Bill Barr Performed the Corruption He Was Trying To Deny

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Perhaps I have a perverse sense of humor.

But between bouts of yelling about the Barr Memo, I’ve been laughing my ass off.

There are a number of reasons I’m laughing, some that I won’t share because I don’t want to spoil what I expect to be the punchline. But one reason I can’t stop laughing is that Robert Mueller managed to get Barr to perform — and put down in writing!! — precisely the corruption Mueller was trying to document: corrupt interference in a criminal prosecution.

I can’t imagine that Robert Mueller intended to elicit this response from Billy Barr and the lawyers who had been overseeing Mueller’s work for almost two years. But because they made the corrupt decision to override Mueller’s studied refusal to made a final conclusion about whether Trump committed obstruction (in my opinion, Mueller viewed Volume II of the Report as an impeachment referral and so did this for separation of powers reasons), they ended up putting together a shoddy memo justifying their decision.

One reason it worked out that way was because Barr and his flunkies were working quickly: a rushed effort over the course of the weekend to substantiate false claims to share with Congress.

According to Barr’s book, he remembers getting the Mueller Report around 1:30PM on March 22, 2019.

As Amy Berman Jackson laid out in a timeline accompanying her decision ordering the release of the memo, starting with a draft of the letter to Congress by Steven Engel at 8:36PM on March 22, 2019 and working through the weekend, five men including Engel (according to some emails quoted by ABJ, Barr was present as well) drafted both the letter to Congress and the declination memo in parallel.

As ABJ pointed out (this was a second basis on which she ruled that DOJ had to release the memo, one the DC Circuit said it didn’t need to consider given all the other reasons it had laid out to uphold her decision), the drafting of the letter to Congress — which she showed in the left column — actually preceded the memo — in the right column — advising Barr that because one goal under the Justice Manual is to,

promot[e] confidence on the part of the public and individual defendants that important prosecutorial decisions will be made rationally and objectively on the merits of each case,

Barr should,

examine the Report to determine whether prosecution would be appropriate given the evidence recounted in the Special Counsel’s Report, the underlying law, and traditional principles of federal prosecution.

The public record, then, shows Barr telling Congress about his prosecution declination before he decided to read the Report or even accept the recommendation of people who claimed to have read the Report. It was all completed over a weekend in which the people supposedly advising him were at the same time being directed by him, everyone together in the Attorney General’s conference room for the weekend.

The men finished their letter to Congress announcing that Trump had not committed any crime just after 4:30PM on Sunday and then finalized the declination memo first thing Monday morning.

These men weren’t reading the 400-page Report to figure out what it said (and there’s evidence that neither Rod Rosenstein nor Barr ever read it closely). They were instead trying to figure out how to debunk a Report they had skimmed over the course of seven hours.

And that haste showed up in several places in the memo.

There’s the admission that their recommendations were largely the part of earlier discussions, including from before Barr was hired (as Barr described it, one of the lawyers, Henry Whitaker got pulled in for the first time over the weekend), and therefore only partly about the Report itself.

Over the course of the Special Counsel’s investigation, we have previously discussed these issues within the Department among ourselves, with the Deputy Attorney General, and with you since your appointment, as well as with the Special Counsel and his staff. Our conclusions are the product of those discussions, as well as our review of the Report.

They repeat that admission to explain why they dedicate fully a third of the single page discussing legal precedents to a discussion that happened on July 3, 2018, before the evidence about the Stone interactions with Russia, Paul Manafort’s ties with Konstantin Kilimnik, and Michael Cohen’s interactions with the Kremlin were fully developed.

In our prior discussions, the Special Counsel has acknowledged that “we have not uncovered reported cases that involve precisely analogous conduct.” See Special Counsel’s Office Memorandum to the 600.4 File, Preliminary Assessment of Obstruction Evidence, at 12 (July 3, 2018).

And there’s the footnote explaining that they just weren’t going to cite any facts.

  1. Given the length and detail of the Special Counsel’s Report, we do not recount the relevant facts here. Our discussion and analysis assumes familiarity with the Report as well as much of the background surrounding the Special Counsel’s investigation.

The other reason this memo embodies corruption is that corruption lays at the core of the statute Mueller rested his obstruction analysis on: 18 USC 1512(c)(2) — the same statute DOJ is using in the January 6 prosecutions. So Barr’s 9-page memo had to find a way to claim those actions weren’t corrupt, without entirely parroting the analysis he did in the audition memo he used to get the job, and without acknowledging Barr’s three statements — made under oath during his confirmation hearing — that trading pardons for false testimony would be obstruction (the word “pardon” does not appear in this memo).

Predictably, that discussion was really shoddy. In a key passage, for example, they adopt just one possible measure of corrupt intent, personal embarrassment, something that is only mentioned four times in the Report, always in conjunction with a discussion of at least marginal criminal exposure. Then they use that as a straw man central to their dismissal of Mueller’s lengthy analysis and their decision not to actually engage with Mueller’s analysis.

The Report thus suggests that the President’s exercise of executive discretion for any improper reason, including the prevention of personal embarrassment, could constitute obstruction of justice if it impeded a pending investigation. As we have discussed with you, we do not subscribe to such a reading of the obstruction-of-justice statutes. No reported case comes close to upholding a conviction of such breadth, and a line of Supreme Court precedent, including Arthur Anderson, weighs heavily in favor of objectivity and certainty in the federal criminal law. In order to reach the conclusions in this memorandum, however, we do not believe it necessary to address this disagreement further, because in our view, Volume II of the Report does not establish offenses that would warrant prosecution, even under such a broad legal framework.

Much of their subsequent analysis, dismissing the ten possible examples of obstruction in the Report, was simply factually inaccurate (and in once case, conflicted with something Barr’s own DOJ said a year later). It was not just the then-ongoing Roger Stone conspiracy investigation that refuted the claims Barr had rubber-stamped in secret, and it was not just the ongoing Roger Stone investigation that Barr later took unprecedented steps to thwart so as to protect his basis for exonerating the President. They made claim after claim that wasn’t even an accurate representation of the Report. Just as one measure, as noted, the memo doesn’t use the word pardon at all; the Mueller Report uses it 67 times.

It was only the expectation that all this would remain secret that let Barr and his flunkies entertain the fantasy that any of this could, “promot[e] confidence on the part of the public and individual defendants that important prosecutorial decisions will be made rationally and objectively on the merits of each case.” So they had to keep it secret.

And so, after it was written, a snowball of additional corruption followed, with DOJ making false claims about what was in the memo, and DOJ making more false claims, and Barr taking extraordinary steps to try to ensure that later facts didn’t prove him wrong.

But you don’t have to go further than these nine pages to see that this intervention just dripped with the corruption they were trying to deny.

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The Barr Memo Relied on Covering Up the Ongoing Roger Stone Conspiracy Investigation

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DOJ has released the memo that Ed O’Callaghan and Steven Engel used to claim there wasn’t evidence to charge Trump with obstruction.

A key part of it is a claim that the evidence in Volume I was “conclusive” that there wasn’t evidence to charge any of Trump’s flunkies with conspiring with Russia.

Only at least O’Callaghan knew that the evidence wasn’t conclusive. On Page 178, the Mueller Report they claimed was conclusive revealed that they had referred Stone for further investigation into whether he had conspired with Russian to hack.

The Office determined that it could not pursue a Section 1030 conspiracy charge against Stone for some of the same legal reasons. The most fundamental hurdles, though, are factual ones.1279

1279 Some of the factual uncertainties are the subject of ongoing investigations that have been referred by this Office to the D.C. U.S. Attorney’s Office.

DOJ covered that footnote up for another 20 months, releasing it only the day before the 2020 election.

From that point forward, Barr had to make sure that DOJ wouldn’t pursue that investigation into Stone, because it would expose the lie at the core of his cover-up.

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A Roger Stone Pardon for MacronLeaks Isn’t As Crazy as It Sounds

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In April 2020, DOJ released the warrants from the Roger Stone investigation. With six of those, DOJ redacted broad swaths of the justifications behind the warrants, none of which were shared with him as part of his obstruction prosecution.

September 26, 2018: Mystery Twitter Account

September 27, 2018: Mystery Facebook and Instagram Accounts

September 27, 2018: Mystery Microsoft include Skype

September 27, 2018: Mystery Google

September 27, 2018: Mystery Twitter Accounts 2

October 5, 2018: Mystery Multiple Googles

All six were obtained by Patrick Myers, an FBI agent located in Pittsburgh, whereas almost all the warrants obtained before that were signed by agents located in DC (in earlier weeks, Myers had also obtained a warrant targeting a second account used by the GRU persona, Guccifer 2.0).

In his order releasing the warrants, Judge Christopher Cooper explained that all the redacted information (and so the information justifying these warrants) was redacted to protect, “the private information of non-parties, financial information, and non-public information concerning other pending criminal investigations.”

One of those warrants explicitly said that the government requested a gag on the provider involved (in that case, Twitter) because Roger Stone seemed not to understand the full extent of the investigation into him.

It does not appear that Stone is currently aware of the full nature and scope of the ongoing FBI investigation. Disclosure of this warrant to Stone could lead him to destroy evidence or notify others who may delete information relevant to the investigation.

In addition to the crimes for which Mueller declined to charge Stone (foreign donations) or of which he was convicted (witness tampering and obstructing an investigation), the warrant sought evidence of conspiracy (18 USC 371), two foreign agent laws (18 USC 951 and 22 USC 611), and computer hacking (18 USC 1030).

These warrants strongly suggest that in April 2020, as Bill Barr was making unprecedented efforts to limit Stone’s punishment for the crimes of which he had been convicted, DOJ continued to investigate whether Stone conspired with foreign entities — and given that a Guccifer 2.0 warrant is among this series, Russia would be that foreign entity — to engage in computer hacking.

That’s important background to the seizure from Trump’s office of document reflecting Executive Clemency for Stone that appears to have a link to a French President, possibly Emmanuel Macron.

If Stone were involved with the MacronLeaks operation on which the GRU teamed up with alt-Right figures in Stone’s orbit, it’s conceivable Trump secretly pardoned him to prevent him from being included in the indictment covering that operation.

Based on the FOIA exemptions in various versions of the Mueller Report released, the Stone investigation that continued after Mueller closed up shop appears to have been closed between September 18, 2020 and November 2, 2020. On the latter date — literally the day before the 2020 election — DOJ provided Jason Leopold a version of the Mueller Report with newly-unsealed passages. It revealed for the first time that, on page 178, a footnote modified the discussion in the body of the Report about whether Stone could be prosecuted for conspiring with Russia on computer hacking by explaining that Mueller had referred the issue to DC US Attorney’s Office for further investigation.

The Office determined that it could not pursue a Section 1030 conspiracy charge against Stone for some of the same legal reasons. The most fundamental hurdles, though, are factual ones.1279

1279 Some of the factual uncertainties are the subject of ongoing investigations that have been referred by this Office to the D.C. U.S. Attorney’s Office.

A version of the report released to Leopold on June 3, 2019 redacted that footnote because of an ongoing investigation. And a spreadsheet justifying all continued redactions released on September 18, 2020 seems to have redacted it too. The unredacted publication of it on November 2, 2020 suggests whatever investigation in Stone DOJ had been pursuing had been closed.

Stone’s wasn’t the only investigation that got shut down in the months before Donald Trump would lose the presidency. In that period, previously redacted references to investigations into two of Paul Manafort’s businesses, and an investigation into a suspected $10 million cash infusion during the 2016 election from an Egyptian state-owned bank were unsealed — though both were unsealed by the time of that September filing. There was even reference to a warrant for Erik Prince’s phone, suggesting any investigation into him had similarly been shut down.

What made Stone’s case different, however, is that DOJ never told us what the investigation was about (indeed, two referrals that likely pertain to Stone were redacted in that November 2020 release, which they shouldn’t have been if the cases were really closed).

The most important referral from the Mueller investigation, then — the one that Billy Barr was hired to make go away — simply got deep-sixed sometime in the months when it looked like Trump would lose the election, with no explanation as to what the investigation even was. And, again, it appears to have happened between September 18 and November 2, 2020.

As it happens, DOJ rolled out an indictment against GRU on October 19, just 15 days before the election (and just 14 days before DOJ released the language pertaining to Stone). It covered six GRU attacks, though focused especially on the 2018 Olympic Destroyer attack on the Pyeongchang Olympics.

But it included, almost as a throwaway, GRU’s role in the 2017 MacronLeaks campaign. By description, it held just one of the charged individuals accountable for the spearphishing part of the MacronLeaks campaign: Anatoliy Kovalev, the one guy (as noted) also charged in the DNC hack.

Defendant ANATOLIY SERGEYEVICH KOVALEV was a Russian military intelligence officer assigned to Military Unit 74455. KOVALEV sent spearphishing emails targeting a wide variety of entities and individuals, including those associated with French local government entities, political parties, and campaigns; the 2018 Winter Olympics; the DSTL; and a Georgian media entity. KOVALEV also engaged in spearphishing campaigns for apparent personal profit, including campaigns targeting large Russian real estate companies, auto dealers, and cryptocurrency miners, as well as cryptocurrency exchanges located outside of Russia. KOVALEV is a charged defendant in federal indictment number 18-CR-215 in the District of Columbia. [my emphasis]

In the Mueller indictment of the GRU, Kovalev is described as the guy responsible for the hacking that targeted voting infrastructure — the kind of stuff that really could have affected the outcome, especially in North Carolina.

72. In or around July 2016, KOVALEV and his co-conspirators hacked the website of a state board of elections (“SBOE 1”) and stole information related to approximately 500,000 voters, including names, addresses, partial social security numbers, dates of birth, and driver’s license numbers.

[snip]

75. In or around October 2016, KOVALEV and his co-conspirators further targeted state and county offices responsible for administering the 2016 U.S. elections. For example, on or about October 28, 2016, KOVALEV and his co-conspirators visited the websites of certain counties in Georgia, Iowa, and Florida to identify vulnerabilities.

76. In or around November 2016 and prior to the 2016 U.S. presidential election, KOVALEV and his co-conspirators used an email account designed to look like a Vendor 1 email address to send over 100 spearphishing emails to organizations and personnel involved in administering elections in numerous Florida counties. The spearphishing emails contained malware that the Conspirators embedded into Word documents bearing Vendor 1’s logo.

The Olympic Destroyer indictment obtained weeks before the election held Kovalev (and the GRU) accountable for the spearphish and communications with some French participants.

27. From on or about April 3, 2017, through on or about May 3, 2017 (during the days leading up to the May 7, 201 7, presidential election in France), the Conspirators conducted seven spearphishing campaigns targeting more than 100 individuals who were members of now-President Macron’s “La Republique En Marche!” (“En Marche!”) political party, other French politicians and high-profile individuals, and several email addresses associated with local French governments. The topics of these campaigns included public security announcements regarding terrorist attacks, email account lockouts, software updates for voting machines, journalist scoops on political scandals, En Marche! press relationships, and En Marchel internal cybersecurity recommendations.

28. KOVALEV participated in some of these campaigns. For example, on or about April 21, 2017, KOVALEV developed and tested a technique for sending spearphishing emails themed around file sharing through Google Docs. KOVALEV then crafted a malware-laced document entitled “Qui_peut_parler_ aux journalists.docx” (which translates to “Who can talk to journalists”) that purported to list nine En Marche! staff members who could talk to journalists about the previous day’s terrorist attack on the Champs-Elysees in Paris. Later that day, the Conspirators used an email account that mimicked the name of then-candidate Macron’s press secretary to send a Google Docs-themed spearphishing email to approximately 30 En Marche! staff members or advisors, which purported to share this document.

29. From on or about April 12, 2017, until on or about April 26, 2017, a GRU-controlled social media account communicated with various French individuals offering to provide them with internal documents from En Marche! that the user(s) of the account claimed to possess.

But it professed utter and complete ignorance about how the stolen documents started to get leaked.

30. On or about May 3 and May 5, 2017, unidentified individuals began to leak documents purporting to be from the En Marche! campaign’s email accounts.

But they weren’t unidentified, at least not all of them! As a DFIR report released 15-months before this indictment laid out, while there was a Latvian IP address that hadn’t been publicly identified at that point (one the FBI surely had some ability to unpack), the American alt-right, including Stone associate Jack Posobiec, made the campaign go viral, all in conjunction with WikiLeaks.

First there was a rumor spread from that Latvian IP to 4Chan to William Craddick to Jack Posobiec.

Last but not least came the “#MacronGate” rumor. Two hours before the final televised debate between Macron and Le Pen, on Wednesday, May 3, at 7:00 p.m.,41 a user with a Latvian IP address posted two fake documents on 4chan. The documents suggested that Macron had a company registered in Nevis, a small Caribbean island, and a secret offshore bank account at the First Caribbean Bank, based in the Cayman Islands. Again, the rumor itself was not entirely new. Macron himself had seen it coming. More than two weeks earlier on TV he warned that this type of rumor was likely to appear: “This week, you will hear ‘Mr. Macron has a hidden account in a tax haven, he has money hidden at this or that place.’ This is totally false, I always paid all my taxes in France and I always had my accounts in France.”42 What was new this time, however, was the release of two documents supposedly proving this rumor. The user who posted the two documents on 4chan did it purposefully on the evening on the final televised debate to attract more attention, and even suggested a French hashtag: “If we can get #MacronCacheCash trending in France for the debates tonight, it might discourage French voters from voting Macron”43.

Then the rumor spread on Twitter. The 4chan link was first posted by Nathan Damigo, founder of the American neo-Nazi and white-supremacist group Identity Evropa, and was further circulated by William Craddick, founder of Disobedient Media and notorious for his contribution to the Pizzagate conspiracy theory that targeted the US Democratic Party during the 2016 American presidential campaign. The first real amplifier was Jack Posobiec—an American alt-right and pro-Trump activist with 111,000 followers at the time: his tweet was retweeted almost 3,000 times. Only after 10:00 p.m. did the rumor begin to spread in French, mostly through far-right accounts using the #MacronCacheCash hashtag. The first tweets in French seemed to have been automatically translated from English.44

[snip]

The same user with the Latvian IP address who posted the fake documents on Wednesday announced on Friday morning that more were coming, promising, “We will soon have swiftnet logs going back months and will eventually decode Macron’s web of corruption.”49 Those responsible for #MacronGate thereby provided evidence that they were the same people responsible for the #MacronLeaks that were released later that day.

Then there were the leaked files themselves, which followed the same pattern: an anonymous leak to Craddick to Posobiec to WikiLeaks.

The files were initially posted on Archive.org, an online library site, supposedly in the morning63 (the time of first release on the website cannot be determined, as these original threads have since been deleted). At 7:59 p.m., the links to the threads were posted on PasteBin, a file-sharing site, under the name “EMLEAKS.” At 8:35 p.m., they were shared on 4chan. Then came their appearance on Twitter: Craddick was again the first to share the link to the PasteBin dump at 8:47 p.m., quickly followed by Jack Posobiec at 8:49 p.m., who provided a link to the 4chan thread with, for the first time, the hashtag #MacronLeaks.64 Contrary to what would later become a widespread misconception, Posobiec was not the first to tweet, Craddick was. However, Posobiec was the first to use the hashtag that would lend its name to the entire operation, hence the confusion. Posobiec’s tweet and hashtag was retweeted eighty-seven times within five minutes. He later said he had been alerted to the incoming dump by the user with a Latvian IP address who had posted the #MacronGate fake documents two days prior: “The same poster of the financial documents said to stay tuned tomorrow for a bigger story–so I pretty much spent the next 24 hours hitting refresh on the site.”65

So far, this conversation was exclusively Anglophone. This makes it clear that the hashtag #MacronLeaks was launched and spread in the United States, by the American alt-right. It was WikiLeaks that internationalized the spread, at 9:31 p.m., by tweeting: “#MacronLeaks: A significant leak. It is not economically feasible to fabricate the whole. We are now checking parts,” with a link to the files on PasteBin. Only then came the first French amplifiers, who happened to be Le Pen supporters

MacronLeaks was, openly and proudly, a joint venture between the GRU, far right influencers in Stone’s immediate orbit, and WikiLeaks. It was an attempt to repeat the 2016 miracle that elected Donald Trump, by supporting the Russian-supporting Marine Le Pen by damaging Macron.

There’s something unusual about the indictment, too. Alone among the indictments obtained by the Pittsburgh US Attorney’s office that month (October 2020), it was the single one signed in wet blue ink by the US Attorney, Scott Brady. Both the copy released by DOJ and the one docketed in PACER also lacked a jury foreperson’s signature.

Admittedly, most of the indictments WDPA obtained that month were fairly podunk crimes that wouldn’t need heightened security: a fentanyl dealer, a cocaine dealer, two unhoused men charged with theft, an aggravated assault, manufacturing a controlled substance, Social Security fraud, VA benefit fraud, all were signed in black ink, at least some of them electronically. But a child sexual trafficking indictment and a CSAM possession indictment, both originally filed under seal, also bear the foreperson’s signature and that black ink signature. Even a ransomware indictment rolled out nationally on October 15 — which would have the same kind of international sensitivities and national coordination as the GRU indictment — had a normal jury foreperson’s signature.

While Brady was not a surprising choice for US Attorney in Pittsburgh (he had previously been an AUSA), he was perhaps the most politicized of Trump’s US Attorneys. He’s the guy whom Barr put in charge of ingesting the dirt on Hunter Biden that Rudy Giuliani was getting from suspected Russian agents.

To be clear: There’s no public allegation that Stone had anything to do with MacronLeaks, though HateWatch places him at a Milo Yiannopoulos party where MacronLeaks appears to have come up, after the leaks but before the French election. I’m not saying that Stone was involved in the MacronLeaks operation.

But the response to the Stone reference in the subpoena receipt has assumed that the Stone reference cannot be related to the French President reference, all assumptions made by journalists that never covered the ongoing aspects into whether Stone conspired with Russia on a hack. If Trump did issue his rat-fucker a secret pardon for follow-on cooperation with Russian hackers, though, it would explain a number of things about the aftermath of the Mueller investigation, including what happened to the investigation into whether Stone conspired with Russia on hacking campaigns.

For his part, Trump included a bit of a tirade about the Stone reference in his motion for a Special Master last night.

In addition, did the affiant to the warrant fairly disclose any pretextual “dual” purpose at work in obtaining the warrant? For example, the Receipt for Property largely fails to identify seized documents with particularity, but it does refer to the seizure of an item labelled “Executive Grant of Clemency re: Roger Jason Stone, Jr.” Aside from demonstrating that this was an unlawful general search, it also suggests that DOJ simply wanted the camel’s nose under the tent so they could rummage for either politically helpful documents or support other efforts to thwart President Trump from running again, such as the January 6 investigation.

This is legally and politically nonsensical. If the pardon is the known pardon, then it’s not politically damaging at all. If it’s a real pardon of any kind — as a pardon written on a cocktail napkin arguably would be — then it’s a Presidential Record and squarely within the scope of the warrant (which permits seizure of any Presidential record created during Trump’s term). If the information about the French President is part of the document and appears to be sensitive, then it would qualify as a likely classified document. If the pardon were found in Trump’s safe next to his leatherbound box of TS/SCI documents, then it would be covered by the proximal search protocol laid out in the warrant. The pardon was legally seized.

Trump’s claims are nonsensical. But they’re also the the kind of squealing that invites further attention to what the clemency document really is.

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Demands for Sua Sponte Do-Overs and Billy Barr’s Thought Experiment about Trump’s Criminality

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In a post last year about what was then a still heavily-redacted Amy Berman Jackson opinion ordering DOJ to release a Barr memo covering up the Mueller investigation, I wrote that this might finally be the case where DOJ would be held accountable for bullshit claims made in service of protecting secrets in FOIA cases.

Will Amy Berman Jackson Finally Break the Spell of OLC Feeding Bullshit FOIA Claims to DC District Judges?

Yesterday, Judge Amy Berman Jackson ruled that the government must turn over a memo written — ostensibly by Office of Legal Counsel head Steve Engel — to justify Billy Barr’s decision not to file charges against Donald Trump for obstructing the Mueller Investigation. The Center for Responsibility and Ethics in Washington FOIAed the memo and sued for its release. The memo itself is worth reading. But I want to consider whether, by making a nested set of false claims to hide what OLC was really up to, this opinion may pierce past efforts to use OLC to rubber stamp problematic Executive Branch decisions.

A key part of ABJ’s decision pivoted on the claims made by Paul Colburn, who’s the lawyer from OLC whose job it is (in part) to tell courts that DOJ can’t release pre-decisional OLC memos because that would breach both deliberative and attorney-client process, Vanessa Brinkmann, whose job it is (in part) to tell courts that DOJ has appropriately applied one or another of the exemptions permitted under FOIA, and Senior Trial Attorney Julie Straus Harris, who was stuck arguing against release of this document relying on those declarations. ABJ ruled that all three had made misrepresentations (and in the case of Straus Harris, outright invention) to falsely claim the memo was predecisional and therefore appropriate to withhold under FOIA’s b5 exemption.

Yesterday, the DC Circuit decided that (unless DOJ appeals again) yes, this will be that case. It ordered DOJ to release the rest of the Barr memo and it did so for precisely the reasons ABJ laid out: DOJ had played games with its claims about what was in the memo.

The opinion, written by Sri Srinivasan and joined by Judith Rogers and David Tatel, agreed with ABJ that the Department’s Declarations evolved but yet never actually described the predecisional advice at hand — which ABJ and the Circuit agree pertained to what Barr should say to Congress about Mueller’s results.

The Department’s submissions during the course of this litigation have at various times suggested three decisional processes to which the March 2019 memorandum might have pertained. The first two, as the Department acknowledges, cannot support its reliance on the deliberative-process privilege. As for the third, although that one might well have justified the Department’s invocation of the privilege, the Department never relied on—or even mentioned—that decisional process in the district court until the Department had already noticed its appeal to this court. And the district court was not required to grant judgment to the Department on a theory the Department never presented before taking an appeal.

1.

The first of the three decisional processes suggested in the Department’s submissions to the district court concerned whether to charge President Trump with a crime. Although the Department has since clarified that it was never in fact considering a prosecution, the Department’s submissions to the district court appeared to indicate in various ways that the March 2019 memorandum made recommendations about an actual charging decision.

[snip]

2.

If the Department’s analysis of whether the evidence in the Mueller Report would support an obstruction-of-justice charge did not in fact relate to a decision about whether to initiate or decline a prosecution, then why engage in that analysis? The Department’s submissions to the district court perhaps could be interpreted to indicate that the memorandum’s analysis of that question, if not related to an actual charging decision, was instead part of an abstract thought experiment. On that conception, the memorandum formed part of an academic exercise to determine whether President Trump’s conduct met the statutory definition of obstruction, solely for Attorney General Barr’s information, without any connection to any ensuing action by Barr or the Department.

[snip]

3. Because there was never an actual charging decision to be made in this case, and because the Department does not rely on a mere thought experiment about whether the evidence would support a charge as the relevant decisional process, the question naturally arises: what is the decisional process that the Department believes justifies its withholding of the March 2019 memorandum? The Department’s answer, per its briefing in our court, is that the memorandum “was intended to assist the Attorney General in deciding what, if anything, to communicate to Congress and the public about whether the evidence recounted in the Special Counsel’s report was sufficient under the Principles of Federal Prosecution to support a prosecution.” Dep’t Br. 25–26. That is, the deliberations about whether the evidence in the Report amounted to a crime went to deciding whether to say something to the public on that issue, not deciding whether to initiate a prosecution (which was never on the table).

[snip]

And here, it is now apparent that the March 2019 memorandum recommended reaching a conclusion on the evidentiary viability of an obstruction-of-justice charge as a means of preempting a potential public reaction to the Mueller Report. In that light, if the Department’s submissions to the district court had connected the memorandum to a decision about making a public statement, then the district court might well have concluded that the memorandum was privileged. But that is not how the Department elected to justify its invocation of the privilege in the district court.

And because DOJ claimed that the memo pertained to one kind of predecisional advice (whether to charge a President who could not be charged) rather than the real predecisional advice (to tell Congress that he couldn’t have been charged based on the evidence), the Circuit holds, DOJ must release the full memo.

In short, while the decisional process on which the Department now relies involved a determination as to whether the Attorney General should make a public statement, none of the Department’s submissions to the district court suggested that the March 2019 memorandum related to such a decision. In its briefing to us, the Department expresses regret that its submissions to the district court could have left the misimpression that an actual charging decision was under consideration, and it assures us that any misimpression it may have caused to that effect was inadvertent and not the result of any bad faith. Still, the Department at no point indicated to the district court that the memorandum gave advice on the making of a public statement. The Department thus failed to carry its burden to establish the relevant decisional process.

This section of the opinion, if it is not appealed, would lay important new groundwork for FOIA litigation. It effectively holds that if the government provides bullshit excuses about the reasons it wants to protect something from FOIA release (as they did here), even if there was a different reason that would have been legal but embarrassing that they did not make, their failure to provide the real reason in their declarations effectively waives their opportunity to make it.

Holding an agency to its burden in that regard serves important purposes. “The significance of agency affidavits in a FOIA case cannot be underestimated.” King v. DOJ, 830 F.2d 210, 218 (D.C. Cir. 1987). In a standard FOIA case, the government agency knows the full contents of any withheld records, while the requester confronting black redaction boxes is (literally) left in the dark. The requester’s lack of knowledge “seriously distorts the traditional adversary nature of our legal system’s form of dispute resolution.” Vaughn v. Rosen, 484 F.2d 820, 824 (D.C. Cir. 1973). An agency’s declarations supporting its withholdings “must therefore strive to correct, however[] imperfectly, the asymmetrical distribution of knowledge that characterizes FOIA litigation.” King, 830 F.2d at 218.

This case is illustrative. In its district court briefs, CREW focused its arguments on why the Department could not have been considering obstruction charges against the sitting President. That was understandable, because CREW had no reason to suspect that the memorandum might have related to a distinct decisional process about making a public statement. We cannot sustain the withholding of the memorandum on a rationale that the Department never presented to the district court and that CREW therefore never had an opportunity to challenge.

The Department responds with an argument that would effectively shift the burden from the Department to the court. According to the Department, even if it failed to establish that the March 2019 memorandum related to a decision about making a public statement, the district court should have reached that conclusion of its own accord based on its in camera review of the memorandum. The Department thus now seeks to prevail based on the district court’s in camera review even though the Department had initially objected to that review. We cannot accept the Department’s argument.

In a FOIA case, the government bears the burden of showing that requested records are exempt from disclosure. The government is a party in every FOIA case, is well versed in the conduct of FOIA litigation, and is fully capable of protecting its own interests in that arena. A district court can rely on the government to do so and can assume that the government has reasons for its choices and an understanding of their implications. It would put too much on the district court—and would relieve the government of its summary judgment burden—to expect a judge reviewing records in camera to come up with unasserted legal theories for why a document might be exempt from disclosure. To hold otherwise would “seriously distort[] the traditional adversary nature of our legal system’s form of dispute resolution.” Vaughn, 484 F.2d at 824.

Here, the Department failed to satisfy its burden, and the district court, as the court itself explained, was “under no obligation to assess the applicability of a privilege on a ground the agency declined to assert.” CREW, 538 F. Supp. 3d at 140 n.11.

And the opinion rejects the government’s argument it should have gotten a do-over, because it did not ask for reconsideration.

The Department contends that, even if the district court was not required to grant judgment in its favor, the court at least should have given the Department an opportunity to make supplemental submissions. We are unpersuaded by the Department’s assertion that the district court needed to sua sponte grant it a do-over.

The Department was given a number of opportunities to justify its withholding of the March 2019 memorandum. After initially attaching two declarations to its motion for summary judgment, the Department attached an additional declaration to its reply brief. Those three declarations, coupled with the Department’s two briefs, gave ample opportunity to identify Attorney General Barr’s messaging to the public as the relevant decisional process. But the Department never did so. Nor did the Department ask for an additional chance to clarify its position after seeing the district court’s summary-judgment decision, which pointed out that the Department’s submissions up to that point had created a misimpression about the nature of the decisional process. The Department did not move for reconsideration, instead seeking only a stay pending appeal. We cannot fault the district court for not giving the Department another chance when the Department never requested one.

The government can appeal this decision.

And by my read, DOJ still (says it) disagrees with CREW and the judges about the predecisional advice was. In DOJ’s briefing, it maintains the decision was ultimately about the sufficiency of evidence against Trump — which the Circuit calls a thought experiment — not about a PR stunt. That is, it’s saying that its briefing was close to accurate, and ABJ should have understood that once she read the memo itself.

Perhaps whatever Steven Engel and Ed O’Callaghan had to say in the sealed part of the memo really is something DOJ will go to the mat to (or assume a Trump majority on SCOTUS will) hide. Perhaps that’ll incent DOJ to try again or go to Trump’s protectors at SCOTUS to keep this sealed.

But some of the other things DOJ did — such as not asking for reconsideration — may make this an uphill climb in any case.

In any case, the Circuit did — as ABJ did herself — sharply limit the application of this decision. This decision does not affect the hated b5 exemption.

Our decision is narrow. We do not call into question any of our precedents permitting agencies to withhold draft documents related to public messaging. Indeed, if the Department had identified the March 2019 memorandum’s connection to public messaging, the district court might well have sustained the Department’s reliance on the deliberativeprocess privilege. And of course nothing in our decision should be read to suggest that deliberative documents related to actual charging decisions fall outside the deliberativeprocess privilege. We hold only that, in the unique circumstances of this case, in which a charging decision concededly was off the table and the agency failed to invoke an alternative rationale that might well have justified its invocation of the privilege, the district court did not err in granting judgment against the agency.

It only affects the consequences of providing bullshit excuses for trying to keep something secret.

We won’t know for some days yet whether DOJ will appeal. For now, though, the Circuit is holding DOJ accountable for misrepresentations in service of Barr’s cover-up.

Related links

May 3, 2021: Initial redacted ABJ opinion

May 5, 2021: Will Amy Berman Jackson Finally Break the Spell of OLC Feeding Bullshit FOIA Claims to DC District Judges?

May 24, 2021: DOJ motion for a stay pending appeal

May 24, 2021: Unredacted ABJ opinion

May 24, 2021: Partly redacted memo

May 25, 2021: On the Barr Memo: Julie Straus Harris Says Julie Straus Harris’ Unexplained “Flourish” Wasn’t a Lie

May 25, 2021: Frankenstein’s OLC: DOJ Says DOJ Can’t Do What DOJ Did in the Barr Memo

May 26, 2021: Bill Barr Issued Prosecution Declinations for Three Crimes in Progress

June 5, 2021: Bill Barr Is Not Dick Cheney

June 14, 2021: ABJ order granting stay

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Maggie Haberman: Heads It’s Only Obstruction, Tails It’s Not Obstruction

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Maggie Haberman had a column last week that pissed a lot of people off, in which she wrote 1,600 words presenting what she claimed were “the main possibilities” for why oh why Trump might have stolen Presidential documents.

The only reasons she could come up with were:

  • He gets his rocks off looking at important documents
  • He thinks he’s Louis XIV
  • He has a compulsion to rip up paper
  • He was collecting information about friends and foes

It was facile analysis and in two respects probably erroneous.

But it pissed me off less than it did others (at least at first) because I think it is important to remember that Trump’s narcissism explains a significant part of his theft.

Maggie’s an expert of Trump’s narcissism.

Still, at one level the document is a remarkable confession on Maggie’s part of her own inconsistencies as a Trump enabler (and as I said, in two ways, it may be factually wrong).

That’s because Maggie, who has covered this search for the same two weeks I have, doesn’t even mention the possibility laid out explicitly in search warrant: Obstruction.

To obtain this warrant, the government showed probable cause that Trump ripped up, flushed, and hid documents to obstruct investigations. But having (presumably) read that warrant, Maggie instead claims that Trump rips up documents just for shits and giggles.

Ripping up paper

Although Trump White House officials were warned about the proper handling of sensitive material, aides said Mr. Trump had little interest in the security of government documents or protocols to keep them protected.

Early on, Mr. Trump became known among his staff as a hoarder who threw all manner of paper — sensitive material, news clips and various other items — into cardboard boxes that a valet or other personal aide would cart around with him wherever he went.

Mr. Trump repeatedly had material sent up to the White House residence, and it was not always clear what happened to it. He sometimes asked to keep material after his intelligence briefings, but aides said he was so uninterested in the paperwork during the briefings themselves that they never understood what he wanted it for.

He also had a habit of ripping up paper, from routine documents to classified material, and leaving the pieces strewn around the floor or in a trash can. Officials would have to rummage through the shreds and tape them back together to recreate the documents in order to store them as required under the Presidential Records Act.

On some occasions, Mr. Trump would rip up documents — some with his handwriting on them — and throw the pieces in a toilet, which occasionally clogged the pipes in the White House. He did the same thing on at least two foreign trips, former officials said.

The government has told us all that they have shown probable cause that some of this ripping, flushing, and hiding was designed to withhold evidence from a, or multiple, investigations. But Maggie, apparently, either doesn’t understand that or decided without seeing the evidence that the government simply misunderstands Trump’s quirky ripping, flushing, and hiding fetish.

Where this column struck me as particularly ridiculous, however, is the way it’s a perfect mirror for Maggie’s Mueller investigation coverage.

With Mike Schmidt, after all, Maggie largely set the narrative that Mueller was only investigating Trump for obstructing the investigation. In July 2018 they reported as breaking news that Mueller was just investigating Trump for tweets, not what they called “collusion.” In August 2018, they kept repeating that word — obstruct obstruct obstruct obstruct obstruct obstruct obstruct obstruct obstruct obstruct obstruct obstruct obstruct obstruct — as if the only thing being investigated was obstruction. In February 2019, Maggie (with Peter Baker that time) spun Trump describing a bribe and not answering questions about the Stone indictment as the opposite. Last October, when Maggie complained about my piece quoting Roger Stone and Rick Gates describing how they used her and Ken Vogel, she claimed I had predicted Mueller would go further than he had — when the reality is that she has still uncorrected errors about the Manafort investigation, never reported on the investigation into whether Stone conspired with Russia that continued even after Mueller finished, and missed the bribery prong of the investigation. I’m also not aware that she ever matched the WaPo’s reporting that Mueller told Trump’s lawyers that the President was at risk, himself, of prosecution in the CFAA conspiracy with Russia, the same part of the Stone investigation she missed.

During the Mueller investigation, Maggie spent years reporting — falsely, the records unsealed since prove — that an investigation into whether Trump conspired with Russia was really just an obstruction investigation.

This time around the government told us — explicitly!! — that Trump is under investigation for obstructing investigation(s) by ripping and flushing and hiding documents, and Maggie’s “analysis” concludes that all that ripping and flushing and hiding is instead just a quirk.

Which brings me to her second possible error, on top of ignoring the obstruction investigation: here’s how Maggie explains the mention of a French President in the warrant receipt.

Other advisers wondered if Mr. Trump kept some documents because they contained details about people he knew.

Among the items that presidents are given on overseas trips are biographies of foreign leaders, a former administration official said. One version is unclassified and fairly routine. But the other is classified and can contain numerous personal details.

One of the files the F.B.I. seized at Mar-a-Lago was marked “info re: President of France,” about Emmanuel Macron.

It’s hard to tell whether Maggie is reporting here — confirming what most of us have assumed, that the reference to a French President was most likely a reference to Macron. To substantiate that, she cites only the same warrant that mentions the obstruction investigation she somehow missed. If she has confirmed that’s about Macron, this error may be all the more remarkable.

But for the reasons I laid out here, the most obvious reading of that reference is that the information about a French President is linked in some way to Executive Clemency for Maggie’s old BFF, Roger Stone.

The reference to a French President — Maggie tells us it is Macron — may well be contained in an Executive Grant of Clemency for Stone.

If that’s the case, then it’s in Trump’s files not because he saw a scrap of gossip about Macron and stuck it in a box or hoarded a classified pre-trip biography from years ago, which Maggie says are the best explanations, but because he wrote something down about Macron (or whichever President), quite possibly in conjunction with clemency for his rat-fucker.

To be sure, Maggie is not the only reporter covering this search who has entirely ignored the obstruction prong of the investigation. Many reporters have. But for a reporter publishing the book on Trump’s ripping, flushing, and hiding that seems to be at the core of that investigation, it seems a significant oversight.

Update: In an article Saturday that appears, in significant part, to be an attempt to underbus Mark Meadows, Maggie and others included this remarkable paragraph about an investigation into both Espionage Act violations and obstruction.

Where all of that material ended up is not clear. What is plain, though, is that Mr. Trump’s haphazard handling of government documents — a chronic problem — contributed to the chaos he created after he refused to accept his loss in November, unleashed a mob on Congress and set the stage for his second impeachment. His unwillingness to let go of power, including refusing to return government documents collected while he was in office, has led to a potentially damaging, and entirely avoidable, legal battle that threatens to engulf the former president and some of his aides.

This is another story that treats this all as one big misunderstanding and not an investigation into willful conduct designed to obstruct one or more investigations.

Maggie seems quite happy that this claim has been picked up.

The single source it relies on, described as “a person with knowledge of the situation,” speaks of their belief, not their certainty. And aside from people inside the investigation, there is no single person competent to make that claim, in part because only the family are reported to have known of the leather box in which Trump kept the Top Secret/SCI documents seized, and none of the family would know the full inventories of the boxes that were seized from storage closets.

emptywheel Trump Espionage coverage

Maggie Haberman: Heads It’s Only Obstruction, Tails It’s Not Obstruction

The French President May Be Contained Inside the Roger Stone Clemency

Which of the Many Investigations Trump Has Obstructed Is DOJ Investigating?

The Known and Likely Content of Trump’s Search Warrant

The ABCs (and Provisions e, f, and g) of the Espionage Act

Trump’s Latest Tirade Proves Any Temporary Restraining Order May Come Too Late

How Trump’s Search Worked, with Nifty Graphic

Pat Philbin Knows Why the Bodies Are Buried

Trump’s Timid (Non-Legal) Complaints about Attorney-Client Privilege

18 USC 793e in the Time of Shadow Brokers and Donald Trump

[from Rayne] Other Possible Classified Materials in Trump’s Safe

Trump’s Stolen Documents

John Solomon and Kash Patel May Be Implicated in the FBI’s Trump-Related Espionage Act Investigation

[from Peterr] Merrick Garland Preaches to an Overseas Audience

Three Ways Merrick Garland and DOJ Spoke of Trump as if He Might Be Indicted

The Legal and Political Significance of Nuclear Document[s] Trump Is Suspected to Have Stolen

Merrick Garland Calls Trump’s Bluff

Trump Keeps Using the Word “Cooperate.” I Do Not Think That Word Means What Trump Wants the Press To Think It Means

[from Rayne] Expected Response is Expected: Trump and Right-Wing DARVO

DOJ’s June Mar-a-Lago Trip Helps Prove 18 USC 793e

The Likely Content of a Trump Search Affidavit

All Republican Gang of Eight Members Condone Large-Scale Theft of Classified Information, Press Yawns

Some Likely Exacerbating Factors that Would Contribute to a Trump Search

FBI Executes a Search Warrant at 1100 S Ocean Blvd, Palm Beach, FL 33480

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How Adam Schiff Proves that Adam Schiff Is Lying that It Is “Unprecedented” for Congress to Be Ahead of DOJ

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I had imagined I would write a post today introducing Andrew Weissmann — who like a lot of other TV lawyers has decided to weigh in on the January 6 investigation without first doing the least little bit of homework — to the multiple prongs of the DOJ investigation that he complains is not investigating multiple spokes at once.

Department of Justice January 6 investigations interview with Andrew Weissmann and Rep. Adam Schiff from R G on Vimeo.

But as I was prepping for that, I watched another of the Ari Melber pieces where he replicates this false claim.

Let me correct that. Melber actually doesn’t present Weissmann’s argument that the multiple pronged DOJ investigation should have multiple prongs, perhaps because since Weissmann first made it, it became clear he missed the Sidney Powell investigation entirely, the status of the investigations into Roger Stone and Rudy Giuliani, the influencers that DOJ has already prosecuted as part of the investigation into the crime scene, and that DOJ actually started the fake electors investigation months before it was previously known.

Rather, Melber presents Adam Schiff’s claim that it is “unprecedented” for a congressional committee to be “so far out ahead” of DOJ.

Melber: We haven’t seen this kind of — he called it a breakdown, you might put it differently, but whatever it is, between the Justice Department and the Committee, but it also reflects that you’ve gotten some witnesses first. Do you share Mr. Weissmann’s concern? Could the DOJ be doing more quickly?

Schiff: I very much share his concern and have been expressing a very similar concern really for months no. It is so unprecedented — and I’ve been a part of many Congressional investigations that have been contemporaneous with Justice Department investigations — but it is unprecedented for Congress to be so far out ahead of the Justice Department in a complex investigation because as he was saying, as Andrew was saying, they’ve got potent tools to get information. They can enforce their own subpoenas in a way we can’t.

Let me introduce Adam Schiff to the House Intelligence Committee investigation into the 2016 Russian attack, on which a guy named Adam Schiff was first Ranking Member, then Chair, and the Mueller investigation into the same, on which Andrew Weissmann was a senior prosecutor.

Donald Trump Jr.

Interviewed by HPSCI on December 6, 2017

Never interviewed by Mueller’s team

Roger Stone

Interviewed by HPSCI on September 26, 2017

Never interviewed by Mueller’s team

Jared Kushner

First interviewed by HPSCI on July 25, 2017

First interviewed by DOJ on November 1, 2017

Steve Bannon

First interviewed by HPSCI on January 16, 2018

First interviewed by Mueller on February 12, 2018

John Podesta

Interviewed by HPSCI in June and December, 2017

Interviewed by Mueller in May 2018

Jeff Sessions

Interviewed by HPSCI on November 30, 2017

Interviewed by Mueller on January 17, 2018

JD Gordon

Interviewed by HPSCI on July 26, 2017

First interviewed by Mueller on August 29, 2017

Michael Caputo

Interviewed by HPSCI on July 14, 2017

Interviewed by Mueller on May 2, 2018

Michael Cohen

Interviewed by HPSCI on October 24, 2017

First interviewed by Mueller on August 7, 2018

Now, Schiff, who claimed it was unprecedented for a congressional investigation to precede a DOJ one, might say that the HPSCI investigation into Russia doesn’t count as a clear precedent because it wasn’t all that rigorous because it was led by Devin Nunes (that’s partly right, but there were plenty of Democratic staffers doing real work on that investigation too). But even on the January 6 Committee, there are already multiple instances where the Committee has interviewed witnesses before DOJ has (or interviewed witnesses that DOJ never will, before charging them), but gotten less valuable testimony than if they had waited.

One example, Ali Alexander, is instructive. He at least claimed he was going to tell the January 6 Committee a story that had already been debunked by DOJ. But before DOJ interviewed Alexander, at least two people with related information had gotten cooperation recognition in plea agreements, and several direct associates — most notably Owen Shroyer — had had their phones fully exploited.

Weissmann would likely point to good reasons why Mueller took more time, too: because later interviews with people like Michael Caputo or Jared Kushner required a lot more work on content acquired with covert warrants first, or because with people like Michael Cohen there was an entire financial investigation that preceded the first interview, or because DOJ was just a lot more careful to lay the groundwork with subjects of the investigation.

But the same is true here. DOJ will likely never interview Rudy on this investigation. But Lisa Monaco took steps on her first day in office that ensured that at whatever time DOJ obtained probable cause against Rudy, they had the content already privilege-reviewed. And DOJ did a lot of investigation into Sidney Powell before they started subpoenaing witnesses.

Many of the other witnesses that HPSCI interviewed long (or even just shortly) before DOJ did on Russia lied to HPSCI.

As both these men know, and know well, it is simply false that Congress never gets ahead of DOJ. But there are good reasons for that, and one of those reasons is precisely the one that Weissmann claims should lead DOJ to go more quickly: that it has far more tools to use to ensure that interviews that happen will more robustly support prosecutions.

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Pat Cipollone Predicted the Obstruction and ConFraudUS Prosecutions

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This morning, for the second time in two weeks, Liz Cheney called out former White House Counsel Pat Cipollone, by name, to cooperate with the January 6 Committee.

Yesterday’s testimony from Cassidy Hutchinson revealed one reason why his testimony would be so important. He predicted — on January 3 or 4th — that Trump might be prosecuted under the very same crimes DOJ has been charging for well over a year: conspiracy to defraud the United States and obstruction of the vote certification.

Cheney: We understand, Ms. Hutchinson, that you also spoke to Mr. Cipollone on the morning of the Sixth, as you were about to go to the rally on the Ellipse. And Mr. Cipollone said something to you like, “make sure the movement to the Capitol does not happen.” Is that correct?

Hutchinson: That’s correct. I saw Mr. Cipollone right before I walked out onto West Exec that morning and Mr. Cipollone said something to the effect of, “Please make sure we don’t go up to the Capitol, Cassidy. Keep in touch with me. We’re going to get charged with every crime imaginable if we make that movement happen.”

Cheney: And do you remember which crimes Mr. Cipollone was concerned with?

Hutchinson: In the days leading up to the sixth, we had conversations about obstructing justice of defrauding the electoral count.

Cheney: Let’s hear about some of those concerns that you mentioned earlier in one of your interviews with us.

{video clip}

Hutchinson: … having a private conversation with Pat on the after noon of third or fourth, um, that Pat was concerned it would look like we were obstructing justice, or obstructing the electoral college count. I apologize for probably not being very firm with my legal terms here.

Or rather, Cipollone didn’t predict Trump would be charged with ConFraudUS and obstruction. He predicted “we” would, presumably including himself and even Hutchinson.

Here I’ve thought I was ahead of the curve by predicting — last August — that if Trump were prosecuted, it would be for those crimes. It turns out that Trump’s White House Counsel was way ahead of me, predicting the same even before the insurrection!

Cipollone’s recognition of this legal exposure is important for a number of reasons. First, it validates DOJ’s approach — and does so in advance of the DC Circuit’s consideration of DOJ’s appeal of Carl Nichols’ outlier opinion rejecting such an application.

Those are also the crimes named in the warrant served on Jeffrey Clark last week.

But Cipollone’s awareness of this exposure also may explain why Cipollone has been reluctant to testify (though it’s possible he has testified with DOJ and simply doesn’t want that to be public). Hutchinson laid out a number of things that Cipollone did on January 6 that made it clear he was not willingly going along with Trump’s actions, most notably his efforts to get Trump to call off his mob before Trump re-ignited them with his 2:24 text attacking Mike Pence again. If there was a conspiracy to obstruct the vote certification, he took overt acts to leave that conspiracy before and during the conspiracy on January 6.

By that point, however, it may have been too late for Cipollone to avoid all exposure to Trump’s corrupt actions. That’s because Cipollone would have been involved in the pardons of those — Cheney focused on Roger Stone and Mike Flynn last night, but Bernie Kerik and Paul Manafort also got pardons — who would go on to play key roles in Trump’s insurrection. (I assume Cipollone was not involved in the Bannon pardon that came after the attack, and I noted in real time that Cipollone likely prevented a bunch of other pardons that would have made obstruction more likely.) That is, Cipollone might have exposure for obstruction for actions already taken by January 3 or 4 when he explained this legal exposure to Hutchinson.

Even Bill Barr said that rewarding false testimony with a pardon would be obstruction. And Roger Stone, Mike Flynn, and Paul Manafort all delivered on that quid pro quo.

For all Liz Cheney’s specific exhortations, Cipollone may know better than to testify to Congress. Because without testifying to DOJ, first, that may cause him more legal trouble than his current (presumed) silence.

Update: As a number of people in comments noted, the Committee has formally subpoenaed Cipollone.

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Junkets In Lieu of Investigation: John Durham Charged Igor Danchenko without Ever Interviewing George Papdopoulos about Sergei Millian

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Recently, Roger Stone invited George Papadopoulos onto his show to talk about how, even though Michael Sussmann was acquitted, it’s still proof of a grand conspiracy involving Hillary Clinton.

Stone invited Papadopulos to talk about how Durham and Billy Barr chased Papadopoulos’ conspiracy theories to Italy, which both the Rat-Fucker and the Coffee Boy seemed to take as proof that those conspiracies were true, even though Barr has publicly stated there was no there there.

The biggest news from Mr. Durham’s probe is what he has ruled out. Mr. Barr was initially suspicious that agents had been spying on the Trump campaign before the official July 2016 start date of Crossfire Hurricane, and that the Central Intelligence Agency or foreign intelligence had played a role. But even prior to naming Mr. Durham special counsel, Mr. Barr had come to the conclusion that he didn’t “see any sign of improper CIA activity” or “foreign government activity before July 2016,” he says. “The CIA stayed in its lane.”

Seemingly in hopes of finding details that Durham was ignoring, Stone asked Papadopoulos whether Durham had ever spoken to the Coffee Boy. Papadopoulos babbled for some time about his House testimony, then Stone followed up to get him to state that, no, Durham had never spoken to him.

Never.

Stone: You make a very good point. The fact that the Attorney General was on the trip means that he knows the origins of the Russian collusion fraud far earlier than other people realize. George, have you specifically met with either John Durham or representatives of his office to tell them what you know?

Papadopoulos: So, that’s a good question. In 2018, I was one of five witnesses who was invited by–under oath, behind closed doors–in front of the House Oversight Committee. And the other four witnesses, besides myself, were Rod Rosenstein, Sally Yates, uh, Jim Comey, and Loretta Lynch. Now, back in 2018, and there’s a Washington Post article, I think it’s called “Papadopoulos and Rosenstein about to testify behind closed doors,” back in 2018, people were scratching their heads, why on earth is George Papadopoulos one of four, one of five witnesses who is going to testify to both John Ratcliffe and Mark Meadows. Back then, obviously, before Mark Meadows was Chief of Staff at the White House and Ratcliffe was the head of DNI, they were Congressmen. They were in charge of the House Oversight Committee. During that testimony back then, both of those individuals who later served in senior White House, uh, Administrative capacities were asking me questions about wiretaps. They were asking me if I was being monitored while I was in Europe. They were asking me whether my lawyers were ever given so-called exculpatory information about any of, about Joseph Mifsud, any of these other type of operatives, both domestic and foreign. And I basically let them know, under oath, that I’m telling you. How I met him, what my background was, why I believe there was this target on my back, why I think it followed me all the way from the beginning, all the way until the summer of 2017, where they were, the FBI was trying to set me up while I was in Israel with this other bizarre exchange that I had, that I talk about in my book. So that testimony, I believe, was used with the Durham team, to help get this entire thing started, that’s how Durham and Barr flew to both to Rome, to talk to Italian intelligence services — not the FBI — to learn about Mifsud, and I believe — that’s why NBC has also been quoted as saying that Western intelligence officials have gone on the record and stated that it’s Papadopoulos’ breadcrumbs, if you want to call it that, that have led to Durham’s real conspiracy case that he’s trying to uh–

Stone: So, but to go to my direct question, have you had any direct contact with Durham or his office, or your attorneys?

Papadopoulos: No, I haven’t. No no no, no I haven’t. But my understanding is that that testimony, 2018, was used by the Durham, that’s my understanding.

This is fairly shocking — and damning news.

Papadopoulos’ testimony was not only not under oath (though committee staffers admonished the sworn liar not to do it to them), but it was a shitshow.

I’ve cataloged all the ways it was a shitshow below. But the fact that Billy Barr and Johnny D jumped on a plane together for their junket to Rome based off such a shitshow matters for two reasons.

First, it shows that they did no vetting of the conspiracy theories the Coffee Boy repeated in the hearing — which as I show below were really just rewarmed conspiracy theories parroted by John Solomon and Chuck Ross — before hopping on a plane for their junket. Importantly, one of those conspiracy theories was spread by Joseph Mifsud attorney Stephen Roh, who himself is suspected of sketchy ties to Russia.

The other reason it matters is because Durham’s Igor Danchenko prosecution treats Danchenko, whom the FBI found credible in 2017 and afterwards, as less credible than Sergei Millian. But George Papadopoulos, whose testimony Durham considered sufficiently credible to hop on a flight to Rome for, described Millian — in the context of details about his offer to hire him so long as he also worked in the Administration — as “a very shady kind of person.”

Q I guess there’s just one follow-up, because you said some kind of consultancy work for some — someone that Sergei Millian knew in Russia. What would have been the nature of that work? Like, what topic would the work have been on?

A My current understanding — and this is what I think it is, because this is a very shady kind of person — was that it was a former minister of some sort who had money and wanted to do PR work. But then, of course, we met in Chicago, and I felt that, you know, he was — I don’t know. I just felt that when he proposed this deal to me face-to-face that he might have been wearing some sort of wire. And he was acting very bizarre. And I don’t know what that was. Maybe I’m a paranoid person. But there were certain other events regarding Sergei Millian that made — that make me believe that he might have actually been working with the FBI.

Durham shouldn’t be able to have it both ways. If Papadopoulos’ testimony was deemed sufficiently credible, without any more vetting, to justify a taxpayer-paid trip to Rome, then his judgment that Millian is a “very shady person” the likes of whom might lie about a call with Igor Danchenko, then Durham should not rely on Millian’s unsworn Twitter ramblings for four charges against Danchenko.

In short, the fact that Durham hasn’t interviewed Papadopoulos at all, either before or after the junket, is yet more proof that Durham is hesitant to test any of his conspiracy theories with actual investigative work.

Catalog of Coffee Boy Testimony Shitshowery

One key piece of proof that Papadopoulos’ testimony before the Oversight Committee was a shitshow designed to elicit conspiracy theories about Mueller’s investigation rather than useful information is that the committee didn’t ask him for any emails or other records in advance — emails that Papadopoulos had earlier withheld from SSCI, with which request he only partly complied in 2019. Papadopoulos told the committee on at least 18 occasions he had emails or other records that would allow him to answer their questions — about when he joined the campaign, his communications with Olga Polanskaya, Joseph Mifsud, and Ivan Timofeev, his communications with Steve Bannon, Stephen Miller, Mike Flynn, KT McFarland, and Walid Phares, his communications with Sergei Millian, his meetings with Stefan Halper, his interactions with suspect Israelis — accurately, but that he couldn’t without those records. [Note the last several of these are out of order because I just kept finding more examples.]

1. Mr. Breitenbach. Is there any paperwork that you might have indicating when you actually began on the Trump campaign?

Mr. Papadopoulos. I believe we might have, we might have those emails.

Ms. Polisi. We have emails. We don’t have any official documentation.

Mr. Papadopoulos. I mean, if the emails would suffice, I think we have emails suggesting that I would be joining the campaign on this day, or Sam Clovis was telling me you’re on board, good job, or something like that.

[snip]

2. And I remember I even — where I’m going at is I don’t think I was talking to the same person [Olga Polanskaya]. That’s what I’m trying to say.

Q When you say talking?

A I mean writing back and forth.

Q By email? By text?

A Email. Email. And I remember there was even a point I messaged this person on Skype. And I said, are you the same person that I met a couple months ago or so? You know, it was just very odd. I think I, you know, I wrote that to her on Skype. Nevertheless, I think we could provide these emails of my interactions with this individual and Joseph Mifsud. What it seems was going on was that Mifsud was using her as some sort of Russian face or person.

[snip]

3. I could get into the details about what was going on with [Ivan Timofeev] or however —

Q Sure. A So I saw him as potentially the person that could, you know, introduce not only me, but the campaign to the people in the Russian Ministry of Foreign Affairs and then act as the key point man for this potential Trump-Putin submit. We exchanged emails. We could provide those emails to you.

[snip]

4. Q Did you arrange for anyone else to travel to Russia? Let’s just keep it specifically —

A Yeah.

Q — based on your contacts with Mifsud at this point.

A Yes. I reached out directly to Paul Manafort, you know, and Corey Lewandowski and the top — the heads of the campaign, and openly told them I’m trying to arrange this. I mean, they were fully aware of what I was doing. This is all in emails. I’m not sure if you have those emails. I’m happy to provide them to you. That I’m trying to set up this meeting. Are we interested or are we not interested.

[snip]

5. Mr. Meadows. Are you indicating that there are some things that were reported that are not accurate?

Mr. Papadopoulos. That’s a kind way to say it. Okay. Let’s go back to April. I can’t remember exact dates in April, but April, and maybe we can send emails and when could corroborate certain things. I’m in talks with an Israeli diplomat named Christian Cantor, who was introduced to me through, I guess a friend at the Israeli embassy in D.C. named Dore Shapiro, who was an economic counselor. And you have to remember I was very connected to Israel and what was going on. So that was my network.

[snip]

6. Q So how often was that, would you say? Like how often would you be sending an email? I mean, I know it’s a rough estimate, but —

A It depends on the timing. I mean, there was a point where it was very frequent, and then I took a pause, then started up again. I can’t give a number. I really can’t. But there’s a lot of emails, and those are all documented.

Q Okay. So when the transition started, you said that you became introduced to Michael Flynn and K.T. McFarland.

A Over email.

Q Over email.

[snip]

7. Q And what was that project that you were discussing with Sergei Millian?

A Well, this — I never properly understood exactly what we were talking about. I believe I was asking him for a contract. And I have to go back, and I could share notes later on, but I — just giving off my current memory, that he wanted to do some sort of PR or consultancy for a friend of his or somebody that he knew in Russia. And I believe the terms of the agreement would have been $30,000 a month and some sort of office space and in New York. But then I felt that he wasn’t who he seemed to be and that he was working on behalf of somebody else when he was proposing this to me. And — I mean, we could get into that.

[snip]

8. Q With regard to Olga, you mentioned that she discussed sanctions with you in your correspondence. Does that ring a bell?

A I believe she did over email.

Q And what was the position on sanctions that she expressed over email?

A I can’t remember exactly, but we are happy to share them with — we have those emails in case you don’t. And are more than happy to share them with you.

[snip]

9. Q Did [Timofeev] correspond with you about any geopolitical issues in email?

A We certainly exchanged some emails. I can’t remember exactly what’s in those emails, but I’m more than happy to provide them to the committee.

[snip]

10 and 11. Q I’d also like to ask you about some of the communications that you referenced earlier with Trump campaign officials. You said earlier that you provided notes on President Trump’s — then candidate Trump’s big foreign policy speech to Stephen Miller?

A Yes.

Q What was the substance of those comments?

A I can’t remember but I’m more than happy to share them, because it is all in an email form.

Q And you said that you communicated with Steve Bannon by email as well. Is that right?

A Yes.

Q Would you be —

A Email and a couple of phone calls. What was that?

Q Would you be willing to share those emails with Steve Bannon with us as well?

A I’m more than happy to share whatever emails I have with the campaign with the committee.

[snip]

12. Q You mentioned a number of emails where both of you would have been copied. Did you and Mr. Phares have any direct communication just the two of you?

A We met face to face at the TAG Summit. And then we obviously met at the March 31st meeting. And I can’t remember if we met another time in person or not. But we certainly were in correspondence for months over email.

Q Did you discuss your efforts to set up the Putin-Trump meeting with Mr. Phares?

A I’m not sure he was copied on those particular emails, but I could send whatever emails I have with him to the committee. It’s fine with me.

[snip]

13. Q Did you reach out to anyone on the Trump campaign that day?

A That particular day? Like, I think, Steve Bannon, you know, just to say we did it or something like that. I can’t — like I said, I could provide all these emails, I just don’t know. I really can’t remember exactly what I did on that specific day.

[snip]

14. A Sergei Millian reached out to me out of the blue on LinkedIn around sometime in late July 2016. I can’t remember exactly how he presented himself, but he basically stated that he’s an American of Belarusian origin who worked for Trump or his organization, and he could be helpful in understanding the U.S.-Russia relationship, and he might be a good person to get to know. So I thought this was probably one of Trump’s people and he’s reaching out to me. That’s a good sign. I have the message somewhere. I could always present it to the committee here. And then we met shortly after that in New York.

[snip]

Mr. Meadows. Do you know when in July of 2016, what the date was?

Mr. Papadopoulos. I’m not 100 percent sure, but I think it was around July 22nd. Mr. Meadows. And do you recall the date that you actually met with him?

Mr. Papadopoulos. I’m not even 100 percent sure of exactly the day in July. I could always go back in my records and provide that.

Mr. Meadows. That would be helpful. Those dates would be helpful, but when did you meet with him, in July or in August?

[snip]

15. You explained previously that Mr. — that Professor Mifsud had a connection to and introduced you to Ivan Timofeev. Is that right? A Via email, yes.

Q And did he explain at the time what the purpose of that introduction was?

A I assume he did. I just can’t remember exactly the language, the specific language of the introduction. But I have those emails and am more than happy to share that — those interactions with the committee.

[snip]

16. A I — as I’ve stated, I never met Timofeev in my life face-to-face, so I’m just trying to go back in my memory to see if he actually copied any Russian nationals on an email. I don’t recall that. But as I stated, I’m more than happy to share all communication I have with this person.

Q Great. Thank you.

A Yes.

Q Do you recall him introducing you to any other people in the emails or when you spoke to him by phone?

A I — I don’t recall. But they — but the emails should be in our possession, and we’re more than happy to provide them.

[snip]

17. Q Real quick, just following up on Congressman Ratcliffe’s questions in terms of timing with your conversation with Mr. Halper. You had mentioned it was sometime between September 13th through the 15th. But then you said that you had left London by flight, I suppose. So you might have a record on the day that you left?

A Yes.

Q And you think you met with him the day before you left.

A Yes.

Q Is that something you could provide to us?

A I believe so, yes. It shouldn’t be too hard.

[snip]

18. Mr. Meadows. So I want to follow up on one item from the previous hour, where you had talked about Mr. Tawil. I guess you had not heard from him about the $10,000. And then all of a sudden, you get an email, I assume an email out of the blue saying he wants his $10,000 back. Is that correct?

Mr. Papadopoulos. My memory of the past year, and any interactions I had with this individual — I’m more than happy to share his emails with the committee — was that he would reach out to me indirectly through contacts of mine, and ask how was George doing, what’s his news, even though I was all over the global media at that time. And I don’t remember him ever asking for his money back, even though I had offered to give him his money back, shortly after I left him in — wherever I left him. And going back into my records, I just looked at my email, and we can provide this to you, I think 2 days after I was sentenced, I think — so, September 9th of last month, he sends me an email and he says, not only am I thinking about suing you, but I want my money, and let’s act like we never met. Something along those lines.

Without these emails, the testimony was guaranteed to be useless with respect to 2016, but it gave Papadopoulos the opportunity to engage in wild conspiracy theorizing. The Coffee Boy didn’t much remember the events of 2016, but he did remember what he read in the Daily Caller, the Hill, and the NYT in the weeks before his testimony, which is what he spent much of his testimony telling Congress about.

A You know, I don’t want to espouse conspiracy theories because, you know, it’s horrifying to really think that they might be true, but just yesterday, there was a report in the Daily Caller from [Joseph Mifsud’s] own lawyer that he was working with the FBI when he approached me. And when he was working me, I guess — I don’t know if that’s a fact, and I’m not saying it’s a fact — I’m just relaying what the Daily Caller reported yesterday, with Chuck Ross, and it stated in a categorical fashion that Stephan Roh, who is Joseph Mifsud’s, I believe his President’s counsel, or PR person, said that Mifsud was never a Russian agent.

In fact, he’s a tremendous friend of western intelligence, which makes sense considering I met him at a western spying school in Rome. And all his interactions — this is just me trying to repeat the report, these are not my words — and when he met with me, he was working as some sort of asset of the FBI. I don’t know if that’s true or not. I’m just reporting what my current understanding is of this individual based on reports from journalists.

[snip]

But I guess the overwhelming evidence, from what I’ve read, just in reports, nothing classified, of course, because I’m not privy to anything like that, and considering his own lawyer is saying it, Stephan Roh, that Mifsud is a western intelligence source. And, I guess, according to reports yesterday, he was working with the FBI. I don’t know if that’s true or not. I’m just here to, you know, maybe, you know, let you — direct you in certain directions of what I’ve read and maybe, in case you haven’t read it.

[snip]

Mr. Meadows. Are you aware of any potential exculpatory evidence that would exist that you just have not seen or your counsel have not seen?

Mr. Papadopoulos. I read John Solomon’s report, like I think probably everyone in this room did from The Hill a couple days ago, about Stefan Halper, which is another person. But in regarding Downer, no, I haven’t seen anything like that.

[snip]

Q Were you — are you aware of any other transcripts or recordings or exculpatory materials as Mr. Meadows referenced?

A This is what I currently understand. I read the John Solomon report about the Stefan Halper, I guess, tapes or recordings of some nature. And so — my old lawyer or — all I — my understanding is that they had a — that they gave me, my old lawyers, a passing reference to something about — I said about treason, and I am — no, about the exculpatory.

[snip]

A My current memory makes me believe that he was stating it as a fact, and I took it as well.

Q And did you believe him at the time?

A At the time, yeah.

Q And so —

A But at the time, also, I thought he was validating rumors. So that was really my impression of him. I mean, you have to understand this is a person who sold himself as the key to Moscow but then really couldn’t deliver on any one of real substance except Putin’s fake niece and the think tank analyst, and then now he’s drooping this information on me. It was very confusing. You can understand how confusing this process was over the month.

Q Do you not believe him now, given what you’ve learned, or do you — you know, do you continue to believe that he was given information that the Russians had Hillary Clinton’s emails?

A I’m not a conspiracy theorist. Everything I’ve ever tweeted or — probably, if that’s what you’re referring to, it’s just backed by things I’ve read in the media. And it’s not my job to dig into this person, because I really don’t care about this person. And legally, I’m not even allowed to talk to him directly or indirectly. So all I can do is read reports, read what his lawyer is saying, and take it with a grain of salt and just share that information with you that his lawyer, yesterday, said that he was working with the FBI. Was he? Is his lawyer a crazy person who’s slandering his client, or was he really working with the FBI and this was some sort of operation? I don’t have the answer to that, and I’m not sitting here telling you I do have the answer to that.

[snip]

Mr. Papadopoulos. Just who I am, my background in the energy business, because everyone was curious about my background in the energy business in Israel. And that’s another thing we’ll get to about what I think why I had a FISA on me, but I don’t know. She then apparently — I don’t remember it, I’m just reading The New York Times. She starts asking me about hacking. I don’t remember her actually asking me that, I just read it in The New York Times. Nevertheless, she introduces me the next time to Stefan Halper.

Mr. Meadows. She asked you about hacking?

Mr. Papadopoulos. I don’t remember it. I just — I think I read that particular —

Mr. Meadows. You’ve read that?

Mr. Papadopoulos. Yes, that’s what I — I think I read it in The New York Times.

[snip]

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

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

Mr. Meadows. So are you aware of a transcript existing? I mean — Mr. Papadopoulos. I wasn’t aware of a transcript existing personally.

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

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

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

Mr. Papadopoulos. Yes.

Having used the stories of Stephen Roh and John Solomon — key players in Russian influence operations — to float conspiracy theories about the Coffee Boy being set up, both Mark Meadows and John Ratcliffe then cued Papadopoulos to attack the Mueller investigation.

For example, Meadows suggested that the FBI had not read Papadopoulos his Miranda rights and had improperly searched his bags.

Mr. Meadows. They told you — I guess, they gave your Miranda rights?

Mr. Papadopoulos. I don’t remember that. I don’t remember that. I’m sure there might be the video or a transcript of what was going on. You have to understand, I had just come off a trans-Atlantic flight.

In fact, when Papadopoulos told agents he was still represented by an attorney, they told him they would ask no further questions, read his rights and marked the Miranda form as waived. But even after being warned not to say anything without his lawyer present, he kept offering unsolicited comments. And in spite of Meadows’ insinuations, while in FBI custody Papadopoulos thanked the FBI agents for treating him well.

Meadows also found it deeply suspicious that the FBI would ask Papadopoulos to wear a wire to record Joseph Mifsud.

Mr. Meadows. Now, this is the same agent that said that he knew that you had said something. Is that the same person?

Mr. Papadopoulos. Same guy.

Mr. Meadows. And so, he was the one that said you had definitely — I want to make sure that we’re accurate with this. If you’ll — because the name keeps coming back. When you said you didn’t know what you had said to Mr. Downer, it’s the same agent that said, Oh, yes, you said it. Is that correct?

Mr. Papadopoulos. That’s how I remember it, yes.

Mr. Meadows. Okay. So go ahead.

Mr. Papadopoulos. So I told him, I’m not interested in wearing a wire.

Mr. Meadows. So on your second meeting with the FBI, they asked you to wear a wire?

Mr. Papadopoulos. Against Mifsud.

Mr. Meadows. Against Mifsud, who they believed at that time was doing what?

Mr. Papadopoulos. Well, I guess —

Mr. Meadows. Why did they want you to wear a wire for Mifsud?

The reason Meadows is so bothered that the FBI tried to investigate a suspected Russian agent is that he wanted proof that that Papadopoulos himself was taped. He was looking for something specific: transcripts.

Mr. Meadows. So as we look at this, I think getting our head around all of this is just — it’s hard to believe that it happened in the United States of America. And I think that that’s the trouble that I have with it. And I’ve seen nothing in the classified setting. I want to — for the record, I purposely have not gone into a classified setting to see things so that I can try to put this piece of the puzzle together. It is my belief that you were taped at some point or another by one of these officials, whether it be Mifsud or whether it be Downer or whether it be Halper. I don’t know which one of them did it, but I believe that certainly it is my strong belief that you were taped. Has anyone in the Department of Justice indicated to you that they may have a tape of a private conversation that you had with anyone of those three individuals?

The goal of Meadows and John Ratcliffe — probably the entire point of the hearing, which took place in the wake of a John Solomon article reporting on the topic — was to suggest that George Papadopoulos was deprived of exculpatory evidence, transcripts from his interactions with Halper, before he pled guilty and that he wouldn’t have pled guilty had he received it. Coached by Meadows and influenced by things he read at the Daily Beast, Papadopoulos says maybe the whole thing was a set-up.

Mr. Meadows. I guess if they had that, wouldn’t, before you pleaded guilty, wouldn’t that be something that they should have provided to you or let you know that there was exculpatory evidence out there?

Mr. Papadopoulos. Absolutely. And that would have changed my calculus 100 percent.

Mr. Meadows. Okay. So you, perhaps, would not have pleaded guilty if you knew that there was this tape of a private conversation with one of the three individuals that I just mentioned?

Mr. Papadopoulos. That’s correct. I guess, my thought process at the time —

Mr. Meadows. Because it could potentially have been a setup.

Mr. Papadopoulos. Absolutely could have been. And just going back in my memory, I guess the logic behind my guilty plea was that I thought I was really in the middle of a real Russia conspiracy, that this was all real, and that I had to plead out or face life in prison, the way they were making it seem. And after this conversation and after much information that’s come out, it’s clear that my — I was completely off on my calculus?

Here’s how former US Attorney Ratcliffe quizzes Papadopoulos about whether he was asked about his conversations with a confidential informant.

Mr. Ratcliffe. Again, to be real clear, the special counsel investigating collusion, potential collusion, or links between the Trump campaign and the Russian Government never asked you, the person around which this investigation was opened and centered, about any communications you had with an individual where you expressed that there was no collusion between the Trump campaign and the Russian Government?

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

Mr. Ratcliffe. The reason I’m asking these questions, Mr. Papadopoulos, is your credibility is at issue, and will be at issue, because you have pled guilty to an 18 U.S.C. 1001 charge of lying to the FBI. And so there will be those that will call into question the truthfulness of your testimony. If you’ve lied to the FBI before, how do we know that you’re telling us the truth? But if there is a transcript of a conversation that you had where you expressed that you had no knowledge about collusion, that might corroborate your testimony. It might also raise obligations, obligations to you as a defendant, to your lawyers as defense counsel, and to various judges as arbiters of material facts.

Here’s how Meadows asked the same question.

Mr. Meadows. Both. I mean, obviously if the special prosecutor is trying to get to the truth and you’re having substantial conversations with Stefan Halper and they don’t ask any questions about it, I find that curious. Do you find that curious?

Mr. Papadopoulos. Now I do.

There are a few problems with Meadows and Ratcliffe’s story. First, Papadopoulos made clear that his lawyers did get the substance of the transcript in question, where Papadopoulos likened what Roger Stone did to treason.

Mr. Meadows. About recordings or transcripts of Mr. Halper?

Mr. Papadopoulos. I never saw anything, but my lawyers, to be clear, they had made a passing remark about something that I said about treason —

Worse still, when Meadows asked Papdopoulos about his conversation with Halper, the Coffee Boy tried to claim his purported disavowal of “collusion” was made to someone he never imagined could be investigating him.

Mr. Meadows. So when you pushed back with Stefan Halpern [sic], and you said, Listen, this is, you know, I’m not going to do that and colluding with the Russians would not be something that I would do. It would be against the law — I don’t want to put words in your mouth — you had no knowledge of being under an investigation at that particular time, is that correct?

Mr. Papadopoulos. So, that’s absolutely correct, and if I had even a scintilla of proof or belief that Stefan Halper was an FBI agent, there’s no way I would have be going and talking to him — I just wouldn’t, I don’t think I would. I don’t think anybody would be running into some sort of operation against themselves.

That’s false. According to the DOJ IG Report, he told another informant he thought Halper would tell the CIA what he said.

Papadopoulos said he believed Source 2 was going to go

and tell the CIA or something if I’d have told him something else. I assume that’s why he was asking. And I told him, absolutely not …. it’s illegal, you know, to do that.. .. [my emphasis]

That is, Papadopoulos admitted to a second FBI informant that he said what he had to Halper precisely because he believed Halper might share what he said with the IC.

Which is among the reasons the FBI believed his answer was a rehearsed cover story in real time.

Now, Papadopoulos’ claim that he never imagined Halper might tell the FBI what he said when in fact he said the nearly the opposite in real time is not the only false claim he made to Congress before Billy Barr and Johnny D went on their junket chasing his conspiracy theories.

This answer, for example, is mostly word salad. But it hides that Papadopoulos continued to pursue a meeting with Russia until September 2016, months after he reached out to Paul Manafort. The word salad obscures a topic — his later effort to set up a meeting with Russian — that Papaodpoulos refused to explain to Mueller.

And to the best of my understanding, that’s when, you know, I really stopped engaging about this Trump-Putin potential meeting.

[snip]

Q Were there other interactions with Mifsud about, I think I read about possibly setting up a trip to Russia about campaign officials? Is there other things you worked on with him aside from the Putin summit? A Yeah, I think what we were trying to do is bring — I was trying to bring the campaign, I think Sam Clovis and Walid Phares and I, we were talking about potentially going to Europe and meeting officials together. And I was trying to see who Mifsud potentially knew in the U.K., or in other parts of Europe that could facilitate that meeting. Of course, we never did it. I think Sam Clovis ended up telling me I can’t make it, I’m too busy, but if you and Walid want to go to this, whatever you’re trying to put together, go ahead. That’s what I remember.

Q And did that trip ever happen?

A I never traveled with Walid Phares, no.

Q Did you arrange for anyone else?

A What was that?

Q Did you arrange for anyone else to travel to Russia? Let’s just keep it specifically —

A Yeah.

Q — based on your contacts with Mifsud at this point.

A Yes. I reached out directly to Paul Manafort, you know, and Corey Lewandowski and the top — the heads of the campaign, and openly told them I’m trying to arrange this. I mean, they were fully aware of what I was doing. This is all in emails. I’m not sure if you have those emails. I’m happy to provide them to you. That I’m trying to set up this meeting. Are we interested or are we not interested. So Corey Lewandowski was informed, Paul Manafort was informed, Sam Clovis was informed about what I was doing and what my progress, I guess, if you want to call it that, was.

“It is a lot of risk,” the notes that Papadopoulos refused to explain appear to have said about a September meeting with Russia, originally scheduled for the same dates as he met Halper.

And when Democratic staffers tried to get back to the gist of the issue — away from the transcripts capturing coached answers Papadopoulos told because he thought the answer might get back to the CIA and to the charged conduct — Papadopoulos’ lawyer refused to let him answer.

Q Is it your position here today that you did not lie to the FBI during your first interview?

Ms. Polisi. I’m just going to advise my client not to answer that.

In several such interactions, the Democratic staffers identified material discrepancies between what Papadopoulos said to a Committee of Congress and what he had sworn to in his guilty plea.

So Mr. Papadopoulos, why did you lie to the FBI and claim that your interactions with Professor Misfud occurred before you became a foreign policy adviser to the Trump campaign?

Ms. Polisi. I’m going to object to this line of questioning.

Ms. Shen. What’s the objection based upon?

Ms. Polisi. We are here on a voluntary basis. We have answered all of your questions thus far. It is my advice to him that he not talk specifically about the offense conduct.

[snip]

Q Can you please turn to page 4. Mr. Papadopoulos, I believe earlier in this round, we were asking about your interviews with the FBI, and I believe that you said that you had brought up to the FBI the — the professor and your conversation with him. Is that correct?

A That is what I remember.

Q So if you could take a look at footnote 2 on this page, page 4, in the second paragraph, it reads, “To the contrary, the defendant identified the professor only after being prompted by a series of specific questions about when the defendant first learned about Russia’s disclosure of information related to the campaign, and whether defendant had ever, quote, ‘received any information or anything like that from a Russian government official’ unquote. In response, while denying he received any information from a Russian Government official that further identified the professor by name, while also falsely claiming he interacted with the professor ‘before I was with Trump though.'” Mr. Papadopoulos, what you just said earlier today during this interview doesn’t seem to jive with the information in this footnote. Can you explain the discrepancy?

Ms. Polisi. I’m still going to object to this line of questioning. I disagree with your characterization of his previous testimony. What’s written is written, you read it into the record.

Ms. Shen. Well, he just agreed with my characterization.

Ms. Polisi. No, he did not. He did not. He did not agree with your characterization.

Ms. Shen. I asked him if what we talked about earlier was correct — on the record.

Ms. Polisi. That is correct.

Ms. Shen. And then I read the paragraph from his sentencing memorandum, and you are not allowing him to respond to that.

Ms. Polisi. Correct, I’m not allowing him to respond to that.

I guess it makes sense that Durham would not interview Papadopoulos after this performance. It’s not actually clear whether he could tell the truth, and if he did, the truth — that the Coffee Boy was still pursuing a risky back channel to Russia even after the investigation into him was opened — would utterly destroy the objective of the Durham investigation.

So in the same way that Durham never subpoenaed Jim Baker before basing an entire indictment on his testimony, Durham never spoke to Papadopoulos, who would testify that in the same weeks when — Durham claims — Danchenko believed he had a sketchy call with Millian, Papadopoulos started having similar calls with the “very shady person” that Durham has made the centerpiece of his case against Danchenko.

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“Something Like This Has 0 Repercussions if You Mess Up:” John Durham Debunked the Alfa Bank Debunkery

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As you know, John Durham failed spectacularly in trying to use a false statement charge against Michael Sussmann to cement a wild conspiracy theory against the Democrats.

But Durham did succeed in one thing (though you wouldn’t know it from some of the reporting from the trial): He utterly discredited the FBI investigation into the Alfa Bank allegations. Lead prosecutor Andrew DeFilippis even conceded as much in his closing argument.

Now, ladies and gentlemen, you have heard testimony about how the FBI handled this investigation. And, ladies and gentlemen, you’ve seen that the FBI didn’t necessarily do everything right here. They missed opportunities. They made mistakes. They even kept information from themselves.

That’s a fairly stunning concession from DeFilippis. After all, DeFilippis asked the guy who was responsible for some of the worst failures in the investigation, Scott Hellman, to be his expert witness, even though Hellman, by his own admission, only “kn[e]w the basics” of the DNS look-ups at the heart of the investigation. Along with Nate Batty, Hellman wrote an analysis of the Alfa Bank white paper in less than a day that:

  • Misstated the methodology behind the white paper
  • Blew off a reference to “global nonpublic DNS activity” that should have been a tip-off about the kinds of people behind the white paper
  • Falsely claimed that the anomaly had only started three weeks before the white paper when in fact it went back months
  • Asserted that there was no evidence of a hack even though a hack is one of the hypotheses presented in the white paper for the anomaly at Spectrum Health (Spectrum itself said the look-ups were the result of a misconfigured application)

Later testimony showed that, after speaking to Hellman and before even checking whois records, the Chicago-based agent who had a lead role in the investigation told a supervisor that “we’re leaning towards this being a false server.”

Within hours, Miami-based agents had confirmed with Cendyn that was false.

In spite of being so egregiously misled from the start by the guys in Cyber, agent Curtis Heide testified in cross-examination by Sussman’s attorney, Sean Berkowitz, that Hellman’s analysis was one of the four things that he believed supported a finding that the anomaly was not substantiated.

Q. Okay. I think near the end of your examination by Mr. Algor he questioned you about your basis for concluding that there was — that the allegations were unsubstantiated. And I think you gave four reasons. I’m going to run through them. If there’s more, that’s okay. Number one, you said the assessment done by Agents Hellman and Batty. Correct?

A. Yes.

Q. Two, the review of the logs. Correct?

A. Yes.

Q. Three, the Mandiant conclusion. Correct?

A. Yes.

Q. And four, the discussions with Spectrum Health about the TOR node. Correct?

A. Yes.

Q. Anything else that you can recall, sir, as to why it was that your investigation, or rather the investigation that you oversaw, suggested that the allegations were unsubstantiated?

A. The only other thing I can think of would be my training and experience with — relating to Russia and cyber investigations.

Q. And is there anything in particular about that that you recall today?

A. With respect to the white paper, it didn’t — when I read through it initially, I had several questions, and it didn’t appear to be consistent with Russian TTPs.

Another thing Heide relied on was the analysis from Mandiant, which Alfa Bank hired to investigate after NYT reached out. According to Franklin Foer’s story, Lichtblau reached out to Alfa on September 21, after Sussmann had given the FBI a heads up but before the FBI asked Lichtblau to hold the story on September 26, so in the window when the FBI had a chance — but failed — to protect the investigation.

One of the truly insane parts of this investigation, by the way — which was conducted entirely during the pre-election window when overt actions were prohibited — was that FBI big-footed to Cendyn and Listrak before sending NSLs to them. And by that point, Alfa Bank was calling the FBI.

A report that was not explained amid the primary resources from the investigation, but which was concluded by October 3, reveals that Chicago’s conclusion was almost entirely based on what Alfa told the FBI and Mandiant.

There was nothing in the case documentation until a 302 for a March 27, 2017 interview done in association with Alfa’s 2017 claims of spoofed DNS traffic (the interview may have been done with Kirkland and Ellis) that documented that, when Mandiant arrived the previous year to investigate, there were no logs to investigate.

Indeed, Heide testified on cross-examination that he had never learned of that fact. At all.

Q. And were you aware, while you were doing the investigation, that Mandiant, when it went to talk to AlfaBank to look into these allegations, did not have any historical data, that Alfa-Bank did not provide any historical data to Mandiant? Did you know that?

A. No

We now know that at a time when “Executives at the highest level of ALFA BANK leadership” had been hoping to “exonerate them[selves]” in 2017, Petr Aven had already started acting on specific directives from Vladimir Putin, including trying to open a back channel to Trump.

Plus, at least as far as Listrak could determine, while the marketing server had sent materials to Spectrum, it had never sent anything to Alfa Bank. The stated explanation that this was spam, then, conflicts with what FBI was seeing in the logs.

As for Spectrum — another of the reasons Heide pointed to — there’s no evidence of anyone reaching out to them (as compared to interactions with agents in Philadelphia and Miami who reached out to Listrak and Cendyn, respectively).

It’s true that the anomaly at Spectrum was not a Tor node (something that researchers came to understand themselves around the time Sussmann shared the allegations with the FBI). But it’s also true that, per Cendyn (which only looked back a month), the identified IP address at Spectrum was reaching out to the Trump server.

The IP address in question showed up in traffic that may be associated with Chinese hacking.

This then might have corroborated the hypothesis, from the white paper, of a hack of Spectrum, but by this point, Hellman had long before decided there was no evidence of a hack and this was, “just garbage.”

That leaves the logs, Heide’s fourth reason for believing FBI had debunked the Alfa Bank allegations. As far as the logs in question, former agent Allison Sands (who was assigned the investigation as a brand new case agent) told one of the tech people on September 26 that, “the end user [possibly Cendyn] is willing to provide logs but they dont have what we need.” Cendyn did share details of their own spam filter, which wouldn’t address the DNS look-ups themselves.

Then, on October 12, Sands told Heide that,

the ‘logs’ we got from Listrak were not network logs

they basically just confirm that trump org is one of their email clients, but they dont show destination email addresses or IPs or anything that we can use to[ ]determine any communications

[snip]

it was two excel spreadsheets

that was all we got

The FBI did get something. Sands testified that the FBI obtained upwards of 600,000 records (she described obtaining records from Cendyn, Listrak, and GoDaddy, but not Spectrum or Alfa Bank). But it’s not clear how useful those records really were. There’s a reference to the “take” elsewhere (see below), and redacted entries that look like intelligence targeting, plus a reference to an OGA partner reporting “no attempts.” (Here’s a reference to the OGA analysis that is redacted in other versions of the same email chain.) So it seems any useful logs came from another agency. But if that’s right, it would be targeted overseas.

In trial testimony, Sands described that her task was to prove that the allegation wasn’t true, not to explain what the anomaly was.

I knew still I had to rebuild from scratch and prove that this allegation wasn’t true.

In real time, too, she saw her task as disproving that emails had been shared, not even disproving that covert communication had occurred.

I have a few more logs to definitely prove there are no emails, and then Im putting it to bed

That’s a particularly problematic description given that the FBI had been told via other channels that there was some activity reflecting more than DNS look-ups.

That leaves, according to Heide’s judgement, just the observation that the DNS traffic was not consistent with known Russian techniques. Newbie agent Sands said something similar to Chris Trifiletti, Joffe’s handler and apparently sensitive for some other reasons. In response, he mused about whether Russia was “trying other things now that look more non traditional.”

We don’t know the answer to that, because the FBI didn’t try to figure it out.

Scott Hellman, the cyber agent who insisted at every opportunity he got that this was garbage was wrong about how long the anomaly had lasted, but he was right about one thing. On October 4, he advised newbie agent Sands that,

any chance you get to work something like this that truly has 0 repercussions if you mess it up ….take those opportunities

He did mess it up. It wasn’t just his own analysis; his repeated insistence that this was “garbage” appears to have made all the other investigators less careful, too. Six years later, we’re still no closer to understanding what happened.

Hellman was right about facing “zero repercussions if you mess it up.” By all appearances, he’s one of the few people who escaped any consequences for trying to investigate Russia in 2016. We know that several people — including Jim Comey, Andrew McCabe, Peter Strzok, and Bruce Ohr — were fired for their efforts to investigate Russia. We learned at the trial that Ryan Gaynor was threatened with criminal investigation for not answering questions the way Andrew DeFilippis wanted. Curtis Heide remains under FBI Inspection Division investigation for things he did in 2016. Rodney Joffe was discontinued as an FBI informant, according to him, at least, because he refused to cooperate with Durham’s investigation. Everyone who actually tried to investigate Russia in 2016 has faced adverse consequences.

But Hellman appears to have suffered none of those adverse consequences for fucking up an investigation into a still unexplained anomaly. On the contrary, he’s been promoted; he’s now a Supervisory Special Agent, leading a team of people who will, presumably, similarly blow off anomalies that might be politically inconvenient to investigate.

That’s the lesson of the Sussmann trial then: The only people who face zero consequences are the ones who fuck up.

Update: Corrected spelling of Hellman’s last name. Added Comey and McCabe to the list of those fired for investigating Russia. Removed Lisa Page–she quit before she was fired. In this podcast, Peter Strzok said that all FBI agents named in the DOJ IG Report are still under investigation.

Update: All the links to exhibits should be live now.

Update: Added detail that Listrak says Trump never sent marketing mail to Alfa Bank.

Timeline

I’ve put (what I believe are) all the exhibits about the FBI investigation below.

These times are surely not all correct. Durham consistently shared evidence without marking what time zone the evidence reflected. Importantly, some, but probably not all of the FBI Lync messages reflect UTC time; where I was fairly certain, I tried to reflect the time in ET, but in others, the timeline below doesn’t make sense (I’ll keep tweaking it). Some of the emails reflect the Chicago time zone.

September 19, 2:00PM: Sussmann Meeting

September 19: Priestap notes

September 19: Anderson notes

September 19, 3:00PM: Strzok accepts materials

September 19, 4:31PM: Gessford to Pientka: Moffa with info dropped off to Baker

September 19, 5:00PM: Sporre accepts materials

September 20, 9:30AM: Nate Batty to Jordan Smith: A/AD has two thumb drives.

September 20, 12:29PM: Batty accepts materials

September 20, 4:54PM: Batty and Hellman re analysis

September 21, 8:48AM: Batty to Hellman: at least look at the thumb drives [Batty Lync]

September 21, 4:25PM: Pientka Lync to Heide: People on 7th floor fired up about this server

September 21, 4:46PM: Batty to Heide and others: initial assessment

September 21, 1:10PM [time uncertain] Sands to Pape: Director level interest

September 21, 4:57PM: Norwat to Todd: Not a cyber matter

September 21, 5:06PM: Todd to Heide, cc Pientka

September 21, 5:52PM: Pientka to Heide: Nat [sic] Batty ha the thumb drives

September 22, 4:58AM: Hubiak to Heide: Let me know if you need anything from PH

September 22, 8:09AM: Todd to Marasco [noting thumb drives came from DNC, suggesting tie to debate]

September 22, 8:33AM: Pientka to Heide: Less than 24 hours to investigate, determine nexus, before losing traffic, watched by Comey

September 22, 9:30AM: Pientka to Moffa: Cyber, ugh. Read first email.

September 22, 9:59PM: Hellman to Heide: can you talk on link

September 22, 10:23AM: Marasco to Pientka: FYI

September 22, 11:13AM: Sands to Hubiak: Suspect email domain hosted on Listrak server — if you can help out with a knock and talk it would be great.

September 22, 11:14AM: Baker to Comey and others: Reporter is Lichtblau

September22, 11:34AM: Hubiak to Sands: Will start working on this now

September 22, 12:02PM: Batty to Wierzbicki: We think it’s a setup

September 22, 12:10PM: Heide to Pientka: We’re leaning to this being a false server.

September 22, 2:00PM: Pientka to Hubiak: Thanks for all your efforts. The CROSSFIRE HURRICANE Team greatly appreciates you running this to ground.

September 22, 4:22PM: Sands to all: open full investigation, summary of Hellman’s conclusions [OGA partner targeting Alfa?]

September 22, 5:33PM: Heide to Pientka: it’s a legit domain

September 22, 4:53PM: Sands to all: Cendyn agrees to cooperate, legit mail server

September 23, 8:26AM: Sands to Hubiak: Cendyn willing to cooperate and provide logs

September 23, 1:09PM: Heide to Sands: once we get that case opened, let’s cut a lead to the MM division requesting assisting with the interview, etc.

September 23, 1:53PM: Sands to others: Cendyn, as of this morning no longer resolves, picture of Barracuda spam filter

September 23, 4:04PM: Heide to Gaynor: Cyber’s review

September 23: EC Opening Memo [without backup]

September 26: Gaynor notes

September 26: Intelligence Memo

September 26, 8:02AM: Lichtblau to Kortan: You know what time we’re meeting?

September 26, 9:29AM: Kortan to Lichtblau: Baker’s tied up until later this afternoon.

September 26, 10:02AM: Lichtblau to Kortan: planning to bring Steve Myers

September 26, 10:15: Heide to Pientka: We want to interview the source of the whitepaper?

September 26, 12:09: Kortan to Baker and Priestap: some kind of recap later today?

September 26, 12:29: Sands to Hubiak: I’m writing a justification for an NSL to GoDaddy

September 26, 4:19PM: Heide to Shaw: apparently it’s going to hit the times?

September 26, 4:55PM: Heide to Hellman: We think it’s a bunk report still…

September 26, 5:02PM: Soo to Sands: searching current and historical lists of Tor exit nodes

September 26, 6:20PM: Sands to all, cc Heide: Spectrum hit at Cendyn, NSLs for Listrak, GoDaddy, redacted, Tor results

October 2, 12:02PM: Grasso to Wierzbicki: Two IP addresses

October 2, 7:02PM: Heide to Hellman: Check this out….

October 3: Tactical Product

October 3: Communications Exploitation

October 3, 1:48PM: Gaynor to Heide: Did white paper start with person of interest?

October 3, 2:49PM: Heide to Gaynor and Sands: Interview source

October 3, 3:00PM: Wierzbicki to Gaynor, cc Moffa: I agree with Heide, interview source

October 4: Kyle Steere to Wierzbicki and Sands: Documenting contents of thumb drive

October 4, 8:26AM: Sands to Hellman: 2 random IP addresses we got from tom grasso

October 4, 8:28AM: Sands to Hellman: we got a report on the Alfa Bank side that they also think this is nothing

October 4, 8:43AM: Hellman to Sands: any chance you get to work something like this that truly has 0 repercussions if you mess it up ….take those opportunities [alt version]

October 4, 10:00AM: Gaynor to Wierzbicki et al, cc Moffa: We need to know what we can learn from the logs [CT version]

October 4, 9:50PM: Grasso to Sands: SME who can help give context to the data we discussed

October 4, 11:08PM: Sands to Grasso: Sounds great.

October 5, 1:20PM: Trifiletti to Sands: i reminded him once more that he has never proceeded with anything when he wasnt absolutely sure

October 5, 1:33PM: Hosenball request for comment

October 5, 3:02PM: Strzok to Gaynor, forwarding Hosenball with Mediafire package

October 5, 4:08PM: Sands to Trifiletti: We need to speak to Dave dagon now too

October 5, 5:07PM: Sands to all: Update on CHS conversation — redacted explanation for why Alfa changed

October 5, 6:58PM: Grasso to Sands: I told Dagon that you would be able to protect his identity so that his name is not made public

October 6: Gaynor notes and drawing [alt version, more redacted]

October 6, 4:20PM: Materials to storage

October 6, 4:28PM: Christopher Trifiletti: CHS report (Spectrum: misconfigured server)

October 6, 4:54PM: Trifiletti to Sands: Actual text of 1023 submitted

October 6, 6:21PM: Wierzbicki to Gaynor: CHS debrief

October 7, 8:59AM: Sands to Trifiletti

October 12, 8:01AM: Sands to Heide: the “logs” we got from listrak were not network logs

October 13, 5:45PM: Gaynor to Wierzbicki: Mediafire (includes link)

October 19, 8:05AM: Sands to Heide: we spoke to mandiant and that we are talkingt o [sic] the tech people at the ISP today

October 19, 10:15AM: Gaynor to Wierzbicki: 2 IP addresses, Mediafire, Dagon author?

November 1, 3:09PM: Sands to Trifiletti: I have a few more logs to definitely prove there are no emails, and then Im putting it to bed

November 14, 2:52PM: Steere to Sands: [report on September 30 receipt of logs from Cendyn]

January 18, 2017: Closing Memo

March 27, 2017: Sands 302 with Alfa reports that Mandiant reported no historic data

July 24, 2017: Moffa to Priestap: Includes several other reports

July 24, 2017, 3:10PM: Sands accepts custody

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John Durham’s Igor Danchenko Case May Be More Problematic than His Michael Sussmann Case

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Legal commentators who ignored the run-up to the Michael Sussmann trial and still have not reported on the evidence of abuse and incompetence are writing posts claiming it was always clear that the jury in that case would return an acquittal. The same people, however, are suggesting there might be more to the Igor Danchenko charges.

I wrote a whole series of posts laying out why that’s wrong — the last one, with links to the others, is here. In addition, I’ve been tracking Durham’s difficulties obtaining classified discovery from other parts of DOJ here. This post pulls together the problems Durham faces in his second trial, which is currently scheduled to start on October 11.

As a reminder, the Danchenko indictment charges the former Christopher Steele source with telling five lies to the FBI in interviews in which they tried to vet the Steele dossier:

  • One alleged lie on June 15, 2017  about whether he had spoken with Chuck Dolan “about any material contained in the” dossier.
  • Four alleged lies, told in interviews on March 16, May 18, October 24, and November 16, 2017, that he spoke to Sergei Millian in late July 2016 when Danchenko knew (variably in 2016 or in the interviews in 2017) that he had never spoken with him; one charged lie accuses Danchenko of wittingly lying about speaking to Millian more than once.

Durham will have to prove that these five statements were intentional lies and that they were material to the FBI’s operations.

Danchenko could get his former lawyer to testify

Before looking at the problems with each of those claimed lies and their materiality, consider that shortly after being charged, Danchenko replaced Mark Schamel, who represented Danchenko in his 2017 interviews with the FBI, with a team led by Lowenstein Sandler’s Stuart Sears. This makes it possible for Danchenko to do something risky but in this case potentially warranted: have his former attorney testify.

The interview report from his initial series of interviews in January 2017 shows that Danchenko was uncertain about the answer to some questions, but over the course of three days, checked his own records and corrected himself when he realized he had made an error in answering an affirmative question from the FBI. In at least one case, Danchenko also provided proof to back one of his claims. Schamel could explain how diligently he and Danchenko prepared for these interviews, how Danchenko corrected himself when he realized he was wrong, and the perceived focus — by all appearances, on Danchenko’s Russian sources — of the FBI interviews.

In short, Schamel’s testimony could go a long way to demonstrating that where Danchenko made an error, it was not willful.

The FBI didn’t ask the question about Chuck Dolan that Durham claims they did

Then there are the charges themselves. There are two potentially fatal problems with the single charge built around Chuck Dolan, which Durham has used to insinuate, with no evidence, that the minor Hillary supporter was the source of the pee tape allegation. The alleged lie Durham has accused Danchenko of, though, pertains to a more general question: whether Danchenko had “denied … that he had spoken to [Dolan] about any material” in the dossier.

Except, as happened repeatedly in his indictment of Danchenko, that’s neither what Danchenko was asked nor what he answered.

As I laid out in this post, it appears that Danchenko was asked whether Dolan was a source for Steele, not whether he was a source for Danchenko.

FBI AGENT-1: Um, because obviously I don’t think you’re the only …

DANCHENKO: Mm-hmm.

FBI AGENT-1: Person that has been contributing. You may have said one – and this is the other thing we are trying to figure out.

[ … ]

FBI AGENT-1: Do you know a [PR Executive-1]?

DANCHENKO: Do I know [PR Executive-1]? Yeah.

FBI AGENT-1: How long have you known him? [laughing] [pause]

DANCHENKO: I’ve known [PR-Executive-1] for [pause] I don’t know, a couple years maybe.

FBI AGENT-1: Couple years?

DANCHENKO: But but but but but but but I’ve known of him for like 12 years.

[ … ]

DANCHENKO: Yeah. Yeah he likes Russia. I don’t think he is, uh, – would be any way be involved. But-but-uh-b-but he’s uh [UI] what I would think would be easily played. Maybe. Uh, he’s a bit naive in his, um liking of Russia. [emphasis Durham’s]

The question was premised on Steele having other primary subsources other than Danchenko and his response was a denial of the possibility that Dolan was one of them. All of Danchenko’s responses could be framed with that understanding of the question.

Durham’s alleged false statement appears to stem from a follow-up question. But there, Durham has completely misrepresented Danchenko’s answer.

FBI AGENT-1: Okay, so you’ve had … was there any … but you had never talked to [PR Executive-1] about anything that showed up in the dossier [Company Reports] right?

DANCHENKO: No.

FBI AGENT-1: You don’t think so?

DANCHENKO: No. We talked about, you know, related issues perhaps but no, no, no, nothing specific. [emphasis Durham’s]

Danchenko explicitly told the FBI that he talked to Dolan about “related issues.” Particularly as regards the pee tape, Danchenko might consider using information from Dolan for further investigation a “related issue” but not the core issue that the FBI was interested in.

As to the report for which Durham presents compelling evidence that Dolan was the source, Durham presents no evidence of specific questioning about it, and there’s abundant evidence that Danchenko was never sure which reports came from him and which (he assumed) came from others.

Durham did not present any evidence that Danchenko denied, in response to specific questions about whether Dolan was involved in identified reports, that Dolan played a role in the dossier. He has evidence that Danchenko answered a question about something else, and then, in a follow-up, gave a much more equivocal response than Durham claims he gave.

Another Durham materiality claim fizzles after he actually investigates

Plus, it is virtually certain that Danchenko will be able to prove that his equivocal response could not have been material.

That’s because — as a declassified footnote of the DOJ IG Report makes clear — the reason the FBI asked these questions about Dolan on June 15, 2017 was because FBI had recently obtained Section 702 material showing conversations between Danchenko’s source, Olga Galkina, and Dolan.

The FBI [received information in early June 2017 which revealed that, among other things, there were [redacted]] personal and business ties between the sub-source and Steele’s Primary Sub-source; contacts between the sub-source and an individual in the Russian Presidential Administration in June/July 2016; [redacted] and the sub‐source voicing strong support for candidate Clinton in the 2016 U.S. elections. The Supervisory Intel Analyst told us that the FBI did not have Section 702 coverage on any other Steele sub‐source. [my emphasis]

That is, the reason the FBI was asking these questions in the first place is because they were trying to understand the communications they had just discovered between Dolan and Danchenko.

As the indictment lays out, Danchenko didn’t hide the key details about Dolan — that he was doing business in Russia, had ties with Dmitry Peskov, and had developed a business relationship with Galkina.

In a later part of the conversation, DANCHENKO stated, in substance and in part, that PR Executive-1 had traveled on the October “delegation” to Moscow; that PR Executive-1 conducted business with Business-1 and Russian Sub-source-1; and that PR Executive-1 had a professional relationship with Russian Press Secretary-1.

Durham claimed that Danchenko’s imagined lie was material because it deprived the FBI from obtaining information on Dolan.

DANCHENKO’s lies denying PR Executive-1 ‘s role in specific information referenced in the Company Reports were material to the FBI because, among other reasons, they deprived FBI agents and analysts of probative information concerning PR Executive-1 that would have, among other things, assisted them in evaluating the credibility, reliability, and veracity of the Company Reports, including DANCHENKO’s sub-sources.

We now know that, at the time Durham made this claim, he had barely begun the process of obtaining relevant evidence from DOJ IG. Even in the Michael Sussmann case, Durham first made a formal discovery request of Michael Horowitz’s office on October 13, 2021, almost a month after charging Sussmann (and just three weeks before indicting Danchenko). Durham didn’t receive materials that completely undermined his case against Sussmann until March.

From that, it’s fairly safe to assume that Durham (again) didn’t bother to test whether there was any basis for his materiality claims before building a long speaking indictment around them.

The FBI didn’t need Danchenko to tell them about Dolan’s Russian ties. They had discovered that already from 702 collection targeting Galkina. That’s precisely why they asked Danchenko whether Dolan could be another Steele source. And when asked for more details, Dahchenko offered up the details that FBI would have been looking for.

Durham’s due diligence problems on the Sergei Millian charges

There are several kinds of problems with the remaining four counts. As noted, four of the charges against Danchenko accuse him of hiding what Durham claims is affirmative knowledge (arguably in real time) that Sergei Millian never called him in late July 2016.

As a threshold matter, there’s no language in the Danchenko indictment suggesting Durham has affirmative proof that such a call didn’t happen — whether from Millian or anyone else. In his FBI interview, Danchenko suggested the call may have happened on a secure app and he said he had replaced the phone he used at the time. So it’s not clear that Durham can rule out a call on Signal or similar encrypted app. When Durham first rolled out this indictment, I thought such a claim would be reckless, but we now know Durham built his entire Sussmann indictment around billing records even though Durham had affirmative proof (in his taxi reimbursement) that Sussmann did not bill Hillary for his meeting with the FBI.

Worse still, even in the transcripts that Durham miscites in the indictment, Danchenko included a bunch of caveats that Durham does not include in his charging language: “I don’t know,” “at the time I was under the impression it was him,” “at least someone I thought was him.”

That creates a temporal problem with the way Durham has charged this. Even if Danchenko came to believe later in 2016 or in 2017 that he never spoke with Millian, in his interviews, Danchenko was answering about what he believed to be the case in July 2016, when he shared this report with Christopher Steele. All Danchenko was claiming was that he talked to some journalists at a Russian outlet, someone called Danchenko shortly thereafter (at a time, it should be said, when Oleg Deripaska likely already knew of the dossier project), and Danchenko assumed it was Millian because it was the most logical explanation. From the start, Danchenko always admitted his uncertainty about that call.

Durham is relying on a Twitter feed he has already said makes false claims about the Durham investigation

Then there’s the fact that Durham is relying on Sergei Millian as a witness against Danchenko.

As I noted last year, in his indictment, Durham claimed to prove that such a call had not happened based on Millian’s say-so. But not actual testimony. Rather, at that point, Durham was relying on Sergei Millian’s Twitter feed.

Chamber President-1 has claimed in public statements and on social media that he never responded to DANCHEKNO’s [sic] emails, and that he and DANCHENKO never met or communicated.

That was batshit insane then, not least because over the years journalists and others have raised real questions about the authenticity of Millian’s Twitter account. And since charging Danchenko, Millian has repeatedly made claims on Twitter that utterly demolishes the credibility of Millian’s Twitter feed.

Millian has played a key role in the “sleuths corner” that has ginned up all sorts of false claims about Durham’s investigation.

This explicit affiliation will entitle Danchenko to subpoena the activity of the group, and even if Millian were entirely credible, there are a number of people associated with the corner who are not.

Then, as part of his role in generating froth about the Durham investigation, Millian played a central role in misrepresenting a claim Durham had made in a filing in the Sussmann case, suggesting that Durham had proven that researchers had spied on the Trump White House.

This led Durham to formally state that those who made such claims were “misrepresent[ing] facts contained in the Government’s Motion.” So Durham has publicly accused his star witness — Sergei Millian’s Twitter feed — of making false claims about matters pertaining to Durham’s investigation.

Worse still, in the same time period, Millian claimed that he had called the White House and told them “who was working against them.”

That reflects the kind of knowledge that could only come from a concerted effort, in real time (seemingly in 2016), to fuck with the Fusion investigation, followed by a subsequent effort (at such time when Trump was in the White House), to exact a cost for the investigation. Effectively, with this tweet, Millian confessed to being part of the effort to undermine the Russian investigation. That makes Millian’s contact with Deripaska in 2016 all the more problematic, since Deripaska has seemingly carried out a sustained campaign to attack the Russian investigation. But it also suggests that Millian’s claims to have entirely blown off Danchenko’s quetions were false.

Millian has since claimed that Durham’s office was trying to keep him off Twitter, but that he refused because he wants to attack his enemies.

This is all just stuff that Millian has done since the indictment, and to the extent earlier Millian tweets are preserved showing professed knowledge of the 2016 Russian operation (as some are), Danchenko would be able to use those at trial as well.

Which may be why — at least according to Millian’s unreliable Twitter feed — Durham is now trying to get Millian to come testify at trial. But Millian suggests that testifying under oath to the claims he has been making on Twitter for years would amount to “using him.”

Durham’s star witness refuses to return to the US without some kind of “gentleman’s agreement” regarding his “safe return.” That’s not going to be a very credible witness on the stand, if he even shows up to testify.

The counterintelligence investigation against Millian was real in 2016 and may be realer now

Which leads us, again, to Durham’s failures to do basic investigation before charging these indictments.

We know Durham didn’t reach out to Michael Horowitz until weeks before charging Danchenko. The Sussmann case made it clear Durham had not received centrally relevant evidence in the Sussmann case until March.

That means Durham may not have been aware of the public evidence — in both the DOJ IG Report and declassified footnotes — describing the counterintelligence investigation opened on Millian in October 2016, which was opened in NY (where Millian lived at the time), not DC (where Fusion and others were also raising concerns).

In addition, we learned that [Millian] was at the time the subject of an open FBI counterintelligence investigation. 302 We also were concerned that the FISA application did not disclose to the court the FBI’s belief that this sub-source was, at the time of the application, the subject of such an investigation. We were told that the Department will usually share with the FISC the fact that a source is a subject in an open case. The OI Attorney told us he did not recall knowing this information at the time of the first application, even though NYFO opened the case after consulting with and notifying Case Agent 1 and SSA 1 prior to October 12, 2016, nine days before the FISA application was filed. Case Agent 1 said that he may have mentioned the case to the OI Attorney “in passing,” but he did not specifically recall doing so. 303

301 As discussed in Chapter Four, [Millian] [redacted]

302 According to a document circulated among Crossfire Hurricane team members and supervisors in early October 2016, [Millian] had historical contact with persons and entities suspected of being linked to RIS. The document described reporting [redacted] that [Millian] “was rumored to be a former KGB/SVR officer.” In addition, in late December 2016, Department Attorney Bruce Ohr told SSA 1 that he had met with Glenn Simpson and that Simpson had assessed that [Millian] was a RIS officer who was central in connecting Trump to Russia.

We know Durham has little familiarity with the Mueller Report, much less the underlying investigation. Which means he similarly may not have considered the evidence that Millian was cultivating George Papadopoulos during precisely the same weeks when Danchenko was contacting Millian for information on Trump.

Papadopoulos first connected with Millian via LinkedIn on July 15, 2016, shortly after Papadopoulos had attended the TAG Summit with Clovis.500 Millian, an American citizen who is a native of Belarus, introduced himself “as president of [the] New York-based Russian American Chamber of Commerce,” and claimed that through that position he had “insider knowledge and direct access to the top hierarchy in Russian politics.”501 Papadopoulos asked Timofeev whether he had heard of Millian.502 Although Timofeev said no,503 Papadopoulos met Millian in New York City.504 The meetings took place on July 30 and August 1, 2016.505 Afterwards, Millian invited Papadopoulos to attend-and potentially speak at-two international energy conferences, including one that was to be held in Moscow in September 2016.506 Papadopoulos ultimately did not attend either conference.

On July 31 , 2016, following his first in-person meeting with Millian, Papadopoulos emailed Trump Campaign official Bo Denysyk to say that he had been contacted “by some leaders of Russian-American voters here in the US about their interest in voting for Mr. Trump,” and to ask whether he should “put you in touch with their group (US-Russia chamber of commerce).”507 Denysyk thanked Papadopoulos “for taking the initiative,” but asked him to “hold off with outreach to Russian-Americans” because “too many articles” had already portrayed the Campaign, then-campaign chairman Paul Manafort, and candidate Trump as “being pro-Russian.”508

On August 23, 2016, Millian sent a Facebook message to Papadopoulos promising that he would ” share with you a disruptive technology that might be instrumental in your political work for the campaign.”509 Papadopoulos claimed to have no recollection of this matter.510

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

More recently, as part of charges against a different Russian-American who fled because of a counterintelligence investigation, DOJ made clear that Millian’s organization knew at least by 2013 they should have registered as agents of Russia.

a. On or about January 30, 2013, BRANSON received an email from an individual using an email address ending in “mail.ru.” Based on my review of publicly available information, I have learned that this individual was a Senior Vice President of the Russian American Chamber of Commerce in the USA. This email had the subject line “Problem.” and the text of the email included, among other things, a portion of the FARA Unit’s website with background on FARA. In response, BRANSON wrote, in part, “I am interested in the number of the law, its text in English[.]” The sender then responded with “Lena, read …” and copied into the email background on FARA and portions of the statute.

All of which to say that Durham likely cannot make any “gentleman’s agreement” on DOJ’s behalf with Millian about coming to the US to testify against Danchenko, because other parts of DOJ have equities that significantly precede Durham’s, equities that pertain more directly to harm to the United States and current national security priorities.

Plus, even if Durham did succeed in bringing his star witness against Danchenko to EDVA to testify against him, even if Millian weren’t arrested on sealed charges when he landed, the trial would end up being a circus in which the evidence against Millian and the false claims Millian has made about the Durham investigation playing a more central role than the evidence against Danchenko.

There are few things Durham could do that would make it more clear how his witch hunt has served Russia’s interests, and not those of the US.

I mean, I’m all for it. But at some point Durham may come to recognize that’s not a winning case.

There is affirmative evidence that any alleged lies Danchenko told were not material

It’s not clear whether Sussmann jurors ever got as far as considering the materiality problems in the case against Sussmann. But, even on top of the specific problem arising from the Section 702 directive targeting Galkina, described above, Durham may have bigger materiality problems with Danchenko.

That’s because — as explained in the DOJ IG Report Durham didn’t read closely — FBI repeatedly made decisions that affirmatively reflect finding claims in the dossier and Danchenko’s interviews were not material to their decision to keep surveilling Carter Page.

That’s true, first of all, because the initial FISA targeting Page obtained useful information. Notes from Tashina Gaushar that Durham belatedly discovered in the Sussmann case described the FISAs against Page this way:

So before the FBI ever spoke to Danchenko, they had independent reason (on top of the counterintelligence concerns NYFO had used in March 2016 to open an investigation on Page) to target Page.

Moreover, the FBI started identifying problems with the Millian allegations before the first FISA, but never integrated those or Danchenko’s own interviews into their FISA applications.

Regarding the information in the first bullet above, in early October 2016, the FBI learned the true name of Person 1 (described in Report 95 as “Source E”). As described in Chapter Six, the Primary Sub-source told the FBI that he/she had one 10- to 15-minute telephone call with someone he/she believed to be Person 1, but who did not identify him/herself on the call. We found that, during his/her interview with the FBI, the Primary Sub-source did not describe a “conspiracy” between Russia and individuals associated with the Trump campaign or state that Carter Page served as an “intermediary” between Manafort and the Russian government. In addition, the FBl’s summary of the Primary Sub-source’s interview did not describe any discussions between the parties concerning the disclosure of DNC emails to Wikileaks in exchange for a campaign platform change on the Ukrainian issue. To the contrary, according to the interview summary, the Primary Sub-source told the FBI that Person 1 told him/her that there was “nothing bad” about the communications between the Kremlin and Trump, and that he/she did not recall any mention of Wikileaks. Further, although Steele informed the FBI that he had received all of the information in Report 95 from the Primary Sub-source, and Steele told the OIG the same thing when we interviewed him, the Primary Subsource told the FBI that he/she did not know where some of the information attributed to Source E in Report 95 came from. 388 Despite the inconsistencies between Steele’s reporting and the information his Primary Sub-source provided to the FBI, the subsequent FISA renewal applications continued to rely on the Steele information, without any revisions or notice to the court that the Primary Sub-source had contradicted the Steele reporting on key issues described in the renewal applications. Instead, as described previously, FISA Renewal Application Nos. 2 and 3 advised the court:

In an effort to further corroborate [Steele’s] reporting, the FBI has met with [Steele’s] [redacted] sub-source [Primary Sub-source] described immediately above. During these interviews, the FBI found the [redacted] subsource to be truthful and cooperative [redacted]. The FBI is undertaking additional investigative steps to further corroborate the information provide [sic] by [Steele] and [redacted]

It cannot be the case that FBI at once ignored everything Danchenko said that should have raised concerns, but also that Danchenko’s repetition of the things he said in his first interview would be material to later parts of the investigation. There’s a 478-page report laying out why that’s not the case.

As to the Dolan tie, the FBI obtained intelligence that the reports that most mattered to the ongoing Russian investigation — the sketchy Cohen-in-Prague stories sourced to Olga Galkina, stories that may well have arisen because Dolan vouched for Galkina with Peskov — were disinformation a week before first speaking to Danchenko.

A January 12, 2017, report relayed information from [redacted] outlining an inaccuracy in a limited subset of Steele’s reporting about the activities of Michael Cohen. The [redacted] stated that it did not have high confidence in this subset of Steele’s reporting and assessed that the referenced subset was part of a Russian disinformation campaign to denigrate U.S. foreign relations. A second report from the same [redacted] five days later stated that a person named in the limited subset of Steele’s reporting had denied representations in the reporting and the [redacted] assessed that the person’s denials were truthful.

As I have shown, Mueller did not use the Cohen reports at all in predicating the investigation against Trump’s lawyer.

Finally, the DOJ IG Report strongly suggests that the FBI was not going to get a fourth FISA targeting Page until they discovered two new facilities — probably one or more encrypted app and some financial accounts — they thought might answer some of their outstanding questions about Page.

[A]vailable documents indicate that one of the focuses of the Carter Page investigation at this time was obtaining his financial records. NYFO sought compulsory legal process in April 2017 for banking and financial records for Carter Page and his company, Global Energy Capital, as well as information relating to two encrypted online applications, one of which Page utilized on his cell phone. Documents reflect that agents also conducted multiple interviews of individuals associated with Carter Page.

Case Agent 6 told us, and documents reflect, that despite the ongoing investigation, the team did not expect to renew the Carter Page FISA before Renewal Application No. 2’s authority expired on June 30. Case Agent 6 said that the FISA collection the FBI had received during the second renewal period was not yielding any new information. The OGC Attorney told us that when the FBI was considering whether to seek further FISA authority following Renewal Application No. 2, the FISA was “starting to go dark.” During one of the March 2017 interviews, Page told Case Agent 1 and Case Agent 6 that he believed he was under surveillance and the agents did not believe continued surveillance would provide any relevant information. Cast Agent 6 said [redacted]

SSA 5 and SSA 2 said that further investigation yielded previously unknown locations that they believed could provide information of investigative value, and they decided to seek another renewal. Specifically, SSA 5 and Case Agent 6 told us, and documents reflect, that [redacted] they decided to seek a third renewal. [redacted]

This is yet another reason why nothing Danchenko could have said in his interviews would have changed the FBI’s actions.

That leaves the purported lies — the same alleged lies about Millian — told in October and November 2017 that Durham claims Danchenko had been telling all along. By that point, though, Mueller already had George Papadopoulos refusing to provide details pertaining to Millian that would have raised further questions about Millian’s activities in 2016.

Honestly, this post barely scratches the surface of problems with Durham’s Igor Danchenko case. Things get worse when you consider Oleg Deripaska’s role in the dossier and the very active investigation into him and more recent sanctions into Dmitry Peskov.

And, this time, Durham may realize that. Just weeks before the Sussmann trial, Durham made a frenzied effort to include details about the dossier and Millian in Sussmann’s case. For example, he got approved as exhibits and “accidentally” released Fusion GPS files entirely unrelated to the Sussmann case. He attempted, but failed, to make Christopher Steele a central issue at the Sussmann trial. And during the testimony of Jared Novick, he attempted to introduce the names of dossier subjects that were unrelated to the core Sussmann charge. That is, Durham expanded the scope of his already unhinged conspiracy theory to incorporate topics — most notably, the dossier — that he might otherwise present at the Danchenko trial.

In the next two weeks, Durham will — after over ten weeks of delay — have to face the challenges of obtaining the classified discovery that Danchenko can demand to prove this is the case. In light of those challenges, we’ll see whether Durham wants to barrel forward towards yet another humiliating loss at trial.

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