no personal knowledge, no.

Mr. Meadows. But you think that he could have been recording you is what you’re suggesting?

Mr. Papadopoulos. Yes.

Mr. Meadows. All right. Go ahead.

Mr. Papadopoulos. And after he was throwing these allegations at me, I —

Mr. Meadows. And by allegations, allegations that the Trump campaign was benefiting from Hillary Clinton emails?

Mr. Papadopoulos. Something along those lines, sir. And I think I pushed back and I told him, I don’t know what the hell you’re talking about. What you’re talking about is something along the lines of treason. I’m not involved. I don’t know anyone in the campaign who’s involved. And, you know, I really have nothing to do with Russia. That’s — something along those lines is how I think I responded to this person.

By Papadopoulos’ own memory, he said three things in a mid-September meeting with Stefan Halper:

  1. He didn’t know anything about the Trump campaign benefitting from Hillary Clinton emails
  2. He believed if he did know about such a thing, it would amount to treason
  3. “I really have nothing to do with Russia”

Papadopoulos pled guilty, under oath, with the advice of counsel who knew the contents of this interview, that in fact he did know about the Trump campaign benefitting from Hillary Clinton emails, because he had been told about it in April 2016. So that’s one lie that this supposed exculpatory transcript records him telling.

I’m more interested in the second lie: that he “really has nothing to do with Russia.”

He made that statement sometime around September 16, 2016, in London. A month earlier, Papadopoulos had very different plans for a mid-September trip to London. He planned a meeting in London with the “Office of Putin,” that would hide any formal tie with the campaign.

The frothy right makes much of the fact that that meeting, as far as we know, did not take place. Though there is a written record of Sam Clovis — who probably was not entirely forthcoming in a grand jury appearance — encouraging Papadopoulos and Walid Phares to pursue such a meeting if feasible. More importantly, a year later, at a time when he was purportedly cooperating, Papadopoulos refused to cooperate in transcribing these notes, meaning he was still covering up the details about the fact that as late as mid-August the Trump campaign had plans to have a secret meeting at precisely the same time and in the same place that this Halper transcript was recorded.

Papadopoulos declined to assist in deciphering his notes, telling investigators that he could not read his own handwriting from the journal. Papadopoulos 9/19/17 302, at 21. The notes, however, appear to read as listed in the column to the left of the image above.

Worse still, Papadopoulos continued to show great enthusiasm for Russia even after the meeting where he claimed he “really has nothing to do with Russia.” He proudly alerted Joseph Mifsud of his September 30 column attacking sanctions against Russia.

On or about October 1, 2016, PAPADOPOULOS sent Mifsud a private Facebook message with a link to an article from Interfax.com, a Russian news website. This evidence contradicts PAPADOPOULOS’s statement to the Agents when interviewed on or about January 27, 2017, that he had not been “messaging” with [Mifsud] during the campaign while “with Trump.”

This column led the Trump campaign to sever ties with Papadopoulos.

Papadopoulos was dismissed from the Trump Campaign in early October 2016, after an interview he gave to the Russian news agency Inter/ax generated adverse publicity.492

492 George Papadopoulos: Sanctions Have Done Little More Than to Turn Russia Towards China, Interfax (Sept. 30, 2016).

And in spite of claiming he had “nothing to do with Russia” sometime in mid-September, immediately after the election Papadopoulos pursued deals with Russia, via Sergei Millian.

On November 9, 2016, shortly after the election, Papadopoulos arranged to meet Millian in Chicago to discuss business opportunities, including potential work with Russian “billionaires who are not under sanctions.”511 The meeting took place on November 14, 2016, at the Trump Hotel and Tower in Chicago.512 According to Papadopoulos, the two men discussed partnering on business deals, but Papadopoulos perceived that Millian’s attitude toward him changed when Papadopoulos stated that he was only pursuing private-sector opportunities and was not interested in a job in the Administration.5 13 The two remained in contact, however, and had extended online discussions about possible business opportunities in Russia. 514 The two also arranged to meet at a Washington, D.C. bar when both attended Trump’s inauguration in late January 2017.515

In short, the transcript (if it reflects Papadopoulos claiming he had nothing to do with Russia) is not exculpatory. On the contrary, it’s proof that Papadopoulos lied about at least two of three things Halper grilled him about.

The frothy right doesn’t seem to care that this transcript proves Papadopoulos lied, even before he knew he was under legal scrutiny for ties to Russia he continued to pursue even after being questioned about them.

The frothy right is using it differently. Trey Gowdy claims the transcript proves that the FBI was questioning “Trump campaign officials” (Papadopoulos was never paid by the campaign and would be “fired” two weeks later for his open enthusiasm for sanctions relief) about the campaign.

Gowdy told Bartiromo that this transcript “certainly has the potential to be” a game changer and said that he was “lost” and “clueless” as to why it hadn’t been made public yet, stating that he didn’t think it contained any information that would have an impact on relationships with our allies.

Gowdy further said that the transcripts would show “what questions [the FBI] coached the informants or the cooperating witnesses to ask of the Trump campaign officials” and implied that the questions would show that the FBI had been targeting the Trump campaign rather than simply attempting to combat Russian election interference.

Gowdy claimed that if the transcripts showed that the FBI was “veering over into the campaign or your [the FBI’s] questions are not solely about Russia, then you [the FBI] have been misleading us for two years.”

Here’s how that belief looked when Mark Meadows first mainstreamed it last fall.

Mr. Meadows. So essentially at this point, he was suggesting that there was collusion and you pushed back very firmly is what it sounds like.

Mr. Papadopoulos. That’s what I remember, yes.

Mr. Meadows. Okay. And then what did he do from there?

Mr. Papadopoulos. And then I remember he was — he was quite disappointed. I think he was expecting something else. There was a —

Mr. Meadows. So he thought you would confirm that you were actually benefiting from Hillary Clinton’s email dump?

Mr. Papadopoulos. Perhaps that’s why he was disappointed in what I had to tell him, which was the truth.

Mr. Meadows. So you have no knowledge — you’ve already testified that you have no personal interaction, but you have no knowledge of anybody on the campaign that was working with the Russians in any capacity to get these emails and use them to the advantage. Is that correct?

Mr. Papadopoulos. That’s absolutely correct.

Mark Meadows is pretty dumb. But this line of questioning is pretty shrewd (and may show some awareness of details that were not, at this point, public). His purportedly slam dunk question, proving misconduct, is whether Papadopoulos — who has, at times, been referred to as a “coffee boy” and was not a paid member of the campaign — had personal interaction or “knowledge of anybody on the campaign [] working with the Russians in any capacity to get these emails and use them to the advantage.”

Papadopoulos claimed he did not have that knowledge.

But we know that by the time this meeting with Halper happened, Donald Trump had ordered his top campaign aides to get Roger Stone to reach out to WikiLeaks to “get these emails and use them to the advantage.” Not Russia directly, not anybody still with the campaign, but the campaign did in fact try to “get these emails and use them to the advantage,” which is how Mark Meadows defines “collusion.” In short, this slam dunk exchange defines “collusion” to be precisely what Trump asked his aides to ask his rat-fucker to accomplish.

The Mike Flynn cooperation addendum makes it clear that, “only a select few people were privy” to the discussions about optimizing the WikiLeaks releases. The candidate’s campaign manager was privy to those discussions. The deputy campaign manager was privy to those discussions. The candidate’s top national security advisor was privy to them. The candidate’s rat-fucker was entrusted with those efforts. The candidate himself pushed this effort and got communication back about it.

But the coffee boy was not privy to those discussions.

Finally, let’s turn to the really bizarre part of what is supposed to be a smoking gun.

Trey Gowdy claims to believe that a transcript showing that Papadopoulos was lying to hide his ongoing ties with Russia in September 2016 — the contents of which Papadopoulos’ lawyers appear to have known about, which did not persuade them any misconduct had occurred with their client — should have been disclosed to the FISA Court for an application targeting Carter Page.

Gowdy also claimed that the potentially exonerating info was misleadingly concealed from the Foreign Intelligence Surveillance Court by the FBI, and that this is not the only mysterious transcript yet to be released.

Now, I could be wrong about this. After all, Trey Gowdy is one of the few people who has reviewed the unredacted Page warrant, though in the past has said there was clearly enough evidence to justify the warrant, something the Mueller Report substantiates (in part by making clear that Page told the FBI he’d happily provide non-public information to known Russian spies). But it appears that Papadopoulos appears in Page’s FISA application because events he swore under oath happened suggest that Russia was trying to reach out to the Trump campaign (for which there is abundant evidence), in part by offering energy deals (which is one thing Papadopoulos was still chasing even after November 2016), and there was reason to believe both Papadopoulos and Page had gotten advanced notice of the July 22 DNC email drop.

  • FBI targeted Page because they believed Russia was recruiting him as part of their effort to influence the outcome of the election (4)
  • Trump named both Page and Papadopoulos as advisors in March 2016 (6)
  • What the FBI knew so far of Papadopoulos’ activities [and other things] led the FBI to believe that Russia was not just trying to influence the outcome, but trying to coordinate with Trump’s campaign as well (9)
  • Russia has recruited Page in the past (12-14)
  • [Redacted section that probably explains that Page had told the FBI that he thought providing information to people he knew were Russian intelligence officers was beneficial for both countries and, after he showed up in the Buryakov complaint, he told Russia he had not cooperated with the FBI] (14-15)
  • In addition to allegedly meeting with Sechin and discussing eliminating sanctions, he met with someone assumed to be Igor Nikolayevich Divyekin, also “raised a dossier of ‘kompromat’ that the Kremlin had” on Clinton and the possibility of it being released to Trump’s campaign (18)
  • After those July meetings, Trump appeared to change his platform and publicly announced he might recognize Crimea (21)
  • Once these details became public, the Trump campaign not only denied Page had any ongoing connection to the campaign, but denied he ever had, which was false (24)

Some of those allegations about Page — specifically about whether he was alerted to kompromat harming Hillary when he was in Moscow in July 2016 — may not be true (though Mueller concluded that it remained unresolved). But they were true about Papadopoulos.

Establishing proof that Papadopoulos was lying to people about his ties to Russia in the weeks before his role was included in a FISA application doesn’t really make his inclusion exculpatory. On the contrary, it makes it more justifiable.

The frothy right is so spun up by con man George Papadopoulos that they have run to the TV cameras and claimed that a transcript that shows Papadopoulos was lying to hide his ongoing efforts to establish ties with Russia was in some way exculpatory. I mean, sure, Bill Barr might believe this tale. But no one else should.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

What I Would Do with the Mueller Report If I Were Reggie Walton

According to Politico, a hearing in the EPIC/BuzzFeed effort to liberate the Mueller Report went unexpectedly well today. It seems that Bill Barr’s propaganda effort to spin the results of the Mueller Report got Walton’s hackles up, leading him to believe that Barr’s effort covered up the degree to which Trump “colluded” with Russia.

Walton said he had “some concerns” about trying to reconcile public statements Trump and Attorney General William Barr have made about the report with the content of the report itself.

The judge pointed to Trump’s claims that Mueller found “no collusion” between his campaign and Russia and the president’s insistence that he had been exonerated from a possible obstruction of justice charge. These comments, Walton said, appeared bolstered by Barr’s description of Mueller’s findings during a DOJ news conference — before the public and media could read the document for themselves.

“It’d seem to be inconsistent with what the report itself said,” Walton said. The judge also cited a letter Mueller’s office sent to Barr questioning the attorney general’s decision to release a four-page summary of the investigation’s conclusions that “did not fully capture the context, nature and substance” of the report.

Separately on Monday, Walton raised questions about a DOJ submission defending the agency’s decision to black out large portions of the Mueller report.

“I also worked for the department,” Walton said. “Sometimes the body does what the head wants.”

I thought I’d lay out what I would do if I were Judge Walton. I’d make different decisions if I were a judge, but having covered some of his biggest confrontations with an expansive Executive, I’m pretending I can imagine how he’d think.

I’m doing this not because I think he’ll follow my guidance, but to establish what I think might be reasonable things to imagine he’ll review for unsealing.

Unseal the discussions of how Donald Trump père and fils avoided testifying to the grand jury

As I have noted, there are two passages apiece that describe how Donald Trump Sr and Donald Trump Jr avoided testifying to the grand jury. While they might discuss the grand jury’s interest in subpoenaing the men, and while they might (both!) say that the men would invoke the Fifth if forced to show up and invoke it, those passages likely don’t describe that the men did so.

Particularly given Jr’s willingness to testify to Congressional committees that likely don’t have all the documents from Trump Organization that Mueller had, those passages should be unsealed unless they involve real grand jury decisions.

Unseal the names of Trump flunkies against whom investigations were opened in October 2017

The most obviously dishonest thing Bill Barr did in releasing the Mueller Report is claim that those against whom prosecutions were declined were peripheral people. At least one person (and up to three people) in this passage is not: Don Jr. Walton should unseal these names, especially given that Barr lied about how peripheral, at least, the President’s son is.

Review the longer descriptions of those who lied but weren’t charged

There are up to three people that Mueller appears to have considered for perjury charges (page 194 and two people on page 199) and at least one more whom he considered charging for false statements. Some of the discussion of the people in the former category include non grand jury material as well.

If I were Walton, I’d review this entire section and (treating Roger Stone separately) would unseal at least the names of the senior Trump officials not charged (one is KT McFarland). Given the treatment of Jeff Sessions — whose prosecution declination was not sealed — DOJ has already treated people inconsistently in this section.

Review the declinations starting on page 176, page 179, and page 188 for possible unsealing

There are three declinations that are candidates for unsealing. The most important — which describes the office’s consideration of charging WikiLeaks’ releases of stolen emails as an illegal campaign donation — is the last one. It raises real campaign finance questions and would feed right into impeachment.

The charging decision on page 179 may explain why Don Jr wasn’t charged for sharing a link to a non-public site releasing stolen emails (but it could also pertain to someone no one knows who tried to hack Guccifer 2.0). If it’s the former, if I were Walton, I might consider unsealing that.

The most interesting charging decision, starting on page 176, may explain why WikiLeaks wasn’t charged, why Stone wasn’t or why others were not. If it’s WikiLeaks, it’s the kind of decision already made public in the recent SDNY decision and could be released. In any case, that’s a redaction that likely would be worth Walton’s judicial consideration.

Order that Roger Stone sections be unsealed if there’s a substantive change in his gag order

A huge chunk of the remaining redactions pertain to Roger Stone or his trial. They also are among the most damning to Trump, as they implicate him personally in trying to make the most of Russia’s effort to help him. I, as Marcy Wheeler, would love to see them, today.

But Reggie Walton, who presumably eats lunch with Amy Berman Jackson in the DC District Judges cafeteria, will also recognize the difficulties she faces in seating a jury for the trial of the President’s rat-fucker in November. So unless something changes to the status quo — in which ABJ has imposed a strict gag on Stone — then I suspect he’ll cede to her judgment.

And, frankly, anyone who’d like to see Stone face some kind of repercussions for his rat-fuckery should also support him getting a fair trial, meaning they should support the continued sealing.

That doesn’t stop Walton from ordering that if something changes — if Stone wins an appeal he announced today to get his gag overturned, if Trump pardons Stone, or if Stone pleads — then the sections will automatically become unsealed. One of the biggest ways Trump can avoid all repercussion for his efforts to optimize the release of stolen information is to have Stone avoid trial (either by pleading or being pardoned) but preventing a reconsideration of redactions done to protect his right to a fair trial.

Leave national security sections sealed because I’m Reggie Walton

I and many others would love to see more of the IRA and GRU sections (though there’s a gag in the IRA case now too), especially those sections about how GRU passed on materials to WikiLeaks.

But I’m not Reggie Walton. While he’s very happy to take on an expansive Executive, he generally shows significant deference for claims of national security. Thus, I expect he’ll likely leave this stuff sealed.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

The Parts of the Mueller Report withheld from Roger Stone Show the Centrality of His WikiLeaks Activities to Trump’s Obstruction

Along with denying most of Roger Stone’s frivolous challenges to his prosecution, Amy Berman Jackson also partly granted his motion to get some of the redacted Mueller Report. As she laid out, she permitted the government to withhold grand jury information, sources and methods, stuff that would harm the reputation of others, and prosecutorial deliberations.

But the Court was of the view that the Report of the Special Counsel should receive separate consideration since a great deal of deliberative material within the Report had already been released to the public.

[snip]

Having considered the defendant’s motion, the government’s response and supplemental submissions, and the Report itself, the Court has determined that the defense should have the limited access he requested to some, but not all, of the redacted material.32 Insofar as defendant’s motion to compel seeks any material that was redacted from the public report on the basis that its release would infringe upon the personal privacy of third parties or cause them reputational harm; pursuant to Federal Rule of Criminal Procedure 6(e); or on the basis of national security or law enforcement concerns, including information that if revealed, could potentially compromise sensitive information gathering sources, methods, or techniques or harm ongoing intelligence or law enforcement activities, the Court will deny the motion.33 With respect to material that was withheld solely on the basis that its release could affect the ongoing prosecution of this case, the Court has concluded that the material to be specified in the order issued with this opinion should be provided to counsel for the defendant subject to the terms and conditions of the Protective Order in this case.

As she described, the government “submit[ed] unredacted portions of the Report that relate to defendant ‘and/or “the dissemination of hacked materials.”‘” Then she and the government conducted a sealed discussion about what could be released to Stone. In addition to her opinion, she submitted an order describing which specific pages must now be released to Stone.

We can compare what the government identified as fitting her order — this includes anything that fits the order, whether redacted or not — with what she has ordered released to Stone (note, the government either did not include Appendix D, showing referrals, or ABJ didn’t mention it, because in addition to an unredacted reference to Stone, there are referrals that the FOIA copies show to be related to Stone; nor did it include questions to Trump).

ABJ has not ordered the government to turn over anything pertaining to how GRU got stolen documents to WikiLeaks. This is precisely the kind of thing Stone is trying to get with his demands for Crowdstrike reports; after ABJ pointed out if they really wanted the reports, they would have tried subpoenaing Crowdstrike and they are now launching an attempt to do that. That ABJ has not ordered the government to turn this material over does not bode well for Stone’s plans to make this trial about the hack-and-leak rather than his lies. I would not be surprised if Stone made a second effort to get this information.

She has permitted the government to withhold all the prosecutorial decisions covered by her order except the one pertaining to Stone’s own lies. In addition, she let the government withhold one line about how they hadn’t determined whether or not Stone and Corsi had managed to optimize the release of the Podesta emails in October (though she did give Stone the more detailed discussion of that).

But ABJ has not included any of the references in the main part of Volume II in her order (presumably to protect Trump’s reputation!). That Volume includes three references to Trump and the campaign’s enthusiasm for or attempts to optimize the WikiLeaks releases through Stone, the reference to Richard Burr leaking news of the targets of the investigation (including Stone) to the White House before Jim Comey got fired, and three instances describing Trump floating pardons to Stone or otherwise encouraging him to remain silent.

It also includes the page on which this passage appears:

After Flynn was forced to resign, the press raised questions about why the President waited more than two weeks after the DOJ notification to remove Flynn and whether the President had known about Flynn’s contacts with Kislyak before the DOJ notification.244 The press also continued to raise questions about connections between Russia and the President’s campaign.245 On February 15, 2017, the President told reporters, “General Flynn is a wonderful man. I think he’s been treated very, very unfairly by the media.”246 On February 16, 2017, the President held a press conference and said that he removed Flynn because Flynn “didn’t tell the Vice President of the United States the facts, and then he didn’t remember. And that just wasn’t acceptable to me.” 247 The President said he did not direct Flynn to discuss sanctions with Kislyak, but “it certainly would have been okay with me if he did. I would have directed him to do it if I thought he wasn’t doing it. I didn’t direct him, but I would have directed him because that’s his job.”248 In listing the reasons for terminating Flynn, the President did not say that Flynn had lied to him.249 The President also denied having any connection to Russia, stating, “I have nothing to do with Russia. I told you, I have no deals there. I have no anything.”250 The President also said he “had nothing to do with” WikiLeaks’s publication of information hacked from the Clinton campaign.251 [my emphasis]

Clearly, it was included for Trump’s public denials — at the moment he fired Flynn in an attempt to stop the Russian investigation — of having anything to do with WikiLeaks’ publication of materials stolen from Hillary’s campaign. It is, on its face, a reference to the publication of the stolen emails, and as such qualifies under ABJ’s order. At that level, it is unremarkable.

But the government is treating it not as Trump making empty denials, but instead to make a claim specifically disavowing any involvement in WikiLeaks’ publication of stolen emails. Mueller’s team put the claim right next to a claim we know to be false, a claim designed to hide his Trump Tower deals. And he put all that amid a discussion of why he first did not, and then did, fire Mike Flynn.

Now consider something else: While it doesn’t appear in the Mueller Report at all, one thing Flynn told prosecutors was that after WikiLeaks started dumping John Podesta’s emails, he took part in conversations during which the campaign discussed reaching out to WikiLeaks.

The defendant also provided useful information concerning discussions within the campaign about WikiLeaks’ release of emails. WikiLeaks is an important subject of the SCO’s investigation because a Russian intelligence service used WikiLeaks to release emails the intelligence service stole during the 2016 presidential campaign. On July 22, 2016, WikiLeaks released emails stolen from the Democratic National Committee. Beginning on October 7, 2016, WikiLeaks released emails stolen from John Podesta, the chairman of Hillary Clinton’s 2016 presidential campaign. The defendant relayed to the government statements made in 2016 by senior campaign officials about WikiLeaks to which only a select few people were privy. For example, the defendant recalled conversations with senior campaign officials after the release of the Podesta emails, during which the prospect of reaching out to WikiLeaks was discussed.

There’s nothing in the public record that suggests Flynn knew of Trump’s efforts, during the campaign, to build a Trump Tower. But he did know about Trump’s efforts to optimize WikiLeaks’ releases of stolen emails. And Trump would have known that when he considered the impact of Flynn’s ties to Russia being investigated by the FBI.

And the treatment of that references as a real denial — as Trump evincing guilt even as he fired Flynn — sure makes the Flynn firing more interesting.

image_print