Paul Manafort’s $46 Million Plea Deal

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Mueller’s office just released a superseding complaint as part of a plea deal with Paul Manafort. He will plead guilty to ConFraudUs tied to his FARA violations and obstruction tied to his witness tampering. The Special Counsel’s office promises “additional information … in the near future.” I guess we’ll learn then whether this involves cooperation (for all we know, Manafort is sitting in front of the grand jury right now).

While Manafort will get off without many new charges in the DC case, he’ll lose his (ostrich skin) shirt. Here’s what is listed in forfeiture.

The property subject to forfeiture by PAUL J. MANAFORT, JR., includes, but is not limited to, the following listed assets:

a. The real property and premises commonly known as 377 Union Street, Brooklyn, New York 11231 (Block 429, Lot 65), including all appurtenances, improvements, and attachments thereon, and any property traceable thereto;

b. The real property and premises commonly known as 29 Howard Street, #4D, New York, New York 10013 (Block 209, Lot 1104), including all appurtenances, improvements, and attachments thereon, and any property traceable thereto;

c. The real property and premises commonly known as 174 Jobs Lane, Water Mill, New York 11976, including all appurtenances, improvements, and attachments thereon, and any property traceable thereto;

d. All funds held in account number XXXXXX0969 at The Federal Savings Bank, and any property traceable thereto;

e. All funds seized from account number XXXXXX1388 at Capital One N.A., and any property traceable thereto; and

f. All funds seized from account number XXXXXX9952 at The Federal Savings Bank, and any property traceable thereto;

g. Northwestern Mutual Universal Life Insurance Policy 18268327, and any property traceable thereto;

h. All funds held in account number XXXX7988 at Charles A. Schwab & Co. Inc., and any property traceable thereto; and

i. The real property and premises commonly known as 1046 N. Edgewood Street, Arlington, Virginia 22201, including all appurtenances, improvements, and attachments thereon, and any property traceable thereto.

This adds both the Federal Savings Bank account listed for forfeiture in the EDVA case, and the Capital One case. And these are subject to both civil and criminal forfeiture, so Trump can’t pardon them away.

Update: On Twitter, several people note that with this forfeiture, the Mueller investigation just more than paid for itself.

The EDVA Holdout Juror Has (Thus Far) Saved Paul Manafort $16 Million

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I want to pull something from this post into its own post. In that post, I talked about the stakes of a guilty verdict in Paul Manafort’s DC case, which subjects most of the counts to a $30 million forfeiture judgment.

Based on the EDVA indictment, I had thought that all the bank fraud charges in that case were subject to forfeiture. But with Andrew Prokop’s help, have confirmed that just charges 29 and 30 included forfeiture. The Special Counsel’s Office has confirmed that “forfeiture was limited at trial to convictions on counts 29 or 30.”

That means that the one holdout juror may have saved Paul Manafort $16 million. It also raises the stakes of a retrial considerably.

Update: Two more clarifications from SCO. First, “Nothing has changed in the D.C. case” from what was described in the indictment. When I asked about civil forfeiture, they responded, “The case filed in EDVA only references criminal forfeiture.” So here’s the distinction. The Forfeiture section in the EDVA indictment starts,

Pursuant to Fed. R. Crim. P. 32.2, notice is hereby given to the defendants that the United States will seek forfeiture as part of any sentence in accordance with Title 18, United States Code, Section 982(a)(2), in the event of the defendants’ convictions under Counts Twenty-Four through Thirty-Two of this Superseding Indictment.

As SCO notes, 18 USC 982 is just criminal forfeiture.

Whereas the DC indictment cites both 18 USC 981 (Civil) and 982 (Criminal).

Pursuant to Fed. R. Crim. P. 32.2, notice is hereby given to the defendants that the United States will seek forfeiture as part of any sentence in accordance with Title 18, United States Code, Sections 981(a)(1)(C) and 982(a)(1), and Title 28, United States Code, Section 2461(c), in the event of the defendants’ conviction.

 

Paul Manafort Is One of 37 People in an Omertà with the President

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Apparently, Bob Woodward committed some journalism along with canonizing racist John Kelly and wife-beater Rob Porter in his book: he got a number for how many people are included the Joint Defense Agreement that gives Rudy Giuliani such confidence the President is not at risk: 37.

And Politico committed still more journalism and answered the question we’ve all been asking: yes, Paul Manafort is among those 37.

Giuliani also confirmed that Trump’s lawyers and Manafort’s have been in regular contact and that they are part of a joint defense agreement that allows confidential information sharing.

“All during the investigation we have an open communication with them,” he said. “Defense lawyers talk to each other all the time where as long as our clients authorize it therefore we have a better idea of what’s going to happen. That’s very common.”

Giuliani confirmed he spoke with Manafort’s lead defense lawyer Kevin Downing shortly before and after the verdicts were returned in the Virginia trial, but the former mayor wouldn’t say what he discusses with the Manafort team. “It’d all be attorney-client privilege not just from our point of view but from theirs,” he said.

That means when John Dowd complained that the raid of Manafort’s condo (where his eight iPods were seized), that was based on privileged conversations between lawyers. And when, in January, Trump confidently said he was sure Manafort would protect him, that was based on privileged conversations between lawyers.  And when, just before the EDVA trial, Kevin Downing was ostentatiously saying there was no way Manafort was flipping, and when he was balking on a plea with Mueller immediately after the trial, he was also talking to Rudy Giuliani.

Mind you, Rudy G will learn right away if Manafort starts considering cooperating, rather than just pleading, because Manafort will have to (finally!) drop out of the JDA before those discussions start.

And while I suspect Mueller has slowly been peeling away people like Sam Patten, that the JDA is so big likely means some or most of the following people are part of the omertà (and Michael Cohen, Rick Gates, and Mike Flynn were part of it):

  • Paul Manafort and Konstantin Kilimnik
  • Jared Kushner
  • The Trump Org defendants: Don Jr, Rhonna Graff
  • Bill Burck’s clients: Steve Bannon, Reince Priebus, Don McGahn (and up to three more)
  • Victoria Toensing’s clients: Mark Corallo, Erik Prince, Sam Clovis
  • The hush payment recipients: Hope Hicks, Brad Parscale, Keith Schiller
  • Roger Stone and his buddies: Stone, Michael Caputo, Sam Nunberg, Andrew Miller, plus some (probably)

That’s 20. Some other likely (and enticing) JDA members are: Devin Nunes, Jeff Sessions, Tom Barrack, Keith Kellogg, John Mashburn, KT McFarland, JD Gordon, Walid Phares, Stephen Miller, Sean Spicer, Rob Porter, Corey Lewandowski, John Kelly. Heck, it’s not even clear that George Papadopoulos is not part of the JDA.

But that still leaves space in the JDA for people who were already comparing notes with known members of the JDA, including Rinat Akhmetshin, Rob Goldstone, and Ike Kaveladze (along with Emin and Aras Agalarov, who are all represented by Scott Balber).

No wonder Rudy thinks he knows everything that Mueller has.

That’s why the collective panic on the discovery that Stone’s phone was likely among the ~10 or so that Mueller got warrants for in the wake of Rick Gates’ cooperation agreement is so interesting, and also why Manafort, playing his part as point, tried so hard to find out who the other four AT&T users whose phones were obtained with his own.

These guys may be good at omertà. But every single one we’ve seen so far has shitty OpSec; they’ve been saying their co-conspiracy communications on their phones and on iCloud. Plus there are people like Omarosa wandering among them, dismissed as irrelevant even while they record everything they hear. And meanwhile, Mueller is chipping away at the edges, people they haven’t considered (like Patten). And all the while he’s been building his case against Stone and Don Jr.

The $30 Million Leverage Mueller Has to Force Paul Manafort’s Cooperation

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Yesterday, Amy Berman Jackson moved a pre-trial hearing that had been scheduled for this morning to Friday morning. That has led to further reports that Paul Manafort is seeking a plea deal. But, as ABC reported, one sticking point is whether Mueller is willing to offer a plea deal without cooperation along with it.

Sources tell ABC News that Mueller’s office is seeking cooperation from Manafort for information related to President Donald Trump and the 2016 campaign. Manafort, however, is resisting and his team is pushing prosecutors for a plea agreement that does not include cooperation, at least as related to the president, sources said.

To be clear, both sides have an incentive to find a way to avoid the trial. Mueller already has Manafort on the hook for an 8 year sentence or so, and if that’s not going to make him cooperate in the case in chief, it’s not clear that another 8 years will. And Manafort’s legal bills have to be sky high already, without another trial where he’s facing overwhelming evidence.

But the reason why Mueller isn’t just going to let Manafort plead to some of the DC charges without cooperating is because that would mean giving up the considerable leverage — $30 million worth — that Mueller built into this case a year ago.

While it hasn’t gotten a lot of attention, both Manafort indictments include forfeiture provisions, meaning the government will seize his ill-gotten gains. And because Manafort had a shit-ton of ill-gotten gains, there’s a whole lot of stuff that the government can now seize, starting with his ostrich skin suits.

Having been found guilty of charges 25 and 27 in his EDVA trial, for example, the government will seize the funds from the $16 million loan Manafort got by lying to Federal Savings Bank.

Upon conviction of the offenses charged in Counts Twenty-Four through Thirty-Two, defendants PAUL J. MANAFORT, JR., and RICHARD W. GATES III shall forfeit to the United States any property constituting, or derived from, proceeds 36 obtained, directly or indirectly, as a result of such violation(s). Notice is further given that, upon conviction, the United States intends to seek a judgment against each defendant for a sum of money representing the property described in this paragraph, as applicable to each defendant (to be offset by the forfeiture of any specific property).

76. The grand jury finds probable cause to believe that the property subject to forfeiture by PAUL J. MANAFORT, JR., includes, but is not limited to, the following listed assets: a. All funds held in account number XXXXXX0969 at Lender D, and any property traceable thereto.

Update: Andrew Prokop noted that the prosecutors had at least proposed a jury verdict form that tied forfeiture of these funds to just charges 29 and 30, which are both charges the jury hung on. That seems to suggest that these funds are not subject to seizure (which of course increases the stakes of retrial).

Update: SCO has confirmed that “forfeiture was limited at trial to convictions on counts 29 or 30.”

In the DC case, even more ill-gotten gains are at stake. Manafort stands to lose the proceeds of his influence peddling, the laundered proceeds of which the indictment says amount to $30 million. Manafort might lose, among other things, four of his homes.

Upon conviction of the offenses charged in Counts One [ConFraudUS tied to FARA], Three [FARA], Four [False Statements pertaining to FARA], Six [Obstruction], and Seven [Conspiracy to Obstruct], the defendants PAUL J. MANAFORT, JR., and KONSTANTIN KILIMNIK (as to Counts Six and Seven) shall forfeit to the United States any property, real or personal, which constitutes or is derived from proceeds traceable to the offense(s) of conviction. Notice is further given that, upon conviction, the United States intends to seek a judgment against the defendants for a sum of money representing the property described in this paragraph (to be offset by the forfeiture of any specific property).

53. The grand jury finds probable cause to believe that the property subject to forfeiture by PAUL J. MANAFORT, JR., includes, but is not limited to, the following listed assets:

a. The real property and premises commonly known as 377 Union Street, Brooklyn, New York 11231 (Block 429, Lot 65), including all appurtenances, improvements, and attachments thereon, and any property traceable thereto;

b. The real property and premises commonly known as 29 Howard Street, #4D, New York, New York 10013 (Block 209, Lot 1104), including all appurtenances, improvements, and attachments thereon, and any property traceable thereto;

c. The real property and premises commonly known as 1046 N. Edgewood Street, Arlington, Virginia 22201, including all appurtenances, improvements, and attachments thereon, and any property traceable thereto;

d. The real property and premises commonly known as 174 Jobs Lane, Water Mill, New York 11976, including all appurtenances, improvements, and attachments thereon, and any property traceable thereto;

e. Northwestern Mutual Universal Life Insurance Policy 18268327, and any property traceable thereto;

f. All funds held in account number XXXX7988 at Charles A. Schwab & Co. Inc., and any property traceable thereto; and

g. All funds held in account number XXXXXX0969 at The Federal Savings Bank, and any property traceable thereto.

The question of how much of his ill-gotten gains is subject to forfeiture was a big deal in the Rick Gates plea (and likely was a big deal to Sam Patten when he pled guilty to earning $1 million as an unregistered sleazy influence peddler). While Manafort doesn’t have young kids to raise, as Gates does, the sheer scale of his possible forfeiture no doubt makes such discussions even more fraught.

Up until now, it has always seemed that the most logical explanation for Manafort’s actions was a calculus that the evidence against him was so overwhelming and the prison sentence he faced so substantial that his best bet was to do anything he could to get a presidential pardon.

But now, he already faces losing around $16 million and stands to lose $30 million more. He’s been effectively broke since 2016 anyway. And it’s not clear that a presidential pardon prevents that from happening.

So on top of calculating whether he trusts Trump enough to rely on that pardon, Manafort (and the lawyers he likely still has to pay) also have to be wondering how many houses his freedom is worth.

That certainly strengthens Mueller’s hand in these negotiations.

As I disclosed 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. 

Richard Burr Pretends He Has a Basis to Claim SSCI Has [Searched for and] Not Found Any Evidence of “Collusion”

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Richard Burr is teeing up Tweet-bait again by going on Fox News and suggesting his committee has not found “hard evidence of collusion.”

In the interview, Burr uses some of the same squishy language he used last month with the AP, which the Fox dude raised to explain why he was asking him about the investigation when Burr’s Fox appearance was designed to boast about how well prepared the Trump Administration was for Hurricane Florence.

Fox: Sir, can you say today that there has been no evidence — no factual evidence — of collusion between the Trump campaign and any elements of the Russian government during the election of 2016?

Burr: I can say, as it relates to the Senate Intelligence Committee investigation, that we have no hard evidence of collusion. Now, we’re not over, and that leaves the opportunity that we might find something that we don’t have today. But the fact is if this is all about collusion — and our investigation encompasses more than collusion — that issue has not been finalized at all.

Fox: If that is your answer today, what is next, or how does this end, perhaps that’s the better way to ask that question.

Burr: Well, Bill, if you’d have asked me when we started this 19 months ago, if it would be over today, I would have said yes, but we found a lot of things that we didn’t anticipate that we would find, we’ve had to chase a lot of threads that needed to be chased. I hope to complete this at some point before the end of the year. It will take probably three to six months to write the final report. But we’ve got, we’ve been charged with making a determination as to what happened, and conveying that with facts to the American people, to let them make their mind up.

Fox: Okay, can you give us an idea of what the conclusion could be then Sir, if it’s not collusion? What is it?

Burr: I can’t really tell you, and maybe we find something in the next several interviews that are evidence of collusion, I don’t think so, with what we’ve seen, but clearly we were asked to look at Russian meddling. Today, once again, this Administration said we’re not going to let Russia meddle in our elections, we’re going to sanction people, they gave 45 days until after the election to report to DHS any interference, and DHS would seek sanctions against them. So the United States government, the whole of government’s taking a very tough stand on Russia. [my emphasis]

As I noted regarding the AP story last month, this statement also stops well short of claiming the Senate Intelligence Committee has looked for and not found evidence of Trump’s campaign conspiring with Russia.

It’s a squishy statement that seems designed — particularly given Burr’s newfound lassitude about ending the inquiry and his stated worries of being accused of missing something in the future — to permit him to sustain a claim he hasn’t seen any conspiracy, at least through the election, without aggressively investigating for one.

Burr is careful to make clear that he is speaking only about his committee, and the question, which seems coached, asked only about Trump’s campaign “colluding” with “elements of the Russian government.” Heck, Don Jr and Aras Agalarov employee Ike Kaveladze could have signed a pact in blood on June 10, 2016, the day after their Trump Tower meeting, and Burr’s statement would still be true, because Agalarov and his employees are not Russian officials. And both last month and today, Burr specifies that he’s talking about “factual” or “hard” evidence.

As it is, the public record of what SSCI has been focused on (and the witnesses whose dodgy comments it hasn’t tried to nail down) makes it clear it’s not looking all that aggressively for evidence of a conspiracy with Russia.

But Burr might feel comfortable making this repeated claim even if his investigators had, in the privacy of their SCIF, been told that a witness had provided Mueller evidence of a conspiracy, so long as those investigators made no effort to actually obtain the evidence. They could even have been told by a witness that she was specifically withholding inflammatory pieces of hard evidence potentially implicating Trump’s campaign, on the basis that she was waiting to see if FBI corroborated the most likely explanation for that evidence. If they never asked for that evidence, then Burr would be perfectly able to go on Fox News and claim his committee hadn’t received any evidence. No one is asking Burr whether he has sought out all the evidence of “collusion” his investigators have been informed about.

Such a scenario might also explain why, in both appearances, Burr laid the ground work to “discover” evidence in two months or so that did corroborate a conspiracy. He’s just going to make sure he doesn’t actually ask for such evidence before then.

As I disclosed in 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 Frothy Right Is Furious that Peter Strzok Pursued the Guy Leaking about Carter Page

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Close to midnight on June 3, 2017, Lisa Page texted Peter Strzok to let him know that Reality Winner was in custody. Page used the same shorthand she and Strzok (and presumably, those around them) consistently use to describe leak investigations, ML, media leaks.

They used the term elsewhere, as when Strzok said “media leaks and what I do for a living” when responding to the first reports that Mueller was investigating Trump (and hypothesizing about who the WaPo’s likely sources were).

Significantly, they used the term on April 10, 2017, when trying to figure out how to respond to DOJ’s effort to increasingly politicize leak investigations.

Indeed, Strzok’s lawyer has issued a statement confirming this is how Strzok and Page used the term.

The term ‘media leak strategy’ in Mr. Strzok’s text refers to a Department-wide initiative to detect and stop leaks to the media. The President and his enablers are once again peddling unfounded conspiracy theories to mislead the American People.

In spite of all that context, Mark Meadows has the entire frothy right, from Sara Carter to Fox News to Don Jr to his dad, worked up about two newly produced texts, based on this letter to Rod Rosenstein, which gets just about every thing wrong.

Before I explain how wrong Mark Meadows’ letter is, let me point out two things.

Michael Horowitz has already investigated a media leak text and found no misconduct

First, Michael Horowitz is (with the possible exception of DOD’s Glenn Fine) the best Inspector General in government. His office spent over a year investigating the work of Peter Strzok and Lisa Page; he wrote a 500-page report on it. And when he found evidence that even looked like impropriety, acted on it immediately and then formally, leading to Strzok’s firing. He has also spent a year investigating whatever calls went between FBI lines and reporters covering Hillary or Trump. He even drew pretty pictures showing each one of concern.

As part of both investigations, he examined a text in the series Meadows is concerned about (the April 10 one, above). And in spite of examining Page and Strzok, including a relevant text, at such length, Horowitz found no impropriety with the discussions about how to investigate leaks to the media.

We know the likely culprit for the leak the frothy right is blaming on Page and Strzok

The punchline of Meadows’ letter — as fed via the always-wrong Sara Carter — is a claim that Strzok and Page were the source for the WaPo story revealing that FBI obtained a FISA order on Carter Page.

The review of the documents suggests that the FBI and DOJ coordinated efforts to get information to the press that would potentially be “harmful to President Trump’s administration.” Those leaks pertained to information regarding the Foreign Intelligence Surveillance Court warrant used to spy on short-term campaign volunteer Carter Page.

Aside from how fucking stupid you’d have to be to believe that Strzok would go to great lengths to get a FISA order on Page and then tell the entire world about it, there’s another reason that the frothy right should know this is wrong: because we know the likely culprit for it.

As I noted in my first post on the James Wolfe indictment, that investigation appears to have started to (and focused on) finding the source for the WaPo story the frothy right now blames on Strzok and Page.

The government lays out clear proof Wolfe lied about conversations with three reporters. With Watkins and another, they point to stories about Carter Page to do so. The Watkins story is this one, confirming he is the person identified in the Evgeny Buryakov indictment. Another must be one of two stories revealing Page was subpoenaed for testimony by the Senate Intelligence Committee — either this one or this one.

I’m most interested, however, in this reference to a story the FBI raised with Wolfe in its interview, a story for which (unlike the others) the indictment never confirms whether Wolfe is the source.

During the interview, FBI agents showed WOLFE a copy of a news article authored by three reporters, including REPORTER #1, about an individual (referred to herein as “MALE-l), that contained classified information that had been provided to the SSCI by the Executive Branch for official purposes

The story suggests they don’t have content for the communications between Wolfe and Reporter #1, and the call records they’re interested in ended last June (meaning the story must precede it).

For example, between in or around December 2015 and in or around June 2017, WOLFE and REPORTER #1 communicated at least five times using his SSCI email account.

For that reason, I suspect this is the story they asked about — whether Wolfe is a source for the original credible story on Carter Page’s FISA order. The focus on Page generally in the indictment suggests this investigation started as an investigation into who leaked the fact that Page had been targeted under FISA, and continued to look at the stories that revealed classified details about the investigative focus on him (stories which he rightly complained to SSCI about).

The government didn’t charge Wolfe for that story — they just (appear to have) included his lies about whether he knew the reporters behind it among the lies they charged him for. But that’s a common strategy for FBI when dealing with a leak investigation the direct prosecution of which would require declassifying information, particularly with someone like Wolfe who could easily graymail the government. Moreover, the docket in his case has the look of one where the defense is considering a plea to avoid more serious charges.

Now consider how they got Wolfe. Not only did the government go after a trusted employee, not only did they very publicly access his Signal and WhatsApp texts, not only did they get Congress to waive speech and debate (which very rarely happens), but they also obtained years of Ali Watkins’ call records, both directly and via Temple University.

In other words, the prosecution of James Wolfe pushed prior protocols on leak investigations on a number of fronts: going after favored insiders, going after encrypted comms, going after employees of Congress, and going far more aggressively after a journalist and a college student than would seem necessary. That’s precisely the kind of thing that FBI and DOJ would debate as part of revising their strategy to more aggressively pursue media leaks.

So the James Wolfe case not only provides a likely culprit for the leak, but probably even evidence that shifts in the media leak strategy did happen, shifts resulting in far more aggressive pursuit of leaks than happened at the end of the Obama Administration.

Mark Meadows dangerously wrong

Which brings us, finally, to the many errors of Mark Meadows’ letter to Rosenstein. Once again, the premise of the letter is that two next texts (one of which obviously relates the one I posted above) create grave new concerns.

As you may know, we recently received a new production of documents from the Department providing greater insight into FBI and DOJ activity during the 2016 election and the early stages of the Trump administration. Our review of these new documents raises grave concerns regarding an apparent systemic culture of media leaking by high-ranking officials at the FBI and DOJ related to ongoing investigations.

Review of these new documents suggests a coordinated effort on the part of the FBI and DOJ to release information in the public domain potentially harmful to President Donald Trump’s administration. For example, the following text exchange should lead a reasonable person to question whether there was a since desire to investigate wrongdoing or to place derogatory information in the media to justify a continued probe.

April 10, 2017: Peter Strozk [sic] contacts Lisa Page to discuss a “media leak strategy.” Specifically, the text says: “I had literally just gone to find this phone to tell you I want to talk to you about media leak strategy with DOJ before you go.”

April 12, 2017: Peter Strozk [sic] congratulates Lisa Page on a job well done while referring to two derogatory articles about Carter Page. In the text, Strzok warns Page two articles are coming out, one which his “worse” than the other about Lisa’s “namesake.” [see update below] Strzok added: “Well done, Page.”

Meadows goes on to cite the WaPo story revealing Page’s FISA order and Andrew Weissman’s meeting with the AP (in which, per court testimony from the Manafort trial, the AP provided information useful to the investigation into Manafort, but which — significantly — led to the warrant on Manafort’s condo which may have led to the discovery of information that implicates Trump).

Meadows is just wrong. Both texts he already has and the Wolfe case “should lead a reasonable person” to understand that the same people who had long pursued leak investigations still were doing so, doing so in an increasingly politicized environment, but doing so with results that would employ more aggressive techniques and would find the likely culprit behind the WaPo story in question (not to mention send Reality Winner to prison for five years).

But all that’s just a premise to claim that because he imagines, fancifully, that Page and Strzok were leaking about ongoing investigations to the press (when in fact they were investigating such leaks), he should be able to get the FBI to talk about ongoing investigations.

During our interviews with Peter Strozk [sic] and Lisa Page, FBI attorneys consistently suggested witnesses could not answer questions due to the US Attorneys’ Manual’s policy for ongoing investigations. However, documents strongly suggest that these same witnesses discussed the ongoing investigations multiple times with individuals outside of the investigative team on a regular basis.

Not only is Meadows almost certainly wrong in his accusations against Strzok and Page, but he’s also ignoring that there are two ongoing investigations being protected here — both the general Russian investigation, but also the prosecution of Wolfe for behavior that likely includes the story he’s bitching about.

Meadows then uses what he even seems to admit are authorized media contacts as a transition paragraph.

Our task force continues to receive troubling evidence that the practice of coordinated media interactions continues to exist within the DOJ and FBI. While this activity may be authorized and not part of the inappropriate behavior highlighted above, it fails to advance the private march to justice, and as such, warrants your attention to end this practice.

The transition paragraph — which I’ll return to — leads to the whole point of the letter, Meadows’ demand that, because he has trumped up a false accusation against Strzok and Page, he should be able to interview FBI agents he believes will undermine the investigation into Donald Trump.

In light of the new information, our task force is requesting to review text messages, emails, and written communication from FBI and DOJ officials Stu Evans, Mike Kortan, and Joe Pientka between June 2016 to June 2017. To be clear, we are not suggesting wrongdoing on the part of Evans, Kortan, and Pientka–and, in fact, previously reviewed documents suggest that some of these individuals may share the committees’ same concerns. However, these additional documents, with an emphasis on communications between the aforementioned individuals and Peter Strozk [sic], Andrew McCabe, Lisa Page, Bruce Ohr and Andrew Weissman, would provide critical insight into the backdrop of the Russian investigation.

Meadows is looking, among other things, testimony that says Pientka didn’t believe Mike Flynn lied when he interviewed Trump’s National Security Advisor with Strzok. But he’s doing so specifically for a time period that ends before the evidence showing that Flynn did lie came into FBI (in part, when Mueller obtained Transition emails showing Trump closely directed Flynn’s conversations with Sergei Kislyak.

Now back to authorized media interactions. I happen to know something about how they work. I had a conversation with the FBI that pertained, in part, to whether there was a tie between Russian criminals and the President, one that also pertained to my perception of possible threats. Apparently Meadows thinks that such a conversation “fails to advance the private march to justice,” though it’s not clear what he means by that.  I mean, thus far, I have been very circumspect about the content of such conversations; is Meadows really asking me to air details before the midterms? I have thus far hesitated to share suspicions I had, believing it would be inappropriate for anyone besides Mueller and the FBI to air such things publicly, until they had corroborated my suspicions. But Meadows apparently believes it important to air investigative details before the election.

The better option — one that would put the rule of law and the security of the nation ahead of partisan obstruction — would be for Meadows to stop inciting hoaxes among the frothy right. Or maybe, at least, the frothy right can recognize that Meadows has serially embarrassed them as they credulously repeat whatever hoax he floats?

Update: After Jerrold Nadler and Elijah Cummings released a response noting some of Meadows’ errors, he fixed just one of the errors in his letter, admitting that the “well done, Page” language was actually from an April 22, 2017 text that reads, “article is out! Well done, Page,” and which obviously refers to this story on Jim Comey.

As I disclosed 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. 

Is a Tie with Vladimir Putin What Makes Mariia Butina More of a Spy than Paul Manafort?

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Given my continued obsession with the border between the spying charge (18 USC 951) with which Mariia Butina got charged and the FARA charge (22 USC 611 et seq.) with which Paul Manafort got charged, I find this footnote from the government’s opposition to Butina’s request for bail of particular interest.

14 The defendant also attempts to rely on the government’s search warrant seeking “evidence of a potential violation under FARA.” ECF No. 23-1 at 7. As the defendant later acknowledges, id. at 15, the search warrants the government obtained for the defendant’s residence authorized it to search for potential violations of 18 U.S.C. §§ 371 and 951, as well as 22 U.S.C. § 611 et seq.

It reveals that at the time they searched Butina’s residence on April 25, 2018, the FBI had not determined whether they considered her just a sleazy foreign influence peddler or a spy. The government had explained that, in that or a subsequent search they found several pieces of evidence she had ties to the FSB, including a note reflecting a job offer. The search also included access to her devices, which revealed a slew of “taskings” from Aleksandr Torshin, which the government will use (if this ever goes to trial) to prove Butina worked as an agent for the Russian government.

So that may be one of the things that led them to charge her as a spy, rather than just a sleazy influence peddler.

The opposition filing provides more details, however, that may explain the charge.

Pre-meditation: the operation started in 2015

I had noted, here, that one difference between Butina and Manafort likely stemmed from her necessity to lie to get a visa, something the government repeats here.

In 2016, the defendant applied for and was granted an F1 student visa to study at American University in Washington, D.C. On her application, she identified her current employer as “Antares LLC” and described the Russian Official as a previous employer. Nonetheless, once resident in the United States, the defendant continued her efforts at the direction of the Russian Official to establish connections with U.S. Political Party 1 and other U.S. officials and political operatives.

They also defend a claim they made about her current visa, which she obtained to ensure she’d be able to travel back and forth from Russia, another detail the defense had spun to great effect.

The defense asserts, ECF No. 23-1 at 13 n.12 & ECF No. 23-8, that the government made a misrepresentation regarding the type of visa for which the defendant recently applied and implies that it did so intentionally. The government acknowledges the error in its Memorandum in Support of Detention regarding the label it applied to the visa. ECF No. 8 at 8. But the substance of the government’s contention—that the defendant could travel to and from the United States per her new visa’s terms, but not per the terms of her F-1 visa after her graduation—is true of the Optional and Practical Training visa extension for which the defendant applied. In other words, the “B1/B2” label the government used to describe the visa was incorrect, but its underlying its argument was correct.

But this filing also adds further details of how pre-meditated Butina’s plan was, describing a plan she wrote up in March 2015.

Beginning as early as 2015, the defendant wrote a proposal intended for Russian officials laying out her plan to serve as an unofficial agent or representative to promote the political interests of the Russian Federation vis-à-vis the United States.

[snip]

In 2015, the defendant created a document entitled “Description of the Diplomacy Project,” in March 2015, which included a proposal to cultivate political contacts in the United States.

Interestingly, amid a list of Russian officials the FBI has evidence she had contact with, is a phone call she had with Sergey Kislyak in May 2015, when this operation was still in the planning stages.

At the detention hearing on July 18, 2018, defense counsel argued, “There’s no evidence [the defendant has] been in a diplomatic car. There’s no evidence that she’s been to the embassy. There’s no evidence that she’s been in contact with the consulate. ECF No. 12 at 55:21-25. But after the government proffered that it had seen photos of the defendant with the former Russian ambassador to the United States, ECF No. 12 at 58:8-18, counsel admitted that he was aware of at least one photograph of the defendant with the former Ambassador at “a movie screening hosted by a Russian cultural group in Washington.” Id. at 59:19-21. The government now proffers that it possesses additional photographs of the defendant and the Russian Official with the former Russian ambassador to the United States; that the defendant’s calendar shows a call with the former ambassador in May 2015; and that the defendant’s journal reflects her plan to meet with the current Russian ambassador to the United States upon his arrival to the United States. The government also possesses a photograph of the defendant with the Russian ambassador dated October 2017. [my emphasis]

Putin’s personal involvement

Finally, as noted here, this filing provides more evidence of Putin’s involvement (even though one premise of the operation is to suggest some in Russia are planning for a post-Putin future). The filing describes Erickson calling Torshin “Putin’s emissary.”

The government has developed other evidence over the course of the conspiracy that establishes taskings by the Russian Official (whom U.S. Person 1 has referred to as “Putin’s emissary”) and actions within the United States in response to those taskings by the defendant

It describes Erickson pitching Putin’s involvement when arranging for the Russian delegation to the National Prayer Breakfast.

Reaction to the delegation’s presence in America will be relayed DIRECTLY to President Putin and Foreign Minister Sergey Lavrov (who both had to personally approve the delegation’s travel to this event).

And that Putin involvement came at the last minute — the weekend of January 20-21, 2017.

[Erickson] noted, “I was ahead of this in December, but last weekend Putin decided to up his official delegation – if we can accommodate them, we can empower rational insiders that have been cultivated for three years.”

Diplomatic attention even beyond propaganda-making

All of which may explain why the Russians have made such an effort to pressure for Butina’s release.

Since the detention hearing in this case, the actions of the Russian Federation and its officials toward the defendant have confirmed her relationship with, and value to, her own government. To date, the Russian government has conducted six consular visits with the defendant. It also has passed four diplomatic notes to the U.S. Department of State.2 According to the Russian Ministry of Foreign Affairs, Russian Foreign Minister Sergey Lavrov has spoken to the U.S. Secretary of State twice to complain about this prosecution.3 The official Kremlin Twitter account changed its avatar to the defendant’s face and started a #FreeMariaButina hashtag. RT, a Russian television network funded by the Russian government, has published numerous articles on its website criticizing this prosecution and the defendant’s detention.4 Russia has issued more diplomatic notes on the defendant’s behalf in the past month than for any other Russian citizen imprisoned in the United States in the past year. Put simply, the Russian government has given this case much more attention than other cases.

2 Diplomatic notes are used for official correspondence between the U.S. Government and a foreign government. The Department of State serves as the official channel for diplomatic communications between the U.S. government and a foreign government.

3 Press release on Foreign Minister Sergey Lavrov’s telephone conversation with US Secretary of State Mike Pompeo, July 21, 2018 available at http://www.mid.ru/en/web/guest/foreign_policy/news/-/asset_publisher/cKNonkJE02Bw/ content/id/3302434 (last accessed Sept. 7, 2018); Press Release on Foreign Minister Sergey Lavrov’s telephone conversation with US Secretary of State Mike Pompeo, August 23, 2018, available at http://www.mid.ru/en/web/guest/foreign_policy/news/-/asset_publisher/ cKNonkJE02Bw/content/id/3323966 (last accessed September 7, 2018).

4 See, e.g., “Accused ‘Russian Agent’ Butina moved to another jail, now in ‘borderline torture’ conditions,” RT, August 19, 2018, available at https://www.rt.com/usa/436301-butinamoved-torture-prison/ (last accessed Sept. 2, 2018); “‘A real witch hunt’: Moscow says student Butina is being held as ‘political prisoner’ by US,” RT, July 26, 2018, available

Though, of course, some of this is the simple counterpart to what Butina’s attorneys complain DOJ is doing: because she’s a pretty woman, she makes for good propaganda that Russia can use to accuse the US of abuse. Still — Butina has gotten more reported attention than even Yevgeniy Nikulin, another case the Russian government has shown exceptional interest in.

Spying doesn’t require tradecraft

Her lawyers’ opposition to a government bid for a gag order repeats, in more dramatic fashion, a claim they had made in their bid for bail: that the government has presented no evidence of traditional tradecraft.

Maria Butina is in a cell, pretrial, 22 hours a day for crimes she did not commit and for government falsehoods and never-tested theories of culpability that have not (and will never) pan out. For all of the government insinuation and media coverage of Hollywood style, spy-novel allegations, in reality this case is bereft of any tradecraft or covert activity whatsoever. There are no dead drops, no brush passes, no secret communication devices, no bags of cash or payoffs, no bribes, no confidential secret information gathering, no espionage type activity, and no agency or agreement to commit crime.

Ultimately, though, the government relies on the elements of the offense, and confirm what I had suggested here — “he mis-states what the materials say about exempting political activity, not least because, per other materials, section 611 can be a subset of a section 951 violation.”

The elements of a violation of 18 U.S.C. § 951 are that (1) the defendant acted in the United States as an agent of a foreign government; (2) that the defendant failed to notify the Attorney General of the United States that she would be acting in the United States as an agent of a foreign government prior to so acting; and (3) that the defendant acted knowingly, and knew that she had not notified the attorney general.

But neither the USAM nor the Criminal Resource Manual contain any provisions that “specifically exempt[] section 951 from applying to ‘foreign agents engaged in political activities.’” ECF No. 23-1 at 7. Setting aside whether the defendant’s alleged activities are “purely political”—which the government does not concede—the sections of the USAM and Criminal Resource Manual cited by the defendant do not specifically exempt political activity undertaken at the behest of a foreign government or foreign government official from prosecution under 18 U.S.C. § 951. Further, the Inspector General’s Report cited by the defendant, id. at 6, n.4, quotes National Security Division officials as stating, “unlike FARA . . . Section 951 can be aimed at political or non-political activities of agents under the control of foreign governments.” U.S. DOJ, Office of the Inspector General, Audit of the National Security Division’s Enforcement and Administration of the Foreign Agents Registration Act, at ii (Sep. 2016), available at https://oig.justice.gov/reports/2016/a1624.pdf (last visited Aug. 26, 2018). More importantly, the USAM “is not intended to, does not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law by any party in any matter civil or criminal.” United States v. Goodwin, 57 F.3d 815, 818 (9th Cir. 1995) (quoting USAM § 1-1.100); cf. United States v. Caceras, 440 U.S. 741, 754 (1979) (IRS manual does not confer any substantive rights on taxpayers but is instead only an internal statement of penalty policy and philosophy). 14

One final thing: this opposition motion makes it clear how pissed Butina and Torshin were when news of the DNC hack broke, knowing it would focus more attention to their own operation.

In July 2016, in a series of revealing communications, the defendant, U.S. Person 1, and the Russian Official expressed concern about how their operation might be affected by news reports that Russia had hacked the emails of the Political Party 2 National Committee. U.S. Person 1 worried that “it complicates the hell out of nearly a year of quiet back-channel diplomacy in establishing links between reformers inside the Kremlin and a putative [Political Party 1] administration (regardless of nominee or president). . . . What a colossal waste of lead time.” The defendant told the Russian Official, “Right now I’m sitting here very quietly after the scandal about our FSB hacking into [Political Party 2’s] emails. My all too blunt attempts to befriend politicians right now will probably be misinterpreted, as you yourself can understand.” The Russian Official responded by telling the defendant, she was “doing the right thing.”

Parallel processing: Not just about Trump

And it describes Butina first latching on to Scott Walker before picking up with Trump.

At some point, she identified a particular candidate (“Political Candidate 1”), whom she believed to have the best chance of becoming Political Party 1’s nominee for President. On July 14, 2015, the Russian Official requested that the defendant send him a report about Political Candidate 1’s announcement of his candidacy for the Presidency. She did so the next morning. After recounting Political Candidate 1’s speech, the defendant reported that she had a “short personal contact” with Political Candidate 1, with whom she had had previous personal contact, as well as one of his three advisors in matters of international politics. The day prior, the defendant had written to the Russian Official, “Judging from American polls – our bet on [Political Candidate 1] is correct.”

It describes the arc of the operation as an attempt to be well-positioned after the 2016 election.

[Butina] was working as an undeclared agent on behalf of the Russian Federation to position herself and that official to exert Russian influence over U.S. policies towards Russia after the 2016 Presidential election.

All that leads me to believe that the government is beginning to view the Torshin operation as a parallel effort to the election hack one, an effort that had Putin’s direct involvement in.

So it’s not just that the government has decided she has real ties to Russia’s spooks. It’s that the scope of her effort, and the involvement of Putin, raises the stakes for her custody, but also for any attempt to learn how these operations fit together.

Brett Kavanaugh Thinks Using Stolen Emails Is Acceptable Behavior

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There’s something that is missing from the debates back and forth about whether Brett Kavanaugh lied during any or all of the three Senate confirmation processes he has undergone. I’m of the opinion Kavanaugh lied skillfully, but because he’s a lawyer he managed to do so without committing perjury.

But on one issue — Kavanaugh’s use of emails stolen from Democrats — we don’t need to determine whether he lied or not, because he irrefutably did something that should make him unacceptable to be confirmed.

Even those that argue Kavanaugh didn’t lie and those that argue that, because Manny Miranda wasn’t prosecuted (during a GOP Administration and benefitting from speech and debate protection) or because it wasn’t a technical hack but rather a permissions violation, these emails weren’t “stolen,” do agree that using them was wrong. Here’s David Lat, for example, who wrote most of a book’s worth of Twitter threads defending Kavanaugh this week, admitting that using the emails was “unethical and wrong.”

And whatever you believe about whether Kavanaugh lied in any of these confirmation processes, what is irrefutable is that last week he was told, from the people involved, that he had, in fact, received and used stolen emails. For example, Patrick Leahy told him, repeatedly, that a document of his that got forwarded in draft form, that the document was not public at the time Kavanaugh received it.

Given such a circumstance, there is one natural, decent response. You apologize. Upon learning, allegedly for the first time, that you had indeed used stolen emails, you apologize to the people they were stolen from. “Gosh, I’m sorry. I had no idea. I’m sorry.” That’s what you say when you discover you used emails stolen from someone.

Brett Kavanaugh didn’t do that. He sat in front of his entire Catholic school girl’s basketball team, and instead of apologizing, he defended himself.

So no matter whether he was lying, one thing is crystal clear: he doesn’t think it was wrong to use stolen emails. He had no moral or ethical regret upon learning, definitively, that he had used stolen emails.

There may be several reasons that explain his lack of remorse for using stolen emails.

Obviously, he’s trying very hard not to offend the guy who appointed him before he’s confirmed, and pointing out that it is unethical to use stolen emails might be a sore subject for Donald Trump, who got elected by exploiting stolen emails.

Perhaps, too, he’s just an unethical person, the kind of guy whose Catholicism serves as a sanctimonious self-justification to engage in really unholy behavior.

But the biggest reason why Brett Kavanaugh might be reluctant to apologize for a clear ethical injury, even if he claims it was unwitting, is that it would taint his actions confirming judges. That is, it would make it clear he cheated — even if unwittingly — to push lifetime appointments through Congress. Those judges were confirmed illegitimately. And Kavanaugh, bidding for the third of three lifetime appointments, doesn’t want to do anything to highlight that illegitimately confirmed judges are, themselves, tainted.

Just before Mike Flynn Was Interviewed by the FBI, Putin Increased His Participation in the National Prayer Breakfast

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There are twin filings (gag, bail) in the Mariia Butina case that I will write up separately. For the moment, I wanted to point to this passage of the government’s motion opposing Butina being released.

On January 26, 2017, [Paul Erickson] asked an acquaintance for National Prayer Breakfast tickets, noting that tickets could “advance the cause of US/Russian reset (on our terms).” [Erickson] later noted, “I was ahead of this in December, but last weekend Putin decided to up his official delegation – if we can accommodate them, we can empower rational insiders that have been cultivated for three years.”

I note it solely for the timing: it shows that the weekend of January 21-22, 2017, Putin decided to increase the seniority of his representatives attending the National Prayer Breakfast, which took place on February 2, and that decision filtered down to Erickson and Butina.

At the time, Trump had plans to meet with Aleksandr Torshin, plans which were scrapped at the last minute.

The event had been planned as a meet and greet with President Trump and Alexander Torshin, the deputy governor of the Bank of Russia and a close ally of President Vladimir Putin, in a waiting room at the Washington Hilton before the National Prayer Breakfast on Feb. 2. Torshin, a top official in his country’s central bank, headed a Russian delegation to the annual event and was among a small number of guests who had been invited by Prayer Breakfast leaders to meet with Trump before it began.

But while reviewing the list of guests, a White House national security aide responsible for European affairs noticed Torshin’s name and flagged him as a figure who had “baggage,” a reference to his suspected ties to organized crime, an administration official told Yahoo News. Around the same time, a former campaign adviser alerted the White House that the meeting could exacerbate the political controversy over contacts between Trump associates and the Kremlin, another source familiar with the matter said.

It’s remarkable how many events relevant to the Mueller inquiry happened during those few weeks (and remember — Butina’s prosecution is being handled separately).

Update: This seems to suggest Butina believed there was a letter behind the earliest 2017 coverage of her (probably this Tim Mak story).

In early 2017, in response to the Russian Official’s comment to her that a reporter had contacted him about his relationship to the defendant, President Putin, and U.S. Person 1, among others, the defendant told the Russian Official that she had received inquiries from the same reporter. She told the Russian Official, “under no circumstances should you contact him. You didn’t even see the letter at all.”

The Government and Manafort Continue to Argue about the Agency of Being an Agent

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In this post, I briefly described that Paul Manafort, in a challenge to the way the government charged his sleazy influence peddling, tried to distinguish his influence peddling from that of spies, both with respect to whether hiding the proceeds of sleazy influence peddling might merit forfeiture and whether lying about sleazy influence peddling was a separate crime from lying in his FARA filing. Manafort lost on the former point, Amy Berman Jackson punted the latter point until after trial. But in ruling on the former, she emphasized that the FARA crime was about acting as an undisclosed sleazy influence peddler, not just hiding it.

But the reference to section 951 does not support defendant’s position, since defendant acknowledges that section 951 plainly governs acting as an agent of a foreign government, and the language of the two provisions is quite similar. See Def.’s Mot. at 4–5; compare 18 U.S.C. § 951(a) (“Whoever . . . acts in the United States as an agent of a foreign government without prior notification to the Attorney General . . . shall be fined under this title or imprisoned . . . .”) with 22 U.S.C. § 612(a) (“No person shall act as an agent of a foreign principal unless he has filed with the Attorney General a true and complete registration statement . . . .”) and id. § 618(a) (imposing criminal penalties on any person who “willfully violates any provision of this subchapter or any regulation thereunder” or “willfully makes a false statement of a material fact or willfully omits any material fact” in a FARA statement). These laws are not just about paperwork; their object is to ensure that no person acts to advance the interests of a foreign government or principal within the United States unless the public has been properly notified of his or her allegiance. So both statutes expressly prohibit “acting” as a representative of a foreign entity without submitting the required notification to the Attorney General. For these reasons, the alleged international banking transactions could “promote,” and Manafort could realize “proceeds” from, a FARA violation.

With that ruling, ABJ judged that FARA is like spying, just not quite as serious.

Manafort is still fighting the issue, however (probably, in part, in preparation for an appeal, but maybe also to save the industry of sleazy influence peddling for all his fellow sleazy influence peddlers).

In both the joint pretrial statement and his proposed jury instructions, Every time the government emphasized that the crime is about acting as an unregistered sleazy influence peddler, Manafort objected and rewrote the government’s language to focus on registration. Here’s one example:

Defendant also objects to the following language under the section entitled Elements of the Conspiracy’s Objects:

In Count One, the government has alleged that one object of the conspiracy was to act as an unregistered agent of a foreign principal. For Count One, the government does not have to prove that the defendant committed this crime; only that this was an object of the conspiracy. In considering whether this was an object of the conspiracy, the following legal principles and definitions apply. A person willfully violates the FARA requirements if:

(1) The defendant acted in the United States as an agent of a foreign principal;

(2) The defendant acted without registering with the Attorney General; and

(3) The defendant acted willfully.

Defendant proposes the following replacement:

In Count One, the government has alleged that one object of the conspiracy was to fail to register as an agent of a foreign principal in violation of FARA. For Count One, the government does not have to prove that the defendant committed this crime; only that this was an object of the conspiracy. In considering whether this was an object of the conspiracy, the following legal principles and definitions apply. A person willfully violates the FARA requirements if:

(1) The defendant was required by law to register as an agent of a foreign principal;

(2) The defendant failed to register with the Attorney General; and

(3) In failing to register, the defendant acted willfully.

Manafort may be doing this just to try to avoid forfeiture.

But, in part because this is a rare case going to trial that will serve as precedent for other people, the debate is an interesting one, one Manafort may appeal no matter what happens (because the decision is worth millions to him).

Mueller is arguing that being a sleazy influence peddler without being honest about who you’re working for is like being a spy. Given how much damage sleazy influence peddlers have done to our country, that’s probably right. But (I think to save his ill-gotten gains), Manafort thinks selling out his country’s politics to the highest bidder is just a matter of paperwork.

As I disclosed 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. 

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