Mueller Tells Guy Who Legally Can’t Be a Target That He’s Not a Target, Perhaps in a Bid to Make Him Legally Targetable

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The WaPo has a fascinating report describing that Robert Mueller informed Trump’s lawyers “in early March” that he doesn’t consider Trump a target in his investigation. That news made Trump even more determined to sit for an interview with Mueller, a decision which some of Trump’s less appropriate lawyers seem to have supported. That’s what led John Dowd to quit on March 22 (which would presumably have been two weeks or so later).

John Dowd, Trump’s top attorney dealing with the Mueller probe, resigned last month amid disputes about strategy and frustration that the president ignored his advice to refuse the special counsel’s request for an interview, according to a Trump friend.

Of course, as many people have pointed out, a sitting President can’t be indicted. NYCSouthpaw pointed to the appropriate section of the US Attorney’s Manual, which states that, “A ‘target’ is a person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant.”

If Trump, as President, can’t be indicted, then he can’t be a putative defendant. So he’ll never be a target so long as he remains President. Dowd is likely the only lawyer on Trump’s team who has enough defense experience to understand that this should offer the President zero assurance at all.

He left when the other, ill-suited attorneys refused to believe him on this point.

Which is why the other main thrust of the story is so interesting. Mueller has also indicated that Mueller wants to start writing his report on obstruction — according to Robert Costa, with the intent of finishing it by June or July, just before Congress breaks for August recess, the official start of campaign season — with plans for a second report on the election conspiracy to follow.

The special counsel also told Trump’s lawyers that he is preparing a report about the president’s actions while in office and potential obstruction of justice, according to two people with knowledge of the conversations.

Mueller reiterated the need to interview Trump — both to understand whether he had any corrupt intent to thwart the Russia investigation and to complete this portion of his probe, the people said.

[snip]

Mueller’s investigators have indicated to the president’s legal team that they are considering writing reports on their findings in stages — with the first report focused on the obstruction issue, according to two people briefed on the discussions.

Under special counsel regulations, Mueller is required to report his conclusions confidentially to Deputy Attorney General Rod J. Rosenstein, who has the authority to decide whether to release the information publicly.

“They’ve said they want to write a report on this — to answer the public’s questions — and they need the president’s interview as the last step,” one person familiar with the discussions said of Mueller’s team.

Trump’s attorneys expect the president would also face questions about what he knew about any contacts by his associates with Russian officials and emissaries in 2016, several White House advisers said. The president’s allies believe a second report detailing the special counsel’s findings on Russia’s interference would be issued later.

That leads us to the question of how a report that Rod Rosenstein has authority to quash could be assured of “answering the public’s questions.” One option is Mueller could propose charges he knows Rosenstein won’t — or can’t — approve, which guarantees that the Chairs and Ranking Members of the Judiciary Committees (currently, Bob Goodlatte, who is retiring, Jerry Nadler, Chuck Grassley, and Dianne Feinstein, who faces a real challenge this year) will get at least a summary.

Mueller could trigger a reporting requirement in the special counsel regulations under which the attorney general must inform “the Chairman and Ranking Minority Member of the Judiciary Committees of each House of Congress” — both parties, in other words — at the end of the special counsel’s investigation, of any instance in which the attorney general vetoed a proposed action. Simply by proposing to indict Trump, Mueller could ensure that Congress gets the word. But this would be of only limited scope: instead of an evidence dump, it need only be a “brief notification, with an outline of the actions and the reasons for them.”

Alternately, Mueller could recommend impeachment, but Rosenstein would be bound by grand jury secrecy rules.

If Mueller believes he has information that could warrant impeachment, he could weave it into a narrative like the Starr Report. But even if Rosenstein wanted to make the report public, he would be limited by Federal Rule of Criminal Procedure 6(e), which imposes strict limits on the disclosure of grand jury materials. This rule, which has the force of law, is intended to preserve the integrity of grand jury investigations and encourage witnesses to testify fully and frankly. Rosenstein could, if he chose, issue a redacted report that conveys the gist of Mueller’s findings.

While the election conspiracy has involved grand jury subpoenas (to people like Sam Nunberg and Ted Malloch, most recently), the obstruction investigation into Trump has involved (as far as I remember) entirely voluntary interviews and mostly, if not entirely, voluntarily produced evidence. So whereas for the larger investigation, Rosenstein will face this limit (but not if the targets — like Roger Stone — are indicted), he may not here.

All of which is to say we may be looking at a public report saying that Trump should be impeached just as Republicans attempt to keep Congress.

Even as some of Mueller’s 17+ prosecutors write that up (by my estimate, only Watergate prosecutor James Quarles has been working the Trump obstruction full time), the rest will continue to roll out evidence — possibly in the form of very inflammatory indictments — of what Trump was trying to obstruct.

Effectively, I think Mueller is giving the GOP Congress a choice. They impeach Trump on the less inflammatory stuff,which will remove all threat of firing and/or pardons to threaten the investigation, not to mention make Trump eligible to be a target for the actual election conspiracy he tried to cover up. Or after they fail to hold the House while explaining why they’re covering up for Trump’s cover up, they will face a more serious inquiry relating to Trump’s involvement in the election conspiracy.

About the Oleg Deripaska Reference in the Mueller Memo

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As I promised in my general summary of the Mueller memo and my assertion that there are more memos from DAG Rosenstein authorizing expanded scope on Mueller’s investigation, I want to comment on the reference to Oleg Deripaska in the memo.

The memo, remember, ostensibly only needs to lay out how Mueller’s appointment “to investigate Russian interference with the 2016 presidential election and related matters” authorizes him to prosecute a bunch of money laundering used to hide the fact that Paul Manafort was lobbying for the interests of the Party of Regions, the Russian backed effort to keep its favored oligarchs in power in Ukraine, when he was pretending to represent an independent entity.

But at the end of a long paragraph explaining how Rosenstein’s appointment order alone would justify that prosecution — because Manafort played a key role in Trump’s campaign, and because Manafort resigned after his extensive ties to Yanukovych were exposed — Mueller drops in a reference to “open source reporting” tying Manafort to Deripaska.

The Appointment Order itself readily encompasses Manafort’s charged conduct. First, his conduct falls within the scope of paragraph (b)(i) of the Appointment Order, which authorizes investigation of “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.” The basis for coverage of Manafort’s crimes under that authority is readily apparent. Manafort joined the Trump campaign as convention manager in March 2016 and served as campaign chairman from May 2016 until his resignation in August 2016, after reports surfaced of his financial activities in Ukraine. He thus constituted an “individual associated with the campaign of President Donald Trump.” Appointment Order ¶ (b) and (b)(i). He was, in addition, an individual with long ties to a Russia-backed Ukrainian politician. See Indictment, Doc. 202, ¶¶ 1-6, 9 (noting that between 2006 and 2015, Manafort acted as an unregistered agent of Ukraine, its former President, Victor Yanukovych—who fled to Russia after popular protests—and Yanukovych’s political party). Open-source reporting also has described business arrangements between Manafort and “a Russian oligarch, Oleg Deripaska, a close ally of President Vladimir V. Putin.”8 [my emphasis]

There’s no explicit reference to Deripaska in Manafort’s indictment. The only public references to him in the Manafort prosecution I’m aware of are instead to Deripaska’s crony, Konstantin Kilimnik, laying out his efforts to spin the indictment in an op-ed in the Kyiv Post, which Mueller’s prosecutors argued was an attempt to skirt the gag rule in the case. There’s admittedly more detailed reference to Kilimnik — referred to as Person A — in the same team’s sentencing memo for Alex Van der Zwaan, including the assertion that,

[T]he lies and withholding of documents were material to the Special Counsel’s Office’s investigation. That Gates and Person A were directly communicating in September and October 2016 was pertinent to the investigation. Federal Bureau of Investigation Special Agents assisting the Special Counsel’s Office assess that Person A has ties to a Russian intelligence service and had such ties in 2016. During his first interview with the Special Counsel’s Office, van der Zwaan admitted that he knew of that connection, stating that Gates told him Person A was a former Russian Intelligence Officer with the GRU.2

2 Person A worked with Manafort and Gates in connection with their Ukraine lobbying work. Person A is a foreign national and was a close business colleague of Manafort and Gates. He worked in Ukraine at Manafort’s company Davis Manafort International, LLC (DMI). Up until mid-August 2016, Person A lived in Kiev and Moscow

But thus far, nothing specifically relating to Deripaska or Kilimnik has been charged, even while a different open source report describing Manafort’s offer to give private briefings to Deripaska via Kilimnik laid out a much closer tie between Deripaska and election tampering, and another open source report described FBI scrutiny of Kilimnik’s role in changing the GOP platform.

As noted, instead of referencing those more damning open source reports, Mueller instead points to the August 15, 2016 NYT article that precipitated Manafort’s resignation from the Trump campaign. The report, sourced to investigators in “Ukraine’s newly formed National Anti-Corruption Bureau” laid out the secret ledgers showing that Manafort may have received $12.7 million in off-the-book payments for his consulting services that tampered with Ukraine’s electoral process.

The report goes on to lay out the general logic of the money laundering prosecution at issue — how Manafort’s money laundering prevented others from understanding how much he actually made for his services to Yanukovych and the Party of Regions.

Mr. Manafort never registered as a foreign agent with the United States Justice Department — as required of those seeking to influence American policy on behalf of foreign clients — although one of his subcontractors did.

It is unclear if Mr. Manafort’s activities necessitated registering. If they were limited to advising the Party of Regions in Ukraine, he probably would not have had to. But he also worked to burnish his client’s image in the West and helped Mr. Yanukovych’s administration draft a report defending its prosecution of his chief rival, Yulia V. Tymoshenko, in 2012.

Whatever the case, absent a registration — which requires disclosure of how much the registrant is being paid and by whom — Mr. Manafort’s compensation has remained a mystery.

From there, it turns to the Pericles Open Market fund that Manafort, Gates, and others got Deripaska to fund. The story doesn’t describe any direct tie between the secret ledgers at issue in the story and the Deripaska investments. Rather,the Deripaska lawsuit against Manafort made details of the fund available to Ukraine’s special prosecutor, who cited them as an example of how Yanukovych’s cronies laundered money.

In a recent interview, Serhiy V. Gorbatyuk, Ukraine’s special prosecutor for high-level corruption cases, pointed to an open file on his desk containing paperwork for one of the shell companies, Milltown Corporate Services Ltd., which played a central role in the state’s purchase of two oil derricks for $785 million, or about double what they were said to be worth.

“This,” he said, “was an offshore used often by Mr. Yanukovych’s entourage.”

[snip]

Mr. Deripaska agreed to commit as much as $100 million to Pericles so it could buy assets in Ukraine and Eastern Europe, including a regional cable television and communications company called Black Sea Cable. But corporate records and court filings show that it was hardly a straightforward transaction.

The Black Sea Cable assets were controlled by a rotating cast of offshore companies that led back to the Yanukovych network, including, at various times, Milltown Corporate Services and two other companies well known to law enforcement officials, Monohold A.G. and Intrahold A.G. Those two companies won inflated contracts with a state-run agricultural company, and also acquired a business center in Kiev with a helicopter pad on the roof that would ease Mr. Yanukovych’s commute from his country estate to the presidential offices.

The Deripaska reference in a memo describing why Mueller was authorized to prosecute Manafort for related (but not explicitly) money laundering would otherwise be a non-sequitur. Because it appears in an article that not only lays out the basis for the underlying charges, but does so in an article that had an impact on Manafort’s role in the campaign, it doesn’t seem so obviously tangential. Plus, it has the added benefit (unlike the open source reporting deriving from leaks from Congress or law enforcement) of being an on-the-record source from someone perfectly entitled to the talk to the press about Ukraine’s investigation into Manafort. This, then, was a legally permissible way to insert Deripaska into a filing where he otherwise might not have belonged.

Plus, that same open source report lays out that Ukraine’s National Anti-Corruption Bureau can’t prosecute suspects, but instead has to rely on entities like the FBI — with which it has an evidence sharing agreement — to do so.

The bureau, whose government funding is mandated under American and European Union aid programs and which has an evidence-sharing agreement with the F.B.I., has investigatory powers but cannot indict suspects. Only if it passes its findings to prosecutors — which has not happened with Mr. Manafort — does a subject of its inquiry become part of a criminal case.

During Jim Comey’s March 20, 2017 testimony (which is cited explicitly in the Mueller memo to lay out the initial unclassified scope of the investigation), Jim Himes tried to get the then FBI Director to admit that DOJ had not responded to seven requests for MLAT assistance to secure Manafort’s cooperation in their inquiry.

HIMES: And the reason I bring all this up with you is because the story also says and it appears to have been confirmed by the Department of Justice that the current Ukraine regime, hardly a friend of the Russians. And very much targeted by the Russians has made seven requests to the United States government’s — the United States government for assistance under the MLA treaty in securing the assistance of Paul Manafort as part of this on anti-corruption case. And in fact, the story says that you were presented personally with a letter asking for that assistance.

So my question Director Comey is, is that all true? Have you been asked to provide assistance to the current Ukrainian government with respect to Paul Manafort? And how do you intend to respond to that request?

COMEY: It’s not something I can comment on. I can say generally, we have a very strong relationship and cooperation in the criminal and national security areas with our Ukrainian partners, but I can’t talk about the particular matter.

Comey, while not confirming the report, instead suggested that the FBI continued to cooperate closely with Ukraine on this issue — a strong suggestion that Ukraine ultimately had asked an entity that could take prosecutorial action to do so.

To sum up thus far: this reference to Deripaska is, to the best of my knowledge, the first explicit reference to him anywhere in the Manafort docket. It has no obvious place in a memo explaining why Mueller is authorized to prosecute Manafort for money laundering tied to the Party of Regions. But there it is, in the middle of a paragraph explaining why Manafort’s prosecution follows logically even from the original grant of authority, to say nothing of any unredacted or redacted bullet points explicitly including Manafort’s alleged and documented ties to Deripaska in the scope of Mueller’s authority. By including it in the memo, Mueller effectively includes Deripaska in the ongoing discussions of the things Judge Amy Berman Jackson will likely soon agree Mueller has the authority to prosecute.

It is, then, the most telling line in the entire memo, and the most clever. It uses the opportunity of this memo to pre-authorize where Mueller is going, without having to reveal what evidence Mueller is sitting on to go there.

Of course, where he’s going — to this oligarch and his crony’s role in Trump’s election — is very obviously tied to the case in chief, the Russian tampering in the US election.

Update: Later today Mueller’s team requested permission to file one of the exhibits from their filing — which given Judge Berman Jackson’s description has to be the Rosenstein memo — under seal. Which suggests they want him to know what else he’s being investigated for, which is probably the Deripaska stuff.

There Are Almost Certainly Other DAG Rosenstein Memos

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As I noted in this post, Robert Mueller’s team of “Attorneys for the United States of America” responded to Paul Manafort’s claim that Rod Rosenstein’s grant of authority to the Special Counsel did not extend to the money laundering he is currently being prosecuted for by revealing an August 2, 2017 memo from Rosenstein authorizing Mueller to investigate, along with a bunch of redacted stuff,

Allegations that Paul Manafort:

  • Committed a crime or crimes by colluding with Russian government officials with respect to the Russian government’s efforts to interfere with the 2016 election for President of the United States, in violation of United States law;
  • Committed a crime or crimes arising out of payments he received from the Ukrainian government before and during the tenure of President Viktor Yanukovych.

As the filing notes, this memo has not been revealed before, neither to us nor to Manafort.

That’s all very interesting (and has the DC press corps running around claiming this is a big scoop, when it is instead predictable). More interesting, however, is the date, which strongly suggests that there are more of these memos out there.

Mueller is unlikely to have waited two and a half months to memorialize his scope

I say that, first of all, because Rosenstein wrote the August 2 memo two and a half months after he appointed Mueller. Given Trump’s raging attacks on the investigation, it’d be imprudent not to get memorialization of the scope of the investigation at each step. Indeed, as I’ve noted, in the filing Mueller points to the Libby precedent, arguing that this memo “has the same legal significance” as the two memos Jim Comey used to (publicly) memorialize the scope of Patrick Fitzgerald’s investigation.

The August 2 Scope Memorandum is precisely the type of material that has previously been considered in evaluating a Special Counsel’s jurisdiction. United States v. Libby, 429 F. Supp. 2d 27 (D.D.C. 2006), involved a statutory and constitutional challenge to the authority of a Special Counsel who was appointed outside the framework of 28 C.F.R. Part 600. In rejecting that challenge, Judge Walton considered similar materials that defined the scope of the Special Counsel’s authority. See id. at 28-29, 31-32, 39 (considering the Acting Attorney General’s letter of appointment and clarification of jurisdiction as “concrete evidence * * * that delineates the Special Counsel’s authority,” and “conclud[ing] that the Special Counsel’s delegated authority is described within the four corners of the December 30, 2003 and February 6, 2004 letters”). The August 2 Scope Memorandum has the same legal significance as the original Appointment Order on the question of scope.

The first of those Comey letters, dated December 30, 2003, authorized Fitz to investigate the leak of Valerie Plame’s identity. The second of those, dated February 6, 2004, memorialized that Fitz could also investigate,

federal crimes committed in the course of, and with intent to interfere with, your investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses; to conduct appeals arising out of the matter being investigated and/or prosecuted; and to pursue administrative remedies and civil sanctions (such as civil contempt) that are within the Attorney General’s authority to impose or pursue.

It’s the second memo that memorialized Fitz’ authority to prosecute Scooter Libby for protecting Dick Cheney’s role in outing Valerie Plame.

Mueller, then the acting FBI Director, would presumably have been in the loop of the Fitz investigation (as Christopher Wray is in Mueller’s) and would have known how these two letters proceeded. So it would stand to reason he’d ask for a memo from the start, particularly given that the investigation already included multiple known targets and that Trump is even more hostile to this investigation than George Bush and Dick Cheney were to Fitz’s.

Admittedly, unlike the Comey memo, which was designed for public release, there’s no obvious, unredacted reference to a prior memo. Though something that might imply a prior memo is redacted at the top of the released memo (though this is probably a classification marking).

And, given that this memo was designed to be secret, Rosenstein may have written the memo to obscure whether there are prior ones and if so how many.

The memo closely follows two key dates

That said, the date of the memo, August 2, is mighty curious. It is six days after the July 27 Papadopoulos arrest at Dulles airport. And seven days after the July 26 no knock search of Paul Manafort’s Alexandria home.

That timing might suggest any of several things. It’s certainly possible (though unlikely) the timing is unrelated.

It’s possible that Rosenstein wrote the memo to ensure those two recent steps were covered by his grant. That wouldn’t mean that the search and arrest wouldn’t have been authorized. The memo itself notes that Mueller would be obliged to inform Rosenstein before each major investigative step.

The Special Counsel has an explicit notification obligation to the Attorney General: he “shall notify the Attorney General of events in the course of his or her investigation in conformity with the Departmental guidelines with respect to Urgent Reports.” 28 C.F.R. § 600.8(b). Those reports cover “[m]ajor developments in significant investigations and litigation,” which may include commencing an investigation; filing criminal charges; executing a search warrant; interviewing an important witness; and arresting a defendant.

Both Papadopoulos’ arrest and that dramatic search would fit this criteria. So it’s virtually certain Rosenstein reviewed Urgent Memos on both these events before they happened. Plus, his memo makes it clear that the allegations included in his memo “were within the scope of the Investigation at the time of your appointment and are within the scope of the Order,” meaning that the inclusion of them in the memo would retroactively authorize any activities that had already taken place, such as the collection of evidence at Manafort’s home outside the scope of the election inquiry.

As I noted, the memo also asserts that Special Counsels’ investigative authority, generally, extends to investigating obstruction and crimes the prosecutor might use to flip witnesses.

The filing is perhaps most interesting for the other authorities casually asserted, which are not necessarily directly relevant in this prosecution, but are for others. First, Mueller includes this footnote, making it clear his authority includes obstruction, including witness tampering.

The Special Counsel also has “the authority to investigate and prosecute federal crimes committed in the course of, and with intent to interfere with, the Special Counsel’s investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses” and has the authority “to conduct appeals arising out of the matter being investigated and/or prosecuted.” 28 C.F.R. § 600.4(a). Those authorities are not at issue here.

Those authorities are not at issue here, but they are for the Flynn, Papadopoulos, Gates, and Van der Zwaan prosecutions, and for any obstruction the White House has been engaging in. But because it is relevant for the Gates and Van der Zwaan prosecutions, that mention should preempt any Manafort attempt to discredit their pleas for the way they expose him.

The filing includes a quotation from DOJ’s discussion of special counsels making it clear that it’s normal to investigate crimes that might lead someone to flip.

[I]n deciding when additional jurisdiction is needed, the Special Counsel can draw guidance from the Department’s discussion accompanying the issuance of the Special Counsel regulations. That discussion illustrated the type of “adjustments to jurisdiction” that fall within Section 600.4(b). “For example,” the discussion stated, “a Special Counsel assigned responsibility for an alleged false statement about a government program may request additional jurisdiction to investigate allegations of misconduct with respect to the administration of that program; [or] a Special Counsel may conclude that investigating otherwise unrelated allegations against a central witness in the matter is necessary to obtain cooperation.”

That one is technically relevant here — one thing Mueller is doing with the Manafort prosecution (and successfully did with the Gates one) is to flip witnesses against Trump. But it also makes it clear that Mueller could do so more generally.

Mueller used the false statements charges against Papadopoulos to flip him. He surely hopes to use the money laundering charges against Manafort to flip him, too. Both issues may have been at issue in any memo written to newly cover the events of late July.

Mueller may not have revealed the scope of the Manafort investigation at that time

Now consider this detail: the second bullet describing the extent of the investigation into Manafort has a semi-colon, not a period.

It’s possible Mueller used semi-colons after all these bullets (of which Manafort’s is the second or third entry). But that, plus the resumption of the redaction without a double space suggests there may be another bulleted allegation in the Manafort allegation.

There are two other (known) things that might merit a special bullet. First, while it would seem to fall under the general election collusion bullet, Rosenstein may have included a bullet describing collusion with Aras Agalarov and friends in the wake of learning about the June 9 Trump Tower meeting with his employees. More likely, Rosenstein may have included a bullet specifically authorizing an investigation of Manafort’s ties with Oleg Deripaska and Konstantin Kilimnik.

The Mueller memo actually includes a specific reference to that, which as I’ve noted I will return to.

Open-source reporting also has described business arrangements between Manafort and “a Russian oligarch, Oleg Deripaska, a close ally of President Vladimir V. Putin.”

The latter might be of particular import, given that we know a bunch of fall 2017 interviews focused on Manafort’s ties to Deripaska and the ongoing cover-up with Kilimnik regarding the Skadden Arps report on the Yulia Tymoshenko prosecution.

All of which is to say that this memo may reflect a new expansion of the Manafort investigation, perhaps pursuant to whatever the FBI discovered in that raid on Manafort’s home. If so, that should be apparent to him, as he and his lawyers know what was seized.

Still, I wouldn’t be surprised if he inquired about what authorized that July 26 raid, if for no other reason than to sustain his effort to make more information on Mueller’s investigation public.

The redactions almost certainly hide two expansions to the investigation as it existed in October 2016

Now let’s turn to what else (besides another possible Manafort bullet) the redactions might show, and what may have been added since.

The unredacted description of the Manafort investigation takes up very roughly about one fifth of the section describing allegations Mueller was pursuing.

The Schiff Memo revealed that DOJ had sub-investigations into four individuals in October 2016.

Endnote 7 made it clear that, in addition to Page, this included Flynn and Papadopoulos, probably not Rick Gates, and one other person, possibly Roger Stone.

In August 2017, all four of those would have been included in a Rosenstein memo, possibly with a bullet dedicated to Gates alone added. That said, not all of these would require two or more bullets (and therefore as much space as the Manafort description). Papadopoulos’ description might include two, one dedicated to the collusion and one to the lying about collusion, or just one encompassing both the collusion and the lying. Flynn’s might include three, one dedicated to the collusion, one to the lying about it, and one to the unregistered foreign agent work, including with Turkey, that we know Mueller to have been investigating; or, as with Papadopoulos, the lying about the collusion might be incorporated into that bullet. Stone’s bullet would likely have only reflected the collusion, an investigation that is currently very active. Carter Page’s suspected role as a foreign agent might be one bullet or two.

That suggests, though doesn’t confirm, that there are a few other things included in those redacted bullets, things not included in the investigation in October 2016 as reflected in the Schiff memo.

Indeed, we should expect two more things to be included in the bullet points: First, the name of any suspect, including the President, associated with the obstruction of justice. Rosenstein himself had already been interviewed with respect to that aspect of the investigation by August 2, so surely Rosenstein had already authorized that aspect of the investigation.

The redactions most likely also include the names of Don Jr and Jared Kushner (and Paul Manafort), for their suspected collusion with Russia as reflected in the June 9 meeting. At least according to public reporting, Mueller may have first learned of this in June when Manafort and Kushner confirmed it in turning over evidence to Congress and Mueller. The first revelations that Mueller was obtaining subpoenas from a dedicated grand jury were on August 3, just one day after this memo. That same day, reports described Mueller issuing subpoenas related to the June 9 meeting.

Indeed, it’s quite possible Rosenstein issued this memo to memorialize the inclusion of the President’s spawn among the suspects of the investigation.

Rosenstein has almost certainly updated this memo since August 2

All that said, there’s not enough redacted space to include the known expanded current scope of the investigation, and given that the newly expanded scope gets closer to the President, Rosenstein has surely issued an update to this memo since then. These things are all definitively included in the current scope of the investigation and might warrant special mention in any update to Rosenstein’s authorizing memo:

Many of these — particularly the ones that affect only Russians — might be included under a generic “collusion with Russia” bullet. The closer scrutiny on Jared, however, surely would get an update, as would any special focus on the Attorney General.

More importantly, to the extent Mueller really is investigating Trump’s business interests (whether that investigation is limited just to Russian business, or more broadly) — the red line the NYT helpfully set for the President — that would necessarily be included in the most up-to-date memo authorizing Mueller’s activities. There is no way Mueller would take actions involving the President personally without having the authorization to do so in writing.

Which is why we can be virtually certain the August 2 memo is not the last memo Rosenstein has written to authorize Mueller’s actions.

Mind you, Mueller probably wouldn’t want to release a memo with several pages of redacted allegations. Which may be why we’re looking at the redacted version of an almost certainly superseded memo.

Updated: Later today Mueller’s team asked to file a copy of an exhibit–which given Judge Berman Jackson’s description of it as released in redacted form, has to be the Rosenstein memo–under seal. Which suggests they’re going to show Manafort what else they’re investigating (which I bet is the Deripaska stuff).

The Mueller Filing

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Robert Mueller’s team has submitted its response to Paul Manafort’s motion to dismiss his indictment based on a claim Mueller isn’t authorized to prosecute crimes like the money laundering he is accused of. As I predicted, this filing lays out some theory of his case — but much of it is redacted, in the form of a memo Rod Rosenstein wrote last August laying out the parameters of the investigation at that time. As the filing makes clear, that memo (and any unmentioned predecessors or successors) form the same function as the public memos Jim Comey gave Patrick Fitzgerald to memorialize any seeming expansions of his authority in the CIA leak case, which the DC Circuit relied on to determine that the Libby prosecution was clearly authorized by Fitzgerald’s mandate.

Nevertheless, midway through the legal description, the filing lays out what I have — Manafort’s Ukrainian entanglements are part of this investigation because 1) he was a key player in the campaign and 2) had long ties to Russian backed politicians and (this is a bit trickier) Russians like Oleg Deripaska.

The Appointment Order itself readily encompasses Manafort’s charged conduct. First, his conduct falls within the scope of paragraph (b)(i) of the Appointment Order, which authorizes investigation of “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.” The basis for coverage of Manafort’s crimes under that authority is readily apparent. Manafort joined the Trump campaign as convention manager in March 2016 and served as campaign chairman from May 2016 until his resignation in August 2016, after reports surfaced of his financial activities in Ukraine. He thus constituted an “individual associated with the campaign of President Donald Trump.” Appointment Order ¶ (b) and (b)(i). He was, in addition, an individual with long ties to a Russia-backed Ukrainian politician. See Indictment, Doc. 202, ¶¶ 1-6, 9 (noting that between 2006 and 2015, Manafort acted as an unregistered agent of Ukraine, its former President, Victor Yanukovych—who fled to Russia after popular protests—and Yanukovych’s political party). Open-source reporting also has described business arrangements between Manafort and “a Russian oligarch, Oleg Deripaska, a close ally of President Vladimir V. Putin.”

[snip]

The Appointment Order is not a statute, but an instrument for providing public notice of the general nature of a Special Counsel’s investigation and a framework for consultation between the Acting Attorney General and the Special Counsel. Given that Manafort’s receipt of payments from the Ukrainian government has factual links to Russian persons and Russian-associated political actors, and that exploration of those activities furthers a complete and thorough investigation of the Russian government’s efforts to interfere in the 2016 election and any links and/or coordination with the President’s campaign, the conduct charged in the Indictment comes within the Special Counsel’s authority to investigate “any matter that arose or may arise directly from the investigation.”

I’ll do a follow-up on why the Deripaska reference is a bit tricky. It’s tricky in execution, not in fact.

The “Attorneys for the United States of America”

I’ll refer to the author of this memo as Mueller for convenience sake, but because I obsess about how Mueller’s team deploys, it’s worth noting how the memo is signed.

The memo is signed by Andrew Weissman, the lead in the Manafort prosecution and (as the memo notes) a career AUSA in his own right. Greg Andres, who has also been on all the Manafort filings, includes his DC district license, making any continuity there clear. Adam Jed, an appellate specialist who has been deployed to this team in the past, is included. But before all them is Michael Dreeben, the Solicitor General’s killer attorney on appeals.

Aside from Mueller himself, Andres is the only lawyer listed who was not a DOJ employee when Jim Comey got fired, which is relevant given the memo’s argument that these attorneys could have prosecuted this with or without Mueller present.

Notably, Kyle Freeny, who has been on all the other Manafort filings, is not listed.

I’m unsure whether the filing uses the title, “Attorneys for the United States of America” because it underscores the argument of the memo — all their authority derives directly from Rosenstein — or if it signifies someone (probably Dreeben, who maintains his day job at the Solicitor General’s office) isn’t actually a formal member of Mueller’s team. But it is a departure from the norm, which since at least the roll-out of Brian Richardson as a “Assistant Special Counsel” with the Van der Zwaan plea, has used the titles “Senior” and “Assistant Special Counsel” to sign their filings.

Update: Christian Farias notes that this Attorneys for the US is not unique to this filing.

Manafort is especially screwed because Rosenstein is so closely involved

The memo starts by laying out what its presents as the history of the investigation. It includes the following events:

  • Jeff Sessions March 2, 2017 recusal
  • Jim Comey’s March 20, 2017 public confirmation of an investigation into “the Russian government’s efforts to interfere in the 2016 presidential election, and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was an coordination between the campaign and Russia’s efforts.”
  • Rod Rosenstein’s May 17, 2017 order appointing Mueller Special Counsel “to investigate Russian interference with the 2016 presidential election and related matters”

It then lays out the regulatory framework governing Mueller’s appointment. While this generally maps what Rosenstein included in his appointment order — which cites 28 USC §§ 509, 510, 515, and 600.4 through 600.10 — Mueller also cites to the basis of the Attorney General’s authority, including 28 USC §§ 503, 516, and all of 600. The latter citation is of particular interest, as it notes that the AG (Rosenstein, in this case) ” is not required to invoke the Special Counsel regulations” (which the filing backs by citing some historical examples). The filing then asserts that the Special Counsel regulations serve as ” a helpful framework for the Attorney General to use in establishing the Special Counsel’s role.”

Mueller then describes what the filing implies has been the process by which Mueller has informed Rosenstein of major actions he’s about to take. This consists of “‘providing Urgent Reports’ to Department leadership on ‘major developments.'” By doing it this way, Mueller implies a process without providing a basis to FOIA these Urgent Reports.

Then, the filing lays out how the scope of his authority has evolved. Initially, he notes, that was based on his appointing order. On August 2 — two and a half months after his appointment, almost a week after George Papadopoulos’ arrest, and the day after Andres joined Mueller’s team — Rosenstein wrote a memo describing the scope of Mueller’s investigation and authority.  That memo (which is included in heavily redacted form) authorizes Mueller to investigate,

Allegations that Paul Manafort:

  • Committed a crime or crimes by colluding with Russian government officials with respect to the Russian government’s efforts to interfere with the 2016 election for President of the United States, in violation of United States law;
  • Committed a crime or crimes arising out of payments he received from the Ukrainian government before and during the tenure of President Viktor Yanukovych.

In other words, by August 2 (if not before) Rosenstein had authorized Mueller to prosecute Manafort for the money laundering of his payments from Yanukovych.

Significantly, the filing notes that the August 2 memo told Mueller to come back if anything else arises.

For additional matters that otherwise may have arisen or may arise directly from the Investigation, you should consult my office for a determination of whether such matters should be within the scope of your authority. If you determine that additional jurisdiction is necessary in order to fully investigate and resolve the matters assigned, or to investigate new matters that come to light in the course of your investigation, you should follow the procedures set forth in 28 C.F.R. § 600.4(b).

The filing then lays out Manafort’s DC indictments and his challenge to Mueller’s authority. The summary of that argument looks like this:

Manafort’s motion to dismiss the Indictment should be rejected for four reasons. First, the Acting Attorney General and the Special Counsel have acted fully in accordance with the relevant statutes and regulations. The Acting Attorney General properly established the Special Counsel’s jurisdiction at the outset and clarified its scope as the investigation proceeded. The Acting Attorney General and Special Counsel have engaged in the consultation envisioned by the regulations, and the Special Counsel has ensured that the Acting Attorney General was aware of and approved the Special Counsel’s investigatory and prosecutorial steps. Second, Manafort’s contrary reading of the regulations—implying rigid limits and artificial boundaries on the Acting Attorney General’s actions—misunderstands the purpose, framework, and operation of the regulations. Properly understood, the regulations provide guidance for an intra-Executive Branch determination, within the Department of Justice, of how to allocate investigatory and prosecutorial authority. They provide the foundation for an effective and independent Special Counsel investigation, while ensuring that major actions and jurisdictional issues come to the Acting Attorney General’s attention, thus permitting him to fulfill his supervisory role. Accountability exists for all phases of the Special Counsel’s actions. Third, that understanding of the regulatory scheme demonstrates why the Special Counsel regulations create no judicially enforceable rights. Unlike the former statutory scheme that authorized court-appointed independent counsels, the definition of the Special Counsel’s authority remains within the Executive Branch and is subject to ongoing dialogue based on sensitive prosecutorial considerations. A defendant cannot challenge the internal allocation of prosecutorial authority under Department of Justice regulations. Finally, Manafort’s remedial claims fail for many of the same reasons: the Special Counsel has a valid statutory appointment; this Court’s jurisdiction is secure; no violation of the Federal Rules of Criminal Procedure occurred; and any rule-based violation was harmless. [my emphasis]

The bolded bit is the key part: Mueller is treating Manafort’s challenge as a challenge to Article II authority, making the appointment even more sound than previous Ken Starr-type Independent Counsel appointments were, because they don’t present a constitutional appointments clause problem. Mueller returns to that argument several times later in the filing.

Under the Independent Counsel Act, constitutional concerns mandated limitations on the judiciary’s ability to assign prosecutorial jurisdiction. In the wholly Executive-Branch regime created by the Special Counsel regulations, those constitutional concerns do not exist.

[snip]

[T]he court contrasted [limitations on Independent Counsels] with the Attorney General’s “broader” authority to make referrals to the independent counsel: the Attorney General “is not similarly subject to the ‘demonstrably related’ limitation” because the Attorney General’s power “is not constrained by separation of powers concerns.” Id.; see also United States v. Tucker, 78 F.3d 1313, 1321 (8th Cir.), cert. denied, 519 U.S. 820 (1996). That is because the Attorney General’s referral decision exercises solely executive power and does not threaten to impair Executive Branch functions or impose improper duties on another branch.

[snip]

It is especially notable that Manafort, while relying on principles of political accountability, does not invoke the Appointments Clause as a basis for his challenge, despite the Clause’s “design[] to preserve political accountability relative to important Government assignments.” E

From there, the memo goes into the legal analysis which is unsurprising. The courts, including the DC Circuit in the Libby case, have approved this authority. That’s a point the filing makes explicit by comparing the August 2 memo with the two memos Jim Comey wrote to document the scope of Patrick Fitzgerald’s authority in the CIA leak investigation.

The August 2 Scope Memorandum is precisely the type of material that has previously been considered in evaluating a Special Counsel’s jurisdiction. United States v. Libby, 429 F. Supp. 2d 27 (D.D.C. 2006), involved a statutory and constitutional challenge to the authority of a Special Counsel who was appointed outside the framework of 28 C.F.R. Part 600. In rejecting that challenge, Judge Walton considered similar materials that defined the scope of the Special Counsel’s authority. See id. at 28-29, 31-32, 39 (considering the Acting Attorney General’s letter of appointment and clarification of jurisdiction as “concrete evidence * * * that delineates the Special Counsel’s authority,” and “conclud[ing] that the Special Counsel’s delegated authority is described within the four corners of the December 30, 2003 and February 6, 2004 letters”). The August 2 Scope Memorandum has the same legal significance as the original Appointment Order on the question of scope. Both documents record the Acting Attorney General’s determination on the scope of the Special Counsel’s jurisdiction. Nothing in the regulations restricts the Acting Attorney General’s authority to issue such clarifications.

Having laid out (with the Rosenstein memo) that this investigation operates in equivalent fashion to the Libby prosecution, the case is fairly well made. Effectively Manafort is all the more screwed because the Acting AG has been personally involved and approved each step.

The other authorities cover other prosecutions Mueller has laid out

The filing is perhaps most interesting for the other authorities casually asserted, which are not necessarily directly relevant in this prosecution, but are for others. First, Mueller includes this footnote, making it clear his authority includes obstruction, including witness tampering.

The Special Counsel also has “the authority to investigate and prosecute federal crimes committed in the course of, and with intent to interfere with, the Special Counsel’s investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses” and has the authority “to conduct appeals arising out of the matter being investigated and/or prosecuted.” 28 C.F.R. § 600.4(a). Those authorities are not at issue here.

Those authorities are not at issue here, but they are for the Flynn, Papadopoulos, Gates, and Van der Zwaan prosecutions, and for any obstruction the White House has been engaging in. But because it is relevant for the Gates and Van der Zwaan prosecutions, that mention should preempt any Manafort attempt to discredit their pleas for the way they expose him.

The filing includes a quotation from DOJ’s discussion of special counsels making it clear that it’s normal to investigate crimes that might lead someone to flip.

[I]n deciding when additional jurisdiction is needed, the Special Counsel can draw guidance from the Department’s discussion accompanying the issuance of the Special Counsel regulations. That discussion illustrated the type of “adjustments to jurisdiction” that fall within Section 600.4(b). “For example,” the discussion stated, “a Special Counsel assigned responsibility for an alleged false statement about a government program may request additional jurisdiction to investigate allegations of misconduct with respect to the administration of that program; [or] a Special Counsel may conclude that investigating otherwise unrelated allegations against a central witness in the matter is necessary to obtain cooperation.”

That one is technically relevant here — one thing Mueller is doing with the Manafort prosecution (and successfully did with the Gates one) is to flip witnesses against Trump. But it also makes it clear that Mueller could do so more generally.

I’ll comment more on the memo tomorrow. But for now, understand this is a solid memo that puts the Manafort prosecution squarely on the same footing that the Libby one was.

 

Alex Van Der Zwaan: “Gone Native”

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Tomorrow, Alex Van der Zwaan, the former Skadden associate who unsuccessfully attempted to hide ongoing conversations between him, Rick Gates, Konstantin Kilimnik, and (presumably) Greg Craig that took place in September and October 2016 will be sentenced. The government is seeking prison time, his lawyers are seeking probation (in part to keep him out of our nightmarish deportation process).

In advance of the sentencing (and today’s filing explaining how all this is authorized under the Special Counsel mandate Rod Rosenstein gave to Mueller), I wanted to lay out a few more details revealed by the public documents in this case, including the prosecution and defense arguments on sentencing.

Taken together, the documents reveal a few interesting wrinkles.

First, the defense argues that Van der Zwaan didn’t hide the communications he had with Rick Gates and Konstantin Kilimnik in fall 2016 to hide the ongoing relationship Trump’s onetime campaign manager had with someone the FBI still believed had ties to GRU, the Russian intelligence agency behind the hack-and-leak of the DNC emails. Rather, his defense lawyers claim Van der Zwaan hid those things (or rather, attempted to hide them, using means it’s shocking a lawyer would believe might work) because he didn’t want to reveal to the Skadden lawyers who represented him in his first interview with Mueller’s team that he had recorded his conversations in that time period with Greg Craig.

He knew it was improper to have recorded his conversation with the Skadden senior partner; indeed, he understood that he could be fired for having done so. He also knew that a truthful disclosure about his September 2016 calls with Gates and Person A would almost inevitably lead to questioning that could quickly get to the existence of the recordings. During the interview, Alex was keenly aware that he was not speaking only to OSC. Alex was represented by Skadden lawyers, and anything he shared with the OSC would simultaneously be heard by Skadden. In his mind, his boss was listening to every word.

The explanation is unconvincing (so is his lawyers’ claim that Van der Zwaan couldn’t read the Ukrainian document he received). After all, Craig knew (and presumably has also told Mueller’s team unless he’s at legal jeopardy himself) of some of those emails. So Van der Zwaan was bound to be asked the same kinds of questions in any case. Which he was. Which is how he came to confess to making the recordings (and keeping his own notes) in the first place.

It’s not entirely clear why he made that recording. The defense filing claims he didn’t tell anyone about them. But given another detail laid out by all this paperwork, I at least wonder whether he intended to share it with Gates or Kilimnik.

Consider the “going native” claim made about Van der Zwaan by an unnamed witness (who might be Greg Craig).

Yet, although he had been instructed not to share advance copies of the report with the public relations firm retained by the Government of Ukraine, van der Zwaan had, in the words of one witness, “gone native”—that is, he had grown too close to Manafort, Gates, and Person A.

While we knew that Van der Zwaan had shared the Skadden report with Gates and Kilimnik back in 2012, in direct violation of Skadden’s wishes, the defense filing reveals another key detail. In 2012, either while he was moonlighting while being paid by Skadden to help Manafort, Gates, and Kilimnik spin the Skadden report to make the prosecution of Tymoshenko look kosher or just after, Van der Zwaan was talking about working for Manafort and Gates.

That’s another good reason to hide all this: Van der Zwaan was ignoring Skadden Arps instructions at a time when he was considering a job with Gates and Manafort, who weren’t technically the client, but who were laundering the money to pay Skadden with.

Finally, while I don’t make as much of the tie between Van der Zwaan and his father-in-law, Alfa Bank founder German Khan, as others do, the defense filing provides more details on when Van der Zwaan joined the family. He and Eva Khan first met in “spring” 2016; elsewhere that gets described as a year before their marriage, which took place in June 2017.

Which is to say, the entirety of Van der Zwaan’s relationship with the Khan family has taken place during the Russian operation and attempt to cover up the tampering in the US election.

Just for fun: Back in 2008, American diplomats passed on complaints about Khan’s heavy-handedness in the operations of BP Russia, including the anecdote that Khan said he considers The Godfather to be his “manual for life.”

At dinner that evening, Khan had told a stunned Summers that The Godfather was his favorite movie, that he watched it every few months, and that he considered it a “manual for life.”

There’s actually no reason to believe that Van der Zwaan would have become a valuable enough resource that Khan would marry off his daughter to him, Godfather like.

But Van der Zwaan’s behavior in 2016 may make better sense considering the full context of that “going native” comment.

Update: I see from Zoe Tillman’s coverage of Van der Zwaan’s sentencing (where he was given a month in jail) that his lawyers fibbed a bit when they said his second grand jury appearance was entirely voluntary.

[Andrew] Weissmann refuted the idea that van der Zwaan voluntarily came back to tell the truth, saying he had been served with a grand jury subpoena after his first meeting in November 2017 and would have been required to return to the United States anyway.

2012: Van der Zwaan working on Tymoshenko report in facilitating role

July to early August 2012: Van der Zwaan provides unauthorized copy of Skadden report on Yulia Tymoshenko to PR firm engaged by Ukraine’s Ministry of Justice

September 2012: Van der Zwaan provides Rick Gates talking points to spin Skadden report

2012-2013: Van der Zwaan conducts discussions over Gmail about working directly for Gates and Manafort; these were among the other materials Van der Zwaan attempted to destroy in advance of his Mueller interview

2014: Eva Khan moves to London to study art (she is 11 years younger than Van der Zwaan)

Spring 2016: Van der Zwaan and Eva Khan meet

September 2016: First public allegations of spam traffic between Trump marketing account and Alfa bank

September and October 2016:

Rick Gates contacts Van der Zwaan, urges him to contact Kliminik and sends him a document in Ukrainian

September 12, 2016: Van der Zwaan emails Konstantin Kilimnik, who asks him to contact him on Telegraph or WhatsApp

Van der Zwaan reports this to (presumably) Greg Craig

Van der Zwaan reports back to Gates

[These communications continue as a series]

January 2017: Paul Manafort provides Trump a strategy to rebut the Russian investigation by discrediting the Steele dossier

January 2017: Brian Benczkowski leaves transition team and returns to Kirkland & Ellis

March to May 2017: Pending Assistant Attorney General nominee Brian Benczkowski advises Alfa Bank on lawsuit against Buzzfeed

April 2017: Jeff Sessions asks Benczkowski if he wants to be AAG for Criminal Division

May 26, 2017: After months of consultation with Alfa Bank (and German Khan by name) sue Buzzfeed over the Steele dossier

June 2017: Van der Zwaan and Khan married; she applies for permanent residency as his spouse

Prior to November 3, 2017: Van der Zwaan gives Skadden his laptop from the 2012 time frame

October 3, 2017: Alfa Bank lawsuit is moved to federal jurisdiction

November 3, 2017: Van der Zwaan participates in eight hour voluntary interview, represented by Skadden Arps lawyers; during that interview, FBI confronts him with an email he withheld from Skadden’s discovery

November 16, 2017: Van der Zwaan returns to the US

November 17, 2017: Van der Zwaan surrenders his passport to the FBI and retains new counsel (this is probably when Skadden fired him)

November 29, 2017: Kilimnik emails Manafort for review of purportedly exonerating op-ed

December 1, 2017: Van der Zwaan’s second interview with FBI

February 14, 2018: Van der Zwaan agrees to plea deal

February 20, 2018: Van der Zwaan pleads guilty

February 23, 2018: Gates pleads guilty

May 2018: Date Van der Zwaan would have made partner

August 2018: Due date of Van der Zwaan son

Did Ecuador Gag Julian Assange for Interference in Spain AND the US?

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On Wednesday, Ecuador shut off Julian Assange’s access to the Internet and (far more interestingly) prohibited any visitors to the Embassy. It has been assumed the gag was a response to this tweet likening the German arrest of the Catalan leader Carlos Puigdemont on Spanish rebellion charges to the historical Nazi arrest of Catalan’s leader.

That’s definitely one of the two things that has gotten Assange in trouble with his hosts before. But I wonder if that’s the only thing that precipitated this gag.

In its statement about the gag, the government of Ecuador said Assange’s social media messages “put at risk the good relations the country has with the UK, the rest of the states of the EU, and other countries.”  It’s not just Spain and the UK that Ecuador is trying not to piss off.

And yesterday, in response to the campaign to lift the gag on Assange, Ecuador released another statement insisting that it had acted within the constitution and international law. As part of the statement, it reminded Assange of his duty not to interfere in the political activities of other countries prohibited to foreigners.

The Foreign Ministry also emphasizes that, beyond this commitment, all persons, regardless of their status, including those under international protection, are obliged to respect the norms of international law that govern peaceful coexistence and friendly relations. cooperation among the nations, citizens and civilized peoples of the world, among them the duty to abstain from political activities in a foreign country, provided for in Article 38 of the American Declaration of Rights and Duties of Man. The legal text states that every person has the duty not to intervene in political activities that, in accordance with the law, are exclusive of the citizens of the State in which he is a foreigner.

This sounds like more than a tweet suggesting the Germans are acting like Nazis. It sounds like the ConFraudUs language we’ve seen Mueller’s team to use.

And while the gag closely followed Assange’s tweet, it also followed the detention and questioning of Trump advisor Ted Malloch when he arrived in Logan airport Tuesday. Among the questions the FBI asked Malloch, they asked about his contacts with Roger Stone and Wikileaks.

“The questions got more detailed about my involvement in the Trump campaign (which was informal and unpaid); whom I communicated with; whom I knew and how well — they had a long list of names,” Malloch said. “They seemed to then focus more attention on Roger Stone (whom I have met a grand total of three times and with groups of people); Jerome Corsi, a journalist who edited a memoir I had written some years ago; and about WikiLeaks, which I knew nothing.”

He said was asked specifically if he had visited the Ecuadorian Embassy in London, where WikiLeaks founder Julian Assange has been holed up for nearly six years. He had not, he said.

The FBI let Malloch go, but not before seizing his phone and subpoenaing him to appear before Mueller’s grand jury on April 13.

That’s why I’m so interested that Ecuador has prohibited Assange visitors. The one time, in the past, they cut off his Internet access seemed to be a response to his release of emails designed to influence US politics, not Spanish politics. And his well-known use of mules to carry data to him would necessitate cutting off human visitors as well if Ecuador wanted to prevent his participation in foreign affairs.

In any case, if Mueller’s team ever provides solid evidence of more malign Assange involvement in the election, this is the kind of response I’d expect Ecuador to take.

Michael Flynn’s “Revolution”

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Lt. Gen. Michael T. Flynn spoke in front of the Young Americans for Freedom a week after the 2016 election. His language is worth noting.

I’d seen this speech shortly after the inauguration and found it disturbing at the time, given its references to insurgency and revolution and borderline incitement. Now that we know more about foreign and domestic influences conspiring to defraud the U.S., Flynn’s speech is even more disquieting.

Following is a transcript of the speech embedded here; you may want to watch the speech in case it gets taken down. I’m skipping the rah-rah fluffy intro speech. It’s not really necessary; it includes highly predictable insults to the previous administration.

(An aside: the way he hangs onto and hugs the introductory speaker is icky. She looks distinctly uncomfortable at one point.)

[Begin 3:41] Well, um, somebody mentioned Dinesh D’Souza, I was with Dinesh D’Souza last night, and uh, and the other, for the young audience here, for the young ones here, and I mentioned it to a couple guys also with Milo Miopolous (sic). So, see a lot people in here won’t know who he is. I tag him on Twitter, you know, because he’s a phenomenal individual, and for, I’m mentioning him tonight, because he spoke alongside me last night to another group of folks and you know he’s definitely, he’s one of the most different, most brave people I have ever met. We have different views on different things, but he is deeply, deeply conservative in his views about this country. [4:36]

And uh, so he is going around this country at the undergraduate in our colleges and universities and he is fighting for you, for all of the people in here. We had two individuals last night, one from Bucknell and one from UC-Irvine who was with us, they were the presidents of the Republic associations of their schools, talking about their, what they were being assaulted for, they were being condemned for, [4:42] you know, and then all of a sudden of course we had the big victory on Tuesday and everybody broke out the red hats and was walking around campus.

But um, so you know what you are doing, what you’re doing is amazing, not only in this foundation, but also what you young people are demonstrating. I’m going to talk bit about that because this, this is about having courage, this is about having courage. When you think, when you think about what Donald Trump, you know, right here, right? (patting name on podium) I mean that, that, unbelievable, and I’m not sure, if this is probably the first time somebody actually used this room, maybe, huh? Maybe it probably is for an event like this. When you think about what DonaldTrump, what president-elect Trump and his family endured over the last eighteen months plus, and you can just count down the number of organizations and people on both sides of the uh, on both sides of sort of the electorate, right, on the establishment side. This was not an election, this was a revolution. [6:17] This was a revolution. And I have, uh, been doing this a bit for him.

One of the things that occurred in this revolution is, and I was just talking with Attorney General Meese about this [6:32], this was a digital election. Because the media, the normal media, ninety-nine percent of the media, was not on Donald Trump’s side, not on president-elect Trump’s side. And you saw the bombardment, the constant barrage and attacks every single day. I was with him one time, and we’re flying somewhere, and uh, you know we’re flipping through the channels on his plane, and like every single, every single channel we went to, it was him, it was a negative, a negative thing about him, but he’s like, “God, you can’t get better press than this,” you know? It was unbelievable. I mean, why not? So he’s like, he says, “Why the hell should I spend a dime on ads?” Right? I mean, and what happened was, he knew. Think about this, he’s essentially a real estate developer, he was a real estate developer, and in real estate, in real estate you find underappreciated real estate, you buy it, you develop it, and you sell it at a higher price, make some money, right? You find underappreciated real estate, and he did that, very well, for his whole life, pretty much, many of the things he was involved in. [8:00]

What he put his finger on, what he put his finger on was tens of millions of people in this country who felt deeply underappreciated by our government, by Washington DC. And he did it in a way that nobody saw, he did it in a way that everybody said, ah, this is a flash in a pan. This guy’s a joke, okay? When you think about it, about what he achieved, this is, and actually I was just, uh, in fact I was just going through social media ’cause social media is the only thing reporting it, and uh, I was just telling the folks at my table that he, uh, so he won the electoral college, obviously. The final count right now was that he got 306 to 232. But they are reporting, but the media’s not reporting this, this is being reported in social media. I’m going to spend a little time talking about social media, because there’s so much power in social media for your generation, for your generation. So it’s being reported now, and it’s flying around in social media, that he also won the popular vote in a big way, [9:16] probably somewhere close to, we’re looking at maybe seventy, maybe, to ninety thousand overall, but it could even be, it could even go higher because the mainstream media does not want to, they did not want to report Michigan. ‘Cause they felt so bad having to report Arizona. Now, you know, I can stand up here and say it doesn’t matter ’cause all he needed was 270, know? But it does matter, it does matter. [9:41]

Because there are millions and millions of people, and I’m going to tell you we have two big problems in this country, two huge problems, one is Hollywood, and one is right down the street here, okay? We have two big problems, and you, you, young Americans, you’re the ones who are going to have to figure out, because we, we must, you have to, you have to fight for this country, you have to fight for this country. You can’t sit back. You have a responsibility. You can’t sit back. You’re part of something special. You’re here, because you’ve made a decision about something in your life, okay? You’ve made a decision about something in your life, and it’s really super important, super important. We cannot lose sight, we cannot lose sight of what our country was built upon, and we should not fear, we should not fear what our country is built upon. Our country was built upon the Judeo-Christian principles and values that make up our Constitution. [10:48] And our country is about individual liberties, it’s not about liberties for the government, it’s about liberties for the individual, individual rights. Just look at our Bill of Rights, it’s all about individual rights. Right to bear arms, peacably assemble, practice whatever religion you want honestly. So it’s individual rights, you have the right to go out here on the steps of Trump Tower and yell bad things about the next president. Or the current president, as long as you don’t, you know, do it in a damaging or a hurtful way physically. We allow that, right? It’s crazy, but we do it. It’s individual rights. That means you have the right to decide what you want to do, you have the right to decide what you want to do. [11:38]

So I will tell you that, uh, in the world of sort of digital media, ’cause I think this is super important to you all, ’cause it’s going to change again, going to change. I’ll give you one example. We were, on a Sunday afternoon just about a month ago, on a Sunday afternoon, we’re in our third stop, and we’re sitting there, and we, we’re going to Colorado the next stop, but we were go into Pueblo, Colorado. We ended up going into a place called Grand Junction, ’cause we had not been out into the western side of Colorado in all the stops. I don’t know how many people are here from Colorado, but, uh, but so we’re saying, okay, let’s, we’ve gotta’ go out and sort of touch the people out in the west, ’cause it’s very sparse in terms of populated area. And so, Sunday afternoon, we’re trying to figure out, well, we made some calls, how many people will show up, what’s the town we want to go into. We into a place called Grand Junction, it has about, like I think the population is about five thousand. So they said, well maybe we’re going to get in there about three o’clock in the afternoon, probably you’ll talk at about four, so maybe people will out of work, will come out of work, maybe there will be a few kids who’ll come out of school. [12:49] So, we said, how do we want to, you know, so let’s make some calls, let’s see what we want to do. So we gotta’ literally about thirty minutes later, yeah, we think we’re going to get about two thousand. So Trump said, let’s make, let’s go, it’s worth it, he hadn’t been out there, we have the time, and we’re traveling, we’re moving. So then we said this, why don’t you tweet out, tweet out, that you’re going to be in Grand Junction, Colorado tomorrow, that you’re going to arrive at three o’clock in the afternoon, okay? And that was about four-thirty the Sunday before the Monday that we showed up. Eleven thousand people showed up. [13:31] Eleven thousand, yeah. I mean, eleven thousand people showed up to a place, I mean, it’s a beautiful little place in the middle of nowhere. I give you that example because we have many of those. We have many of those. And we have an army, ‘kay, as a soldier and as a general, as a retired general, we have an army of digital soldiers. What we are now, what we call, what I call them, ’cause this was an insurgency, folks, this was run like an insurgency. This was irregular warfare at its finest, in politics. [14:11]

And that, that story will continue to be told here, but we have what we call citizen journalists, ‘kay, because the journalists that we have in our media did a disservice, to themselves actually more than they did to this country. They did a disservice to themselves because they displayed an arrogance that is unprecedented. And so the American people decided to take over the idea of information. They took over the idea of information [14:52] and they did it through social media. How many of you know about Periscope? ‘kay? Raise your hands up, it’s okay to raise your hands up, I’m not going to give you a question, I’m not going to give you a test question, yeah, okay, good.

Periscope. I didn’t know about Periscope until a few months ago, didn’t know about it. I watched one individual who’ll be nameless here, but one individual who has 650 thousand followers just on Twitter, which these days doesn’t seem like a lot but it’s a lot, enough. [15:28] This individual is a huge influencer, so he’s, we title him, he’s an influencer, ‘kay? So he puts out, he puts out a tweet to his 650 thousand followers, and says, “I’m going to be on Periscope doing a live media broadcast in fifteen minutes,” one-five, fifteen minutes. 35 million people viewed that. 35 million. Because everybody said, hey, because the guy’s great, he’s great, when he talks he’s out there, I mean, and he is a, he’s an American patriot, he’s an American patriot.

[16:09] So when we talk about patriotism, how do we fight as patriots today? We fight at the voting booth, we fight in our schools. You know in the military, when you’re a young officer or sargeant, corporal, private, you know we expect, we almost demand, we demand those individuals to be demonstrate physical courage, to be fearless. Demonstrate physical courage. Why? We want them to do it in, on the physical exercise field, we want them to do it in the very physical demanding extremes we put them through on training, because we want them to demonstrate physical courage in the face of all odds on the battlefield. The more senior that you get, and I learned this, but actually I, I am, I completely believe the opposite now for our younger generation. And it’s the most, the more, the older you get in the military we sort of begin to change that physical courage to what I call intellectual courage. And intellectual courage actually takes more bravery at times. Takes more bravery at times. Because to be intellectually courageous, and this is for you, this is really for this foundation, this is for the young people in this room, you are, you are demonstrating a level of intellectual courage that our country desperately needs.

[17:48] So for this election, for this particular election, I’m going to be professional, I’m going to be humble, because I think that’s a characteristic of the American, of just the American, of the American patriot. It’s humility in the face of odds, right? A good winner, not a sore loser, but we don’t have to be polite. In fact we have to stop being polite for our principles. We have to stop being polite for our values. We have to stop being polite for what we stand for. We have to stop apologizing for who we are and what we believe. We cannot have that anymore. And that’s you, so I’m looking and I’m trying to pierce through the lights that are in my eyes (sic) and looking at the young people.

[18:44] I’ll tell you two things I learned from my parents. Both of them are deceased now, my father was a World War II and Korea veteran, my mom, a wonderful, wonderful lady, she just died a year ago, a little over a year ago now, one of nine kids from a very small town up in Rhode Island, the state of Rhode Island. And they taught us all two things. The thing that my father taught me, was to treat, the Golden Rule, the Golden Rule is what you, is what existed in our home. Treat others like you want to be treated. That’s the Golden Rule. Treat others like you want to be treated. And you’ll, and if you do that and if you go through life it’s the old adage by the time you’re ten years old you’ve learned to say Yes, ma’am, No, ma’am, Yes, sir, No, sir, thank you, please, all those little things. If you just use those words routinely, you’ll be highly successful in life with a few other, a few other traits that are brought out as you get older. [19:45] But treat others like you’d like to be treated. That’s what he taught us.

[19:50] The thing that my mother taught us was, my mother was an educator. She was a, she was, she got her law degree at the age of 69 years old. I mean uh, phenomenal, that’s after having nine children and moving around and all the kinds of things that you do. Because she was passionate, she was passionate about learning, and the idea, the notion to be a lifelong learner. Never stop learning. Never stop learning. Go to every single thing, look, you know, read, travel, pay close attention to what you’re doing. And I, I joke about this sometimes, and I say because of my own sort of upbringing and my own, uh the fight, and there’s mom in the middle of those nine, fighting for a position, fighting for a position I’m the ultimate [garbled] act of compromise, compromise a guy out of a pair of socks.

[20:52] So what I’m saying to you is that you have to think about what is it you plan on doing in your life, and you’ll find that there’s a path out there that will have many, many exits. And you have to decide do you stay on that course, and what is that course, is that course something that is, that is inherently part of your being. Is it you and your principles, you and your values, what your belief systems are, ’cause they will change. And there will also be other life changes, also be many other life changes.

[21:29] So a couple of things, because I think this is important on veterans, on veterans, on veterans I’m going to talk because this is Veteran’s Day weekend. And I’m not going to go without reminding people that if you watched the news today we had four killed in action in Afghanistan. Today. Fourteen wounded, numbers may go up a little bit in um, Bagram, Afghanistan. You know, and my wife, my wife got a text from a very good friend of mine when I was a brigade commander he was a battalion commander of mine, Mark Costello, and his wife Barbara. My wife texts, or my wife texts me with a message from his wife and says, “Hey, our son is serving in Bagram, is there anything that you guys can find out?” and I mean, you don’t know, so we went back, gave her some guidance on you know they called up the, the rear detachment, all this, because they’re very close, my wife and this gal Barbara are very close. Because it happened and it was big and it was a large gathering, her son is the commanding general’s aide for the unit that’s at Bagram. So there was an event and in this case it was a running race that they I guess we do there fairly routinely.

[22:46] Well, her son was wounded this morning. Thank God he wasn’t killed, but he was wounded, he was wounded pretty severely and he’ll re– he’ll probably recover, but he was wounded pretty severely. So, we must remind ourselves we’re over, we, the United States military, are in over a hundred countries. Right now we are engaged in direct combat in seven. Seven countries. So, on this Veteran’s Day weekend as we reflect about what just happened in this country, what just happened, we just went through a revolution. This is probably the biggest election in our nation’s history since bringing on George Washington when he decided not to be a king. That’s how important this is. You can compare this to Reagan, you can compare this to FDR, you can compare this to Teddy Roosevelt, you can compare this to Abraham Lincoln. But I’m telling you there’s no comparison. And the reason why I say that is the reason why I’m standing here, the reason why I decided to do what I, I’m doing because there is a sense, there is a sense in this country that we were going in a direction that was irreversible. It was irreversible to the point of, you know, it’s cool, and you all know this, all of you that mess around with this different college organizations so bravely. You know it’s cool to be called progressive, right, it’s a cool word. I’m a progressive. Who doesn’t want to be progressive? Right? I mean, it’s a cool thing to be, right? Progressive is socialism. Progressive equals socialism. The riots and the protests that we have out on our streets tonight, last couple of nights, that’s not Donald Trump’s fault. I mean, everybody’s blaming Donald Trump. It’s not Donald Trump’s fault. That’s the corruption in our government. That’s the sickness in our system. [24:50] That’s the lack of jobs and safety and security in our inner cities. Those are the kinds of things that people are protesting about. Now there’s some, you know, some paid anarchists in there, I can tell you that, I can guarantee it, you know in fact I know it for certain, and they’ll be dealt with through our law enforcement system. You know, we’ve had an assault on our law enforcement system. We can’t have an assault on our law enforcement.

[25:27] The most, the biggest strategic advantage that our country has, more than any other country on the planet, is something called the rule of law. I’ve been on six continents and I’ve been in some of the worst places that a human can go to, and seen some unbelievable things. The rule of law can never, can never break down in this country. It must never break down in this country to a point where people begin to wonder is it, you know, what’s going on here? and getting concerned. And when you don’t have leadership, when you don’t have leadership that stands up and says, “Hey, this is wrong! Stop it!” And here’s what we need to do. We have, and we experienced an incredible deficit of leadership. In my, in my first meeting with Donald Trump, because I’ll tell you, my, for me personally, the last time I was involved in politics was when I was in high school. Heh, you know, I mean, you’re, it’s like somebody said, “Hey, do you want to run for student class, you know, president?” because nobody else wants to and the election’s today. You know, okay, and you’ve got to go handle like the Coca Cola machine money or something, you know? Seriously. And I find myself here today, because we, we have a country, I know, I know what this country’s about. I know the threats that we face. I know the threats that we face. You knoW, and there’s people that think, “Aw, there’s nobody out there that wants to see our way of life go away.” Well, there’s plenty of people. There’s entire nation-states that do not appreciate the American way of life. And that’s why we have to fight for it, we have to fight for it. we find ourselves fighting for it more right here at home, sometimes, and especially in the last, in this political cycle, this political madness that we’re going through. But I’ve seen it, I’ve seen it now for probably the last two decades of my life. [27:40] And for me personally, I felt something, and that drove me to challenge, I mean in the intelligence business, it’s always truth to power, [garbled] do you always sort of challenge, the, always sort of bucking the system, because you know, nobody likes, nobody wants to see you, because it’s never good news. Nobody wants to see you, but I’m standing here, I, I get a call and asked to come up to New York to see Donald Trump a while ago, this is like the summer of 2015. And we met, wonderful, just a wonderful individual, just an incredibly wonderful person. Loves this country.

[28:28] And I, sitting down with him, I really only had two questions that I wanted to ask, and then we talked about the world situation and a whole bunch of other things. We spent a couple hours that day. And my first question was “Are you serious?” you know, because I’m a serious guy, and I’m not going to waste my time if you’re not serious. And so he convinced me that he was serious. He said, “Yeah, I’m absolutely serious. I’ve been paying very close attention to what’s going on and I just, I can’t, I, for me,” him, speaking about him, “for me this is my last chance if I think I’m going to help this country.”

‘Cause the second question really had to do with that. Second question was, which I think was the most difficult question to answer, and it was never asked in any of the debates. Chris Wallace kind of touched on it at the very end, but this is the most difficult question. The question is, why do you want to be president? Why do you want to be president? And he convinced me in about five minutes how much he loved this country, how much he saw what was happening to it, and how much he felt like he could actually do something about it.

And that to me, I was sold, I’m like, wow, and sort of from that moment on, my direction in life completely changed. And things like that are going to happen, particularly for the young folks in the room here. I’m going stop here in a second because I know we’re going to take a few questions here tonight, ’cause I was asked to maybe answer some questions from young folks here. But you know this and all the older folks here know that, that your life direction will change and could change on a dime sometimes, you know, it will change. And so what I ask you to do is reflect on what just occurred, study it, think about it, talk about it, debate about it, act, act on it.

[30:36] You know, one of the things Abraham Lincoln always used to say was, “Actions speak louder than words.” You know, and I think the Gettysburg Address, amazing, amazing, and I think it was 85 words in two minutes, wasn’t really even recorded at the time other than what they had on his notebook. It wasn’t until a couple years later when people started to go, “Whoa, look at this thing,” you know, where he says, “Let us not forget,” and he discusses and describes the sacrifice, that, this case, talking about the Battle of Gettysburg, where he talks about Americans who gave the last full measure of devotion on behalf of our country. On behalf of the United States of America at that time. Amazing, amazing resilience, amazing toughness. Not anger, determination, determined to protect what it is that we have.

[31:40] And so, I think, I believe this foundation, what you represent, so for the sponsors that are here I thank you so much for, you know, continuing to kind of strengthen this, this, this, you know, great idea. But for the young people that are here, you know, this is, you have to, you have to fight for what you believe in. You have to be prepared to fight for what you believe in. And you have to serve, you have to serve. You decide how you want to serve our country, whether it’s in uniform or whether it’s in some other capacity. Doesn’t matter. Serve this nation. Serve it bravely, serve it boldly, serve it honestly. If you want credibility, others will give you credibility. If you want credibility, maintain your integrity. Protect your integrity. People will give you credibility, you have to give yourself integrity.

[32:44] So on that note, ladies and gentlemen, thank you very much and I’ll answer a few questions.

I came away from this speech with a number of questions:

— Isn’t Milo Yiannopoulos‘ nationality British? Why should Americans care at all about his “deeply conservative” views about the U.S.?
— Was Yiannopoulos’ tour of schools during 2016 a campaign tour providing a donation in kind to the Trump campaign which went unreported to the FEC?
— Who were these young Republicans from Buckness and UC-Irvine who were assaulted? Are there videos of these assaults and are there police reports?
— Why is Ed Meese still referred to as Attorney General and treated with such deference though he hasn’t been in government since the Reagan administration?
— Whose “revolution” was this? Was this a veiled reference to Cambridge Analytica’s work? Why did he call the campaign an insurgency? Was there more going on during the campaign which inspired this language, or is this simply an old soldier’s military hyperbole?
— Why did Flynn say social media was reporting Trump won the popular vote? Who or what fed this to Flynn, or fed it to social media? To what social media in particular was Flynn referring?
— Does Flynn have a history of fundamentalist Christianity that he inserts Judeo-Christianity as a foundation of the Constitution rather than deism?
— Did 11,000 people really show up in Grand Junction, or was this one of Team Trump’s frequent distortions, not unlike Flynn’s distortion of Grand Junction’s population, estimated at 61K. Did the Russian IRA team help boost promotion of this event? Was this an example of a “Flynn fact”?
— Is Flynn really advocating abandoning civil behavior among people who are frequently racist because “we have to stop being polite for our values”?
— How was Flynn so certain there were paid anarchists among the post-election protesters?
— Who coached Flynn on the propagandistic elements of his speech, like the points about protesters’ motivations, so-called assaults on law enforcement, the stress on the rule of law?
— How much of Flynn’s animus is pure racism? The reference to “safety and security in our inner cities” is more than a dog whistle. Was Flynn’s reference to a lack of leadership similarly a distaste for Obama as a non-white commander-in-chief, or just disgruntlement post termination?
— Flynn made several references to fighting in schools; how much of this is a theme shared to encourage actual violence in school systems?
— Was Flynn already engaged with Russian and Turkish contacts before he was terminated by Obama? Was this why he had a “forbidden” internet network connection installed in his Pentagon office, in defiance of military regulations? How/why/when did the Trump campaign know to approach Flynn in 2015?

I also came away with a few observations:

— Flynn has a weak grasp of the Constitution, let alone the First Amendment, demonstrated by his near-proselytization of Judeo-Christian ideology while advocating a freedom of religion.
— The Grand Junction campaign event merits more scrutiny — see Denver Post coverage and compare it to Flynn’s remarks.
— Flynn’s public statements in 2014-2015 were very much at odds with White House foreign policy; he also avoided being direct about Russia when he wasn’t glossing over Russia’s aggression.
— He’s a horrible public speaker. I hope he didn’t talk like this extemporaneously to our troops. I certainly hope this wasn’t a prepared speech. He comes off as disorganized and rambling as a certain resident of the White House.

Depending on whether Flynn had contacts with Russian and Turkish agents before and during the election season — before the post-election transition — I have to wonder if he pleaded guilty because his language and behavior met the definition of seditious conspiracy when it wasn’t captured on public camera. Is this what Team Mueller might hold over Flynn for leverage?

Mueller Prepares to Reveal the First Cards in the Hack-and-Leak Conspiracy

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For weeks, I’ve been having a persistent exchange with people, including editors. They say there’s no evidence of collusion between Trump and Russians. I say it wouldn’t be collusion anyway, but conspiracy. They say there’s no evidence of conspiracy either. Then I point to Rick Gates’ guilty plea on conspiracy to defraud the US. I note that Gates effectively pled guilty to hiding the fact that he and Paul Manafort were working for pro-Russian Ukrainians while pretending to be engaging in politics for independent reasons. My interlocutors always say, in spite of the fact that Mueller has always insisted this went through the election period, that that doesn’t have anything to do with the election.

Yesterday’s news that Rick Gates and Alex Van Der Zwaan believed that Konstantin Kilimnik, the Oleg Deripaska crony with whom they were engaging through the entire period Manafort and Gates were working on the Trump campaign, was a current or former Russian military intelligence agent, should put that canard to rest. As the government sentencing memo in Van Der Zwaan’s plea explains,

That Gates and Person A were directly communicating in September and October 2016 was pertinent to the investigation. Federal Bureau of Investigation Special Agents assisting the Special Counsel’s Office assess that Person A has ties to a Russian intelligence service and had such ties in 2016. During his first interview with the Special Counsel’s Office, van der Zwaan admitted that he knew of that connection, stating that Gates told him Person A was a former Russian Intelligence Officer with the GRU.

Worse still, and less commented on in the coverage of this, at some point, Kilimnik actually worked for Manafort’s company!

Person A worked with Manafort and Gates in connection with their Ukraine lobbying work. Person A is a foreign national and was a close business colleague of Manafort and Gates. He worked in Ukraine at Manafort’s company Davis Manafort International, LLC (DMI).

So Manafort either still was or had employed a person that the FBI believes still works for the intelligence agency behind the hack-and-leak of Hillary Clinton’s emails (the same agency, as I keep pointing out, that Sergei Skripal shared secrets about with the Brits), and that’s one of the things Manafort and Gates were hiding all the way through their election work by not disclosing who they were really working for on the Ukrainian lobbying.

That seems like pretty significant evidence in the hack-and-leak conspiracy.

Still, commentators seem to miss some of what is going on with this disclosure, made to ensure that Van Der Zwaan gets prison time for actions that (as I’ll return to, probably next week) make Van Der Zwaan look far sketchier than even his plea does.

Mueller’s team (effectively, the same prosecutors who are prosecuting Manafort, with one junior prosecutor added) filed this sentencing memo on March 27. Last week, the same folks filed a request for extra time to respond to Manafort’s various challenges to his prosecution so far: a challenge to Mueller’s jurisdiction in this matter (arguing it’s outside the scope of what Rod Rosenstein appointed Mueller to do), as well as two challenges to the way he was charged. In their motion (which Manafort did not oppose), they asked for an extension from March 28 — yesterday — to April 2 for their response to Manafort’s challenge to Mueller’s authority, and two more days for the challenge to how he was charged. Significantly, they asked for the extension because 1) they were busy with other matters preparing this case for trial and 2) they needed to sit down with Deputy Attorney General Rod Rosenstein to work out how they were going to respond to the challenge to Mueller’s authority.

Under that schedule, the government’s response to [the challenge to Mueller’s authority] would be due on April 2 and the government’s response to [the challenge to how he was charged] would be due on April 4, 2018. The additional time is needed because the government is preparing its responses while conducting other matters to prepare this case for trial and because one of the responses—involving the challenge to the Special Counsel’s authority to conduct this prosecution—requires the Special Counsel to coordinate closely with other interested components of the Department of Justice, including the Office of the Deputy Attorney General, who is the Acting Attorney General for this case.

Understand, while these are totally valid challenges in their own right, the special counsel challenge, especially, is unlikely to succeed, not least because of the strong precedent in the Scooter Libby case, so long as Mueller shows how Rosenstein approved his actions and agreed they were related to the hack-and-leak case. That said — and the real reason Manafort’s team challenged Mueller’s authority — by laying out how Manafort’s efforts to hide who he’s actually working for and the overwhelming debt that led Manafort to trade influence with Trump to obtain loans to stave off bankruptcy relate to the hack-and-leak and therefore legitimately arose out of that investigation, Mueller will have to disclose a significant part of his theory of the case.

Effectively, Manafort is doing this in significant part to understood how much Mueller understands about the conspiracy as it pertains to the hack-and-leak.

Manafort made a similar (and equally justifiable) demand yesterday for unredacted versions of the search warrants against him, again, to understand more about the investigation and case against him.

Manafort is likely doing this for two reasons. First, to weigh whether he wants to flip on Trump, while he still can. And relatedly, to reveal to Trump where Mueller is going, and how much it implicates things Trump and his family members have done. This is Manafort’s bid to change the momentum in this case, which is now all working against him. 

It has been clear for some time that Mueller has been trying to line up as many cooperating witnesses as he can and obtain evidence in the case in chief without revealing to Trump details that will make Trump do something rash, like firing Mueller and/or pardoning Manafort and all his spawn. Manafort has, unsurprisingly, employed various tactics to undermine Mueller’s ability to implement his timing strategy unchallenged. This one is a legitimate tactic bolstered by his trial schedule.

So faced with the deadline to lay out how the Ukrainian lobbying relates to Manafort’s involvement in the hack-and-leak, Mueller asked for a slight delay. One thing he did in that slight delay was reveal that he knows that Rick Gates knows that Konstanin Kilimnik — who was working with Gates to try to delay the disclosure of how Gates and Manafort had screwed over Ukraine before the election, and was trying to help Manafort spin his prosecution as recently as November — is or was part of the same intelligence agency behind the hack-and-leak conspiracy.

Surely Mueller’s team knew they were going reveal this detail in the sentencing memo, and the certainty that Mueller would provide such details may be why Manafort agreed to the delay.

Mueller just revealed that at the same time GRU was implementing a hack-and-leak campaign designed to hurt or defeat Ukrainian hawk Hillary Clinton, a current or former GRU official was also conspiring to prevent or delay (until after the election) full disclosure of how GRU and Russia conspired with Trump’s campaign manager and his deputy to tamper in Ukrainian affairs.

At the same time GRU was tampering in our election, GRU was conspiring with Trump’s campaign manager to hide how they had conspired to tamper in Ukrainian democracy as well.  

The other thing Mueller did with the delay is win one more day before the grand jury.

I’m vacationing in an undisclosed location right now, writing this while the spouse sleeps so he doesn’t accuse me of failing vacation, hoping to hell none of this breaks while I’m still supposed to be relaxing. But it seems like a whole lot is going to start breaking on Monday.

The Papadopoulos Interfax Interview and Another Syria Data Point

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The other day, the WaPo had a story reviewing the larger role in the Trump campaign George Papadopoulos had than the Trump folks admit. Much of this work has appeared elsewhere, but I’m particularly interested in the WaPo’s account of the direction Deputy Comms Director Brian Lanza gave to George Papadopoulos regarding an Interfax interview he would do. He emphasized that the campaign wanted the message that it wanted a partnership with Russia on Syria.

When a Russian news agency reached out to George Papadopoulos to request an interview shortly before the 2016 election, the young adviser to then-
candidate Donald Trump made sure to seek approval from campaign headquarters.

“You should do it,” deputy communications director Bryan Lanza urged Papadopoulos in a September 2016 email, emphasizing the benefits of a U.S. “partnership with Russia.”

[snip]

“Received a request from Interfax Russian News Agency with Ksenia Baygarova on U.S.-Russia ties under a President Trump. What do you think?” he wrote to Lanza on Sept. 9, 2016. “If the campaign wants me to do it, can answer similar to the answers I gave in April while in Israel.”

Lanza gave the go-ahead, citing the conflict in Syria as a reason to work with the Russians. Papadopoulos then offered to send the campaign a copy of the interview after it was published.

“You’re the best. Thank you!” Lanza responded.

Lanza declined to comment.

In the interview, published Sept. 30, 2016, Papadopoulos told the Russian media outlet that Trump had been “open about his willingness to usher in a new chapter in U.S.-Russia ties,” specifically citing the need for cooperation in Syria.

As WaPo notes, the resulting interview is one Papadopoulos made sure Ivan Timofeev Joseph Mifsud saw, in what may be part of a signaling process to Russia on Trump policy questions. In it, Papadopoulos specifically came out against regime change, one of the US policies Putin especially loathes.

Q.: Do you share the opinion that the Assad regime should be immediately removed from power in Syria?

A.: We do not support aggressive changes of regimes anywhere including Syria. Look what had happened in Lybia and Iraq. We all remember this. However, it does not mean that we support Assad either.

Syria was key in other signaling — and in Jared’s top policy priorities immediately after the election.

The focus on Syria is key: remember that Jared Kushner explained his request to Sergei Kislyak for a Russian-run secure back challenge as an effort to cooperate on Syria.

The Ambassador expressed similar sentiments about relations, and then said he especially wanted to address U.S. policy in Syria, and that he wanted to convey information from what he called his “generals.” He said he wanted to provide information that would help inform the new administration. He said the generals could not easily come to the U.S. to convey this information and he asked if there was a secure line in the transition office to conduct a conversation. General Flynn or I explained that there were no such lines. I believed developing a thoughtful approach on Syria was a very high priority given the ongoing humanitarian crisis, and I asked if they had an existing communications channel at his embassy we could use where they would be comfortable transmitting the information they wanted to relay to General Flynn.

So it’s possible the attacks on Hillary’s Syria policy were a signal — as the earlier speech’s call for engagement with Russia apparently was — to Timofeev.

The Papadopoulos interview was published on September 30, just 11 days before Don Jr. flew to Paris to meet with some pro-Russian Syrians.

One meeting that Donald Trump Jr. has not fully explained is a speech in Paris on October 11, 2016, just weeks before the election.

In his capacity as a key member of the Trump campaign, Trump Jr. spoke at the meeting at the request of a French think tank, The Center of Political and Foreign Affairs. Trump Jr. was likely paid about $50,000 for the speech, according to the speaking fees listed by talent booking agency that represents him.

The CFPR has a reputation in the French press as being “openly connected to the Russians.” It is difficult, however, to track just how connected they are, as France does not require it’s nonprofit organizations to disclose their finances.

The founders of the center have worked closely with the Russian government to end the conflict in Syria and in 2016, nominated Russian President Vladimir for the Nobel Peace Prize. The center’s director, Fabien Baussart, has been described as “a former lobbyist for Russian oligarchs in France.” He cited Putin’s “peace-making efforts” as reason for his nomination. One of the founders, Baussart’s wife Randa Kassis, heads a political party called the Movement for a Pluralistic Society, which is in part endorsed by Russia in support of Syrian president Bashar al-Asssad.

Now we know, then, that even at the level of flacks, the emphasis in this period was on publicizing (to Russians, in a Russian outlet) the Trump willingness to work together on Syria, and specifically to depart from US efforts to remove Assad.

Update, May 24, 2019: Corrected Mifsud for Timofeev error.

The Daily Beast Guccifer Scoop and Those GRU Officers Sanctioned Last Week

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The Daily Beast has a story reporting (in addition to the already reported news that the DNC hack got moved under Robert Mueller) that the person behind the Guccifer 2.0 persona “slipped up” once and failed to use the VPN hiding his location in the GRU headquarters in Moscow.

[O]n one occasion, The Daily Beast has learned, Guccifer failed to activate the VPN client before logging on. As a result, he left a real, Moscow-based Internet Protocol address in the server logs of an American social media company, according to a source familiar with the government’s Guccifer investigation.

The US identified which particular officer was behind the Guccifer persona.

Working off the IP address, U.S. investigators identified Guccifer 2.0 as a particular GRU officer working out of the agency’s headquarters on Grizodubovoy Street in Moscow.

And then, according to TDB, the Guccifer persona was handed off to a more experienced GRU officer, with better English skills.

Sometime after its hasty launch, the Guccifer persona was handed off to a more experienced GRU officer, according to a source familiar with the matter. The timing of that handoff is unclear, but Guccifer 2.0’s last blog post, from Jan. 12, 2017, evinced a far greater command of English that the persona’s earlier efforts.

TDB’s sources did not reveal the name of the officer identified from the VPN “slip up.”

The Daily Beast’s sources did not disclose which particular officer worked as Guccifer.

But we may already know the name or names of the GRU officers involved. As I noted last week, Treasury added two names to the list of GRU officers sanctioned in conjunction with the DNC hack: Sergei Afanasyev and Grigoriy Viktorovich Molchanov. Both would actually be (very) experienced officers — they are 55 and 62. And both include very interesting “as of” dates identifying the last point when our intelligence officials identified their positions: February 2017 and April 2016, respectively.

The latter is of particular interest, as it came during the period when Guccifer 2.0 was setting up his infrastructure. But the government doesn’t know a ton about this guy — they know his birth year, but not his birth date, and possibly not even his passport information.

In any case, last week, the government revealed two new people it blames (and therefore sanctioned) for the DNC hack.

As TDB notes, the revelation that the government has tied Guccifer 2.0 to a known GRU officer is utterly damning for Roger Stone, who has admitted talking to him. But they don’t lay out how squirrelly Stone was in early March when trying to deny he was in trouble for his dalliances with Guccifer 2.0 and Wikileaks, which I laid out here.

In his response he does the following:

  • Raises doubts that he was actually talking to Guccifer 2.0 (even though Guccifer 2.0’s only identity was virtual, so Stone’s online interactions with any entity running the Guccifer Twitter account would by definition be communication with Guccifer 2.0)
  • Repeats his earlier doubts that Guccifer 2.0 is a Russian operative
  • Emphasizes that he couldn’t have couldn’t have been involved in any hack of the DNC Guccifer 2.0 had done because he first spoke to him six weeks after the email release (in reality, he was speaking to him three weeks after the Wikileaks release)
  • Admits he once believed Guccifer 2.0 did the hack but (pointing to the Bill Binney analysis, and giving it a slightly different focus than he had in September) claims he no longer believes that
  • Invents something about a WaPo report that’s not true, thereby shifting the focus to receiving documents (as opposed to, say, information)
  • Denies he received documents from anyone but not that he saw documents (other than the Wikileaks ones) before they were released

This denial stops well short of explaining why he reached out to Guccifer. And it does nothing to change the record — one backed by his own writing — that Stone reached out because he believed Guccifer, whoever he might be, had hacked the DNC.

At the time Stone reached out to Guccifer (as I pointed out, he misrepresented the timing of this somewhat in his testimony), he believed Guccifer had violated the law by hacking the DNC.

He never does explain to Todd why he did reach out.

Guccifer 2.0 never comes back in the remainder of the interview.

Just weeks ago, when his buddy Sam Nunberg was giving (potentially immunized) testimony to the grand jury, Stone was really really squirrelly about whether his conversations with Guccifer 2.0 put him at legal jeopardy. The confirmation of the GRU tie may provide one reason why he’s so squirrelly.

Update: As Kaspersky’s Aleks Gostev notes, Treasury should know far more on Sergei Afanasyev. RT publicly described him as Deputy Chief of GRU in April 2016. And Molchanov is, at least now, head of GRU’s academy.

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