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Category: Mueller Probe - emptywheel

March 19, 2019 / by 

 

The (Unsealed Parts of the) Michael Cohen Investigation

As noted, the search warrants leading up to and used in the April 9 search of Michael Cohen have been partly unsealed. In this post, I want to lay out what we know about how the investigation into Cohen developed.

On July 18, 2017, Mueller’s team got a warrant on Michael Cohen’s Google activity from January 1, 2016 to July 18, 2017, for which they would already have obtained the call records showing whom he was emailing when using it and a preservation order. At the time, they were investigating:

  • Conspiracy
  • False statements to a financial institution
  • Money laundering
  • Acting as an unregistered foreign agent
  • FARA violations

On August 8, 2017, Mueller’s team got a warrant for Cohen’s iCloud account.

On November 13, 2017, they got a warrant for activity associated with a business account, MCDPC, which was hosted by 1&1, as well as for Cohen’s Gmail account going back to June 1, 2015. On November 7, 2017 and January 4, 2018, Mueller got pen registers to obtain records of everyone Cohen was talking to in real time.

While sorting through that evidence, they appear to have discovered more of the bank fraud associated with his taxi medallions.

On February 2, 2018, Mueller provided SDNY a subset of content from Cohen’s iCloud. On February 8, 2018, Mueller referred some of the crimes they were investigating to SDNY, including the taxi medallion payments and other money laundering, and handed them a USB drive with the stuff obtained in those earlier email warrants (but not yet the iCloud one). That month, SDNY got some of the emails turned over as hard copies from third parties using a subpoena, and accessed the toll records for the emails. Before accessing the content, on February 16, 2018, SDNY got a d-order for header information for the two accounts handed over by Mueller. They also interviewed and acquired emails from a number of employees at Sterling, from whom Cohen was getting a loan. Then, on February 28, 2018, SDNY submitted affidavits to access the content handed over from Mueller and to obtain everything in the accounts from the interim period (that is, since November 14), as well as another Gmail and AOL account associated with the taxi medallion related bank fraud.

This suggests that while they had found his Essential Consultants bank account and recognized that he was using it for things he hadn’t informed the bank about, they were not yet focusing on hush payments as an illegal campaign donation.

On March 7, 2018, Mueller handed over the iCloud material to SDNY.

In early April, SDNY started a slew of legal process leading up to its search of Cohen’s properties.

According to the letter associated with this release, they got a warrant for out of jurisdiction materials on April 5 (reportedly for stuff held overseas). I’m still trying to find that in the attachments.

Then, on April 7, 2018, it obtained a warrant to search the existing collection for material related to illegal campaign finance.

Also on April 7, SDNY got a warrant for prospective and historical location data associated with Cohen’s AT&T phones for the periods from October 1, 2016 to November 8, 2016 and January 1, 2018 to present. The campaign finance crimes were the only ones specified in this warrant.

On April 8, SDNY got a warrant for Cohen’s condo, office, safe deposit box, and hotel, as well as two iPhones. This covered all the crimes to which Cohen pled guilty in SDNY, as well as his sleazy influence peddling with BTA, KAI, AT&T, and Novartis, but not Columbus Nova (I’ll return to this). They also got a warrant to use a Stingray to figure out which room he was in at the hotel (like the location searches on his phone, this was just for his campaign finance crimes). Then, on April 9, they went back and got another warrant for the specific room at Loews hotel.

In the materials from SDNY, some names are redacted. The biggest redactions (suggesting ongoing investigation) pertain to the campaign finance crimes, meaning Trump and Trump Organization are in trouble. There may also be redacted material associated with Cohen’s sleazy influence peddling.

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. 


By July 18, 2017, Mueller Had Probable Cause Michael Cohen Was an Unregistered Foreign Agent

SDNY has released the warrants behind his April 9 raid, which are here. They actually include a series of warrants, showing how first Mueller got warrants, then handed parts of the investigation over to SDNY, which then obtained its own warrants tied to the crimes they were investigating. These two affidavits (one, two) are the ones showing that hand-off — basically SDNY asking, on February 28, 2018, for access to email accounts and storage devices that Mueller had already accessed. The second one describes Mueller’s first warrant on Cohen to be dated July 18, 2017.

The same affidavit describes the crimes listed in the earlier warrants. Among those crimes — unsurprisingly — was conspiracy to defraud the US. More surprising, however, are 18 USC §§ 951 (acting as an unregistered foreign agent) and 611 (FARA).

The latter may be tied to Cohen’s work with a Kazakhstan bank (BTA Bank) and Korean airspace company (Korea Aerospace Industries) — which were basically his efforts to monetize his ties to Trump after the election. These were the deals that Republicans made such a big deal about when Cohen testified to the Oversight Committee.

In addition, Cohen was working for Columbus Nova, which was ultimately controlled by Victor Vekselberg. That would be of immediate concern for the question of Russian influence.

The 951 charge, however, is more interesting. It could relate to the same thing (basically arguing that because he was working for instrumentalities of foreign countries, he was their agent — basically a “soft” spy). Or it could relate to his efforts to negotiate a Trump Tower deal for Trump. Note that the November 13 warrant basically extended the first warrant back to June 1, 2015, which would we know would cover the Trump Tower deal (and precede any tie to BTA or KAI).

951 is a charge I always suspected might be used with Paul Manafort (it still might), or even Jared Kushner. But it appears that Mueller’s worries about Trump’s closest associates acting as spies wasn’t limited to Manafort and Flynn, but extended, too, to his personal lawyer. And Mueller already had evidence of that fact by July 18, 2017.

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. 


“I Can’t Be Seen Taking Credit for HIS Victory:” The Purpose of Roger Stone’s Paperback

Towards the end of the day on January 14, amid a three day stint writing the 3,000 word introduction that would justify reissuing his 2016 book, Making of the President, Roger Stone rejected the title suggested by his publisher, Skyhorse Publishing, “The Myth of Collusion; The Inside Story of How I REALLY Helped Trump Win.” He suggests instead, “The Myth of Collusion; The Inside Story of How Donald Trump really won,” noting, “I really can’t be seen taking credit for HIS victory.”

That’s the title the book now bears.

That exchange — and a number of other ones revealed in the correspondence Stone’s lawyers submitted in an attempt to persuade Judge Amy Berman Jackson they weren’t just trying to get publicity for the book when asking for a “clarification” regarding the book on March 1 — raises interesting questions about why he reissued the book how and when he did.

On one level, the explanation is easy: his publishers expected the original book, Making of the President, would be a big seller. They made 100,000 copies when it first came out in January 2017. The book flopped.

So in November 2018, Stone’s rising notoriety — and more importantly, the increased polarization surrounding the Mueller probe — provided an opportunity to recoup some of the losses on the hardcover. At that level, the reissue needs no explanation other than the obvious formula publishers use to make money: Exacerbate and profit off of controversy.

But that doesn’t explain why the project started on November 15, 2018 rather than any time in the year and a half earlier, when Skyhorse would have all those same goals. Nor does it explain how Stone went from expressing no interest in the project to rushing it through quickly in mid-December.

Given the timeline of events and a few stray comments in the correspondence (as I laid out here, Stone has probably withheld at least eight exchanges with his publisher from the court submission, after letting the publisher review what correspondence was there), I think he’s got several other purposes.

As noted below, Skyhorse first approached Stone on November 15, in the wake of the Democrats winning the House in midterm elections. On January 14, Skyhorse president Tony Lyons suggests that “We can send copies [of the book] to all U.S. Senators.” Those two details suggest that Skyhorse intended the book, on top of the obvious financial incentives, to capitalize on the general right wing campaign to discredit the Mueller investigation in an effort to stave off impeachment.

The delay between the time — on November 15 — when Skyhorse first pitched the reissue and the time — mid-December — when Stone and his lawyer, Grant Smith, start engaging in earnest suggests two other factors may be in play.

First, while Stone had been saying that Mueller would indict him for months, the aftermath of the Corsi “cooperation” starting on November 26 made Stone’s jeopardy more immediate. Yes, Corsi’s attempt to make his own cooperation useless may have delayed Stone’s indictment, but the details Corsi described to be in his own forthcoming Mueller-smearing book made it clear the Special Counsel believed Stone had successfully affected the timing of the release of the John Podesta emails on October 7, 2016, in a successful attempt to dampen some of the impact of the Access Hollywood video.

That’s why the specific content of the new introduction Stone finished on January 13, 2019, which he notes is more substantive than Skyhorse initially planned, is of interest. In the introduction, Stone:

  • Describes learning he was under investigation on January 20, 2017
  • Discounts his May 2016 interactions with “Henry Greenberg” — a Russian offering dirt on Hillary Clinton — by claiming Greenberg was acting as an FBI informant
  • Attributes any foreknowledge of WikiLeaks’ release to Randy Credico and not Jerome Corsi or their yet unidentified far more damning source while disclaiming any real foreknowledge
  • Gives Manafort pollster, Tony Fabrizio, credit for the decision to focus on Michigan, Wisconsin, and Pennsylvania in the last days of the election
  • Mentions Alex Jones’ foreboding mood on election night
  • Accuses Trump of selling out to mainstream party interests, choosing Reince Preebus over Steve Bannon
  • Blames Jeff Sessions for recusing from the Russian investigation
  • Harps on the Steele dossier
  • Dubiously claims that in January 2017, he didn’t know how central Mueller’s focus would be on him
  • Suggests any charges would be illegitimate
  • Complains about his financial plight
  • Falsely claims the many stories about his associates’ testimony comes from Mueller and not he himself
  • Repeats his Randy Credico cover story and discounts his lies to HPSCI by claiming his lawyers only found his texts to Credico after the fact
  • Suggests Hillary had ties to Russia
  • Notes that Trump became a subject of the investigation after he fired Jim Comey

Some of this is fairly breathtaking, given that Corsi’s theatrics had long ago proven Stone’s Credico cover story to be false. But of course, by the time Stone wrote this, he knew that he was at risk at a minimum for false statements charges, so he was stuck repeating the long-discredited HPSCI cover story. Which may be why his attorney, Grant Smith, provided some edits of the introduction on January 15 (something Smith should have but did not disclose in the filing to Amy Berman Jackson). Stone will now be stuck with this cover story, just as Corsi is stuck with the equally implausible cover story in his book.

But to some degree, that’s clearly one purpose this introduction serves: to “retake the narrative” (as Skyhorse’s editor Mike Campbell described it when pitching Stone on the project) and try to sell at least frothy right wingers on his cover story.

Another is to make money. Stone’s first response — over three weeks after Skyhorse first floated the paperback project — was to complain that because the publisher printed way too many copies of the hard cover, which was done as part of a joint venture, he made no money off the deal (a claim that Skyhorse corrects, slightly, in the follow-up). That’s why Skyhorse ended the joint venture: to mitigate the risk to Stone and by doing so to convince him to participate in the project.

More interesting — given the January stories suggesting that Jerome Corsi may have gotten a six month severance deal as part of a bid to have him sustain Stone’s cover story — is that Stone seemingly reversed his opinion about doing the project between December 9, when he said he was uninterested, and Monday, December 17, when Smith said they were ready to move forward, because Stone urgently needed money by the next day to pay off his collaborators in the book project.

From the public record, I’m actually fairly confused about who these collaborators are. A number of them would be the witnesses interviewed by Mueller’s grand jury.

But the book itself — because it retains the Acknowledgements section from the original — thanks Corsi third, after only Richard Nixon and Juanita Broaddrick, and lauds what Stone calls Corsi’s “investigative report[ing].”

Remember: A key product of that “investigative reporting” was the report Stone asked Corsi to write on August 30, 2016, to invent a cover for why he was discussing John Podesta and Joule Holdings in mid-August 2016. Things had already gone to hell by the time this book was released in e-book form on February 18 and they (appear to) have continued to disintegrate since then.

But I am very interested in who Stone paid off with that urgently wired payment in December. And because it happened before Stone was raided on January 25, Mueller likely knows the answer, if he didn’t already.

Which brings me to the last likely purpose of this paperback, one that goes to the core of whether Stone was trying to publicize its release with his little stunt about “clarifying” whether or not it would violate his gag.

Stone’s decision to do this paperback came not long after Stone repeated a formula other Trump associates bidding for a pardon have engaged in: promise publicly you won’t testify against Trump, then deny you’re asking for a pardon.

[T]here’s no circumstance under which I would testify against the president because I’d have to bear false witness against him. I’d have to make things up and I’m not going to do that. I’ve had no discussion regarding a pardon.

The next day, Trump let Stone and all the world know he had gotten the message.

Every person who is bidding for a Trump pardon is doing whatever they can — from reinforcing the conspiracy theories about the genesis of the investigation, to declaring ABJ found “no collusion” minutes after she warned lawyers not to make such claims, to sustaining embarrassingly thin cover stories explaining away evidence of a conspiracy — to hew to Trump’s strategy for beating this rap. Indeed, the Michael Cohen lawsuit claiming Trump stopped paying promised legal fees as soon as Cohen decided to cooperate with prosecutors suggests Trump’s co-conspirators may be doing this not just in hopes of a pardon, but also to get their legal fees reimbursed.

Which brings me back to Stone’s concern that the title, “The Myth of Collusion; The Inside Story of How I REALLY Helped Trump Win” would suggest he was taking credit for Trump’s win.

There are two reasons why such an appearance might undermine Stone’s goals for the book.

Stone has loudly claimed credit for his role in Trump’s victory, particularly as compared Steve Bannon. And evidence that will come out in his eventual trial will show him claiming credit, specifically, for successfully working with WikiLeaks.

Of course, Trump is a narcissist. And the surest way to piss him off — and in doing so, ruin any chance for a pardon — is to do anything to suggest he doesn’t get full credit for all the success he has in life.

But there may, in fact, be another reason Stone was quick to object to getting credit for all the things he did to get Trump elected.

At least according to Jerome Corsi, Stone, on indirect orders from Trump, took the lead in trying to learn about and with that knowledge, optimize the release of the materials Russia stole from Hillary’s campaign. If non-public details about what Stone did — or even the public claim that Stone managed the timing of the Podesta email release — had a bigger impact on the election outcome than we currently know, then Stone would have all the more reason to want to downplay his contribution.

That is, if Stone’s efforts to maximize the value of Russia’s active measures campaign really were key, then the last thing he’d want to do is release a paperback crowing about that.

Of course, because of the boneheaded efforts of his lawyers, his concerns about doing so are now public.

Update: I’ve corrected my characterization of Skyhorse. They’re not ideological. But they do feed off of controversy.


October 30, 2018: ABC reports that Stone hired Bruce Rogow in September, a First Amendment specialist who has done extensive work with Trump Organization.

October 31, 2018: Date Corsi stops making any pretense of cooperating with Mueller inquiry.

November 6, 2018: Democrats win the House in mid-term elections.

November 7, 2018: Trump fires Jeff Sessions, appoints Big Dick Toilet Salesman Matt Whitaker Acting Attorney General.

November 8, 2018: Prosecutors first tell Manafort they’ll find he breached plea deal.

November 12, 2018: Date Corsi starts blowing up his “cooperation” publicly.

November 14, 2018: Date of plea deal offered by Mueller to Corsi.

November 15, 2018: Mike Campbell pitches Stone on a paperback — in part to ‘retake the narrative — including a draft of the new introduction.

November 18, 2018: Jerome Corsi writes up his cover story for how he figured out John Podesta’s emails would be released.

November 20, 2018: After much equivocation, Trump finally turns in his written responses to Mueller.

November 21, 2018: Dean Notte reaches out to Grant Smith suggesting a resolution to all the back and forth on their joint venture, settling the past relationship in conjunction with a new paperback.

November 22, 2018: Corsi writes up collapse of his claim to cooperate.

November 23, 2018: Date Mueller offers Corsi a plea deal.

November 26, 2018: Jerome Corsi publicly rejects plea deal from Mueller and leaks the draft statement of offense providing new details on his communications with Stone.

November 26, 2019: Mueller deems Paul Manafort to be in breach of his plea agreement because he lied to the FBI and prosecutors while ostensibly cooperating.

November 27, 2018: Initial reports on contents of Jerome Corsi’s book, including allegations that Stone delayed release of John Podesta emails to blunt the impact of the Access Hollywood video.

November 29, 2018: Michael Cohen pleads guilty in Mueller related cooperation deal.

December 2, 2018: Roger Stone claims in ABC appearance he’d never testify against Trump and that he has not asked for a pardon.

December 3, 2018: Trump hails Stone’s promise not to cooperate against him.

December 9, 2018: Stone replies to Campbell saying that because he never made money on Making of the President, he has no interest.

December 13, 2018: Tony Lyons and Grant Smith negotiate a deal under which Sky Horse would buy Stone out of his hardcover deal with short turnaround, then expect to finalize a paperbook by mid January. This is how Stone gets removed from the joint venture — in an effort to minimize his risk.

December 14, 2018: Mueller formally requests Roger Stone’s transcript from House Intelligence Committee.

December 17, 2018: Smith, saying he and Stone have discussed the deal at length, sends back a proposal for how it could work. This is where he asks for payment the next day, to pay someone off for work on the original book.

For some reason, in the ensuing back-and-forth, Smith presses to delay decision on the title until January.

December 19, 2018: It takes two days to get an agreement signed and Stone’s payment wired.

December 20, 2018: HPSCI votes to release Stone’s transcript to Mueller.

January 8, 2019: Paul Manafort’s redaction fail alerts co-conspirators that Mueller knows he shared polling data with Konstantin Kilimnik.

January 13, 2019: Stone drafts new introduction, which he notes is “substantially longer and better than the draft sent to me by your folks.” He asks about the title again.

January 14, 2019: Stone sends the draft to Smith and Lyons. It is 3386 words long. Lyons responds, suggesting as title, “The Myth of Collusion; The Inside Story of How I REALLY Helped Trump Win.” Lyons also notes Stone can share the book with Senators.

Stone responds suggesting that he could live with, “The Myth of Collusion; The Inside Story of How Donald Trump really won,” noting, “I really can’t be seen taking credit for HIS victory.”

By end of day, Skyhorse’s Mike Campbell responds with his edits.

January 15, 2019: The next morning, Smith responds with his edits, reminding that Stone has to give final approval. Stone does so before lunch. Skyhorse moves to working on the cover. Late that day Campbell sends book jacket copy emphasizing Mueller’s “witch hunt.”

January 15, 2019: Mueller filing makes clear that not all Manafort’s interviews and grand jury appearances involve him lying.

January 16, 2019: Tony Lyons starts planning for the promotional tour, asking Stone whether he can be in NYC for a March 5 release. They email back and forth about which cover to use.

January 18, 2019: By end of day Friday, Skyhorse is wiring Stone payment for the new introduction.

January 24, 2019: Mike Campbell tells Stone the paperback “is printing soon,” and asks what address he should send Stone’s copies to. WaPo reports that Mueller is investigating whether Jerome Corsi’s “severance payments” from InfoWars were an effort to have him sustain Stone’s story. It also reports that Corsi’s stepson, Andrew Stettner, appeared before the grand jury. That same day, the grand jury indicts Stone, but not Corsi.

January 25, 2019, 6:00 AM: Arrest of Roger Stone.

January 25, 2019, 2:10 PM: Starting the afternoon after Stone got arrested, Tony Lyons starts working with Smith on some limited post-arrest publicity. He says Hannity is interested in having Stone Monday, January 28 “Will he do it?” Smith replies hours later on the same day his client was arrested warning, “I need to talk to them before.”

January 26, 2019: Lyons asks Smith if Stone is willing to do a CNN appearance Monday morning, teasing, “I guess he could put them on the spot about how they really go to this house with the FBI.”

January 27, 2019: Smith responds to the CNN invitation, “Roger is fully booked.” When Lyons asks for a list of those “fully booked” bookings, Smith only refers to the Hannity appearance on the 28th, and notes that Kristin Davis is handling the schedule. Davis notes he’s also doing Laura Ingraham.

January 28, 2019: The plans for Hannity continue on Monday, with Smith again asking for the Hannity folks to speak to him “to confirm the details.” In that thread, Davis and Lyons talk about how amazing it would be to support “another New York Times Bestseller” for Stone.

February 15, 2019: After two weeks — during which Stone was indicted, made several appearances before judges, and had his attorneys submit their first argument against a gag — Stone responded to Campbell’s January 24 email providing his address, and then asking “what is the plan for launch?” (a topic which had already been broached with Lyons on January 16). Campbell describes the 300-400 media outlets who got a review copy, then describes the 8 journalists who expressed an interest in it. Stone warns Campbell, “recognize that the judge may issue a gag order any day now” and admits “I also have to be wary of media outlets I want to interview me but don’t really want to talk about the book.”

February 18, 2019: Release of ebook version of Stone’s reissued book.

February 21, 2019: After Stone released an Instagram post implicitly threatening her, Amy Berman Jackson imposes a gag on Stone based on public safety considerations.

March 1, 2019: Ostensible official release date of paperback of Stone’s book. Stone submits “clarification” claiming that the book publication does not violate the gag.

March 12, 2019: Official release date of Corsi hard cover, which Mueller may need for indictment.

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 “at Least One Other District” Mike Flynn’s Cooperation Live In

The other day, I described the graymail that former Mike Flynn sleazy influence peddling partner, Bijan Kian, was engaged in. In an effort to identify all the lies Flynn told to discredit him on the stand, his defense team was asking for all his 302s (FBI interview reports). Yesterday, the judge gave Kian a partial victory, ordering him to come up with a specific list of things they still want.

The response is still graymail — they want documents that will embarrass Trump and disclose some of the most sensitive parts of Mueller’s investigation — but not as excessive as it could have been. Among the things they’re asking for are:

  • Details of whether he told DIA about a 2015 meeting with Sergey Kislyak and payments from RT, Kaspersky, and Volga-Dnepr Airlines.
  • A description of the reasons Flynn got fired from DIA in 2014.
  • Details of Flynn’s contact with Kirill Dmitriev and other Russian officials following the election, and whether those were reported to DIA.

Now, this graymail attempt seems to be more focused on revealing that Flynn is nowhere near as honorable as the title he’d use at trial, General, would otherwise indicate. There’s a reason Turkey picked Flynn to run their anti-Gulen campaign, and it’s that he’s willing to trade his values to make a buck, and these documents will help demonstrate that. The government may still want to delay handing these documents over.

That said, details disclosed in the hearing (CNN, Politico, CNS) suggest there may be parts of Flynn’s cooperation beyond those embarrassing details relating to the Mueller probe, parts that wouldn’t be included in Kian’s discovery request.

First, the government revealed that there are 19 Flynn 302s, of which 15 are from Mueller’s office.

In all, the Virginia prosecutors say they have 19 memos from Flynn’s cooperation –15 from the special counsel’s office and four from the Turkish lobbying investigation in Virginia.

“We do not want those 302s leaving the office” of the Virginia US attorney inside the courthouse, Gillis said

More interestingly, AUSA James Gillis at first said those other 302s pertain to investigations in more than one other US Attorney district, only to correct himself and say they pertained to at least one other district.

The prosecutor in court Friday stopped himself after he acknowledged other US attorneys may be looking at what Flynn shared with the special counsel.

“At least one other district,” he said, correcting himself after first saying “districts,” before asking to withdraw his statement in court representing the number of ongoing investigations.

Some thoughts on what this new information might mean.

The government is pretty sensitive about the 302s pertaining even to this case, asking that Kian’s attorneys review them at the EDVA US Attorney’s office, not share them with other counsel, not copy them, and not quote from those not identified as Jencks material at trial without permission.

This may, in part, be an effort to keep the documents out of the hands of Ekim Alptekin, the other defendant charged with Kian, who is back in Turkey.

As of Thursday, Kian’s team had seen just “several” and therefore not all four of the Flynn 302s pertaining to this investigation.

To be perfectly clear, the government has already permitted the defense to review a number of 302s, including several 302s of General Flynn. We have offered upon reasonable conditions to give the defense an opportunity to review all of the General’s 302s that were generated during its investigation of the crimes charged in the indictment,1 as well as the 302s for all but one2 of the other witnesses interviewed in connection with the present charges.

1. The conditions the government requested are listed in the attachment. We offered to negotiate these terms, but we have not heard from the defense. It is interesting, therefore, that the defense has filed this motion for all of General Flynn’s unrelated 302s when that have not even taken the opportunity to review those actually relevant to this prosecution.

2 This individual’s identity is being protected for the time being to prevent any reprisals or tampering involving the witness.

In addition, some of the 302s deemed to belong to the Mueller investigation mentioning Kian or Alptekin or other entities involved in the conspiracy.

Under similar conditions, we have invited the defense to review redacted versions of General Flynn’s 302s that contain any mention the defendants or any reference to the other individuals or entities involved in the charged conspiracy – regardless of whether they relate to this prosecution or to other investigations by the Special Counsel’s Office.

This suggests there’s more of a Turkish part of the Mueller investigation than previously reported.

Remember that in Flynn’s initial FBI 302 (which must be additional to the 19 capturing interviews while he was cooperating), he explained away his December 29, 2016 conversation with Sergey Kislyak to the FBI by claiming they were talking about a Syrian peace conference in Astana, Kazakhstan.

The redactions in Flynn’s 302 included two passages on Flynn’s December 29, 2016 phone calls with Ambassador Kislyak. In the first, Flynn offered up that he and Kislyak had discussed two things: a phone call with Vladimir Putin that would take place on January 28, and whether the US would send an observer to Syrian peace talks Turkey and Russia were holding in Kazakhstan the next month.

[snip]

The claim that those Kislyak phone calls discussed a later call with Putin and the Astana conference is the same one the Transition would offer to the WaPo the day after David Ignatius made clear that the FBI had recordings of the call. Mueller’s reply to Flynn’s sentencing memo describes that Flynn asked a subordinate to feed this information to the WaPo.

[snip]

Flynn’s lies to cover the discussion about sanctions and expulsions were not entirely invented; he’s a better liar than that. The Transition really was struggling over its decision of whether to join in a Syrian peace plan that would follow Russia (and Turkey’s lead) rather than the path the Obama Administration had pursued in the previous year. As he noted to the FBI, the Trump Administration had only decided not to send a senior delegation to Astana earlier that week. It was announced on January 21.

[snip]

But by staking his lies on the Astana conference — and the Trump Administration’s willingness to join a Syrian effort that deviated from existing US policy — Flynn also raised the stakes of his past paid relationship with Turkey. It became far more damaging that Flynn had still been on the Turkish government payroll through the early transition, when Trump directed him to conduct early outreach on Syria. So even while DOJ was repeatedly telling Flynn he had to come clean on his Turkish lobbying ties, he lied about that, thereby hiding that the early days of Trump Administration outreach had been conducted by a guy still working for Turkey.

Under similar conditions, we have invited the defense to review redacted versions of General Flynn’s 302s that contain any mention the defendants or any reference to the other individuals or entities involved in the charged conspiracy – regardless of whether they relate to this prosecution or to other investigations by the Special Counsel’s Office.

In other words, there appear to be parts of the Mueller investigation pertaining to Turkey outside of Flynn’s sleazy influence peddling with Kian. Some of those may have been spun off (like so much else) to other districts (perhaps SDNY, where Reza Zarrab flipped).

Now consider the addendum to Flynn’s sentencing memo describing his cooperation (of which there was an ex parte version withheld even from Flynn). I’ve suggested the description of his cooperation (which covers the same 19 302s at issue in yesterday’s hearing, so there has been no new cooperation since December) is structured like this.

Between the three investigations, Flynn sat for 19 interviews with prosecutors.

Here’s the structure of how the body of the cooperation section describes the three investigations:

A Criminal Investigation:

11+ line paragraph

6.5 line paragraph

2 line paragraph

B Mueller investigation:

Introductory paragraph (9 lines)

i) Interactions between Transition Team and Russia (12 lines, just one or two sentences redacted)

ii) Topic two

10 line paragraph

9 line paragraph

C Entirely redacted investigation:

4.5 line paragraph

The description of the first and third investigations are both almost entirely redacted.

The description of his cooperation with the Mueller investigation is split into two topics — i) interactions between the transition team and Russians, plus another ii) redacted section.

Category A is almost certainly the Kian prosecution, which consists of 4 302s.

Category B, Mueller’s investigation, breaks down into what we know (transition related activities) and something else. Parts of that something else (which likely has to do with the Trump team’s serial efforts to monetize the presidency) may well have gotten spun off.

Then there’s Category c, which given what was said yesterday, seems to relate to Mueller but is of a different sort of information — I’ve suggested it may pertain to a general counterintelligence investigation into Russia, one that might live at DOJ’s National Security Division rather than a US Attorney’s office.

That still doesn’t tell us all that much — except that Flynn hasn’t cooperated further since December and the 3-part cooperation described in his cooperation memo may involved some complexity reflecting Turkish issues that were part  of the Mueller investigation as well as other topics (graft?) that could have been spun off.

Mueller may be close to done, but his investigation seems to have spin-offs that we haven’t even begun to hear of yet.

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. 


Lisa Page Confirms that the Trump Campaign Investigation Was Different than Russian Info Ops Investigation

In her interviews, Lisa Page confirms something I keep explaining, only to have people try to correct me. The Russian investigation into Trump’s campaign that got started in July 2016 did not, at first, include the GRU and Internet Research Agency activity that later got subsumed into the Mueller investigation. In her first interview, Page makes this clear in a response to John Ratcliffe insinuating, incorrectly, that reference to Obama’s interest in the FBI’s activities must be an attempt to tamper in the Clinton investigation.

Mr. Ratcliffe. Let me move on to a text message on September 2nd of 2016. It’s a series of texts that you exchanged with Agent Strzok. And at one point you text him: Yes, because POTUS wants to know everything we are doing.

[snip]

Ms. Page. It’s not about the Midyear investigation, if that’s the question. It has to do with Russia. It does not have to do with the Clinton investigation at all.

Mr. Ratcliffe. Okay. It does have to do with Russia, the Russia investigation?

Ms. Page. No, not the Russia investigation. It has to do with the broader look at Russian active measures.

She again makes that distinction regarding an August 5, 2016 text Strzok sent her.

Kim: Mr. Strzok wrote to you, quote: And hi. Went well. Best we could have expected other than, redacted, comma, quote, the White House is running this. Next text you stated–

Page: Yep.

Kim: –or, sorry, next text he stated, my answer, well maybe for you they are. And in response to these texts you wrote, yeah, whatever, re the White House comment. We’ve got emails that say otherwise. Do you remember what this meeting was about?

[snip]

Page: It is about — again, like the last time, it is about the broader intelligence community’s investigation of Russian active measures.

Kim: And not about the specific Russian collusion investigation?

Page: Definitely not.

In her second interview, Page was asked about whether Trump was included in the investigation during fall 2016, and Page describes the investigation at that point as “narrowly scoped.”

Kim: When we talk about the Russia collusion investigation in this timeframe, candidate Donald Trump is not the subject of that investigation, is that correct?

Page: That’s correct.

[snip]

So it was a very narrowly scoped, very discrete investigation because we understood the gravity of what it was we were looking at and we were not going to take a more extreme step than we felt we could justify.

Mark Meadows tries to suggest that the White House got briefed on the Trump investigation, and she corrects him.

Meadows; I think early on, August 5th, there’s the first original what we called at that time the Russia investigation briefing that happened. Peter Strzok comes back from [London], makes it just in time for you to have that. There’s a briefing that occurs on August 8th. And there’s a briefing with Denis McDonough at the White House where Jonathan Moffa and others attended.

[snip]

Page: But those were not about the Crossfire. To the best of my knowledge those were not —

Meadows: So they had nothing to do with any potential collusion between Russia and the Trump campaign? That was never mentioned?

Page: Not to my knowledge. It was always about the Russian active measures effort.

I keep harping on this point for several reasons. First, because when Republicans imagine — as they do here — that every negative comment Page and Peter Strzok made about a Russian investigation reflects bias against Donald Trump, they are unintentionally arguing that any criticism of Russian hacking by definition is a criticism of Trump. Meanwhile, they’re not considering why — sometime well after the Mueller investigation started — the Special Counsel had reason to subsume these other investigations.

But the problem with this misconception extends, too, to supporters of Mueller’s investigation. That’s because by conflating the larger counterintelligence investigation into Russian active measures with the more narrowly scoped (using Page’s description) investigation into Trump’s aides, the misinterpret the degree to which Mueller’s investigation stems from predicated investigations against individuals.

But don’t take my word for it. Take Lisa Page’s word for it.

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. 


Judge Amy Berman Jackson Lays the Precedent for FARA

I said while following yesterday’s live tweets of the Paul Manafort sentencing that, because so few FARA cases have been criminally prosecuted, Manafort’s will set some precedent going forward, as DOJ moves to put some prosecutorial teeth behind the law. So I wanted to look at the various things she said yesterday about it.

First, there’s the way she characterizes Manafort’s own actions. After calling out the way Manafort claims his entire life’s work has been about spreading democracy without actually presenting evidence to support the case (and leaving unstated the obvious fact that in fact he was more often serving dictators), she then notes that ultimately it was easier for him to get a win for his clients if he hid who he was working for.

The sentencing memorandum also states: Mr. Manafort has spent his life advancing American ideals and principles. It starts with his work on numerous political campaigns and positions within some of the administrations, and it goes on to say during his years outside of government service, Mr. Manafort also worked with world leaders. He has spent a lifetime promoting American democratic values and assisting emerging democracies to adopt reforms necessary to become a part of Western society.

At times he interacted with politicians and business people in emerging countries to assist in the development of American beliefs of equal justice, human rights, and free markets. There aren’t really any exhibits or letters that go along with that, so I don’t have the facts or the record before me that would permit me to either accept or question what is a very general description. It will fall to others in other settings to assess whether the way the defendant chose to market the access he gained during political campaigns and the work he did for the clients he represented has been characterized accurately. So it doesn’t factor into my consideration of the history and characteristics of the defendant.

[snip]

It may have been that in addition to thinking of his own finances, he had his clients’ ability to win in mind. He knew that revealing the true source behind the lobbying activities would have made those activities ineffective and unsuccessful, as the prosecutor said. Secrecy was integral. But that willingness to win at all costs was contrary to laws designed to ensure transparency in the political process and the legislative process. So it cannot possibly justify the behavior, particularly when there’s no question that this defendant knew better and he knew exactly what he was doing.

This is important background for how she distinguishes lobbying, even for sleazy clients, and lobbying without disclosing it.

It is important to note, in case there’s any confusion, notwithstanding the use of the word “agent,” an unregistered foreign agent is not a spy. He is a lobbyist. Lobbying is not illegal. Being paid to do it, even on behalf of clients who others might view as unseemly or odious or even tyrannical is not illegal, if you follow the laws that govern foreign financial transactions and pay your taxes. But this defendant kept his money offshore and under wraps so he wouldn’t have to pay.

[snip]

So what remains to be considered here? According to the defendant, it’s just an administrative matter, a regulatory crime, a violation of the Foreign Agent Registration Act. And that’s not a fair description. He was hiding the truth of who he represented from policymakers and the public, and that’s antithetical to the very American values that he told me he championed. And this was after he knew and already had been warned not to do it.

What becomes clear from this record is that defendant’s approach in his career, and what he didn’t abandon even after he was indicted, was that it’s all about strategy, positioning, public relations, spin. And you could say, well, there’s nothing wrong with that, at least if you’re not a journalist. But there is something wrong with it if you’re not simply advancing a position as part of a PR campaign.

It’s okay to say: Members of Congress, the government of the Ukraine, President Victor Yanukovych, would like you to consider the following when you consider how to respond to his actions, when you determine what the foreign policy of the United States should be. But what you were doing was lying to members of Congress and the American public, saying, look at this nice American PR firm, look at this nice U.S.-based law firm, look at this nice group of prominent former European officials, isn’t it great how they’ve all voluntarily stepped forward to stand up for Yanukovych and the new administration, when all along you were hiding that you and the Ukrainians actually had them on the payroll. This deliberate effort to obscure the facts, this disregard for truth undermines our political discourse and it infects our policymaking. If the people don’t have the facts, democracy can’t work.

That’s key background for how she treats Manafort’s specific violations of FARA. She dismisses Manafort’s claims that this is a mere registration violation in several ways that may lay important precedent: she invokes the money laundering (which prosecutors said was an important part of hiding the lobbying he was doing), the serial lies to DOJ — including lies told to his lawyer preparing his registration, and his efforts to get others (Tony Podesta, Vin Weber, and Greg Craig) to lie as well.

The other thing the sentencing statute tells me I’m supposed to do is I’m supposed to avoid unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct. With respect to sentencing disparities, the defense points primarily to other regulatory cases. But those involve, ordinarily, just a plain failure to register, or a plain failure to reveal a foreign bank account. They’re not analogous. They don’t involve, as here, a failure to register — to hide the existence of — multiple foreign bank accounts for the purpose of laundering millions of dollars, shielding millions of dollars from the IRS.

[snip]

I’ve got the regulatory FARA piece of Count 1 and the money laundering. And I don’t believe that’s covered by the Eastern District sentence and I think it has to be addressed. As I noted earlier, it’s not a mere oversight, it’s not a missing piece of paper. To the extent it could or should have been treated as a mere administrative matter, I think the defendant forfeited being able to rely on that sort of discretion on the part of law enforcement by having his lawyer lie to the Department of Justice twice on his behalf.

I do note that the Eastern District of Virginia found 30 months to be an appropriate sentence for the other single regulatory disclosure violation. And here, it wasn’t just a single failure to register; the defendant prevailed upon others in the scheme not to register either, and he admitted under oath at the plea that he caused them not to register.

Those three factors (the second of which was present in Mike Flynn’s FARA violation as well), are all likely to be aggravating factors that may got into criminal prosecution of FARA in the future.

Finally, there’s the timing. To rebut claims that these prosecutions were simply about long passed lobbying efforts, ABJ clearly describes the crime as persisting through the time Manafort twice lied to DOJ about his lobbying.

Furthermore, this conduct is not, as the defendant would have me conclude, old news. It’s not just some ancient failure to comply with a couple of regulations, something that took place so long before the campaign it’s just unfair and inappropriate to charge him for it in 2017. He pled guilty to laundering of funds through 2016. He pled guilty to a lobbying campaign in the United States for the government of Ukraine, Victor Yanukovych, and when he was out of office, his Party of Regions and the Opposition Bloc from 2005 to 2015. And the defense says, well, yes, but the government investigated and wrapped it all up and there wouldn’t have been a prosecution but for the appointment of the special counsel.

I’m not exactly sure what that prediction — which they’ve made to me repeatedly — is actually based on. I don’t believe there is evidence that a formal final determination was made. Prior to the time when anybody was even thinking about a special counsel, the Department of Justice was already looking into this matter. And when the Department of Justice — not the Office of Special Counsel — was looking into the matter, it asked Mr. Manafort questions. He lied to his own lawyers and he lied to the Department of Justice. He had them submit not one, but two letters, falsely stating that he had not performed lobbying activities in the United States on the part of the Ukraine.

That first lie was in November of 2016, after he resigned as campaign chair but well before the appointment of the special counsel. The second, in February, was after the special counsel investigation was underway. So it’s not entirely clear that a civil resolution would still have been possible at that point.

This, too, would have big implications for Flynn’s actions, since he lied to DOJ while he was at the White House.

Particularly given Manafort’s example, people are unlikely to wrack up these many aggravating factors in the future. But they do lay out a clear map for what a criminal FARA violation would look like in the future.

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. 


Mueller Is Close to Done, But the Andrew Weissmann Departure Is Overblown

As my docket tracker of the Mueller and related investigations shows, around August 1, 2018, after finalizing the GRU indictment, Ryan Dickey returned to his duties elsewhere at DOJ.

Around October 1, 2018, after submitting a filing saying Mike Flynn was ready to be sentenced, Brandon Van Grack moved back to his duties elsewhere at DOJ (though he continues to be named in documents in the case, as he was Tuesday). He is now starting a prosecutorial focus on FARA.

Around October 15, 2018, Kyle Freeny, who had worked the money laundering angle on the GRU and Manafort cases, moved back to her duties elsewhere at DOJ.

Around December 31, 2018, after successfully defending the Mystery Appellant challenge in the DC Circuit, Scott Meisler moved back to his duties elsewhere at DOJ.

Today, after getting Paul Manafort sentenced to 7.5 years in prison, imposing a $24 million restitution payment, and an $11 million forfeiture (including of Manafort’s Trump Tower condo), multiple outlets are reporting that the guy in charge of prosecuting Manafort’s corruption, Andrew Weissmann, is moving to a job at NYU.

After each prosecutor has finished their work on the Mueller team, he or she has moved on. Weissmann’s departure is more final, since he’s leaving DOJ. But his departure continues a pattern that was set last summer. Finish your work, and move on.

Nevertheless, his departure is being taken as a surefire sign the Mueller investigation is closing up.

Let me be clear: I do agree Mueller is just about done with the investigation. He’s waiting on Mystery Appellant, possibly on Andrew Miller’s testimony; he may have been waiting on formal publication of Jerome Corsi’s book yesterday. Multiple other details suggest that Mueller expects to be able to share things in a month that he’s unable to share today.

None of that tells us what will happen in the next few weeks. There is abundant evidence that Trump entered into a quid pro quo conspiracy with Russia, trading dirt and dollars for sanctions relief and other policy considerations. But it’s unclear whether Mueller has certainty that he’d have an 85% chance of winning convictions, which is around what he’d need to convince DOJ to charge it. There is also abundant evidence that Trump and others obstructed the investigation, but charging Trump in that presents constitutional questions.

If Mueller does charge either of those things, I’d still expect him to resign and either retire or move back to WilmerHale and let other prosecutors prosecute it. That’s what Leon Jaworski did in Watergate.

The far more interesting detail from Carrie Johnson’s Weissmann report is that just some of Mueller’s team are returning to WilmerHale.

WilmerHale, the law firm that Mueller and several other prosecutors left to help create the special counsel team, is preparing for the return of some of its onetime law partners, three lawyers have told NPR in recent weeks.

I’m far more interested in the plans of James Quarles (who has been liaising with the White House and so presumably has a key part of the obstruction investigation) or Jeannie Rhee (who seems to have been overseeing the conspiracy investigation) than Mueller or his Chief of Staff, Aaron Zebley. Their plans might tell us more about what to expect in the next month (though Rhee appeared in Roger Stone’s status hearing today, and may be sticking around for his prosecution, which just got scheduled for November 5).

In any case, though, we don’t have long to wait, so it’s not clear that misreading the departure of Weissmann — which is better understood as part of the normal pattern of Mueller’s prosecutors leaving when they’re done — tells us anything useful.

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. 


Paulie’s Very Bad Day: “If the People Don’t Have the Facts, Democracy Can’t Work.” 

Recently, I got a new makeup artist for my TV appearances (which, of course, all have to do with the Russian investigation). She came to the US from Ukraine in the wake of Yanukovych’s ouster. When I told her I was talking about the Manafort the first time I met her, she expressed her hope that he would pay a price, here, for what he helped Yanukovych do to her country.

I like to think today is for her. Amy Berman Jackson sentenced Paul Manafort to an additional 43 in months in prison on top of the 47 from EDVA for crimes were tied to Manafort’s efforts to whitewash a brute, in Ukraine, Western Europe, and the US, and then hide the “blood money” (as his daughter called it) from tax authorities.

Immediately after the sentencing ended, Cy Vance announced a 16-count indictment in New York State, on charges that Trump cannot pardon. Whatever you think of Vance’s grandstanding, the NY indictment immediately shifts Manafort’s incentives for a pardon, because prison in NY State would be significantly less comfortable than FCI Cumberland, where Manafort will serve his federal charges. So any pardon might just hasten a move to less comfortable surroundings.

That means the entire strategy Manafort has pursued for the last 18 months, refusing to cooperate and then, when he did enter a plea deal, using it only to waste prosecutors’ time and share information with Trump, will serve no purpose.

Which is why I think today can best be summed up by the contrast between two statements. In the middle of a long judgment that was not televised but was superbly livetweeted by Zoe Tillman, Andrew Prokop, Ryan Reilly, and others, ABJ observed the gravity of Manafort’s FARA crimes by noting that, “If the people don’t have the facts, democracy can’t work.”

Immediately after the sentencing, Kevin Downing — the Manafort lawyer who, more than the others, has been cultivating Manafort’s pardon strategy — stepped out on the courtroom stairs and made a false statement that serves that pardon strategy (as he did last week) “Judge Jackson conceded that there was absolutely no evidence of Russian collusion in this case.” Protestors immediately called him a liar, and noted that that’s not what ABJ had said, hopefully to be picked up by every TV feed filming Downing.

Indeed, ABJ had just criticized that ploy in the courtroom.

During Wednesday’s sentencing, Jackson slammed Manafort and his lawyers for their focus on the fact that he was not charged in connection with his work on the Trump campaign or accused of colluding with the Russian government. She said that the “non-collusion mantra was a non sequitor,” unrelated to what sentence Manafort should receive, and that his lawyers made the “unsubstantiated” claim that Manafort was only charged with financial crimes predating his campaign work because Mueller’s office couldn’t charge him with anything to do with Russia.

The live-tweeting is what made it possible for protestors to spoil Downing’s effort to perform as Trump wanted him to, undermining Downing’s (and with it, Trump’s) effort to spin this verdict as an exoneration in the case in chief.

Today’s verdict was about Paul Manafort’s efforts to prevent voters in both Ukraine and the US from obtaining real facts.

And it turns out that President Trump isn’t going to be able to help Manafort avoid the consequences for that.

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. 


Mike Flynn’s Cooperation and the Giglio Clock

In a status filing yesterday, the government said, for the second time, that it is done with Mike Flynn. While Mike Flynn would like more time to make all the selling out of his country available to Emmet Sullivan look less ugly, Mueller said of Flynn’s cooperation,

[W]hile the defendant remains in a position to cooperate with law enforcement authorities, and could testify in the EDVA case should it proceed to trial, in the government’s view his cooperation is otherwise complete.

That is, unless Flynn can think of some other attempt to sell out the US for financial gain he wants to tell prosecutors about, the record on which he’ll be sentenced will remain largely the same.

And at least from that comment, Mueller’s team seems skeptical “the EDVA case” will go to trial.

Which is interesting because of the graymail that Flynn’s former sleazy influence peddling partner, Bijan Kian, is attempting in that EDVA case right now, and a request the government made yesterday in it.

Back on March 1, Kian moved to force the government to turn over all of Mike Flynn’s 302s under Giglio. (302s are what the FBI calls their interview reports, and Giglio is a discovery obligation to turn over the government communications it has about witnesses it will call to testify at trial). They pointed out that Flynn has a history of lying, even beyond the lies he pled guilty to, and the 302s the government had turned over were just a subset of the whole and were heavily redacted.

To date, the government has made available for defense counsel’s review certain FD-302 memoranda of interviews of Mr. Flynn. The government acknowledges that (i) the documents made available for review are an incomplete subset of all statements by Mr. Flynn to government agents (including the Office of Special Counsel) and (ii) a significant portion of the text of these documents has been heavily redacted.2

The government refused, noting that Flynn spoke to the government about a lot of things not having to do with his sleazy influence peddling having to do with Kian.

On February 22, 2019, the government responded that it “must decline [the] request,” basing its refusal on a government-determined standard of relevance that “General Flynn spoke to the FBI on a number of occasions on matters having nothing to do with Mr. Rafiekian specifically, or with Turkey or the Turkey project in general.”4 The government further stated, “We have read those 302s and are in the process of re-reviewing them with our Giglio obligations in mind . . . . Once we complete our prompt review of the unredacted 302s held by the Special Counsel’s Office, we will timely produce any Giglio information that we should find.”

Effectively, the defense was arguing that Flynn may have lied about the other topics he discussed with the government, so they need to see it so they can paint him as a liar during trial.

As I mentioned, this is really a (completely justifiable) graymail attempt rather than a legitimate search for proof of Flynn lying. Mueller’s team was pretty clear with Sullivan that once Flynn started cooperating, he cooperated in good faith.

But by asking for the 302s regarding the rest of his cooperation, Kian is asking for materials he knows the government is unwilling to share. All that stuff was kept sealed in December during Flynn’s aborted sentencing, we know some of it pertains to Trump’s potentially criminal conduct, and the other investigation on which Flynn cooperated (which is likely the CI side targeting Russia) appears to be even more sensitive than the potentially criminal conduct of the President of the United States. Kian is doing this to try to make going to trial more costly for the government. There’s abundant reason to believe that the government doesn’t need Flynn at trial for anything more than to certify the many emails on which he and Kian conducted their sleazy influence peddling, but given that he’s an unindicted co-conspirator, Kian is absolutely within his right to pretend that Flynn will be central.

This was supposed to be heard at a hearing last Friday, which got bumped to this Friday. But yesterday, the government just asked to have the hearing bumped four more weeks, to April 12, with their response to Kian’s request due April 5 (this request first reported by Josh Gerstein). That timing is pretty interesting, given that the government envisions finding “a potential resolution” that would moot Kian’s request.

The 302s of General Flynn’s interviews relating entirely to matters other than the pending charges against the defendant contain information concerning a number of sensitive matters, including ongoing investigations. The government is attempting to coordinate within the Department of Justice on a potential resolution that could moot much of the defendant’s request. However, this coordination requires time because of the various interests involved.

One resolution that would moot his request would be a plea (indeed, this case has seemed destined to be pled out to just the conspiracy to act as a Foreign Agent charge, just like Maria Butina did, from the start). Another would be the conclusion of the ongoing investigations that require his other 302s to be withheld. Or they might have another solution, such as summaries of the other 302s, akin to CIPA substitutions (which might be necessary in any case for an ongoing CI investigation into Russia).

Whatever the solution, DOJ thinks that solution will be available on April 5 where it’s not today.

Kian’s team has objected to that request, arguing that they need a lot of time to review this classified information. Again, this is graymail, but nevertheless a totally legitimate attempt to gain leverage in what are presumably plea discussions going on in the background.

Update: The judge denied the government’s motion for a continuance, which means the hearing will go forward on Friday morning.

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. 


Roger Stone’s Seemingly Credible Excuse Starts Falling Apart Well before Bruce Rogow Asks for a Note from His Doctor

On February 21, Roger Stone and his attorneys walked into Amy Berman Jackson’s court room with the swagger of apparent certainty they were going to convince her not to impose a gag on the rat-fucker. As I’ve laid out, that swagger was misplaced. ABJ got both Stone and his lead attorney, Bruce Rogow, to lay out the case for a gag themselves, on public safety grounds.

On the way back to Florida after that hearing, the swaggering rat-fucker and his lawyers now claim, Roger Stone reminded his lawyer, Grant Smith (who had negotiated his book contracts, edited the new introduction [see page 49], and even arranged some of the right wing media publicity for it, post-indictment), that he had a second edition of a book coming out — for which he had just received his advance copies three days earlier — that might violate the expanded gag she had just imposed. Stone then forwarded the email attaching the new introduction to Smith [update: or maybe not–see below], who forwarded it on to Bruce Rogow, who reacted with alarm. Once Stone told his lawyers, they scrambled to respond, they claim. Ultimately they “clarified” that the book was coming out to ABJ on March 1, a week later.

That’s the story that Stone’s lawyers told in a response to an angry order about all this from ABJ, which they submitted last night. It seems credible, if you don’t look too closely at the details or the arrogant close.

There was/is no intention to hide anything. The new introduction, post February 21, 2019, presented a question we tried, obviously clumsily, to address. Having been scolded, we seek only to defend Mr. Stone and move ahead without further ado.1

1 Bruce Rogow may not be able to attend the March 14, 2019 status conference because he is under a physician’s care for a temporary disorder impeding his ability to travel.

There are, however, a few problems with the story.

Multiple claims they make in their new filing are doubtful, some rely on legal gimmicks, and at least some are outright false. I’ll deal with them one by one, ending with the first claim (about publicity) last.

Roger Stone and Grant Smith had no confusion that his book was being released on March 1

Stone claims when he first submitted his “clarification” on March 1, there was confusion about when the book would be published.

That the New Introduction “had been sent to a publisher in January and was scheduled for release in February” (Order, p. 3, n. 2), is now certain. See Composite Exhibit B. There was confusion. We apologize for the confusing representation about publication.

This refers to a discrepancy about what Stone variously claimed with regards to the release date of his book. In his lawyers’ initial “motion to clarify,” which remains under seal, they appear to have referred to its “imminent general release.” Stone’s March 4 motion states,

The book, with the [new introduction], was published by the Publisher on February 19, 2019. Copies were distributed by the Publisher to hundreds of retailers nationwide in late January 2019.

[snip]

the imminent general relase [sic] of the book’s contents, including the [new introduction], Defendant respectfully requests that the publication of this book (together with the ) should not be viewed as contravening the Court’s prohibitions because these prohibitions were not extant and could not have been known prior to February 21, 2019.

The government pointed out on March 4 that the book was available as an ebook, but was silent about any existing paperback edition.

So Stone claims the paperwork he submitted proved that the book was scheduled for release in February. In fact, they appear to be conflating the online and hard copy release.

In fact, Stone’s publisher Tony Lyons told him in January the release date was March 5 (PDF 65).

And while an editor told Stone that the paperbacks were being printed “soon” on January 24 (remarkably, the very day he was indicted, though he should not have known about the sealed indictment at that point), Stone didn’t actually tell him where to send his own review copies until February 15, after his attorneys had already submitted the first filing regarding a gag. (PDF 84)

In his response that same day (PDF 96), Mike Campbell talked about forthcoming plans for media appearances relating to the book. In response, Stone specifically mentioned that ABJ might gag him “any day now” (she issued the first gag sometime that day, just days before Stone threatened her).

According to the Instagram posts submitted with the filing, as recently as February 18 — notably, the day Stone now claims the book was “published” — Stone understood the books would be “In stores March 1!” (PDF 111)

And on February 21, immediately after Stone got gagged, Grant Smith (who negotiated the deal, edited the new material, and helped with publicity) reflected the understanding that the book would come out on March 1. (PDF 9)

At least one of Stone’s lawyers did not believe publicity would wane

Stone’s lawyers claim they believed  — and still believe — what they submitted to ABJ on February 8, that publicity in the case would wane after his initial arrest on January 25.

But, the February 8 representation that “‘[t]hat first wave of publicity surrounding the indictment . . . will subside. To be sure, the interest in this case will continue, but nothing compels the conclusion that the Court’s present expressed confidence in seeking an unbiased jury will, in months hence, be compromised by the press or Mr. Stone as we move forward.’” (Order at 3, n. 2, quoting February 8 submission), is still true. The Court views the New Introduction as “entirely  inconsistent with the assurances,” but those “assurances” were not made in an effort to conceal anything. They reflected a belief in both waning publicity and the ability of the Court to seat a jury. That opinion still holds.

But in an email chain from January 28 setting up a publicity appearance for the book on Hannity, Smith received an email from Kristin Davis stating she was “looking forward to making another New York Times Bestseller.” (PDF 100)

Authors selling NYT times bestsellers spend a lot of time on publicity. And Smith was part of an effort to garner whatever publicity for this book they could get.

The entirety of Paragraph 3 seems only to relate to Bruce Rogow

Then, there’s this paragraph, which serves to deny they’re trying to pull a fast one over on ABJ (I’ve numbered the sentences and bolded the apparent subject of each sentence to make the following discussion more clear):

[1] That the lawyers who submitted the Notice of Apology, and who condemned the posting which prompted it, “did not seek an exception for a recently revised introduction to a book that was in the hands of retailers as he spoke” (Opinion at 3-4) is true. [2] But any suggestion that not doing so was intended to mislead, is not true. [3] Even if it had crossed counsel’s mind to raise the new introduction (and it did not), it seems a bit awkward to have sought to introduce the New Introduction at that very moment during argument. [4] As the 6:33 p.m. February 21, 2019 email exchange reflects, reading for the first time the New Introduction, while waiting for a plane back to Fort Lauderdale, brought the issue home and led to the Motion to Clarify.

Read quickly, you might assume the paragraph has just one subject: “the lawyers,” plural, meaning Stone’s entire legal team.

Not so.

First, note that just two of his attorneys signed the Notice of Apology referenced in sentence 1: Peter Farkas (through whom all the rest have their pro hac vice in DC), and Bruce Rogow (that’s true of the February 8 gag filing as well).

That’s important, because (as noted) Smith was not only involved in every step of this publication process, but helped Stone set up publicity for the book after he had been indicted. I’m guessing that he doesn’t feel any regret about Stone’s incitement.

Sentence 2 of paragraph 3 has no human subject — it refers to the action the counsels in the previous sentence took, or not (in this case, not disclosing the publication of Stone’s book).

The next human subject, in sentence 3, “counsel,” is referred to in the singular, perhaps speaking exclusively for the single lawyer who spoke on Stone’s behalf at the gag hearing, Rogow.

Sentence 4 may appear to use a gerund as its subject (as the second sentence does), reading for the first time. But in fact, that gerund actually modifies the unstated subject. That subject, too, is singular, given that the email referenced is not Smith’s (which was sent at 5:58PM), but Rogow’s (sent at 6:33PM).

The claims made in this paragraph may apply only to Rogow, and they definitely do not apply to Smith, about whom all the claims would probably be false, and the claim he had only read the new introduction for the first time on February 21 (which, again, he edited on January 15) would absolutely be false.

Stone may not have turned over all relevant communication

Stone’s lawyer’s claim that all records regarding publication date appear in Exhibit B.

Perhaps they do. But that exhibit shows Stone forwarding emails he believed to be relevant to Smith. All the ones he sent on March 7 and 8 are numbered, like the first of those emails. (PDF 19)

Only, assuming Stone numbered consecutively, around 8 of the emails he seems to have found relevant are missing: 3, 5, 6, 7, 9, 12, 15, and 16.

Stone sent some more on March 11 that weren’t numbered, so it’s unclear if there were still more emails that didn’t make this exhibit.

Stone’s lawyers are obfuscating about online availability

Stone claims that his publisher answered definitively.

DEFENDANT MUST INFORM THE COURT OF THE EXACT DATE THE BOOK WAS FIRST MADE AVAILABLE FOR PURCHASE ONLINE, AND THE INTRODUCTION WAS MADE AVAILABLE FOR VIEWING, AT AMAZON.COM AND GOOGLE BOOKS OR ANY OTHER ONLINE VENDOR.

Response:

As provided by the Publisher, the exact date the book was first made available for purchase online, and the Introduction was made available for viewing to Amazon.com and Google books or any other online vendor was on January 18, 2019. They could choose to make them publicly available any time after they received them.

Both times the publisher answers the question, however, the answer is not that clear. The first time Tony Lyons answers the question (knowing he has to answer correctly to keep Stone out of jail), he says “both” were live before the gag order, which could refer to both e-book versions, Amazon and Google, or both kinds of availability.

Lyons answers the question again the next day, again using an unspecified February 19 in spite of being asked two questions.

As proof that Tara Campion did not take this date to refer to hard copies, she asked him a follow-up the next day.

Stone professes to have no idea what he posted in his own Instagram

In spite of all the details I’ve posted above showing that Stone believed, as late as February 18, that the book would be in stores on March 1, he now claims to know none of that.

DEFENDANT MUST INFORM THE COURT WHETHER AND WHEN HE BECAME AWARE OF: THE FACT THAT THE NEW EDITION OF THE BOOK HAD BEEN PRINTED BY THE PUBLISHER; THE FACT THAT COPIES OF THE BOOK HAD BEEN SHIPPED FROM THE PRINTER; THE FACT THAT COPIES WERE AVAILABLE AT BOOKSTORES; THE FACT THAT RETAIL BOOKSTORES WERE SELLING THE BOOK; AND THE FACT THAT THE BOOK WAS AVAILABLE FOR PURCHASE OR VIEWING ONLINE.

Response:

1) Mr. Stone became aware of the fact that the New Edition of the book had been printed in early February, exact date unknown, when an acquaintance of Mr. Stone reached out to him to say he had purchased and had in-hand a copy of the book.

2) Mr. Stone knew books had been shipped from the printer as late as February 18, when Mr. Stone received two boxes of approximately 30 books each at his home delivered to him by the publisher which he began giving to friends and family. See also, Composite Exhibit B.

3) Mr. Stone does not have any recollection of when he specifically knew they were available at bookstores.

4) Mr. Stone does not have any recollection of when he specifically knew they were being sold at retail bookstores.

5) Mr. Stone does not recall when he learned that the book was available for purchase or viewing online.

Stone claims he made no public statement about the book even though he booked a Hannity appearance to talk about it

Stone says he don’t remember pitching the book, ever.

To the best of Mr. Stone’s knowledge or records, he made no public statements regarding the publication of the book from January 15th to the present.

As noted above, Roger Stone booked an appearance on Hannity on January 28 specifically to pitch the book (and Smith appears to have spoken to folks there about it).

On top of messaging Trump (he said on the show he would not testify against Trump), the Hannity appearance was about adding to the media blitz and attacking Mueller.

Grant Smith, who edited the introduction, needed no reminder it existed

Stone’s filing claims he needed to “remind” counsel of the existence of the new introduction that violated the gag.

Immediately following the February 21 hearing, Mr. Stone reminded counsel about the existence of the New Introduction which covered topics now subject to restriction and that it could be construed as being written after the date for the February 21 Order because the various platform and location releases were not immediately known to him, although he had knowledge they had been printed and that there had been at least one commercial sale. Mr. Stone instructed Mr. Smith to send the new introduction to the others on his team for review.

As I keep noting, on January 15, Smith shared his own edits with the publisher — and Stone approved both the ones the publisher made and those Smith made (meaning he knows Smith did make edits).

Update: On Twitter, Reed Morris convinced me what happened is even worse than this. Smith, of course, didn’t need Stone to forward him this copy of the new introduction because he already had a copy. He was on the distribution list when it was originally sent!

Stone was included in direct communications with the publishers between February 21 and March 1, and continued to contact them directly after that

Stone’s lawyers claim he did not have “direct communications” with his publisher between the imposition of the gag and the first “clarification” to ABJ.

Mr. Stone did not have any direct communications with the publisher or any retailer between February 21 and March 1, all communications were indirect through counsel. To be completely transparent, Mr. Stone has authorized counsel to provide these communications to the Court.

Only here he was, being included in the conversations with the publishers on February 26. (PDF 121)

And while Stone’s lawyers don’t make any representations on this topic, it’s clear that Stone continued to be in direct contact with the publishers after that. Indeed, it appears the two-step process of forwarding relevant emails to Smith actually amounted to first sending them to Mike Campbell at the publisher, evidence to which got left in on this email and at least one other one. (PDF 96)

This is true, in spite of his lawyers’ claims that the publisher was keeping proprietary information from him.

As is reflected in this email exchange, Mr. Stone no longer had a “joint venture” with the publisher and the publisher viewed the information Mr. Stone was requesting to be proprietary as Mr. Stone neither participated in setting the schedule or any printing or distribution decisions.

For some reason, Stone’s lawyers don’t want to talk about Bruce Rogow’s communications with the publisher

Stone’s lawyers end this filing with claims about how serious they were because they took a week to present misleading data to ABJ.

On the morning of February 22, Mr. Smith sent an email to the publisher requesting, in light of the Court’s Order, a detailed explanation of where the books stood in the release/publishing process.

On February 26th, in preparation for the March 1 filing by Defendant, Mr. Smith requested additional information from the publisher to be able to accurately represent the status of the book to the Court. As is reflected in this email exchange, Mr. Stone no longer had a “jointventure” with the publisher and the publisher viewed the information Mr. Stone was requesting to be proprietary as Mr. Stone neither participated in setting the schedule or any printing or distribution decisions. The publisher ultimately provided the information requested in preparation for the Defendant’s filing.

The Defendant also asks the Court to take notice of the immediacy with which this was addressed by Mr. Stone and that the serious tone in the emails reflects the seriousness with which Mr. Stone took the Court’s February 21 order.

Curiously, they only mention the first two email threads, involving Grant Smith. After having gotten answers, sort of, to the questions they were seeking, Smith then emailed Tony Lyons and said that Lyon had to speak to Rogow immediately. He cc’s Tara Campion, another lawyer in Rogow’s office. (PDF 127)

Lyons says he’s too busy to talk but can respond to emailed questions (they’ve been emailing questions for 5 days at this point). Campion gets the same answers Smith already got, equally ambiguous about the hard copy print date as the earlier round. She asks Lyons when the books were sent out and he says, “I’ll put a call in to our sales director but usually 2-3 weeks before pub date.”

Remember: Everyone believed the “pub date” was March 1, which would put distribution of the books around February 18, which is when Stone himself received his copies.

When Campion follows up again about whether he has spoken with the sales director, he doesn’t say he has! but claims that he now knows they were sent in late January. (PDF 125)

Once again, on January 24, Michael Campbell told Stone the books were “printing soon.” He did not give Campbell the address to receive the books until February 15, in a conversation specifically referencing the expected gag order. And while Campbell’s response reflects review copies having been sent out by February 15, that’s different than actual retail copies. (PDF 96-97 shows this, which happens to be one of the ones Stone definitely shared directly with the publisher.)

Which means this exchange — which happened after Smith told Lyons he needed to speak to Rogow — probably is bullshit, but it provided dates that weren’t utterly damning for ABJ.

The thing is, they’re probably not true, and ABJ may well delve into all this on Thursday.

Stone claims this isn’t a publicity stunt

In a follow-up, I hope to look at why these people decided Stone had to update his book, which was a flop the first time he published it.

The March 1, 2019 Motion to Clarify (Dkt. # 51) was not “intended to serve as a means to generate additional publicity for the book.” Order of March 5, 2019 (Dkt. # 56), p. 2 n. 1. It was intended to address the fact that the “new” introduction was, after the February 21, 2019 hearing, recognized to be a potential problem. See Exhibit A, email exchange of February 21, 2019 at 6:33 p.m. We regret that the Court drew a contrary impression.

As noted above, the reference to the 6:33 email refers to what Rogow — who was rightly alarmed by Stone’s attacks on Mueller in the new introduction — believed.

It says nothing about what Grant Smith, who orchestrated this entire deal, believes.

Which is why I find it so interesting that Rogow plans to have a note from his doctor excusing him from attendance.

There was/is no intention to hide anything. The new introduction, post February 21, 2019, presented a question we tried, obviously clumsily, to address. Having been scolded, we seek only to defend Mr. Stone and move ahead without further ado.1

1 Bruce Rogow may not be able to attend the March 14, 2019 status conference because he is under a physician’s care for a temporary disorder impeding his ability to travel.

I have no idea whether this will result in Stone being jailed. As I noted, at first glance it looks pretty convincing Once you look closer, it’s pretty clear the lawyers — Grant Smith in particular — sign onto claims that cannot be true. And that’s before you look at the 8 emails Stone thought were relevant but don’t appear in this filing, some of which the FBI probably seized along with everything else on January 25.

No wonder Rogow doesn’t want to be the one on the stand on Thursday.

Update: Corrected incorrect claim that Tara Campion was not admitted in this case.

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. 

Copyright © 2018 emptywheel. All rights reserved.
Originally Posted @ https://www.emptywheel.net/mueller-probe/